This just in — Judge Says Fani Willis Can Stay on Trump Case, but Only if Former Romantic Partner Leaves No paywall.

“An Atlanta judge on Friday ruled that Fani T. Willis, the Fulton Country district attorney, could continue leading the prosecution of former President Donald J. Trump and his allies in Georgia, but only if her former romantic partner, Nathan J. Wade, withdraws as the lead prosecutor of the case.” Some other news outlets are reporting that the Judge said either Willis or Wade have to leave. But I assume that means bye bye, Wade.

Update: Wade has resigned, so as of now Fani Willis is free to prepare for trial.

I want to go back to something Josh Marshall wrote a couple of days ago, Has Ol’ Man Trump Lost His Touch? No paywall. Here’s the meat of it:

There is a key difference here that is important to understand. Trump’s 2016 campaign’s success stemmed in large part from channeling the cultural and social grievance of middle aged white American men. His 2024 agenda is heavily focused on his personal grievances and doing away with all the restraints on the presidency that hobbled him and led to ego injuries in during his first term — Trump Unbound, as it were. 

A big chunk of the voters probably still are not all that focused on the November election and haven’t seen much of Trump recently. He really isn’t the same now.

One of Trump’s 2015/2016 super powers was that he’d come out of American popular culture — the core of it, which is to say, reality TV. These days he sits around Mar-a-Lago, talks to sycophants and prepares for new court dates. You can see a lot of the degeneration in his social media communication on Truth Social. As you know, I considered myself something of an aficionadoof rhythmic ferality of Trump’s 2015–2020 Twitter presence (see “Trump Attack Haiku“). The stuff today on Truth Social is entirely different, a kind of digital equivalent of pressured speech, packing a mix of All-Caps yelling and Trumpian buzzwords into one unstructured blob or loaf of bloated menace. He’s not the same.

Trump went into 2016 with a con man’s instincts for telling people what they wanted to hear. And he lucked out with a Democratic opponent who ran a massively tone deaf campaign. Unlike in 2016, he’s now surrounded with a “cast of ideologues who have created a program for him.” And a lot of that is massively unpopular stuff, like raising the retirement age or cutting Medicare. Plus he’s in a real box on abortion, which he wasn’t in 2016 or 2020.

I’m guessing that about a third of the voters would jump off a 90-foot cliff if Trump told them to, but I do believe there’s a big chunk of people who will find him a much less palatable candidate than he was before, once they start to focus. The challenge, though, is to get them comfortable with voting for Biden. And I think that’s do-able if enough Biden surrogates get out there and get to work. See also Philip Bump, Trump goes on a weird riff about acid — again about Trump’s increasingly hallucinatory rhetoric.

But let’s also step back and look at what Trump is doing to the Republican Party. I read today that Trump’s RNC officially killed the GOP’s mail-in voter effort. Trump still tells the story that fraudulent mail-in votes cost him the 2020 election, which is a crock, and there is data that shows mail-in voting may favor Republican candidates more than Democrats. But Trump and his people seem more interested in throwing legal challenges at voting itself.

This appears to be a realization of the far right’s goal of focusing the Republican Party on election-related “lawfare,” that is legal challenges designed to restrict ballot access and undercut election systems in ways that make it harder to vote. Back in 2022, I reported that this vision was behind right-wing lawyer Harmeet Dhillon’s long-shot bid to become RNC chair. Dhillon insisted that the RNC needed to hire an army of lawyers to lob legal challenges ahead of the 2024 elections.

Nothing screams “We can’t win a majority of voters fairly” like prioritizing legal attacks on voting rights. But that’s precisely what the Trump-branded RNC is preparing to do. Lara Trump, the former president’s daughter-in-law and the current RNC co-chair, claimed “massive resources” will go to its so-called election integrity division.

So, head’s up. And of course the Trump family/campaign has taken complete control of the RNC, including the financial part, so Trump will be tapping that money for his own purposes and letting the down-ballot candidates fend for themselves. And see Bess Levin, Over 100 House Republicans Will Skip GOP Retreat Because They Hate Each Other So Much: Report.

CNN reports that “many Republicans plan to skip the [upcoming] House GOP retreat as they grumble about both the location and the idea of spending time with one another.” According to the outlet, fewer than 100 Republicans have said they will attend, meaning more than 119 either have previous engagements or would rather do literally anything else than breathe the same air as their fellow representatives. While some cited reelection races as the reason for their absence, and others have “complained about the venue choice” selected by Speaker Mike Johnson, a number of GOP lawmakers and aides “told CNN they were simply not enthusiastic about the idea of having to huddle with the rest of their party at a time when Republican infighting has prevented them from even passing procedural votes.”

The days when Republicans speak and move as one hive mind are over, I guess.

The rest of the year until November could go a lot of different ways. But one of the ways it could go — not predicting it will, mind you — is that the party itself implodes at some point.

In other news: I’m not always happy with my senator, Chuck Schumer, but he stood up in the Senate today and sent a message to Israel about Bibi Netanyahu. This is better.

Senate Majority Leader Charles E. Schumer (D-N.Y.) called for the Israeli government to hold a new election in a speech warning that Israel risks becoming an international “pariah” under the leadership of Prime Minister Benjamin Netanyahu and his right-wing cabinet.

Schumer, the highest-ranking Jewish official in the United States and a staunch ally of Israel, said he thinks Israelis understand “better than anybody that Israel cannot hope to succeed as a pariah opposed by the rest of the world” and would choose better leaders if elections were held.

Robert Hur, the special counsel who investigated President Biden’s retention of classified documents and portrayed him as a senile old man in his report, is testifying to Gym Jordan’s Fishing Expedition Committee today. Note that as of yesterday Hur is no longer an employee of the Justice Department and is testifying as a private citizen. And he’s got an attorney with a history of defending right-wingers. I have no sense of how that’s been going.

But this morning the DoJ released a slightly redacted transcript of the interview between Biden and Hur, and news outlets are discovering that Hur mischaracterized Biden’s statements rather badly. See Matt Gertz T Media Matters, News outlets that trumpeted Hur’s story now discover “context” and “nuance” in transcript. It seems the full transcript shows that the President sometimes stumbled on names and dates but otherwise knew what he was talking about. So the New York Times and Wshington Post and other news outlets are walking back the truckload of stories they ran questioing Biden’s mental fitness.

I have no doubt that Gym and other MAGAs will latch on to something Hur says today so they can continue to flog their claim that Joe Biden is too senile to put on his own socks. But both sides can play that game.

In other news: GOP Rep. Ken Buck of Colorado has announced he’ll be leaving the House at the end of next week. He’s not going to bother to finish his term. I’m reading that House seats can’t be filled with an appointed replacement, so there would have to be a special election to replace Buck. And the Republican majority in the House keeps shrinking.

In more other news: You probably won’t be surprised to learn that there is no migrant-fueled crime wave going on.

Republican politicians and sympathetic media outlets are claiming that America is in the midst of a violent “crime wave,” driven in part by undocumented immigrants. New data, however, demonstrates that there was not a spike in violent crime in 2023. Instead, across America, rates of violent crime are dropping precipitously — and the decline is especially pronounced in border states. …

… Notably, the two border states that have completed their Uniform Crime Reports saw particularly sharp declines in murder in 2023, with 15% drop in Texas and 8.8% drop in Arizona. Both states also saw significant declines in violent crime overall. If undocumented immigrants were driving a violent crime surge, as Republicans and some media outlets suggest, you would expect to see it show up in the data from Texas and Arizona. 

See the linked article from Popular Information for data and sources. Basically this is preliminary data from fifteen states that eventually will go into the FBI’s annual Uniform Crime Report. But there are studies and data going back years showing that migrants are less likely to commit violent crimes than native-born good ol’ boys.

You’ll remember last week that MTG was using the murder of Laken Riley, a nursing student who was killed while out on an exercise run, to make some point about migrants. Being murdered while running appears to be a whole sub-genre of violent crime. Most of the victims are women, but not always — remember Ahmaud Arbery? Of course you do. (Ahmaud Arbery was from Georgia, too, but I don’t remember MTG getting worked up about him the way she’s worked up about Riley Laken. Odd.)  A lot of these murders are unsolved. When they are solved, the perpetrator (when the victim is a woman) tends to have a history of violence against women. See, for example, the Eliza Fletcher murder.

Now see Will Leitch, The Murder on My Running Trail, at New York Magazine. The author lives in the same community as Riley Laken and runs on the same trail she took on the day she was murdered. And his wife is a runner, too. “She has told me how often she feels watched on her runs,” Leitch writes. “How she has been followed. How she has been spit at. How she was even once swung at. I have never had any of those fears, not once. Because I am a man.”

The murder of Riley Laken shook the Athens, Georgia, running community hard.

Riley’s murder, the first homicide on campus in more than 30 years, sent a wave of terror through Athens, but it hit the running community particularly hard. Fear was palpable among women runners in the first 24 hours after her death, and their stories made it clear that what I — along with many of my fellow male runners — had thoughtlessly considered a safe, solitary activity has always been far more fraught for half the population. Women spoke of the precautions they constantly have to take, from going out with running buddies to avoiding isolated areas to carrying alert systems, weapons, or even Tasers with them anytime they leave the house. (My primary concern when I set out is whether I remembered my headphones.) Riley’s assault and murder — one of several involving women runners in recent years — was a reminder that every time women go for a run, they have to be conscious of the possibility of male violence. Or, more accurately: They have to be as conscious of the possibility of male violence as they always are. My wife reminded me of the Margaret Atwood quote: “Men are afraid that women will laugh at them. Women are afraid that men will kill them.”

That was the conversation until an undocumented immigrant was charged with the murder. Suddenly everyone stopped talking about male violence. And every Republican politician in Georgia blamed Joe Biden for Riley Laken’s death.

It’s like violent crime doesn’t count until a migrant is the perpetrator. But here’s something else I found today about homicides in the U.S.

In 2020, there were 2,059 females murdered by males in single victim/single offender incidents that were submitted to the FBI for its Supplementary Homicide Report. 12 The key findings of this study, expanded upon in the following sections, dispel many of the myths regarding the nature of lethal violence against females.

• • For homicides in which the victim to offender relationship could be identified, 89 percent of female victims (1,604 out of 1,801) were murdered by a male they knew.
  • Eight times as many females were murdered by a male they knew (1,604 victims) than were killed by male strangers (197 victims).
  • For victims who knew their offenders, 60 percent (967) of female homicide victims were wives or intimate acquaintances of their killers.13
  • There were 298 women shot and killed by either their husband or intimate acquaintance during the course of an argument.

Odds are that at least some of those women are killed in Georgia. But in MTG’s world their deaths don’t count.

In other misdirected violent crime news, by now you’ve heard that Sen. Katie Britt, in her State of the Union rebuttal for the ages, told a graphic story about sex trafficking in Texas and blamed it on President Biden. Turns out this happened 20 years ago, during the George W. Bush administration, and in Mexico. As far as I know, Britt has yet to apologize for telling a lie.

Update: Aaron Blake at WaPo provides an account of what went on in the hearing today.

I’ve been looking for any information on the appeal bond posted by Trump yesterday. And we don’t know much.This is from Alternet —

The ex-president’s bond was guaranteed by the Federal Insurance Company — a New York-based subsidiary of the company Chubb Group LLC, which is headquartered in Switzerland. In 2018, Chubb CEO Evan Greenberg served on a trade advisory committee in the Trump White House. The Washington Post reported that “it was not clear from court records what collateral Trump presented to obtain the bond from Chubb.”

We don’t know what was put up for collateral, we don’t know if it was co-signed, we don’t know what fee Trump is being required to pay. Seems a tad hinky. Some commenters are breathlessly noting that Hungarian Prime Minister Viktor Orbán was at Mar-a-Lago yesterday and wondering if Orbán was involved in securing the loan. That’s pure speculation, note. Orbán came to the U.S. to meet with Trump but is not meeting with President Biden, which is definately hinky.

Trump has now officially taken over the RNC, so watch the RNC budget get drained on behalf of Trump. You down-ballot candidates are on your own.

In other Mar-a-Lago news, this is from Joyce Vance yesterday —

In the Mar-a-Lago case, two additional prosecutors filed their notices of appearance, the formal way a lawyer advises a judge they will be participating in a case. One of those lawyers handled Trump’s appeal on presidential immunity to the Court of Appeals for the District of Columbia, leading to widespread speculation Jack Smith is gearing up to appeal Judge Aileen Cannon to the Eleventh Circuit.

Cannon will have to issue an appealable order before that can happen. But that moment may well come when she rules on pending classified discovery issues or Trump’s request to make the names of witnesses public.

We can hope.

The fallout from Thursday night continues, including the trashing of Sen. Katie Britt. I get the impression that Republicans are projecting all their frustrations at having been owned at the SOTU onto her. She may or may not have a career after this. But here’s a fun read about her — Is Katie Britt for Real?

(Before getting to the SOTU — Trump just posted the $91 million appeal bond in the E. Jean Carroll case. Now let’s see him come up with the bigger one.)

I have to say I’m feeling a LOT better about the November election after last night. There will be many bumps ahead, of course. But even as I keyboard a lot of Republicans probably are wondering if they overdid the “Joe is old and senile” claim a tad.

Best headline so far: GOP Stunned To Discover It’s Not Running Against A Cadaver In 2024

Republicans who have turned Joseph R. Biden into a caricature of falling-down dementia and drooling incontinence have set the bar so low that anything above a flatline EKG from the president knocks them back on their heels.

They were left spluttering that Biden’s State of the Union was too loud and too campaign-y. They couldn’t maintain a basic level of decorum in the chamber, giving Biden the chance to knock them around with ad libs and direct call outs, directly facing the GOP side of the chamber. He turned the call and response of the Black church into whack-a-MTG.

Brian Tyler Cohen at MSNBC wrote,

Unfortunately for Donald Trump and his campaign, Biden didn’t sound like a man in the throes of cognitive decline. The GOP may have gaslighted itself into selling one version of Joe Biden to its loyal sycophants — but that version exists only in their fever dreams. And the president proved as much tonight.

It says something about the Republian mood, I think, that the GOP response from Alabama Senator Katie Britt got the harshest blowbacks from other Republicans. I didn’t watch it, but I take it that after President Biden’s near-virtuoso performance, her response was just weird. A number of commenters predicted it will be replicated on SNL tomorrow night. See ‘What the Hell Am I Watching’: Republicans Torch Their Own SOTU Rebuttal at Rolling Stone. And this is from Daily Beast, Official GOP Response to SOTU Has Republicans ‘Losing It’

The freshman senator is considered a rising star in the party. But her speech’s intense tone—with an over-the-top dramatic cadence that was delivered in a kitchen—left political operatives and observers struggling to make sense of it.

The performance was so bad that some Republicans watched the high-profile speech with a grimace.

A GOP strategist told The Daily Beast that Britt’s delivery quickly became a gossip item Thursday night among operatives connected to Donald Trump—something that could have potential implications for her consideration as a vice presidential pick on the 2024 ticket.

“Everyone’s fucking losing it,” this Republican said, requesting anonymity to discuss private conversations. “It’s one of our biggest disasters ever.”

It may be they weren’t reacting to Britt as much as to the realization they’d just been owned by Joe Biden, and Britt’s speech didn’t help. And to add insult to injury, Trump’s toy social media platform went down during the speech, leaving his fans unable to enjoy Trump’s witty retorts (/sarcasm). I understand a handful of House Republicans actually left the room during the speech. Whether that was in protest or because the whole event was too painful for them, I cannot say.

If you didn’t watch the speech, you’ll want to watch it. It wsn’t just the words, but the energy in the room (or lack of it on the GOP side), that made it an event. This is not to say there weren’t spots that could have been better, but on the whole it made a lot of Democrats very happy.

If you’re watching and want to comment, feel free.

Meanwhile, this happened today.

A federal judge on Thursday denied Donald Trump’s last-minute plea for extra time to front a massive sum of money to appeal his rape defamation trial, forcing the tycoon to suddenly come up with $91 million.

On Thursday afternoon, U.S. District Judge Lewis Kaplan told the former president that he was in a mess of his own making—after losing a trial that found him directly responsible for lying about sexually abusing the journalist E. Jean Carroll, ordered to pay an $83 million verdict, and waiting until the very last second to come up with a backup plan. …

… The judge then noted that Trump had essentially run out the clock all on his own, burning through nearly all of the 30 days he had until the $83 million judgment came due—and not even lining up the higher sum he’d need to pay to appeal the judgment. Instead, Trump defense lawyer Alina Habba waited until last weekend to propose an unorthodox alternative: a lowball offer to front a quarter of the money  instead.

Just today he had another judgment that went against him.

Former U.S. President Donald Trump has been ordered to pay a six-figure legal bill to a company founded by a former British spy that he unsuccessfully sued for making what his lawyer called “shocking and scandalous” false claims that harmed his reputation.

A London judge, who threw out the case against Orbis Business Intelligence last month saying it was “bound to fail,” ordered Trump to pay legal fees of 300,000 pounds ($382,000), according to court documents released Thursday.

Orbis was founded by Christopher Steele, who once ran the Russia desk for Britain’s Secret Intelligence Service, also known as MI6.

Also, too: Trump to Seize Control of GOP Machine After Clinching Nomination

Update: This is an energized speech. Ukraine and Putin right out of the box.

Oh, he’s being feisty. The January 6 insurrectionists were not patriots! They failed! Eat it, Republicans.

Speaker Johnson looks constipated.

Kate Cox who had to leave Texas to have an abortion is there.Directly addressing the justices about Roe v. Wade. Sam Alito isn’t there.

He’s taunting the Republicans.

Jobs! Labor! Unions built the middle class! This is a classic Democratic speech.

Speaker Johnson looks like he wants to be somewhere else.

This is like a Dem Party pep rally.

Speaker Johnson looks like he’s waiting to get root canal.

The Republicans are looking down at their shoes.

He’s yanking their chains over the border bill they tanked. They don’t like it.

MTG is having a tantrum.

“We can fight about the border, or we can fix it. I’m ready to fix it.”

Speaker Johnson stood for John Lewis of blessed memory. I bet MTG didn’t.

Overall a good speech.

So Nikki Haley suspended her campaign in spite of winning Vermont. She might have felt it best to suspend the campaign with at least a few electors in her pocket. She’s still in a position to claim the nomination in case Trump implodes. Although of course who knows what the RNC might do if Trump implodes.

Dean Phillips — remember him?– finally took the hint and is dropping out also. I understand Marianne Williamson is still running. No one cares.

The nominees for president in 2024 are now pretty much set in stone, as if they weren’t already. I personally think a long general election campaign helps Biden. Trump needs to be more visible. He needs to be in all the television news every bleeping day. Let everyone see him screaming his word salad speeches about retribution and people who don’t speak languages. He’ll gut his own general election chances the same way he screwed himself in the second E. Jean Carroll trial by being a flaming asshole in the courtroom.

And I understand from exit polling a substantial portion of Haley voters say they weren’t voting for Haley as much as they were voting against Trump. The question is, will these voters be inclined to hold their noses and vote for Trump in November, anyway? Or will they be alarmed enough by his erratic speech and behavior to maybe just not vote, if they can’t bring themselves to vote for Biden? And I still think that a substantial part of the electorate hasn’t been focusing on Trump or Biden or the news in general. Things will change when/if they ever do. Current polling means very little.

I understand that MAGAs tended to win out over moderates in down-ballot Republican races yesterday. These tend to be the same sort of people who mostly lost in 2020 and 2022, so let’s hope that trend continues.

Adam Schiff will almost certainly be elected to Dianne Feinstein’s Senate seat. I’m okay with this, but it’s sad that Katie Porter and Barbara Lee won’t be in Congress next term. Maybe they can come back in 2026.

Regarding the meeting between Trump and Elon Musk — the New York Post is reporting that Musk declared he won’t be contributing to any presidential campaigns. Fine, but that doesn’t necessarily mean he won’t help Trump out with his appeal bonds. There’s also some nonsense going on with Musk and Tesla and OpenAI that I haven’t been following closely, but apparently it makes Musk look bad.

Appeal Bond Watch: There’s been no apparent movement from Trump on paying the appeal bond in the E. Jean Carroll judgment, which now totals over $91 million and is due on Saturday.

Soon we won’t have Kysten Sinema around to make fun of any more. But here’s a nice retrospective of her political demise — Kyrsten Sinema Drove Herself Out Of Politics by Kate Riga at TPM.

Trump’s deadline to put up the E. Jean Carroll judgment is this Saturday, March 9, and he’s still trying to get out of it. This just happened today:

 Former President Donald Trump is seeking a new trial in the defamation case brought by former Elle magazine columnist E. Jean Carroll, arguing that the judge in the case improperly restricted his testimony.

Trump in January was ordered to pay $83.3 million in damages to Carroll for defaming her in 2019 when he denied her allegation that he sexually abused her in the dressing room of a Manhattan department store in the 1990s.

Trump spent less than five minutes on the witness stand, during which he testified that “I just wanted to defend myself, my family and frankly the presidency.”

Judge Lewis Kaplan instructed the jury to disregard the remark because it fell outside the bounds of what Trump was allowed to say.

In a court filing Tuesday, defense attorneys argued “the Court’s restrictions on President Trump’s testimony were erroneous and prejudicial” because Trump was not allowed to explain “his own mental state” when he made the defamatory statements about Carroll.

“This Court’s erroneous decision to dramatically limit the scope of President Trump’s testimony almost certainly influenced the jury’s verdict, and thus a new trial is warranted,” defense attorneys Alina Habba and John Sauer said.

The defense also asked Judge Kaplan to reduce the $83.3 million damage award, arguing it “surpasses the permissible bounds for such damages and exceeds comparable awards” in the Southern District of New York.

I can’t imagine how “his own mental state” would be a legal excuse to say any of the things he said. Also, in the second trial that ended in January, the judge had already found Trump guilty of defaming Carroll, and the only thing the trial was about was how much damages Trump would have to pay. Trump doesn’t seem to grasp that.  It’s also likely Kaplan was doing Trump a favor by limiting his speech in court, considering how badly Trump’s own behavior hurt him in that case.

I am going to be absolutely furious if some other judge somewhere lets Trump  slide on this.

Earlier today Carroll’s lawyers had hit back at Trump for his “promise” to be good for the penalty without putting up a bond. This is from Law & Crime:

In response to Donald Trump‘s continued promises to a judge in New York that he will pay the $83.3 million he owes to writer E. Jean Carroll for defaming her — without posting security — Carroll’s lawyer has offered a taut reply: Once again, Trump offers nothing to credit him but his “unsubstantiated say so.”

The message came in a one-page letter to U.S. District Judge Lewis Kaplan after the former president — already beset on all sides by indictments and legal dramas in Florida, Georgia, Washington, D.C. and elsewhere in New York City — asked for a third time to stay the execution of the defamation award to the veteran writer.

Trump’s attorneys Alina Habba and John Sauer have proposed that the court should give the defendant an unsecured 30-day delay to pay until all of his post-trial motions are resolved, or to allow him to post a reduced bond that would come in at little over $24.4 million.

Carroll’s attorney Roberta Kaplan wrote in the Monday letter to the judge that Trump’s latest filings are riddled with incorrect claims that it is she who “mischaracterized” existing Second Circuit case law on the enforcement of judgment without the posting of bond or another condition.

Not only has Trump once again offered “no alternative means other than his own unsubstantiated say so that he will have the $83.3 million available when Carroll prevails on appeal,” Kaplan wrote, but when his lawyers pointed to a 2015 strip search case in Long Island to support their argument, they misinterpreted it.

There’s more. But, yes, everybody knows what a hole Trump is in and that he has a history of lying about money.  No one with any sense would trust him. His promioses to pay for anything mean nothing.

At The New Republic, Greg Sargent has a bad news is kind of good news post —

As expected, the Supreme Court is keeping Trump on the Colorado ballot. It was a unanimous decision [maybe not; see below] that I have just given a quick skim. The gist of it seems to be that only the U.S. Congress can determine if a presidential candidate is disqualified under the 14th Amendment insurrection clause. States may disqualify candidates for state offices any way they like, but not a national office.

NBC News —

The court said the Colorado Supreme Court had wrongly assumed that states can determine whether a presidential candidate or other candidate for federal office is ineligible.

The ruling makes it clear that Congress, not states, has to set rules on how the 14th Amendment provision can be enforced against federal office-seekers. As such the decision applies to all states, not just Colorado. States retain the power to bar people running for state office from appearing on the ballot under section 3.

“Because the Constitution makes Congress, rather than the states, responsible for enforcing section 3 against all federal officeholders and candidates, we reverse,” the ruling said.

By deciding the case on that legal question, the court avoided any analysis or determination of whether Trump’s actions constituted an insurrection.

I’m sure there will be all kinds of learned legal analyses of this decision as the day goes on. I’ll keep an eye out for anything interesting.

Update: Here’s something interesting. At Slate, Mark Joseph Stern writes The Supreme Court’s “Unanimous” Trump Ballot Ruling Is Actually a 5–4 Disaster.

Five justices—Chief Justice John Roberts, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—went further: They declared that only Congress may enforce the insurrection clause against federal candidates. How, exactly? The majority says that Congress must “prescribe” specific procedures to “ascertain” when an individual is disqualified under the 14^th Amendment. Such procedures, of course, do not exist today. And without them, the majority insists—in just a few paragraphs of sparse reasoning—the insurrection clause cannot be enforced against office seekers. It derives this conclusion from two primary sources: “Griffin’s Case,” an 1869 opinion written by Chief Justice Salmon Chase, acting as a circuit judge, and Section 5 of the 14^th Amendment, which says, “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

The three liberal justices wrote a separate opinion, authored jointly, to explain why this reasoning fails. First, Griffin’s Case was, until Monday, widely discredited as the political handiwork of a chief justice plotting to run for the presidency as a great conciliator between North and South. It is “a nonprecedential, lower court opinion by a single Justice in his capacity as a circuit judge,” as the liberal justices wrote. Moreover, Sen. Lyman Trumbull, an author of the 14^th Amendment, resisted the logic of Griffin’s Case, declaring that while congressional legislation might provide a “more efficient and speedy remedy” for disqualifying a candidate, it is the 14^th Amendment itself that “prevents a person from holding office.”

Second, it is bizarre to claim that the insurrection clause requires enabling legislation by Congress when the remainder of the 14^th Amendment—indeed, all three amendments ratified after the Civil War—is “self-executing” (meaning it does not require congressional action for enforcement). Everyone agrees that Congress need not pass a law to ensure that all persons have due process, equal protection, and freedom from enslavement. Why, the liberals wondered, did the majority create “a special rule” for the insurrection clause alone? They added that the clause does mention congressional action, but only to say that Congress may lift a disqualification by two-thirds vote: “It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation.”

These disagreements matter a great deal. As the liberals point out, the majority’s sweeping Congress-only approach “forecloses judicial enforcement” of the insurrection clause—in, for instance, the context of a criminal trial involving an insurrectionist. It also bars future enforcement on the basis of “general federal statutes” that compel “the government to comply with the law,” since the majority says any congressional enforcement must be “tailored” to the insurrection clause. And it even empowers the Supreme Court to prevent Congress from disqualifying an insurrectionist in the future, because the court can claim that any enabling legislation did not adhere to the made-up rules in Monday’s opinion. By blocking off these pathways, the liberals wrote, the majority “foreclose future efforts to disqualify a presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course.” They continued:

Section 3 serves an important, though rarely needed, role in our democracy. The American people have the power to vote for and elect candidates for national office, and that is a great and glorious thing. The men who drafted and ratified the Fourteenth Amendment, however, had witnessed an “insurrection [and] rebellion” to defend slavery. They wanted to ensure that those who had participated in that insurrection, and in possible future insurrections, could not return to prominent roles. Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.

Notably, the liberals actually had Justice Amy Coney Barrett on their side too. She authored a separate opinion expressing her disapproval of the majority’s overreach but declining to say more because “the court should turn the national temperature down, not up.” So, in effect, Anderson is a 5–4 decision, with a bare majority effectively repealing the insurrection clause for federal officeholders. The liberals’ disapproving citations to Bush v. Gore and Dobbs give a sense of how disastrously they believe the majority went astray.

In related news, Allen H. Weisselberg is expected to plead guilty to felony perjury today.

Recommended read by Will Bunch at the Philadelphia Inquirer: Mitch McConnell is the arsonist who set America on fire and ran away.

At Rolling Stone, Trump’s White House Was ‘Awash in Speed’ — and Xanax.

In January, the Defense Department’s inspector general released a report detailing how the White House Medical Unit during the Trump administration distributed controlled substances with scant oversight and even sloppier record keeping. Investigators repeatedly noted that the unit had ordered thousands and thousands of doses of the stimulant modafinil, which has been used by military pilots for decades to stay alert during long missions. 

The report didn’t say why so many of those pills had been given out. But for many who served in the Trump White House, the investigation highlighted an open secret. According to interviews with four former senior administration officials and others with knowledge of the matter, the stimulant was routinely given to staffers who needed an energy boost after a late night, or just a pick-me-up to handle another day at a uniquely stressful job. As one of the former officials tells Rolling Stone, the White House at that time was “awash in speed.”

Here’s what the Mayo Clinic says about modafinil. I’ve long suspected Trump was taking some kind of stimulant, and this could be it. It can cause mental confusion.

The U.S. airdropped thousands of meals into Gaza earlier today and plans to airdrop a lot more. I hope this helps. There are also reports that Israel has agreed to the framework of a six-week cease-fire.

Stuff to Read: At Axios, see “Department of Life”: Trump allies plot abortion crackdown for second term. The Heritage Foundations is calling for the Department of Health and Human Services to be the Department of Life. And the first act of the DoL would be “explicitly rejecting the notion that abortion is health care and by restoring its mission statement under the Strategic Plan and elsewhere to include furthering the health and well-being of all Americans ‘from conception to natural death.'”

See also Lulu Garcia-Navarro at the New York Times, Inside the Heritage Foundation’s Plans for ‘Institutionalizing Trumpism.’ No paywall.

Also at the New York Times, see As Trump’s Criminal Trial Approaches, He May Be His Own Worst Enemy by, um, a bunch of people. It basically documents that Trump has been ordering his lawyers what to do in court because Trump thinks he knows better than anyone. And this is likely to trip him in the upcoming hush money case, which will be heard by Justice Juan M. Merchan. Justice Merchan was born in Bogotá, and we’ll see how much time expires before Trump posts some anti-Latino slur about him on his toy social media site.

Lawyers who have represented Mr. Trump view the prospect of him testifying before Justice Merchan as potentially disastrous. The judge is a no-nonsense jurist who presided over the conviction of Mr. Trump’s family business in a tax fraud trial.

If Mr. Trump insists, he could pose a make-or-break challenge for Mr. Blanche and Ms. Necheles.

They recently appeared before Justice Merchan at a pretrial hearing with their client mostly silent beside them, and seemed to test the tightrope he will walk during the trial. Mr. Trump wanted to delay it, but the judge promptly set a March date.

Mr. Blanche lodged objections, none of which swayed Justice Merchan, who quickly bridled. “Tell me something you haven’t already said today,” the judge said.

Shortly thereafter, Justice Merchan asked Mr. Blanche if he was done talking. He was not, but the judge cut him off, instructing Mr. Blanche to “please have a seat.”

“Yes, your honor,” Mr. Blanche replied, sitting down with Mr. Trump.

Update: Here’s another one, by Chauncy DeVega at Salon: “Better than Jesus”: How far will the cult of Trump go?