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Abbreviated Pundit Roundup: It was all carefully planned [1]
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Date: 2023-08-10
We begin today with Heather Cox Richardson, writing in her “Letters From an American” Substack about the irony of the Kenneth Chesebro memo plotting to overthrow the government that was reported Wednesday in The New York Times.
The plan was essentially what the Trump campaign ultimately tried to pursue. It called for Trump-Pence electors in six swing states Biden had won to meet and vote for Trump, and then to make sure that in each of those states there was a lawsuit underway that “might plausibly” call into question Biden’s victory there. Then, Vice President Mike Pence would take the position that he had the power not simply to open the votes but also to count them, and that the 1887 Electoral Count Act that clarified those procedures was unconstitutional. Key to selling this strategy, Chesebro wrote, was messaging that constructing two slates of electors was “routine,” and he laid out a strategy of taking events and statements out of context to suggest support for that messaging. [...] Three days later, Chesebro wrote specific instructions to create those fraudulent electors, and they were off to the races. Chesebro is identified as Co-Conspirator 5 in the grand jury’s recent indictment of Trump. It is an astonishing thing to read this memo today.
Laurence Tribe says that Chesebro wildly misappropriated his work in an essay written for Just Security. He encourages readers to compare the two.
I am personally familiar with an aspect of the indictment’s documentary evidence that may shed light on the actions of one of the attorneys – Kenneth Chesebro — who is identified as Co-Conspirator 5 by the special counsel. In a civil suit, Judge David Carter called the 2020 election interference scheme “a coup in search of a legal theory.” What I have to offer here can shed light on the anatomy of that fraud. It shows how the attorneys concocted arguments that gave the scheme an air of legitimacy but one that could not withstand public scrutiny. I know this well because a key memorandum drafted by Chesebro — which might otherwise appear relatively innocuous even in how it is discussed in the indictment — laid the foundation for the scheme grounded, in part, on misrepresenting my work. I know this especially well because of my prior communications with Chesebro. [...] That Memorandum, entitled “The Real Deadline for Settling a State’s Electoral Votes,” relied on a gross misrepresentation of my scholarship.
Toluse Olorunnipa, Rachel Roubrin, and Patrick Marley of The Washington Post write that if the issue that excites Democrats for the upcoming elections is abortion (as it seems to be), then Democratic strategists will emphasize the issue.
Even as Biden hopscotches the country talking of factory openings and bridge repairs, abortion politics has become a rare consistent source of electoral victories for his party over the past year. The result in Ohio, coming after voters in other Republican-leaning states like Kentucky and Kansas also rejected GOP efforts to restrict abortion, underscores how the issue has already reshaped the political landscape for 2024, Democratic pollster Celinda Lake said. [...] Democrats also hope the push for abortion rights helps them minimize losses in the Senate, where they hold a narrow 51-49 majority with several vulnerable incumbents. Among them are Sens. Sherrod Brown (Ohio), Jacky Rosen (Nev.) and Jon Tester (Mont.), all of whom could now step up their focus on abortion rights. Democrats are strategizing on the best way to sustain the energy that led them to the 14-point victory in Ohio. The vote came nine months after strong midterm results in places like Michigan, where a constitutional measure to protect abortion rights propelled Democratic Gov. Gretchen Whitmer to reelection and helped her party win control of both the state House and Senate for the first time in nearly four decades.
Charles Blow of The New York Times writes that the spectacle of Black people defending one of their own against a racist attack in Montgomery, Alabama, conjures up some of the most haunting images in American history,
In some obvious ways the whole episode is sad: The situation should never have descended into violence. The people who were asked to move their boat so that the riverboat could dock in its reserved space should simply have complied. But in other ways, many Black people, in particular, saw it as an unfortunate but practically unavoidable response to what can feel like an unending stream of incidents in which Black people are publicly victimized, with no one willing or able to intervene or render aid. Black people coming to the defense of that Black man wasn’t just a specific thing that happened at one place and time; it was also a departure, in some ways, from the most memorable images in a history that includes centuries of Black-targeted brutality, which traces the journey of Black people in this land that became the United States. From its inception, a feature of American slavery was the brutalizing of Black people and Black bodies — the whipping and the raping, the being hung from trees and fed to dogs — with others, generally, unable to defend them.
Mark Joseph Stern of Slate ponders why Amy Coney Barrett was a surprising fifth vote on a Supreme Court ruling regulating “ghost guns” in a surprising SCOTUS victory for the Biden Administration.
First, it may simply be that Barrett believes the text of the Gun Control Act covers ghost gun kits, and that O’Connor’s decision to the contrary was egregiously, indefensibly wrong. If so, that view would be something of a surprise, since Barrett has presented herself as something of a Second Amendment hard-liner. The more obvious candidate for a swing vote in this case is Kavanaugh, who previously expressed some discomfort with a maximalist interpretation of the right to bear arms. (Roberts, too, appears more dovish on gun rights than his conservative colleagues.) Technically, this dispute hinges not on the Constitution, but on statutory text; still, the Second Amendment lurks just underneath the surface of any case about firearms. So perhaps Barrett has signaled a limit to her enthusiasm for Second Amendment maximalism, while Kavanaugh has reaffirmed his enthusiasm for it. Second, Barrett’s vote may be attributable to her distaste for “nationwide vacatur.” In a recent decision, the justice cast serious doubt on the legality of this tool, which allows a lone federal judge to block a federal policy in all 50 states. She is quite right to be skeptical that this power exists, or at least that it can be used as freely as O’Connor and his fellow conservatives deploy it today. But Thomas and Gorsuch have also disclaimed “nationwide vacatur” in rather harsh terms, disputing the notion that Congress gave district courts the authority to bind the entire nation. As Vox’s Ian Millhiser has pointed out, though, these two justices frequently uphold “nationwide vacaturs” when they are used to block Democratic policy. Barrett may be more principled than her colleagues on this matter. If that’s true, and Barrett’s vote was purely procedural, then the ghost guns rule is not out of the woods yet. O’Connor’s decision will remain on ice until the Supreme Court disposes of the case, no matter what monkey business the 5th Circuit pulls next. When it comes back to SCOTUS on the merits, though, Barrett could vote to strike down the rule, since the side debate over O’Connor’s use of “vacatur” would no longer be relevant. Gun rights advocates will fight this one all the way to the bitter end. And the Biden administration should not assume it has Barrett on its side as it fights for the new rule’s long-term survival.
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