Shoveling Bull$**t

Bill Barr: I told him that the stuff that his people were shoveling out to the public was bullshit. I mean that the claims of fraud were bullshit.

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 JD Wooten: Welcome back to Carolina Democracy. I’m JD Wooten, and today we’ll dive into the two most recent hearings of the House Select Committee on January 6th, and we’ll discuss some of the incredibly consequential U.S. Supreme Court cases which dropped this past week. Given all that’s happened this past week, I felt it best to focus on these things and next week we’ll get back to our usual interview format.

 First, an important reminder. If you’ve enjoyed past episodes, or you find the topics of this episode important, please share this podcast with a friend who might be interested. I have no doubt that there’s a large audience of concerned, engaged North Carolinians who would love to hear from our local and state candidates and want to engage on important issues like the ones we’ll discuss today. Please help us reach them by sharing this episode, or any other episode you think they might like.

 Also, don’t forget that numerous counties and municipalities across the state have run off primary elections or general elections on July 26th. Early voting for these elections will run from July 7th to July 23rd, with election day being July 26th. The Absentee Ballot Portal is also open online. If you want to hear all the municipalities and counties with elections, go listen to our previous episodes with Judge Lucy Inman or State Senator Michael Garrett. And bonus, you’ll hear from some great candidates as well. If in doubt, check your local board of elections website for more information.

 Now, let’s start with the Supreme Court and work our way up to the monumental evisceration of a fundamental, substantive due process right. The first case quite directly impacting North Carolina that got released this past week was Berger v. North Carolina State Conference of the NAACP. That’s the case over the 2018 voter ID bill that became law during the lame duck session of the general assembly after the GOP has lost its supermajority in the legislature, but before the newly elected representatives were sworn in. However, the question before the Supreme Court is essentially a procedural one – could the legislative Republicans intervene in the case to ensure their position was adequately represented when they didn’t think Governor Cooper or Attorney General Stein would? For a variety of reasons, the Court said yes, the legislative Republicans could intervene. In the grand scheme of things, this is a good precedent because it maximizes representation in a lawsuit and ensures all positions are adequately represented. I don’t particularly love that it works out in the GOP’s favor this time, but if the positions were flipped, I would want the legislative Democrats to be able to fully argue their positions if it didn’t seem the Governor and Attorney General would be as staunch an advocate as perhaps we’d like. On balance, it’ll mean some more work for the Court with additional papers being filed, but this decision has nothing to do with underlying issues of the voter ID law itself. We’ll have to wait quite a while longer before we hear anything on that.

 The next case is the New York State Rifle & Pistol Association v. Bruen case, which held that New York’s permitting requirements for carrying a firearm in public are unconstitutional. The case is notable for several reasons, not the least of which is that it struck down a gun safety measure the same week that Congress finally, for the first time in three decades, managed to actually pass some form of gun safety legislation. I think that just illustrates how out of step the Court is with nation. I suppose sometimes that’s ok, we want our Courts to be somewhat resistant to public pressure and popularism and instead focus on the rule of law, but come on, this is over the top.

 Now, you’ll hear some commentators focus on the fact that the New York statute was a “may issue” statute as opposed to “shall issue” statute. The difference here means who has the burden to show that someone needs a gun in public and thus a license. In most states, the presumption is that the state “shall issue” the permit unless there’s a good reason not to issue it. In New York and a few other states, which by the way have 25% of the U.S.’s population, so not an insignificant part of the country, those states  have a “may issue” scheme in which the burden is shifted to the applicant to show why they need the license and gives the state discretion to deny the license. The Court essentially held that you cannot put a burden on a person to demonstrate they have a need to exercise a constitutional right. On that point, I actually agree. It would be like passing a law saying you have to get permission to vote. Nope, no thank you.

 But the problem here is a deeper change to the law and I think some people are failing to see the forest for the trees. This case, for the first time in the history of the country, holds that there is an individual right to own and carry firearms in public. The Court has never previously ruled that there is an individual right to own and carry firearms in public. Never. This is a monumental change because it makes regulations of a fundamental right – here,   the right to carry guns in public – much harder to regulate. Which again, you want it to be difficult to regulate the exercise of a fundamental right. We just don’t want this originalism reading of the 2nd Amendment that entirely ignores the first half of the amendment to arrive at the radical right’s preferred interpretation.

 I also not that the Court openly acknowledges that we are stuck in time with regards to what regulations may be permissible, but not stuck in time with regards to what arms a personal has a fundamental right to possess. The inconsistency is mind-blowing. The Court has now said the right to bear arms extends to modern firearms, not just those which existed over two centuries ago, but that the state’s ability to limits even those arms which did not exist for another two centuries is limited to those kinds of regulations which were customary two centuries ago. I think the Court has it egregiously wrong.

 And speaking of egregiously wrong, of course we got the decision in Dobbs v. Jackson Women’s Health. It turns out the opinion is essentially unchanged from the draft opinion leaked a few months ago, and my position hasn’t changed. If one of your primary historic sources to analyze the right to reproductive health and access to abortion is an old English jurist who quite literally executed women for witchcraft and defended marital rape, then of course you’re not going to find a constitutional right to an abortion.

 Justice Alito’s opinion goes out of its way to give a historic narrative to justify  its egregious holding, but that entire understanding of history, and indeed the entire reasoning of the opinion itself, is rooted in a deeply flawed theory of originalism. Much like the 2nd Amendment case, the Court believes that we are quite literally stuck in time to what the original intent of the constitutional framers and the drafters of the 14th Amendment meant at the time those were passed. We’re stuck in 1783, or at least no later than 1868, according the U.S. Supreme Court. I reject any theory of constitutional interpretation that arrives at such an egregiously wrong conclusions outright. We are not bound by what slave owners and those who denied women even the right to vote, believed. We are better than that. Our constitution gives us an important framework for the rule of law. It does not freeze us in time and marry us to positions and outcomes that we know to be immoral and unjust.

 Also, for all of the mental gymnastics the opinion and the concurrences try to do, and their empty claims to respect our institutions and judicial precedent, the conservative majority glosses over a glaringly simple fact that is monumental in our nation’s history – never has the Supreme Court voted to take away a fundamental right once recognized. Never. It hasn’t been done. 

 In my view, this conservative majority has departed so far from precedent that this decision cannot stand the test of time under their own reasoning. The Court acknowledges that for precedent to be overturned, it must be egregiously wrong, that wrong must cause significant real-world harms, and overturning the precedent cannot dramatically upset the reliance people and society have placed in the prior opinion. But this Court departs from that, in quite obvious ways, and this decision fails all three parts. First, it is egregiously wrong, make no mistake. If you’re listening to this podcast, I don’t need to convince you of that. Second, it will obviously cause significant real-world harms, and again, listeners don’t need reminding of that. And this decision will gravely disturb the reliance that millions of people have placed in Roe and being able to exercise their fundamental right to an abortion for nearly half a century. The faulty logic in arriving at the reasoning in Dobbs renders this opinion ripe for overruling at the first opportunity. 

 It's a truly sad time for our nation and the Court, as the Supreme Court has now relegated itself to a partisan actor in the machinations of government. Cynically, I have believed that for a while. Now the Court has confirmed it. It has overturned precedent to take away a fundamental right simply because conservatives don’t like that fundamental right and never have. Everything about our nation’s precedents and the rule of law cautioned against such a flagrant decision that goes well beyond the question that was before the Court and I fear will do very real and lasting harm to the fabric of society.

 Even Chief Justice Roberts, who technically concurred in upholding the Mississippi law but who would not have overturned Roe entirely, criticized this opinion has going much further than the question which was before the Court, which was whether the 15-week ban in Mississippi was unconstitutional. Justice Roberts recognized that stare decisis dictated that the fundamental right to abortion be maintained, but also noted that the rigid trimester system of Roe and the undue burden test of Casey were not right. Still, he would not have disturbed the central holding of Roe and Casey, which is that the constitution, through the 14th Amendment, protects the fundamental right to at least some abortions.

 Also alarming was Justice Thomas’s concurrence, which somewhat amusingly seems to have mostly cited himself. That seems like a circular logic error in the making, but whatever. He wrote, again quoting himself, “[T]he idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical.” Again, we see ourselves back to the mid-nineteenth century. But Justice Thomas wanted to go further, he felt the need to write a concurring opinion, and I quote “to emphasize a second, more funda­mental reason why there is no abortion guarantee lurking in the Due Process Clause. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.” Yup, he thinks we need to reconsider all substantive due process precedent and listed a few just for good measure, including the rights to contraceptives, consensual sex with whomever you want, and gay marriage. Justice Thomas wrote that the court has “a duty a duty to ‘correct the error’ established in those precedents.” I know the majority opinion expressly states the opinion does not extend to those other rights, but Justice Thomas is just saying out loud what we all know. Plus, the justices in the majority testified under oath that Roe and Casey are settled precedent and law of the land, so why should we trust anything they say now?

 The dissent deserves a lot of discussion as well because it really does lay bare so many of these arguments. First, they kick things off by writing that “Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.” They went on to say that “no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. They are all part of the same constitu­tional fabric, protecting autonomous decision making over the most personal of life decisions. The majority (or to be more accurate, most of it) is eager to tell us today that noth­ing it does “cast[s] doubt on precedents that do not concern abortion.” But how could that be? The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].”   So one of two things must be true. Either the major­ity does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid­-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

 Wow, the dissenters really weren’t pulling any punches there. Also, they went on to note that Justice Thomas’s concurrence confirmed all of this. As to the majority’s assurances that this opinion did not undermine any other rights, they wrote that his concurrence “makes clear he is not with the program.” 

 Here’s some more from the dissent, which I really believe is worth hearing: “According to the majority, no liberty interest is present—because (and only because) the law offered no protection to the woman’s choice in the 19th century. But here is the rub. The law also did not then (and would not for ages) protect a wealth of other things. It did not protect the rights recog­nized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right rec­ognized in Griswold to contraceptive use. For that matter, it did not protect the right … not to be ster­ilized without consent. So if the majority is right in its legal analysis, all those decisions were wrong, and all those mat­ters properly belong to the States too—whatever the partic­ular state interests involved. And if that is true, it is im­possible to understand (as a matter of logic and principle) how the majority can say that its opinion today does not threaten—does not even “undermine”—any number of other constitutional rights.

 In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey “egregiously wrong.” That rule could equally spell the end of any precedent with which a bare majority of the present Court disagrees. So how does that approach prevent the “scale of justice” from “waver[ing] with every new judge’s opinion”? It does not. It makes radical change too easy and too fast, based on nothing more than the new views of new judges. The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. 

 The majority thereby substitutes a rule by judges for the rule of law. With sorrow—for this Court, but more, for the many mil­lions of American women who have today lost a fundamen­tal constitutional protection—we dissent.”

 Well, there you have it. Not sure I can say much more that the dissent said with that last part. It is indeed a sad time for our nation and the rule of law. The radical right is attempting to undo centuries of progress in terms of both democracy and the rule of law generally. On the democracy front, the radical right’s attempts to subvert democracy were again on display with two more hearings from the January 6th select committee this past week. I was hoping maybe this would be the week I would spend a little more time on the detail of those hearing, in total, but I think at this point it will be best to wait until the hearings conclude. And we no longer know when that will be because evidently enough new evidence is suddenly arriving now that the hearings are under way that the Committee needs more time to review it all. I’m disappointed that we’ll have to continue waiting, but I’m not disappointed that new evidence has come to light. Let’s get it all out there now.

 Now, all that said, I did pull what I think are the best excerpts from the two days to capture their overall aim.  The first, which was the fourth hearing overall, focused on Donald Trump’s effort to overturn the election by exerting pressure on state officials and state legislatures. The second day of hearings from this past week, which was the fifth hearing overall, focused on Donald Trump’s effort to overturn the election through the Justice Department.

 So, here are some highlights from the first of those two days:

Bennie Thompson: In our last hearing, we told a story of a scheme driven by Donald Trump to pressure former Vice President Mike Pence to illegally overturn the election results. We showed that when the pressure campaign failed and Mike Pence fulfilled his constitutional obligation, Donald Trump turned a violent mob loose on him. In fact, pressuring public servants into betraying their oath was a fundamental part of the playbook, and a handful of election officials in several key states stood between Donald Trump and the upending of American democracy. And like Mike Pence, these public servants wouldn't go along with Donald Trump's scheme. And when they wouldn't embrace the big lie and substitute the will of the voters with Donald Trump's will to remain in power, Donald Trump worked to ensure they'd face the consequences; threats to people's livelihood and lives, threats of violence that Donald Trump knew about and amplified.  As we've shown in our previous hearings, claims that widespread voter fraud tainted the 2020 presidential election have always been a lie. Donald Trump knew they were a lie and he kept amplifying them anyway. Everything we describe today, the relentless, destructive pressure campaign on state and local officials, was all based on a lie. Donald Trump knew it. He did it anyway. The lie hasn't gone away. It's corrupting our democratic institutions. 

 Liz Cheney: Today we will begin examining President Trump's effort to overturn the election by exerting pressure on state officials and state legislatures. Donald Trump had a direct and personal role in this effort, as did Rudy Giuliani, as did John Eastman. In other words, the same people who were attempting to pressure Vice President Mike Pence to reject electoral votes illegally were also simultaneously working to reverse the outcome of the 2020 election at the state level. Today you will hear about calls made by President Trump to officials of Georgia and other states. As you listen to these tapes, keep in mind what Donald Trump already knew at the time he was making those calls. He had been told over and over again that his stolen election allegations were nonsense. For example, this is what former Attorney General Bill Barr said to President Trump about allegations in Georgia.

 Bill Barr:  We took a look — a hard look at this ourselves. And based on our review of it, including the interviews of the key witnesses, the Fulton County allegations were — had no merit. They're — the — the ballots under the table were legitimate ball — ballots. They weren't in a suitcase. They had been pre-opened for eventually feeding into the machine, all the stuff about the water leak and that there was some subterfuge involved. We felt there was some confusion, but — but there was no evidence of a subterfuge to create an opportunity to feed things into the count. And so, we didn't see any evidence of — of fraud in the — in the Fulton County episode.

 Liz Cheney: Mr. Trump was told by his own advisers that he had no basis for his stolen election claims, yet he continued to pressure state officials to change the election results. You will hear about a number of threats and efforts to pressure state officials to reverse the election outcome. One of our witnesses today, Gabriel Sterling, explicitly warned President Trump about potential violence on December 1st, 2020, more than a month before January 6th. One more point, I would urge all of those watching today to focus on the evidence the committee will present. Don't be distracted by politics. This is serious. We cannot let America become a nation of conspiracy theories and thug violence.

 Adam Schiff: The President's lie was and is a dangerous cancer on the body politic. If you can convince Americans that they cannot trust their own elections, that any time they lose it is somehow illegitimate, then what is left but violence to determine who should govern. For more than 200 years, our democracy has been distinguished by the peaceful transfer of power. When an American raises their right hand and takes the Presidential oath of office, they are transformed from an ordinary citizen into the most powerful person in the world, the President. This Is an awesome power to acquire. It is even more awesome when is handed on peacefully. When George Washington relinquished the Office of the Presidency, it set a precedent that served as a beacon for other nations struggling against tyranny. When Ronald Reagan described it as a kind of miracle in the eyes of the world he was exactly right. Other countries use violence to seize and hold power, but not in the United States, not in America. When Donald Trump used the power of the Presidency to try to stay in office after losing the election to Joe Biden, he broke that sacred and centuries old covenant. What he did was without a doubt unconstitutional. It was unpatriotic. And it was fundamentally un-American. That we have lived in a democracy for more than 200 years does not mean we shall do so tomorrow. We must reject violence. We must embrace our Constitution with the reverence it deserves, take our oath of office and duties as citizens seriously, informed by the knowledge of right and wrong, and armed with no more than the power of our ideas and the truth carry on this venerable experiment in self-governance.

 JD Wooten: And for the fourth consecutive hearing, just to make sure everyone has heard it repeatedly, they included some form of this nugget from Bill Barr:

 Bill Barr: I told him that the stuff that his people were shoveling out to the public was bullshit. I mean that the claims of fraud were bullshit.

 JD Wooten: And now, turning to the second day of hearings from the past week:

 Bennie Thompson:  Trump applied pressure at every level of government, from local election workers up to his own vice president, hoping public servants would give in to that pressure and help him steal an election he actually lost. Today we'll tell the story of how the pressure campaign also targeted the federal agency charged with enforcement of our laws, the Department of Justice. These public servants resisted Mr. Trump's effort to misuse the Justice Department as part of his plan to hold on to power, and we will show that Trump's demands that the department investigate baseless claims of election fraud continued into January 2021. But Donald Trump didn't just want the Justice Department to investigate. He wanted the Justice Department to help legitimize his lies, to basically call the election corrupt, to appoint a special counsel to investigate alleged election fraud, to send a letter to six state legislatures urging them to consider altering the election results. And when these and other efforts failed, Donald Trump sought to replace Mr. Rosen, the acting attorney general, with a lawyer who he believed would inappropriately put the full weight of the Justice Department behind the effort to overturn the election. It was a brazen attempt to use the Justice Department to advance the president's personal political agenda.

 Liz Cheney: We have already seen how President Trump falsely declared victory on November 3rd, 2020, how he and his team launched a fraudulent media campaign that persuaded tens of millions of Americans that the election was stolen from him. We have seen how President Trump and his allies corruptly attempted to pressure Vice President Pence to refuse to count lawful electoral votes and obstruct Congress's proceedings on January 6th, and how he provoked a violent mob to pursue the vice president and others in our Capitol. We've seen how the president oversaw and personally participated in an effort in multiple states to vilify, threaten, and pressure election officials, and to use false allegations to pressure state legislators to change the outcome of the election. We've seen how President Trump worked with and directed the Republican National Committee and others to organize an effort to create fake electoral slates and later to transmit those materially false documents to federal officials, again as part of his planning for January 6th. We have seen how President Trump persuaded tens of thousands of his supporters to travel to Washington DC for January 6th. And we will see in far more detail how the president's rally and march to the Capitol were organized and choreographed.

 Adam Kinzinger: The Department of Justice is unique in the executive branch. The president oversees the Department of Justice, yet the president's personal or partisan interests must not shape or dictate the department's actions. The president cannot and must not use the department to serve his own personal interest, and he must not use its people to do his political bidding, especially when what he wants them to do is to subvert democracy. The president cannot pervert justice nor the law to maintain his power. Justice must, both in fact and law, be blind. That is critical to our whole system of self-governance. During this hearing, you'll hear time and time again about the president's request to investigate claims of widespread fraud.  President Trump ultimately wanted the Department of Justice to say the election was "corrupt" and "leave the rest to me and the Republican Congressmen." Not surprisingly, President Trump didn't take no for an answer. 

 The Justice Department lawyers are not the president's personal lawyers. We count on them to be on the side of the law and to defend the best interest of the United States, not the best interest of any political campaign. President Trump urged others to bring his big lie to life. He begged just say the election was corrupt and leave the rest to me and the Republican Congressmen. And it's no surprise that all the far out, fully fabricated whack job conspiracy theories collapsed under even the slightest scrutiny. That insanity went from the Internet to the highest levels of government in no time. The conspiracy theories were false. The allegation of a stolen election was a lie. The data left no room for doubt, nothing to question, and the Constitution left no room for President Trump to change the outcome of the election. But we're here today because the facts were irrelevant to President Trump. It was about protecting his very real power and very fragile ego, even if it required recklessly undermining our entire electoral system by wildly casting baseless doubt upon it. In short, he was willing to sacrifice our republic to prolong his presidency. I can imagine no more dishonorable act by a president. President Trump's coup failed. The only thing necessary for evil to succeed is good men to do nothing. But I'm still worried that not enough has changed to prevent this from happening again. The oath that we take has to mean something. It has to cut to the core of who we are and be the driving force of our service to this nation. We on this committee, we may be able to shine light on the darkness, but that is not enough. It's now up to every American, now and in the future, to stand for truth, to reject the lies wherever we confront them. And our towns, and our capitals, and our friendships, and our families, and at the ballot box, and within our own minds and hearts. 

 Bennie Thompson: Donald Trump lost the 2020 election. Top Republican officials who supported Trump knew that he lost and told him he lost. Trump knew he lost. Those who say the election was affected by widespread voter fraud are lying. They were lying in 2020, they were lying in 2021, and indeed they are lying today. Up to this point, we've shown the inner workings of what was essentially a political coup, an attempt to use the powers of the government from the local level all the way up to overturn the results of the election.

 JD Wooten: Again, in the words of Congressman Bennie Thompson, “January 6th was the culmination of an attempted coup, a brazen attempt…to overthrow the government.” And as Judge Luttig made clear a few weeks ago, there is still a very real threat to our democracy from those who tried, and will try again given the opportunity, to subvert our democracy. There will be more hearings, although we don’t know exactly when just yet. I’ll do my best to give you highlights after any future hearings. And next week, hopefully we’ll be back on to a more traditional episode with a focus on candidate interviews with just some light news. Fingers crossed.

As always, links are in the show notes for video and transcripts of last week’s hearings as well as the Carolina Forward slate so that you can go support candidates that share our vision of upholding democracy and the rule of law. If you have any questions or comments, send me an email at jd@carolinademocracy.com. And again, please subscribe wherever you get your podcasts and share this episode with a friend. Thanks everyone for listening today. Together, we can achieve a better North Carolina for everyone!