The Law is Clear - Cipollone Must Appear

 

The Law Requires Pat Cipollone to Answer the Jan. 6 Committee’s Questions

by W. Neil Eggleston

July 5, 2022

Now that Pat Cipollone, Donald Trump’s last White House Counsel, has received a subpoena for testimony from the January 6 Select Committee, he faces two key decisions. He must first decide whether to appear at all. If he does appear, he must then decide whether he should refuse to answer certain questions by asserting legal privileges. In my view, Cipollone has no valid legal basis to refuse to appear—and once in the witness chair, there are no valid claims of privilege that would permit him to refuse to answer questions relating to matters the committee is investigating.

 

Decision Point 1: Whether to Appear Before the Committee

 

Starting with the first decision, there is no proper basis for Cipollone to refuse to appear. Given the nature and gravity of the offenses that the January 6 committee is investigating, a failure to appear would rank as a disgraceful dereliction of duty. That is particularly true in light of the extraordinary testimony offered by former White House aide Cassidy Hutchinson. Under oath, she stated that Cipollone warned his colleagues that if the mob marched to the Capitol, “We’re going to get charged with every crime imaginable.” The committee has the right to explore whether he made this comment just to a relatively low-level staffer—which seems unlikely-or whether he similarly warned Trump and his close associates. The committee has also heard testimony that Cipollone described a proposed letter from Jeffrey Clark (initially supported by Trump) as a “murder-suicide pact” that would “damage everyone who touches it.” Because Cipollone’s own conduct is squarely at issue—and because he had unique access to Trump throughout the fraught period under investigation—the committee can very easily establish a legitimate and legally compelling basis to obtain his testimony.

To be sure, the Justice Department’s Office of Legal Counsel has sometimes opined that high-ranking officials enjoy immunity from appearing in response to congressional subpoenas. But DOJ itself has repudiated that position, in significant part, by prosecuting former Trump administration official Peter Navarro for criminal contempt of Congress. The fact that the Justice Department gave Mark Meadows a pass may be due to the amount of assistance he provided the committee. A former staff member of the committee, Denver Riggleman told CNN’s Anderson Cooper, “Mark Meadows is the MVP for the Committee. I think they should pay him. The data that we got from there actually allowed us to structure an effective investigation.”

 

What’s more, courts have consistently displayed skepticism of absolutist and categorical claims that White House officials enjoy comprehensive immunity from appearing when subpoenaed. That skepticism applies with added force here, given that Cipollone is a former White House official. Indeed, a district court held only a few years ago that former White House Counsel Don McGahn did not enjoy absolute immunity from a congressional subpoena – concluding that the assertion of immunity was “baseless, and as such, cannot be sustained” — and McGahn eventually appeared for a transcribed interview.

 

If Cipollone were to ignore the January 6 Committee’s subpoena, he would do so at his own peril. Cipollone is not a current White House official. He is a lawyer in private practice at the height of his career. Defying a subpoena would present a risk of a criminal indictment for contempt of Congress—a fate that has already befallen both Navarro and Steve Bannon, and that includes the real possibility of jail time (the obstruction charge carries with it a mandatory one-month minimum sentence). Even if DOJ did not pursue an indictment for criminal contempt (a choice it has made thus far for Meadows and Dan Scavino), the committee could consider filing a civil lawsuit seeking to compel his testimony on a highly expedited basis.

More broadly, if Cipollone refused to appear, he would properly face professional consequences. His future pro hac vice and bar admission applications may face opposition; he may lose the trust and confidence of judges and other authorities before whom he appears; clients may come to doubt his integrity; and many fellow lawyers may view him as a willful co-conspirator in a plot against our democracy or at least in its coverup.

Simply put, a decision not to appear before the committee would be legally baseless, professionally disreputable, and personally risky. The committee is not going to let this slide. Cipollone is an especially key witness in one of the most important investigations ever undertaken by the Congress. He must appear under oath.

Decision Point 2: Answering the Committee’s Questions

 

If Cipollone makes the rational decision to appear for a deposition, the next question is whether he can claim any valid privileges against the questions he will be asked. Depending on what his testimony would be, it is perhaps theoretically possible that Cipollone might consider invoking his Fifth Amendment right against self-incrimination, though that would itself be a damning act and inconsistent with his earlier agreement to meet informally with the committee. Putting aside an assertion of Fifth Amendment, which seems practically inconceivable, there is no good faith basis for him to refuse to answer the committee’s questions on any assertion of a legal privilege.

The most straightforward evidence for this conclusion is that many other Trump administration lawyers have already appeared before the committee and testified to their discussions with Trump. Former Attorney General William Barr, former Acting Attorney General Jeffrey Rosen, former Acting Deputy Attorney General Richard Donoghue, and former Assistant Attorney General Stephen Engel, among many other attorneys well versed in the law of privilege, have all appeared publicly to testify about their interactions with (and provision of legal advice to) Trump. Former White House lawyer Eric Herschmann has also appeared and testified about his communications with Trump. Also important, these senior officials testified about what Cipollone himself said in these meetings.

As noted above, Cipollone (as well as his deputy Pat Philbin) met with the Committee, reportedly back in April, to speak informally about the issues under investigation. Under these circumstances, it would be exceedingly unconvincing for Cipollone to maintain that he is now precluded from offering full testimony.

There are many good and overlapping reasons why Barr, Rosen, Donoghue, Engel, Herschmann, and company have apparently concluded they could testify about their dealings with Trump related to the January 6 committee’s inquiry.

First, the current President has declined to assert executive privilege (or to support the assertion of executive privilege) over many of the communications in question. Because any attempted claim of privilege would defy the position of the sitting President, it would stand highly doubtful footing. This is confirmed by a series of recent court rulings arising from the January 6 committee’s subpoena for relevant documents from the National Archives, where Trump’s attempts to halt the production of documents failed at every turn and were ultimately rejected by the Supreme Court.

 

Second, whereas the White House Counsel represents the President in his official capacity, much (or all) of Trump’s conduct relating to the January 6 Committee was undertaken in his personal or campaign capacity. This conclusion is supported by a decision recently issued by Judge Amit Mehta (including relying on the Justice Department’s brief in that case); as well as by the reasoning set forth in a recent Brookings report concerning Trump’s conduct targeting the election in Georgia. Stated simply, the President has no legitimate role in the Joint Session of Congress held pursuant to the Twelfth Amendment.

 

Trump’s efforts to corrupt and obstruct the Joint Session—including his incitement of an armed, violent mob to attack the Capitol—reflected his private pursuit of power, not any presidential function. Because he was acting only as a person seeking office (a.k.a., a candidate), he exceeded his official capacity and lost the prerogatives that come with it. Cipollone’s communications with Trump on this subject thus did not occur between a government lawyer and his client, and so they are not privileged.

 

Third, and relatedly, any claim of privilege would likely fail when tested against the crime fraud exception. As others have explained—and as one federal judge has already confirmed—Mr. Trump’s conduct in relation to January 6 likely constituted a federal crime. Where a lawyer’s client is engaged in a criminal conspiracy and seeks the lawyer’s involvement in that undertaking, any claim of privilege fails. Of course, Mr. Trump would retort that he acted in good faith and genuinely believed the election results were fraudulent. This claim is virtually impossible to square with the evidence, including testimony about what Mr. Trump was told by his senior political advisors. Regardless, even if Mr. Trump truly believed that he had won the election, that would not immunize him from criminal liability for a host of federal crimes including conspiring to create false and fraudulent slates of electors, or sending an armed mob to attack the Capitol in furtherance of an effort to obstruct the Joint Session of Congress.

 

Fourth, Trump’s own oft-repeated public statements about the events in question might well be taken as a waiver of any remaining privilege he might claim. Legal privileges are not designed to facilitate selective, self-serving transparency. Because Trump and his agents have weighed in directly on the subject matter of the questions that the Committee likely would pose to Cipollone, there is a strong argument that Trump has surrendered any right to demand Cipollone’s silence.

 

Finally, Cipollone will most likely receive a grand jury subpoena in the very near future (if he hasn’t already). Hutchinson’s testimony makes this almost inevitable, as does the criminal investigation involving Jeffrey Clark and possibly John Eastman. In the grand jury context, it is only more apparent that any assertion of privilege would collapse: the relevant legal privileges belong to the very branch of the federal government that would be conducting the investigation, and a balancing analysis would overwhelmingly favor DOJ’s need for testimony over any countervailing consideration. This conclusion is bolstered by the D.C. Circuit’s ruling in In re Lindsey, which rejected an assertion of governmental attorney client privilege against a grand jury subpoena issued by Independent Counsel Ken Starr during the Clinton presidency. Since Cipollone will soon be required to provide testimony to federal prosecutors, there is little personal or professional gain to be had in withholding that very same testimony from the January 6 committee, which has advanced a powerful claim of legal right to his evidence and which seeks to protect our democratic system.

 

For these reasons (and more besides), Cipollone should not only appear before the January 6 committee, but he should also offer complete and candid testimony in response to the committee’s questions. The law affords no legitimate reason for him to conceal the events in question behind an assertion of privilege.

Chicago Rules

 Let’s Use Chicago Rules to Beat Russia

Why the U.S. adversary is a lot like Al Capone

By Eliot A. Cohen

JULY 6, 2022, 9:10 AM ET

 

About the author: Eliot A. Cohen is a contributing writer at The Atlantic, a professor at The Johns Hopkins University School of Advanced International Studies, and the Arleigh Burke chair in strategy at CSIS. From 2007 to 2009, he was the Counselor of the Department of State. He is the author most recently of The Big Stick: The Limits of Soft Power and the Necessity of Military Force.

 

Carl von Clausewitz observed in his classic On War that “the maximum use of force is by no means incompatible with the simultaneous use of the intellect.” That means, in part, acting thoughtfully but with the utmost effort, understanding that war is more bar fight than chess game. Or, to put it in the simpler words of Jim Malone, Eliot Ness’s counselor in The Untouchables, “You wanna know how to get Capone? They pull a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue. That’s the Chicago way! And that’s how you get Capone.”

Al Capone is an apt analogy for what the West confronts in Russia: a particularly noxious mix of Mafia mentality, hypernationalist ideology, and totalitarian technique. Elegance is not the Russian way, and it cannot be our way. This is the light in which one should measure the accomplishments of NATO’s recent gathering in Madrid.

The tangible efforts that Western leaders announced were impressive in many respects, particularly the commitments to provide Ukraine with nearly 500 artillery systems, 600 tanks, hundreds of thousands of rounds of ammunition, and more. The question, as always, is whether these will be delivered as swiftly as they can be absorbed, and whether the United States and its allies are “leading the target” by putting in place now the infrastructure to prepare Ukraine for the weapons it will require and hopefully receive one, two, or six months from now, and for training the large forces it must mobilize.

Read: More than 100 days of war in Ukraine

The United States made some incremental additional commitments of forces to Europe, including two destroyers for a naval base in Spain. The policy declarations were important as well: a decision to expand by an order of magnitude NATO’s high-readiness forces; a formal recognition of the challenge (NATO avoided for now the word threat) posed by China; and an agreement to welcome Finnish and Swedish applications to join the alliance.

But these moves, beneficial as they may be, only partly meet the needs of the moment. Time and again Ukraine has demonstrated its ability to absorb high-end military hardware and deploy it quickly and effectively. This seems to be the case with HIMARS, the mobile rocket systems that are extremely accurate, and with which Ukrainian forces seem to be already hitting Russian ammunition dumps and military headquarters. Instead of the promised eight, the Ukrainians need 80, and work should be happening now to scale up transfers of these and like weapons as fast as possible.

What the Biden administration still struggles with is the ultimate purpose of Western assistance to Ukraine. At his press conference, the president said that the United States and its allies would not “allow Ukraine to be defeated.” That is the wrong objective. It should be, rather, to ensure Russia’s defeat—the thwarting of its aims to conquer yet more of Ukrainian territory, the smashing of its armed forces, and the doing of both in a convincing, public, and, yes, therefore humiliating way. Chicago rules, in other words.

In the same way, the administration is wrong to titrate arms out of a misguided desire to avoid provoking Russian escalation or enabling the Ukrainians to do too much. The West is in a moment of military-industrial crisis; it should be taking concrete measures to ramp up industrial mobilization, with the goal of equipping Ukraine to the maximum while rearming the expanding forces of a newly awakened NATO.

Even as Western allies counter Russia’s invasion of Ukraine, they must also meet the broader and longer-term threat that Russia poses to the eastern members of NATO, particularly the Baltic states.

The Western allies will not invade Russia, nor will they overthrow its regime directly—one day, hopefully, Russians will do that. Putin is motivated by imperial fantasies of imitating Peter the Great and other, even less savory Russian leaders. And Putin’s successor, should the Russian leader die or become incapacitated while in office, will likely be no better. For evidence of that, one need only consult the ravings of key advisers such as Nikolai Patrushev. If and when the battles cease in Ukraine, Russia’s intentions to expand and subjugate its neighbors will remain.

The good news here is that if one sets aside misleading memories of World War II and the Cold War, and disregards the ominous mutterings of experts who exaggerated Russian capacity before the war, then it becomes obvious that Russia is a weak state.

Russia’s GDP is less than that of South Korea. Its leadership is afraid to openly mobilize its middle class, so it refuses to declare war and send young men from Moscow and St. Petersburg to the slaughterhouse that is the Donbas. Its generals are, for the most part, incompetent, which is why purges of them continue. It is scraping the bottom of its manpower barrel and so raises to absurd heights the age level of potential service members. Corruption and indiscipline have rotted out its maintenance and low-level leadership. What it has is Cold War–era stockpiles of weapons and munitions (and those are huge, but finite); some pockets of excellence, for example its railroad units; and utter disregard for human life throughout the chain of command.

Even so, a mangy, myopic, and rabid bear is still a dangerous beast. That’s why beating Russian forces in Ukraine is not enough. The West must impose upon Russia sanctions intended not, as the current ones are, to punish, but rather to enfeeble (Chicago rules, again). The plummeting of Russian car production is an example of a basic fact, which is that Russian production depends, more than one might think, on access to Western chips, machine tools, and special materials. However the Ukraine war ends, permanently or temporarily, the West needs to settle into a comprehensive sanctions regime that will weaken Russia’s economy in the long haul and throttle its ability to rearm on a large scale when the shooting stops.

NATO expansion should assist in this process. The alliance will soon in all likelihood have Sweden and Finland as full members. They have real and potential capacity (Finland more the former, Sweden more the latter) and serious political leadership. But a NATO of 32 members will be even more unwieldy than what we now have.

Read: The accidental Trumpification of NATO

The solution—which cannot be publicly declared—is a NATO-within-NATO. Germany, France, and Italy have the largest economies in the European Union and in theory should carry the most weight in European-security decision making as well. But they cannot. Germany, the proverbial Hamlet of nations, is fatally compromised by its unwillingness and inability to make good on military commitments, and its recent sordid past in enabling Russia’s growth and stranglehold on European energy supplies. France is domestically torn, while the overweening vanity of its presidents makes it difficult for them to get a receptive hearing from lesser mortals. Italy, as ever, produces statesmen on occasion, but not statesmanship.

A nascent coalition of powers is, however, willing to take Russia seriously and has the muscle to thwart her while bringing less resolute European states along. The Eastern European and Baltic states, with Poland in the lead, know Russian tyranny firsthand, and are ready to stand up to it; the Scandinavian states, in particular Finland and Norway, are almost as intent; the English-speaking external powers, including the United Kingdom and Canada, are similarly alive and determined. It is to this core group that American statecraft must look.

The British chief of the General Staff recently described the Ukraine crisis as a 1937 moment for the West. It was an acute historical comparison. In that year the Sino-Japanese war began, setting the stage for World War II. In that year the West had before it choices that could have avoided the horrors of a far worse conflict, but it ducked.

To their credit, in the current moment, Western leaders are performing far better than did their counterparts 85 years ago—but not yet well enough. We’re dealing with Capone, and while, like Eliot Ness, we need to stay within the constraints of law and basic decency, we also need to apply Chicago rules.

Eliot A. Cohen is a contributing writer at The Atlantic, a professor at The Johns Hopkins University School of Advanced International Studies, and the Arleigh Burke chair in strategy at CSIS. From 2007 to 2009, he was the Counselor of the Department of State. He is the author most recently of The Big Stick: The Limits of Soft Power and the Necessity of Military Force

 

LET"S GET THIS FILTHY PIG AND TRAITOR

 

The Georgia investigation remains Trump’s biggest problem yet

 

By Jennifer Rubin

Columnist|

July 6, 2022 at 10:00 a.m. EDT

 

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Donald Trump’s greatest criminal vulnerability has always been in Georgia. That’s where prosecutors are investigating the defeated former president for pressuring Secretary of State Brad Raffensperger (on tape!) to “find” just enough votes to swing the state to him and for intimating that the Georgia official might face criminal peril if he refused.

 

Unfortunately for Trump, the risk of prosecution is only getting worse.

 

The Atlanta Journal-Constitution reported on Tuesday that a Fulton County, Ga., grand jury issued subpoenas for Trump’s lawyer Rudy Giuliani as well as “John Eastman, Cleta Mitchell, Kenneth Chesebro and Jenna Ellis, all of whom advised the Trump campaign on strategies for overturning Democrat Joe Biden’s wins in Georgia and other swing states.” Sen. Lindsey O. Graham (R-S.C.), who allegedly made his own inquiries to Georgia officials, and podcast host Jacki Pick Deason also received subpoenas.

 

Norman Eisen, who served as special counsel for the House Judiciary Committee during Trump’s first impeachment, tells me that this “rogues’ gallery” of lawyers may provide yet unheard critical evidence. He notes that Fani Willis, the Fulton County district attorney leading the investigation, seems to have “completed the in-state portion of her special grand jury investigation" and may now be moving “to take evidence from those outside of Georgia who may have participated in the alleged conspiracy targeting Georgia voters and electors.” She appears to be moving ahead of the House select committee investigating the Jan. 6, 2021, insurrection and the Justice Department.

 

In addition to all these witnesses, Willis and the grand jury will soon have access to the entire body of information gathered by the Jan. 6 committee, including prior witness interviews, phone records and live testimony. The Justice Department will likely share evidence or even provide technical assistance to local prosecutors. (One basis for the Justice Department to decline to prosecute an individual is because another jurisdiction may do so; if so, the feds are obliged to “coordinate with those authorities as appropriate.”)

 

“The suspense is essentially over,” constitutional scholar Laurence Tribe tells me about the subpoenas. Willis “seems poised to take on the ringleader in a racketeering scheme to steal Georgia’s 16 electoral votes.” He says that will likely be “the first indictment of a former president, who committed the crime on tape for all to hear.”

 

Giuliani may be the most at risk after Trump, given that, as the Journal-Constitution reported, he has made “sensationalist claims and conspiracy theories about tens of thousands of people voting illegally and rigged voting machines that were quickly debunked by state authorities or rejected in the courts.” These sorts of false claims of fraud led a New York court to suspend Giuliani’s law license.

 

There is no guarantee these figures will testify, since many likely have a Fifth Amendment claim against self-incrimination. Some may also try to invoke attorney-client privilege, though federal District Court Judge David Carter has already ruled in a related case that Eastman had no such privilege because of the fraud-crime exception, requiring Eastman to provide documents to the Jan. 6 committee

 

This tranche of subpoenas marks an ominous turn for Trump. Leah Litman, a professor at University of Michigan Law School, tells me that “the subpoenas confirm that people understand what the Jan. 6 Committee hearings have revealed: The effort to overturn the election was a coordinated campaign that included high-level Republican officials.”

She adds, “It is easy to dismiss the mobster-like phone calls and insane claims of missing ballots as evidence of bumbling wannabe autocrats or mobsters. But failed coups look silly until they succeed.”

 

Willis has several legal theories to pursue against Trump and his cronies, including criminal solicitation to commit election fraud, conspiracy to commit election fraud and intentional interference with performance of election duties. If the district attorney can show “repeated violations of law by an enterprise” (e.g., the Trump campaign), prosecution under the state racketeering statute might also be possible.

 

Given the finite set of facts and easy-to-understand statutes, the pack of witnesses who might cooperate and a taped recording (hardly ever available to prosecutors), it may well be easier and certainly quicker to bring discrete state charges against Trump than it would be to present the entire coup plot in federal court months from now. (Attorney General Merrick Garland can continue to anguish over the prospect of indicting a former president and later bring federal charges concerning other aspects of the coup attempt.)

 

At the very least, Willis’s fast-developing investigation underscores that, regardless of whether Trump truly believed he won the election, he was not allowed to pressure state officials to “find 11,780 votes” that did not exist. That is why Trump is at serious risk in Georgia — and perhaps in other states where he allegedly engaged in similar conduct.

 

BIDEN'S WEAK AND STUPID REFERENCES TO BIPARTISANSHIP WILL ONLY LEAD TO MORE BLOODSHED

 

Democrats can’t rely on Biden if he doesn’t rhetorically meet the moment

 

By Jennifer Rubin

Columnist|

July 6, 2022 at 7:45 a.m. EDT

 

President Biden and his team came into office with the benighted belief that they could “lower the temperature” in Washington and reduce the profile of the presidency. The result, Biden hoped, would be more functional and productive politics.

 

It did not work. Instead, he has too frequently ceded rhetorical energy to Republicans and has demoralized his own side by coming across as blasé in the face of outrageous developments.

 

Biden’s tough rhetoric often lasts no more than one speech (e.g., his speech in Atlantic rebuking Georgia’s voting restrictions, his White House speech decrying the mass shooting in Uvalde, Tex.) before he returns to speaking in pale pastels. His thirst for bipartisanship, whetted by limited success on guns and noncontroversial deals on infrastructure, appears to have sapped him of the righteous anger our times demand.

 

Biden’s first reaction to the shooting in Highland Park, Ill., on July 4 was illustrative. Granted, he was speaking to military families on a holiday, but his words Monday afternoon struck the wrong note. “You all heard what happened today,” he said, not even using the word “shooting” or mentioning the location. He continued, “I know many Americans look around today and see a divided country and are deeply worried about that fact. I understand. But I believe we’re more united than we are divided.”

 

Actually, we’re more divided than ever — and increasingly so thanks to the Supreme Court. And the worry is not that we are divided, but that our democracy is imperiled.

Biden’s written remarks were somber and more heartfelt, but devoid of anger. “Jill and I are shocked by the senseless gun violence that has yet again brought grief to an American community on this Independence Day,” the statement read. “As always, we are grateful for the first responders and law enforcement on the scene.” He noted the gun reforms he recently signed into law and meekly offered that “there is much more work to do, and I’m not going to give up fighting the epidemic of gun violence.” It sounded depressed, not defiant.

 

The murmurs of dissatisfaction rolling through the Democratic Party in part stem from a sense that his serene, platitudinous language and disinclination to fully denounce the GOP only minimize the dangers we face and disguises the extremism of democracy’s opponents. Whether it is his reflexive opposition to court reform or his characterization of Senate Minority Leader Mitch McConnell (R-Ky.) as being “rational” on guns, Biden’s responses do not match the level of fear, frustration and anger that millions of Americans feel.

 

Democrats cheered when Illinois Gov. J.B. Pritzker (D) said in the wake of the July 4 massacre, “If you’re angry today, I’m here to tell you: Be angry. I’m furious. I’m furious that yet more innocent lives were taken by gun violence.” He continued, “While we celebrate the Fourth of July just once a year, mass shootings have become our weekly — yes, weekly — American tradition.” He added, “There are going to be people who say that today is not the day, that now is not the time, to talk about guns. I’m telling you there is no better day and no better time than right here and right now.” That is how a leader talks.

 

Certainly, the country does not need an alarmist president. But for those on the front lines battling for democracy, racial justice, women’s autonomy and an end to gun violence, anodyne statements and grating paeans to bipartisanship reinforce the sense that Biden is out of touch and unprepared to “battle for the soul of our nation.”

 

Instead, the White House appears to suffer from the mentality that defending Democrats amounts to Trumpism on the left. Cedric L. Richmond, a former Democratic representative from Louisiana who left his seat to work in the Biden White House, recently told CNN: “The country didn’t elect Joe Biden because they wanted a Democratic Donald Trump to go out there every day and divide the country more.” In Richmond’s mind, demanding Biden speak up more aggressively is the “the same foolishness that got us Donald Trump.”

 

That’s just daft. It shows an utter lack of appreciation for the nature of the GOP and the critical need to mobilize the rest of the country in defense of democratic values. Surely, Democrats are hoping the rest of the administration doesn’t buy into this.

 

Ironically, Democrats for the moment have the upper hand on some of the most powerful issues, including gun safety and abortion. It’s obvious that McConnell desperately wants to change the topic. (Remember when “cultural issues” were losers for Democrats?) That is because these issues animate millions of voters, especially suburbanites and women.

 

Unlike Biden, Democrats up and down the ballot appear to recognize we are at an inflection point. Rather than wait for direction from the president or some unified message from advocacy groups, they should continue doing precisely what they have begun: Highlight the cruelty, extremism and unfitness of their opponents. Run on women’s autonomy and ending senseless gun violence. Put initiatives on the ballot to draw voters to the polls. Condemn a radical, out-of-control Supreme Court and vow to reform it — by filibuster reform if necessary.

 

If the president, the leader of his party, cannot channel that and capture the zeitgeist, the party will need to do it without him. If that happens, the sense that Biden is not the man for the moment will only intensify.

THE DEMOCRATIC LEADERS ARE TOO OLD, TOO WEAK, AND TOO TIRED TO BE AGGRESSIVE ENOUGH TO SAVE OUR DEMOCRACY

 

THIS SAYS IT ALL – THE DEMOCRATIC LEADERS ARE TOO OLD, TOO WEAK, AND TOO TIRED TO BE AGGRESSIVE ENOUGH TO SAVE OUR DEMOCRACY – BIDEN IS SIMPLY TOO WEAK TO PLAY HARDBALL AND MCCONNELL HUMILATES HIM AT EVERY OPPORTUNITY

 

Gavin Newsom’s TV ad slamming DeSantis fills a void among Democrats

By Paul Waldman

 and 

Greg Sargent

 

July 5, 2022 at 5:59 p.m. EDT

 

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The shooting at a July Fourth parade in Illinois seemed somehow different — it wasn’t just one more massacre. This was obvious to everyone, especially liberals who criticize American gun culture and the difficulty of passing legislation at the national level.

 

Nowhere seems safe, and politicians are unable or unwilling to do anything about it.

 

For those liberals, the reaction of their party’s leadership, if not nearly as repugnant as the GOP’s standard “thoughts and prayers,” is nonetheless frustrating. Our country feels like it’s spinning downward at an ever-more-furious pace, and the party is led by superannuated politicians who at these moments explain why they’d like to do more but are constrained from doing so.

 

So they criticize the Supreme Court’s recent ruling nullifying some blue-state gun laws and tout the new gun reforms, which represent real progress, though not nearly enough. But few national Democrats, if any, are making a comprehensive case that right-wing radicalization threatens a nightmarish future, on many fronts at once.

 

Right now, the GOP is united in its determination to put more guns on the streets. Its state legislatures compete to pass the most draconian laws on abortion they can dream up. Its witch hunt against critical race theory morphed into an anti-LGBTQ crusade. It has given itself over to deranged lies about voter fraud conspiracies, the very lies that inspired the Jan. 6, 2021, riot and threaten to make fair elections impossible.

 

Meanwhile, President Biden keeps talking about the Republicans of good will whose support he seeks. Democratic leaders in Congress focus on discrete pieces of legislation they hope to pass but only occasionally do.

One just doesn’t get the sense that their hair is on fire, which is how rank-and-file Democrats feel.

 

We think this is the context for the new, much-discussed move by California Gov. Gavin Newsom (D). Over the weekend, he aired an ad on Fox News aimed ostensibly at Floridians living under Gov. Ron DeSantis, the second most important Republican in the country after Donald Trump:

 

“It’s Independence Day, so let’s talk about what’s going on in America,” Newsom says in the ad. “Freedom is under attack” in places like Florida, he says, listing a number of issues — abortion, free speech, voting rights — on which Republicans are trying to “take your freedom.”

 

The message here is that all these right-wing efforts add up to profoundly threaten the way of life that much of Blue America takes for granted. Why don’t we hear this big-picture case more often?

 

Yes, it’s a bid for attention. Newsom, an ambitious politician who’s likely eyeing a White House run, knows a personal spat between two governors is irresistible to political reporters.

 

But he’s speaking into a real vacuum. Democratic voters crave signs that party leaders understand their frustration is bordering on panic: As they see it, the side making serious ideological gains is the opposition, whose chances of winning Congress don’t seem diminished by revelations about Trump’s GOP-enabled effort to destroy our political order, court decisions gutting long-settled rights, or mass-shooting nightmares that seem horrifyingly inevitable.

 

Newsom’s foray captures a sense that a generational turn among Democrats is needed for party leaders to communicate effectively about this pileup of perils. Consider that the most viral recent moments communicating this radicalization have been staged by younger Democrats, often quite effectively.

 

State Sen. Mallory McMorrow of Michigan commanded far-reaching media attention by tearing into a GOP colleague for pushing the vile “groomer” smear about Democrats, linking it to a forceful critique of the right’s degradation of our national life.

 

Similarly, Sen. Brian Schatz (D-Hawaii) has urged Democrats to “make more noise” in response to right-wing extremism. In this telling, there’s a “loudness” gap between the parties: Democrats must sound a drumbeat of urgency, if only to let the country know something is dangerously out of control on the right.

 

Take the Jan. 6 committee hearings. The disarming of GOP efforts to plant saboteurs on the committee, combined with tactics such as drawing attention to Fox News personalities’ texts and telling gripping stories about Trump’s descent into madness and corruption, have focused extraordinary attention on the insurrectionist mania gripping the right and some in the GOP.

 

House Speaker Nancy Pelosi (D-Calif.) deserves credit for that success. But much heavy lifting is being done by Rep. Liz Cheney (R-Wyo.), the committee vice chair, and hugely compelling witnesses such as Cassidy Hutchinson. It’s hard to conclude that the Democratic leadership sees a broader lesson in the success of this effort.

 

And as Ron Brownstein notes, the uncertain rhetorical response by Democratic leaders is joined at the hip with a seeming unwillingness to fully embrace procedural hardball. Their call for an end to the filibuster to protect democracy and abortion rights seemed belated and tentative, even as the consequences of the right’s capture of the Supreme Court are rubbed in liberals’ faces daily.

 

Democratic strategist Simon Rosenberg suggests that for Democrats to have any chance in the midterms, they must communicate with the majority that’s repelled by the Trump-era GOP’s excesses. As Rosenberg tells us: “We need to remind the anti-MAGA majority, who voted in record numbers in the last two elections, that if anything, the radicalization has gotten worse.”

 

Ask yourself this: Who is speaking to that anti-MAGA majority?

Cheap Thoughts and Useless Prayers - Republicans in Congress are Scumbags Across the Board

 

NEW INC. MAGAZINE COLUMN BY HOWARD TULLMAN

 

Why Music Has Lost Its Charms

The world's playlist today is mostly music that was composed decades ago. Yesterday, so to speak. We can all argue about whether my generation's music is better than yours, but there's little doubt that corporations have stifled creativity.

BY HOWARD TULLMAN, GENERAL MANAGING PARTNER, G2T3V AND CHICAGO HIGH TECH INVESTORS@TULLMAN

I’ve always believed that good music has a magic all its own. It can inspire and excite. It can bridge gaps and unite. And it can comfort and console. In a matter of minutes, music quickly takes us somewhere else for a moment in time and it can stay with us for a lifetime. Magical music never leaves the memory.

Music is a mystical form of transportation, whether you are cruising in a car, sitting in your bedroom, or up on the roof and, much earlier in my life, it was inescapable. Virtually every week, there’d be a new song or album, a new singer or group, or a new movie with a killer soundtrack featuring tunes that we couldn’t stop singing. The music factories in New York, L.A., Nashville and Motown were constantly cranking out hits and A&R guys were prowling the country in an unending search for new talent.

But that was then. Now there’s less and less new music being funded and produced commercially and, more importantly, the world seems to be mainly interested in listening to “oldies but goodies.” The streaming services and cloud-connected listening devices have given us levels of detail and precision never available before, which has revealed that most of the music that matters these days -- more than 70% of what’s being streamed for example -- is “old” stuff. Whether that reflects some nostalgic search for comfort and security or just a desire to have lyrics that are meaningful, intelligible, and not obscene, the fact is that a constantly growing number of consumers of all ages are listening almost exclusively to old music (catalog, in the parlance) rather than current material.

One reason for sure is that so much of the “new” music is just more of the same “hit it and forget it” junk, which is both a disappointing and a frightening phenomenon. These aren’t the instant classics of our youth. As Bob Seger would say, the music today just doesn’t have the same old soul. Screaming and swearing about booty and bling, guns and gangbangers, isn’t quite the same level of storytelling that we still love to listen to from James Taylor, Stevie Wonder, Jackson Browne, Otis Redding, or the Eagles.

Creative is certainly one of main reasons that most of today’s tunes don’t have the same staying power as earlier hits. Paul McCartney’s solo masterpiece, Yesterday has been offered in more than 3,000 cover versions since its release in 1965 and performed well over seven million times. Gotta wonder how many folks will be covering WAP, especially once all the stupid liberal suburban parents figure out what kind of lyrics their teenage kids are TikTok-ing and twerking to.

You can usually tell pretty easily what sounds suck, but no one really knows (apologies to Clive Davis) what makes a lifelong hit until the customers decide. As we used to say at Tunes.com, there’s a fine line between a single and a jingle and there’s no accounting for taste. We know for sure that the song doesn’t have to be fancy, flawless, or fashionable. It doesn’t have to be sung by a star, be the theme of a great movie, or be the 11 p.m. highlight of a Broadway play. And the fact that a song was initially immensely popular for a fleeting moment and readily available and accessible (i.e., commercial, and “right” for radio) doesn’t mean that its staying power is either assured or diminished. Carole King’s great chart topper “It’s Too Late” started out as the B side of “I Feel the Earth Move,” which never even charted.

Music industry old timers like to blame technology for their problems. Digital music files (MP3s) did drastically lower the bar of what passed for acceptable sound. Consumers sacrificed audio quality for compression and portability and have never really looked back. No one is whining for vinyl these days, so people stopped paying attention to, and paying for, the costly niceties of quality production. Other technologies like the old Napster made the music “free” - albeit stolen - and provided digital or pirated versions of the most popular hits that you could readily share with your friends-- even if listening to a song on computer speakers was a lot like taking a bath with your socks on.

The reality today is that the music industry makes money off of everything other than the music, if it makes money at all. Concert tickets, tour revenues, product tie-ins and licenses and swag at all the events are the real money makers. The corporate suits and conglomerate clowns who came to own and operate the major music businesses were not only musically deaf and dumb, but they were also greedy, lazy and unwilling to change.

The music business has always been about the business first and the music as an afterthought, but the industry didn’t really take care of either one for many years. The music execs made three main mistakes, which are just as likely to cause problems in your business if you’re not careful.

First, much like the movie business - with its franchises and tentpole films - the labels constantly pushed the talent for more and more of the same. Looking to build off of, and repeat, their past successes and sales, they didn’t want to see anything edgy, challenging, or different because they were perfectly content to rest on their past laurels and glories and sell merch, concert tickets, and fancy boxed sets of the same old material. They were stuck in a short-term, prosperous past, but by failing to develop and invest in new formats, styles or talent, they were mortgaging their future prospects. The moral of this story is simple - the world never waits for you and if you aren’t willing to change, it will pass you by. Change before you have no choice.

Second, the head honchos were completely risk averse and unwilling to invest in anything other than the very sure thing that their current catalog of music represented. New delivery methods, new production technologies, new channels to reach their users were all available, but none of the old-line traditional players stepped up. Instead, they left the field wide open for Apple and other tech companies to develop innovative and attractive new solutions. The demands and desires of every consumer in every field have a single defining characteristic: they are progressive, and the customer is always looking for more. Standing still is the best way to be left behind. You can change or you can die.

And finally, with the emergence of streaming and fixed algorithmic systems for radio play, the industry bean counters discovered a fundamental truth - they were being paid exactly the same amount per song whether the song was brand new or 50 years old. They quickly concluded that if their customers (stations and streamers) were indifferent to the age of the content and the end users were actually looking for the older music, there was little or no reason to rock the boat and push for new material. Investing in new talent turned out to be an incremental cost which they chose to avoid.

But even best and oldest wines age out eventually and - at the moment - there’s not much new growth to fill the pipeline. What new music activity there is - interestingly enough - is happening away from, independently of, and frankly trying to avoid having anything to do with the big labels. Things aren’t going to get better any time soon.

Change is always expensive - whether you pay upfront to make the necessary changes - or you pay later for not having made the changes in a timely fashion. But it’s also inevitable and a certainty. Music itself is never going to disappear - but I wouldn’t bet a nickel on the likely long-term survival of the major record labels.

Contentment is the smother of invention.

JUL 5, 2022