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Sunday in Virusland

Viruses were raging on television yesterday. Speaking on ABC's This Week, Anthony Fauci said that the new omigod—scratch that—omicron variant is sure to hit the U.S. before long. It has already spread to half a dozen countries, so the U.S. can't be far behind, as people who don't even know they are infected are likely to have already entered the U.S. He also said that travel bans may help slow down transmission a little bit, but in the end they don't work.

Francis Collins, the director of the National Institutes of Health, said it would take weeks for scientists to understand how well the current vaccine protects against the new variant. The big question is whether the antibodies created by the vaccine will stick to the spike of the new variant, which is somewhat different from the spike on the older variants.

On the other hand, former FDA Commissioner Scott Gottlieb was more optimistic. He told CBS' Face the Nation that Pfizer, on whose board he now sits, believes that people who have had three shots of their vaccine are protected against the new variant. But he added that it will take a week or two before the data are in on that.

Some people aren't taking chances, though. For example, Gov. Kathy Hochul (D-NY) has declared a state of emergency in her state, even before the first case has shown up there. Among other things, this allows nonessential hospital procedures to be postponed until Jan. 15 so hospitals will have enough beds for the expected surge in cases. She also encouraged (but not mandated) state residents to wear masks, get vaccinated if not already so, and get boosters if already vaccinated.

How will this play out politically? It's obviously a bit early to know for sure, but a lot of people voted for Joe Biden in 2020 because he promised to make everything normal again. They expected that he would beat down the virus by taking whatever measures were necessary and get the economy back on track again. If there is another surge now, due to a new and nastier virus, many people will be disappointed and perceive him as a failure, as in "He promised us 'back to normal' and didn't deliver."

Of course, Biden has limited ability to stop a new variant, but there are things he can do that he isn't doing. He could make vaccination mandatory with no exceptions for every government employee, member of the armed forces, employee of every government contractor, inmate of every federal prison, and everyone else where he has a good claim to the authority to do that. He could also make proof of vaccination a requirement for anyone to enter any federal property, from post offices to national parks.

What he could also do is address the nation from the Oval Office at least once a month to give a status report on how the country was doing, along with a gentle request for everyone to please get vaccinated for their own sake and for the sake of people they love. If he did all these things people would at least see he was trying and not sitting back passively and doing nothing. Establishing an image of "we are doing everything we can" surely wouldn't hurt in the midterms. Right now he is rarely in the news. He should be dominating it, every day.

Biden should also be doing everything possible to get people in poorer countries vaccinated. Throughout the pandemic, there has been much talk of "herd immunity," but that was a national concept, as in "herd immunity among Americans." However, the virus does not take notice of national borders. The real goal should be "global herd immunity." Only when that is achieved will the emergence and spread of new variants be blunted. (V)

A New Milestone Is Here

According to at least one source, Worldometer, the number of American deaths from the coronavirus will pass 800,000 sometime today. It was 799,414 when we posted this in the morning and it is growing by about 1,600 per day, so by the afternoon we will pass 800,000. There have been 49 million cases so far and 39 million people have recovered. The rest are still sick.

As of this morning, California is leading the pack, with 74,393 deaths, but Texas is nipping at its heels with 74,017 deaths. Florida (61K), New York (57K), and Pennsylvania (33K) round out the top five. The state with the fewest deaths is Vermont, with 406.

It is not surprising that giant California has more total deaths than tiny Vermont. But when we look at deaths per million people, the picture changes radically. California drops to 35th place and Texas to 19th. The top five in deaths per million people are Mississippi (3,448/M), Alabama (3,287/M), New Jersey (3,191/M), Louisiana (3,179/M), and Arizona (3,054/M). The state with the lowest deaths per million is—Vermont again, with 651 deaths per million.

The new COVID variant may work to the detriment of states like Mississippi and Alabama that are doing the least to stop the virus and to the advantage of states like California that have many measures in place to stop the spread. If the new variant proves to be more transmissible than the older ones, the number of deaths per day could go up from its current number of about 1,600 per day to much more. Here is a graph showing daily deaths since Feb. 15, 2020.

Daily COVID deaths since Feb. 2020; there are
four distinct peaks when deaths went above 1,000 per day and often above 2,000 or 3,000, followed by valleys where the deaths dropped below 1,000.

As you can see, there was a peak in April 2020, then it looked like COVID-19 would be over. Nope. There was another peak in July 2020. And just when it looked like it might be over again, it shot up to an all-time high in Jan. 2021. Then by July 2021, it looked like it was finally over, but wrong again. There was another peak in September of this year. Will the new variant bring a fifth peak? We certainly hope not, but in the past every time it looked like the virus was beaten down, the virus struck back. (V)

Is Trumpism Contagious?

Viruses are contagious. What about Trumpism? Donald Trump envisions himself as a kingmaker. In his mind, he picks somebody in the Republican primary and that person wins the primary in a walk and then coasts to an easy general-election victory, so Trump can add another notch to his belt. Only it doesn't always work that way. Consider where we are now in some of the Senate races.

To start, note that those notches are important to Trump. He likes to win. Consequently, he frequently endorses candidates who are overwhelming favorites to start with so he can try to take credit for the winning of a race the candidate would have won without his endorsement. Sometimes he waits until late in the race, sees who is winning, and then endorses that candidate. The voters may be impressed but politicians know the difference between helping a candidate who couldn't have won without the help and jumping on the bandwagon when there was no competition, or when his choice is almost at the finish line.

So far, Trump has endorsed in 14 Senate races, but about half of these are for sure-fire winners where he is bound to get a win to brag about. These also raise his batting average. Among other endorsees so far are Republican Sens. John Boozman (AR), Mike Crapo (ID), Chuck Grassley (IA), Jerry Moran (KS), Rand Paul (KY), and Tim Scott (SC). None of these are in the slightest danger of losing a primary or losing the general election. Grassley and Paul are not all that Trumpy, but a win is a win.

The former president has also endorsed two Republican senators who are in no danger of losing a primary but could lose the general election. These endorsements are fine with the NRSC and RNC because he is endorsing incumbent Republicans. These are Ron Johnson (WI) and Marco Rubio (FL).

The rest are more problematic. Let's take a look, in alphabetical order by state.

There are a couple of states where Trump has not endorsed, but might yet. Arizona is one of them. Blake Masters, who works for Peter Thiel and has his full financial backing, recently released a video saying that Trump won in 2020. The next day Trump appeared at Masters' fundraiser. Will Trump endorse Masters? He would probably like to and might well do it. The only problem is that Masters trails AG Mark Brnovich substantially in the polls and Trump hates to back losers.

Another race where Trump hasn't picked anyone yet is Missouri. There, disgraced former governor Eric Greitens is trying for a comeback against extremely Trumpy AG Eric Schmitt (R), Rep. Vicky Hartzler (R-MO), and Mark McCloskey, the lawyer who became famous for 15 minutes by being photographed pointing a gun at Black Lives Matters marchers in front of his house. Republicans are worried about both Greitens—who tied up his mistress, photographed her nude, and blackmailed her—and Schmitt, who is so far to the right that he could lose suburban voters big time. In any event, a Trump endorsement could shake up the race. (V)

Michael Cohen: Allen Weisselberg Is Not the Key to Prosecuting Trump

On Meet the Press yesterday, host Chuck Todd asked Donald Trump's former fixer, Michael Cohen, if the testimony of the Trump Organization's former CFO Allen Weisselberg is critical to nailing Trump for financial crimes before he became president. Cohen chose his words very carefully, possibly because he is a witness for the SDNY investigation. Still, he said: "So, you know, I would rather just not answer that specific question other than to say that you can bet your bottom dollar that Allen Weisselberg is not, and I truly—I mean this, Allen Weisselberg is not the you know, the key to this."

Weisselberg has been indicted for tax fraud, grand larceny, and falsifying business records. He has pleaded not guilty and is going to fight the charges. It is widely believed that prosecutors indicted him simply to get him to flip and rat on Trump. So far that strategy hasn't worked. But Cohen may know things that outsiders don't know—for example, that there are other people within the Trump Organization who know almost as much as Weisselberg does and who are cooperating. For one, Cohen himself might know quite a bit. And he is definitely cooperating with SDNY.

Nevertheless, Cohen criticized SDNY for not turning the screws on Weisselberg's son, Barry, who worked for the Trump Organization and who got a beautiful apartment overlooking Central Park for years for free. Giving an employee a free apartment is perfectly legal, but the fair market rent on it is considered taxable income. If Barry Weisselberg "forgot" to declare that income on his New York State tax returns, that is tax evasion and very easy to prove.

When Cohen was asked if he helped Trump commit crimes, he admitted that he helped Trump inflate and deflate the value of his assets, depending on whether a high or low value helped Trump. Presumably he has already told this to prosecutors in great detail, explaining which properties were upvalued and which were downvalued and when. If there are paper trails, that alone might be enough to convict Trump without using the testimony of a known liar. Cohen's contribution might be telling prosecutors exactly when and where to look.

Cohen also said one of the things Trump has done this year is grift (his word) off the Big Lie that the election was stolen from him. Cohen also told Todd that if Trump runs in 2024, he expects him to lose again. (V)

Ketanji Brown Jackson Is on the Panel Reviewing Subpoena Case

Judge Ketanji Brown Jackson of the U.S. Court of Appeals for D.C. is widely considered to be the most likely next Supreme Court justice if Justice Stephen Breyer retires or dies while Joe Biden is president and the Democrats control the Senate. She will soon take on a case that is likely to consume her entire confirmation hearing if she is nominated. Along with two other judges on the D.C. court, she will handle the case in which Donald Trump is trying to block a subpoena for records related to the Jan. 6 coup attempt.

Each of the three judges assigned to the case will have to rule on whether former presidents can assert a claim to executive privilege when the current president does not see any need for them to do so. The case could have far-reaching effects. If somebody does not want to obey a subpoena and that person can convince, say, Jimmy Carter, to claim executive privilege, does that get the person subpoenaed off the hook? It is inevitable that the Supreme Court will get the final call on this, but right now all eyes will be on Jackson to see how she might vote on similar cases if she gets a promotion.

If she votes that former presidents may not overrule Congress, Republicans will be all over her during her hearing, if there is one. If she votes that former presidents can block anything they want to for the rest of their lives, Democrats will be all over her. Of course, if she votes that way on the D.C. Court, Biden might decide to find someone else to put on the Supreme Court. No matter what she does, it will be under a microscope, especially if she writes the opinion.

This isn't the first time Jackson has been handed political dynamite, and her past jurisprudence gives a hint how she might rule on this case. When she was a federal district judge, she was asked to decide whether Trump could block a Democratic-led House committee that had issued a subpoena to former White House counsel Don McGahn. In a blistering 120-page decision, she tore into Trump's claim and wrote: "Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings." While the current case differs from the McGahn case in some ways, it is abundantly clear that Jackson does not believe that a former president can tell Congress to go shove it when it does something he doesn't like. (V)

Six Is Much More than Five

In a long piece in the Washington Post, Ruth Marcus argues that having six conservative justices on the Supreme Court is a whole different ball game than having five. In the past, the four conservatives to the right of Chief Justice John Roberts had to carefully negotiate with him on decisions. He didn't want to move too far too fast and break with precedent too easily for fear of damaging the Court's reputation, which is really where all its power comes from. If the public were to come to believe that the "meaning" of the Constitution depends only on which justices are currently sitting on the Court and can change when there is a personnel change, it would lose all of its moral authority and presidents would dare to ignore its rulings openly. Roberts jealously guarded the Court's legitimacy, which frequently annoyed the conservative justices.

Now that there are five solid conservatives, they can safely ignore him since his vote no longer really matters. In cases on gay rights, religion, abortion, voting rights, executive privilege, the environment, guns, states' rights, freedom of the press, and many other issues, the five most conservative justices are likely to start charting their own course very soon and there is nothing Roberts can do to stop them. Marcus calls this "the rule of six." And they are hell-bent on changing America. The Court's approval rating is now at 40%, the lowest in history, but they don't care. They believe they now have the opportunity to remake America in their image and they aren't going to waste it.

Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas are the most radical. Thomas, for example, believes that the federal government may not establish an official religion, but that the states are free to do so if their legislatures so desire. This goes far beyond anything Roberts would agree to. But Roberts, Amy Coney Barrett, and Brett Kavanaugh are no closet moderates. In fact, in some people's eyes, they aren't even conservatives. Harvard Law School professor Charles Fried, who was solicitor general under Ronald Reagan, said: "They [all six] are reactionaries. That's the only correct term for it." Conservatives want to preserve the status quo. Reactionaries want to overturn it and go back to how it used to be.

A few cases this term are going to allow Team Thomas to test drive its new power. Mississippi passed a law that strikes at the heart of Roe v. Wade, giving the justices the opportunity to either rescind the decision altogether or at least allow states to make their own restrictions that de facto make it impossible for abortion clinics to exist (e.g., every doctor there must have admitting privileges at a hospital within 2 miles of the clinic). In its brief, Mississippi argues that Roe was simply an error and nothing in the Constitution forbids states from banning abortions if their legislatures want to do so.

Another case comes from a bit farther north. Maine has areas so rural that there are no public schools. What the state does is issue vouchers to students there so they can attend (private) schools elsewhere. The issue is whether Maine must allow these vouchers at religious schools that explicitly give religious instruction. If the answer is "yes," there goes separation of church and state down the drain. Yet another is a case in which the justices seem to be champing at the bit to kill off affirmative action altogether.

Roberts likes to claim he is a baseball umpire, calling balls and strikes. But in all these cases and others, the justices seem to have little interest in the Constitution or the text of the law. They just prefer certain outcomes to others and will rule to get their way, regardless of what James Madison or Congress actually wrote down. (V)

Beto O'Rourke Is Hit By Fundraising Scams

Former representative Beto O'Rourke (D) is running for governor of Texas. When he ran against Sen. Ted Cruz (R-TX) in 2018, he raised a boatload of money. So naturally, every Democrat in the state is bracing for an e-mail every hour from Beto asking for money to defeat the evil Gov. Greg Abbott (R-TX). And sure enough, the e-mail onslaught has started.

One small issue, though: Most of the e-mails are not from O'Rourke. Scammers figured out that after the announcement, people would be expecting requests for money from O'Rourke, so people who support him won't think twice about it and just click on the link in the e-mail, which takes them to a site that looks like O'Rourke's but is fake. Many people fell for it and "donated" to some scammer's bank account. And armed with a list of "donors," the scammers will surely be back with thank you notes asking for seconds. It is never a good idea to click on any link in an e-mail whose origin you don't know and a terrible idea to enter a credit card number after doing so. In fact, even finding the candidate's actual website to make a donation is tricky. When doing a search, the top hit could be an ad placed by a scammer. Ads are marked as such, but not everyone notices or understands that.

Despite losing out on an unknown number of donations, O'Rourke did manage to raise $2 million from 31,000 donors in the first 24 hours, a record amount of money for this year.

Some of the scammers may be quasi-legitimate. For example, a group could create a super PAC called "Dump Abbott" or even "Beto for Texas" and raise money for it. Maybe there is even a photo of O'Rourke on its website. The money might be used for some other Democrat running for office. If the website is very carefully worded (e.g., mostly attacking Abbott) and there is a tiny footnote somewhere on the site saying that it and the PAC are not affiliated with the O'Rourke campaign, it is probably legal, except for a possible copyright violation relating to the photo. But then it would be up to the copyright holder, not the O'Rourke campaign, to complain or sue.

The fundraising e-mails are getting more aggressive by the day. House conservatives sent one out recently with a subject line of "Your COVID test result." No doubt some people were expecting a test result, so those people certainly read it. The e-mail was about organizing resistance to coronavirus mandates. The RNC has sent out many e-mails with the subject line: "WARNING: Payment Incomplete." The e-mail then explained that if you want to call yourself a Trump Social Media Founding Supporter, you need to pony up and right now. Abbott is also not afraid of tricking the rubes. He is sending out e-mails with "Your Order Confirmation" in the subject line. It was an effort to sell "Let's Go Brandon" wrapping paper for Christmas presents. It might be legit. Novelty political products, like this one, do actually exist.

Fundamentally, people have no way of knowing who sent an e-mail and whether they are who they claim to be. When people are primed for a certain kind of message and a suitable one arrives, they believe it. If enough people are scammed, they may stop making online donations altogether, with the consequence that the big donors once again come to dominate politics, which will probably help the Republicans since they have more big donors than the Democrats do.

Since sending out a bunch of e-mails soliciting money is essentially free, absent some kind of legislation or policy change on the part of the e-mail providers, this will continue forever. Google, Yahoo, and other e-mail providers could put a big dent in the scammers' plans by starting to charge for them. They could say the first 10,000 e-mails you send per month are free, but the next 100,000 cost 1 cent each, then the next 100,000 cost 2 cents each, etc. That would completely change the economics of mass mailings. (V)

Will the Select Committee Leave One Stone Unturned?

Last week, the select committee investigating the Jan. 6. coup attempt sent out a subpoena to Roger Stone, a long-time confidant of Donald Trump. Maybe he will show up. Maybe he won't. But even if he shows up and testifies under oath, will the committee learn anything? After all, Stone has no problem lying to Congress. He has been convicted of lying to Congress five times, but he didn't go to prison because Trump pardoned him. Would he lie again with the expectation that if he is caught and convicted again, Trump will pardon him again shortly after being inaugurated in 2025? Very possible.

So why did the committee bother sending him a subpoena if his testimony is probably less than worthless? It is possible the committee also wants e-mails, text messages, and other documents that Stone may not be capable of forging. These may reveal important information. Or maybe, the committee is fine with him lying and then being indicted and convicted again. After all, if Trump doesn't win in 2024, Stone might actually have to go to prison this time. Pardons apply only to crimes you have already committed, not crimes you might commit in the future. The pardon power was inserted in the Constitution to make it possible for the president to right a great wrong that came to light after someone had been imprisoned for a crime he didn't commit. Also to give the president a carrot to use in order to defuse problematic situations (like, say, Shays' Rebellion). It was never meant to be a general-purpose get-out-of-jail-free card.

The committee has also subpoenaed Alex Jones, who is no more trustworthy than Stone. He is a Sandy Hook conspiracy theorist and also believes the Sept. 11 attacks were an inside job, not the acts of radical Islamic terrorists. Mark Osler, a former prosecutor, has warned that letting Jones and Stone testify makes it look like they have a valid role in the conversation. Former prosecutor Barbara McQuade sees value in getting them on the record and especially confronting them with e-mails or other documents. At the very least, it locks them to one story about how things unfolded and makes it very hard for them to change their story if new facts make it obvious that their first story was made up out of thin air.

Since both Stone and Jones are known liars, the committee might decide to leave them alone and not recommend prosecution. However, on CNN yesterday, Rep. Adam Schiff (D-CA) said that a decision about referring Mark Meadows for prosecution will probably come this week. In contrast to Stone and Jones, Meadows is not someone who simply lies all the time. He is more careful, in part because he might want to run for public office again (he was once a congressman). If asked a very specific question, it is at least possible that he might tell the truth. With Stone and Jones, that is very unlikely.(V)

The Lincoln Project Is on the Rocks

During the 2020 campaign, a bunch of NeverTrump Republicans decided to bring a gun to a gun fight, instead of the Democrats' usual water pistol. This was the Lincoln Project, which collected tons of money and created brilliant and extremely vicious ads, mocking Donald Trump in ways that really got under his skin. For example, this one documenting Trump's low regard for the sanctity of marriage. Can you imagine Steve Schmidt (John McCain's top strategist in 2008) or Stuart Stevens (Mitt Romney's top strategist in 2012) as being the Democrats' darlings? They were. For a while.

But that was then and this is now. The group has imploded. One of the founders, Rick Wilson, has encouraged Trump to run in 2024. Long-time conservative Charlie Sykes said: "I think this is the mother of bad ideas. But also the father, brother, sister, and cousin of a truly bad idea."

But that is just politics. Another co-founder, John Weaver (John Kasich's top strategist in 2020) has been accused of sexually harassing young men and the fallout from that has gone on for months, leading to the resignations of many top people and advisers. Some have called for the group to be shut down.

A recent stunt backfired spectacularly. It evoked the march on Charlottesville during the recent Virginia gubernatorial election. Nobody thought it was funny and many thought it was really stupid. Also, the group has financial problems. In the first half of 2021, it took in $5 million and spent $9 million. That can't go on indefinitely, especially not when leaders are quitting right and left and the group is in disarray. In addition, with no Donald Trump to kick around, attention to the group is faltering.

Some of the NeverTrumpers involved feel like they don't have a home. They certainly don't belong in the modern Republican Party, but they also don't belong in the Democratic Party. So where do they belong? The group is still getting small-dollar donations online, but it is a shadow of its former self and may not make it to 2024.

Still, it showed that a group that created truly nasty ads could attract enough financial support to hire really sharp people to continue making them. The Democratic Party would never go there, but it is entirely possible that in 2024 some outside group could hire a creative ad maker and could pull off the same stunt again. The model is fairly simple. You get a talented ad maker to produce an ad that goes straight for the jugular and put it on YouTube. It goes viral and the money starts rolling in so you can fund the next ad. Rinse and repeat. (V)

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