We Don't Know What a Fast Garland World Would've Looked Like

It is almost certain that Donald Trump is going to run out the clock on facing real legal consequences for his myriad 2020 election related crimes before the 2024 election occurs. Consequently, many are blaming Attorney General Merrick Garland for being too slow and cautious in his prosecution of Trump. By taking so much time before bringing his case, Garland enabled Trump's various delaying tactics -- aided, of course, by loyalist judges at both the trial level and Supreme Court -- to stretch the cases out until after election day. Had he moved faster and more aggressively, things would have been different.

Maybe. But the thing about alternate futures is that we can't live there; and if we did live there, we wouldn't know here. Suppose that Garland did move fast and aggressive on Trump right at the outset of Biden's term. And suppose that right-wing judges such as the current Supreme Court majority, or Judge Cannon, issued the same rulings that they did in our timeline -- providing broad immunity to Trump designed to shield him from legal accountability. I suspect that, in that timeline, there would be a lot blame cast at Garland for moving too quickly -- he rushed things, he let political expediency get in the way of methodically building a case, and so he gave the courts an excuse to slow things down or even to cast his investigation as a witch-hunt rather than a genuinely legalistic inquiry. Had he been more temperate, things would've gone differently

Now, since we live in our timeline, we know that a more temperate and methodical approach would not have led to a success story. But the point is not just that it's always easy to speak with the benefit of hindsight. It is that we actually don't know what alternative paths-not-taken would look like, and if we did know we wouldn't know what was happening in our path. This is a ubiquitous problem, and while it is entirely reasonable given what we know now to say that Garland made the wrong judgment, it is not hard to imagine a very plausible timeline where Garland made the judgment we (in the prime timeline) say is clearly "right" and it is widely viewed (in the alternate timeline) as a terrible and eminently avoidable miscalculation.

Things People Blame the Jews For, Volume LXVI: The Wagner Coup

Seemingly as soon as it began, the "Wagner Coup" in Russia has come to an end. Shortly after taking control of the city of Rostov-on-Don and turning towards Moscow, Wagner Group leader Yevgeny Prigozhin announced he was backing down in a deal brokered by Belarussian President Alexander Lukashenko. (Prigozhin's safe transfer to Belarus has reportedly been "guaranteed" by Putin. Good luck with that).

But as brief as it was, things move quickly in the fast-paced ecosystem of the antisemitic conspiracy theory world (maybe why we had a two-fer today!). So in the short window when Wagner was on the march, we got some oh-so-typical content from sources close to the Kremlin:

The head of Russia's state-run television network RT said Saturday there was "no doubt" that the ongoing uprising by the Wagner mercenary group against the Kremlin was orchestrated by the secret services of the US, Britain and "perhaps one Mideastern country," a clear reference to Israel. 

RT editor-in-chief Margarita Simonyan is notorious for trafficking in baseless conspiracies and spreading false information at the behest of the Kremlin.

The "irony" is that Israel, of course, has been among the more tepid supporters of Ukraine compared to most of the western world, and thus seems quite unlikely to wade into the fray by supporting regime change in Russia. But plausibility was never the antisemite's strong suit. 

Pardon the Insurrection

If Donald Trump is elected president in 2024, there is a near-100% chance he will pardon the January 6 insurrectionists. I think that is effectively beyond contestation. Here are my two questions:

1) If a different Republican (e.g., DeSantis) is elected in 2024, what are the odds that he pardons the insurrectionists? I'd say it's less likely than the near-certainty that Trump would do it; but is it even below 50%? Below 10%?

2) If Trump is elected in 2024, what are the odds that he tries to prosecute at least some of the Capitol police officers who resisted the January 6 insurrectionists (here he is calling one such officer a "thug" and Ashli Babbitt a "hero")?

Scary thoughts.

Too Big To Fail (at a Coup)

Tell me where Adam Serwer is wrong here:

Those who attempted to subvert democracy have faced few political or legal consequences. As is typical, some rioters are facing prosecution while the elites who tried to overthrow the election through more bureaucratic or procedural means remain in good standing with their peers. The failure to impose accountability for an attempt to overthrow the constitutional order will encourage further such efforts.

Meanwhile, those rare Republicans who did stand up against this attempt to destroy American democracy are the only ones dealing with real political consequences from their party, facing primary challenges, being forced into retirement, or being stripped of their leadership positions. Republican officials who were unwilling to use their office to overturn the election results are seeing challenges from Trump devotees who will, should the opportunity arise again.

If Trump had succeeded, many of those downplaying the former president’s actions would today be rationalizing an American coup.

Not only is this right, it is inarguable. The biggest lessons from January 6 are (1) in the political sphere, elite conservatives have near-infinite layers of insulation from consequences, no matter how far they stray blitz across the line of democracy and rule of law and (2) there is no illiberal, anti-democratic, or unlawful act taken by Trump and his lackeys which -- after a two or three week cooling down period -- elite conservatives will not find it in themselves to rationalize, explain away, or contend that "Biden/Harris/Clinton did the same thing, but worse." Minor nobodies may be sacrificed here and there, but if you get big enough in the right-wing ecosystem, it is impossible to fall from grace (unless you do the truly unthinkable heresy of standing against Trump for any reason on any subject).

Is a Coup Coming?

I've read a fair number of pieces -- and I'd call them "alarmist", except I don't think they're wrong to raise the alarm -- that the Republican Party is laying the foundation to simply not accept a Democratic victory in 2024. "Stop the steal" becomes "steal it back", if you will. Certainly, the defenestration of Liz Cheney is part of this dynamic. The branches of the GOP which are even nominally supportive of democracy in America grow more brittle every day.

But meanwhile, Politico is observing goings-on amongst retired military officials, and there's some cause for concern there too:

A day after 124 retired generals and admirals released a letter spreading the lie that President Joe Biden stole the election, current and former military officers are speaking out, calling the missive a dangerous news sign of the military being dragged into the trenches of partisan warfare.

The open letter on Monday from a group calling itself Flag Officers 4 America advanced the false conspiracy theory that the presidential vote was rigged in Biden's favor and warned that the nation is "in deep peril" from "a full-blown assault on our Constitutional rights."

The good news, such as it is, is that most of the flag officers are below three stars (and no four stars) -- not the heaviest hitters. The bad news, well, I'll kick it over to Peter Seaver (formerly on the NSC in the Clinton and Bush administrations) for the bad news:

Every military that coups or threatens to coup constructs a narrative in which the military is acting to save the country from something worse than military rule. Clearly the authors are attempting to write that narrative.

Not good. Not good at all.

Also, I'll just note that Thomas Sowell was flirting with supporting military coups to keep Democrats out of power since 2008. So this rot, while no doubt accelerated by Trump, did not begin with him. It has been percolating in conservative circles for awhile.

La Foule, C'est Moi, Part III

The pattern of Republican politicians just openly identifying with the lawless mob continues with Josh Hawley, who thinks he bravely stood up to the insurrectionists who rampaged through the Capitol by actively encouraging them and endorsing all their demands. Such boldness. Such courage.

Of course, this doesn't even get into the (at least) six Republican elected officials who were actually, literally part of the marauders.

Anyway, a whopping ten House Republicans voted to impeach President Trump for his actions fostering a violent attack on democracy. That's nearly 5%! I'll tell you what, the days of the GOP being in thrall to lawless anti-democratic authoritarianism are certainly coming to a middle.

The Beard and Overalls Putsch

We should be talking about Raphael Warnock and Jon Ossoff's historic victories today, ensuring that incoming President Joe Biden has a Democratic House and Senate that can implement his priorities.

But we can't. Because a mob of pro-Trump extremists has stormed our seat of government, an attempted insurrection aimed at the violent overthrow of our democratic system.

This is the final fruit of Trumpian authoritarianism, eagerly abetted by the overwhelming majority of the Republican Party. Even now, Trump can barely murmur a peep against the "protesters", limply calling for peace while insisting that their paranoid fantastical grievances are in fact wholly justified and salutary. In this, he has been backed by huge swaths of his own Party, who own this blot on our national heritage almost as much as he does. Figures such as Josh Hawley and Ted Cruz deserve permanent disgrace. They cheered this on. They helped make today happen.

And of course, the limp response of the Capitol Police to these acts of White Supremacist sedition stands in such striking contrast to the heavy hand taken against Black Lives Matter protesters. We can't even fathom a similar display to this emanating from the left, because if it had come from the left the streets would run with blood. Yet even here the right plays victim, comparing a few instances of vandalism against  a violent anti-democratic putsch and suggesting that it's the left which comes out with explaining to do. If you think they've learned anything, they haven't.

The Beard and Overalls Putsch will not succeed. It will not stop our democracy. This will not be the day that the American dream dies. But make no mistake. There has to be accounting, and there has to be reckoning. The men and women responsible for allowing this to happen cannot be permitted to escape without consequence. Yes we need to heal. But part of healing means finally expunging the toxic, authoritarian, anti-democratic poison that has been allowed to course through the body politic for far too long.

What's the Difference Between Impeachment and Faithless Electors?

One of the first plot points on the TV series The Americans occurs in the aftermath of the attempted assassination of President Reagan, and Secretary of State Alexander Haig's famous declaration "I am in control here" while the President was in the hospital.

Among Americans, this statement was roundly mocked as Haig being overzealous and ill-informed. But -- while there certainly was anxiety around the assassination attempt regarding who was behind it, whether it was a military move, etc. -- there wasn't really any concern among the American public that Haig was actually launching a coup.

But (in the show, at least) the Russians don't know that. From their vantage point, a top government official had just seized on the chaos of the assassination attempt to declare himself head of state. Without a sort of deep enmeshment in American law, culture, and society, it could be hard to tell -- from afar -- why Haig's statement wouldn't be seen as really worrisome, and what distinguished it from a "real" coup attempt.

I was thinking about this with respect to two ways the ticket that wins the presidential election (as understood in the conventional sense) could nonetheless be blocked or removed from office. One way is, immediately after election day but before he is inaugurated, "faithless electors" deciding en masse to vote for someone else. So even though Trump and Pence won most electoral votes, they could just decide to vote for Nancy Pelosi and some other Vice President. The other way is, after the President Vice President are inaugurated and seated, Congress impeaches and removes them.

To any American observer, though, these are two very different things. Congress impeaching and convicting Donald Trump would be controversial, no doubt, and high profile. But it is still basically recognized as a valid "move"; it isn't an illicit seizure of power. By contrast, the faithless elector route would not be seen that way. It'd be seen as, more or less, a coup.

But why? Both are formally legal. Article II, Section 4 of the Constitution allows for the President and Vice President's removal by impeachment (and, under the law, the next person in the Line of Succession is the Speaker of the House). And under the 12th Amendment Electors have the authority to vote for whomever they like for President (I leave aside the issue of "faithless elector" statutes and their applicability -- we can assume that all the faithless electors come from states which do not prohibit such acts).

And it's not a matter of some established tradition either. Sure, we've never had a case where faithless electors have altered the victor of an election. But we've also never impeached and removed a President (two Presidents -- Johnson and Clinton -- were impeached but not removed; Nixon resigned before he could be impeached).

So suppose Congress does impeach Trump and Pence. Your friend from abroad hears the news and worries -- has Nancy Pelosi just announced a coup? How do you explain that that isn't really an accurate description of what happened, in a way that distinguishes the "faithless elector" case?

(As you might imagine, what's really prompted this line of thinking is the "legal" arguments for Juan Guaido claiming the presidency in Venezuela. Even assuming he's obeying the letter of the law -- is this more like an impeachment, or more like a faithless elector? Of course, I think the actual answer is that the "legitimate" legal structures in Venezuela have decayed so severely that trying to think in terms of legitimated legal pathways is just a misfire completely -- we're talking about a country where the Supreme Court, stacked with Maduro loyalists, just outright dissolved the national assembly, after all)

Informed Uninformed Thoughts on Venezuela

I am not particularly uninformed on Venezuela. But I feel decently informed about what I don't know about Venezuela and, more importantly, what that uninformedness should yield (hint: not sweeping confident endorsement of any particular move or action). So here are my informed, uninformed thoughts:

1) Nicolas Maduro is an authoritarian thug. Nobody should pretend like he's anything else.

2) I don't really know anything about Juan Guaido. I suspect I'd like him more than Maduro because, well, how could I not? But I've been burned before.

3) Coups are bad. They don't become good just because I think I'll like the incoming leader more than the deposed one.

4) I don't know if this is a coup, because I don't know enough (read: anything) about Venezuelan legal structures to know if Guaido's actions track valid legal pathways available to the General Assembly. Put differently, is this "coup" the equivalent of Trump/Pence getting impeached (a perfectly legally-validated pathway for changing America's head of state) and that being labeled a "coup" by Pelosi?

5) Just as a lawyer, I am well aware that pretty much any position can be justified to an uninformed lay person via too-cute formalist arguments that nobody who actually knows anything about the law would swallow. But -- since discerning if that's what's happening here requires that sort of deep enmeshment in the Venezuelan legal tradition that I don't have and can't realistically get -- there's no way for me to know which side, if any, is being cute like this.

6) It's very likely that Maduro was fraudulently elected. That doesn't mean his ouster can't be a coup -- non-democratically elected leaders can be targeted for coups too, and there are good reasons to still oppose such coups -- but it does take the steam out of the "but democracy!" objections a bit.

7) Elections, at their core, are ways of compelling leaders to give up power even when they'd rather stay in office. Which raises the question: by what method, other than a coup, can a non-democratic leader be compelled to give up power even when they'd rather stay in office?

8) The U.S. shouldn't intervene, in the sense of, say, a military incursion. At the same time, at some level the U.S. can't fully stay out -- we have to recognize someone's government after all. And it begs the question to say "Venezuela's government should be decided by the Venezuelan people" -- true, obviously, but the entire locus of the dispute in Venezuela is which government actually has been chosen by the people.

9) I am deeply cynical that this is going to play out in a manner that even remotely approximates "good". I suspect Maduro will remain in power (regardless of whether Guaido was acting "legally" or not), and I suspect we will see a further clampdown on the political rights and liberties in Venezuela in its wake.

Things People Blame the Jews For, Volume XXVIII: The Coup Attempt in Turkey

As news broke of an attempted coup in Turkey last night, my mind went to many places. I worried about regional stability, about the implications for democracy in the Middle East, about the risk of repression and crackdowns regardless of who ended up prevailing, and about the persons living through what must have been a scary and tumultuous evening throughout the nation. I also thought of this series, and wondered who will be the first to go all "Zionist plot" as an explainer.

Odd as it may be to hear, I was actually modestly hopeful that we might get a pass on this one. Certainly, Recep Tayyip Erdoğan has not always had the friendliest relationship with Israel. But we're only a few weeks removed from a historic deal to restore ties between the two nations. Israel has never had more reason to like President Erdoğan than they do at this moment. Of all the times it might make sense for them to support a coup (not that I think they would), now is the least sensible.

Alas, sensibility is not the theme of this series:

Re turkey there was some kind of israeli connection as well as the apparent Egyptian connection judging by headlines https://t.co/4mhNNtqA4h

— Daoud Kuttab (@daoudkuttab) July 16, 2016

Interesting. https://t.co/Q4Ic6RNdff

— Ali Abunimah (@AliAbunimah) July 16, 2016

The link chain ends up taking us to this article in Ha'aretz, which informs us that one of the six senior officers arrested in the aftermath of the coup attempt had served as Turkey's military attache to Israel .... almost 20 years ago.

Now sure, that may seem like a tenuous connection. But you don't control the world for thousands and thousands of years without knowing how to play the long game. Good sleuthing, everyone -- you've solved the puzzle (except, you know, for the "why would Israel back a coup attempt against a leader with whom they just signed a major deal" bit).

Blow Me Away

You know, the more I read about Hugo Chavez, the more I'm convinced that he doesn't so much dislike "imperialism" as he is jealous of it. His forays into naked authoritarianism are well documented, but the implied threat to invade nearby countries (in this case, Honduras) is a different animal.

To be sure, I oppose the coup in Honduras -- even though the President appeared to be breaking the law (as interpreted by the Supreme Court) in forcing through a referendum on whether to amend the constitution to allow him to run for subsequent terms. Most other governments rightly have come out against it, and Chavez -- who was nearly the victim of a coup himself in 2002 -- certainly is quite proper to join them (of course, the fact that he attempted to launch a coup to come to power back in 1992 shows he resides in quite the glass house). Coups aren't the way modern democracies do business. But I was under the impression we had all learned a valuable lesson about getting too trigger happy in trying to convert or revert regimes to the styles and behaviors we preferred.

The Turkish "Supreme Court"

Nate Oman makes an interesting analogy between the Turkish military (which sees itself as the guardian of Turkey's secular establishment and thus periodically overthrows democratically elected government seen as mixing Mosque and State too closely) and the US Supreme Court, which also adapts a countermajoritarian position towards democratic efforts to infuse religion into the political establishment. Though obviously there are important differences, both are non-elected institutions using their power to thwart the will of a democratically elected body.

Oman even argues that, if we look at it carefully, there are some advantages to the military taking on this role. While the legal training of a judge may make them better-suited to making fundamentally normative decisions about when to intervene against democratic decisions, Oman points out that judges are often rather impotent and cannot enforce their mandates. The Cherokee Indians of the 18th century, for example, would undoubtedly have preferred the US Army on their side rather than the US Supreme Court. If the Egyptian Supreme Court told President Mubarak that he didn't win his last "election," do we really think he would have stepped down?

Nonetheless, Oman concludes that "that the expectation of military coups breeds bad political habits, whatever its constitutional virtues might be." I'd add that when these sorts of decisions are made by courts, and the people accept them (as they didn't in the Cherokee cases, but as they have more recently in, say, the Warren era civil rights cases), it sends an important message about the political evolution of the state and the propensity of the people towards accepting rule of law. Because courts have no enforcement power other than their moral suasion, the very fact that they are obeyed is proof in of itself of a thick, robust commitment of the people towards living under our constitutional covenant. As a result, even though in both instances the democratic will is thwarted, only in the military example is the intervention truly coercive.

When Election '08 Isn't Close Enough

You'd think that it'd be Democrats who'd be the ones angling to change the powers-that-be in Washington prior to the '08 election. After all, we're the ones who recognize believe this administration is a complete and utter disaster. That's why the impeachment talk keeps bubbling up. But, as so often is the case, we are perpetually being one-upped by our friends on the right. And so, here is conservative luminary Thomas Sowell:

When I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can’t help wondering if the day may yet come when the only thing that can save this country is a military coup.

But remember, I'm the traitor.

Incidentally, Sowell is reputed to be very bright, and perhaps in his academic work he is, but this column reads like the work of 8th grade member of the Young Republicans club. It's a stream of consciousness rant that just tries to pack in as many non-sequiturs and weakly connected (not to mention warranted) conservative talking points as possible onto a page. It'd be amusing if it was a known moron like Ann Coulter, but Sowell is supposed to pass for a conservative intellectual. Is this really the best they've got?

Via The Plank