Reflections on the Midterms (and more)

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First, some business. 

Sometimes I think, “Elon Musk would not drive Twitter into a brick wall.” Other times I think, “OMG Elon Musk is driving Twitter into a brick wall.” I have therefore opened accounts at Mastodon and Counter Social:

If you’re trying to decide which to join, it seems to me that Mastodon is the one most likely to take off. The downside is that it isn’t easy to learn. It will definitely take me a while to figure it out.

Updates on the major DOJ criminal investigations

I updated my DOJ investigations FAQ page. Updates are in red.

Derivative Use Immunity

A few weeks ago, Kash Patel, the guy who said that Trump declassified all the documents and that he was there when Trump did it, was called to testify before a grand jury. He took the Fifth Amendment. The DOJ has now given him derivative use immunity. Here is what that means:

Use immunity is solid immunity for anything Patel says truthfully, but it is not blanket immunity from prosecution.

It immunizes Patel for his statements, which therefore means he can’t take the 5th because he is not being compelled to be a witness against himself. The prosecution can still build a case against him from evidence entirely walled off from his statements. It’s hard to do, but possible. If he commits perjury, he loses his immunity and can be prosecuted for his statements.

This is a sign that the prosecutors are not interested in indicting Patel. They want his truthful testimony. They’re going after someone else and that someone can only be Trump.

It’s also a sign that the DOJ wants to flush out Trump’s bogus “declassified” defense now.

(A lot of headlines are making it sound like Patel entered a cooperation deal, or he got blanket immunity. This isn’t a “deal.” It was forced on him. On the other hand, the smartest thing he can do at this point is to cooperate.)

On Thursday, Kash Patel testified again before the grand jury. Of course, we don’t know what he said, but we can assume he didn’t take the Fifth.

How can anyone believe he will tell the truth?

Right now, it’s likely that the DOJ has no interest in prosecuting him. If he lies, they probably will prosecute him. Lying would therefore be colossally stupid. If he lies, he can be prosecuted for lying (perjury) but more importantly, lying before the grand jury would make it easier to indict him as a part of the entire conspiracy, including obstruction.

The Pesky First Amendment

This is from a reader:

If you have time, please explain: 1) Why is there no enforceable law against politicians who tell dangerous lies… like claiming opponents kidnap children and drink their blood? 2) Or lying and pretending election malfeasance? 3) Lawlessness begets lawlessness, correct?

The First Amendment protects lies. Allowing the government to punish lies would not go well. The problem is how to distinguish between a mistake, an inaccuracy, and a lie. Even Biden gets things wrong. Of course, there are times when lying is a crime; for example, perjury and fraud, but allowing the executive branch to punish members of the legislative branch for lying would make it legal for a president to imprison political rivals. The president simply needs to find a way to construe the elected official’s statements as a lie. Fortunately, the First Amendment prevents this.

Reflections on the 2022 Midterms

If you believe the polls, the Democrats are heading for a major loss. If you believe people like Simon Rosenberg, there may be a red wave, but so far there are no signs of it because Democrats are outperforming polls and outperforming 2018 in early voting:

 

Conventional wisdom is that the party in power loses in the midterms. Common sense (or perhaps wishful thinking) tells me that this is not a normal midterm: Roe v. Wade has been overturned, the public is fully aware of the insurrection and Republican efforts to overturn the last election, Liz Cheney is campaigning for a Democrat, and changing demographics in the US favor Democrats.

From journalist Marisa Kabas:

Before the Supreme Court’s ruling on Dobbs vs. Jackson Women’s Health Organization, voters under the age of 25 accounted for 21% of new voter registrants nationally, according to stats from TargetSmart. But since then, overall their share rose to 26%, and an astounding 31% since the beginning of October. Data from ​​the nonpartisan Center for Information & Research on Civic Learning and Engagement at Tufts University confirms the same trends. “The surge in youth registration has been driven by young women,” says Bonier, who was compelled to dig into the voter registration data after the surprising outcomes in the N.Y. 19 special congressional election and the Kansas state primary over the summer.

It isn’t hard to guess that these young women are registering to vote in large numbers because of the abortion issue, which is why Biden keeps repeating that if we give him a Democratic House and two more Democratic Senators, he’ll codify Roe v. Wade.

The Blame Game

If the Democrats win, I will breathe a collective sigh of relief. If the Democrats lose, there will be finger-pointing and blaming.

Some people will blame the Democratic Party for not being better at messaging. (I talked about that last week.) Others will blame the media for adopting the Republican framing of issues. (This assumes, perhaps correctly, that most voters have only a superficial understanding of the issues.) Others will blame Merrick Garland, which makes no sense, particularly in the absence of evidence that voters care about prosecuting Trump as an issue. (Roe v. Wade is much more of a concern to most voters.) Nobody even seems to care that the Trump Org. is under criminal indictment.

My theory of course is that (1) authoritarian methods are effective and (2) authoritarianism has a wider appeal than most people realize. In an increasingly complex world, simple explanations are easy to grasp and satisfying and we are currently in a disinformation disruption that is enabling the rise of authoritarianism globally. The close election in Brazil (close to half of Brazilians prefer to keep Bolsonaro in power) demonstrates to me the appeal of autocracy.

Either way, win or lose, the task moving forward is to get more people engaged.

Teri, you’re always telling us to get involved. Tell us what you do.

Okay, why not? I volunteered about 30 hours over the past two weeks, so I’ll tell some of my stories.

How I Became A Voter Protection Lawyer

I’ve been volunteering on campaigns since 1980 when I did phone banking for Jimmy Carter. One memorable day, I called voters in Hallsville, Missouri. 1980 was when the parties were shifting platforms. The Democratic Party, the party of the former Confederacy, was embracing civil rights, while the Party of Lincoln was moving toward right-wing extremism and winking at racists. I had conversations like this:

Me: What is your political affiliation?

Resident of Hallsville Missouri (a man): I’m a Democrat. My daddy was a Democrat and my granddaddy was a Democrat. You can’t get elected dog catcher in this town if you’re not a Democrat.

Me: Who will you be voting for, for president?

Him: Ronald Reagan.

Me: You do realize that Reagan is a Republican and Carter is a Democrat, right?

Him: [laughs] I’m not voting for your candidate.

Not long afterward, I sat in my college dormitory room and cried when the map turned red. I’ve volunteered on campaigns regularly since.

How I Became a Voter Protection Volunteer Lawyer

In 2016, I received an email: The Clinton campaign was looking for lawyers willing to go to Nevada to monitor polling places during early voting and the general election. My job was to watch what was happening and report anything irregular to the lawyers who sat in what’s known as a “boiler room.” The boiler room lawyers solved whatever problems they could, and escalated issues requiring legal action to the litigation team.

In 2018, my husband Andy and I went to Nevada to monitor polling places for the midterms.

Our adventure

Each party was allowed to have one insider observer. Outside observers could only talk to voters more than 100 feet from the door.

Andy was stationed outside a polling place, watching, and I was inside. So there I was, wearing business casual (I looked like a lawyer but not too much like a lawyer) when the Republican observer sat down next to me, wearing a cowboy hat, cowboy boots, jeans, and a red plaid shirt. (No kidding).

He said, “What side are you on?”

Me (as innocently as I could manage): “Aren’t we all on the same side? The side of American democracy?”

He wasn’t amused. “I think you’re one of those California lawyers coming over here butting into our elections.”

I couldn’t lie even if I had wanted to. Our car had California license plates.

He left the polling place. Soon afterward, the sheriff arrived to follow up on a report that Andy was violating the law by talking to voters within 100 feet of the polling place. Andy did not (and would not) break the law. Andy talked to the sheriff, who talked to the polling place manager, who told the Sherrif that no, Andy was following rules.

I called the boiler room and told them what happened. They were planning to send us to a different polling location anyway. So we went to the next polling place (after a brief stop at Starbucks) and took our places, me inside, Andy outside.

Then guess who showed up. Yup, the cowboy. He’d evidently followed us. I called the boiler room and told them it was getting a little creepy. They moved us to a different polling place. He followed us there, too.

So the boiler room folks came up with a plan. They gave us driving directions. The idea was to fake him out. He’d think we were moving on to the nearest polling place, but at the last moment, we would switch lanes, get off the highway at a particular exit and swing around and get on a different highway. If we did it right, he wouldn’t be able to follow us. We would then go to a polling place in the next county.

It worked. We lost him. I think that qualifies as an actual car chase even though (of course) we never broke the speed limit. It was my first car chase, and I hope my last.

Georgia Democrats

In 2018, I met the director of voter protection in Georgia and told her I’d be happy to do volunteer work. She gave me the job of updating the Georgia Democrats’ Election Law Handbook. At the end of that task, I knew quite a bit about Georgia election law. She invited me into the boiler room during the primaries and the 2020 general election. I was also asked to join the Georgia voter protection committee.

Over the past year, I also put in dozens of hours of volunteer work for 866-Our-Vote.

This cycle, I’m back in the Georgia Democrats Boiler Room, putting in 12 – 18 hours during early voting. I’ll be in their boiler room all day Tuesday.

During the 2020 primaries, if you recall, just about everything went wrong in Georgia. The Democrats ended up filing several lawsuits and the newspapers carried the stories of Georgia’s election meltdown. This time around, things are much smoother, so at times the job is almost boring. This is why I always say that being an election worker is an important job. Good poll workers make it easier to vote. There will be fewer problems at the polls and the lawyers in the boiler rooms won’t have as much to do.

As a general rule, it’s good when you don’t need lawyers.

On the other hand, bad poll workers often create problems or contribute to problems, giving headaches to the lawyers in boiler rooms.

So if you can, be a poll worker. You’ll be a genuine American hero. It’s hard work with long hours and not much pay. If you need other ideas, see my list.

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