Below is my column in the Hill on the rough week for New York Attorney General Letitia James in court. James has campaigned on lawfare, and the Democratic New York voters have wildly supported her weaponization of the legal system against Trump and others. Now some judges are balking…
Here is the column:
In an age of lawfare, New York Attorney General Letitia James has always embraced the total war option. Her very appeal has been her willingness to use any means against political opponents. James first ran for her office by pledging to bag Donald Trump on something, anything. She did not specify the violation, only that she would deliver the ultimate trophy kill for Democratic voters. James follows the view of what Prussian General Carl von Clausewitz said about war, law is merely politics “by other means.”
Yet, the political success of James in weaponizing her office has been in stark contrast with her legal setbacks in courts. James earlier sought to use her office to disband the National Rifle Association, the most powerful gun rights organization in the country, due to self-dealing and corruption of executives. James notably did not target liberal groups accused of similar violations. The ridiculous effort to disband the NRA collapsed in court.
It did not matter. James knew that such efforts were performative and that New York voters did not care if such attacks failed. She will continue to win the lawfare battles, even if she loses the war.
This week, two of James’s best-known campaigns were struggling in court.
James is best known for her fraud case against Trump, in which she secured a $464 million fine and a ban on Trump from the New York real estate business for three years. That penalty, which has now risen to $489 million with interest, was in a case where no one had lost a dime due to the alleged inaccurate property valuations in bank loans secured by the Trump organization. Not only where the banks fully paid on the loans and made considerable profits, but they wanted to make additional loans to the Trump organization.
In appellate arguments this week, James’s office faced openly skeptical justices who raised the very arguments that some of us have made for years about the ludicrous fine imposed by Judge Arthur Engoron. Justice David Friedman noted that this law “is supposed to protect the market and the consumers — I don’t see it here.”
His colleague Justice Peter Moulton told her office “The immense penalty in this case is troubling” and added, “How do you tether the amount that was assessed by [Engoron] to the harm that was caused here where the parties left these transactions happy?”
The answer, of course, is the case was never about markets. It was about politics. The fact that the banks were “happy” is immaterial. Happiness in New York is a political, not legal calculus. The justices did not rule this week, but an opinion could be issued within a month.
In the same week, James faced a stinging defeat in another popular cause. James had targeted pro-life organizations for spreading supposed “disinformation” in not just opposing the use of mifepristone (the abortion pill used in the majority of abortions in the United States), but in advocating the use of reversal procedures if mothers change their minds before taking the second drug in the treatment regimen.
Critics charge that, while there are some studies showing successful reversal cases, the treatment remains unproven and unapproved. It remains an intense debate. James, however, wanted to end the debate. She targeted pregnancy centers and was then sued by two pro-life ministries, Summit Life Outreach Center and the Evergreen Association.
Judge John Sinatra Jr. blocked James‘s crackdown as a denial of free speech. Notably, these centers were not profiting by sharing this information or advocating such reversal treatment. James merely declared that people advocating such reversal treatments are engaged in “spreading dangerous misinformation by advertising…without any medical and scientific proof.”
It is a familiar rationale on the left and discussed in my latest book, “The Indispensable Right: Free Speech in an Age of Rage.”It is the same rationale that led to the banning and blacklisting of experts during the pandemic for views that have now been vindicated on the efficacy of masks and other issues. They were silenced by those who declared their viewpoints as dangerously unproven or unapproved, but who were themselves wrong.
James claimed a right to crack down on views that she deemed unproven, even by those who were seeking only to disseminate information rather than sell products. It did not seem to matter to her that, in the 2018 in NIFLA v. Becerra, the Supreme Court rejected the effort by California Attorney General Xavier Becerra (now the secretary of Health and Human Services) to require crisis pregnancy centers to refer abortions. The court refused to create an exception for requiring speech from licensed professionals.
After the effort failed to force doctors to disseminate pro-abortion information in California, James sought to prevent others from disseminating pro-life information in New York. The court ruled that, under the First Amendment, government officials cannot simply declare certain views as “disinformation” as a pretext to censor disfavored speech.
If there are harmful or fraudulent products or practices, the government has ample powers to target businesses and professionals involved with them. James, however, was seeking to silence those who advocate for a treatment that is unproven but not unlawful.
James’s legacy now includes an effort to disband a civil rights organization, deny free speech and secure confiscatory fines against her political opponents. Yet she is lionized by the media and politicians in an election that is billed as “saving democracy.”
In the end, James knows her audience, and it is not appellate judges. It does not matter to her if she is found to be violating the Constitution or abusing opponents. She has converted the New York legal system into a series of thrill-kills.
Below is my column in the New York Post on the indictment of Mayor Eric Adams. The most serious charges may be the foreign campaign contributions. However, the indictment is not nearly as overwhelming as suggested by the government. That may be why they are openly threatening Adams associates to cooperate or face ruin.
Here is the column:
The federal five-count indictment of New York Mayor Eric Adams is on its face a damning document of alleged public corruption. The government is alleging that Turkish officials saw Adams as a rising star in the Democratic Party and started to groom him for influence.
However, once beyond the details of the opulent rooms and flight upgrades, there may be less here than meets the eye in some of these charges. The campaign-contribution violations raise serious problems for Adams in the alleged solicitation of unlawful foreign contributions. Yet the counts must be read with caution. We have not seen the specific defenses to the allegations of using “straw men” to funnel unlawful contributions and the alleged favors bestowed on contributors. Indictments are one-sided and highly slanted interpretations of the facts by prosecutors to secure a conviction.
For example, many of the gifts from Turkish sources were realized in the form of upgrades on flights to business class or expensive hotel suites. It is not clear what Adams knew of the logistics for such travel or their inclusion in annual reports. Despite their public personas, many populist politicians tend to be a pampered class who expect to be feted in the best quarters as they speak as the “voice of the people.”
That was captured most vividly by NYC Rep. Alexandria Ocasio-Cortez sashaying at the Met Gala in a designer dress reading “tax the rich.” It was a scene with a crushing irony. The dress itself was worth more than some people make in a year, and it was just “loaned” to AOC despite being made specifically for her. She also did not pay for her ticket, which would cost $35,000.
It triggered an ethics investigation and allegations of ethical violations. In one night, Ocasio-Cortez flaunted roughly half of the value of the alleged Adams gifts as she paraded as a social warrior among the social elite. The truly hilarious aspect was that it was the elite who were thrilled by the demonstration and subsidized it.
The Adams allegations would constitute a fairly crude form of corruption by today’s standards. For the Biden family, it looks like small potatoes. Adams lacked a Hunter and the type of labyrinth of accounts maintained by the Bidens to funnel millions from foreign sources.
One of the most discussed allegations concerns a high-rise building built by Turkish friends in Manhattan to serve as their new consulate. The Turks wanted the building opened before the arrival of the Turkish president in 2021, strongman Recep Tayyip Erdoğan. The problem is that, according to prosecutors, New York Fire Department officials found an array of dangerous defects in the building and believed that it was a fire risk. They refused to allow the building to open until it met those standards. The government alleges that Turkish officials immediately dialed up their well-groomed ally, Adams, and told him that it was “his turn” to support Turkey. Adams intervened and prosecutors say that FDNY officials were afraid for their jobs.
Once again, however, Adams has defenses. He can argue that New York is the home of the United Nations and a large population of diplomats and international organizations. This was a foreign country seeking to open a consulate and he intervened to avoid an embarrassing diplomatic tiff.
Suggesting that a push to cut short fire inspections may be difficult to maintain under a bribery theory. That was the type of expansive case that government attorney Jack Smith used against former Virginia Republican Gov. Robert McDonnell and it failed spectacularly before the Supreme Court. There are other reasons besides flight upgrades why Adams might have facilitated a speed up of building approvals.
In the end, this is a Bob Menendez-lite indictment. Failing to publicly list how you moved from economy to business class on flights is hardly the stuff of “All the King’s Men.” It is more like “All the King’s Upgrades.” The biggest problem for Adams is that the US Attorney’s Office went public with a threat for all of those who do not cooperate and pledged that more will be “held accountable.” In other words, the indictment amplified the tune in a game of musical chairs. Anyone close to Adams may want to sit down before the music stops. That means that Adams can expect close associates to be testifying against him with the enthusiasm of those threatened with ruin by federal prosecutors.
If Eric Adams is convicted, it will be at the hands of his associates. The jury will not be particularly sympathetic with a politician snaring the Bentley Suite at the St. Regis Istanbul. Prosecutors love to play on such opulence like their use of Paul Manafort’s $15,000 Ostrich coat.
Combined with former friends and associates, it may be enough for the ultimate upgrade for Adams from business class to a federal cellblock.
Speaking on MSNBC’s The Rachel Maddow Show this week, Clinton was asked about continued allegations of Russian efforts to disseminate Russian propaganda in the United States. Clinton responded:
Hillary Clinton has long been one of the most anti-free speech figures in American politics, including calling upon European officials to force Elon Musk to censor American citizens under the infamous Digital Services Act (DSA). She is now suggesting the arrest of Americans who spread what she considers disinformation. It is a crushingly ironic moment since it was her campaign that funded the infamous Steele dossier and spread false stories of Russian collusion during her presidential campaign. Presumably, that disinformation would not be treated as criminal viewpoints.
“I think it’s important to indict the Russians, just as Muller indicted a lot of Russians who were engaged in direct election interference and boosting Trump back in 2016. But I also think there are Americans who are engaged in this kind of propaganda. And whether they should be civilly or even in some cases criminally charged is something that would be a better deterrence, because the Russians are unlikely, except in a very few cases, to ever stand trial in the United States.”
The interview was chillingly consistent with Clinton long antagonism toward free speech.
START AROUND THE 9TH MINUTE. SHE WANTS AMERICANS LIKE ME PROSECUTED FOR PUBLISHING THE TRUTH.
Clinton, of course, was not challenged by Maddow on the fact that her campaign was the conduit for disinformation linked to Russian intelligence services. Not only did U.S. intelligence believe that the Clinton campaign was used to make the debunked claims, but it was clearly done for purely political purposes.
Clinton efforts were so obvious by July 2016 that former CIA Director John Brennan briefed former President Obama on Hillary Clinton’s alleged “plan” to tie then-candidate Donald Trump to Russia as “a means of distracting the public from her use of a private email server.” The Russian investigation was launched days after this briefing.
(MSNBC/via YouTube)
Her general counsel, Marc Elias, his former partner Michael Sussmann, and the campaign were later found involved in not just spreading the false claims from the Steele dossier but other false stories like the Alfa Bank conspiracy claim.
It was Elias who managed the legal budget for the campaign. We now know that the campaign hid the funding of the Steele dossier as a legal expense.
New York Times reporter Ken Vogel said that Elias denied involvement in the anti-Trump dossier. When Vogel tried to report the story, he said that Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’” Times reporter Maggie Haberman declared, “Folks involved in funding this lied about it, and with sanctimony, for a year.”
Elias was also seated next to John Podesta, Clinton’s campaign chairman, when he was asked about the role of the campaign, he denied categorically any contractual agreement with Fusion GPS. Even assuming that Podesta was kept in the dark, the Durham Report clearly shows that Elias knew and played an active role in pushing this effort.
The Clinton campaign lied to the media, spread false claims of Russian disinformation, and was accused of being a conduit for Russian intelligence. So, would the “better deterrence” have been for Clinton herself to be arrested?
Sussmann ultimately did stand trial but was acquitted. Notably, John Durham noted that “no one at Fusion GPS … would agree to voluntarily speak with the Office” while both the DNC and Clinton campaign invoked privileges to refuse to answer certain questions.
For a person who is on her fourth memoir, Clinton is remarkably hostile to free speech. Notably, in all of these memoirs, she does not address her prominent role in calling for the censorship and now arrest of those with opposing views. She also does not discuss how her campaign lied to the media and funded the Steele dossier. Perhaps that is coming in the fifth memoir. What is clear is that Clinton herself has no fear that such prosecution would ever await her. She is one of those who may silence others but not be silenced. The public is to be protected from views that she deemed disinformation, misinformation, or malinformation.
To that end, as one of the guardians of truth, Clinton chastised the media for not being more consistently anti-Trump, a daunting prospect since the media has been accused of running almost 90 percent negative stories on Trump. Nevertheless, shortly after the second assassination attack on Trump, Clinton called Trump a danger to the world and added that “I don’t understand why it’s so difficult for the press to have a consistent narrative about how dangerous Trump is.”
Ideally, between the arrests of those accused of disinformation and an effective state media, Clinton hopes to rein in errant thoughts and viewpoints.
In the interview, Maddow did not have even a slight objection to the implications of arresting people with criminal viewpoints. Censorship and criminal prosecutions are such mainstream concepts that they are as unsurprising as a fourth Clinton memoir.
A poll released by the University of Chicago via the Chicago Project on Security and Threats offers a chilling account of the growing radicalism in America, particularly after the second foiled assassination attempt of former president Donald Trump, the poll found that 26 million Americans believe “the use of force” is justified to keep Trump from regaining the presidency.
As discussed in my book, “The Indispensable Right: Free Speech in an Age of Rage,” we have seen an increasing level of rage rhetoric in our political system. For some, violent language can become violent action. There is a normalization that can occur as extreme actions become more acceptable to more and more citizens:
“We are living in an age of rage. It permeates every aspect of our society and politics. Rage is liberating, even addictive. It allows us to say and do things that we would ordinarily avoid, even denounce in others. Rage is often found at the farthest extreme of reason. For those who agree with the underlying message, it is righteous and passionate. For those who disagree, it is dangerous and destabilizing.”
With the unrelenting claims of President Joe Biden, Vice President Kamala Harris, and others that democracy is about to die in America, some now feel a license to commit criminal acts in the name of “saving democracy.”It is the ultimate form of self-delusion that one saves democracy by committing political violence against those with whom you disagree. We have seen this radicalism spread in past years from higher education into society at large.
At Hunter College in New York, Professor Shellyne Rodríguez was shown trashing a pro-life display of students. She was captured on a videotape telling the students that “you’re not educating s–t […] This is f–king propaganda. What are you going to do, like, anti-trans next? This is bulls–t. This is violent. You’re triggering my students.” Unlike the professor, the students remained calm and respectful. One even said “sorry” to the accusation that being pro-life was triggering for her students. Rodríguez continued to rave, stating, “No you’re not — because you can’t even have a f–king baby. So, you don’t even know what that is. Get this s–t the f–k out of here.” In an Instagram post, she is then shown trashing the table.
Another recent example comes from the State University of New York at Albany, where sociology professor Renee Overdyke shut down a pro-life display and then resisted arrest. One student is heard screaming, “She’s a [expletive] professor.” That of course is the point.
While Democratic leaders have condemned the second assassination attempt on Trump, they have continued the unhinged rhetoric of how this may be our last election and democracy is about to die in America. At the same time, some leaders have allied themselves with violent groups.
Some Democrats have played a dangerous game in supporting or excusing the work of Antifa, one of the most violent anti-free speech groups in the world. Former Democratic National Committee deputy chair Keith Ellison, now the Minnesota attorney general, once said Antifa would “strike fear in the heart” of Trump. This was after Antifa had been involved in numerous acts of violence and its website was banned in Germany.
Ellison’s son, Minneapolis City Council member Jeremiah Ellison, declared his allegiance to Antifa in the heat of violent protests. During a prior hearing, Democratic senators refused to clearly denounce Antifa and falsely suggested that the far right was the primary cause of recent violence. Likewise, Joe Biden has dismissed objections to Antifa as just “an idea.”
These politicians are playing a dangerous game in toying with groups like Antifa, which will not stop at threatening their opponents. Politicians like Ellison could easily find themselves the next target as groups seek to “strike fear in the heart” of the establishment.
It appears that the Harris-Walz campaign to embrace “joy” has taken hold among educators in L.A. The Los Angeles Unified School District (LAUSD) voted 4-3 to allow 10 schools to opt out of standardized tests and test preparation beginning in the 2025-26 school year. LAUSD President Jackie Goldberg declared the move was a blow to “corporate America” and would restore the “enjoyment of education.”
We have previously discussed how schools have been dropping the use of standardized tests to achieve diversity goals in admissions. That trend continued this month with Cal State dropping standardized testing“to level the playing field” for minority students. I have long been a critic of this movement given the overwhelming evidence that these tests allow an objective measure of academic merit and have great predictive value on the performance of students.
Many colleges and universities are returning to standardized testing after the much-acclaimed abandonment of the tests for a more “holistic approach” to selection. However, public educators have continued to lower proficiency requirements and cancel gifted programs to “even the playing field.” The result has been to further hide the dismal scores and educational standards of many public school districts.
Goldberg lashed out at the “testing industry” which tends to expose the continued failure of public education to give these students a fighting chance in society. Rather than look at their own failures over decades to significantly improve scores, Goldberg said that she “hoped” the resolution would “begin to change how we look at student assessment.” In other words, students would be assessed without looking at how they actually perform on tests with other students.
Tests, it appears, are just a buzz kill for teachers and students alike: “Because the whole goal of life became not the love of learning, not the enjoyment of education, not the exchange of ideas, but whether or not your school could move up on its test scores. For at least 20 years, I have found that repugnant.”
It shows, Ms. Goldberg, it shows.
The retiring Goldberg has always been more focused on increasing budgets than improving scores. Her website declares
“California is the world’s fifth richest economy. There are 157 billionaires here who pay almost nothing in taxes. There is no excuse for why New York spends $29k per pupil while we spend $16.5k. It’s time to tax the great wealth in this state and re-invest in our children!”
That appears to be one statistical score that Goldberg does find relevant as a measure of education. Others at the meeting noted that they have falling enrollments, and this will not help.
I previously wrote about how public educators and teacher unions are killing public education in America. Many of us have advocated for public education for decades. I sent my children to public schools, and I still hope we can turn this around without wholesale voucher systems.
Once parents have a choice, these teachers lose a virtual monopoly over many families, and these districts could lose billions in states like Florida. This is precisely why school systems are facing budget shortfalls as families vote with their feet. These families want a return to the educational mission that once defined our schools.
L.A. will pursue a program under which they appoint a “lead teacher” for additional professional development from Community School Coaches and the University of California Los Angeles Center for Community Schooling. They will focus on an effort to “integrate culturally relevant curriculum, community- and project-based learning, and civic engagement” into their programs. The “relevant” curriculum would not include actual standardized testing.
It promises more the same. Bringing “joy” back to schools will come without the accountability of standardized testing. For teachers, such tests are decidedly not joyful since they expose their own failures and set goals for improvement. Now they can just “assess” students as successful and send them along their way.
Public schools across the country will continue to fail inner city children and leave them in the same crushing patterns of poverty. In Baltimore, a survey found that forty percent of schools did not have a single student proficient in math. Rather than reverse that trend, the schools are just waiving the tests and graduating the students. What is so frustrating is reading about failing school systems lowering proficiency standards and claiming that it is better for minority students.
American education faces the perfect storm. Despite record expenditures on public schools, we are still effectively abandoning students, particularly minority students, in teaching the basic subjects needed to succeed in life. We will then graduate the students by removing testing barriers for graduation. Then some may go to colleges and universities that have eliminated standardized testing for admission.
At every stage in their education, they have been pushed through by educators without objective proof that they are minimally educated. That certainly guarantees high graduation rates or improved diversity admissions. However, these students are still left at a sub-proficient state as they enter an increasingly competitive job market and economy.Any failures will come down the road when they will be asked to write, read, or add by someone who is looking for actual work product. They will then be outside of the educational system and any failures will not be attributed to public educators.
As I have previously written, if we truly care for these students, we cannot rig the system to just kick them down the road toward failure. It is like declaring patients healthy by just looking at them and sending them on their way. We have the ability to measure proficiency, and we have the moral obligation to face our own failures in helping these kids achieve it.
National Public Radio has had a rough go in the last few years with declining audiences, financial shortfalls, and the recent exposure of its political bias by longtime editor Uri Berliner. However, if you tuned into the comments of NPR CEO Katherine Maher this week at the Texas Tribune Festival, you would think that the only challenging decision for NPR is picking the design of the next pledge drive tote bag. Despite comments that were repeatedly evasive and misleading, a room full of journalists seemed to just nod like William Safire’s “nattering nabobs.”
Mayer led with what many former employees like Berliner may have seen as a literal punchline: “I stand here to defend the integrity of the newsroom and to defend the integrity of the reporting and to say that every single day our folks get up, and they want to stand there and make sure that they are serving the American public in the best possible way from a nonpartisan perspective.”
NPR, however, has lost much of the public. Ironically, it is now more liberal and whiter than ever with relatively few minority, male, or conservative listeners. NPR’s audience has been declining for years. Indeed, that trend has been most pronounced since 2017 — the period when Berliner said the company began to openly pursue a political narrative and agenda to counter Donald Trump. The company has reported falling advertising revenue and, like many outlets, has made deep staff cuts to deal with budget shortfalls.
As she has in the past, Maher portrayed Berliner as pushing a false political agenda in claiming any bias at NPR. She denounced his criticism as an “affront to the individual journalists who work incredibly hard to report the news and report the news well and report the news with integrity … in a nonpartisan way.”
The portrayal of NPR as unbiased and balanced is laughingly absurd. Indeed, many of us objected to Maher’s selection after years of declining audiences and increasing criticism. Maher had a long record of far-left public statements against Republicans, Trump, and others.
As I have stated in the past, I am not suggesting that NPR does not have a right to slanted coverage. Many outlets today have such bias. However, they do not have a right to receive public subsidies. In a competitive media market, the government has elected to subsidize a selective media outlet. Moreover, this is not the media organization that many citizens would choose. While tacking aggressively to the left and openly supporting narratives (including some false stories) from Democratic sources, NPR and its allies still expect citizens to subsidize its work. That includes roughly half of the country with viewpoints now effectively banished from its airwaves.
While local PBS stations are supported “by listeners like you,” NPR itself continues to maintain that “federal funding is essential” to its work. If NPR is truly relying on federal funds for only 1 percent of its budget, why not make a clean break from the public dole? NPR would then have to compete with every other radio and media outlet on equal terms. And it would likely do well in such a competition, given its loyal base and excellent programming.
Maher and NPR want to continue to offer slanted coverage but require all Americans (including most who do not listen to NPR due to the bias) to pay for it.
Maher’s talk was a litany of faux expressions of concern with no indication of a willingness to change a thing at NPR. Maher expressed a heart-felt need to face “perceived criticism.” Putting aside that there is nothing “perceived” in the criticism, it is clear that she rejects the very premise of the obvious bias of the outlet.
When finally asked by Fox New Digital about voter registration records in 2021 showing an astonishing disparity between Democrats and Republicans in the NPR newsroom, Maher dismissed the data. Berliner found 87 registered Democrats and zero Republicans. However, Maher said that there were many employees not part of those stats. That is like dismissing a poll because not every American was contacted. There is no reason to expect that those self-reporting are hugely skewed toward Democrats without a single Republican participating.
She added that they are not allowed to hire employees based on political affiliation. It was again transparently evasive. No one is suggesting a political litmus test based on party registrations. The problem is the hiring of people who are uniformly left and Democratic in their outlooks and values.
Maher said that she believes that “it’s incredibly important for us to have people of diverse viewpoints in the newsroom, and the totality of the lived experience.” However, they clearly are not doing that in their hiring process. It is not an accident when you lack a single Republican in hiring.
We face the same rationalization in academia.
A survey conducted by the Harvard Crimson shows that more than three-quarters of Harvard Arts and Sciences and School of Engineering and Applied Sciences faculty respondents identified as “liberal” or “very liberal.” Only 2.5% identified as “conservative,” and only 0.4% as “very conservative.”
Likewise, a study by Georgetown University’s Kevin Tobia and MIT’s Eric Martinez found that only nine percent of law school professors identify as conservative at the top 50 law schools. Notably, a 2017 study found 15 percent of faculties were conservative. Another study found that 33 out of 65 departments lacked a single conservative faculty member.
When pressed, administrators and academics express the same befuddlement why their faculties are exclusively liberal. It is just a mystery. It cannot be due to their own bias in hiring people with clearly liberal or far left views.
Maher was clearly singing to the choir in this event. She noted that some of her viewers want NPR to be harder on Trump. That is hardly surprising. While taking federal funds from the entire country, NPR currently has a shrinking audience of largely liberal, older, white, female Democrats. “Balance” is viewed by many as considering whether Trump is an existential threat to democracy or to humanity.
The falling audience and revenue shows that Maher and NPR are not appealing to a larger audience. Once again, they should not have to do so. If they want a smaller audience while maintaining the current one-sided coverage, that is entirely between them and their donors. What they do not have a right to is a public subsidy for that slanted coverage.
It is time for NPR to operate entirely in the free market like all of its competitors from CBS Radio to Fox Radio. If it is truly offering a broad and balanced news source, Maher will have little difficulty thriving without public funding.
Below is my column in the Hill on the effort of Democratic officials to keep Robert Kennedy on the ballot in swing states after seeking to block actual candidates from the same ballots. It is all in the name of democracy.
Here is the column:
In 1968, in the midst of Democratic convention riots, Chicago Mayor Richard Daley famously declared, “The policeman isn’t there to create disorder; the policeman is there to preserve disorder.”
Democratic state election officials appear to have adopted a similar approach to the upcoming election. In states such as North Carolina and Michigan, Democrats are fighting to keep the name of Robert Kennedy, Jr. on the ballot even though he withdrew from the race and endorsed former president Donald Trump. These are key states where the misplacement of even 1 percent of votes could turn the outcome of not just the state but the entire election.
In Michigan, Democratic Secretary of State Jocelyn Benson recently fought to keep third-party candidate Cornel West off the ballot. Unlike Kennedy, who is viewed as likely to drain votes from Trump, West is viewed as pulling votes from Vice President Kamala Harris, particularly among those opposed to her policies toward Israel.
A court ruled against Benson and said that she was adopting an artificially narrow interpretation to keep Kennedy on the ballot.
In North Carolina, where Trump and Harris are in a statistical tie, Democrats also refused to remove Kennedy’s name. An appellate court this week ordered them to do so to avoid the obvious confusion for voters.
Recently, the same Democratic officials sought to block West from the ballot due to his campaign causing “partisan mischief.”
These efforts are being pursued in other states such as Wisconsin (another key state), where Democrats on the election board blocked a Republican effort to remove Kennedy’s name.
In Michigan and North Carolina, officials have the distinction of fighting to keep a popular candidate from the ballot while fighting to retain a non-existent candidate.
It is all in the name of protecting democracy from itself.
Previously, Democrats in Florida and North Carolina fought to block other Democrats from appearing on primary ballots. Candidates like Rep. Dean Phillips (D-Minn.), author Marianne Williamson and commentator Cenk Uygur faced concerted campaigns by election officials and advocates to prevent voters from having a choice in the primary.
After preventing a meaningful primary and securing the nomination for President Biden, Democrats later handed the nomination to Harris without a single vote from a single primary voter.
Democratic activists are now calling it an election by “acclamation,” like a political version of the immaculate conception in which a candidate is simply conceived by the party elite. It is enough to make the Chinese Central Committee blush.
Harris was then walled off from the media to avoid any unscripted interactions, including by putting earbuds in her ears in what many called a clearly fake call to avoid press questions.
At the same time, Democratic supporters are now arguing that it is not necessary for Harris to offer detailed plans or agree to interviews in a campaign that is selling “joy” and “good vibes” like political valium. Others appear to believe that saving democracy means holding Harris to a different, more deferential standard. New York Times editorial board member Mara Gay appeared on MSNBC’s “Morning Joe” to defend treating Harris differently: “I think the challenge, not just for journalists, but really for the country, is that not only is Donald Trump a threat, but, you know, it lowers the bar. So, I don’t think it’s unacceptable,”she said.
Somewhere in that double negative, journalism perished. In my new book, I discuss how journalists are now sometimes taught to dispense with both neutrality and objectivity in favor of framing the news for viewers and readers. You see, it is all about saving democracy. Gay explained: “The context is difficult because of the extremism of the Republican Party, because of how extreme Donald Trump is, it’s hard to hold both candidates accountable equally, because one is committed to democracy and is functioning as a normal candidate from a normal American party, and the other is not.”
This was echoed by “Morning Joe” host Joe Scarborough, who said that life as we know it would end unless Harris is elected, telling viewers that the “autocrat” Trump would throw opponents in jail and take media outlets off the air: “So, yeah, the threats to democracy are real,” he said. “But [so are] the threats to the free market, the threats to free enterprise, to our economy.”
Other guests amplified that dire message further and criticized people for covering how Harris is changing her positions and refusing to offer details on policies. It appears that this election is simply too important for substantive debate. After all, Harris has said that 2024 “genuinely could be”the last democratic election in America’s history. The last thing we need is a substantive election at this precarious time.
The omitted details include Harris’s support for policies that many of us view as a direct threat to our constitutional system, including censorship and court packing.
Both candidates have much to address that they would prefer to ignore. The media is correct to press Trump on many of these issues. Yet, the success of any democratic system is dependent on three key elements: participation, information and choice. Getting the vote out takes on a menacing meaning if voters are being protected from the distractions of facts. Winning at any cost is no virtue in a democracy, even when claiming to be a defender of democracy.
I previously wrote how a Harris-Walz Administration would be a nightmare for free speech. Both candidates have shown pronounced anti-free speech values. Now, X owner Elon Musk and former independent presidential candidate Robert F. Kennedy Jr. have posted a Harris interview to show the depths of the hostility of Harris to unfettered free speech. I have long argued that Trump and the third-party candidates should make free speech a central issue in this campaign. That has not happened. Kennedy was the only candidate who was substantially and regularly talking about free speech in this election. Yet, Musk and Kennedy are still trying to raise the chilling potential of a Harris-Walz Administration.
In my book “The Indispensable Right: Free Speech in an Age of Rage,” I discuss how the Biden-Harris Administration has proven to be the most anti-free speech administration since John Adams. That includes a massive censorship system described by one federal judge as perfectly “Orwellian.”
In the CNN interview, Harris displays many of the anti-free speech inclinations discussed earlier. She strongly suggests that X should be shut down if it does not yield to demands for speech regulation.
What is most chilling is how censorship and closure are Harris’s default positions when faced with unfettered speech. She declares to CNN that such unregulated free speech “has to stop” and that there is a danger to the country when people are allowed to “directly speak[] to millions and millions of people without any level of oversight and regulation.”
Harris discussed her view that then-President Trump’s Twitter account should be shut down because the public had to be protected from harmful viewpoints.
“And when you’re talking about Donald Trump, he has 65 million Twitter followers, he has proven himself to be willing to obstruct justice – just ask Bob Mueller. You can look at the manifesto from the shooter in El Paso to know that what Donald Trump says on Twitter impacts peoples’ perceptions about what they should and should not do.”
Harris demanded that Trump’s account “should be taken down” and that there be uniformity in the censorship of American citizens:
“And the bottom line is that you can’t say that you have one rule for Facebook and you have a different rule for Twitter. The same rule has to apply, which is that there has to be a responsibility that is placed on these social media sites to understand their power… They are speaking to millions of people without any level of oversight or regulation. And that has to stop.”
In other words, free speech should be set to the lowest common denominator of speech regulation to protect citizens from dangerous viewpoints. Harris’s views have been echoed by many Democratic leaders, including Hillary Clinton who (after Musk purchased Twitter) called upon European censors to force him to censor American citizens under the infamous Digital Services Act (DSA).
Other Democratic leaders have praised Brazil for banning X after Musk balked at censoring conservatives at the demand of the socialist government. Brazil is where this anti-free speech movement is clearly heading and could prove a critical testing ground for national bans on sites which refuse to engage in comprehensive censorship. As Harris clearly states in the CNN interview, there cannot be “one rule for Facebook and you have a different rule for Twitter.” Rather, everyone must censor or face imminent government shutdowns.
The “joy” being sold by Harris includes the promise of the removal of viewpoints that many on the left feel are intolerable or triggering on social media. Where Biden was viewed as an opportunist in embracing censorship, Harris is a true believer. Like Walz, she has long espoused a shockingly narrow view of free speech that is reflective of the wider anti-free speech movement in higher education.
Harris often speaks of free speech as if it is a privilege bestowed by the government like a license and that you can be taken off the road if you are viewed as a reckless driver.
Trump and the third-party candidates are clearly not forcing Harris to address her record on free speech. Yet, polls show that the majority of Americans still oppose censorship and favor free speech.
In my book, I propose various steps to restore free speech in America, including a law that would bar federal funds for censorship, including grants and other funding that target individuals and sites over the content of their views. The government can still speak in its own voice, and it can still prosecute those who commit crimes on the Internet or engage in criminal conspiracies. Harris should be asked if she would oppose such legislation.
For free speech advocates, the 2024 election is looking strikingly similar to the election of 1800. One of the greatest villains in our history discussed in my book was President John Adams, who used the Alien and Sedition Acts to arrest his political opponents – including journalists, members of Congress and others. Many of those prosecuted by the Adams administration were Jeffersonians. In the election of 1800, Thomas Jefferson ran on the issue and defeated Adams.
It was the only presidential election in our history where free speech was a central issue for voters. It should be again. While democracy is really not on the ballot this election, free speech is.
We have previously discussed (here and here and here and here) the push for reparations in California that has been touted by California Gov. Gavin Newsom and Democrats for years. After the Democrats campaigned on the issue in past elections, I wrote a column about how this bill had come due after years of delay for study and recommendations. The legislature, however, just stamped the bill “return to sender” and shelved the two reparations bills with the reported support of Newsom. The reaction is not surprising that there has been a bait-and-switch by Democrats on the issue.
Last week, the California legislature did approve proposals allowing for the return of land or compensation to families whose property was unjustly seized by the government and issuing a formal apology for laws and practices that have harmed Black people. However, the two bills to establish a fund for reparation payments – Senate Bills 1403 and 1331 – were tabled. State Sen. Steven Bradford blamed Democratic California Gov. Gavin Newsom for the result, stating that the governor made clear that he would veto them.
Newsom signed a $297.9 billion budget in June that included up to $12 million for reparations legislation. However, that is a drop in the bucket given the billions demanded and it is not clear how the money will be spent. Adding to the anger is the fact that the legislature approved a bill to allow undocumented persons to receive no-interest loans of up to $150,000 to cover down payments on new homes.
It is now unclear what will happen next, though sponsors are saying that they will continue to push for legislation green lighting reparation payments. Some congressional Democrats have pushed for similar federal reparations and passed a bill out of the House Judiciary Committee in 2021 that failed to receive a floor vote. BET founder Robert Johnson has called for $14 trillion in federal reparations.
As discussed earlier, there are a host of legal and practical questions over the reparation payments that will have to be resolved. Even with passage, the bills would likely face constitutional challenges.
Below is my column in the Hill on the victory of Elon Musk last week against the liberal media outlet, Media Matters. This follows similar recent victories by others against CNN and the New York Times to clear paths to trials. For those who have embraced advocacy journalism as the new model for media, a bill is coming due in the form of defamation and disparagement lawsuits.
Here is the column:
This week, a federal judge ruled that a lawsuit by Elon Musk against Media Matters can move forward in what could prove a significant case not just for the liberal outlet but the entire media industry. The decision comes at the same time as other court wins for former Alaska Gov. Sarah Palin (R) against the New York Times and a Navy veteran against CNN.
For years, media organizations and journalism schools have expressly abandoned objectivity in favor of advocacy journalism. This abandonment of neutrality has coincided, unsurprisingly, with a drop in public faith in media to record lows.
Former New York Times writer (and now Howard University journalism professor) Nikole Hannah-Jones has been lionized for declaring that “all journalism is activism.”Emilio Garcia-Ruiz, editor-in-chief at the San Francisco Chronicle, similarly announced that “Objectivity has got to go.”
“J-Schools” have been teaching students for years to discard old-fashioned ideas of simply reporting facts and as stated at the University of Texas at Austin, to “leave neutrality behind.”
In a series of interviews with more than 75 media leaders, Leonard Downie Jr., former Washington Post executive editor, and Andrew Heyward, former CBS News president, reaffirmed this new vision of journalism. Downie explained that objectivity is viewed as a trap and reporters “feel it negates many of their own identities, life experiences and cultural contexts, keeping them from pursuing truth in their work.”
As the public abandons mainstream media for alternative news sources, news organizations are now facing the added costs of bias in the form of defamation and disparagement lawsuits. Media lawyers are citing protections secured by the “old media” while their clients are publicly espousing their intention to frame the news to advance political and social agendas.
CNN, for example, is now facing a trial in a lawsuit by Navy veteran Zachary Young, the subject of an alleged hit piece over his work to extract endangered people from Afghanistan after the Taliban takeover. In a Nov. 11, 2021, segment on CNN’s “The Lead with Jake Tapper,” the host tells his audience ominously how CNN correspondent Alex Marquardt discovered “Afghans trying to get out of the country face a black market full of promises, demands of exorbitant fees, and no guarantee of safety or success.” Marquardt named Young and his company in claiming that “desperate Afghans are being exploited” and need to pay “exorbitant, often impossible amounts” to flee the country.
Discovery revealed how Marquardt said that he wanted to “nail this Zachary Young mfucker.” After promising to “nail” Young, CNN editor Matthew Philips responded: “gonna hold you to that cowboy!” That sentiment was echoed by other CNN staff. In allowing the case to go to trial, a judge found not just evidence of actual malice by CNN but grounds for potential punitive damages.
Likewise, Palin recently won a major appeal before the United States Court of Appeals for the Second Circuit, which found that Palin was denied a fair trial in a case against the New York Times.
In 2017, liberal activist and Bernie Sanders (I-Vt.) supporter James T. Hodgkinson attempted to massacre Republican members of Congress on a baseball diamond, nearly killing Rep. Steve Scalise (R-La.). The New York Times, eager to shift the narrative, ran an editorial suggesting that Palin had inspired or incited Jared Loughner’s 2011 shooting of then-U.S. Rep. Gabrielle Giffords (D-Ariz.).
The Times’ editors stated that SarahPAC, Palin’s political action committee, had posted a graphic that put a crosshair on a U.S. map representing Giffords’ district before she was shot, suggesting that this was direct incitement to violence. In reality, Palin’s graphic “targeting” about 20 vulnerable House Democrats all across the country is typical of graphics used in political campaigns by both parties for many decades. No evidence has ever been offered that Giffords’ deranged shooter even saw it.
But Musk’s lawsuit may be the most defining for our age of advocacy journalism. He is suing Media Matters, the left-wing outlet founded by David Brock, whom Time described as“one of the most influential operatives in the Democratic Party.” Although Brock is no longer with the site, Media Matters has long been accused of being a weaponized media outlet for the left. After Musk dismantled the censorship system at Twitter, he became something of an obsession for Media Matters, which targeted his revenue sources. The outlet ran a report suggesting that advertisements of major corporations were being posted next to pro-Nazi posts or otherwise hateful content on the platform. As I discuss in my new book, this effort mirrored similar moves by the anti-free speech movement against Musk to force him to restore censorship systems.
Companies including Apple, IBM, Comcast and Lionsgate Entertainment quickly joined the effective boycott to squeeze Musk. The problem is that it is hard to squeeze the world’s richest man financially. Musk told the companies to pound sand and told his lawyers to file suit.
The allegations in the lawsuit read like a textbook on advocacy journalism. Media Matters is accused of knowingly misrepresenting the real user experience by manipulating the algorithms to produce the pairing alleged in its story.
The complaint accuses Media Matters of running its manipulation to produce extremely unlikely pairings, such that one toxic match appeared for “only one viewer (out of more than 500 million) on all of X: Media Matters.” In other words, the organization wanted to write a hit piece connecting X to pro-Nazi material and proceeded to artificially create pairings between that material and corporate advertisements. It then ran the story as news.
Indeed, two defendant employees of Media Matters did not deny that they were aware of the alleged manipulation and that they were seeking to poison the well for advertisers in order to drain advertising revenues for X.
Although the media covered another judge blocking an effort by state officials to sue Media Matters over the anti-Musk effort, there has been comparably less coverage of the green light for the lawsuit in Texas.
U.S. District Judge Reed O’Connor of the Northern District of Texas rejected an effort to dismiss the case on jurisdictional and other grounds. Musk will be able to continue his claims of tortious interference with existing contracts, business disparagement and tortious interference with prospective economic advantage.
Not surprisingly, although the media has heralded lawsuits like the one by Dominion Voting System against Fox News (which led to a large settlement), they are overwhelmingly hostile toward the Musk lawsuits. It is not hard to see why. The Media Matters lawsuit directly challenges the ability of media outlets to create false narratives to advance a political agenda. As with the CNN and New York Times cases, it can expose how the media first decides on a conclusion and then frames or even invents the facts to support it.
While rejecting the longstanding principles of journalism such as objectivity, these media outlets are citing the cases and defenses secured by those now-outdated media organizations. They want to be advocates, but they also want to be protected as journalists.
These cases still face tough challenges, including challenging jury pools in places like New York. However, they are exposing the bias that now characterizes much of American journalism.
In the age of advocacy journalism, a bill has come due. That is why Musk’s lawsuit against Media Matters . . . well . . . matters.
Jonathan Turley is a Fox News Media contributor and the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster, June 18, 2024).
For months, we have been discussing the concerted effort of Democrats to bar challengers to President Joe Biden from primary ballots and block third-party candidates like Robert F. Kennedy, Jr. and Cornel West from appearing on the November ballots. As both Joe Biden and Kamala Harris insisted that “Democracy is on the ballot,” their allies sought to deny the ability of voters to cast their ballots for other candidates. Now, a state judge has issued a stinging denial of the effort of Democratic officials to block West from the Michigan ballots.
Democratic Secretary of State Jocelyn Benson helped lead the effort to prevent citizens from being able to vote for West in Michigan. Judge James Robert Redford issued the ruling days after West was kicked off the ballot due to technical issues.
West issued a statement: “Victory in Michigan! We brought thousands of voices to the table, and the court listened, rejecting the Democrats’ technical challenges. This is a win for democracy and for every person fighting for truth, justice, and love. Onward!” He is running with Black Lives Matter co-founder Melina Abdullah.
Democrats are still pushing to strip them from the ballots in other states to prevent voters from having a choice in the election. Another such effort failed in Maine recently.
The press and pundits have been largely silent about this effort despite the glaring contradiction with the campaign rhetoric of the DNC on saving democracy from imminent destruction. The media does not appear at all alarmed or critical of the effort to limit democratic choice. The Washington Post stated clinically “Democrats are taking third-party threats seriously this time.” Taking it seriously appears to mean using legal means to keep them from the ballots.
It is true that the main political parties have challenged qualification signatures and paperwork in the past. However, the reports indicate a systemic effort geared toward reducing the choices for voters. What is striking is that this is coming from democratic groups and the DNC, which are raising money on the “save democracy” narrative. The contradiction is spellbinding. On the same sites promising to oppose the third-party candidates, the DNC and other groups push the narrative that only the Democrats are working to protect the right to vote.
The Post reports that Democrats have studied the Hillary Clinton campaign and vowed not to allow third party candidates to drain away millions of voters as they did in 2016. This well-funded campaign to block other candidates is continuing. It was cited by Kennedy as one of the reasons that he pulled out of the race and endorsed former president Donald Trump.
West is now a threat with independents looking for an alternative to Trump and Harris. West has long been a charismatic figure in academia. Decades ago, I was his editor on what may have been his first law review publication as a young, rising divinity professor at Princeton.
One does not have to support Trump, West, or the other third-party opponents to find this effort repulsive. While some of us have challenged that hyperbolic claim that this “may be our last election,” the one thing that may not be on the ballot is choice, if the self-appointed defenders of Democracy have anything to say about it.
Below is my column in The Hill on the sudden embrace of bipartisanship in Washington … by some of the most partisan figures in our political system. Press and pundits are suddenly reframing Vice President Kamala Harris as a moderate while heralding Justice Amy Coney Barrett for her independence. It is enough to give you vertigo from the media and political spin.
Here is the column:
The late New York Gov. Mario Cuomo once famously observed that “you campaign in poetry; you govern in prose.“ One of the greatest poetic licenses in this election has been the claim of bipartisanship from some of the most rigid partisans in our politics.
Many in the media are reinventing history to appeal to citizens who want more moderation in government. This theme was picked up by Minnesota Gov. Tim Walz in his speech before the Democratic National Convention, when he claimed that Vice President Harris was not just a moderate but “never hesitated to reach across that aisle if it meant improving your lives, and she’s always done it with energy, with passion and with joy.”
Harris was one of the most liberal members of the Senate and was never viewed as someone likely to form a compromise on key votes. She was not one of the Democrats commonly referenced as moderates in that body on close votes. Harris was even rated to the left of socialist Sen. Bernie Sanders (I-Vt.). After her ranking by GovTrack was cited widely in the media as showing her as the most liberal member of the Senate, the site took down the page, which had been up for years. Harris is now to be portrayed as a moderate, whether it is true or not.
What was so striking is that Harris was valued by supporters precisely for being so uncompromising and consistently voting with the left. In her prior unsuccessful presidential run, she moved even further left. Harris was the only candidate other than Sanders to say that she wanted to abolish private insurance plans, a position which, like so many others, she has now recanted.
These same advocates of bipartisanship are lionizing Republicans who support Harris while demonizing Robert Kennedy Jr. for doing the same for Trump. To them, one is a profile of courage, the other a profile of corruption.
The poetry of politics was also evident this week after Justice Amy Coney Barrett joined the three liberal justices in voting in dissent in a case involving Arizona’s voter identification law. Barrett was praised for opposing the ruling to set aside a lower court order blocking enforcement of a 2022 law requiring registered voters to provide proof of citizenship. The majority (with the liberal justices) also blocked a provision that would have prevented tens of thousands of prior voters in Arizona from voting.
Conservatives were irate at Barrett, particularly after Virginia claimed to have found hundreds of non-citizens on its voting rolls. Other states such as Georgia found a smaller number of non-citizens registering to vote, but polls show widespread support for voter ID laws. None of that seemed to matter to Barrett, who ruled based on her conscience and understanding of the law. The left’s response to Barrett’s vote was the most telling. Her willingness to cross the ideological divide was celebrated. These are some of the same voices who denounced Barrett in her confirmation hearing as a robotic conservative stooge.
Few Democrats were willing to vote for this obviously qualified nominee. That included the newly minted moderate Harris, who voted “nay.”
While some of us at the time challenged this media narrative, given Barrett’s impressive scholarship and proven independence, she was denounced by senators, and her home was even targeted by protesters. Bloody dolls were thrown on her lawn with her young children inside after the location was revealed by activists. Some of these activists might even take credit for Barrett’s repeated votes with the left of the court. But it is not their coercion, but Barrett’s convictions that led to these votes. She has always been a jurist who shows a willingness to follow her principles wherever they take her.
Barrett continues (with Justices Roberts and Kavanaugh) to moderate many decisions with three colleagues on both ends of rulings. Roberts and Kavanaugh routinely rank as the most likely to vote with the majority of the court. This brings us back to the poetry. In her confirmation hearings, senators such as Sen. Sheldon Whitehouse (D-R.I.) attacked her nomination in the same way that they attacked the nomination of Justice Neil Gorsuch. Whitehouse portrayed both nominees as adding guaranteed votes for a conservative agenda, reading off the many decisions where conservatives voted as a block.
As I stated in my own testimony in the Gorsuch confirmation hearing, Whitehouse and his colleagues often seem to ignore that the liberal justices in those cases also voted like a block. Justice Sotomayor shows the same low percentage of voting with the opposite end of the court as do her colleagues Justices Alito and Thomas. Yet in her case, the pattern of voting was not viewed as partisan, but as simply getting cases right.
Both Gorsuch and Barrett have routinely voted with their liberal colleagues in major cases, despite the attacks of critics on their independence and integrity.
Most cases before the Supreme Court do not break along ideological lines, despite the portrayal in the media. Indeed, most are resolved unanimously (roughly half) or nearly unanimously by the court.
Take the 2023 cases. Only half of the 6-3 splits featured the six conservative and three liberal justices on opposite sides. Only eight percent (five of 57 cases) were decided 6-3 with the six Republican appointee/three Democratic split. The rest mixed up alliances. The least likely to join the majority of their colleagues were the three liberal justices, Sotomayor, Kagan and Jackson.
The liberal justices, however, are rarely portrayed as ideologues in the media, which consistently portrays the court as controlled by a six-conservative block of rigid partisans. In reality, they are all conscientious jurists trying to get cases right from their jurisprudential viewpoints. The consistency in voting reflects their adherence to their fundamental principles.
Politicians and pundits, ignoring the facts, continue to claim that the court is dysfunctional and ideologically divided. When elections or nominations come along, Democrats attack those on the other side as refusing to compromise or “cross the aisle.”
Many value the poetry of bipartisanship in politics but demand the prose of strict partisanship in governance. Calling Harris a moderate and Barrett a partisan is just part of the poetic license of American politics.
Below is my column in the New York Post on the withdrawal of Robert Kennedy, Jr. from the presidential race and his endorsement of former President Donald Trump. Kennedy’s speech resonated with many long-time Democrats who have found themselves estranged from the party. While Kennedy remains an independent, it is a cautionary tale that is being missed in the “joy” theme of the Democratic National Convention. The fact is that new Republicans are often not the product of ideology and association but anxiety and exclusion. Democrats make Republicans.
Here is the column:
The withdrawal of Robert F. Kennedy Jr. from the presidential race and his endorsement of former President Donald Trump was yet another extraordinary moment in an election that has been anything but predictable. Only a year ago, it would have been unthinkable that a sitting president would be effectively forced off a ticket and replaced by a candidate who did not secure a single vote for president.
Now, the nephew of John F. Kennedy and son of the Robert F. Kennedy has not just withdrawn from the Democratic Party but endorsed the Republican nominee. Amidst all of the claimed “joy” of the Democratic National Convention, there is a sobering reality that is being ignored by the ecstatic press and pundits: this is how Democrats make Republicans.
There is an old expression that “a conservative is a liberal who has been mugged.”
Irving Kristol explained the neoconservative movement was built by Democrats “mugged by reality.”
Kennedy has not become a Republican but rather joined the roughly half of Americans now identifying as independents. While this country is solidly under the hold of a duopoly of power in the two main parties, only 25% of the country identify as Democrats, and 25% as Republicans.
Kennedy’s departure from the Democrats has been mocked in the press. However, when he spoke on his withdrawal, many of us who have been lifetime members of the party identified with his remarks.
I come from a politically active liberal Democratic family in Chicago. I spent much of my life working for liberals since I first came to Washington as a Democratic House page in the 1970s. I did stints on the Hill or on campaigns with Democrats ranging from Rep. Sid Yates (Ill.) to Sen. William Proxmire (Wis.) to Mo Udall (Arz.). I even worked on the campaign and ran for delegate for RFK Jr.’s uncle, Sen. Ted Kennedy.
Then the party changed. Where once they defended free speech, Democrats have rallied behind censorship and blacklisting of those with opposing views. They have sought to block dozens of Republicans from ballots, including former President Trump. To make matters worse, they have done so in the supposed name of democracy.
Those actions were raised by Kennedy in his powerful and poignant withdrawal speech. He detailed how the Democratic party moved to stop him from running against President Biden in the primary, including efforts to block him from ballots. It was an ironic moment. After harassing candidates like RFK and Minnesota Rep. Dean Phillips, the Democratic leadership then simply installed their choice at the convention in an unprecedented bait-and-switch.
There could have been a substantive primary that exposed the diminished mental state of Biden and allowed for a democratic choice on the best nominee. Instead, the Democrats prevented such choices from being made and selected a leader with all of the transparency and deliberation of a party Congress in China. Kennedy said that the Democratic Party has virtually shoved him and other voters into the arms of Donald Trump and the Republican Party.
Kennedy observed that “I began this journey as a Democrat, the party of my father, my uncle, the party which I pledged my own allegiance to long before I was old enough to vote.”
He said that his party was the one that championed free speech, government transparency, and opposed unjust wars. “True to its name, it was the party of democracy.”
He said that the party has turned its back on all of the values that once defined it. For former Democrats like Kennedy, running on “joy” is no substitute for these profound changes in the party.
Indeed, the DNC bordered on the creepy as speaker after speaker sold the idea that, if voters could just swallow the Harris candidacy, they would immediately experience joy like some political prozac commercial.
It is not clear whether the red pill/blue pill pitch will be enough, or whether Kennedy’s endorsement will turn the critical votes in swing states.
However, the DNC showed how Democrats make Republicans. The unrelenting identity politics and claims of defending democracy (while opposing democratic choice) only reaffirmed for many that there is no longer a big tent in the party of Roosevelt and Kennedy. There is a serious question whether John F. Kennedy would recognize or support the current Democratic Party. It now rejects many of his core, mainstream values. His nephew highlighted the irony of how the party not only worked to block the ability of opponents to challenge President Biden but worked to “conceal the cognitive decline of the sitting president.”
Even the Washington Post recently admitted that “the 81-year-old had shown signs of slipping for a long time, but his inner circle worked to conceal his decline.” However, the Post failed to note that Vice President Kamala Harris was part of that inner circle. Indeed, she has been touting her close work with Biden in her campaign.
There is little recognition that, if true, it means that Harris, the White House, and leading Democrats lied to the public about Biden’s mental decline for their own political interests.
For Kennedy, it was all too much “and, most sadly … in the name of saving Democracy, the Democratic Party set itself to dismantling it, lacking confidence in its candidate, that its candidate could win in a fair election at the voting booth.”
Below is my column in the New York Post on the complaints of Jewish groups that they were denied permits to march in Chicago during the Democratic National Convention while other groups, including pro-Palestinian groups, were allowed to do so. There is a crushing irony in Chicago given the decision in 1978 to allow Nazis to march in nearby Skokie, but Jews could not march in Chicago in 2024.
Here is the column:
This week, citizens will gather in Chicago during the Democratic National Convention to voice their support for Israel and protest the abuses of Hamas. However, this largely Jewish gathering will not be marching. Instead, they will gather on a small private lot blocks away from the convention as thousands of pro-Palestinian protesters march through the streets. The reason is that Democratic Mayor Brandon Johnson has refused to grant their request for a permit.
While pro-Palestinian protesters have been given an array of accommodations by the city (and received a shoutout from President Joe Biden in his convention address), the Jewish protesters are only able to gather due to the donation of a private lot by an owner for their use. Even as pro-Palestinian protesters veered off approved routes and tore down security fencing, it will be the Jewish protesters who will reportedly remain confined to this private lot under the watchful eye of the Chicago Police Department.
Besides pro-Palestinian protesters, pro-abortion protesters have been allowed to march, and Planned Parenthood is celebrating the nomination of Vice President Kamala Harris with free abortions.
So Jewish protesters get to watch as favored groups parade in abortion pill outfits, but they cannot march with the images of the Hamas hostages in Gaza.
Josh Weiner, co-founder of Chicago Jewish Alliance, confirmed that the group was not granted permits, so all they could do is walk around such approved protests to “make our presence felt.”He added that“pro-Palestine protesters have gotten multiple permits, including a march, which seems to be a little bit weighted on one side.”
For Chicagoans like myself, the treatment of the pro-Israel protesters at the DNC could not be more ironic or disturbing. Forty-six years ago, Nazis were allowed to march through Skokie, Illinois, despite the presence of thousands of Holocaust survivors in the largely Jewish city. The Skokie case is considered one of the milestone moments for free speech, allowing a small group of anti-Semites and racists to march despite the overwhelming opposition in the public. The Nazis were outnumbered 70-1 by counterprotesters and soon receded into obscurity.
Now roughly five decades later, Jewish marchers are being effectively blocked from marching through the city of Chicago, presumably because they would be “too disruptive.” The city’s passive aggressive approach is fooling no one.
The Johnson administration has been coordinating plans for the convention with the Democratic leadership. The record in this case shows a transparently hostile response to the Jewish protesters. Despite putting in their request in June, the Jewish protesters were denied while pro-Palestinian protesters were granted permission to march. The city slow-walked the permit request. When the permit was not granted, it then said that the Jewish groups failed to apply in time when they renewed their requests multiple times. The groups have accused the city of simply not responding to their repeated efforts to address the permits.
Yet Hatem Abudayyeh, executive director of the Arab American Action Network, said that the mayor had personally reached out to reemphasize his support: “The mayor has said from the very beginning that he supports the protest movement. The protest movement is what brought him to City Hall. . . . He said, ‘I understand that struggle. Because I am part of a national liberation struggle as well.’”
It was equally clear that many Democrats did not want Jews to march. This is unfortunately nothing new for those who support Israel. At Columbia, a professor had his school access card deactivated and was told not to come on campus because his presence might enrage anti-Israel protesters.
In England, a Jewish man was told that he could not walk on a street because “you are quite openly Jewish” and it might trigger pro-Palestinian marchers.
The treatment of the Jewish groups in Chicago outside of the convention stands in sharp contrast to what is being said inside the convention. Speaker after speaker has declared the party to be the champion of the Constitution and free speech. The one thing that organizers cannot abide in a celebration of constitutional freedom is the actual exercise of those freedoms by unpopular groups.
In only five decades, Jewish groups have become too controversial to march. Instead, the Israeli-American Council has given up waiting for a permit to march and will host a Hostage Square display on private property.
The irony is crushing for many of us who lived through the 1978 controversy. While the Nazis could march in Skokie, these Jews will not be marching in Chicago.
Below is my column in The Hill on the move of the European Union to force Elon Musk to censor X users, including political speech leading up to the 2024 election. The column discusses this Rockwell painting, which we often use in discussing free speech controversies.
Here is the column:
Eighty years ago, the U.S. government launched a war bond campaign featuring a painting by artist Norman Rockwell in the struggle against the authoritarian threat from Europe. The picture they chose was Rockwell’s Freedom of Speech depicting a man rising to speak his mind at a local council meeting in Vermont. The image rallied the nation around what Louis Brandeis called our “indispensable right.”
Now, that very right is again under attack from another European government, which is claiming the right to censor what Americans are allowed to say about politics, science and other subjects. Indeed, the threat from the European Union may succeed in curtailing American freedom to an extent that the Axis powers could not have imagined. They may win, and our leaders have not said a thing yet about it.
In my book “The Indispensable Right: Free Speech in an Age of Rage,” I discuss the inspiration for Rockwell’s painting: a young selectman in Vermont named James “Buddy” Edgerton. The descendent of a Revolutionary War hero, Edgerton stood up as the lone dissenter to a plan to build a new schoolhouse over the lack of funding for such construction.
For Rockwell, the scene was a riveting example of how one man in this country can stand alone and be heard despite overwhelming opposition to his views. It was, for Rockwell (and for many of us), the quintessential American moment. In the 1940s, people like Edgerton had to travel to small board meetings or public spaces to speak their mind. Today, the vast majority of political speech occurs over the Internet and specifically social media. That is why the internet is the single greatest advancement for free speech since the printing press. It is also the reason governments have spent decades seeking to control speech over the internet, to regulate what people can say or read.
One of the greatest threats to free speech today is the European Digital Services Act. The act bars speech that is viewed as “disinformation” or “incitement.” European Commission Executive Vice President Margrethe Vestager celebrated its passage by declaring that it is “not a slogan anymore, that what is illegal offline should also be seen and dealt with as illegal online. Now it is a real thing. Democracy’s back.”
In Europe, free speech is in free fall. Germany, France, the United Kingdom and other countries have eviscerated free speech by criminalizing speech deemed inciteful or degrading to individuals or groups. The result had made little difference to the neo-Nazi movement in countries like Germany, which is reaching record numbers. It has, however, silenced the rest of society. According to polling, only 18 percent of Germans feel free to express their opinions in public. Fifty-nine percent of Germans do not even feel free expressing themselves in private among friends. Only 17 percent feel free to express themselves on the internet. They have silenced the wrong people, but there is now a massive censorship bureaucracy in Europe and the desire to silence opposing voices has become insatiable.
Some in this country have the same taste for speech-regulation. After Elon Musk bought Twitter and dismantled most of the company’s censorship program, many on the left went bonkers. That fury only increased when Musk released the “Twitter files,” confirming the long-denied coordination and support by the government in targeting and suppressing speech.
In response, Hillary Clinton and other Democratic figures turned to Europe and called upon them to use their Digital Services Act to force censorship against Americans. The EU immediately responded by threatening Musk with confiscatory penalties against not just his company but himself. He would have to resume massive censorship or else face ruin.
It was a case of the irresistible force meeting the immovable object. The anti-free speech movement had finally found the one man who could not be bullied, coerced or threatened into submission. Musk’s defiance has only magnified the unrelenting attacks against him in the media, academia and government. If Musk can be broken, these figures will once again exercise effective control over a large swath of speech globally.
This campaign recently came to a head when Musk had the audacity to interview former president Donald Trump. In anticipation of the interview, one of the most notorious anti-free speech figures in the world went ballistic. European Commissioner for Internal Markets and Services Thierry Breton issued a threatening message to Musk, “We are monitoring the potential risks in the EU associated with the dissemination of content that may incite violence, hate and racism in conjunction with major political — or societal — events around the world, including debates and interviews in the context of elections.”
While offering a passing nod to the freedom of speech, he warned Musk that “all proportionate and effective mitigation measures are put in place regarding the amplification of harmful content in connection with relevant events.” In other words, be afraid, be very afraid. Musk responded with “Bonjour!” and then suggested that Breton perform a physically challenging sexual act.
To recap, the EU is now moving to force censorship upon American citizens to meet its own demands of what is false, demeaning or inciting. And that includes censorship even of our leading political candidates for the presidency. The response from the Biden administration was not a presidential statement warning any foreign government from seeking to limit our rights or even Secretary of State Antony Blinken calling the EU ambassador to his office for an expression of displeasure.
That’s because Biden and Harris are not displeased with but supportive of letting the EU do what they are barred from doing under our Constitution. This administration is arguably the most anti-free speech government since John Adams signed the Sedition Act. They have supported a massive system of censorship, blacklisting and targeting of opposing voices. Democratic members have given full-throated support for censorship, including pushing social media companies to expand in areas ranging from climate control to gender identity.
So, after only 80 years, our leaders are silent as a European government threatens to reduce our political speech to the lowest common denominator, which they will set according to their own values. Not a shot will be fired as Biden and Harris simply yield our rights to a global governing system.
But we do not have to go quietly into this night. Free speech remains a human right that is part of our DNA as Americans. We can fight back and protect millions of Edgertons who want to express their views regardless of the judgment of the majority.
I previously called for legislation to get the U.S. government out of the censorship business domestically. We also need new legislation to keep other countries from regulating the speech of our own citizens and companies. While this country has long threatened retaliation in combatting market barriers in other countries, we need to do the same thing for free speech. We need a federal law that opposes the intrusion of the Digital Services Act into the U.S. If free speech is truly the “indispensable right” of all Americans, we need to treat this threat as an attack on our very existence. It is not only the rawest form of foreign intervention into an election, but a foreign attack on our very freedoms. This is why we must pass a Digital Freedom Act.
Special Counsel David Weiss appears to have finally made the long-awaited case exposing years of concealment and political corruption. No, it is not the case against Hunter Biden. The allegations of tax fraud in California are obvious and unavoidable. Weiss just made the case against the Justice Department and himself in protecting Hunter Biden from the most damaging charges of being an unregistered foreign agent. In a new filing, Weiss released evidence on Hunter seeking money to advance the interests of a Romanian on United States policy.
I have previously testified on the Foreign Agents Registration Act and have previously written about the disturbing disconnect in the treatment of the President’s son as opposed to figures like Paul Manafort. The charge was always one of the greatest fears of the White House. If Hunter Biden was a foreign agent, it would magnify the influence peddling scandal and further link his conduct to work of his father as vice president and later president.
What was previously known about millions received from China, Russia, and other countries made such a charge obvious. In the past, the Justice Department has used the charge early and often in high-profile cases to pressure defendants and force cooperation or plea agreements. During the Trump Administration, an official could not go to Epcot without drawing a FARA charge from DOJ.
This charge has been a favorite of the DOJ before the President’s son was implicated in a massive influence peddling scheme with foreign figures.
Here is the definition used in such cases:
A “foreign agent” is defined as “(1) any person who acts as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal, and who directly or through any other person— (i) engages within the United States in political activities for or in the interests of such foreign principal; (ii) acts within the United States as a public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal; (iii) within the United States solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of such foreign principal; or (iv) within the United States represents the interests of such foreign principal before any agency or official of the Government of the United States; and (2) any person who agrees, consents, assumes or purports to act as, or who is or holds himself out to be, whether or not pursuant to contractual relationship, an agent of a foreign principal as defined in clause (1) of this subsection.”
For years, I have expressed alarm at the special treatment afforded to Hunter Biden on the charges. Many of us have also criticized Weiss for allowing the most serious tax charges to expire despite being able to extend the statute of limitations. He has yet to offer a compelling reason why prosecutors would ever allow viable felony charges to expire when they could have extended that period.
Now, Biden is seeking to avoid conviction under the tax charges in California. He is repeating the claims that failed in his recent gun violation. He is claiming that he was an addict and not responsible for his criminal conduct, even though he was flying around the world collecting millions from foreign sources.
To rebut that claim, Weiss’ team said they plan to introduce evidence showing his sophisticated scheme to tap foreign sources interested in influencing the government and federal policy.
In the filing below, Weiss opposes the Biden team effort to exclude the evidence of his working for the Romanians. Senior assistant special counsel Derek Hines writes in the filing that “[t]he evidence of what the defendant agreed to do and did do for [the businessman] demonstrates the defendant’s state of mind and intent during the relevant tax years charged in the indictment. It is also evidence that the defendant’s actions do not reflect someone with a diminished capacity, given that he agreed to attempt to influence U.S. public policy and receive millions of dollars pursuant to an oral agreement.”
That sounds a lot like seeking the work of a foreign agent. Here is the language from FARA:
“The first category of evidence the defendant seeks to exclude is any “reference to allegations that Mr. Biden (1) acted on behalf of a foreign principal to influence U.S. policy and public opinion . . .” Motion at 3 (emphasis added). The government does not intend to reference allegations at trial. Rather, the government will introduce the evidence described above, including that the defendant and Business Associate 1 received compensation from a foreign principal who was attempting to influence U.S. policy and public opinion and cause the United States to investigate the Romanian investigation of G.P in Romania.” (emphasis added)
It is a curious argument. It is akin to saying that we know that he stole the car because he used it in the kidnapping. It leaves most people wondering why you did not charge on the kidnapping crime.
The fact is that this is only one of an array of such contracts that have been detailed by the House Oversight Committee and other House committees. The other foreign dealings reportedly involved Hunter reaching out to government officials while his father was vice president. That includes the controversy over Joe Biden’s sudden decision to issue an ultimatum to the Ukrainian government.
In a 2018 interview at the Council on Foreign Relations, Biden bragged that he unilaterally withheld a billion dollars in US aid from the Ukrainians to force them to fire prosecutor general Viktor Shokin.
The Ukrainians balked, but Biden gave them an ultimatum: “I looked at them and said, ‘I’m leaving in six hours. If the prosecutor is not fired, you’re not getting the money.’ Well, son of a bitch. He got fired.”
However, a State Department memo is shedding disturbing light on that account and shredding aspects of Biden’s justification for the action. It directly contradicts Biden’s insistence that he took this extraordinary stand because there was little hope for the anti-corruption efforts in Ukraine if Shokin remained prosecutor.
The Oct. 1, 2015, memo summarizes the recommendation of the Interagency Policy Committee that was handling the anti-corruption efforts in Ukraine: “Ukraine has made sufficient progress on its reform agenda to justify a third guarantee.” One senior official even complimented Shokin on his progress in fighting corruption. So, Biden was told to deliver on the federal aid but elected to unilaterally demand Shokin be fired.
In testimony from Devon Archer, a business associate of Hunter Biden, we learned that Burisma executives made the removal of Shokin a top priority and raised it with Hunter. He described how the need to neutralize Shokin was raised with Hunter and how “a call to Washington” was made in response. While Archer also said that “the narrative spun to me was that Shokin was under control,” he and others also heard concerns over Shokin and the risks of the investigation.
Other transactions directly requested intervention on matters being addressed by the Obama-Biden Administration.
So, now, the Justice Department is citing some of these dealings to show a conscious and premeditated effort to shake down foreigners to influence U.S. policy. Weiss now maintains that “The defendant did receive compensation from a foreign principal to attempt to influence U.S. policy and public opinion, as alleged in the indictment, and this evidence is relevant.”
They have made more than the case against Hunter Biden. They have made a conclusive and overwhelming case against themselves in slow walking and minimizing charges against the President’s son.
We have previously discussed schools such as Harvard, Yale, and even courts removing portraits of white people in the name of inclusivity despite complaints that the left is engaging in its own form of racism. The media as praised these efforts and, in one case, MSNBC’s Rachel Maddow spurred Rockefeller University to change what she derided as the “Dude Wall.” Now Canada’s Dalhousie University Medical School has joined these ranks in ordering the removal of former “old” and “white” deans in a campaign to “put people first” … with some obvious exceptions.
Dean of Medicine David Anderson announced the portrait cleansing in a message as part of the school’s “Valuing People” initiative. He declared that showing former white deans was inimical to “creating positive, safe, and inclusive environments for people to thrive.”
He claimed that the appearance of white people in the portraits make students feel unwelcomed and “dominated by senior male white leaders.” In other words, their race was viewed as interfering with maintaining a healthy and friendly environment.
This exclusion was all done in the name of inclusion, part of the Orwellian logic of today’s culture in higher education.
What is lost is the history of the institution and the recognition of those who built the medical school regardless of their race. Whatever they may have done for the school has been now superseded by their race and gender. As greater gender and racial diversity is achieved, those portraits show an institutional progression that is reflective of a changing society and profession.
Below is my column in The Hill on the controversies surrounding the Paris Olympics. Criticisms of the Opening Ceremony continue with the Vatican weighing in this week to condemn the scenes discussed below.
Here is the column:
“I wanted no part of politics.” Those words of Jesse Owens after the 1936 Olympics echoed in my mind as I watched the string of controversies emerge from the Paris games.
From the scenes in the Opening Ceremony to even the food service in the Olympic village, the 2024 Olympics sometimes seemed like a clash not of individual athletes but of political agendas.
The Opening Ceremony of director Thomas Jolly is still raising protests from religious and other groups over two controversial segments. In one scene, three young people are shown flirting in a library while reading books like “Les Liaisons Dangereuses” (Dangerous Liaisons) and “Le Diable au Corps” (Devil in the Flesh). They then run to an apartment for what was clearly a threesome sex-romp, culminating in the participants pushing the cameraman out of the bedroom.
Many people (including me) could not care less about who or how many people you have sex with. Many also would prefer not to have to explain to kids watching what the scene meant if they failed to pick up the meaning from the hot stairway kissing scene.
Then there was the feast scene, featuring DJ and producer Barbara Butch, described as “an LGBTQ+ icon who calls herself a ‘love activist.’” For many, the tableau evoked Leonardo da Vinci’s “The Last Supper” — an image that was brought home for many by the Christ-like halo worn by Butch in the center.
For the record, I loved many parts of the Opening Ceremony with its stunning imagery and wonderful music. I also welcomed the inclusion of scenes with gay or trans people to show the diversity of French culture.
But for games that are supposed to serve as a shared experience for a world composed of many religions, cultures and practices, these two scenes were gratuitously divisive. Why was a threesome sex romp so vital to the vision of these Olympics?
For many, the hoisting of the Olympic flag upside down seemed to capture the approach of the French organizers. The games are supposed to capture our shared love of sports and ability to come together as a world for these games.
But that was only the beginning of the controversies, as the games appeared to make political and social divisions into an Olympic sport. It seemed like every aspect of the games, no matter how small, had to “make a point.”
For example, the environmentalists prevailed in pushing a green agenda that succeeded in not only producing possibly more carbon emissions but certainly pushing many nations over the edge.
Athletes have complained that their performances were undermined by the conditions at the village. That included “green beds” made of cardboard — beds that are ideal for recycling and a nightmare to actually sleep on. Athletes complained that they competed with little sleep on the beds designed by some woke Marquis de Sade.
Air conditioning was a “non” at the Paris Olympics, leaving athletes sweltering on their cardboard beds. It was so miserable that various countries flew in air units to make the rooms inhabitable.
Then there was the food shortage. Many blamed the push for plant-based food to lower the games’ carbon footprint. The result was that many teams, given their athletes’ need for high-protein and high-calorie meals, turned up their noses at the “reasonable,” “sustainable” choices and flew in not just their own food but also their own chefs.
None of this, of course, was about the athletes, who were left literally scavenging for meat. Their food and living conditions were meant to send a message, much like the opening ceremony, that was separate from them or their competitions. It seems like only interest groups were cheering, as athletes literally sweated it out before even going to compete.
Ironically, the many planes and trucks used to ship air conditioning units, food, and staff to Paris likely wiped out any climate benefits.
The games then became the focus of an even more intense debate over the decision to allow transgender athletes to compete in women’s sports.
Imane Khelif of Algeria defeated Angela Carini of Italy in just 46 seconds in the ring. Carini tapped out, stating that in her entire career she had never been hit that hard.
It was later revealed that Khelif and another boxer, Lin Yu‑ting of Taiwan, had failed to meet gender eligibility tests at the Women’s World Boxing Championships in New Delhi just last year. (It should be noted that Khelif is not a transgender athlete but someone listed with differences of sexual development, known as DSDs.) Khelif and Yu-ting competed in the last Olympics without medaling. (Yu-ting won a fight on Friday in the women’s 57kg category against Uzbekistan’s Sitora Turdibekova to reach the quarterfinals.)
In fairness, the Olympics, like all federations, is struggling with this issue and it is not the responsibility of the French organizers. Yet the theme of the games also outraged some civil libertarians. For example, there was another controversy at the start of the games when France announced that its Muslim athletes would not be allowed to wear their hijabs, or hair coverings, a decision that some of us condemned as a gratuitous denial of their faith. France is infamous for barring religious garb in public as part of its secularist tradition.
At the same time, French authorities have announced that charges are being considered against critics of the participants and organizers of the “Last Supper” scene.
There is little debate that direct, intentional threats should be prosecuted as they are in the U.S. But France is now one of the most anti-free speech nations in the West, with its sweeping criminalization of speech that can be interpreted as “inciting” or “intimidating” others.
These measures reflect the most glaring disconnect in the Opening Ceremony where the French motto of Liberty, Equality and Fraternity (“liberté, égalité, fraternité”) was celebrated.
In today’s France, “liberté” is no longer valued. Individual rights of religion and speech are routinely sacrificed in the name of “equity” and “fraternity.”
Many in this country believe that we should follow the same path. As I discuss in my new book The Indispensable Right: Free Speech in an Age of Rage,” this movement has reached our shores, with many calling for individual rights like free speech to be limited by goals of equity. There is even a movement to amend the First Amendment as “aggressively individualistic.”
In spite of our best efforts, the athletes of the Paris games continue to inspire us. Ratings are soaring. I have been glued to the television and have already fallen into the habit of gasping in shock when a gymnast steps slightly out of bounds after doing a routine that would have left me crippled for life for just attempting. They make us believe that anything is possible, even superhuman feats.
There are times when athletes cannot escape the politics of our age. When Owens won four gold medals with Hitler watching, there was no missing the transcendent meaning of his achievement.
That message, however, was far more powerful because it was delivered by an athlete as part of his competition. The problem with the Paris games is that they are trying to make it more about us than it is about them.
Texas won a big victory in the United States Court of Appeals in the long struggle over floating buoy barriers in the Rio Grande River to help block unlawful migration. In United States v. Abbott, the court ruled 11-7 in an en banc decision against the Biden Administration over the barrier. It is an interesting decision that included a sharp disagreement over the claim that the large numbers of migrants across the border constitute an “invasion” under Article I, Section 10, Clause 3 (“[n]o state shall, without the Consent of Congress, . . . engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay”).
In its challenge, the Biden Administration claimed the placement of the buoys violated the Rivers and Harbors Act of 1899. The appellate panel and trial court previously ruled in favor of the federal government. However, both were overturned. The majority found that the specific stretch of the Rio Grande that was chosen by the state is not covered by the Rivers and Harbors Act because it is not “navigable.” The definition of navigable waters has long been a matter of dispute in the courts.
Yet, it was the invasion issue that had many of us watching for this decision. I have previously expressed doubts over this theory. I agree with Texas on its criticism of the Biden Administration’s disastrous handling of the border. The impact on Texas is devastating. However, I do not believe that it qualifies as an invasion under Article I.
The opinions deal with this issue in dicta rather than the central holding. Some judges felt that the court should have addressed the issue.
What is interesting is the concurring opinion of Judge James Ho that the meaning of “invasion” is a “political question.” As such, he believes that courts must defer to the Texas governor’s assertion that there is an invasion, at least so long as the governor is acting in “good faith.”
In his concurring opinion, Judge Andrew Oldham maintains that Ho is wrong about the necessity of the court in taking up the issue.
In her dissenting opinion, Judge Dana Douglas objects that this approach would have sweeping and destabilizing effects and “would enable Governor Abbott to engage in acts of war in perpetuity.”
Below is my column in the New York Post on President Joe Biden’s call to reform the Supreme Court by ending lifetime tenure for Supreme Court justices.
Here is the column:
President (and Supreme Court Chief Justice) William Howard Taft once said, “presidents come and go, but the Supreme Court goes on forever.” But not if Joe Biden has his way. Indeed, both the president and Court as we know it could be gone.
In a failed attempt to save his nomination, Biden offered to “reform” the Court by imposing an 18-year term limit that would jettison the three most senior conservative justices. ith only six months left in his presidency, Biden’s efforts are likely to fail, but, unfortunately, could set the stage for activists under a Harris Administration in seeking to change the Court forever.
For more than 50 years, Biden staunchly refused to play politics with the Supreme Court and support calls for “reforms” from the left of his party.
For a politician who has long been criticized for changing positions with the polls on issues from abortion to criminal justice to gun rights, the Court was one of the few areas of true principle for Biden. Even though he refused to answer questions on packing the Court in the 2020 election, he ultimately rejected the call as president.
Yet Biden’s final principle fell this month when facing the premature and involuntary end of his candidacy. Faced with being a one-term president, the Supreme Court would have to be sacrificed. Biden opted for the least of the evils in pushing for term limits rather than court packing. It was the more popular option for Biden to yield on. Voters have always loved term limits.
The Associated Press-NORC Center for Public Affairs Research found 67% of Americans, including 82% of Democrats and 57% of Republicans, support a proposal to set finite terms for justices. But there were few law professors and even fewer Democratic members clamoring for term limits until conservatives secured a stable majority on the Court. Then, suddenly, the Court had to be “reformed” without delay.
It is no accident that the first three justices who would be term limited off the Court are conservatives: Clarence Thomas (after 33 years on the Court), Chief Justice John Roberts (after 19 years), and Justice Samuel Alito (after 18 years).
Think, however, about the iconic decisions we would have lost with term limits in place. Liberal Justice Williams Douglas’s 36 years on the Court would have literally been cut in half. He would have been kicked off in 1957. His famous opinions like Griswold v. Connecticut (1965), striking down bans on contraceptives, would not have been written — an ironic result for those seeking limits after the Court’s ruling in Dobbs.
Likewise, liberal icon Ruth Bader Ginsberg’s tenure would have ended in 2011 before she wrote her famous dissent Shelby County v. Holder (2013), defending voting rights.
Anthony Kennedy’s term would have ended in 2011 rather than 2018, before he wrote opinions such as United States v. Windsor, striking down the Defense of Marriage Act.
Obviously, other justices could have written opinions in these cases, but the point is that many justices wrote their best opinions after 18 years on the Court. Moreover, the Framers clearly wanted these positions as lifetime appointments as an added protection against political pressure or influence.
For more than two centuries, presidents have struggled with the Supreme Court, but none (until now) have attempted to end life tenure on the Court. Presidents have served as the firewall for the anger and radicalism that has periodically engulfed the Court. Now President Biden is leading the mob for changing this institution for the first time since its founding.
It is a testament to what I call “an age of rage” in my new book. After years of supporting the Court when it was setting aside conservative precedent, liberals now want the Court changed to dump or dilute the majority. It is unlikely to end there. After sending Thomas, Roberts, and Alito packing, many want to go further and pack the Court itself.
Democratic leaders such as Sen. Elizabeth Warren (D-Mass.) have called for outright court packing — a proposal that Vice President Kamala Harris has suggested that she might support. Where Biden is a political opportunist in belatedly joining this movement, Harris is a true believer from the far left. If she is elected, the Congress is still likely to be closely divided. That will only increase pressure to convert the Court into an alternative avenue for social and political reform.
Harvard professor Michael Klarman warned that all of the plans to change the country were ultimately dependent on packing the court. With the 2020 election, he stated that Democrats could change the election system to guarantee Republicans “will never win another election.”
Notably, if Biden were to seek this change as a legislative matter without a constitutional amendment, future Congresses could short terms further from 18 to 8 years or even less.
In his speech, Biden declared that he wanted the membership of the Court changed with greater “regularity.” If Congress has this authority, it could change the occupants of the Court faster than a South Beach timeshare condo. That is clearly the opposite of what the Framers intended, but Biden insists that these times are different, and democracy will only be safeguarded by attacking one of our core stabilizing institutions.
According to the Washington Post, the president made his pledge in a Zoom call to the left-wing Congressional Progressive Caucus, chaired by Rep. Pramila Jayapal (D-Wash.) and co-chaired by Rep. Ilhan Omar (D-Minn.). It did not succeed in resuscitating his candidacy.
The pledge will be dead on arrival with Congress. What is left is a King Lear-like tragedy of a president, betrayed by those closest to him, and wandering the land for continued relevance. History will show a pitiful figure who offered up the Court as the cost of staying in power, only to lose his candidacy and his legacy.
Jonathan Turley is a Fox News Media contributor and the Shapiro professor of public interest law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.”
I hope that our readers have read the response of NewsGuard’s Gordon Crovitz to my recent criticism of the company’s rating system for news sites. He makes important points, including the fact that the company has given high ratings to conservative sites and low ratings to some liberal sites. I have mutual friends of both Gordon and his co-founder Steve Brill, who have always sworn by their integrity and motivations. I do not question Gordon’s account of past ratings for sites.
However, I also welcome the opportunity to further this discussion over media rating systems and to explain why I remain unconvinced by his defense. It is a long overdue debate on the use and potential misuse of such systems.
As a threshold matter, I want to note that I am aware of conservative sites reviewed by NewsGuard that have been given favorable ratings. That is a valid distinction from past rating sites like the Global Disinformation Index (GDI).
Moreover, while I noted that NewsGuard has been accused of bias by conservatives and is being investigated in Congress, my primary objections are to rating systems as a concept for media sites. Before addressing that opposition, I should note that I still have concerns over bias from the email that was sent me, particularly just after a column criticizing the company.
Now to the main concern.
A Shield or a Sword?
In his response to me, Gordon argues that “I would have thought, including based on your recent book, that you’d especially welcome an accountable market alternative to censorship.”
I disagree with Gordon’s suggested dichotomy. As I argue in the column, rating systems are arguably the most effective means to silence opposing voices or sites. These systems are used to target revenue sources and have been weaponized by the current anti-free speech movement. They are used more as a sword than a shield by those who want to marginalize or demonetize a site.
We have seen such campaigns targeting various sites and individuals, led by political groups opposed to their viewpoints, including figures such as Joe Rogan. This includes Elon Musk and X after the reduction of censorship systems and the release of the “Twitter Files.” After being targeted by these campaigns for years, rating systems have been denounced by Musk as part of an “online censorship racket.”
Moreover, the use of private entities like NewsGuard is precisely what makes the current movement so insidious and dangerous. Whether by design or by default, rating systems are effective components of what I have described as a system of “censorship by surrogate.”
What NewsGuard is attempting is potentially far more impactful for the funding and viability of websites. Rather than an alternative, it can be an avenue for censorship.
I have also written about my concerns with the Global Alliance for Responsible Media and its use of rating systems to deter advertisers for targeted sites. The group states that it “unites marketers, media agencies, media platforms, industry associations, and advertising technology solutions providers to safeguard the potential of digital media by reducing the availability and monetization of harmful content online.”
As the column discusses, NewsGuard seeks to position itself as a type of Standard & Poor’s rating system for media. The role would give the company unprecedented influence over the journalistic and political speech in America. The rating can be used to discourage advertisers and revenue sources for targeted sites. Just as S&P scores can kill a business, a media rating could kill a blog or website.
That is an enormous amount of power to be wielded by any organization, let alone a for-profit enterprise started by two self-appointed monitors of media. That is not meant to disparage Gordon and Steve, but to acknowledge that this is not just a hugely profitable but a hugely powerful enterprise.
It is also not a criticism of the founding principles. We have seen many organizations that began as faithful to principles of neutrality only to see those principles corrupted with time. Indeed, as we have previously discussed, the very principles of objectivity and neutrality are now rejected in many journalism schools.
The Criteria
While NewsGuard insists that its criteria is completely objective and neutral, that does not appear to be the case. The site’s standards include key determinations on whether some sites run statements that NewsGuard considers “clearly and significantly false or egregiously misleading.” (That appears part of the most heavily weighted criteria for credibility at 22 points).
The staff will determine if it believes that a site shows a tendency to “egregiously distort or misrepresent information.”
The staff decides if information is false and, if it is considered false by NewsGuard, whether the site “identifies errors and publishes clarifications and corrections, transparently acknowledges errors, and does not regularly leave significant false content uncorrected.” Thus, if you disagree with the claims of falsity or view the statement as opinion, the failure to correct the statement will result in additional penalties.
The site will also determine if it finds the sources used by a site to be “credible” and whether “they … egregiously distort or misrepresent information to make an argument or report on a subject.”
If the site decides that there are errors, it will lower ratings if the site does not “transparently acknowledges errors, and does not regularly leave significant false content uncorrected.”
The company pledges to combat “misinformation” and “false narratives.”
We have seen mainstream media use these very terms to engage in highly biased coverages, including labeling true stories or viewpoints “disinformation.”
Given these terms and the history of their use in the media, NewsGuards assurances boil down to “trust us we’re NewsGuard.” GDI made the same assurances.
This is not to say that some of these criteria cannot be helpful for sites. However, the overall rating of media sites is different from Standard & Poor’s. Financial ratings are based on hard figures of assets, earnings, and liabilities. “Liquidity” is far more concrete and objective than “credibility.” What NewsGuard does is fraught with subjectivity regardless of the motivations or intentions of individual raters.
The Res Ipsa Review
The inquiry sent to this blog reflects those concerns. The timing of the inquiry was itself chilling. I had just criticized NewsGuard roughly a week earlier. It is not known if this played any role in the sudden notice of a review of Res Ipsa.
One inquiry particularly stood out for me. The reviewer informed me:
“I cannot find any information on the site that would signal to readers that the site’s content reflects a conservative or libertarian perspective, as is evident in your articles. Why is this perspective not disclosed to give readers a sense of the site’s point of view?”
The effort of NewsGuard to label sites can have an impact on its ratings on credibility and transparency. Yet, sites may disagree with the conclusions of NewsGuard on their view of the content. What may seem conservative to a NewsGuard reviewer may be less clearly ideological to the host or blog.
Moreover, despite noting that it asked MSNBC to state its liberal bias, it is not clear if the company has suggested such a notice from many other sites from NPR to the New Republic. For example, is Above the Law supposed to warn readers that it takes a liberal perspective and regularly attacks conservatives? What about other academic blogs like Balkinization?
The point is not to say that they should be required to label their own views (though some sites choose to do so) but to ask whether all sites are asked to do so. If not, when is this demand made for sites? For some reviewers, a liberal perspective may simply seem like stating the obvious or unassailable truth.
Labeling
In fairness to NewsGuard, we all often engage in labeling as part of our discussions — both labeling ourselves and others. For example, I often acknowledge that I hold many libertarian views. However, I continue to write columns that run across the ideological spectrum and I continue to be attacked from both the right and the left for those columns.
Identifying yourself as a libertarian does not convey much information for readers. Many readers have erroneous views of libertarians as a monolithic group. (The public high school teacher of one of my kids told the class that libertarians were just conservatives who did not want to call themselves Republicans). In actuality, it is a group that runs from liberal to conservative figures who maximize individual rights. Labeling your site as libertarian is about as helpful as saying that it is utilitarian.
The suggestion in the email is that readers should be informed that anything they read is coming from a libertarian or conservative on the site. Yet, most law professor blogs are very liberal, but do not make the same type of warning.
We often discuss these labels in judging the diversity of faculties. Yet, that is based largely on surveys of professors self-identifying or the political registration of academics. It is admittedly a blunt tool, but there is little debate that faculties around the country are overwhelmingly liberal. Indeed, even sites like Above the Law have strived to defend “predominantly liberal faculties” as just reflecting the fact that most conservatives are simply wrong on the law.
There is always an overgeneralization in the use of such labels, but we try to take that into consideration in discussing the overall lack of diversity of viewpoints on campuses today.
Conclusion
Rating media sites is vastly different. You are often relying on the views of the reviewers that may be challenged by the site. Postings that challenge popular narratives are often denounced as false or disinformation by critics.
I am particularly concerned over the reported government contracts given to NewsGuard by the Biden Administration as well as agreements with teacher unions to help filter or rate sites. The Twitter Files have shown an extensive system of funding and coordination between agencies and these companies. The funding of such private rating or targeting operations is precisely what I have warned about in congressional testimony as a type of “censorship by surrogate.” The government has been attempting to achieve forms of censorship indirectly that it is barred from achieving directly under the First Amendment.
Consider those bloggers and scientists who were censored and denounced for voicing support for the lab theory on Covid 19 and other subjects from the efficacy of masks to the need to shutdown schools. They spent years having mainstream media figures denouncing them for refusing to admit that they were spreading disinformation or conforming to general views on these issues.
Political and legal commentary are rife with contested opinion over the facts and their implications. Having a company sit in judgment on what is fact and what is opinion is a troubling role, particularly when the rating is used to influence advertisers and financial supporters.
Once again, there are many people on the other side of this debate who have good-faith reasons for wanting a standardized set of criteria for news sources and commentary sites. I simply believe that this is a degree of influence that is dangerously concentrated in a small number of groups like NewsGuard.
N.B.: After this response ran, NewsGuard wrote me that Above The Law actually was marked down for failing to clearly delineate between news and opinion. It further said that the New Republic acknowledges its liberal take, so there is no issue on labeling. What is not clear is whether every site, including academic blogs, are asked to label themselves and who makes that decision on what label should apply.
Below is my column in The Hill on the recent notice that this blog is now being formally “reviewed” by NewsGuard, a company that I just criticized in a prior Hill column as a threat to free speech. The questions from NewsGuard were revealing and concerning. Today, I have posted the response of NewsGuard’s co-founder Gordon Crovitz as well as my response to his arguments.
Here are is the column:
Recently, I wrote a Hill column criticizing NewsGuard, a rating operation being used to warn users, advertisers, educators and funders away from media outlets based on how it views the outlets’ “credibility and transparency.” Roughly a week later, NewsGuard came knocking at my door. My blog, Res Ipsa (jonathanturley.org), is now being reviewed and the questions sent by NewsGuard were alarming, but not surprising.
I do not know whether the sudden interest in my site was prompted by my column. I have previously criticized NewsGuard as one of the most sophisticated operations being used to “white list” and “black list” sites. My new book, “The Indispensable Right: Free Speech in an Age of Rage,” details how such sites fit into a massive censorship system that one federal court called “Orwellian.”
For any site criticizing the media or the Biden administration, the most chilling words today are “I’m from NewsGuard and I am here to rate you.”
Conservatives have long accused the company of targeting conservative and libertarian sites and carrying out the agenda of its co-founder Steven Brill. Conversely, many media outlets have heralded his efforts to identify disinformation sites for advertisers and agencies.
Brill and his co-founder, L. Gordon Crovitz, want their company to be the media version of the Standard & Poor’s rating for financial institutions. However, unlike the S&P, which looks at financial reports, NewsGuard rates highly subjective judgments like “credibility” based on whether they publish “clearly and significantly false or egregiously misleading” information. They even offer a “Nutrition Label” for consumers of information.
Of course, what Brill considers nutritious may not be the preferred diet of many in the country. But they might not get a choice since the goal is to allow other companies and carriers to use the ratings to disfavor or censor non-nutritious sites.
The rating of sites is arguably the most effective way of silencing or marginalizing opposing views. I previously wrote about other sites supported by the Biden administration that performed a similar function, including the Global Disinformation Index (GDI). GDI then released a list of the 10 most dangerous sites, all of which are popular with conservatives, libertarians and independents. GDI warned advertisers that they were accepting “reputational and brand risk” by “financially supporting disinformation online.” The blacklisted sites included Reason, a respected libertarian-oriented source of news and commentary about the government. However, HuffPost, a far left media outlet, was included among the 10 sites at lowest risk of spreading disinformation.
When NewsGuard came looking for Res Ipsa, the questions sounded like they came directly from CGI. I was first asked for information on the financial or revenue sources used to support my blog, on which I republish my opinion pieces from various newspapers and publish original blog columns.
Given NewsGuard’s reputation, the email would ordinarily trigger panic on many sites. But I pay not to have advertising, and the closest I come to financial support would be my wife, since we live in a community property state. If NewsGuard wants to blacklist me with my wife, it is a bit late. Trust me, she knows.
NewsGuard also claimed that it could not find a single correction on my site. In fact, there is a location for readers marked “corrections” to register objections and corrections to postings on the site. I also occasionally post corrections,changes and clarifications.
NewsGuard also made bizarre inquiries, including about why I called my blog “Res Ipsa Liquitur [sic] – the thing itself speaks. Could you explain the reason to this non-lawyer?” Res ipsa loquitur is defined in the header as “The thing itself speaks,” which I think speaks for itself.
But one concern was particularly illuminating:
“I cannot find any information on the site that would signal to readers that the site’s content reflects a conservative or libertarian perspective, as is evident in your articles. Why is this perspective not disclosed to give readers a sense of the site’s point of view?”
I have historically been criticized as a liberal, conservative or a libertarian depending on the particular op-eds. I certainly admit to libertarian viewpoints, though I hold many traditional liberal views. For example, I have been outspoken for decades in favor same-sex marriage, environmental protection, free speech and other individual rights. I am a registered Democrat who has defended reporters, activists and academics on the left for years in both courts and columns.
The blog has thousands of postings that cut across the ideological spectrum. What I have not done is suspend my legal judgment when cases touch on the interests of conservatives or Donald Trump. While I have criticized Trump in the past, I have also objected to some of the efforts to impeach or convict him on dubious legal theories.
Yet, NewsGuard appears to believe that I should label myself as conservative or libertarian as a warning or notice to any innocent strays who may wander on to my blog. It does not appear that NewsGuard makes the same objection to HuffPost or the New Republic, which run overwhelmingly liberal posts. Yet, alleged conservative or libertarian sites are expected to post a warning as if they were porn sites.
NewsGuard is not alone in employing this technique. Mainstream media outlets often label me as a “conservative professor” in reporting my viewpoints. They do not ordinarily label professors with pronounced liberal views or anti-Trump writings as “liberal.”
Studies show that the vast majority of law professors run from the left to the far left. A study found that only 9 percent of law school professors at the top 50 law schools identify as conservative. A 2017 study found only 15 percent of faculties overall were conservative.
It is rare for the media to identify those professors as “liberal,” including many professors on the far left who regularly denounce conservatives or Republicans. It is simply treated as not worth mentioning. Yet, anyone libertarian or right of center gets the moniker as a warning that their viewpoint should considered in weighing their conclusions. Yet, NewsGuard is in the business of labeling people . . . and warning advertisers. It considers my writings to be conservative or libertarian and wants to know “Why is this perspective not disclosed to give readers a sense of the site’s point of view?”
It does not matter that my views cut across the ideological spectrum or that I do not agree with NewsGuard’s label. Indeed, while I clearly hold libertarian views, libertarians run a spectrum from liberal to conservative. The common article of faith is the maximization of individual rights, while there is considerable disagreement on many policies. Steven Brill is considered a diehard liberal. Would it be fair to add a notice or qualifier of “liberal” to any of his columns or opinions?
It does not matter. Apparently from where NewsGuard reviewers sit, I am a de facto conservative or libertarian who needs to wear a digital bell to warn others.
It is a system that includes what Elon Musk correctly called “the advertising boycott racket.” Musk was responding to another such group pushing a rating system as an euphemism for blacklisting. For targeted sites, NewsGuard is now the leading racketeer in that system. It makes millions of dollars by rating sites — a new and profitable enterprise with dozens of other academic and for-profit groups. They have commoditized free speech in blacklisting and potentially silencing others. If you are the Standard & Poor’s of political discourse, you can rate sites out of existence by making them a type of junk bond blog.
Yet, the fact that I have no advertisers or sponsors to scare off does not mean that NewsGuard cannot undermine the site. The company has reportedly received federal contracts, which some in Congress have sought to block. It is also allied with organizations like Turnitin to control what teachers and students will read or use in schools. The powerful American Federation of Teachers, which has been criticized for its far left political alliances with Democratic candidates, has also pushed NewsGuard for schools.
This is why my book calls for a number of reforms, including barring federal funds for groups engaged in censoring, rating or blacklisting sites. NewsGuard shows that such legislation cannot come soon enough.
N.B.: The original version of this column included MSNBC as an example of liberal sites that do not post their own ideological bent or label. I later heard from NewsGuard that they did indeed mark down MSNBC for failing to make such a disclosure, so I removed it from this blog column. I posted a response today on why I continue to oppose rating systems such as NewsGuard.
On the weekend, I ran a column critical of NewsGuard and its recent notification of this blog that it was being “rated.” NewsGuard co-founder Gordon Crovitz responded to that column the next day. We have previously exchanged emails on my concerns over rating systems generally, including the Global Disinformation Index (which is not related to NewsGuard). I noted the concerns over bias from conservatives and members of Congress, but my primary concern remains with the concept of a rating system for media sites and blogs. While NewsGuard has given high ratings to some conservative sites, I generally oppose media rating systems due to free speech concerns and the use of these systems by the current anti-free speech movement.
I have always found Gordon to be open and frank about these subjects and I wanted readers on the blog to hear the opposing view from him directly. He was kind enough to consent to my posting the following. I will be posting a response to Gordon separately in the hopes that we can use this controversy as a foundation for a much needed discussion of rating systems and their impact on free speech.
Here is his response:
Jonathan:
We welcome the publicity, but your complaints in your July 27 commentary in the Hill about NewsGuard seem based on some misunderstandings.
First, we launched NewsGuard in 2018 as an alternative either to the Silicon Valley platforms secretly putting their thumbs on the scale for news and information sites or for calls to have the government censor social media and other online speech. Digital platforms were (and are) secretly rating news and information websites, with no disclosure about their criteria and no way for the people running the websites even to find out how they were rated. The only other entity rating news and information sites at the time we launched was GDI, which as you have written is a left-wing advocacy group–which like the digital platforms does not disclose its criteria or let publishers know how they are rated (except when information escapes such as the top 10 list of “risky” sites, which as you noted are all conservative or libertarian sites).
As I have written as a (libertarian-leaning) conservative former publisher, including in this recent Washington Examiner article https://www.washingtonexaminer.com/opinion/3091369/advertisers-fear-supporting-journalism-heres-how-to-fix-that/, I wouldn’t trust the platforms or a left-wing advocacy group either. We launched NewsGuard as the transparent and apolitical alternative, with the goal of giving news consumers basic information about websites they encounter online.
We reach out to the people running news and information websites for several purposes. We want to be sure we correctly assess sites based on our nine criteria. We’re a journalistic enterprise, so would always reach out for comment before concluding a site fails any of our criteria. We often quote the people running websites to provide more context about their site, whether they fail any criteria or not. More than a quarter of the websites we’ve rated have taken steps, usually relating to greater transparency, to get higher ratings.
In your column, you asserted that NewsGuard treats liberal sites preferentially compared with how we treat conservative or libertarian sites. This is false, as the many high scores for conservative and libertarian sites–and low scores for liberal sites–makes clear. You’ll see examples in the Washington Examiner article I linked to above. (There are right-wing sites like OAN that get low ratings such as for its Dominion Voting Systems claims, and there are left-wing sites that get low ratings for false claims such as about Donald Trump.)
In your Hill article, you claimed that “it does not appear” that we expect left-wing sites to disclose their point of view to readers. You gave the example of MSNBC. I am attaching our publicly available rating for this website. You will see it fails our criterion relating to news/opinion for failing to disclose its orientation. The MSNBC website scores lower than Fox News using our criteria because MSNBC fails to disclose its orientation whereas the website for Fox News does disclose its. (MSNBC also fails our criterion for gathering and presenting responsibly due to claims it made about Trump, Ron DeSantis, Steve Bannon and others.)
We also anticipated even back when we launched that there would be calls for government censorship if secret and partisan ratings were the only ones available in the market. I would have thought, including based on your recent book, that you’d especially welcome an accountable market alternative to censorship.
Finally, I appreciated your obituary for Bob Zimmer and your calls for the Chicago Principles to be widely adopted. (Whether our UChicago fully lives up to them is a topic for another day–I prefer the more energetic approach of Ed Levi to today’s more appeasing practices.) More information about websites is an exercise of free speech, and when done with transparent apolitical criteria equally applied seems to me a market solution you should support, not criticize or fear.
Below is my column in the New York Post on the ruling against Nina Jankowicz in her defamation case. It turns out that calling opposing views defamation is no better than calling them disinformation.
Here is the column:
For free speech advocates, there are few images more chilling than that of Nina Jankowicz singing her now-infamous tune as “the Mary Poppins of Disinformation.” The woman who would become known as the “Disinformation Czar” sang a cheerful TikTok parody of “Supercalifragilisticexpialidocious” to rally people to the cause of censorship.
When the press caught wind of President Biden’s plan to appoint Jankowicz as head of the Department of Homeland Security’s new “disinformation board,” Fox News said she “intended to censor Americans’ speech.” The backlash was swift. Plans for the board were suspended, and Jankowicz resigned in 2022. She then sued Fox News for defamation.
On Monday, the case was dismissed. But Chief Judge Colm Connolly, a Delaware Democrat, didn’t just say it was legally unfounded — he demolished the claims of figures like Jankowicz that they are really not engaged in censorship.
These figures gleefully worked to silence others with the support of millions in public dollars for years. Yet, when exposed to criticism, they often portrayed themselves as victims with an obliging and supportive media.
They all took a page from Mary Poppins, who “taught us the most wonderful word!” In this case, the word is “disinformation”, and it is certainly not connected to “censorship.” Rather you are supposed to call the barring, blacklisting and throttling of opposing views “content moderation.”
Jankowicz took that not-so-noble lie to a new level. After losing her job, she launched a campaign soliciting funds to sue those who called her a censor. I was highly critical of these efforts as trying to use defamation as another tool to chill critics and shut down criticism. It was a telling lawsuit, as Jankowicz simply labeled criticism of her as “defamation” — just as she labeled opposing views “disinformation.” The objections to her work were called false and she insisted that she was really not seeking to censor people with her work.
Connolly made fast work of that effort. After holding that people are allowed to criticize Jankowicz as protected opinion, the court added:
“I agree that Jankowicz has not pleaded facts from which it could plausibly be inferred that the challenged statements regarding intended censorship by Jankowicz are not substantially true. On the contrary … censorship is commonly understood to encompass efforts to scrutinize and examine speech in order to suppress certain communications.
“The Disinformation Governance Board was formed precisely to examine citizens’ speech and, in coordination with the private sector, identify ‘misinformation,’ ‘disinformation,’ and ‘malinformation.’ … that objective is fairly characterized as a form of censorship.”
Of course, in America’s burgeoning censorship infrastructure, the entire decision is likely to be viewed as some form of disinformation, misinformation or malinformation. After all, even true facts can be deemed censorable by the Biden-Harris administration.
I testified previously before Congress on how Jen Easterly, who heads the Cybersecurity and Infrastructure Security Agency, extended her agency’s mandate over critical infrastructure to include “our cognitive infrastructure.” The resulting censorship efforts included combating “malinformation” — described as information “based on fact, but used out of context to mislead, harm, or manipulate.”
Thus, referring to Jankowicz as engaged in censorship on this defunct board may be true, but could still be treated as “malinformation.”
As I discuss in my book, these setbacks are unlikely to deter the corporate, academic and government figures aligned in our current anti-free speech movement. Millions of government and private dollars are flowing to universities and organizations engaged in targeting or blacklisting individuals and groups. It is now a growing industry unto itself.
The new censors have gone corporate and mainstream. Silencing others is now a calling, a profession. They have literally made free speech into a commodity that can be packaged and controlled for profit.
Yet Confucius once said that “the beginning of wisdom is the ability to call things by their right names.” This opinion takes a large step toward such wisdom.
If figures like Jankowicz want to continue to make money silencing others, we can at least call them for what we believe they are: censors.
Jonathan Turley is a Fox News Media contributor and the Shapiro professor of public interest law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.” (Turley appears as a legal analyst on Fox, but nothing in this column is written on behalf of Fox Corp.)
For most of us, this election could not become more confusing. However, Rep. Jasmine Crockett (D., Tx.) may have added a whole new level of confusion for many in suggesting that Donald Trump may have been the latest victim of systemic racism among law enforcement in the United States.
Trump previously cited his alleged abuse in the criminal justice system as a point of shared experience with some in the black community. Crockett, however, seems to be willing to go further in suggesting that he may be the latest victim of a racist law enforcement system.
In the hearing with Secret Service Director Kimberly Cheatle, the failure to stop and hold Thomas Crooks was raised by both parties in an unprecedented failure of security. Crockett then got her chance and suggested that Trump may have come close to dying at the hands of white privilege.
“I want to talk about training and the fact that there was a little bit of confusion between this suspicious person, and this perceived threat situation, and it seems like a different analysis is being done. One of my questions is what training your officers are getting on bias.
I’ve learned over and over again, dealing with law enforcement, that there’s generally no perception of threat when it’s a young white male, even if he’s carrying a long gun. Yet a lot of times, at least in this country, when it comes to law enforcement, there’s a perception of threat simply because a person has a little bit more melanin in their skin.
…Often times, one of the things that we’ve consistently advocated for on my side — and when I say my side, I mean when we’re faced with a tragedy where law enforcement has made a mistake — is bias training and whether or not our officers are getting it. So I’m curious, in some of the training that you’re talking about that’s part of your budget, is bias training part of it?”
Cheatle responded with “Yes, that’s true.” (An apparent response to the training element).
Notably, Crockett began by getting Cheatle to acknowledge that this was not a failure due to DEI, or Diversity Equity and Inclusion, policies. She then suggested that further DEI training may be needed in light of the assassination attempt.
To be clear, there is no evidence that Crooks was allowed to walk away after being spotted with a “long gun.” The current theory is that Crooks hid the gun before the event.
Moreover, he was identified as a possible threat due to being found with a golf range finder. However, that was not considered a barred or threatening device by the Secret Service.
Yet, Trump may find common ground here with Vice President Kamala Harris who has long maintained that “We do have two systems of justice” and has added:
“I don’t think that most reasonable people who are paying attention to the facts would dispute that there are racial disparities and a system that has engaged in racism in terms of how the laws have been enforced. It does us no good to deny that. Let’s just deal with it. Let’s be honest. These might be difficult conversations for some, but they’re not difficult conversations for leaders, not for real leaders.”
Trump may be willing to have the “difficult conversation” as the now purported victim of white privilege in the dismissal of would-be presidential assassins.
Below is my column in the Hill on the withdrawal of President Joe Biden from the 2024 election. After weeks of Democrats and the media raising the alarm of his mental capacity, Biden finally gave up his public refusal to step aside. Harris will now be the nominee through succession by defenestration or being tossed from a window. Yet, there remains a lingering question of Biden’s capacity to serve for another six months as president.
Here is the column:
President Joe Biden’s decision to withdraw as the Democratic Party’s nominee solved an immediate problem for his party. Biden has plummeted in the polls as the vast majority of voters concluded that he is too diminished by age to serve another term. Yet, it has now created several new problems, including the obvious problem of a president who is viewed as incapable of running for an office that he continues to hold.
The Democratic Party essentially created its own political version of the 25th Amendment in forcing Biden off the ticket. This decision was about as voluntary as leaving a building by way of a window on the 46th floor. That is particularly the case when you are thrown out of the window by your closest friends.
The unseemly image of succession by defenestration will soon be whitewashed by a media that will praise Biden after weeks of declaring him incompetent and enfeebled.
That, however, leaves the lingering question after the fall. How can Biden remain in office when he is incapable of running for the office? Biden is notably vague about the reason for his withdrawal after maintaining for days that he will be the party’s nominee. He simply says that it is in the best interests of the country.
The Democratic establishment has two equally unappealing options.
First, it could argue that Biden was withdrawing out of recognition that he is no longer politically viable. But that makes a mockery out of the democratic process. Millions of people went through the primary elections to select him as their nominee. Now he would be set aside and replaced by a vote of the party establishment like a shift in the Russian politburo.
Second, it could admit that Biden was, as stated for weeks in the media and by figures like Special Counsel Robert Hur, greatly diminished both mentally and physically. However, that makes this withdrawal an admission that could trigger a fight under the 25th Amendment. The development could create a new constitutional controversy. The 25th Amendment was written with largely physical disabilities in mind. If a president is comatose, the incapacity is obvious and Section 4 allows the vice president and a majority of the Cabinet to sign a declaration to Congress that a president is incapable of holding office.
However, Harris is eager to avoid the image of Brutus in the dispatching of the president. To support such a declaration would risk Biden proclaiming “Et tu, Kamala?” to the nation. The key to succession by defenestration is not to be seen as the hand that pushes the president out the window. Politics follows the same rules as the mafia for capo di tutti i capi: Kill a don, never be a don. While sometimes honored in the breach in the mob, it is hardly an auspicious path for a politician.
There is, however, another intriguing possibility.
Section 4 provides that a president’s fitness can be put before Congress when the “Vice President and a majority of either the principal officers of the executive departments or such other body as Congress may by law provide.”
Previously Democrats have cited that language to suggest that they could create their own body to force former President Donald Trump out of office. Indeed, Rep. Jaime Raskin (D-Md.) sponsored legislation called the Oversight Commission on Presidential Capacity Act to create a commission empowered to examine a president to Congress on the president’s capacity. It would circumvent the necessity of getting Harris to be the primary hand that dispatched a president.
The question is whether Congress will now make this decision to warrant an investigation or even a Raskin-like bill. This is different than President Lyndon Johnson’s decision on March 31, 1968, that “I shall not seek, and I will not accept the nomination of my party for another term as your president.” That was before any primaries. In this case, Biden won a primary in which the Democratic Party obstructed anyone who would challenge him and barred any debate.
Millions voted for him, and tens of millions of dollars were contributed to his campaign. He is now withdrawing weeks before accepting the nomination. That unprecedented decision alone would warrant a House investigation into Biden’s continuing capacity to serve in an office that he no longer believes he can run to occupy after January 2025.
Before this decision, a special counsel cited President Biden’s diminished faculties as a reason not to indict him for unlawfully retaining and handling classified material. Now, the president is effectively saying that, in addition to being allegedly too diminished to be prosecuted, he is too diminished to run for the office that he currently holds.
The question is whether Biden has ended the fight to retain his nomination only to trigger a fight to retain his office.
Below is my column in USA Today on the decision to dismiss the Florida case against former president Donald Trump. The decision will soon force the Eleventh Circuit and possibly the Supreme Court in the wonderland of Special Counsels.
Here is the column:
In “Alice’s Adventures in Wonderland,” the Mad Hatter asks Alice, “Why is a raven like a writing desk?” It turned out that the Mad Hatter had no better idea than Alice. In her 93-page order, U.S. District Judge Aileen Cannon seemed to face the same dilemma when she asked special counsel Jack Smith why a private citizen is like a confirmed U.S. attorney. On Monday, she dismissed the criminal case against former President Donald Trump over his handling of classified documents, ruling that Smith’s appointment as special counsel was unlawful.
Cannon has struggled with the assertion of Attorney General Merrick Garland that he may pick private citizens to serve as special counsels and exercise greater authority than a federal prosecutor without any appointment under the Constitution or clear statutory authority. The Biden administration has argued that even asking about its authority is as absurd and frivolous as asking about ravens and writing desks. It notes that most courts have dismissed these claims with little argument or consideration.
Yet, Cannon kept coming back to the question: Why is a private citizen like a confirmed U.S. attorney?
Justice Clarence Thomas raised same issue in Trump immunity case
“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,” Thomas wrote. “The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”
Someone just did. Cannon found the question neither frivolous nor easy. After all, we have a demanding constitutional process for the presidential appointment of a U.S. attorney and the Senate confirmation of that nominee. Yet, the Justice Department has argued that Garland can either follow that constitutional process or just grab any private citizen (like former top Justice Department official Jack Smith) to exercise more power than a federal prosecutor. Moreover, he can make such unilateral appointments by the gross if he wants.
Cannon also noted that the special counsel is pulling funds from the Treasury ($12 million by the latest count) without any clear appropriation from Congress.
Article I, Section 9, Clause 7 of the Constitution states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Yet, Smith is pulling money under a permanent indefinite appropriation reserved for an “independent counsel.”
He is not an independent counsel, however, because the Independent Counsel Act expired in 1999. This means Smith must show some “other law” granting him this authority. The court said that he failed to do so.
‘Very little oversight or supervision’
Cannon noted that “there does appear to be a ‘tradition’ of appointing special-attorney-like figures in moments of political scandal throughout the country’s history. But very few, if any, of these figures actually resemble the position of Special Counsel Smith. Mr. Smith is a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision.”
From the outset, I have maintained that the Florida case was the greatest threat to Trump. Where the other cases had serious constitutional, statutory and evidentiary flaws, the Florida case was based on well-established laws and precedent.
It was not the law but the lawyer who proved to be the problem. Jack Smith was himself the argument that would bring down his case − at least for now.
The special counsel said Monday that he will appeal, but the decision makes any trial in Florida before the election virtually impossible. That in itself is a huge victory for Trump.
Smith still has a second case in Washington, D.C., with an ideal judge and jury pool. However, the Supreme Court recently ripped the wings off that case by first limiting the use of obstruction charges (which constitute half of the four counts against Trump) and then declared that Trump is either absolutely immune or presumptively immune on a wide array of acts and evidence impacting the indictment.
U.S. District Judge Tanya Chutkan has proved very favorable to Smith in moving away obstacles to try Trump before the election. However, perhaps for that reason, the Supreme Court went out of its way to narrow her range of movement on these questions.
Thus, even if Chutkan refuses to reconsider the constitutional issues on Smith’s appointment, she will be hard pressed to hold a trial before the election and even harder pressed to make it stick on appeal.
In the end, the appointment question has good-faith arguments on both sides, which Judge Cannon acknowledged in her detailed opinion. She could be reversed on appeal, but this issue seems likely to go to the Supreme Court.
Immunity case could go up to Inauguration Day
Convicting Trump either before or after the election seems to be Smith’s overriding priority. The Washington Post reported this month that the special counsel is prepared to pursue the conviction of Trump until Jan. 20, when Trump would take the oath of office if elected in November.
The problem for Smith is now another question worthy of the Mad Hatter: What can crawl and fly with only hands but no legs or wings?
The answer is the one thing that Smith no longer has: time.
We previously discussed how Hunter Biden adopted the arguments of the National Rifle Association (NRA) and other gun rights groups to challenge the law that his father has championed as a key gun control reform. In his effort to challenge his various charges, Hunter Biden has gone full Trump. Now, Hunter has adopted the Trump argument that special counsels are unconstitutional in seeking to toss out all of the charges by Special Counsel David Weiss, it is the very argument that Democrats and liberal law professors have denounced as meritless and menacing. Having recently embraced the conservative justices in challenging gun laws, Hunter is now channeling Justice Clarence Thomas on the unconstitutionality of special counsel appointments — an argument that his father denounced as wrong and “specious.”
I recently discussed the decision of Judge Aileen Cannon to strike down the Florida case against former President Donald Trump. Law professors ridiculed the concurrence of Justice Thomas in arguing that special counsels lack a constitutional foundation.
Biden is now asking the federal courts to adopt the Thomas position. On Thursday, courts in California and Delaware were asked to dismiss the criminal tax and gun cases against Biden.
The motions track the analysis of Judge Cannon and argue that “the Attorney General relied upon the exact same authority to appoint the Special Counsel in both the Trump and Biden matters, and both appointments are invalid for the same reason.”
I wrote in my column that the challenges seem to draw courts into the Wonderland of Special Counsels.
In “Alice’s Adventures in Wonderland,” the Mad Hatter asks Alice, “Why is a raven like a writing desk?” It turned out that the Mad Hatter had no better idea than Alice.
In her 93-page order, U.S. District Judge Aileen Cannon seemed to face the same dilemma when she asked Special Counsel Jack Smith why a private citizen is like a confirmed U.S. Attorney.
However, a key difference between Smith and Weiss is that it could lead these courts to asking, “why is a Weiss like a Smith?” The extent that he is not could prove a critical distinction. Weiss is a Senate confirmed U.S. Attorney where Smith was a private citizen plucked by Merrick Garland from the general population for the position.
Biden is seeking to brush over that Mad Hatter anomaly:
“The constitutional flaw at the center of the Special Counsel’s appointment is that Congress has not established the office of a Special Counsel. Given that Congress requires a U.S. Attorney to be nominated by the President and confirmed by the Senate, it makes no sense to assume that Congress would allow the Attorney General to unilaterally appoint someone as Special Counsel with equal or greater power than a U.S. Attorney. That is what has been attempted here.”
Winston Churchill once famously said that “nothing in life is so exhilarating as to be shot at without result.”
For Donald Trump, the failed assassination attempt in Pennsylvania could prove politically exhilarating. After rising with a fist pump and a call to fight on, Trump seems to have gone from being a movement to a mythological figure with his supporters. All he needs now is a big blue ox named Babe to return to the campaign trail.
This assassination attempt should also concentrate the minds of everyone on the escalating rhetoric in this campaign, particularly the media in maintaining inflammatory narratives. Yet, the hateful and unhinged language has continued unabated from academics declaring that the assassination attempt was staged to those who complain that the only problem was that Thomas Matthew Crooks missed.
For years, Democrats have repeated analogies of Trump to Hitler and his followers to brownshirted neo-Nazis. Indeed, defeating Trump has been compared to stopping Hitler in 1933. The narrative began as soon as Trump was elected when the press and pundits uniformly and falsely claimed that Trump had praised neo-Nazis and Klansmen in 2017 as “fine people” in Charlottesville.
It did not matter. The press and politicians have hammered away at the notion that Trump is seeking to end democracy and that everyone from gay people to reporters will be “disappeared.”
After the Supreme Court’s recent ruling on presidential immunity, Rachel Maddow went on the air with a hysterical claim that “death squads” had just been green lighted by conservatives. Democratic strategist Jame Carville insists that Trump’s reelection will bring “the end of the Constitution.”
It is all what I call “rage rhetoric” in my new book, “The Indispensable Right: Free Speech in an Age of Rage.” The book explores centuries of rage politics and political violence. This is not our first age of rage but it could well be the most dangerous.
Two years before the assassination attempt, I appeared before the Senate Judiciary Committee to testify on the expansion of domestic terrorism investigations. Democrats were seeking to pressure the FBI to focus on far-right groups as potential terrorist groups. The use of political views rather than conduct has been used historically to crackdown on groups from socialists to anarchists to feminists.
The narrative that the threat of violence is coming primarily from the Right is demonstrably false but consistently echoed in the media. We have seen a growing level of leftist violence in the last decade. That includes riots in cities like Portland and Seattle where billions of dollars of damage occurred, hundreds of officers injured, and many citizens killed. In 2020 alone, 25 people were killed in the protests.
The Democrats often raise the Jan. 6th riot, and it is important to acknowledge that the damage extended to an attack on our constitutional process. However, the preceding protest around the White House caused more injuries and more property damage. Then President Trump had to be removed to a safe location as Secret Service feared a breach of the White House.
There were a reported 150 officers injured (including at least 49 Park Police officers around the White House) in the Lafayette Park riot. Protesters caused extensive property damage including the torching of a historic structure and the attempted arson of St. John’s Church.
Mass shootings by leftist gunmen have repeatedly occurred but those are treated as one off while any conservative shooter is part of a pattern of right-wing violence.
Keith Ellison, the Democratic attorney general of Minnesota, mocked the notion of liberal violence. In one tweet, he declared “I have never seen @BernieSanders supporters being unusually mean or rude. Can someone send me an example of a ‘Bernie Bro’ being bad. Also, are we holding all candidates responsible for the behavior of some of their supporters? Waiting to hear.”
Republican Representative Steve Scalise of Louisiana replied dryly: “I can think of an example.” Scalise was severely wounded at the 2017 shooting at a congressional baseball game practice by a Sanders supporter.
Ellison was a particularly ironic Democratic politician to repeat this mantra. When he was the Democratic National Committee deputy chair, Ellison praised Antifa, a violent anti-free speech group that regularly attacks conservatives, pro-lifers, and others. Ellison said Antifa would “strike fear in the heart” of Trump. This was after Antifa had been involved in numerous acts of violence and its website was banned in Germany.
Ellison’s son, Minneapolis City Council member Jeremiah Ellison, declared his allegiance to Antifa in the heat of the protests this summer. When confronted about Antifa’s violence, then House Judiciary Chairman Jerry Nadler denied that the group existed. Likewise, Joe Biden has dismissed objections to Antifa as just “an idea.”
In the meantime, Biden has called Trump and his supporters “enemies of the people.” He recently said that the threat to democracy was so great that debates are no solution: “we’re done talking about the debate, it’s time to put Trump in a bullseye.”
Even after the attempted assassination of Justice Brett Kavanaugh, the media has failed to see a pattern while stoking the claim of a right-wing violent movement.
In the meantime, Democrats previously filed to strip Secret Service protection from Trump. The former Chair of the J6 Committee and the ranking Democrat on the House Homeland Security Committee introduced the legislation, called Denying Infinite Security and Government Resources Allocated toward Convicted and Extremely Dishonorable (DISGRACED).
The press and pundits continue to tell Americans that Trump and his supporters are going to kill democracy and probably those they love. While most people dismiss the rage rhetoric, there are some who take it as a license to take the most extreme action.
We are still learning about Thomas Matthew Crooks, 20, who was killed after trying to assassinate Trump. A registered Republican, Crooks gave money to ActBlue to support Democratic candidates. Yet, we know him all too well. He is likely to be found to be a lonely, unhinged individual who found meaning in an attempted political murder.
Thomas Crooks like Nicholas Roske (who tried to kill Justice Kavanaugh) are the faces that watch from the political shadows. They hear leaders telling them to stop the Nazis before democracy dies . . . and they believe them.
As for Democrats, the anger evident every night on cable networks may reflect a degree of insecurity about becoming the very thing that they are campaigning against. It is time for the party to look around to take stock of its anti-democratic policies.
Democratic secretaries of state have sought to block not just Trump but third-party candidates from ballots to prevent voters from supporting them. They have called for cleansing ballots of over 120 other Republicans. They have supported censorship, blacklisting, and other attacks on free speech.
As a lifelong Democrat, I have repeatedly asked what we have become in this age of rage. If we embrace groups like Antifa, oppose free speech, and cleanse ballots, we will have little beyond our rage to sustain us.
University of Virginia Assistant Professor Sethunya Mokoko took a break from teaching students to get the word out this week that the entire assassination attempt of former President Donald Trump was a staged event for suckers. Mokoko explained that it was just a ploy to get the votes of “idiots.” He, however, is available to offer sage-like clarity that the Secret Service, local police, and the Trump campaign conspired to fake the assassination, kill a bystander, and seriously wound others to get the sucker vote. He is not alone in this theory while others on the left are simply bemoaning that Thomas Matthew Crooks missed.
In his tweet, Mokoko said that security ”ignored [Crooks] because trump & secrete service staged theatrics to win idiots’ vote.”
So let me get the conspiracy down. The Secret Service allowed a kid who flunked out of the high school shooting club as a bad shot to fire multiple rounds at the former president from a sloped roof at 130 yards in the hope that he would only wing him?
Mokoko previously taught at Clemson University, Gold West College, Long Beach City College and University of California, Long Beach, according to his Linkedin page.
His faculty bio states that Mokoko teaches “Race, Rhetoric, and Social Justice” and “Writing about Culture and Society.” His focus is “teaching students to appreciate and value social justice rhetorics across media; to become rhetorically listening writers, readers, and viewers; and to understand how global rhetorics shape and define agency and identification.”
He is not alone. Within minutes of the assassination attempt, the staging theory was going viral and has been picked up by many on the left. For example, actress Amanda Seales took to social media to claim that Trump used fake stage blood and sound effects to stage his assassination attempt.
“That sh** was more staged than a Tyler Perry production of Madea Runs for President. I lived in Harlem long enough to know that gunshots do not sound like making popcorn on the stove.”
She does not explain how local fireman Corey Comperatore died from the fake bullets.
Aberdeen, Wash., Mayor Douglas Orr declared “The shooter is dead so we will never know if this was staged. I hope I’m wrong, but because of his record of deceit, that’s the first thing that came to mind.”
Still others accepted that the shooting was real but complain that Crooks should not have missed. Bellarmine University English instructor John James posted on Instagram: “If you’re gonna shoot, man, don’t miss.”
Jack Black’s Tenacious D partner Kyle Gass made a wish while performing with Black that the next assassination would not miss. Various people joined in on regretting that the assassination was not successful.
Below is my column in Fox.com on renewed attacks on free speech and the apologists for this anti-free speech movement, including most recently comedian Jon Stewart. From moves to amend the First Amendment to mocking those being targeted, the left is pushing back at polls and efforts to restore free speech values.
Here is the column:
“The First Amendment Is Out of Control.” That headline in a recent column in the New York Times warned Americans of a menace lurking around them and threatening their livelihoods and very lives. That menace is free speech, and the media and academia are ramping up attacks on a right that once defined us as a people.
In my new book “The Indispensable Right: Free Speech in an Age of Rage,” I discuss how we are living in the most dangerous anti-free speech period in our history. An alliance of the government, corporations, academia, and media have assembled to create an unprecedented system of censorship, blacklisting, and speech regulation. This movement is expanding and accelerating in its effort to curtail the right that Supreme Court Justice Louis Brandeis once called “indispensable” to our constitutional system.
It is, of course, no easy task to convince a free people to give up a core part of identity and liberty. You have to make them afraid. Very afraid.
The current anti-free speech movement in the United States has its origins in higher education, where faculty have long argued that free speech is harmful. Starting in secondary schools, we have raised a generation of speech phobics who believe that opposing views are triggering and dangerous. Anti-free speech books have been heralded in the media. University of Michigan Law Professor and MSNBC legal analyst Barbara McQuade has written how dangerous free speech is for the nation. Her book, “Attack from Within,”describes how free speech is what she calls the “Achilles Heel” of America, portraying this right not as the value that defines this nation but the threat that lurks within it.
McQuade and many on the left are working to convince people that “disinformation” is a threat to them, and that free speech is the vehicle that makes them vulnerable. It is a clarion’s call that has been pushed by President Joe Biden who claims that companies refusing to censor citizens are “killing people.” The Biden administration has sought to use disinformation to justify an unprecedented system of censorship.
As I have laid out in testimony before Congress, Jen Easterly, who heads the Cybersecurity and Infrastructure Security Agency, extended her agency’s mandate over “critical infrastructure” to include “our cognitive infrastructure.” The resulting censorship efforts included combating “malinformation” – described as information “based on fact, but used out of context to mislead, harm, or manipulate.” So, you can cite true facts but still be censored for misleading others.
The media has been running an unrelenting line of anti-free speech columns. Recently, the New York Times ran a column by former Biden official and Columbia University law professor Tim Wu describing how the First Amendment was “out of control” in protecting too much speech. Wu insists that the First Amendment is now “beginning to threaten many of the essential jobs of the state, such as protecting national security and the safety and privacy of its citizens.” He bizarrely claims that the First Amendment “now mostly protects corporate interests.”
So free speech not only threatens your life, your job, and your privacy, but serves corporate masters. Ready to sign your rights away?
Wait, there is more.
There is a movement afoot to rewrite the First Amendment through an amendment. George Washington University Law School Professor Mary Anne Franks believes that the First Amendment is “aggressively individualistic” and needs to be rewritten to “redo” the work of the Framers.
Her new amendment suggestion replaces the clear statement in favor of a convoluted, ambiguous statement of free speech that will be “subject to responsibility for abuses.” It then adds that “all conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons.” Franks has also dismissed objections to the censorship on social media and insisted that “the Internet model of free speech is little more than cacophony, where the loudest, most provocative, or most unlikeable voice dominates . . . If we want to protect free speech, we should not only resist the attempt to remake college campuses in the image of the Internet but consider the benefits of remaking the Internet in the image of the university.”
Franks is certainly correct that those “unlikeable voices” are rarely heard in academia today. As discussed in my book, faculties have largely purged conservative, Republican, libertarian, and dissenting professors. The discussion on most campuses now runs from the left to far left without that pesky “cacophony” of opposing viewpoints.
Experts at leading universities were fired or stripped of positions for questioning COVID claims. Conservative faculty have been hounded from schools and conservative sites have been targeted by government-funded programs. Thousands have been banned from social media.
What is particularly maddening for many in the free speech community is how the left has responded to opposition to censorship and blacklisting. Some are claiming to be victims by those who criticize their work to target individuals and groups as disinformation.
Others, like comedian Jon Stewart mock those who object to the erosion of free speech by noting that conservatives are making these objections on television or online. So, according to Stewart, how can there be a problem if you are able to still object? The suggestion is that there can be no threat to free speech unless people are completely silenced.
Stewart insists that “we are surrounded by and inundated with more speech than has ever existed in the history of communication.” In other words, because people can still speak, the well-documented systems of censorship and blacklisting must not be so bad.
It is not clear what Stewart would accept as sufficient censorship. In universities, polls show both faculty and students afraid to speak openly. The government has funded a host of programs to pressure the source of revenue of conservative sites and to target dissenting voices. Yet, because we are raising objections to these trends, Stewart laughs at the very notion that free speech is under fire. After all, he is doing just fine.
What appears to be a punchline to Stewart is a bit more serious for others who have their livelihoods threatened by the anti-free speech movement. Stewart has the benefit of being a liberal comedian on a liberal network. Try being a conservative comedian today getting air time on most cable outlets or college campuses. Like so many academics, everything seems just fine to them. With the purging of opposition viewpoints, those who remain have little to complain about.
The effort to assure citizens that “there is nothing to see here” is belied by a massive censorship system described by one federal court as “Orwellian.” Conservatives face cancel campaigns and blacklisting in academic and media forums.
As I discussed in my new book, conservative North Carolina professor Dr. Mike Adams faced calls for termination for years with investigations and cancel campaigns. He repeatedly had to go to court to defend his right to continue to teach. He was then again targeted after an inflammatory tweet. He was done. Under pressure from the university, he agreed to resign with a settlement. Four years ago this month, Adams went home just days before his final day as a professor. He then committed suicide.
Many others have resigned or retired. For them, the anti-speech movement takes away everything that brings meaning to an intellectual life from publications to associations to even employment. It is a chilling message to others not to join the “cacophony of … unlikeable voices.”
Some citizens seem sufficiently afraid or angry to surrender their free speech rights. They have lost faith in free speech. For the rest of us, their crisis of faith cannot be allowed to become a contagion. We must have a reawakening in this country that, despite our many divisions, we remain united by this indispensable human right.
Jonathan Turley is a Fox News Media contributor and the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster, June 18, 2024).
Democrat officials have launched a disinformation campaign about the Heritage Foundation’s Project 2025, misattributing policies nowhere to be found in the project and falsely linking them to former President Donald Trump.
The project is a policy roadmap for a future Republican administration created by the Heritage Foundation, a conservative think tank, and outlined in a nearly 1,000-page document highlighting long-held conservative priorities. The left’s fearmongering campaign comes amidst panic in the Democratic Party, which has fractured over Biden’s cognitive decline and abysmal election polling.
“[Project 2025] is a dangerous takeover by Trump and his allies to pass his extreme MAGA agenda,” Biden recently said on X, including a video that claims the project “would allow employers to stop paying overtime for millions” and “enact a national abortion ban.”
The claims are massive distortions of the project’s actual policies. The outline, in reality, suggests “calculat[ing] the overtime period over a long number of weeks” with the goal of giving workers greater flexibility in their schedule.
A national abortion ban is nowhere to be found in the policy outline, which insists conservatives should “recogn[ize] the many women who find themselves in immensely difficult and often tragic situations.”
The project encourages “complying with statutory bans on the federal funding of abortion” and notes that “alternative options to abortion, especially adoption, should receive federal and state support.”
The Biden campaign has doubled down on efforts to attribute the project to Trump, even creating a webpage that calls the policy plan “Trump’s Project 2025.” Trump has repeatedly distanced himself from the think tank’s policies.
“I disagree with some of the things they’re saying and some of the things they’re saying are absolutely ridiculous and abysmal,” Trump posted on Truth Social. “Anything they do, I wish them luck, but I have nothing to do with them.”
The website, nevertheless, insists that Trump plans on “reinstating and expanding [the] racist Muslim ban,” “arming teachers,” and “raising the retirement age.” It also claims Project 2025 will put “families’ access to IVF treatments … in jeopardy” and “cut Social Security.”Not one of these policies is contained anywhere in Project 2025.
Other Democrats have participated in the fearmongering.
“They’re going after IVF,” Democrat Congresswoman Alexandria Ocasio-Cortez claimed on MSNBC in February. “They also want to control … what they call recreational sex. … This is so clearly a patriarchal theocracy.”
Project 2025 makes no mention of in vitro fertilization (IVF) or “recreational sex.” Mentions of “God” and “Christian” are limited to religious freedom, tax exemptions, work as “service to God,” and “God-given individual rights to live freely,” contrary to AOC’s claims of theocracy.
Celebrities on the left have joined in the misinformation campaign as well.
Hollywood actor Mark Hamill, a longtime Democrat fundraiser and Biden supporter, spoke out against Project 2025 in a recent post, writing, “With fear for our Democracy, I dissent.”
The actor included a graphic of Trump with a laundry list of goals supposedly outlined in the project, including ending no-fault divorce, banning African American studies, banning contraception, banning Muslim immigration, cutting social security, raising the retirement age, and court packing.
Project 2025 responded with an enumerated list of 30 “myths vs. facts,” clarifying Hamill’s more misleading claims.
“Mandate for Leadership calls for LOWER taxes for ALL Americans. Individuals spend their money in more productive ways than the government does,” the post noted, debunking the assertion that Project 2025 calls for higher taxes for working-class people.
MYTHS VS. FACTS ABOUT PROJECT 2025
We are not affiliated with former President Trump. We are a coalition of more than 110 conservative groups advocating policy and personnel recommendations.
“Mandate for Leadership’s plan would not eliminate the FDA or the EPA, and NOAA’s functions would be transferred to other agencies, the private sector, and states and territories,” the post clarified about misleading claims on government agency policy.
But regardless of the facts about the Heritage Foundation’s Project 2025, Democrats and their supporters will continue to lie about the policy plan’s substance and inaccurately link the plan to Trump in an attempt to derail his presidential campaign.
Monroe Harless is a summer intern at The Federalist. She is a recent graduate of the University of Georgia with degrees in journalism and political science.
Months ago, I wrote a column about how Democrats have continued to try to block voters from being able to vote for candidates while claiming the mantle of the defenders of Democracy. This effort not only included Democratic Secretaries of State attempting to remove former president Donald Trump from the ballots, but efforts in the primary from the ballot. Many of these Democrats now calling for a “blitz primary” previously said nothing as voters were barred from having a choice in the primary. Now, in North Carolina, Democrats are seeking to bar third-party candidates from the general election . . . all in the name of perfecting democracy.
The Democratically controlled North Carolina’s Board of Elections voted against giving ballot access to new parties supporting presidential candidates Robert F. Kennedy Jr. and Cornel West. All three Democrats (Alan Hirsch, Jefferson Carmon, and Siobhan Millen) voted to prevent voters from being able to vote for Kennedy and West, though the decision will have to be reconsidered. Yet, even if reversed, they are preserving uncertainty as to whether they will be viable candidates in the minds of voters.
The excuses for this action are superficial and manufactured.
Chairman Alan Hirsch insisted that their organizations were “problematic” in how they gathered signatures and how Republicans may be supporting their efforts to allegedly “take away votes from Joe Biden.”
They also said that they were concerned that the third-party candidates were using the new party rules to gain an easier path to ballots. That is a bizarre objection. They are opting for the best approach under the existing rules. It seems openly partisan for these three Democrats to suddenly raise concerns over the existing rules when it could harm Joe Biden or the Democratic Party. Yet, Democratic commissioner Siobhan Millen worked hard to rationalize what is a raw political muscle play to prevent voters from having a choice:
“If this board keeps rubber-stamping thinly veiled so-called parties, national operatives are going to continue to come in and keep manipulating our system. Allowing unaffiliated candidates to follow the more lenient new-party rules is allowing a blind eye to partisan mischief, potentially.”
If Millen wants to see partisan mischief, she does not have to look far. She and her colleagues are engaging in precisely such mischief to deny voters choices this election to try to bolster the chances of Biden in a swing state.
Democrats continue to claim to defend Democracy while resisting democratic choice and abusing the legal process. This glaring disconnect was evident when President Joe Biden spoke on the top of the Point-du-Hoc in Normandy on the 80th anniversary of D-Day. Biden again used the event to suggest that democracy was in danger in the United States with the upcoming election.
Yet, Biden has overseen widespread government censorship with federal agencies targeting those with opposing views on everything from elections and climate change to COVID-19 and transgender policies.
As Democratic secretaries of state sought to bar Trump from ballots, Biden refused to oppose the efforts. When liberal law professors and members demanded to pack the Supreme Court to guarantee a liberal majority, Biden refused to denounce it during the last campaign.
This is why some in the country may view Biden and the Democrats as existential threats not just to Democracy, but to themselves. They see a party that is engaged in efforts to cleanse ballots (of Republicans), censor dissenting voices and prosecute political opponents.
The effort in North Carolina continues this hypocritical and cynical narrative. These three Democratic board members just voted to prevent their fellow citizens from being able to cast votes for third-party candidates who are attracting increasing support among disgruntled voters.
I have previously written how President Joe Biden is the most anti-free speech president since John Adams. For his part, Biden has continued to double down on his anti-free speech policies with the appointment of figures who have long supported bans and other speech controls. The latest such appointment is Andy Volosky, who was made deputy director of platforms for the White House’s Office of Digital Strategy. Volosky has been outspoken in support of banning former president Donald Trump from social media platforms.
In my new book, The Indispensable Right: Free Speech in an Age of Rage, I lay out the chilling comparisons between the Adams and Biden Administrations in the crackdown of free speech. For Adams, that led to defeat in 1800 when Jefferson ran in part on restoring free speech. To my surprise, Trump and his fellow challengers in this election have not made free speech a central issue to force Biden to defend the massive censorship system supported by his Administration.
The public does not support censorship. This is a movement that originated in higher education and has been pushed by the political and media establishment, not the voters. Volosky will now help direct digital strategies for the White House. He previously praised the banning of Trump, asking “What took them so long?” in a 2021 blog post.
In Volosky’s blog post, titled “A New, and Hopefully Welcome, Standard,” he warned that “Twitter still allows the accounts of various world leaders, governments, and spokespeople, who use Twitter for what one can only describe as propaganda as cover for autocracy, to continue to use their platform.”
He praised how Democrats have “long advocated for regulating the [social media] platforms” and emphasized how active social media users like himself and others can “keep the platforms honest.”
He added that
“We can play a role in keeping the platforms honest and improving the positive role of social in people’s lives…It’s past time for the platforms to take content moderation and user safety seriously; as social media professionals, we should be ready and eager to make that happen, and we hope that [banning Trump] can be a small step in getting that ball rolling.”
A new poll shows a further erosion of public confidence in higher education as faculty and administrators reduce colleges and universities to mere academic echo chambers. The poll from Gallup and the Lumina Foundation found only 36% of adults have a great deal or a lot of confidence in higher education, a drop from 57% in 2015.
We previously discussed how surveys at universities show a virtual purging of conservative and Republican faculty members. For example, last year, the Harvard Crimson noted that the university had virtually eliminated Republicans from most departments but that the lack of diversity was not a problem. Now, a new survey conducted by the Harvard Crimson shows that more than three-quarters of Harvard Arts and Sciences and School of Engineering and Applied Sciences faculty respondents identified as “liberal” or “very liberal.” Only 2.5% identified as “conservative,” and only 0.4% as “very conservative.”
Likewise, a study by Georgetown University’s Kevin Tobia and MIT’s Eric Martinez found that only nine percent of law school professors identify as conservative at the top 50 law schools. Notably, a 2017 study found 15 percent of faculties were conservative. Another study found that 33 out of 65 departments lacked a single conservative faculty member.
Compare that to a recent Gallup poll stating, “roughly equal proportions of U.S. adults identified as conservative (36%) and moderate (35%) in Gallup polling throughout 2022, while about a quarter identified as liberal (26%).”
Universities have effectively purged faculty with values that reflect roughly half of this country. Students and taxpayers (for public universities) are treated as virtual captive audiences to a culture that runs from the left to the far left. In some cases, classes have moved from education to indoctrination, including universities which now employ “resident activists” or offer degrees in activism.
I have watched the steady erosion of intellectual diversity for 30 years and a rising intolerance for opposing viewpoints. Many students and their families are not keen on spending huge amounts on tuition to attend schools with little tolerance or exposure to conservative or libertarian or even dissenting views on major public issues.
While schools profess a desire for diversity, they continue to replicate their own views and values while excluding opposing views. Some openly support such exclusion. Sites like Above the Law have spent years ridiculing objections over the exclusion of conservative faculty. Senior Editor Joe Patrice defended “predominantly liberal faculties” by arguing that hiring a conservative professor is akin to allowing a believer in geocentrism to teach at a university. So, the views of roughly half of the judiciary and half of the country are treated as legitimately excluded as intellectually invalid.
Much like the media, which has sacrificed readership and viewership to advocacy journalism, academics continue this trend despite alienating much of the country and radically narrowing the range of thought on campuses.
Roughly one-third of respondents said that they have very little or no faith in such institutions at all.
There was a time when higher education enjoyed some of the highest levels of respect. Today’s faculty and administrators have destroyed that trust and their institutions by yielding to the impulse to exclude opposing viewpoints.
Some 68% said that higher education is going in the wrong direction. There are obviously a myriad of different factors at play from rising tuition costs to falling populations of college-aged students. However, polls are also registering opposition to the activism and extremism among faculty and administrators in our universities and colleges.
Not surprisingly, Republicans and independents are the most estranged from higher education. While trust of Democrats has also declined, a majority still have trust in higher education. That is hardly a shock when Democratic faculty now outnumber Republicans 10-1 and many departments reporting not a single conservative professor.
Now only 36% of respondents believe that a college education is worth the expense. If these were corporations, universities would be in a full panic and boards would be demanding a new organizational plan. However, these not-for-profits are more insulated from such market pressures and academics feel little pressure for reform.
Faculty members have shown that they will not voluntarily restore diversity of viewpoints. The only chance for any change will come from pressure by donors and, in the case of public universities, legislators. The alternative is to allow the academic echo chamber to continue to drown out opposing views and alienate prospective students.
For many years, I have testified and written about Antifa and its growing anti-free speech philosophy. Some Democratic leaders have embraced this violent movement, which continues to gain strength on campuses and its cities across the nation. It is also a global movement. That is reflected in the alarming election of Antifa candidates to the French National Assembly as well as the European Parliament. That is quite an accomplishment for a movement that President Joe Biden dismissed as “just an idea.”
“Antifa originated with European anarchist and Marxist groups from the 1920s, particularly Antifaschistische Aktion, a Communist group from the Weimar Republic before World War II. Its name resulted from the shortening of the German word antifaschistisch. In the United States, the modern movement emerged through the Anti- Racist Action (ARA) groups, which were dominated by anarchists and Marxists. It has an association with the anarchist organization Love and Rage, which was founded by former Trotsky and Marxist followers as well as offshoots like Mexico’s Amor Y Rabia. The oldest U.S. group is likely the Rose City Antifa (RCA) in Portland, Oregon, which would become the center of violent riots during the Trump years. The anarchist roots of the group give it the same organizational profile as such groups in the early twentieth century with uncertain leadership and undefined structures.”
As I have previously written, it has long been the “Keyser Söze” of the anti-free speech movement, a loosely aligned group that employs measures to avoid easy detection or association. Yet, FBI Director Chris Wray has repeatedly pushed back on the denials of Antifa’s work or violence. In one hearing, Wray stated “And we have quite a number” — and “Antifa is a real thing. It’s not a fiction.”
Some Democrats have played a dangerous game in supporting or excusing the work of Antifa. Former Democratic National Committee deputy chair Keith Ellison, now the Minnesota attorney general, once said Antifa would “strike fear in the heart” of Trump. This was after Antifa had been involved in numerous acts of violence and its website was banned in Germany. Ellison’s son, Minneapolis City Council member Jeremiah Ellison, declared his allegiance to Antifa in the heat of the protests this summer. During a prior hearing, Democratic senators refused to clearly denounce Antifa and falsely suggested that the far right was the primary cause of recent violence. Likewise, Joe Biden has dismissed objections to Antifa as just “an idea.”
It is at its base a movement at war with free speech, defining the right itself as a tool of oppression. That purpose is evident in what is called the “bible” of the Antifa movement: Rutgers Professor Mark Bray’s Antifa: The Anti-Fascist Handbook.
Bray emphasizes the struggle of the movement against free speech: “At the heart of the anti-fascist outlook is a rejection of the classical liberal phrase that says, ‘I disapprove of what you say but I will defend to the death your right to say it.’”
Bray admits that “most Americans in Antifa have been anarchists or antiauthoritarian communists… From that standpoint, ‘free speech’ as such is merely a bourgeois fantasy unworthy of consideration.”
The movement continues to take hold among parties on the left. An Antifa leader who is on France’s national security watchlist was elected to the National Assembly as a member of the New Popular Front leftist bloc. Raphaël Arnault will represent Vaucluse in Provence in the French parliament after winning with 54.98 per cent of the vote, according toLe Figaro.
French President Emmanuel Macron and his moderate party worked with the New Popular Front in a power deal to defeat conservatives. Antifa was part of that front.
In Italy, Ilaria Salis, a schoolteacher by trade from Milan, Italy, has been elected to the European Parliament despite being arrested in 2023 in Budapest for allegedly taking part in the organized attack by Antifa on attendees of an event commemorating the anniversary of the siege of the Buda castle by the Soviet forces in 1945. Salis’ far-left green alliance Alleanza Verdi e Sinistra (AVS) succeeded in securing the seat with the backing of far-left Jean-Luc Mélenchon’s La France Insoumise (LFI) party — a member of the New Popular Front alliance.
These two milestones were secured only with the help of mainstream parties and leaders who continue to delude themselves about Antifa and its true agenda. While convenient allies now to win elections, these same leaders could soon find themselves the next reactionaries denounced by these same radical groups as they gain greater power.
A proposal is circulating in Washington to dump President Joe Biden and hold a “blitz primary” to choose a replacement. The proposal is the work of Rosa Brooks, a Georgetown University law professor who worked in the Obama and Clinton administrations, and Ted Dintersmith, a venture capitalist and education philanthropist. The proposal is gaining support with party insiders and repeats the hyperbolic claim that this is essential to avoid a “democracy-ending defeat.” It is disappointing to see a law professor repeating this unfounded alarmist claim. Yet, the most glaring contradiction is found in the stated desire to give delegates a choice after the party worked to prevent any choice for voters in state primaries.
The authors promise an “uplifting” path in which candidates would pledge not to attack each other. They would then have a few weeks as named celebrities like Oprah and Taylor Swift would moderate discussions. Delegates would then use ranked voting before the August 19th convention.
The authors proclaim that “we can limp to shameful, avoidable democracy-ending defeat. Or Democrats can make this Our Finest Hour. While we hope for help from Lord Almighty, the Lord helps those who help themselves.”
One wrinkle is that Biden himself spent Sunday pledging again that he is not stepping aside. He also continued his penchant for bizarre statements like stating that “even when I was running for Senate, each time I ran – quite frankly, not a joke – Philadelphia, in particularly, got me across the line. No, I’m not joking. No, I mean it, seriously. Organizationally and in terms of fundraising, the whole deal.”
Either Biden was confessing to using Pennsylvania votes to win elections in Delaware or he was hopelessly confused. Seriously.
The “finest hour” for the party is coming a bit late given the concerted effort of the Democratic establishment to strip away opposing candidates from ballots and crush anyone offering an alternative to Biden. At the same time, both the press and pundits attacked those who raised the President’s infirmity, including calling unedited videos “cheap fakes.”
At the same time, the Democratic establishment opposed any debate where Biden’s infirmities might have been observed when there was still time for voters to make another choice. They did so even though every poll showed the majority of Democratic voters thought Biden was too old and wanted an alternative choice. (Notably, I also favored a debate in the GOP primary. While Trump did not participate in any debate, he was widely available for media questions and pressers).
Now, after quashing opposing candidates when the public would have had a chance to make a state-by-state choice, insiders are calling for an “uplifting” blitz election by the party establishment and activists.
I am still curious how this will work. Donors gave money to the Biden-Harris ticket. That money would now have to be used for different candidates. Absent a formal acceptance to the alternative slate, it could raise tough questions under federal election laws. Likewise, the DNC is coming up on a number of states with drop-dead dates for ballot changes. Finally, there is the rather awkward problem of a President who is still very much alive and running.
As Biden objects over and over again that he will not step aside, Brooks and Dintersmith are already planning his political eulogy where Biden would be celebrated as a “modern-day George Washington.”
Once again, the Democratic Party seems to be channeling Monty Python in planning for a departure of a president who does not want to go.
Douglas Adams, author of The Hitchhiker’s Guide to the Galaxy, wrote “The President [of the Galaxy] in particular is very much a figurehead—he wields no real power whatsoever. […] His job is not to wield power but to draw attention away from it.” This week, Rep. Daniel Goldman (D-NY) seemed to be taking the Hitchhiker’s Guide as a guide for government. When asked about the alarming physical and mental decline of President Joe Biden, Goldman suggested that it really does not matter. In responding to a call for Biden’s removal under the 25th Amendment, Goldman suggested that the Republic is safe because it is safely in the hands of people around Biden. It is an argument that flips the 25th Amendment on its head and embraces the idea of a figurehead president.
After the Hur report was released noting the diminishment of the President’s faculties, Goldman was one of the most vocal in shouting the Special Counsel down. He went public declaring that the President is “sharper than anyone I’ve spoken to” on public policy issues.
He has continued brushed away the growing calls for President Biden to step aside as incapable of serving another four years. Indeed, some are calling for an investigation into whether he can carry out the duties of his office until January 2025.
“So, let’s not just focus on Joe Biden here. Let’s focus on the people around him, the administration, the policies, and most importantly, the appreciation and protection for the rule of law and our democracy that Donald Trump, every single day, has vowed to take down.”
He added that Biden is “vibrant” and that “the reality is that Joe Biden has surrounded himself with an incredibly capable team with almost no turnover.”
Other Democrats have attempted to avoid the manifest confusion and infirmity of the president. This includes Democrats who repeatedly called for formal action to remove former President Donald Trump under the 25th Amendment, including Reps. Nancy Pelosi, D-Calif.; Pramila Jayapal, D-Wash.; Jamie Raskin, D-Md.; Maxine Waters, D-Calif., and Sen. Chuck Schumer, D-N.Y.
However, it was Goldman who, as usual, came up with the most vertigo-triggering spin.
The 25th Amendment was designed to specifically avoid a figurehead presidency where family or aides perform critical functions of the office. That was indeed the concern with presidents like Woodrow Wilson when a stroke left him incapable to function as president. His wife Edith hid the truth from the public and the Congress as she and others carried out his functions.
He also had “an incredibly capable team” around him, but they were not elected president.
In the meantime, the media is still struggling to explain to the public why they did not disclose the President’s condition earlier while promulgating the “cheap fake” narrative. For weeks heading into the debate, media outlets repeated the claim that videos showing Biden’s confusion were false and misleading. Some are now reportedly admitting that they did not want to confirm “right-wing media” accounts — an admission of shaping the news for political purposes.
The greatest threat to President Biden may ultimately be the political calculus. For most of these members, their loyalty to Biden ends at the point that he endangers their own hold on power. A couple dozen members are reportedly preparing a letter calling for possible removal in the hope that they can replace Biden with someone who has a better chance of beating Trump. It is no easy feat, but Democratic operatives are furiously working out the complications under federal election laws and state laws.
In the meantime, the 25th Amendment process is looming. More citizens may become convinced by what Pelosi said about then President Donald Trump: “Congress has a constitutional duty to lay out the process by which a president’s incapacity and the president of any party is determined…A president’s fitness for office must be determined by science and facts.”
The Washington Post is reporting that Special Counsel Jack Smith may try to convict former president Donald Trump all the way through the election and up to 11:59 am on January 20th. After the oath, the Justice Department has long maintained that it will not prosecute a sitting president.
There is also a long-standing policy of the Justice Department to abstain from criminal proceedings before an election to avoid the appearance of trying to influence the outcome. Smith has signaled that he will discard that policy and that he is prepared to try Trump not only up to the election but through the election.
He is now reportedly willing to try Trump up to January 20th.
Smith has made trying Trump before the election the overriding priority in his two cases against the former president. He failed repeatedly to force a shorter schedule on appeal before the Supreme Court. His arguments were revealing. He suggested that the public should have a possible conviction before they cast their votes. It flipped the DOJ policy on its head in openly seeking to influence the election.
The Supreme Court was not persuaded, though Smith did succeed in effectively cutting the appellate process a bit shorter. He then lost in spectacular fashion before the Court on presidential immunity.
According to the Post, he is not giving up the ghost and is now committed to a trial running up to Inauguration Day: “Current officials, speaking on the condition of anonymity, expressed … that if Trump wins the election, the clock on the two federal cases against him would keep ticking until Jan. 20, when he would be sworn in as the 47th president.”
Even with Smith’s continued push to try Trump at all costs before the Inauguration, it could be a challenge. There is a 30-day period before the Supreme Court case is effectively returned to district court.
Judge Tanya Chutkan has been highly favorable for Smith and highly motivated in seeking a trial before the election. That led to problems highlighted in the recent opinion. Chutkan was so motivated that she failed to create an adequate record on these issues. That record will now have to be established. If Chutkan rules as she did earlier, she is expected to be hostile to Trump’s claims on his conduct falling within official functions. However, she will need to make the record and her decision could again be appealed. The Court left clear guidelines that will make it difficult for Chutkan to, again, dismiss such claims.
Moreover, the pre-trial motions were stopped with the latest appeal. They must now be addressed. Finally, she pledged to give the Trump team over 80 days for preparation after the appeal, which will be added to the 30 days, the period for the remand record, and the pre-trial motions.
There is also the need for the court and Smith to deal with the Fischer decision limiting the use of the obstruction charges — impacting two of the four counts against Trump. As I have previously written, Smith has various options but could trigger a new reversal on appeal if he follows his signature inclination to resist legal limits.
In other words, Smith’s appetite for a trial before the Inauguration may exceed his ability to force that expedited schedule.
President Joe Biden delivered an address from the White House last night on the presidential immunity decision by the Supreme Court. While pledging that he will defend the rule of law, President Biden misrepresented what that law is in the aftermath of Trump v. United States. While we have often discussed false constitutional claims by the President as well as other false statements, an address of this kind is particularly concerning in misleading citizens on the meaning of one of the most important decisions in history.
As I have previously written, I am not someone who has favored expansive presidential powers. As a Madisonian scholar, I favor Congress in most disputes with presidents. However, I saw good-faith arguments on both sides of this case and the Court adopted a middle road on immunity — rejecting the extreme positions of both the Trump team and the lower court.
One of the most glaring moments in the address came when President Biden declared that “for all…for all practical purposes, today’s decision almost certainly means that there are virtually no limits on what a president can do.”
That is not true.
The Court found that there was absolute immunity for actions that fall within their “exclusive sphere of constitutional authority” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial, or private, actions.
The Court has often adopted tiered approaches in balancing the powers of the branches. For example, in his famous concurrence to Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), Justice Robert Jackson broke down the line of authority between Congress and the White House into three groups where the President is acting with express or implied authority from Congress; where Congress is silent (“the zone of twilight” area); and where the President is acting in defiance of Congress.
Here the Court separated cases into actions taken in core areas of executive authority, official actions taken outside those core areas, and unofficial actions. Actions deemed personal or unofficial are not protected under this ruling.
It is certainly true that the case affords considerable immunity, including for conversations with subordinates. However, this did not spring suddenly from the head Zeus. As Chief Justice John Roberts lays out in the majority opinion, there has long been robust protections afforded to presidents.
There are also a host of checks and balances on executive authority in our constitutional system. This includes judicial intervention to prevent violations of the law as well as impeachment for high crimes and misdemeanors.
President Biden’s hyper-ventilated response is crushingly ironic. He was vice president when President Barack Obama killed an American citizen without a trial or a charge. When former Attorney General Eric Holder announced the “kill list” policy (that included the right to kill any American citizen), he was met with applause, not condemnation.
The Obama-Biden administration then fought every effort by the family to sue the government. President Biden would have been outraged by any attempt of a Republican district attorney to charge him or President Obama with murder. He would also be outraged by prosecutors pursuing criminal charges for the deaths associated with the deluge of undocumented persons over the Southern border.
In his address, President Biden also claimed that “the law would no longer” define “the limits of the presidency.” That is also untrue. This case was remanded for the purpose of defining what of these functions would be deemed private as opposed to official. Even on official actions, former president Donald Trump could be prosecuted if the presumptive immunity is rebutted by prosecutors.
What was most glaring for many civil libertarians was President Biden’s portrayal of himself as a paragon of constitutional fealty. He declared that “I know I will respect the limits of the presidential powers as I have for the last three-and-a-half years.” That was also untrue. President Biden has racked up an impressive array of losses in federal courts where he was found to have violated the constitution. This includes rulings that his administration has exceeded his authority and engaged in racial discrimination in federal programs. Indeed, Biden has often displayed a cavalier attitude toward such violations.
For example, the Biden administration was found to have violated the Constitution in its imposition of a nationwide eviction moratorium through the Centers for Disease Control and Prevention (CDC). Biden admitted that his White House counsel and most legal experts told him the move was unconstitutional. But he ignored their advice and went with that of Harvard University Professor Laurence Tribe, the one person who would tell him what he wanted to hear. It was, of course, then quickly found to be unconstitutional.
Biden showed the same disregard over the unconstitutionality of his effort to unilaterally forgive roughly half a trillion dollars in student debt. Courts have already enjoined that effort as presumptively unconstitutional (though an appellate court in one of those cases relaxed aspects of the injunction).
While some of us have challenged these predictions, the other presidential candidates are missing a far more compelling argument going into this election. While democracy is not on the ballot this election, free speech is.
For many of us in the free speech community, President Biden has become the most anti-free speech president since John Adams. As discussed in my new book, “The Indispensable Right: Free Speech in an Age of Rage,” the Biden Administration has helped fund and maintain an unprecedented censorship system in the United States.
That record is hardly supportive for a president claiming to be the defender, if not the savior, of the Constitution.
Below is my column in the New York Post on the Supreme Court’s historic presidential immunity decision. I am not someone who has favored expansive presidential powers. As a Madisonian scholar, I favor Congress in most disputes with presidents. Yet, the reaction to the Court’s decision has been baffling from academics who did not raise a whimper of opposition when President Barack Obama killed an American citizen without a trial or a charge. When former Attorney General Eric Holder announced the “kill list” policy (that included the right to kill any American citizen), he was met with applause, not condemnation. Moreover, even the government conceded before the Supreme Court that official acts did deserve protection from prosecution. The issue was only where to draw that line. The Court found that there was absolute immunity for actions that fall within their “exclusive sphere of constitutional authority” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial, or private, actions.
I felt that there were good-faith arguments on both sides of this issue. The reaction, however, of politicians and pundits is to again denounce and even threaten the justices. Rage has again replaced reason as commentators misrepresent the opinion and race to the bottom in reckless rhetoric. It is not clear what these paper-bag pundits are more upset about: the fact that the Court ruled in favor of immunity or that the Court again failed to yield to years of harassment and threats from the left. What they fail to understand is that this is precisely the moment that the Court was designed for.
Here is the column:
Within minutes of the Supreme Court’s decision on presidential immunity, liberal politicians and pundits seemed to move from hyperbole to hyperventilation. When not breathing into paper bags, critics predicted, again, the end of the republic. CNN’s Van Jones declared that it was “almost a license to thug, in a way.”
Sen. Richard Blumenthal (D-Conn.) declared: “My stomach turns with fear and anger that our democracy can be so endangered by an out-of-control court” and denounced six justices as “extreme and nakedly partisan hacks — politicians in robes.”
Blumenthal has previously shown greater intestinal fortitude, as when he threatened the justices that they would either rule as Democrats demanded or face “seismic” changes to their court.
Jones warned the justices that “politically it’s bad” for them to rule this way. The comment captures the misguided analysis of many media outlets. The Supreme Court was designed to be unpopular; to take stands that are politically unpopular but constitutionally correct.
Court independence
Indeed, the Democrats have become the very threat that the court was meant to resist. Recently, senators demanded that Chief Justice John Roberts appear to answer to them for his own decisions. (Roberts wisely declined.)
Senate Majority Leader Chuck Schumer previously declared in front of the Supreme Court, “I want to tell you, [Neil] Gorsuch, I want to tell you, [Brett] Kavanaugh, you have released the whirlwind, and you will pay the price.” Now Rep. Alexandria Ocasio-Cortez (D-NY) announced that she will seek the impeachment of all six of the conservative justices. She was immediately joined by other Democratic members.
Notably, scholars have long disagreed where to draw the line on presidential immunity. The court adopted a middle approach that rejected extreme arguments on both sides. Yet, because Ocasio-Cortez disagrees with their decision, she has declared that this “is an assault on American democracy. It is up to Congress to defend our nation from this authoritarian capture.”
Previously, Ocasio-Cortez admitted that she does not understand why we even have a Supreme Court. She asked “How much does the current structure benefit us? And I don’t think it does.”
Other members, such as Sen. Elizabeth Warren (D-Mass.), have called for packing the Court with additional members to immediately secure a liberal majority to rule as she desires.
For these pundits and politicians, justice is merely an extension of politics and subject to the whims of the majority. These are same voices who chastised Judge Aileen Cannon for “slowwalking” her decisions by holding hearings on constitutional questions. They pointed to Judge Tanya Chutkan, who supported the efforts of special counsel Jack Smith to try Trump before the election, turning her court into a rocket docket. Chutkan quickly set aside this challenge, as well as other objections from Trump.
Indeed, at the oral argument, Chief Justice Roberts marveled at the conclusory analysis by Patricia Ann Millett in upholding Chutkan. He referred to the opinion celebrated by the left as little more than declaring “a former president can be prosecuted because he’s being prosecuted.” Chutkan and the DC Circuit were fast but ultimately wrong. Indeed, the Supreme Court noted that the judge created little record for the basis of her decisions.
In a perverted sense, Democrats are giving the public a powerful lesson in constitutional law. As Alexander Hamilton stated in The Federalist No. 78, judicial independence “is the best expedient which can be devised in any government to secure a steady, upright and impartial administration of the laws.”
This is the moment that the Framers envisioned in creating the Court under Article III of the Constitution. It would be our bulwark even when politicians lose faith in our Constitution and seek to dictate justice for those who they dislike.
An ‘Age of Rage’
In my new book, “The Indispensable Right: Free Speech in an Age of Rage.” I discuss other such moments in our history. This is not our first age of rage. During periods of intense fear or anger, people often turn on free speech or other rights as inconvenient or outdated.
We have heard the same voices of the faithless today. MSNBC commentator Elie Mystal has called the Constitution “trash” and argued that we should simply just dump it. Law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for the Constitution to be “radically altered” to “reclaim America from constitutionalism.”
None of these threats or bloviating will work. The court is designed to stand against everyone and everything except for the Constitution. It was forged for this moment.
Jonathan Turley is the J.B. and Maurice C. Shapiro professor of public interest law at the George Washington University School of Law.
The Supreme Court’s decision in Fischer v. United States rejecting the use of obstruction of legal proceedings against January 6th defendants will potentially impact hundreds of cases. For some, it may lead to dismissals or, in the cases with multiple charges, resentencings. One of those cases that will be impacted is the pending prosecution of former president Donald Trump who is facing four charges, including two obstruction counts. However, it is not clear if Special Counsel Jack Smith will yield to the decision or possibly take the dubious path laid out by Justice Ketanji Brown Jackson in her concurrence.
Smith has long tended to push the law to the breaking point to bag defendants. That was the case when his conviction of former Virginia Governor Robert F. McDonnell was unanimously reversed as overextending another law.
It is doubtful that he will go quietly into the night after the Fischer decision. In most cases, a prosecutor would go back and secure a superseding indictment in light of the loss of the obstruction claims. Those claims were central to the narrative of the government under the current indictment.
That is not Smith’s style. He may decide to push even harder for a trial before the election on the remaining counts. Smith has made the trial before the election an overriding priority throughout his appointment. He also has a very favorable and motivated judge in United States District Judge Tanya Chutkan.
He could also take a not-so-subtle hint from Jackson in her concurrence. Jackson supported the majority in finding that the obstruction provision, Section 1512(c), was enacted after the Enron case to address the destruction of documents and records.
Section 1512(c)(1) prohibits corruptly obstructing an official proceeding by altering, destroying, mutilating, or concealing a record, document, or other object with the intent to impair the object’s integrity or availability for use in an official proceeding. However, a second provision under subsection (c)(2) allowed for charges that would “otherwise” obstruct, influence, or impede an official proceeding. The Court held that the obstruction cases under Section 1512(c)(2) must be tied to impairing the integrity or availability of evidence.
However, in a single justice concurrence, she added a way that Smith and other prosecutors might still be able to shoehorn January 6th into a Section 1512 offense:
“That official proceeding [Congress’s certification of the Electoral College vote] plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. See Tr. of Oral Arg. 65–67. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).” Ante, at 8. If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand.”
Notably, no other justice joined Jackson in the concurrence. However, Smith and Chutkan could reason that it was not expressly rejected and presumably, the three justices in dissent would support the broader reading since they were willing to sign off on the ultimate extension of the obstruction of justice statute. That includes Justice Amy Coney Barrett.
However, that still leaves less than a majority and an application that runs against the grain of the opinion. Just saying that a proceeding involves “certain records” is transparently artificial and forced. Even the submission of an alternative slate of electors is not the destruction of electors certified by the secretaries of state.
Those challenges under the same loose theory could have been viewed as attempting to negate or destroy certifications from the states. It would likely, in my view, result in another reversal. It is, in my view, too clever by half.
That may not concern Smith who may still want to use the obstruction counts to increase the likelihood of convictions on the other counts. In such a circumstance, the overturning of the two obstruction convictions might still leave the conviction for conspiracy to defraud the United States and conspiracy against the rights of citizens.
We will see in the coming weeks, but Smith is likely waiting for the other shoe to drop in the Trump immunity case. That could add additional complications if the case is remanded by the Court for further proceedings. There is little time for a trial before November if the district court must hold hearings on claims that statements or actions were taken by Trump as part of his office.
Chutkan sought to meet Smith’s demand for a trial before the election by converting her court into a virtual rocket docket. The cost of the fast pace was that she created little record on these issues. That might have to be done in a remand and will exhaust additional days on the rapidly shrinking calendar for Smith.
Either way, Monday will throw the final card on the table for Smith and the Court will determine if what is left in his hand. It may not deter Smith. It often seems like both bad gamblers and special counsels tend to double down on weak hands. If history is any measure, Smith is likely to bet the farm on whatever remains.
The problem is that the farm does not belong to him.
The debate last night was chilling for many citizens as President Joe Biden clearly struggled to stay focused and responsive. It appeared to put on display what Special Counsel Robert Hur saw in his interview before concluding that Biden’s loss of mental capacity would make a prosecution difficult. What may be equally troubling for Democrats and the media is a poll that came out just before the debate that shows more swing-state voters see former President Donald Trump rather than President Joe Biden as protecting democracy.
According to a new poll from the Washington Post and the Schar School of Policy and Government at George Mason University, if “democracy is on the ballot,” the majority of the public believes that threat comes from elsewhere, including possibly Biden himself.
Over half of the respondents told the Washington Post that threats to democracy are extremely important to their vote for president. However, 44% said they think Trump would do a better job at handling those threats. Only 33% of respondents said they believe Biden would be better for democracy.
Many citizens are alarmed by prosecutions like the one in Manhattan where the legal system seems to have been weaponized against political opponents.
The poll not only shows the diminishing faith in the President but also in the press. The media has been unrelenting in pushing the narrative that this election is a choice between democracy and tyranny. The public is clearly tuning out the media message. This is only the latest example of that widening gap. Indeed, the whole “Let’s Go Brandon” chant is as much a criticism of the media as it is President Biden.
I have previously written that democracy is not on the ballot, but free speech is. The Biden Administration has chilling analogies to the Adams Administration in the weaponization of the legal system and the crackdown on free speech. What should most concern Biden is the possibility of another aspect of history repeating itself: a defeat like the one in 1800.
The anti-free speech movement has flourished largely in the echo chambers of academia and the media. It is time for the public to render its judgment. Free speech is again on the ballot. It is time for the public to decide.
The presidential debate last night was chilling to watch as President Joe Biden clearly struggled to retain his focus and, at points, seemed hopelessly confused. The winner was clear: Special Counsel Robert Hur. For months, Democrats in Congress and the media have attacked Hur for his report that the president came across as an “elderly man with a poor memory.” Hur concluded that prosecuting Biden would be difficult because a jury would view him as a sympathetic figure of a man with declining mental capabilities. That was evident last night, and the question is whether a man who was too diminished to be a criminal defendant can still be a president for four more years.
Hur laid out evidence that President Biden had unlawfully retained and mishandled classified evidence for decades. However, he also concluded that “at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.” He found that “it would be difficult to convince a jury that they should convict him—by then a former president well into his eighties—of a serious felony that requires a mental state of willfulness.”
What has followed is the usual pile-on in the media with legal analysts, press, and pundits denouncing Hur for his findings.
Hur likely does not anticipate any apologies even as commentators on CNN and MSNBC admit that there are now unavoidable questions of Biden’s ability to be the nominee.
Democrats have repeatedly insisted that Hur did not find Biden diminished and that he actually was impressed by his memory and mental acuity. Hur contradicted that in his own testimony before Congress.
Indeed, the denial campaign took on a bizarre character, particularly when Rep. Pramila Jayapal (D., Wash.) insisted that Hur “exonerated” Biden. Hur pushed back: “I need to go back and make sure that I take note of a word that you used, ‘exoneration.’ That is not a word that is used in my report and that is not a part of my task as a prosecutor.”
Jayapal shot back, “You exonerated him.”
Hur responded, “I did not exonerate him. That word does not appear in the report.”
The debate showed not only what Hur saw but why the Justice Department is making a clearly laughable privilege claim to delay any release of the audiotape until after the election.
Below is my column in USA Today on why the opponents of President Joe Biden should make free speech the focus of this election. With the Supreme Court taking an off ramp in Murthy v. Missouri on Internet censorship, the free speech community is left, for now, with the political process to protect free speech. It is a potentially unifying issue for many Americans who are alarmed by the current anti-free speech movement. I have previously written that the Biden Administration has chilling analogies to the Adams Administration in the weaponization of the legal system and the crackdown on free speech. What should most concern Biden is the possibility of another aspect of history repeating itself: a defeat like the one in 1800.
The 2024 election is looking strikingly similar to the election of 1800 and, if so, it does not bode well for Biden. In my book “The Indispensable Right: Free Speech in an Age of Rage,” released last week, I discuss our long struggle with free speech as a nation. It is an unvarnished history with powerful stories of our heroes and villains in the struggle to define what Justice Louis Brandeis called our “indispensable right.”
One of the greatest villains in that history was President John Adams, who used the Alien and Sedition Acts to arrest his political opponents – including journalists, members of Congress and others. Many of those prosecuted by the Adams administration were Jeffersonians. In the election of 1800, Thomas Jefferson ran on the issue and defeated Adams.
Government efforts to limit free speech are Orwellian
We are now seeing what is arguably the most dangerous anti-free speech movement in our history. President Joe Biden is, in my view, the most anti-free speech president since Adams. Under his administration, we have seen a massive censorship system funded and directed by the government.A federal judge described the system as “Orwellian” in its scope and impact.
Biden has repeatedly called for greater censorship and accused social media companies of “killing people” by not silencing more dissenting voices. Other Democrats such as Sen. Elizabeth Warren of Massachusetts have pushed for restrictions on “unacceptable” speech. The Biden administration seeks to censor even true statements as disinformation.
For example, I testified before Congress last year on how Jen Easterly, who heads the Cybersecurity and Infrastructure Security Agency, extended her agency’s mandate over critical infrastructure to include “our cognitive infrastructure.” The resulting censorship efforts included combating “malinformation” – described as information “based on fact, but used out of context to mislead, harm, or manipulate.”
The left has picked up the cudgels of censorship and blacklisting once used against them. During the McCarthy period, liberals were called “communist sympathizers.” Now, conservative justices are called“insurrectionist sympathizers.”
Candidates should call out Biden on censorship
In this election, Robert F. Kennedy Jr., Jill Stein, Donald Trump and Cornel West should talk about the threats against free speech at every debate and stump speech. They will have to overcome a news media that has been complicit in the attacks on free speech, but these candidates can break through by raising it as a key issue dividing Biden from the rest of the field.
So far, the anti-free speech movement has flourished largely in the echo chambers of academia and the media. It is time for the public to render its judgment.
As discussed in my book, we are hardwired for free speech. It is in our DNA. Despite these periods of crackdowns on free speech, we have always rejected those who wanted to regulate the views of others. Jefferson called the Federalists “the reign of the witches.” (Ironically, Jefferson would himself prosecute critics, though not to the same extent as Adams).
Attacks on free speech have returned with a vengeance before another presidential election. After fighting in the courts and in the public to expand censorship, Biden should now have to defend it with the voters. Let’s have at it, as we did in 1800.
Free speech is again on the ballot. It is time for the public to decide.
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Below is my column in The Hill on the renewed attacks on Justice Samuel Alito after a liberal activist secretly taped a dinner conversation with him and his wife. The feigned outrage of pundits and politicians is absurdly unconnected to anything even remotely surprising or unethical in the comments.
Here is the column:
In a world of moral relativism, Lauren Windsor may reign supreme. The Democratic activist recently lied to justices in order to record answers at a dinner.
In an interview with CNN, the filmmaker (who has been lionized by many in the media for her dishonesty) cheerfully explained that she lies to “elicit truths that serve the greater public good.” The “greater good” is to contribute to a campaign of harassment and attacks on Supreme Court justices by academics, the media and Democratic members. The chief target of these efforts lately has been the author of the decision that overturned Roe v. Wade, Justice Samuel Alito.
For years, the left has maintained a well-funded, unrelenting campaign against the court and its conservative majority. This has included an effort by such figures as Sen. Elizabeth Warren (D., Mass.) to pack the court immediately with a liberal majority. Warren declared that the court must be packed because it is daring to oppose “widely held public opinion.”
The statement, of course, ignores that the court was designed to resist public pressure (and even members of Congress) in order to protect the constitutional rights and liberties of minority groups.
Unsurprisingly, the usual suspects have assembled again to call for resignations and impeachments after Windsor’s surreptitious taping of both Alito and Chief Justice John Roberts. That includes Warren, who declared that “Alito is an extremist who is out of touch with mainstream America. His rising power on the Supreme Court is a threat to our democracy.”
It did not matter that what Windsor captured on her secret recording was neither surprising nor unethical. Pretending to be a religious conservative at a dinner of the Supreme Court Historical Society, Windsor successfully induced the deeply religious Alito to say . . . wait for it . . . that he believes the country should return to a place of “godliness.”
It was an otherworldly moment as this notoriously anti-conservative activist asked an unsuspecting Alito why the nation was so filled with rage. In the recording, Alito laments the divisions in the country, stating, “I wish I knew. I don’t know. It’s easy to blame the media, but I do blame them because they do nothing but criticize us. And so, they have really eroded trust in the court…American citizens in general need to work on this to heal this polarization because it’s very dangerous.”
When pushed on what the court can do, Alito again answered honestly: “I don’t think it’s something we can do. We have a very defined role, and we need to do what we’re supposed to do. But this is a bigger problem. This is way above us.”
There is nothing even slightly controversial there. But the quote being repeated, often in isolation, was when Alito acknowledged that, while “there can be a way of working, a way of living together peacefully…it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised. They really can’t be compromised. So, it’s not like you are going to split the difference.”
Warren and others already prove that very point on the left, as do many on the right. Again, this is not at all controversial. We are divided because people hold irreconcilable beliefs on which they are unwilling to compromise. Imagine the reaction of liberals if Justice Sonia Sotomayor suddenly “compromised” on abortion rights.
But pundits and politicians have since lined up, feigning vapors at the thought of a justice saying privately that he believed in “godliness” and had little hope of “compromise” on many issues.
Warren seemed beside herself with shock, acting as if Alito’s bland, obvious observation were some clear sign of political bias: “I am most concerned about the appearance that Justice Alito has prejudged cases that will come before him. That is one of the biggest sins that a judge or justice can commit.” Bear in mind, these are the words of a senator seeking to pack the court with an ideological majority to give predictable rulings on major cases.
Likewise, Sen. Sheldon Whitehouse (D-R.I.) declared the tape to be proof that Alito is “a movement activist,” while Sen. Richard Blumenthal (D.-Conn.) denounced Alito’s “outrageous” behavior. Of course, the lying democratic activist was not outrageous, but the justice was outrageous in sharing his observation in a private conversation that the nation is irreconcilably divided on major issues.
Warren, Whitehouse, Blumenthal and many of the same pundits were strangely silent when liberal justices such as Ruth Bader Ginsburg engaged in actual partisanship, as when she openly opposed the election of Donald Trump and discussed cases and controversies that might come before her. There was no demand for a resignation when Justice Sonia Sotomayor called upon students to politically oppose pro-life laws after acknowledging, “they tell me I shouldn’t.” There were no vapors at the thought of justices expressing their political sentiments from the left.
Media even cleaned up interviews for liberal justices. Katie Couric famously deleted disparaging comments made by Ginsburg about players kneeling during the National Anthem at NFL games, even though that matter could have ended up before the Supreme Court.
What is most galling is the pile-on over not just this manufactured controversy, but the earlier controversy over flags. Years ago, one of the best reporters at the Washington Post investigated a report that the Alitos had flown an upside-down American flag, to see if it was a political statement associated with Trump. Robert Barnes interviewed neighbors and concluded that it was not Justice Alito but his wife Martha-Ann who had hoisted the flag. Mrs. Alito, he learned, was responding to an ongoing spat with a neighbor.
Barnes and the Post responsibly decided not to run the story. That type of journalistic restraint is now anathema in our age of rage, with reporters denouncing the Post for failing to run a “blockbuster” story.
This was then amplified when the public was told that Mrs. Alito had also hoisted at one of their properties the Revolutionary War-era “Appeal to Heaven” flag, which has enjoyed something of a revival since it featured in the introductory sequence of the acclaimed 2008 miniseries on the career of President John Adams.
It is not clear how that story was a “blockbuster” — that a justice has a wife with a flag fetish, which includes flying the historic Pine Tree Flag. (Tellingly and amusingly, after the left added that flag to its list of Alito’s transgressions, Democratic politicians suddenly had to scramble to remove it from their own buildings to clear the way for the outrage.)
Of course, Windsor also targeted Mrs. Alito in her secret recordings at the dinner. The media again pounced on a line where she complained of “feminazi” critics and added, “Don’t get angry. Get even!”
That statement followed her suggestion that they may sue for defamation, and that “there’s a five-year defamation statute of limitations.” She also added that her husband had tried to keep her from flying her flags and getting into neighborhood spats, but that “he never controls me.” Indeed, she said he had prevailed on her not to fly a Sacred Heart of Jesus flag, but that she was not giving up the ghost even on that flag.
Windsor generously allowed that a Supreme Court spouse “certainly” has a right to speak, before adding that expected “but!” Such liberty, she asserted, may not apply to Mrs. Alito “when your spouse is one of the most powerful men in the country, you know, with his fingers on the scale, literally, of justice. I mean, are we going to say that we are going to do away with impartiality, the bedrock principle of our democracy, of our jurisprudence? Is it okay?”
Well, the answer is yes, Miss Windsor. It is okay.
We do not require justices to divorce outspoken or irascible spouses. We do not punish them for speaking freely in private conversations with bottom-feeding gotcha activists who secretly record them at dinners. Justices are even allowed to have strong opinions about controversial issues in dinner conversations. Strong personal opinions do not on their own constitute conflicts of interest.
None of this will matter, of course. Democrats will continue to chase Alito around the Beltway like a scene out of Lord of the Flies. The absurd demands for meetings with justices and threats of subpoenas will continue to thrill liberal voters. It is all part of the threats made by Senate Majority Leader Charles Schumer (D-N.Y.) on the steps of the Supreme Court. Schumer threatened the conservative justices, “You have released the whirlwind and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”
It is an extension of the pledge by activists to change the court “by any means necessary.” While thankfully denouncing the attempted assassination of Justice Bret Kavanaugh, liberals have proposed “more aggressive” targeting of justices at their homes, bribing conservatives to retire, and literally cutting off the justices’ air conditioning.
As Windsor explained, it is all just for “the greater good.”
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School. He is the author of The Indispensable Right: Free Speech in an Age of Rage (Simon & Schuster 2024)
During a virtual town hall event last week, Paula Collins, who is challenging Rep. Elise Stefanik, R-N.Y., suggested that supporters of former President Trump be sent to “re-education camps,” according to audio obtained by the Post Millenial.
Collins, a marijuana tax attorney, argued that even if a majority of Democrats are elected to Congress in November, there will still be a need for re-education camps to “put[] it all back together again” after “this MAGA nightmare.”
The uncontested Democrat nominee for NY-21 said, “Even if we were to have a resounding blue wave come through, as many of us would like, putting it all back together again after we’ve gone through this MAGA nightmare and re-educating, basically — that sounds like a, rather, a re-education camp.” She told voters on the call they will need to find “another way to phrase” the concept of “re-education camps” with the general public.
New York Democrat Paula Collins suggests Trump supporters need a “reeducation camp” after the election.
Collins is running for Congress and made the comments in a town hall meeting. pic.twitter.com/6VGNmtlcY7
— The Post Millennial (@TPostMillennial) June 6, 2024
Her remarks have drawn comparisons to a 2016 CNN interview of former presidential candidate Hillary Clinton, during which she said Trump supporters need “deprogramming.” Clinton said, “At some point, you know, maybe there needs to be a formal deprogramming of the cult members, but something needs to happen.” On her campaign homepage, Collins notes the comparison to Clinton, saying she is honored.
Stefanik called for Democrat leadership to condemn the comments. Stefanik said in a press release, “Joe Biden, Hakeem Jeffries, and Chuck Schumer must immediately condemn this statement.”
My statement calling on Joe Biden, Hakeem Jeffries, and Chuck Schumer to immediately condemn NY Democrat congressional candidate's call to force Trump voters into re-education camps: pic.twitter.com/WPYEsg0Jrx
Instead of retracting and apologizing, Collins blamed the media for airing her controversial remarks. Collins claimed Stefanik is attacking her because she is “panicked.”
The left-wing candidate is using the controversy to fundraise, asking for $250 campaign donations. Asking for campaign donations, Collins writes on her website, “Help me end the MAGA mania.” “Far-right politics” is listed as one of her top issues on her campaign website.
Ratings on Ballotpedia describe Stefanik’s district as “Solid Republican,” based on data from three political analysis organizations.
Federal Election Commission filings highlight the weak chances of New York’s 21st congressional district flipping blue. Collins has just $6,337.93 cash on hand and $11,130 in campaign debt. Meanwhile, Stefanik, who is reportedly under consideration as Trump’s running-mate, boasts nearly $5 million in available funds.
Arianna Villarreal is a summer intern at The Federalist.
Many of us have expressed alarm at the politicization of the criminal justice system in New York by figures such as Attorney General Letitia James and Manhattan District Attorney Alvin Bragg. It now appears that New Jersey Attorney General Matthew Platkin is angling to get into the lawfare frenzy.
The conviction of Trump on 34 felonies has either thrilled or repelled citizens. For many of us, it is a sign of the degradation of our legal system. Even the chief CNN legal analyst has acknowledged that Bragg contorted the law to bring the recent case against former President Donald Trump in an unprecedented prosecution.
Yet, the use of the legal system for political purposes is clearly popular in New York where people were literally dancing in the street outside of the courthouse after the recent verdict against Trump. Now Platkin’s office has announced that it is “reviewing” whether to pull the liquor licenses for Trump golf clubs since he is now convicted of felonies in New York. It appears that lawfare is nothing if not intoxicating for Democratic politicians.
According to an article in the Hill, the New Jersey Attorney General’s Division of Alcoholic Beverage Control is “reviewing the impact of President Trump’s conviction” on his liquor licenses for the Trump National Golf Club in Colts Neck, Lamington Farm Club, and Trump National Golf Club Philadelphia in Pine Hill.
The latest effort is based on a vague standard governing crimes of “moral turpitude” under New Jersey law:
No license of any class shall be issued to any person under the age of 18 years or to any person who has been convicted of a crime involving moral turpitude. A beneficiary of a trust who is not otherwise disqualified to hold an interest in a license may qualify regardless of age so long as the trustee of the trust qualifies, and the trustee shall hold the beneficiary’s interest in trust until the beneficiary is at least the age of majority.
A “crime of moral turpitude” is a familiar, though dated, standard in American law. I teach the standard in torts as one of the traditional “per se” categories for slander under the common law. It was generally used to denote conduct of immorality or serious offenses to norms of society. New Jersey defines it as including “any offense that carries the possibility of one year in jail and involves acts of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen, or to society in general.”
Even the New Jersey Alcoholic Beverage Control handbook notes that in “some instances, it may be unclear whether a conviction involves an element of moral turpitude.” Yet, Trump has a way to bringing clarity for his critics whenever they must choose between politics and principle.
For most of us, it is hard to see how falsifying business records would constitute “acts of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen, or to society in general.” However, for Democrats, it seems that any act by Trump is by definition base, vile, and depraved.
The piling on of investigations and charges by Democratic officials has reinforced Trump’s long narrative of a weaponization of the legal system against him and his supporters. Polling shows that most citizens view some of these cases as political prosecutions and that they are having diminishing impact on voter preferences. Yet, they remain thrilling for Democratic voters who lionize prosecutors who come up with novel or unprecedented avenues to hammer Trump or hit his businesses. It does not seem to matter that removing the liquor licenses of these clubs can endanger thousands of jobs of citizens or chill other businesses in considering investments in New York or New Jersey.
In the end, the effort is hardly surprising. Lawfare is like binge drinking: the excess is the very measure of its success.
Below is my column in Fox.com on the authentication of Hunter Biden’s laptop in the Delaware trial. The government has denounced the Russian disinformation claims as a “conspiracy theory” and put on evidence that there is no evidence of tampering with the laptop. The FBI declared the laptop to be “real” and “authentic” and the court agreed. It was introduced as evidence before many reporters who previously embraced the debunked “conspiracy theory.” As discussed below, Houdini’s elephant was just revealed on stage and most of the audience looked away.
Here is the column:
Watching the coverage this week out of Delaware was like finding oneself in a parallel universe. There were ABC, NBC, CBS, the Washington Post and other news outlets reporting matter-of-factly that the Hunter Biden laptop showed no evidence of tampering and was both real and authentic.
These are the same outlets, and some of the same reporters, who eagerly spread the false claims that the laptop was “Russian disinformation.”
Yet, what followed the testimony of FBI agent Erika Jensen was absolute crickets. There was no effort to track down the signatories of the now-debunked letter from former intelligence officials just before the election. In the letter, figures such as Leon Panetta, former CIA director in the Obama administration, claimed that the laptop had all the markings of a Russian disinformation effort by intelligence services. (Panetta continued to make the assertion even in late 2023 in pushing what the federal government is now calling a “conspiracy theory.”)
There was no attempt by the media to confront associates of the Biden campaign (including now Secretary of State Antony Blinken) who pushed a long effort to get former intelligence officials to sign a letter.
There was no attempt to question President Joe Biden, who made this false claim in the presidential election to deflect any questions about the evidence of corrupt influence peddling on the laptop.
Years ago, I wrote that the Biden campaign had pulled off the single greatest political trick in history. As I wrote back then, the key to this Houdini-esque trick was to get the media to invest in the deception like audience members called to the stage.
Houdini used to make his elephant Jennifer disappear on stage every night because he knew that the audience wanted her to disappear. They were part of the act. The Bidens made the media part of the act, and these reporters have to back the illusion or admit that they were part of the deception. They are all laptop deniers, but they know that there are few who will call them to account for their conspiracy theory. Rather, it is social media where readers can see videos of leading media claiming that the laptop is the work of Russian intelligence.
In 2020, CBS News’ Lesley Stahl literally laughed mockingly at then-President Donald Trump when he raised the Hunter Biden laptop and what it revealed about the Bidens.
Figures like former Chief of Staff at the CIA and Department of Defense Jeremy Bash, who told MSNBC that the laptop “looked like Russian intelligence” and “walked like Russian intelligence.” He dismissed the relevance of the laptop before the election by declaring that “this effort by Rudy Giuliani and the New York Post and Steve Bannon to cook up supposed dirt on Joe Biden looks like a classic, Russian playbook disinformation campaign.”
Bash added that it made Trump an effective agent of Russian intelligence since he kept referencing the laptop: “[when] Rudy Giuliani suddenly comes forward with these mysteriously created emails, probably hacked through a Russian intelligence operation, we have to acknowledge the fact that the President of the United States is supporting, is condoning, is welcoming a Russian intelligence operation in 2020. … This is collusion in plain sight.”
Bash, like others behind the conspiracy theory, was later given an intelligence position by Biden.
The New York Times and The Washington Post both eventually verified Hunter Biden’s laptop after big tech dismissed the New York Post’s bombshell reporting during the 2020 presidential election. The Post reporting was famously censored by Twitter ahead of the 2020 election.
CNN’s Alex Marquardt told viewers, “We do know it is a very active Russian campaign.”
Indeed, the Washington Post has continued to suggest that this reporting was accurate. One of the leading purveyors of this false story was the Post’s Philip Bump, who slammed the New York Post for its now proven Hunter Biden laptop story.
In 2021, when media organizations were finally admitting that the laptop was authentic, Bump was still declaring that it was a “conspiracy theory.” Despite overwhelming evidence to the contrary, Bump continued to suggest that “the laptop was seeded by Russian intelligence.”
After Bump had a meltdown in an interview when confronted over past false claims, I wrote a column about the litany of such false claims. The Post surprised many of us by issuing a statement that they stood by all of Bump’s reporting, including the laptop conspiracy theory. That was in August 2023.
Of course, this trick would not have been possible without the assistance of 50 former intelligence officials who were reportedly organized through Clinton campaign associates to issue the infamous letter. These figures then continued to spread the false claim.
Former CIA Director John Brennan, one of the 50 who signed the letter, also claimed that the laptop bore “the hallmarks of Russian disinformation.”
James Clapper, a former director of National Intelligence and CNN analyst, said the laptop was “classic, textbook Soviet, Russian tradecraft at work.”
Members of Congress also repeated the false claims, including Rep. Raja Krishnamoorthi, D-Ill., who told the media not to join Giuliani as a “vehicle for Russian disinformation.”
Rep. Adam Schiff, D-Calif., former chair of the House Intelligence Committee, insisted that the laptop was clearly “Kremlin propaganda.”
This long-debunked claim was even recently repeated in Congress by Rep. Dan Goldman, D-N.Y., who claimed that the laptop could not be authenticated even though it was just authenticated and introduced in a federal prosecution.
All of those who pushed what the U.S. government is now calling a false “conspiracy theory” have flourished in the wake of Biden’s victory. Intelligence officials like Bash received plum positions while others like Clapper were given media contracts. Schiff is expected to be elected to the Senate and is running, ironically enough, on his record with intelligence investigations of Trump.
Conversely, the New York Post and reporters like Miranda Devine have received no recognition for their work in disclosing the contents and defying attacks from politicians and media alike. While reporters were given a Pulitzer for reporting the now debunked Russian collusion story, Devine and others will never receive a Pulitzer for uncovering the true story behind the laptop.
Devine, the New York Post, and others simply refused to get in on the trick. As is often said, there are some facts simply “too good to check” in the media. The Hunter Biden laptop disappeared from the stage like Houdini’s elephant because the media wanted it to disappear.
The reappearance of the laptop in a Delaware courtroom might be awkward for most people, but not the media or intelligence officials or politicians who pushed the conspiracy theory. After all, they were all in on the trick. It was the voters who were played for chumps.
Below is my column in The Hill on the start of the Hunter Biden trial and the elements of a classic jury nullification strategy by the defense. It is not clear that it will work in an otherwise open-and-shut case, but it might. What is clear is that it may be all that Biden has short of the Rapture.
Here is the column:
There was an interesting development this week in the Hunter Biden gun trial: the fact that there will indeed be a Hunter Biden gun trial. That development is surprising only because there do not appear to be any facts in dispute in this case. And the primary witness against Hunter Biden will be Hunter Biden himself.
The sole issue in this case is whether Biden filed a false gun form (ATF Form 4473) in which, as a condition for his purchase of a .38-caliber Colt Cobra revolver from the StarQuest Shooters and Survival Supply in Wilmington, Del., he stated that he was not a user of drugs.
Biden’s counsel, Abbe Lowell, previously suggested that his client may have had a window of sobriety when he signed the form, but then returned to his addiction afterward. But then Hunter himself blew that theory away with his public comments and books. Lowell then suggested in court that someone else may have checked the box on the form.
In the interim, Lowell has brought a litany of challenges. At one point, he claimed that the government must fulfill a prior dead plea agreement. At another, he adopted an argument of the National Rifle Association challenging the underlying statute.
The defense also failed this week to call a last-minute witness who would testify that Hunter may not have known that he was an addict. The defense was accused of essentially hiding the ball with the expert’s expected testimony so Judge Maryellen Noreika barred the appearance of the Columbia professor.
Yet, again, Hunter Biden himself would have destroyed the defense. The form asks if Hunter was a user of drugs, not just an addict: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”
Hunter wrote how he was a user of a wide array of drugs for years. It is hard to imagine he thought himself as clean as a clergyman in Wilmington in 2018.
So why wouldn’t Hunter just plead guilty? Even without his earlier plea deal, a guilty plea could significantly reinforce a request to avoid jail time in the case. It would also avoid an embarrassing trial for himself and his father during a presidential election.
While Hunter could always throw in the towel before the start of testimony, there is currently no discernible strategy beyond hoping that a pending case in the Supreme Court might undermine the indictment.
There may also be another possible strategy in play: jury nullification.
Unlike Donald Trump in Manhattan, Delaware is Biden country. The chance that he will get strong supporters of his father on the jury is an almost statistical certainty. In 2020, Joe Biden received roughly 60 percent of the vote over Donald Trump in the state. Having first lady Jill Biden, who is extremely popular, at the trial will only reinforce the connection.
In addition to a favorable jury pool, Biden may be hoping that testimony on his travails with drugs will prompt one or more jurors to ignore the law and vote to acquit. Notably, virtually all of the selected jurors have said that they know of someone who has struggled with drugs.
Indeed, Judge Noreika already appears to suspect such a strategy. Noreika rejected the effort of the defense to introduce an altered version of the federal firearms form created by the gun store employees. They argue that the alteration showed a political bias on the part of the prosecutors. The court found the document “irrelevant” and chastised the defense team for pursuing “conspiratorial” theories and an effort to confuse or mislead the jury.
She noted that the use of the altered form would be “unduly prejudicial and invites (jury) nullification.”
Jury nullification arguments have long been banned or discouraged in many courtrooms. Nevertheless, jury nullification has its advocates. For example, Georgetown Law Professor Paul Butler has called for Black jurors to refuse to convict Black defendants of drug crimes. Butler has said that “my goal is the subversion of the present criminal justice system.”
Hunter Biden is obviously not the primary concern of Professor Butler in the impact of drug prosecutions on the Black community. However, he has also argued that “jury nullification is just part of an arsenal of tools to end the failed “war on drugs.”
Biden’s case has all of the characteristics of a nullification defense. Even if he cannot secure acquittal, the combination of political and social elements at play in Delaware could produce a hung jury.
Trying a Biden in Delaware is a challenge for any prosecutor, even without the potential sympathies for a reformed drug addict. With the first lady sitting behind him, the family ties will be on full display. There is an understandable parental desire to show emotional support for Hunter, but prosecutors cannot be thrilled by the potential effect on jurors in the pro-Biden state.
Wilmington is President Biden’s hometown, where he still maintains a family residence. In Wilmington itself in 2020, Biden received 26,698 votes to Trump’s 3,580.
The hope is that, as President Biden once said, “Delaware is about getting everyone in the room, no matter how tough the problem, no matter how big the disagreement, and staying in the room until we figure it out.” Most everyone is in the courtroom and the hope is that at least some of these jurors will “figure it out” in their favor.
Perhaps Hunter put it best: “The single best thing is, family comes first. Over everything. I can’t think of anything that has been more pervasive and played a larger part in my life than that simple lesson.”
The defense may be hoping that, for some jurors, “family [will] come first … over everything,” particularly over the evidence.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
Just the News is reporting that the January 6th Committee rebuffed repeated efforts from a Secret Service agent to refute the false story related by Cassidy Hutchinson alleging a violent episode with Trump in the presidential limousine during the Capitol riots. The J6 Committee staff repeatedly delayed the testimony of the agent to disprove the widely reported allegation.
Rep. Barry Loudermilk, the chairman of the House subcommittee that is investigating the Jan. 6 riot, has obtained a transcript of the driver’s interview that was conducted months after he first offered to testify. However, it turns out that committee staff were asked repeatedly by counsel for the agent to let him present evidence debunking the claim. Despite being reported by virtually every news outlet, the Committee slow walked his appearance as the story went viral.
The transcript of the driver’s testimony contains express objections by the lawyer that his client had offered to testify in July, August and September of 2022, but was “rebuffed” by the committee.
The account reaffirms a major criticism of the committee. After Democrats refused to allow the GOP to pick its members (as a long-accepted practice in the House), the Democrats selected two anti-Trump Republicans who did little to push for a full and fair display of witnesses and facts. The Committee was chaired by Rep. Benny Thompson, a Democrat, with Rep. Liz Cheney, as Vice Chairwoman.
Cheney and the committee members clearly knew that Hutchinson’s account was debunked by the very driver who allegedly struggled with Trump. Yet, they allowed the media to report the incident for months while rebuffing the requests of the driver. Loudermilk is quoted as saying “We’re talking about the driver of the limousine, and the head of the entire protective detail. They were brought in by the select committee to testify, but they weren’t brought in until November.”
The false account was given by Hutchinson in June of that year.
The Secret Service driver testified Trump never tried to reach for or grab the wheel of the SUV.
Notably, the transcript shows Cheney trying to explain the delay as due to the need for the Secret Service to produce all documents in the January 6 investigation.
Yet, she had no problem with making the false story public through Hutchinson before such supporting material was supplied. She also did not suggest any countervailing testimony or witnesses on the issue as the media ran with the account. Instead, Cheney publicly teased the claim that they had much more evidence of crimes against Trump, which never materialized. Cheney ended one hearing by calling for more officials to come forward and noting that Trump family members and former officials have now come forward with their own public “confessions.”
Many of us support the effort to bring greater transparency to what occurred on Jan. 6th and these hearings have offered a great deal of important new information. Indeed, it has proven gut-wrenching in the accounts of lawyers and staff trying to combat baseless theories and to protect the constitutional process.
Yet, the heavy-handed approach to framing the evidence by the Committee was both unnecessary and at times counterproductive. The strength of some of this evidence would not have been diminished by a more balanced committee or investigation.
We previously discussed the highly scripted and entirely one-sided presentation of evidence in the Committee. Indeed, witnesses were primarily used to present what Speaker Nancy Pelosi referred to as “the narrative” where their prior videotaped testimony was shown, and they were given narrow follow-up questions. They at times seemed more like props than witnesses — called effectively to recite prior statements between well-crafted, impactful video clips. It had the feel of a news package, which may be the result of the decision to bring in a former ABC executive to produce the hearings.
That framing led to glaring omissions. The Committee routinely edited videotapes and crafted presentations to eliminate alternative explanations or opposing viewpoints like repeatedly editing out Trump telling his supporters to go to the Capitol peacefully.
What is striking was that offering a more balanced account, including allowing the Republicans to appoint their own members (in accordance with long-standing tradition), would not have lessened much of this stunning testimony. Yet, allowing Republicans to pick their members (yes, including Rep. Jim Jordan) would have prevented allegations of a highly choreographed show trial. It would have added credibility to the process.
If the Committee had a single member with a dissenting or even skeptical viewpoint, testimony on issues like the fight in the presidential limo could have been challenged before it was thrown before the world.
That was clearly not in the interests of the J6 Committee or the media, which eagerly spread this false account.
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American Family Association (AFA), a non-profit 501(c)(3) organization, was founded in 1977 by Donald E. Wildmon, who was the pastor of First United Methodist Church in Southaven, Mississippi, at the time. Since 1977, AFA has been on the frontlines of Ame
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American Family Association (AFA), a non-profit 501(c)(3) organization, was founded in 1977 by Donald E. Wildmon, who was the pastor of First United Methodist Church in Southaven, Mississippi, at the time. Since 1977, AFA has been on the frontlines of Ame
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Spiritual
American Family Association
American Family Association (AFA), a non-profit 501(c)(3) organization, was founded in 1977 by Donald E. Wildmon, who was the pastor of First United Methodist Church in Southaven, Mississippi, at the time. Since 1977, AFA has been on the frontlines of Ame
Bible Gateway
The Bible Gateway is a tool for reading and researching scripture online — all in the language or translation of your choice! It provides advanced searching capabilities, which allow readers to find and compare particular passages in scripture based on
What Did You Say? 
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