ChrisWeigant.com

Friday Talking Points -- A Busy Week

[ Posted Friday, January 21st, 2022 – 17:37 UTC ]

It was an eventful week in Washington, with a holiday and an anniversary thrown in for good measure, so we're going to try to be a little more succinct in this week's rundown. Well... try to, at any rate.

The week began with Martin Luther King Junior Day, saw a historic (but failed) vote in the Senate on voting rights, contained a marathon of a presidential press conference, and marked the first year President Joe Biden has spent in office. Plus a whole lot of other notable developments along the way.

The biggest of the other developments of the week surrounded the investigation into the January 6th insurrection attempt, which seems to have picked up pace in a considerable way. These efforts were aided this week by the Supreme Court ruling 8-1 that Donald Trump's papers at the National Archive could indeed be turned over to the House investigating committee. His claims of executive privilege were essentially laughed out of court, and the transfer has already begun. Which immediately led to the leak of a jaw-dropping document in Politico, which published an extraordinary Trump draft executive order in full. The White House was fully prepared -- although the order was never actually given -- for federal agents to seize voting machines across the country. This is astounding news, and puts the lie to anyone who thinks the events of that day or Trump's connection to them have somehow been "overblown." The president's lawyers put together a document where the federal government would have aided and abetted the stealing of a presidential election. "Stunning" doesn't even begin to describe this development.

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Grading Biden's First Year

[ Posted Thursday, January 20th, 2022 – 16:53 UTC ]

One year ago today, Joe Biden was sworn in as president of the United States. His Inauguration was notable for a few reasons, first and foremost the fact that it happened only two weeks after the U.S. Capitol had been besieged and overrun by insurrectionists attempting to prevent Biden from ever taking office. So the entire Capitol complex was heavily locked down and defended for what is normally a positive and upbeat public ceremony. The other two notable reasons that stick in my mind were: Amanda Gorman absolutely stealing the show with her poem "The Hill We Climb," and Bernie Sanders providing the best photo op by sitting on a socially-distanced chair wearing adorable homemade mittens.

Since it is precisely one year later, the traditional thing to do is to review Biden's performance in office over the past year. There are many ways a new president could be rated, of course, so I just settled on one to give my overall impressions and conclusions.

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Biden's Marathon Presser

[ Posted Wednesday, January 19th, 2022 – 17:41 UTC ]

I am writing this after watching a rather extraordinary press conference with President Joe Biden. It was extraordinary for two reasons, really -- it was only the second such press conference he's given on U.S. soil since becoming president, and it was monumentally long, clocking in at just under two hours. It was a true marathon of a presser, as Biden seemed almost reluctant to end it -- and at several times even kidded with the reporters that he could go for another two or three hours if they were up for it. Perhaps he was making up for the lack of regular press conferences in his first year by giving what amounted to a double press conference to begin his second?

Throughout it all, Biden seemed fairly calm and well-versed in the issues he was asked about. He gave detailed answers to virtually every question he was asked, and only showed a flare of anger at one particular line of questioning. He made some news with his answers, on Russia, on the prospects for his Democratic agenda in Congress, on elections, and on what he's going to do differently in his second year.

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A Powerful Pro-Weed Senate Candidate In Louisiana

[ Posted Tuesday, January 18th, 2022 – 16:39 UTC ]

Every so often I see a political ad that really catches my eye. Even rarer are those that bowl me over for being particularly effective or powerful. But the rarest of all is seeing an ad that makes me want to move to that state just so I could vote for the guy. Today was one of those days.

Most long-time readers already know that while this is not quite a "one-issue-voter" issue for me, it is one I have strongly advocated for and celebrated the progress of over the past few decades -- progress that, to me (when I first started blogging), was beyond my wildest dreams. So it's entirely in character that the issue being addressed by Gary Chambers, a candidate for the United States Senate in Louisiana, is marijuana law reform. But I have never seen the issue championed quite so forcefully.

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Martin Luther King's Words

[ Posted Monday, January 17th, 2022 – 17:29 UTC ]

Today, on the federal holiday celebrating the birthday of Dr. Martin Luther King Junior, his son Martin Luther King III travelled to Arizona to express his displeasure with Senator Kyrsten Sinema after she crushed the hopes of all those wishing to see modern voting rights legislation pass into law. "History will remember Sen. Sinema, I believe unkindly, for her position on the filibuster," said King's eldest son and namesake, and he pointed out in an interview: "Our daughter has less rights around voting than she had when she was born. I can’t imagine what my mother and father would say about that. I'm sure they’re turning over and over in their graves about this."

Those are some pretty strong words, but Sinema has earned such condemnation. Together with Joe Manchin of West Virginia, they have stood firmly for the rights of a minority of senators to prevent a majority from enacting federal voting rights laws -- which would stop or overturn the voter suppression measures that have passed on party-line votes in legislatures all over the country. Sinema sanctimoniously tried to take the high road and paint her stance as one for "bipartisanship," but by doing so she completely ignores the fact that we are in this situation precisely because of partisanship at the state level and partisanship in the Senate. She is unilaterally disarming the Democrats in the face of such partisanship, seeking a bipartisanship which simply does not exist anymore in the United States Senate. She stood up for parliamentary procedure (that is included nowhere in the U.S. Constitution) over basic constitutional rights. King is right -- history will not remember her actions kindly.

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Friday Talking Points -- The Death Of Joe Biden's Presidential Legacy

[ Posted Friday, January 14th, 2022 – 16:56 UTC ]

We're not quite sure exactly what to call what we witnessed this week in Washington. We know it's not "regicide," since we don't have kings here. So what, exactly? Execucide? Presidenticide? Legicide? Particide? Whatever neologism you prefer, however (and feel free to suggest your own in the comments...), what we saw this week was the strangulation of Joe Biden's presidency and the Democratic Party's political agenda. It happened mostly in public, as two supposedly-Democratic senators killed all hope of anything important getting done for the entire rest of the year (if not for the rest of Biden's term). This will likely doom Democrats' chances in the midterms and will likely also cement the legacy (whether justified or not) of Biden's term in office as a president who was weak, ineffective, and a massive disappointment to most of the Democratic Party.

Senators Joe Manchin and Kyrsten Sinema personally strangled Biden's hopes for accomplishing much of anything more than he already has, and by doing so they did more political damage to Biden's presidency and their own party than Donald Trump, Mitch McConnell, and Kevin McCarthy could have managed combined. That's how disappointing the entire tragedy truly was, for millions of Democratic voters.

Midterm congressional elections depend on turnout of the base. But why should any Black southern voter even bother to brave the hours-long lines when their own party and their own preferred presidential candidate have proven to be so ineffective in delivering for them? Why should any parent get excited about voting for a Democrat when the party couldn't even manage to continue the Child Tax Credit payments for another year? Why should anyone who cares about justice and democracy make the effort to vote when their elected officials quite obviously care about arcane parliamentary procedure far more than securing their right to vote?

It's been that kind of week, sadly.

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A Proper Use Of Sedition Law

[ Posted Thursday, January 13th, 2022 – 17:06 UTC ]

For the first time, the Justice Department has brought charges of sedition against those who allegedly plotted to stop the constitutional process of Congress counting the Electoral College votes to officially determine who will be the next president. Eleven members of the Oath Keepers were charged with seditious conspiracy today, which seems entirely fitting for what took place at the United States Capitol on January 6th last year. In fact, many have been wondering what took the Department of Justice so long to bring such charges.

This was rather obviously sedition, and hopefully it will be pretty easy to prove that in a courtroom. Especially when you consider the actual text of how federal law defines seditious conspiracy:

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A Very Slippery Slope

[ Posted Wednesday, January 12th, 2022 – 16:23 UTC ]

An interesting idea is being floated these days about one particular clause in a constitutional amendment. What it boils down to is the question of whether Democrats (or anyone else) should make a concerted effort to bar from ever seeking office those Republicans who in some way participated in the January 6th insurrection attempt. On the face of it, this seems a rational thing to contemplate -- no one who has tried to overthrow the government should be allowed to participate in that government in the future. The Constitution should not become a suicide pact, in other words. But actually applying it in this particular case will almost certainly set us all on an even slipperier slope than we're already on, in terms of partisan warfare in Congress.

Here's the relevant text, Section 3 of the Fourteenth Amendment:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

That's the whole section. Again, on first reading it, it's understandable the impetus toward barring certain Republicans from seeking office or getting re-elected. But a larger context might be necessary.

The Fourteenth Amendment was ratified during the post-Civil War period. At the time, many who had served in either the Confederate army or government wanted to run for office in the newly-readmitted southern states. This was an explicit way to bar them from doing so. But later during the Reconstruction Era the text of this law was drastically narrowed, by the passage of the Amnesty Act of 1872. This limited who could be barred from office, and it allowed most Confederate rank-and-file soldiers to run for office and serve from that point on. This was part of a general easing of retribution, as President Ulysses S. Grant then went on to pardon all but 500 former top Confederate officials. So back then, the foot soldiers were not held as accountable as the leaders and were allowed to serve in Congress or any other office they could get elected to.

Now, please remember, the Confederate States of America was unquestionably either an insurrection or rebellion (take your pick). It's beyond debate. But it had a structure -- a government, an army, a navy, and all the minor trappings of government below them. They issued their own currency and stamps, for example. Though never recognized diplomatically on the world stage, they did have a functioning governmental structure. There was no question about who had served in this government or armed forces -- it was all public knowledge.

So let's go back to the text of that amendment. The first part of the clause is pretty clear-cut -- you can't serve in any government office, period, whether state or national. The second part, however, already limits who this would apply to in today's situation: "...who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States...."

This would seem to mean sitting or former political officeholders and those who had ever been a commissioned officer in the United States military (I leave it for those more well-versed in legalisms to determine whether "an officer of the United States" would apply to the rank-and-file members of the military, who also have to swear an oath of service). But this would indeed include anyone serving in the current Congress (and not just "any previous Congress") because of the timing of the insurrection attempt. The new Congress officially convenes on January 3rd. Three days later, the insurrection attempt happened. So all sitting members would be covered, as well as those (like Devin Nunes, for instance) who were sitting members of the current Congress but have since quit. It would also cover any other politician who had sworn an oath to defend the Constitution previous to that date (up to and including President Donald Trump).

But then there's the third clause: "...shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Republicans are already arguing that what took place doesn't qualify as an "insurrection or rebellion." And what definition should be used for "engaged in" or "given aid and comfort to"? That's a much more nebulous question than: "Did you serve in the Confederate government or armed forces?" And remember that it wouldn't even cover those who did actively participate but had not previously sworn any oath to defend the Constitution. There are dozens of people who were part of the mob who stormed the U.S. Capitol who are now running for office nationwide. Those who had never previously sworn such an oath are still perfectly free to do so, even under the most Draconian reading of the amendment's language.

Let's say for the sake of argument that a Draconian reading is what is necessary here. There is certainly a strong moral argument to make that those who swore to defend the Constitution but then turned around and attacked it should be barred forever from serving in any office, but again this was not the Civil War. So there are no paymasters' lists of who participated and who didn't. So how many should it be applied to? The people who directly participated in storming and ransacking the seat of democracy in America? Well, they'd be the most obvious, of course. Members of Congress who were in contact with the leaders of the insurrectionist groups? Those who egged them on at Trump's pre-attack rally, including Trump himself? Well, you could certainly make a strong "given aid and comfort" argument for all of them. But how about those Republicans who voted against certifying the results from all the states, even after the insurrection attempt had happened? Does that qualify as "aid and comfort" or "insurrection or rebellion"? That's a harder case to make, obviously, since no matter how much you disagree with them you have to admit they were following the correct constitutional procedure and not rampaging through the halls chanting: "Hang Mike Pence!" So where does the line get drawn?

Up until now, the Justice Department hasn't even charged any of the defendants from January 6th with sedition or domestic terrorism, much less insurrection or treason. There is no requirement in the Fourteenth Amendment clause for a conviction of such crimes, but it would certainly be a lot easier for Congress to bar someone from office who had already been proven in court to have attacked the government. But it's pretty farfetched to imagine that the Justice Department would ever (at least not without overwhelming proof of guilt being uncovered by the Select Committee) charge sitting members of Congress with such high crimes. So while it would indeed be convenient to just see who the courts decide is guilty of such crimes, that's almost certainly not going to happen any time soon.

There is no real mechanism in the Fourteenth Amendment for enforcement, either. Does Congress merely vote (with a simple majority in both chambers) on whether to bar some particular person or entire class of persons from ever holding office? The only procedure outlined is the one to waive the law, not to enforce it, which is a problem for those who want to now invoke it. No matter what route is chosen in any attempt to utilize this provision, it is likely it will end up in the courts, meaning the heavily-conservative Supreme Court would have the final say on the matter.

There is one larger thing to consider as well. Those now arguing for invoking the clause and using it on as many Republicans as possible should really take a deep breath and ask themselves if this is really what we should be doing in America. Because it would almost certainly prove to be a very slippery slope. After all, we scoff at countries who summarily bar people from ever running for office -- as happens regularly in places like Russia and Iran and China -- for being nothing more than "fake democracies." There is no real democracy if the people in power get to decide who can challenge them in the next election, after all. And that is exactly what going after those Republicans who did nothing more than voting against certifying the Electoral College results would indeed look like: political retribution, plain and simple.

If that's not enough to give pause, consider what would happen going forward. Say Democrats enforce the provision to the hilt. Even attempting to bar sitting Republicans from ever running for Congress again would absolutely enrage the entire party, from Trump on down. Attempting to bar Trump himself from office would be even worse, because then he'd be personally involved. Say such an attempt largely failed (one way or another, perhaps at the Supreme Court). Think for a minute what Republicans would do, once they regained power in either chamber of Congress or the White House. They would then seek to turn this effort around and use it against any Democrat they didn't like, for any reason under the sun. They'd call "supporting Black Lives Matter" aiding and abetting an enemy of the government. They'd widen the definition to include as many Democrats as possible -- they are already getting ready to essentially run their entire 2022 campaign on the sole issue of "Vengeance!" so adding this in would be a piece of cake for them.

Personally, I can certainly understand the temptation to use this obscure part of a constitutional amendment to bar the most unrepentant Republicans from ever seeking or holding office again. It would be fitting indeed. But other than individual groups at the local level suing in a pre-emptive move to keep certain candidates off the ballot, I don't really think Democrats as a whole should give in to the urge to try this route. Again, if the Select Committee provides solid evidence of involvement or if anyone who actually participated in the violence of that day is convicted in court of sedition or domestic terrorism, then I would agree that this should be a clear disqualification and Democrats should indeed act. But without such a smoking gun, I think any wider application would wind up coming back to bite Democrats in the end.

-- Chris Weigant

 

Follow Chris on Twitter: @ChrisWeigant

 

Biden's New Year's Resolution

[ Posted Tuesday, January 11th, 2022 – 16:51 UTC ]

[Program Note: Due to external events I was busy today and hadn't even intended to write a column. This is going to be an abbreviated one (more like an extended comment), just to warn everyone.]

 

While I was busy with some other important things today, I managed to catch President Joe Biden's speech on voting rights from Atlanta, Georgia. To make a long story short: I was glad I did.

This makes twice since the dawn of the new year that Biden has made very effective use of the presidential bully pulpit, in fact. His speech on last year's insurrection was downright astonishing, and today's was even better.

I don't have the time right now to give my full reactions to the speech, but if you haven't seen it, take a half an hour and watch it -- and I bet you'll be glad you did, too.

Biden was, in a word, historic today. Civil rights and voting rights are weighty subjects indeed, especially in Atlanta. Biden issued a clear challenge not just to Joe Manchin and Kyrsten Sinema, but to every serving senator: history will judge you for this vote. Biden also (for the first time) clearly and directly took a stance that voting rights bills should not be blocked by arcane Senate rules -- and if the rules needed changing, then that was what had to happen. This represents a huge change for Biden, who is an institutionalist when it comes to the chamber he served in for so long.

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What's Next For Democrats

[ Posted Monday, January 10th, 2022 – 16:27 UTC ]

A new year has dawned and Congress is finally getting back to work. In the Senate, this means (as it has for the entire past year) trying to figure out what Senators Kyrsten Sinema and Joe Manchin will accept. So far, the answers seem to be the usual "not much of anything," but perhaps they'll surprise us and actually get something done in the next few weeks.

Right now there are two big pressing issues in the Senate: Joe Biden's Build Back Better plan and passing some sort of voting rights bill or bills. The news on Build Back Better is pretty dispiriting, as the Washington Post is reporting that Manchin no longer supports the version of the plan he himself offered to the White House, just before the holidays. That's right -- he no longer supports his own proposal:

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