By Dan Kennedy • The press, politics, technology, culture and other passions

Tag: insurrection

The Washington Post knew about one of the Alitos’ insurrectionist flags

Shocking news from — and about — The Washington Post: the paper knew (free link) that an insurrectionist flag was flying over Supreme Court Justice Sam Alito’s house in January 2021, right after the attempted coup, and didn’t publish anything. From today’s Post story:

The Post decided not to report on the episode at the time because the flag-raising appeared to be the work of Martha-Ann Alito, rather than the justice, and connected to a dispute with her neighbors, a Post spokeswoman said. It was not clear then that the argument was rooted in politics, the spokeswoman said.

Needless to say, whenever something is “not clear,” that can often be rectified with reporting.

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Biden calls out Trump’s Nazi rhetoric — but the media can’t get past ‘both sides’

Photo (cc) 2021 by Alex Kent/Tennessee Lookout

President Biden delivered an excellent speech Friday on the threat to democracy posed by Donald Trump and his supporters. He even used the N-word (Nazi) to describe Trump’s rhetoric in referring to his opponents as “vermin” and to refer to immigrants as “destroying the blood of our country.” If you missed Biden’s address, Heather Cox Richardson has a detailed overview.

But will it matter? Of course not. One of Trump’s go-to tactics when confronted with harsh truths is to childishly assert, “I know you are, but what am I?” So of course Trump’s response to Biden’s Valley Forge event was to hold a rally and accuse Biden of “fearmongering.” It worked because the first rule of media is to cover both sides. The tease on The New York Times’ homepage right now says:

Clashing Over Jan. 6, Trump and Biden Show Reality Is at Stake in 2024

Former President Trump and President Biden are framing the election as a battle for democracy — with Mr. Trump casting Mr. Biden as the true menace.

The actual headline is a little better, adding “brazenly” to Trump’s claim. And the story is better still, calling Trump “the only president to try to overthrow an American election” and adding: “Mr. Trump’s strategy aims to upend a world in which he has publicly called for suspending the Constitution, vowed to turn political opponents into legal targets and suggested that the nation’s top military general should be executed.” Good and true stuff. But wow, that tease.

Today, as we all know, is the third anniversary of the failed insurrection that Trump fomented. I may have written this before, but I remember returning to our car after a long hike in the Middlesex Fells and turning on public radio. The station was carrying the feed from the “PBS NewsHour,” and the first thing I heard was Judy Woodruff freaking out. What had happened? Were the Republicans pulling some sort of ridiculous stunt?

I soon learned the truth. As Biden reminded us Friday, a Trumpist mob, carrying Trump and Confederate flags, had invaded the Capitol. Gallows had been constructed to hang Mike Pence. (Mere symbolism? I don’t think so. What do you suppose would have happened if they’d actually got hold of him?) Angry Trumpers roamed the corridors, looking for Nancy Pelosi. Again, what do you suppose would have happened if they’d found her? Police officers were injured, and some died in the aftermath.

Now we’re waiting for the U.S. Supreme Court to decide whether Colorado, Maine and possibly other states can keep Trump off the ballot under the 14th Amendment, which bars officials who “engaged in insurrection” from serving. As I wrote earlier this week, this is where the question belongs. But I don’t trust the court, dominated as it is by two justices who occupy what are essentially stolen seats (Neil Gorsuch and Amy Coney Barrett) and a third (Clarence Thomas) who is so corrupt that he ought to be off the bench and consulting with his lawyers.

But it’s all we’ve got. “Democracy is still a sacred cause,” Biden told his audience in Valley Forge. I wish I shared his optimism that we are capable of preserving it.

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SCOTUS is the right body to decide whether Trump ‘engaged in insurrection’

The case for disqualifying Donald Trump from running for president is almost certainly headed for the U.S. Supreme Court, and that’s exactly where it belongs. The court needs to make a determination as to whether Trump “engaged in insurrection” on Jan. 6, 2021. He did. We watched him do it. But without an official ruling of some sort, it would be illegitimate to throw him off the ballot.

A 4-3 ruling by the Colorado Supreme Court doesn’t get the job done. Neither does an opinion issued by Maine Secretary of State Shenna Bellows. Nevertheless, they both did the country a service, because they’ve started the wheels turning to resolve this issue once and for all — or at least for the 2024 election. Let’s look at what Section 3 of the 14th Amendment says:

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.

Now, the Supremes may cop out by claiming that candidates for president aren’t specifically covered by Section 3, or that it was intended solely to prevent Confederate officials from seeking political positions. That would be a travesty. Because what we really need to know is whether SCOTUS believes that Trump “engaged in insurrection” by whipping up a mob of supporters in an attempt to prevent Congress from certifying Joe Biden’s victory. Again, we know he did it. But that’s not the same as a congressional determination, which we don’t have, or a Supreme Court ruling, which we almost certainly will. What does it mean, legally and constitutionally, to attempt an insurrection against the government?

I’m not saying that I trust the court; quite the contrary. But we only have one Supreme Court, and thus it’s important that the justices weigh in. Much of the debate over the 14th Amendment has been profoundly unserious. Voters should have the right to decide? Not if a candidate is ineligible. That’s why someone younger than 35 or who’s born in another country can’t run. Throwing Trump off the ballot would risk violence and rebellion? Then why have a Constitution in the first place? We are a country of laws, or at least that’s the idea.

The decision needs to be made by an institution that we would all recognize as having the last word, whether we agree or not. The Supreme Court is that institution. I wish we had a better court, but that’s an issue for another day.

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How Denver’s media are reporting a ruling to keep Trump off the Colorado ballot

Donald Trump at the Air Force Academy Commencement in Colorado Springs in 2019. Photo by Trump White House Archived.

Following the Colorado Supreme Court’s ruling that Donald Trump has disqualified himself from appearing on the state’s Republican primary ballot, I thought I’d check in with the Denver media to see how they covered it. I started with The Colorado Sun, a digital startup that is one of the projects Ellen Clegg and I write about in our forthcoming book, “What Works in Community News.”

The Sun has a lengthy account by its chief political reporter, Jesse Paul. His story plays it straight, although it’s informed by his deep knowledge of the players in Colorado. What stands out to me is that the court went to some lengths to determine that Trump did, in fact, try to foment an insurrection on Jan. 6, 2021. Under the 14th Amendment, insurrectionists may not run for federal office, although that clause is the subject of many different interpretations. Paul quotes from the majority decision:

The record amply established that the events of Jan. 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. Under any viable definition, this constituted an insurrection.

The Colorado court’s decision will almost certainly be heard by the U.S. Supreme Court. If it’s upheld, then Trump would be banned not just from the state’s primary ballot but also — should he be the Republican nominee — the general election ballot in November 2024. Other states are considering the same action.

In The Denver Post, the city’s legacy daily newspaper, reporter Nick Coltrain interviews University of Colorado law professor Doug Spencer, who says that the purpose of the Colorado lawsuit that resulted in Tuesday’s ruling is to ensure that Trump can’t be elected to a second term next fall. Spencer told Coltrain that the lawsuit “was never really about keeping Trump’s name off Colorado’s ballot, because he was never going to win our electoral votes. It was about using our state law to get a ruling like this — and maybe now other courts will look at this and maybe not be so skittish.”

Colorado Public Radio, which may be the state’s largest news organization, takes on an issue that is sure to be raised by Trump’s lawyers and supporters: How can a state court find that Trump engaged in an insurrection given that there has been no federal finding to that effect? After all, the Senate failed to convict Trump after the House impeached him on what was essentially an insurrection case; he has not yet gone to trial on insurrection-related criminal charges; and there has been no congressional resolution passed by both branches finding that he tried to overturn the election.

But Bente Berkeland’s story for Colorado Public Radio notes the majority decision finds that Section 3 of the 14th Amendment does not require any further legal proceedings in order for its provisions to take effect. She writes that the decision…

…also reaffirms that, under Colorado law, the court has jurisdiction to bar disqualified candidates from the Republican Party’s primary ballot. They also concluded that the judicial branch is empowered to apply the clause.

“Congress does not need to pass implementing legislation for Section Three’s disqualification provision to attach,” the ruling states. “Section Three is, in that sense, self-executing.”

The city also has a second daily newspaper — The Denver Gazette, a digital-only outlet started several years ago by Colorado billionaire Philip Anschutz. The Gazette has a hard paywall, but I see that it leads today’s e-paper (there is no actual print edition) with a story on the court’s decision written by reporter Michael Karlik.

So now it’s on to the U.S. Supreme Court. Just as a layperson, it seems to me that the most significant issue before the Supremes is whether they can determine on their own authority that Trump engaged in an attempted insurrection or if instead they’re constrained by the lack of a congressional determination or a criminal conviction. We may assume that Trump begins with two aces in the hole: Justices Clarence Thomas and Sam Alito. Can he get to five?

Still, the Colorado decision was a landmark of sorts. As Paul wrote in the Sun: “The Colorado Supreme Court ruling marks the first time that the insurrection clause has been used to block a presidential candidate from appearing on the ballot.” That’s a dubious distinction in a long line of dubious distinctions for Trump, who, depending on how quickly the courts can move, might not only be disqualified from running but could also be sitting in a prison cell by Election Day.

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The Trump indictment shows once again why we owe Mike Pence a debt of gratitude

Mike Pence. Photo (cc) 2016 by Gage Skidmore.

There is no shortage of commentary about the indictment of Donald Trump on charges that he tried to overturn the 2020 election. So I want to spend a few moments taking a look at Mike Pence. In reading the 45-page indictment last night I was struck, once again, at how decently and courageously Pence acted when faced with the greatest challenge of his public life.

I can’t understand why liberals and conservatives are so reluctant to give him any credit, blowing past his actions on Jan. 6, 2021, and focusing instead on his previous eight four* years as an obsequious Trump toady and his status as a theocratic right-wing extremist. That’s fine. He deserves that criticism. But before and during the insurrection, Pence acted with moral courage, telling Trump repeatedly that he would follow the Constitution by certifying Joe Biden’s victory, and with physical courage, refusing to flinch after Trump whipped up an enraged mob that surely would have killed him if given the opportunity.

“You’re too honest,” Trump reportedly told Pence on Jan. 1 after learning that Pence would not reject or return to the states electoral votes that had been properly cast.

If you’re not inclined to give Pence his due, think about what would have happened if he’d gone along with Trump’s corrupt scheming and Trump had attempted to remain in office. As one administration official is quoted as saying, there would be “riots in every major city in the United States.” To which Co-Conspirator 4 (identified as Justice Department official Jeffrey Clark) is said to have replied, “Well, that’s why there’s an Insurrection Act.” And there you have it: Troops in the streets, gunning down members of the public in order to keep Trump in office.

We all owe Mike Pence a debt of gratitude.

• We are already hearing a lot of misguided commentary that special counsel Jack Smith will need to prove that Trump knew he was lying about the outcome of the election in order to show that Trump committed the crimes with which he has been charged. For instance, David French of The New York Times, an anti-Trump conservative and lawyer whose analysis I have come to rely on, nevertheless gets it wrong when he writes:

There’s little doubt that Trump conspired to interfere with or obstruct the transfer of power after the 2020 election. But to prevail in the case, the government has to prove that he possessed an intent to defraud or to make false statements. In other words, if you were to urge a government official to overturn election results based on a good faith belief that serious fraud had altered the results, you would not be violating the law. Instead, you’d be exercising your First Amendment rights.

I don’t think that’s right. Regardless of whether Trump believed he’d been a victim of voter fraud, it’s indisputable that he knew Biden had been declared the winner. Trump’s beliefs did not give him the right to put together slates of fake electors, which the indictment devastatingly describes as morphing from a semi-legitimate contingency plan into a flat-out attempt to dislodge the real electors. And it surely did not give him the right to foment a violent insurrection.

In any case, the indictment is full of evidence that Trump was told over and over, by his own officials, that he had lost the election, and that he continued to lie about it publicly. Even if French is right, I don’t think Trump’s state of mind should pose much of an obstacle.

• Did Rudy Giuliani, a.k.a. Co-Conspirator 1, sing like a canary or what?

• We need to understand what we’re living through. The president of the United States staged a violent insurrection with the aim of staging a coup in order to remain in office, and, if the polls are to be believed, about 43% of voters would still like to return him to that office. Tuesday was an important day for accountability, but this country remains on the brink of falling into right-wing authoritarianism. None of us know whether we’re going to get through this or not. God help us all.

*Correction: It only felt like eight.

Some smart analysis by a conservative lawyer-pundit on what’s next for Trump

Photo (cc) 2016 by Gage Skidmore

After months — years? — of anticipation, Donald Trump has reportedly been indicted (free link) by the Manhattan district attorney’s office on criminal charges that he paid off a porn star he’d had sex with in order to buy her silence ahead of the 2016 election. Hey, it could happen to anyone, right?

I don’t really have anything to add to the mountains of commentary that’s going to come our way. But I do want to recommend this recent edition of “The Ezra Klein Show.” The guest was Times columnist David French, an anti-Trump conservative of long standing who also happens to be a pretty sharp lawyer.

As French explained it, Trump faces criminal exposure on three fronts. The Stormy Daniels case is actually the weakest because it rests on some rather esoteric and unproven legal theories. I’m not going to get into it, but French’s explanation was clear and compelling.

The strongest of the three cases is that Trump corruptly tried to interfere with the 2020 vote count in Georgia, not just pushing Republican officials to overturn the results but threatening them if they refused. French is of the view that this one is close to a slam-dunk, as Trump was caught breaking the law on audio recordings.

Finally, there are whatever federal charges may come out of Trump’s actions during and before the attempted insurrection of Jan. 6 — seeking to overturn the election, putting Mike Pence’s life in danger and inciting a mob to violence. French seems to think that the case is reasonably strong but may prove too complicated when it’s put before a jury.

Also, I like to joke with my students about my Unified Richard Nixon Theory of Everything. Well, the Times is observing that Trump would be the first former president to face criminal charges. True — but that’s only because Gerald Ford pardoned Nixon before he could be indicted.

Democrats may regret not seeking a consensus candidate for House speaker

House Speaker Kevin McCarthy. Photo (cc) 2020 by Gage Skidmore.

There were always two schools of thought as to what the Democrats ought to do about the civil war among the Republicans over who should be House speaker. One was to do exactly what they did: stay united and let the Republicans destroy themselves. Two years of hell awaits on the debt ceiling, aid to Ukraine and, of course, an idiotic investigation into Hunter Biden’s laptop.

One argument was that this was the best move politically — that after two years of chaos, the voters would gratefully turn back to the Democrats in 2024. And that may be the case.

The other school was that the Democrats should find a Republican they could work with, either inside or outside the House (the Constitution allows for outside candidates), stay united, and try to peel off a few reasonable Republicans to support a consensus candidate. My thought was that Liz Cheney might be a good choice. I heard former Maryland Gov. Larry Hogan’s name come up as well.

I understand this was always unlikely in the extreme. Keeping all 212 Democrats together and finding a half-dozen Republicans to form a majority was always going to be enormously difficult. And there really are no moderate Republicans. There’s a right wing, led by Kevin McCarthy (for the moment), and a far-right wing, led by no one. But if a consensus choice had emerged, we could have avoided the horrors I mentioned above. I also happen to think it would have been good politics for the Democrats.

Unfortunately, it did not come to pass. Two years after Jan. 6, 2021, the insurrectionists finally succeeded in taking over the House. God save the United States of America.

Jan. 6, 2021

The media are filled with one-year retrospectives about the insurrection of Jan. 6, 2021. I can’t say I’m paying much attention to them. We’ve had a firehose of coverage from the moment it happened, and appropriately so. An anniversary doesn’t add anything to what we already know, and to what we still need to know.

Will we remember Jan. 6 the way we remember Sept. 11, 2001, or the way our parents and grandparents remembered Dec. 7, 1941? Probably not, though neither will it soon be forgotten. And one of the acts of remembering is recalling what we were doing on that day.

I was hiking in the Middlesex Fells, as I often do. I took a photo of two signs on a tree because I thought they were funny: one said “Keep Out”; the other urged hikers to maintain social distancing, which seemed like an odd admonition if you weren’t supposed to be there in the first place.

I emerged from the woods around 3 p.m. and turned on the car radio. NPR was carrying audio from the “PBS NewsHour,” and Judy Woodruff was freaking out. At first I figured the Republicans were trying to disrupt the counting of the electoral votes to delay Joe Biden’s being declared the official winner of the presidential election. That, after all, had been predicted.

Within a few moments, though, I learned the truth: that a mob of rioters had descended on the Capitol, had broken inside and were rampaging through the halls of Congress. It was our first attempted coup, aided and abetted by Donald Trump, and it may not be the last.

These are dark times, and I’m not optimistic about what the next few years will bring.

Why the Jan. 6 panel should tread carefully in seeking Sean Hannity’s testimony

Photo (cc) 2015 by Gage Skidmore

The Jan. 6 select committee’s decision to ask Sean Hannity to testify carries with it a few nettlesome details.

The Fox News star’s lawyer, Jay Sekulow, has already invoked the First Amendment. But there is, in fact, no constitutional protection for journalists who are called to testify in court or, in this case, before a congressional committee. The problem, as the Supreme Court explained in its 1972 Branzburg v. Hayes decision, is that granting such a privilege requires defining who’s a journalist and who isn’t. And the First Amendment belongs to everyone.

That said, the government is generally loath to force journalists to testify because of the chilling effect it would have on the ability of news organizations to operate as independent monitors of power. It would be well within bounds for the committee to decide that Hannity is not a journalist. He was a close confidant of Donald Trump when Trump was president, was a featured speaker at a Trump rally and, in his communications with the White House, made it clear that he was a member of Team Trump.

But this brings us back to one of the central dilemmas of the Trump years. Hannity’s behavior was so over the top that it’s easy to say he’s not a journalist. Still, you can be sure that Trump’s defenders will point to far more ambiguous situations and say, “What about?” Ben Bradlee’s friendship with President John F. Kennedy comes to mind, as does Walter Lippmann, the ultimate insider.

The problem facing members of the select committee is that if they subpoena Hannity and other Fox News personalities, they would do so in the certain knowledge that Republicans will claim a precedent has been set and abuse it as soon as they’re in a position to do so. I have little doubt, for instance, that New York Times executive editor Dean Baquet and former Washington Post executive editor Marty Baron would be forced to testify about their papers’ coverage of the Russia scandal.

Which is why the select committee is hoping that Hannity will accept its invitation to testify voluntarily. If he refuses (as he almost certainly will), then it will have to decide whether to issue a subpoena — a move that could have far-reaching consequences.

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Trump’s semi-departure fuels decline in news consumption

Photo (cc) by Seth Anderson

It was obvious to just about everyone that the media were going to face a challenging year after losing the artificial stimulant provided by the Trump presidency. “Will audience and revenue resume the downward track they had been on for years before Trump demanded everyone’s unwavering attention?” I asked last January.

The answer: Yes, indeed.

David Bauder of The Associated Press has pulled together the numbers. The situation is especially grim on cable news, where weekday prime-time viewership was down 38% at CNN, 34% at Fox News and 25% at MSNBC. (Fox still has by far the largest audience of the three.)

I’m not shedding any tears, crocodile or otherwise. Cable news is bad for you. The formula at all three consists of keeping you riled up and angry so that you don’t change the channel. Fox adds weaponized right-wing propaganda about COVID, the Jan. 6 insurrection, critical race theory and more. So please, touch that dial.

Then again, everything’s down, not just cable news. Viewership of the three network evening newscasts — higher quality than their cable brethren — declined 12% to 14%. Unique monthly visitors to the websites of The New York Times and The Washington Post dropped — although paid digital subscriptions to the Times are up, and that’s the metric that really matters. The Post, on the other hand, reportedly dropped from about 3 million to 2.7 million digital subscriptions toward the end of the year.

None of these numbers is inherently bad. We were glued to the news to an unhealthy extent during Trump’s presidency, as we all wondered what demented action he was going to take next. Then, in 2020, we had COVID to deal with as well.

There is still plenty of news taking place. COVID remains with us, the Republican Party has gone full-bore authoritarian and Trump has never really gone away. But things are a bit calmer, if not necessarily calm.

With national news commanding fewer eyeballs, will some of that attention be diverted to local journalism? I’d like to hope so. But with hedge funds and corporate chains hollowing out hundreds of community newspapers, in a lot of places there just isn’t enough to command attention.

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