Mail Chimp Brian Buetler Oct. 22

Hi there, here’s what you need to know for the week of October 22, 2021, in 9.5 minutes.

THIS WEEK INSIDE THE BIG TENT:

① Members of the January 6 commission seem to be at least a little worried that Merrick Garland doesn't have the will to make sure their investigation can succeed 

② If Garland has placed Trump above the law then it's easy to imagine him shelving the Steve Bannon contempt of Congress citation; after all, what happens if the committee later subpoenas Trump?

③ The Garland dilemma is part of a larger test the whole Democratic firmament faces: to do what's necessary to protect democracy so we don't rue these decisions when we look back on them from the future

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CONTEMPTING FATE

The House voted to refer Steve Bannon to the Justice Department for criminal contempt of Congress on Thursday, setting up what I think will be a watershed test for Attorney General Merrick Garland—and perhaps for Joe Biden and Democrats in Congress as well. Welcome to the Steve Bannon War Room, not to be confused with Steve Bannon’s War Room.

① WRITING’S ON THE STONEWALL

Reminder, Bannon is a key insurrection witness—both to the nuts and bolts of how the insurrection came to be, and to Donald Trump’s involvement in it—and (for that reason, no doubt) he defied his subpoena from the January 6 select committee. He, of course, couched his defiance in the language of legal contestation, and three layers of shirts, noting that Trump instructed him not to comply on executive privilege grounds. But Trump is not the president anymore, Joe Biden has waived executive privilege over presidential records responsive to the committee’s inquiry, Bannon was not a White House adviser last winter, and on and on. Basically he didn’t show up because he and Trump want to stymie the investigation for nefarious purposes—indeed, as the committee’s vice chair Liz Cheney noted, citizen-Trump’s meaningless invocation of executive privilege amounts to a confession that he was in fact involved in the planning and execution of the insurrection. If he wasn’t, then the committee’s demands would have turned up nothing, and he’d have nothing to assert fake-privilege over. 

So, a slam dunk, right? I think it should be. In the past, it might have taken a concerted DOJ a few days to indict someone as brazenly contemptuous as Bannon. But there’s something off about how we reached this point, and it has me at least a little worried. 

In the weeks leading up to Thursday’s vote, members of the committee issued several conspicuous warnings to insurrection witnesses. With a new sheriff in town, they wouldn't be able thumb their noses at congressional investigators. Bill Barr isn’t there to protect them anymore; and Garland, who respects the rule of law, would provide them no quarter. They offered these warnings, no doubt, in the hope that they might discourage members of Trump’s inner circle from trying to run out the clock on the committee’s investigation. 

But I think they were also meant to force Garland’s hand. The committee can see as well as anyone that Garland has no appetite for direct confrontation with Donald Trump. And there’s a pretty straight line from Trump’s impunity to the ultimate failure of the January 6 committee. 

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② ADAM AND STEVE

That was my assumption until earlier this week when Adam Schiff (who sits on the January 6 committee) more or less confirmed it. In an appearance on the Skullduggery podcast to promote his new book, he told Yahoo News reporter Michael Isikoff, “I think there's a real desire on the part of the attorney general, for the most part, not to look backward.” 

To be generous to Garland, Schiff was referring to Trump’s known, past crimes—the campaign-fraud scheme he directed in 2016 as “Individual-1,” his obstruction of the Mueller investigation, siring Don Jr., and his effort to coerce Georgia’s secretary of state into cooking up almost 12,000 votes so that he could steal the election. “I think if you or I did that,” Schiff said, “we'd be under indictment by now.”

He also acknowledged that he may be wrong—that federal prosecutors may be silently investigating these crimes—and stipulated that he thinks there’s good reason to believe Garland’s DOJ will take the Bannon contempt citation seriously. Garland, for his part, testified to the House on Thursday and said all the appropriate things about how his department disposes of criminal referrals—officials apply facts and law and make decisions consistent with the principles of prosecution, etc etc. He even intimated that Bannon-style defiance is lawless, based on existing court precedents. 

But Schiff is a careful speaker, a senior, respected Democrat, and a former federal prosecutor himself. He wouldn’t have characterized Garland that way—as placing Trump “above the law”—if he didn’t have good reason to believe that’s what Garland’s done. And if he’s right, then there’s very likely to be a collision between Garland and the January 6 committee sooner or later. 

For instance: If Garland has effectively deemed Trump above the law, that means the committee has no hope of ever deposing Trump himself. If the committee subpoenas Trump, he will flout it, if the House holds him in criminal contempt, Garland will see to it that the referral goes nowhere. But if Trump is beyond the reach of a contempt citation, why wouldn’t Bannon be also? Does Garland really want to have to explain why the law applies to Trump’s minions but not to the man himself? If he’s thought more than one step ahead, then the temptation to shelve the Bannon citation has already seeped in. 

I would absolutely love to be wrong about this. If I am, we should know pretty soon. And if DOJ indicts Bannon, that should embolden the committee to eventually subpoena Trump as well, and expect the same treatment. But if days turn into weeks and months, Bannon’s efforts to obstruct the inquiry might succeed, and Garland’s preference for Trump impunity will be at least partly to blame.

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③ METTLE OUT OF COURT

So that’s the situation with Garland. And to some extent, all the questions surrounding the Bannon contempt citation are particular to Garland and his idiosyncrasies. He’s a lifelong member of the clubby appellate-law bar, where good standing requires indulging in polite fictions about the nature of power in America, and that kind of indulgence is the wrong fit for leading federal law enforcement in the post-Trump era. Yes, Joe Biden appointed him, and he did so while telegraphing that he didn’t want Trump-era scandals to subsume his presidency. But he seems to have gotten more than he bargained for, because he took the unusual step (since walked back) of telling reporters that he hopes the committee goes after people like Bannon, and that he supports DOJ prosecution of contemners. In case Garland didn’t get the memo.

But to me Biden’s impulse to weigh in at all reflects the fact that the whole liberal firmament, including Garland, is in the midst of a test for the ages. Because it isn’t just Steve Bannon trying to place Trump beyond accountability and impose minority rule on America. Trump is in on it, too, and he has a whole party behind him, and even without a toehold on power in Washington, they will do everything from hamstring the select committee to steal elections if no one stops them.

Now even under the best of circumstances, the committee may never hear a word from either Bannon or Trump. DOJ has the power to prosecute contempt, but no one, not even a judge, can make someone talk if he’s willing to do the time. The problem arises if nothing happens to Bannon, because once he demonstrates there are no consequences for obstructing the investigation, other witnesses will do the same, and the coverup will succeed. 

The committee can learn a lot from documentation, too, of course, but Trump has already turned to the courts, hoping to get an order enjoining the National Archives from producing the documents the committee has requested. Hopefully he doesn’t get one, and he may well not. The judge he drew at the district court level isn’t a loyalist, and the archivist has advised Trump he will turn the documents over in the legally-required 30 days absent an injunction. But let’s imagine he does get one, on an emergency basis, from the corrupt Supreme Court. All stemming from a suit that essentially argues Trump has power as a private citizen to dictate to Joe Biden what is and isn’t covered by executive privilege, and can use that power to prevent Congress from investigating a violent attack on its own institution. And having tied the archivist’s hands, he and his allies on the court would simply run out the clock on the committee. 

What would Biden do then?

One thing he could do—unorthodox, yes, but eminently explicable and in the public interest—would be to request the documents from the archivist himself, and publish them online. That would moot the issue and assure that the committee could do it's work, unencumbered by bad-faith legal shenanigans.

Complicating matters, though, is the fact that Biden created a court-reform commission and comprised it to put the kibosh on demands for adding seats to the courts. One problem with empaneling a commission that prizes Potemkin institutional integrity over rule of law is you may then have to contradict yourself when the Alito Five say maybe GOP former presidents have more power than Democratic current ones, and promise to rule on the matter within two years. If that happens, then the question of whether the public is allowed to learn the truth about Trump's attempted coup in a timely fashion will boil down to a test of will. 

Is Joe Biden committed to doing everything in his power to make sure those documents become public before it’s too late? Even if it entails admitting that the Supreme Court isn’t on the level? I don’t know the answer. 

And the same basic question confronts the Senate Democratic caucus. On Wednesday, Republicans (again) filibustered legislation to protect American democracy, this time in the form of a bill that Joe Manchin wrote with the explicit aim of generating some level of GOP buy-in. He got zero votes. That might’ve been a good time for Chuck Schumer or some other Democrat to force a separate vote on changing the filibuster rules, but no one wants to antagonize Manchin or Kyrsten Sinema, because Democrats are first and foremost committed to passing Biden’s infrastructure agenda. 

Are Senate Democrats committed to doing everything in their power to insulate our elections from the depredations of the MAGA movement before it’s too late? I, again, don’t know the answer. But it doesn’t really seem like it. And I don’t know what Democrats will say to organizers when they send them out into the field having failed to do everything in their power to pass the Freedom to Vote Act.

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Colin Powell died this week and the remembrances were filled with pensive musing about how Powell, with all his stature, might have better-shaped the course of humanity. What if he'd run for president as a Republican in 1996, won, and sent the party on a more ethical course? What if he'd resigned from the Bush administration instead of willfully misleading the United Nations about the dangers of the Iraqi regime?

The decisions he made echo through history; two decades later, the consequences of them form the background music of America's cacophonous public life. The Gingrich revolution prevailed; Bush v. Gore poisoned everything that came after it. Twenty years on, it's easy to see the roads not taken, but they were evident at the time, too, and our crossroads today are similarly fateful.

If I could plead with Democrats to do one thing, it'd be to stop sweating minutiae and think in slightly longer terms. Not in eons, just a bit past the horizons of their own careers. After he jammed Amy Coney Barrett through the confirmation process just days before the last election, Mitch McConnell basked in the significance of his own deeds. "A lot of what we’ve done over the last four years will be undone sooner or later by the next election," he said. "They won’t be able to do much about this for a long time to come." His aims were and remain sinister, but there's something to admire in his seriousness of purpose. Democrats, as the last line of defense for American democracy, would do well to remind themselves that it’ll be 20 years from now some day, too.

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Recommended reading from Will Wilkinson on the impoverished conservative, Manchin-endorsed conception of children as participants in a social compact. And as for parents? “They have created new human beings! Our economy and society desperately needs its people to do this…. That’s it! That’s the reciprocity. That’s the compact. The circle of goddamn life.”

One underappreciated consequence of chopping up Build Back Better to meet Sinema and Manchin’s arbitrary demands is the likelihood that Democrats will make policy errors under duress that cost them dearly when the unintended consequences hit voters. Republicans won’t be there to help!

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Relatedly, I’m hoping to tackle the strategic question of whether Democrats should try to do a bunch of things on a short-term basis, or a few things on a permanent basis, in the Build Back Better Act, next week.