The party of “small government” or the party of medical overreach.

 

Two years ago today, the Supreme Court made America a more dangerous place. Dobbs took away the constitutional right to an abortion and women's bodily autonomy. Because of Dobbs, hard right legislators in over 1/3 of states felt emboldened to pass near total abortion bans. The impact has been devastating -- and continues to get worse as time goes on.  It's well-established that limiting access to abortion care does two things: it makes care available only to wealthy folks who can afford to travel for a procedure, and it makes abortion more dangerous for everyone else. Their decision was unjust and inhumane — and the majority of Americans do not support it. We have the tools we need in the House to codify Roe and reestablish reproductive freedom for millions of Americans. We just need the right people in elected office to do it. Will you chip in $3 today and help us reclaim control of Congress and codify Roe? Donate Now If you've stored your info with ActBlue Express, we'll process your contribution instantly:   $5 $15 $25 $50 OTHER AMOUNT On the second anniversary of the Dobbs decision, we are reminded of the importance of electing pro-choice Democrats up and down the ballot. In the last two years, the GOP has been emboldened to further undermine abortion care, and attack contraception and IVF. Today, will you join me in recommitting to reproductive rights for all? We must take back control of Congress and make universal and undisputed abortion access the law of the land. Chip in now and help us make Dobbs obsolete. In solidarity, Jim    Express Donate: If you've stored your info with ActBlue Express, we'll process your contribution instantly:   $5 $15 $25 $50

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The Week Ahead

May 26, 2024

JOYCE VANCE MAY 27

The most difficult part of my job as a prosecutor wasn’t preparing for trial or even handling appellate arguments. It was “The Wait”—the hours or days between when a jury got the case and when they delivered their verdict. The wait is excruciating in a case where you’re almost certain the jury will convict and even more so in a case that’s a closer call for whatever reason.

That’s where we’ll find ourselves in the week ahead. Waiting for a verdict in the Manhattan case.

Just to give you some idea of how rough of a time this is for prosecutors, I turned to some friends, former Obama U.S. Attorneys, for their thoughts. Barb McQuade said she would pretend to clean her office. Jenny Durkan, who was the U.S. Attorney in Seattle, described it as a time when you are too nervous to eat chocolate and your heart races every time the phone rings. Another friend, Laura Davis-Duffy, in San Diego, shared that she used that time to go eat with the trial team because they were too busy and in the throws to eat much during the trial. But my favorite was my friend Wendy Olson in Idaho, who said she would read old issues of People Magazine that they kept at the courthouse while she was waiting for a jury to come back.

One of our other friends, Melinda Haag, in San Francisco, had a great story about waiting on a verdict when she was on the defense side in a federal criminal securities fraud bench trial. It took the judge (who was sitting in place of a jury) three months to sort out a very complicated case with multiple defendants. Melinda’s client was acquitted, but she told us she took up yoga to help deal with the stress of waiting!

That’s the stuff that The Wait is made of, and we’re all going to go through it together this week. My former DOJ and current MSNBC colleague Chuck Rosenberg summed it up perfectly: “Miserable time for me. Hated it. I was completely useless while waiting.”

Fortunately, there will be some other distractions while the jury is deliberating this week. Hopefully, that won’t include Trump posting about the case while the jury is working. He’s spent time over the weekend attacking Judge Merchan and Manhattan DA Alvin Bragg. His lack of self-restraint is truly remarkable.

Supreme Court Reminder

There is just over a month left to go in this term of court for SCOTUS. We expect them to announce opinions every Thursday through the end of June, and they’ll likely add on additional “opinion days” as we get closer to the end. There is a list of cases before the Court this term that shows which are still pending, with brief descriptions, here. Some of the big ones that are left include the mifepristone case, Loper Bright (the extent of administrative agency powers), and, of course, the presidential immunity case brought by Donald Trump. There are also a number of important cases having to do with criminal law and criminal procedures, and others involving privacy issues that are yet to be decided.

On Friday, Justice Sonia Sotomayor spoke at Harvard’s Radcliffe Institute, where she told the audience, "There are days that I've come to my office after an announcement of a case and closed my door and cried. … There have been those days. And there are likely to be more." But ultimately, she delivered a message of power. “There are moments when I’m deeply, deeply sad,” Justice Sotomayor said. “And there are moments when, yes, even I feel desperation. We all do. But you have to own it. You have to accept it. You have to shed the tears, and then you have to wipe them and get up and fight some more.”

Countdown in the Mar-a-Lago Case

Friday night, Special Counsel Jack Smith filed a motion with Judge Aileen Cannon to change the conditions of pre-trial release Donald Trump must abide by to remain free on bond pending trial.

Smith wants Trump to quit telling lies about the FBI/DOJ/Joe Biden targeting him for execution when the search warrant at Mar-a-Lago was executed. Leaving aside the fact that agents took excruciating care to make sure Trump would not be home when the warrant was executed, it’s also standard FBI policy to include a reminder for agents on when the use of deadly force is authorized as part of an operations plan. That’s nothing approaching authorizing an assassination attempt on Trump. The same policy was part of the ops plan when Joe Biden’s homes were searched, voluntarily—because, unlike Trump, Biden advised the Bureau he had found classified materials and consented to them searching to make sure everything was retrieved.

Smith told the court that Trump is “falsely suggesting that they [agents] were complicit in a plot to assassinate him,” and that his words are exposing them, some of whose identities will become public at trial because they will be witnesses, “to the risk of threats, violence, and harassment.” The deadly force policy prohibits the use of deadly force except “when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.” Trump, according to exhibits attached to Smith’s motion wrote that “the FBI ‘WAS AUTHORIZED TO SHOOT ME,’ was ‘just itching to do the unthinkable,’ and was ‘locked & loaded ready to take me out & put my family in danger.’”

Trump’s lawyers objected to the motion being filed ahead of the holiday weekend. Smith explained in a footnote: “The Government has contacted counsel for defendant Trump, who stated that they object to the Motion and the timing of the conferral on a holiday weekend; it is their position that the Government has not provided an opportunity for meaningful conferral. They do not believe that there is any imminent danger, and asked to meet and confer next Monday. However, within just the last few hours, Trump has continued to issue false statements smearing and endangering the agents who executed the search. See https://truthsocial.com/@realDonaldTrump (‘reTruthing” statement claiming that the FBI was authorized to use “‘Lethal Force’ on Trump or anyone at MAL – WHILE the FBI/DOJ plants evidence to frame Trump!!!’).”

There are at least two reasons Judge Cannon should grant Smith’s motion. Trump’s conduct is a threat to the safety of law enforcement and also to the integrity of the case—his conduct could prejudice potential jurors or frighten witnesses off of testifying truthfully. Smith reminded Judge Cannon that previously, she “underscored” the court’s “independent obligation to protect the integrity of this judicial proceeding.” Adding new conditions to a bond that a defendant has to abide by if he wants to remain free pending trial is common when problems arise. The statute that governs this type of situation, is 18 U.S.C. § 3142(c)(1)(B)(xiv), authorizes judges to impose conditions on a defendant in order to assure the safety of other people and the community.

Why did Smith go this route instead of asking for a gag order? That’s a great question, and I think it suggests where Smith is headed. 18 U.S.C. § 3731 is the statute that governs appeals that are taken by the United States (rather than by a defendant). It specifically authorizes the government to appeal if a district judge denies a motion to modify the conditions of release.

That’s what this is all about. Donald Trump isn’t the only one who can take an appeal for strategic reasons. Judge Cannon has had real trouble ruling for the government in routine motions that clearly merited that treatment. If she rules against them here, they’ll be prepared to take a quick appeal. The rules give them 30 days, but it won’t take anything close to that.

The more pressing question, especially since this is Judge Cannon, is what the government does if she sits on the motion, as she has on so many others in this case, without ruling or even scheduling a hearing. Smith will likely be politely persistent at first, asking her to schedule the hearing. But ultimately, and especially if Trump continues with his threats, Smith is likely to file a writ of mandamus with the Court of Appeals for the Eleventh Circuit. We’ve encountered mandamus before. Last July, Trump tried, unsuccessfully, to use the writ to prevent Fani Willis from indicting him. Mandamus asks an appellate court to order a trial judge to do something they are obligated to do but won’t or to refrain from doing something they are not permitted to do. The duty involved must be purely administrative; for instance, judges are required to decide motions in cases in front of them in a timely fashion. Mandamus cannot be used to ask a judge to decide an issue a certain way—those substantive disputes are the subject of the regular appellate process. Mandamus can be used only in very limited circumstances like this. If the Eleventh Circuit has any appetite to force Judge Cannon to handle the case properly, this would be their opportunity.

While we consider how long the countdown will be until Smith gets his appeal one way or the other, it’s also worth contemplating what’s going on here. Donald Trump, who has argued before the Supreme Court of the United States that a sitting president has absolute immunity for all conduct, including using SEAL Team Six to assassinate a rival is accusing Joe Biden of…

You get the point.

Roulette with Our Rights

Griswold v. Connecticut is the 1965 Supreme Court decision that legalized birth control. Last week, Tennessee Republican Senator Marsha Blackburn called the decision “constitutionally unsound.” Blackburn, formerly a member of the Tea Party faction of the Republican Party and now staunchly pro-Trump, is not a lawyer.

The same folks who laughed when women became concerned about Roe v. Wade after Trump confirmed three Supreme Court justices during his time in office will push this one aside. That would be a mistake. Trump said last Tuesday during an interview with KDKA-TV in Pittsburgh that he was open to supporting contraceptive regulations. He was quick to walk it back later in the day, saying he has "never, and will never advocate imposing restrictions on birth control, or other contraceptives.” With Trump, though, once the cat is out of the bag, the issue is live. A week ago, Virginia Governor Glenn Youngkin, who has endorsed Trump, vetoed two laws that would have protected Virginians’ ability to obtain and use contraception if a federal ban was ever passed. Youngkin tried to have his cake and eat it too, claiming he supports contraception but vetoed the bills to "uphold the fundamental right of parents to make decisions concerning their children's upbringing and care.”

They are, in a word, playing roulette with our rights. The ability to engage in family planning is essential if women are to have control over the course of their own lives.

Youngkin's approach mirrors how conservatives came after abortion following Roe. They restricted minors’ access without parental consent. The justification is hollow. Parents’ rights shouldn’t trump those of an 11-year-old girl who has been the victim of incest. She shouldn’t need their approval to abort a fetus that results from her victimization. But parents’ rights is an important rallying cry on the right, and it’s likely to be the gateway drug for courts looking to eliminate Americans’ rights to contraception.

Remember the ads about the Republican congressman in your bedroom? Next up is Justice Alito deciding what you can get at your pharmacy. It’s a slippery slope.

We’re in this together,

Joyce

POLITICO Nightly: The right’s fascism problem

 

BY IAN WARD Former President Donald Trump speaks to supporters during a rally on Feb. 17 in Waterford, Michigan. | Scott Olson/Getty Images UNFORCED ERROR — Since Donald Trump emerged on the national political scene in 2015, journalists and pundits have been debating whether it’s appropriate to compare him and the MAGA movement to the fascist movements of 20th-century Europe — and, more specifically, to the Nazism that gained traction in Germany throughout the 1920s. Some of Trump’s critics — including Biden’s campaign — argue that Trump’s incendiary rhetoric and authoritarian behavior justify the comparison. Meanwhile, Trump’s defenders — and even some of his more historically-minded critics — argue that the comparison is ahistorical; that he’s not a true fascist. Yet the ongoing “f-word debate ” seems to ignore one key dynamic: Trump and his campaign keep inviting the comparison themselves. Trump’s latest self-inflicted juxtaposition came on Monday evening, when Trump’s official Truth Social account shared a pro-Trump video containing a reference to the “unified reich” — echoing the term that Adolf Hitler and the Nazi party used to refer to the fascist empire that they aspired to create before the Second World War. The video was deleted from Trump’s account, and a Trump campaign spokesperson promptly stepped in to clarify that the clip was “not an [official] campaign video,” adding that it was “reposted by a staffer who clearly did not see the word.” The Associated Press subsequently reported that the language in the video, which featured old-timey newspaper copy in the background, was referring to the 19th century unification of Germany, not Hitler’s Third Reich. It was copied from a Wikipedia entry that said: “German industrial strength and production had significantly increased after 1871, driven by the creation of a unified Reich.” (The specific date from the Wikipedia article was not visible in the video that Trump shared.) But the political damage was already done: Within a few hours, an account associated with the Biden campaign had already posted screenshots of the video to X , claiming that the Trump campaign was “echoing Nazi Germany.” Regardless of how or why the video made its way onto Trump’s social media feed, the incident highlights a broader problem for the GOP: Right-leaning corners of the internet are absolutely inundated with fascist or fascist-adjacent content, and that content is increasingly making its way — either intentionally or accidentally — into more mainstream conservative discourse. After all, this isn’t the first time that the porous digital boundary between the online far-right and the MAGA movement has created real-world political problems for Trump. In July 2015, during Trump’s first bid for the White House, his campaign’s official Twitter account posted — and then quickly deleted — an image featuring Nazi soldiers reenactors , superimposed between the stripes of an American flag. At the time, the executive vice president of the Trump Organization — a fellow by the name of Michael Cohen — blamed the incident on a “young intern” who apparently “did not see very faded figures within the flag.” The problem is not unique to Trump. Last year, Ron DeSantis’s presidential campaign fired a staffer who reposted a video featuring the Nazi sonnenrad symbol on an official campaign social media account. In a now-familiar refrain, a DeSantis campaign spokesperson wrote the incident off as a mistake by a young staffer. The credibility of these explanations has been drawn into question by Trump’s own invocations of fascist language — including his recent comments calling immigrants “vermin” who “poison the blood” of America — as well as his repeated overtures to white nationalist figures like Nick Fuentes . During his time in office, Trump reportedly claimed that Adolf Hitler “did some good things ” and berated his generals with insults like “you f—king generals, why can’t you be like the German generals … in World War II,” according to the account of former White House Chief of Staff John Kelly. Yet in some respects, the narrow focus on Trump’s actions obscures the broader problem for the GOP, especially as campaigns lean more heavily on digital content to spread their message: The conservative internet is so thoroughly saturated with fascist and neo-Nazi content that it’s increasingly difficult for campaigns operate in right-leaning spaces online without running into it. The problem has gotten so bad that some conservatives are starting to quietly sound the alarm. In March, the conservative activist Chris Rufo took to X to note the proliferation of “Kanye-style antisemitism, right-wing identitarianism, online grifting [and] extreme conspiratorialism” on the online right, nothing that, “The economics of online discourse are increasingly at odds with forming and mobilizing a successful political movement.” “It’s getting insane,” Rufo wrote . “We have a problem on the Right.” As Rufo’s critics pointed out, Rufo himself has had a central role in turning online trolling and “shitposting” into a powerful tool that Republicans wield to achieve their real-world political aims. But as the latest incident with the Trump campaign shows, Rufo was not wrong to note that the proliferation of neo-fascist content online creates a potential liability for the Republican Party. The question now is how serious of a liability it actually is. The Trump campaign’s past run-ins with the fascist right have done little to weaken his support within the GOP — and the blowback to them may have helped solidify his support by fueling the narrative that the media is trying to gin up new controversies to attack Trump. Will this latest incident be any different? If recent history is any guide, don’t count on it. Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com . Or contact tonight’s author at iward@politico.com or on X (formerly known as Twitter) at @ianwardreports .   TRUMP ON TRIAL DEFENSE RESTS — The defense rested in the Trump trial today, without former President Donald Trump taking the stand. WHAT’S NEXT — Both the prosecution and the defense have now rested their cases — but the jury won’t start deliberating until next week . Typically, the case would move quickly to closing arguments, but a few scheduling issues will delay the final phase of the Trump hush money trial. First, the lawyers and the judge have begun to meet for a “charging conference” to hammer out how the judge will instruct the jurors before they begin deliberating. That conference began at 2:15 p.m. today. Tomorrow is a day off (as the trial typically does not meet on Wednesdays). Friday is a scheduled day off as well. Justice Juan Merchan could have tried to set closing arguments for Thursday — but he seems to want to give jurors their instructions immediately after they hear closing arguments. And if closings lasted all day on Thursday, there would be no time for instructions before the four-day holiday weekend. There is “no way that we can possibly do what needs to do in any kind of a cohesive manner” and get it done this week, Merchan said. CHARGING INSTRUCTIONS — The “charging conference” has begun — a session in which the judge is hearing arguments over how he should instruct the jury next week after closing arguments. At Justice Juan Merchan’s direction, the lawyers have begun with the potentially crucial issue of how the New York state charges against Trump — falsifying business records — interact with federal law, namely the Federal Election Campaign Act, or FECA. Defense attorney Emil Bove wants the judge to tell jurors that, to convict Trump of felonies for the business-records charges, they need to find that he conspired with others to “willfully” violate FECA because that is what would be required under federal law. “To violate New York election law, it’s only a crime if it has a criminal object,” Bove said. “If it’s a noncriminal violation, you’re only talking about a civil conspiracy at most.” Prosecutor Matthew Colangelo argued that even the intent to commit a civil violation of FECA could support a criminal conviction under the New York state law where the defendant is using “unlawful means.” Merchan suggested he may be leaning toward the Trump camp but made no immediate ruling. Also discussed at the charging conference today were issues of whether the jury should receive examples of campaign-related expenses , the function of the press and the concept that hush money payments alone do not constitute a crime .   THE GOLD STANDARD OF POLICY REPORTING & INTELLIGENCE: POLITICO has more than 500 journalists delivering unrivaled reporting and illuminating the policy and regulatory landscape for those who need to know what’s next. Throughout the election and the legislative and regulatory pushes that will follow, POLITICO Pro is indispensable to those who need to make informed decisions fast. The Pro platform dives deeper into critical and quickly evolving sectors and industries—finance, defense, technology, healthcare, energy—equipping policymakers and those who shape legislation and regulation with essential news and intelligence from the world’s best politics and policy journalists. Our newsroom is deeper, more experienced, and better sourced than any other—with teams embedded in the world’s most active legislative and regulatory power centers. From Brussels to Washington, New York to London, Sacramento to Paris, we bring subscribers inside the conversations that determine policy outcomes and the future of industries, providing insight that cannot be found anywhere else. Get the premier news and policy intelligence service, SUBSCRIBE TO POLITICO PRO TODAY .     WHAT'D I MISS? — Lawyers found classified docs in Trump’s bedroom 4 months after Mar-a-Lago search: Four months after the FBI raided his Mar-a-Lago estate, Donald Trump’s attorneys discovered four documents marked “classified” in his personal bedroom . That revelation was among several cited by U.S. District Judge Beryl Howell in a newly unsealed 2023 opinion that found prosecutors had presented compelling evidence that Trump knowingly stashed national security documents in his home and then tried to conceal them when the Justice Department tried to retrieve them. In her 87-page opinion, Howell said the likelihood that Trump committed crimes was a basis to permit special counsel Jack Smith to question the former president’s attorney Evan Corcoran on topics that would normally be shielded by attorney-client privilege. — Senate Democrats set to lose support from their own side on second border vote: Senior Senate Democrats are bracing for new defections from their side of the aisle in their latest push for another vote on February’s bipartisan border deal. Majority Leader Chuck Schumer is planning a Thursday vote on a standalone version of the immigration proposal that Sens. Chris Murphy (D-Conn.), Kyrsten Sinema (I-Ariz.) and James Lankford (R-Okla.) negotiated earlier this year. A previous version of the deal that was tied to aid for Ukraine, Israel and Taiwan failed to advance by a 49-50 vote. Five Senate Democrats voted against the bill back then. But now that foreign aid is no longer attached to it, Democrats expect their support could dwindle even further — even as they remain confident that the doomed-to-fail vote would help shore up their vulnerable incumbents’ standing ahead of the election and portray Republicans as obstructionist. — California pushes through Gavin Newsom’s bill helping Arizona abortion-seekers: A California bill aiming to help Arizona abortion seekers by allowing doctors from that state to operate across the border has landed on Gov. Gavin Newson’s desk, just a month after he first floated the proposal. Once signed, Senate Bill 233 would offer an expedited pathway for licensed doctors in Arizona to get their credentials in California, with a nonprofit offering to pay the fees to do so. The state Senate voted 30-8 today after it already passed the state Assembly. Newsom is expected to sign the bill when he returns to California from a trip to the Vatican this week and it would take effect immediately. NIGHTLY ROAD TO 2024 DON'T TRUST THEM!  THERE HAVE BEEN PUBLIC STATEMENTS ABOUT OVERTURNING GRISWOLD... CONTRACEPTION CLEAN-UP — Donald Trump insisted in a social media post today that he has “never, and will never advocate imposing restrictions on birth control or other contraceptives,” after an interview released hours earlier included Trump saying he’s “looking at” restrictions on contraception. The post came after Trump said in an interview with a local TV station in Pittsburgh that he plans to share a policy on contraception “very shortly,” without providing details, writes POLITICO. RUDY IN WINTER — Former New York City Mayor Rudy Giuliani pleaded not guilty today to nine felony charges stemming from his role in an effort to overturn Donald Trump’s 2020 election loss in Arizona to Joe Biden. Ten others, including former Arizona Republican Party Chair Kelli Ward, also pleaded not guilty to conspiracy, forgery and fraud charges related to the case. Giuliani appeared remotely for the arraignment that was held in a Phoenix courtroom. His and Ward’s trials are scheduled for Oct. 17, about 3 weeks before the U.S. election.       AROUND THE WORLD Argentina's president Javier Milei gestures on stage during the Spanish far-right party Vox's rally "Europa Viva 24" in Madrid on May 19. | Oscar del Pozo/AFP via Getty Images DIPLOMATIC RIFT — Spain’s Prime Minister Pedro Sánchez and Argentina’s President Javier Milei are locked in a spiraling diplomatic crisis that is opening a major rift between Madrid and Buenos Aires . Milei landed a blow during a rally of far-right parties in Madrid last weekend, insulting Sánchez’s wife. The Spanish government responded by recalling its ambassador to Buenos Aires and demanding Milei publicly apologize, which the libertarian leader has refused to do. As a result, Madrid has now formally withdrawn its ambassador — effectively breaking off diplomatic relations with Argentina. Milei, meanwhile, is accusing the Spanish government of involvement with people aiming to stage a coup against him. NUKE THREAT — Russia announced today it has started tactical nuclear weapons exercises near Ukraine, as Moscow again accused the West of being “provocative.” The Kremlin’s Southern Military District troops “are practicing combat training tasks of obtaining special ammunition for the Iskander operational-tactical missile system, equipping launch vehicles with them and covertly advancing to the designated position area in preparation for missile launches,” Russia’s defense ministry said in a statement this afternoon. Russian President Vladimir Putin has made veiled nuclear threats toward the West for years, since he began a full-scale invasion of Ukraine in February 2022, leaving tens of thousands of people dead, and towns and cities in ruins. Western allies have supported Ukraine with military equipment to help Kyiv fend off Putin’s aggression.   LISTEN TO POLITICO'S ENERGY PODCAST:  Check out our daily five-minute brief on the latest energy and environmental politics and policy news. Don't miss out on the must-know stories, candid insights, and analysis from POLITICO's energy team. Listen today .     NIGHTLY NUMBER 117 Fahrenheit The high temperature across parts of Mexico over the past month, as nine cities in the country have set temperature records in the midst of the brutal heat wave that’s been linked to the deaths of at least 26 people, as well as 83 howler monkeys in the Gulf coast state of Tabasco. RADAR SWEEP NO PAPARAZZI PLEASE — If you’ve attended some weddings recently, you may have noticed a trend — no pictures allowed during the ceremony . Instead, it’s just a professional photographer snapping photos. And for many couples, it’s for a surprising reason. Rather than to prevent the stereotypically phone-addicted millennials or Gen Z from snapping flicks, it’s actually often to cut down on the number of older people who are whipping their phones out at times that feel inappropriate to the happy couple. People who were recently wed in such ceremonies told Josh Gondelman , writing for The Guardian, that young people have a much clearer sense of phone etiquette than their older friends and family. PARTING IMAGE On this date in 1979: Demonstrators gather on the steps of San Francisco's City Hall following the controversial sentencing of Dan White who was found guilty of manslaughter for the assassination of San Francisco Mayor George Moscone and City Supervisor Harvey Milk. | AP Did someone forward this email to you?  Sign up here .     Follow us on Twitter Charlie Mahtesian @PoliticoCharlie Calder McHugh @calder_mchugh   FOLLOW US

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