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Select Committee Releases Video of Reconnaissance Tour on Jan. 5

Yesterday, the Select Committee investigating the coup attempt released video footage of Rep. Barry Loudermilk (R-GA) leading a tour of the Capitol on Jan. 5, the day before the riot. The tour went on for hours. Here is a bit of it:

Some of the people on the tour showed up on Jan. 6 and threatened Democratic lawmakers. One of them said: "We're coming in like white on rice. For Pelosi, Nadler, Schumer, even you, AOC. We're coming to take you out. We'll pull you out by your hairs." Loudermilk explained that these people were just constituents he had met at church who happened to be in town and asked for a tour.

Even without digging too deeply, there are several problems here. First, the Capitol was closed in Jan. 2021 due to COVID-19. No tours were allowed. Loudermilk was in violation of House rules by giving a tour at all when the building was closed. Second, why were the "constituents" in town the day before Jan. 6? Just a coincidence? Apparently not, since some of them were recorded on Jan. 6 as well. Third, the video shows the "constituents" photographing security checkpoints, plain stairways and hallways—things of little interest to most tourists, but potentially of great interest to people planning to run amok in the building the next day.

An interesting question is why the Committee released the video before today's hearing. The Committee has asked Loudermilk to testify before the Committee and he has steadfastly refused. They asked him again yesterday. It is possible that by releasing the video and telling its side of the story they will put pressure on Loudermilk to show up and tell his story, otherwise the only story most people will hear is the Committee's.

Loudermilk isn't the only House member suspected of giving reconnaissance tours. Several members of the House have said they saw Rep. Lauren Boebert (R-CO) in a tunnel under the Capitol giving a tour to a large number of people just days before the riot. Boebert has denied it. In addition, other members have said that in the days before Jan. 6, they observed an unusually large number of outside groups touring the Capitol, which was noticeable given that, once again, the building was officially closed due to COVID-19 and no tours were allowed. (V)

Outstanding Lines from Monday's Hearing

Sometimes congressional investigations lead to lines that last for decades. Think: former senator Howard Baker's question about Richard Nixon: "What did the president know and when did he know it?" It's pretty hard to figure out in real time which lines will live forever, but CNN's Chris Cillizza tried again for the second hearing, just as he did for the first one. Also, like the last time, this is a quiz. Who said each one? Answers are at the bottom of the page.

  1. The Trump campaign legal team knew there was no legitimate argument to overturn the election, and yet President Trump went forward with his plan for January 6 anyway.
  2. Mr. Trump decided before the election ... that he would claim it was rigged.
  3. The mayor was definitely intoxicated.
  4. I don't know that I had a firm view of what he should say.
  5. My recommendation was to say that votes were still being counted. It's too early to tell, too early to call the race but we're proud of the race we ran, and we think we're in good position.
  6. Right out of the box on election night, the President claimed that there was major fraud underway. I mean, this happened, as far as I could tell, before there was actually any potential of looking at evidence.
  7. Very, very, very, very bleak.
  8. I didn't mind being considered part of Team Normal.
  9. Not the approach I would take if I were you.
  10. The Department doesn't take sides in the election, and the department is not an extension of your legal team.
  11. I told him that the stuff his people were shoveling out to the public was bullshit.
  12. There was never an indication of interest in what the actual facts were.
  13. The 2020 election was not close.
  14. The Trump campaign did not make its case

We think Cillizza missed the one where former AG Bill Barr said that if Trump really believed he won, he was detached from reality. (V)

Inflation Meets Bone Saws

Everything is getting more expensive, and that surely includes tools orthopedic surgeons use. But that's not what we had in mind here. Rather it is the imminent resetting of the relationship between the U.S. and Saudi Arabia. After Saudi Crown Prince MBS, variously known as Mohammed bin Salman and Mister Bone Saw, ordered the murder and dismemberment of Washington Post journalist Jamal Khashoggi in 2018, Donald Trump said killing journalists was no big deal and maybe MBS was responsible and maybe he wasn't. In contrast, the Senate passed a resolution specifically holding MBS responsible. Joe Biden felt the same way. In his election campaign, Biden called Saudi Arabia "pariahs" and promised to punish the country.

But that was then and this is now. Biden now needs MBS' help in taming the inflation that could murder and dismember the Democrats in November. In particular, he would like MBS to ramp up oil production enormously in order to get gas prices down. Specifically, he is going to visit Saudi Arabia shortly to—we are trying to think of the official verb here, oh wait—beg MBS to increase production immediately.

MBS hasn't signaled his response yet. It's complicated. He needs the U.S. to keep supplying him with weapons, both to fend off foreign enemies (e.g., Iran) that might be interested in taking over the Saudi oil fields and also to subjugating his own population. He also wants to avoid sanctions, like those that hit Russia. Simply saying "no" when Biden asks for more oil isn't going to go over well. On the other hand, he certainly doesn't like the Democrats calling him an autocrat and a murderer. Finally, everyone understands that there will never be peace in the Middle East unless Saudi Arabia is on board with the deal.

Biden realizes that when figuring out your foreign policy, you sometimes have to be nice to folks you actually don't like much. And now he needs help—and fast—as the midterms are approaching. Saudi Arabia is the only "friendly" country that can ramp up a lot of oil production on a dime and Biden knows this. But he also understands the PR aspects and how the Republicans (and some Democrats) will attack him for letting MBS off the hook.

His solution is to emphasize that his trip to Saudi Arabia is to have discussions with MBS' father, King Salman, who is officially in charge but who is widely believed to have dementia and to have turned the country over to MBS. Biden's verbal gymnastics aren't going to fool anyone, though. Over a dozen human rights groups have condemned the trip, saying it will only embolden MBS to be more aggressive in the future. That may be true, but Biden also knows that China has an infinitely worse human rights record (e.g., the genocide of the Uyghurs) and yet he and Chinese President Xi Jinping are still on speaking terms. Sometimes geopolitical, economic, or domestic political concerns override human rights issues.

A complicating factor here is that Saudi Arabia is also waging war against Yemen. Biden wants that to stop. Finally, MBS isn't all bad. He is actively trying to modernize his country, neutralize religious fanatics, and give women more rights. As an example, the Saudi ambassador to the U.S., Reema bin Bandar bin Sultan bin Abdulaziz Al Saud, is a woman. She is the first female ambassador in the Kingdom's history, so MBS is at least somewhat serious about promoting women to top positions. On her job application she probably noted that she has a bachelor's degree from George Washington University and her father was Saudi ambassador to the U.S. for 22 years. By appointing the daughter of a highly respected Saudi diplomat, MBS was trying to blunt criticism from conservative Saudis who have no interest in giving women any rights at all. Secretary of State Antony Blinken recently said: "Statecraft often involves making difficult choices." (V)

Is the Select Committee Even Asking the Right Question?

Above we mentioned Howard Baker's famous question: "What did the president know and when did he know it?" From the Select Committee's hearings so far, it looks like panel members are basically asking the same question of a more recent former president.

Mona Charen, a conservative anti-Trumper at The Bulwark, recently wrote a column arguing that is the wrong question. Everyone knows that Trump doesn't distinguish right from wrong or facts from lies. In his brain, the categories are "it helps me" and "it hurts me" and all incoming information is filed in the appropriate bin. The truth or falsity of a new bit of information doesn't play a role in bin selection. So why does it matter whether he knew he lost and knew it as early as Nov. 8 or 9, 2020? That data point would just have been filed under "it hurts me." Whether it was true or not wouldn't play an actual role in his thinking.

Charen argues that the real question is: "What is it that he knew or should have known?" That is the standard in tort law. If you carefully avoid "learning" something that you should absolutely know under some circumstances, that is negligence and ignorance doesn't get you off the hook. For example, suppose you are a mile south of the U.S. border in Mexico and someone offers you $10,000 to drive their car over the border and you just do it. If you get caught, the judge won't accept "I didn't know there were illegal drugs in the trunk" as an excuse. You should have looked.

If Trump wanted to find out who really won the election, there is a lot he could have done—and carefully avoided doing. He could have asked how the voting machines in Georgia could be rigged when two hand counts gave the same results as the machine count. He could have asked how Republican candidates all over the country (e.g., Senate races in Iowa, Maine, Montana, and both Carolinas) did very well despite "crooked" elections. He could have asked how Republicans picked up 13 House seats if the Democrats had imported millions of illegal immigrants to vote. He could have noticed that blaming the coup attempt on both "rowdy tourists" and Antifa doesn't make sense. But he didn't want to know the truth because he knew it would be inconvenient. And simply avoiding it and not listening to anyone trying to tell it is willful negligence. (V)

Down-ballot Races Nobody Is Looking At

There is a lot of media attention on some races for the Senate and House, and in a couple of cases for governor (e.g., Wisconsin, Michigan, and Pennsylvania), but that's about it. That is unfortunate, since some of the down-ballot race are really important. In particular, in a number of states there are races for state Supreme Court justice. If Roe v. Wade bites the dust, state laws will determine whether abortion is legal in the state. In some cases, there are very old state laws that may not apply to modern circumstances (e.g., ordering abortion pills from an out-of-state pharmacy), so it will be up to the state Supreme Court to handle these cases. Also, some states have privacy and other relevant provisions in their Constitution, so it will be up to the state Supreme Courts to decide what those provisions actually mean. And—like it or not—who is on the Court matters, so the elections for justice matter, too.

Mike Gonidakis, president of Ohio Right to Life, put this bluntly: "Everyone wants to talk about the sexy United States Senate race, or the governor's race. When it comes down to it, the state Supreme Court is going to determine abortion jurisprudence in the state of Ohio." Some people do have state Supreme Court races on their agenda, In 2020, $100 million was spent on them, but the media did a terrible job of covering that. That amount was a record, but it could be broken in 2022.

In general, there are half a dozen main methods states use to fill state judicial positions:

  1. Partisan election, with those little (D) or (R) labels after the candidate's name (8 states)
  2. Nonpartisan election (13 states)
  3. Gubernatorial appointment (possibly after confirmation by the state Senate or other body) (5 states)
  4. Assisted appointment by the governor (21 states)
  5. Legislature appoints judges and justices (2 states)
  6. The Michigan method (1 state)

In the assisted appointment category, a commission of some sort makes a list for the governor to choose from. In some states, the governor appoints members of the commission; in others, the state bar or some other group association does.

Sometimes the rules for choosing the state Supreme Court justices differs from how state judges are chosen. This map shows the method used for selecting state Supreme Court justices in all 50 states. D.C. uses an assisted appointment:

How_state supreme court justices are chosen

However, even in states where the governor gets to appoint justices, with or without some input from a commission, in most states an appointed justice has to run for election to keep his or her job. In a way, this is analagous to an appointed senator having to run in a special election to keep his job. This year, 32 states are holding (or have held) elections for 87 justices. Here is a list of the elections.

State Seats Election type Election date
Alabama 2 Partisan November 8, 2022
Alaska 1 Retention November 8, 2022
Arizona 3 Retention November 8, 2022
Arkansas 3 Nonpartisan May 24, 2022
California 4 Retention November 8, 2022
Florida 5 Retention November 8, 2022
Georgia 3 Nonpartisan May 24, 2022
Idaho 2 Nonpartisan May 17, 2022
Illinois 4 Partisan/Retention November 8, 2022
Indiana 1 Retention November 8, 2022
Iowa 2 Retention November 8, 2022
Kansas 6 Retention November 8, 2022
Kentucky 4 Nonpartisan November 8, 2022
Louisiana 1 Partisan December 10, 2022
Maryland 1 Retention November 8, 2022
Michigan 2 Nonpartisan November 8, 2022
Minnesota 2 Nonpartisan November 8, 2022
Missouri 2 Retention November 8, 2022
Montana 2 Nonpartisan November 8, 2022
Nebraska 4 Retention November 8, 2022
Nevada 2 Nonpartisan November 8, 2022
New Mexico 3 Partisan/Retention November 8, 2022
North Carolina 2 Partisan November 8, 2022
North Dakota 1 Nonpartisan November 8, 2022
Ohio 3 Partisan November 8, 2022
Oklahoma 4 Retention November 8, 2022
Oregon 1 Nonpartisan November 8, 2022
South Dakota 2 Retention November 8, 2022
Tennessee 5 Retention August 4, 2022
Texas 6 Partisan November 8, 2022
Utah 1 Retention November 8, 2022
Washington 3 Nonpartisan November 8, 2022
Total 87    

With 32 states holding elections for justices, including swing states like Arizona, Florida, Georgia, Michigan, Nevada, and North Carolina, among others, a lot of the decisions next year are going to depend on what happens on Nov. 8th this year. Some of the elections are nominally nonpartisan, but candidates are usually pretty good about signaling how they will vote on everything. If you hear a lot about "conservative principles," color that seat red. If you hear about "equality," color that seat blue. These races are way under the radar, but they are really important. (V)

Republicans Are Going Scorched Earth in Arizona Senate Primary

Republicans believe that Sen. Mark Kelly (D-AZ) is vulnerable and are fighting bitterly over the Republican nomination to oppose him. There are three serious contenders. AG Mark Brnovich, who is the only one who has ever won an election before; Blake Masters, who has the endorsement of Donald Trump and the financial backing of Peter Thiel; and Jim Lamon, a wealthy businessman who is self-funding his campaign. The race has turned nasty.

Lamon has dumped millions of his own dollars into rabidly attacking Masters for his ties to Thiel. He has run $13 million worth of ads calling Masters a fake and a puppet who strings are being pulled by Big Tech (i.e, Thiel). Another ad blasts Masters for being pro-China. Also, Lamon's oppo researchers have dug up a 17-year-old quote from Masters saying that the border with Mexico is just a "line in the sand." And that is just one of the unwise-for-a-Republican things Masters has said. Masters' supporters and outside super PACs are firing back in kind, accusing Lamon's business (solar energy) of having ties to China. Under calmer conditions, we would think that a guy who made millions in the solar energy business would do well in Arizona, since the state has quite a bit of the raw material.

Brnovich is lying low for the moment, letting Lamon and Masters clobber each other. If enough people become disgusted with both of them, he could benefit from the battle. The primary is fairly late (Aug. 2), which means that if Masters or Lamon emerges on top, they will be bloodied and have a fairly negative image and not much time to recover. If Brnovich wins, the big question is what Donald Trump will do, given that he has already repeatedly attacked the AG for not intervening to hand him the state in 2020. If Trump does swallow hard and back Brnovich in the general election if he is the nominee, Kelly is sure to play lots of footage of Trump attacking Brnovich. How will that play out with Republicans in the general election?

Insiders think that the race is going to get a lot nastier fairly quickly. All three of them really want to win. Meanwhile, Kelly is cruising to the nomination and piling up money. (V)

Bannon Also Goes Scorched Earth--and Gets Nowhere

When the House Select Committee issued a subpoena to Steve Bannon to appear before it, he just tore it up. This led to the House citing him for contempt of Congress and the Dept. of Justice indicting him for same. The trial is set to begin in a couple of weeks. Meanwhile, Bannon's lawyers made a whole flurry of motions claiming the House had no grounds to subpoena him, the Select Committee wasn't approved by Minority Leader Kevin McCarthy (R-CA), his refusal was justified by executive privilege, and a whole raft of other things. Judge Carl Nichols, a Donald Trump appointee, wasn't having any of it, and threw them all out. As it stands now, the trial should begin in July, although Bannon is likely to ask for an extension. Trump pardoned Bannon, but pardons cover only crimes committed before the pardon was issued. They do not give unlimited permission to commit new crimes going forward.

There was one bright spot for Bannon, though. The judge had some harsh words for the prosecutors. He said they crossed lines going after the phone and e-mail records of his attorney, Robert Costello. But he added that such conduct was not sufficient to dismiss the case. He did reserve the right to revisit the issue later, though.

The judge also said that a decision on how to instruct the jury will come later—after the jury is selected. So, as things stand now, Bannon will be tried. If he is found guilty, that might give AG Merrick Garland the courage to indict other people who have refused to testify, such as Mark Meadows and Peter Navarro. It could also put the fear of God in future recipients of subpoenas. Of course, if Bannon skates, the whole concept of contempt of Congress is a dead letter. Nobody will ever obey a congressional subpoena again. (V)

Poll: Fetterman Leads Oz

A new Suffolk University poll has Lt. Gov. John Fetterman (D-PA) leading Mehmet Oz (R) 46% to 37%. After a closely fought primary, Republicans are starting to coalesce around Oz. About 76% of Republicans say they will vote for him. This race is the Democrats' #1 pickup opportunity.

For most voters, the economy is the top issue. They fear inflation and a recession. Usually, the party in power gets the blame when the economy goes south. However, Fetterman can argue that he is an outsider and not responsible for what is going on in D.C. That may or may not work if there is a red wave, however.

In another race that will be widely followed, Pennsylvania AG Josh Shapiro (D) has only a 4-point lead over far-right state Sen. Doug Mastriano (R). The Republicans control the state legislature, so if Mastriano wins, expect a slew of new laws making voting harder, banning all abortions, and implementing much more of Donald Trump's agenda. (V)

Jewish Congregation Files Suit over Florida Abortion Law

A synagogue in Boynton Beach, FL, has sued the state over the new Florida law that bans all abortions after 15 weeks. The suit states that under Jewish law, an abortion is required if that is needed to protect a woman's mental or physical health. For example, if a woman becomes suicidal after 15 weeks when it finally dawns on her that she has no way to terminate an unwanted pregnancy, under Jewish law, she must be offered an abortion.

The suit argues that the law restricts their members from freely exercising their religion and is thus unconstitutional. If the case makes it to the Supreme Court, it would be one of the few in which a group other than Christians was claiming some law prohibited the free exercise of their religion. A more typical case is a Christian baker refusing to bake a wedding cake for a gay couple on religious grounds. Given the current makeup of the Supreme Court, the case from the synagogue would put some of the justices in an uncomfortable position.

However, it is our guess that the case won't make it to the Supreme Court because no one has been damaged yet. If at some point one of the members of the congregation has mental or physical health issues after 15 weeks of pregnancy and tries to get an abortion in Florida and is refused everywhere, then she would have a case that the law is interfering with her constitutional right to follow her religion. So even if the current case is thrown out for lack of standing, it could come back when an actual woman who wants an abortion after 15 weeks on religious grounds sues. (V)

Answers to the quiz above
  1. Liz Cheney
  2. Zoe Lofgren
  3. Jason Miller
  4. Ivanka Trump
  5. Bill Stepien
  6. Bill Barr
  7. Bill Stepien
  8. Bill Stepien
  9. Jared Kushner
  10. Bill Barr
  11. Bill Barr
  12. Bill Barr
  13. Ben Ginsberg
  14. Ben Ginsberg

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