Well, That Was Dispiriting


The debate was pretty awful and I think the most important, and perhaps only, takeaway is that Biden didn’t buckle. He got flustered at times, did his share of interrupting, and was evasive on some key questions. But the point of the president going Full Trump, as Dan puts it below, was to make Biden crack and it didn’t happen. So Trump turned in a performance that a lot of viewers will find unpresidential without getting the upside. I doubt the debate will change the race much one way or the other, but Biden benefits every day the trajectory of the race stays the same.


The First Debate Showed Why Biden Will Win

Democratic presidential nominee Joe Biden participates in the first 2020 presidential campaign debate with President Donald Trump in Cleveland, Ohio, September 29, 2020. (Jonathan Ernst/Reuters)

Joe Biden is not Hillary Clinton, and that will be enough to win him the election this November.

This much has been clear since Super Tuesday this year during the Democratic primaries. In 2016, Hillary split several very important states with Bernie Sanders on Super Tuesday, and those she won, she won without walking away. In 2020, Democrats reran the same experiment with Joe Biden, even keeping Bernie the also-ran around to act as a control factor. The results were strikingly different. Biden annihilated Sanders on Super Tuesday. It appears that a lot of the Vermont senator’s support in those states last time around was motivated more by antipathy towards Hillary than by affection for Sanders and his agenda. Given the opportunity to vote for someone other than Hillary, voters ditched Sanders in droves.

The same dynamic will play out in the general election this November. Voters who flocked to Trump in 2016 because he met the indispensable criteria of not-being-Hillary will abandon him when offered a non-Hillary alternative.

The first debate showed why this result is all but inevitable at this point. At several intervals, the president descended into what can only be described as merciless bullying. Biden, it should be noted, was susceptible to bullying in the first place because he appeared to be punch-drunk from the get-go, and could not seem to find his marbles at any point during the debate.

But Trump went seriously out of bounds at several points. He refused to acknowledge Beau Biden’s honorable military service, pivoting instead to Hunter Biden’s cocaine addiction. Needless to say, family struggles with substance abuse would be completely out of bounds during a political debate in a healthy, dignified society. 

But the personal attacks didn’t really land. They just drew attention to Trump’s comprehensive paucity of class and moral fibre. And they didn’t land because they weren’t directed at Hillary Clinton. Trump’s pugnacious and bullish behavior is not a new debate tactic that he’s picked up this year. His behavior during the debates with Clinton was very similar — he even insinuated that he’d throw her in jail given the chance. But Trump’s pugilism didn’t hurt his debate performances as much last cycle because it was aimed at Hillary, a woman for whom huge swathes of the electorate cannot muster a single shred of sympathy. She was so disliked and so abhorred by so many Americans, that everything Trump threw in her direction was, if not applauded, then ignored in light of Clinton’s own record of staggering moral illiteracy.

The truth is that Donald Trump as a candidate was tailor-made to beat Hillary Clinton, but his style of politics doesn’t adapt very well to less hated opponents. Put him in a room with a candidate even marginally more sympathetic than Hillary and he comes across as little more than a latter-day Biff Tanner, tormenting whichever hapless McFly is unfortunate enough to be in close proximity to him. 

The first debate solidified a conviction I have long held about this era of American politics: that Hillary Clinton will go down as its most significant and influential actor. She was such a bad primary candidate in 2016 that she opened the door for a socialist takeover of the party base. She was such a bad candidate in the general that she lost to the headliner of WrestleMania 23, who will in turn lose this fall because his entire political personality was cultivated to exploit the nation’s antipathy towards Clinton, and there’s no other electoral lock that he can pick. When all is said and done, Hillary Clinton’s epoch-defining awfulness as a candidate for public office will be seen as the hinge around which this entire decade of political history in America turns. Trump tried all the old tricks tonight that he pulled out in 2016, but not running against Clinton proved to be his Kryptonite. It’s simply harder for most people to hate Joe Biden than it was for them to hate Hillary Clinton, and so Trump’s personal depravity comes across less as Defcon-1 necessity and more as a sordid personal and national disgrace.

Donald Trump and Hillary Clinton were the two least popular major party nominees to ever run for president. Not being Clinton was enough for Trump to win. It stands to reason that not being either of them will be enough for Biden to win as well. 


Everybody Loses, Which Helps Biden

President Donald Trump and Democratic nominee Joe Biden participate in their first 2020 presidential campaign debate in Cleveland, Ohio, September 29, 2020. (Morry Gash/Pool via Reuters)

Reactions to tonight’s debate will likely be deeply polarized, as everything else is. There are a few things that are clear.

One, this was probably the worst presidential debate in American history. There was a ton of cross-talk and shouting down, there were many bald-faced lies and obvious evasions, a former vice president of the United States called the sitting president a “clown,” and the sitting president openly doubted whether the United States would hold a free and fair election. Chris Wallace completely lost control of the debate on many occasions, although it is difficult to see how any moderator could have saved this debate.

Two, there is some karmic retribution here for Joe Biden, although it may not hurt him. The story of the 2012 vice-presidential debate was Biden bullying Paul Ryan, talking constantly over his answers, and being cheered ecstatically by Democratic partisans for doing so. Tonight, Donald Trump turned that same weapon against Biden, interrupting him incessantly, throwing him off his train of thought on a few occasions (Biden fought back a few times, but Trump was the primary offender in that regard). Biden’s campaign will now act enormously, grievously offended by anyone acting like Joe Biden on a debate stage.

Three, Trump continues to be in bad shape in the polls, and has staked a lot on Biden’s advanced age, weeks away from public appearances, and his frequent verbal stumbles and confusion. Biden was by no means the old fast-talking Joe Biden, but he did not look senile, fragile, or lost. It may yet be that Trump is stronger than he appears in the polling, but if you were expecting tonight’s debate to move the needle in Trump’s direction, it seems very unlikely to do so.

If voters were looking for a strong, combative figure, they may like what they saw from Trump more than what they saw from Biden. But if they are looking for reassurance that four more years of Trump will be less wild than the first four, they did not get that. He went Full Trump.

Each side had its good and bad moments. Trump was far more authoritative in the discussions on vaccines (where Biden yet again floated mistrust of a vaccine if Trump is president) and, strangely, forest management. Biden responded with bald-faced false denials of every story about his son Hunter. Biden was touchy about suggestions that he’s not in charge, broadly declaring that “I am the Democratic Party!” and distancing himself from anti-cop sentiment and defunding the police, but he also flatly refused to answer questions about court-packing, and Wallace let him off the hook on answering questions about banning fracking. Trump actually did respond positively to Wallace’s request that he tell the Proud Boys and white supremacists to stand down and get off the streets, but refused to buy into the claim that they were anywhere near the source of street violence the Left is — while Biden retreated into denial on Antifa (claiming that it does not exist and is just an idea) and refused yet again to denounce anybody on the left for any responsibility for street violence. Biden tried to have it both ways on shutdowns, which gave Trump an opening to be anti-shutdowns and accuse Biden of wanting to shut down everything. That said, Trump — as one would have predicted months ago — had to embrace mask-wearing and Dr. Fauci for cover.

Easily the worst part of the debate for Trump was the end, in which his responses can only be called disgraceful. He ranted about fraud in ways that offered no reassurance whatsoever in the fairness of the election; while Biden likewise spent his answer talking about Trump having to concede, Trump went a good deal further in flatly refusing to tell his supporters to remain calm, and in suggesting that he might need the courts (even the Supreme Court) to step in to prevent voter fraud. It is difficult to see how this could do anything but hurt him and undermine faith in the system. He probably gave Democrats a talking point to use against confirming a new Supreme Court justice, which won’t stop the confirmation but could raise the political cost for some embattled senators of voting for Amy Coney Barrett.

Trump did not fall into the complacency or ennui that typically affect incumbents in their first debate, but he needed more from this debate, he didn’t get it, and that is probably bad enough.

Law & the Courts

Re: Biden Refuses to Answer the Court-Packing Question


Dan notes that Biden wouldn’t share his view of Court-packing. Instead, he said:

“Whatever position I take, that will become the issue … I’m not gonna answer the question.”

I’m afraid that I do not understand this argument. Yes, whatever position Joe Biden takes will become the issue. This is because Joe Biden is running for president. Whatever position the two candidates take on an issue — during a debate about those issues — is going to become the issue. That’s how this works.


Biden’s Bad Vaccine Line


I’ll give further thoughts on the debate in another post. But I just wanted to draw attention to one moment early on where Biden started talking about upcoming COVID-19 vaccines and how we can’t trust Trump. I hate that he and his campaign are saying this in this way. Maybe it works with suburban moms or the majorities of Democrats who say they think the vaccine process has been rushed by politics. But I think it’s destructive.

As I’ve tried to emphasize again and again, the pharmaceutical companies that are racing to find and produce a vaccine for COVID-19 are not going to throw out all their Trump-era work and start over again if and when Biden takes office. The winners in this process are doing their scientific work right now. And Trump has nothing to do with it.


The Jerry Springer Debate

President Donald Trump and Democratic nominee Joe Biden participate in their first 2020 presidential campaign debate in Cleveland, Ohio, September 29, 2020. (Brian Snyder/Reuters)

It’s a shame that Joe Biden couldn’t attend Tuesday night’s debate.

Okay, Biden was in attendance, but during the 90 minutes, it felt like he barely ever finished a complete sentence.

It’s not clear that President Trump necessarily won the night, in the sense that people who were leaning against voting for him are going to start preferring him. But with motor-mouthed, relentless heckling and constant interruptions, Trump made it impossible for Biden to make any of his arguments. Trump did to Biden what Biden did to Paul Ryan eight years ago.

A few times, Biden lost his cool: “Would you shut up, man?” “Keep yappin’, man.” “It’s hard to get anything in with this clown.” In other circumstances, the challenger taking that tone with the president of the United States would backfire. But Trump is unlike any other president, with no use for decorum, restraint, or rules, and so Biden is unlikely to suffer much for his own outbursts.

God help you if you tuned in, hoping to learn more about the candidates’ policies. Biden came to win a debate, and Trump came to win WrestleMania. Like a Macy’s Thanksgiving Day Parade balloon, Trump just expanded to fill the whole room, filling up his time and spilling over into Biden’s time, hammering home whatever he wanted to talk about, whether it was related to Chris Wallace’s question or not. The transcript is going to read something like this:

WALLACE: Gentlemen, if we could-





WALLACE: Gentlemen, this is not—





WALLACE: I swear to God, if you two don’t please—


A lot of Democrats are going to blame Chris Wallace for this, but no moderator ever faced a challenge like this before. After about an hour, Wallace did his best impression of an irate dad ready to turn this car around right now if the kids in the backseat didn’t stop bickering. But Wallace’s fuming didn’t change the tone of the debate that much. Trump simply didn’t care what the rules were; any time he thought of some zinger, counter-argument, or insult, he let loose — and fairly or not (mostly unfairly) Biden often looked frustrated and flummoxed.

Trump fans will look at this and conclude their man won. He certainly made it impossible for Biden to make his points, and Trump had way more time to make his own arguments, so by that standard, Trump “won.” But I’m not sure a performance like this is what dislodges Biden supporters and brings them over to the Trump side, or wins over whatever remaining undecided voters are out there. Maybe on the margins, soft Biden supporters found the Democratic nominee overwhelmed by Trump’s relentless barrage this evening, and wonder if Biden can handle the pressures of the presidency. But I wouldn’t expect to see much movement in the poll numbers.

I suspect many Democrats will declare this debate was a train wreck and waste of time and encourage Biden to withdraw from the next two debates. Who knows, perhaps he will. The American people know their options by now.

There’s one other unusual aspect of this evening.

For the past five decades, all Joe Biden has had to do is show up and be himself.

There isn’t a huge difference between the Biden of the 1988 presidential campaign and the 2008 campaign and the 2020 campaign. He’s more or less the same guy from the Anita Hill hearings to the crime bill to the Iraq War to the vice presidency. He looks a lot older and maybe he speaks — or thinks? — slower than he used to, but he’s still pretty much the same guy.

He’s always been garrulous, usually amiable, something of a blowhard, unintentionally goofy with his gaffes. Who he was, naturally and instinctively, was usually good enough for whatever was in front of him. After he was first elected to the Senate in 1972, no Republican ever won more than 41 percent against him. His natural instincts were good enough to make him the chairman of the Senate Judiciary Committee and Foreign Relations Committee. Obama had a lot of options for his running mate who were younger and from more valuable states, but he chose Biden. As vice president, Biden generated more than his share of gaffes — “Stand up, Chuck!” — but the Obamas and the rest of the administration valued him as a member of the team. (Maybe an administration brimming with self-regard like the previous one needed a veep making silly faces behind the president during the State of the Union Address.)

This cycle, being the familiar old Joe Biden was enough to overtake Bernie Sanders. He didn’t even really need to campaign that hard; Biden won Minnesota Democratic primary without visiting the state once. Once the pandemic hit, most of the traditional tools of campaigning weren’t available to Biden; he just had to make intermittent appearances via video and attend virtual fundraisers.

And up until tonight, just being himself was enough.

Tonight, it wasn’t enough.


Biden’s Empty Chairs


Joe Biden asked America how many of us “have an empty chair” at home because of loved ones who have lost their lives to coronavirus. Without a straightforward and convincing plan for how he would have handled things differently — which I have yet to hear so far — Biden is guilty of emotional blackmail; “Vote Biden, or there will be more!” It’s a gross tactic that reminds me of the girl at the Democratic Convention who accused Trump of killing her father.

Trump has undoubtedly failed in his rhetorical leadership to some extent during the pandemic, but there’s still something galling about this particular attack. Biden’s running a character-focused campaign with an emphasis on empathy, but this appeal exemplified a fake, self-serving kind of empathy.

Law & the Courts

Biden’s Position on the Filibuster and Court Packing Is a Secret


Joe Biden again tonight refused to answer whether he supported plans bruited by some Democrats to first end the filibuster and then add seats to the Supreme Court. As both Chris Wallace and President Trump pressed him on the point, Biden said the issue was that the people should get to vote on it. Vote on what? They don’t know what Biden’s position is because he won’t say.

Law & the Courts

Biden Refuses to Answer the Court-Packing Question


This debate has been a cross-talking mess and festival of untruths so far, but we have one very clear piece of news: Joe Biden flatly refused to answer whether he would support Court-packing, which he had once recognized was wrong and destructive. “Whatever position I take, that will become the issue … I’m not gonna answer the question.”

If you had any doubt that Biden is terrified of saying no to his party’s most extreme elements, we just got our answer.

Law & the Courts

Defend the Pro-Life Position on the Merits, Mr. President


When Joe Biden suggested that Amy Coney Barrett would vote to overturn Roe v. Wade, President Trump responded by saying “you don’t know” Barrett’s position on Roe and dismissing the idea that it may be on the chopping block. Four years ago, Trump broke new ground by viscerally describing the horror of an abortion procedure in a debate. This year, he became the first president to attend the March for Life in Washington D.C.. I wish he had used his platform tonight to defend the pro-life position on the merits.

Politics & Policy

Canadian Push for Medical Schools to Teach Euthanasia


You knew it would come to this. The push is on in Canada to persuade medical schools to teach students how to euthanize patients — that is, to commit homicide — known euphemistically as medical assistance in dying (MAID). Now, the Canadian Medical Educational Journal lists several suggestions on how to persuade medical schools to include lethal injection training in the curricula. From the study:

We identified numerous change driving and change restraining influences that impacted the inclusion of MAID topics in health sciences curricula. MAID inclusion into health sciences curricula may be aided by the use of faculty development modules to support knowledge attainment and reconciliation of personal beliefs. MAID entry-level competencies and inclusion of MAID in accreditation standards would support informed curricular placement, including the years and courses for content inclusion and leveling of student competencies.

Furthermore, MAID specific course objectives in courses would assist the consistency of MAID inclusion. It is essential to identify the forces impacting MAID content inclusion in curricula, so the drivers of change can be capitalized, and the “inertial constraints” are recognized and mitigated to move health sciences curriculum into an era of MAID as a legally available care option.

When the Canadian Supreme Court imposed a nationwide right to euthanasia on Canada, I thought that the medical community would fight back and that only a few bottom feeders would participate. But to my great shock, the medical and nursing associations have been the law’s greatest boosters and most enthusiastic proponents for expanding eligibility. This “study,” really an advocacy document, is just the latest case in point.

Think about this, too. Time that would otherwise be spent on teaching new doctors how to treat, heal, palliate, counsel, and diagnose serious medical maladies will instead be refocused on teaching them how to kill patients. Moreover, professors will be expected to convince students that killing the sick and disabled is proper and ethical practice. It is a subversion of everything that medical school should be about.

Finally, brilliant and talented would-be doctors may well decide to pursue a different career because being a doctor could now require them to lethally inject patients. I know that would stop me.

It’s all so disheartening. Euthanasia corrupts everything it touches.

Law & the Courts

Joe Biden Better Have an Answer on Court-Packing Tonight


Former South Bend mayor Pete Buttigieg made a pre-debate appearance on Fox News’s The Story with Martha MacCallum to do some typical surrogacy work for the Biden campaign. It was a mostly milquetoast appearance except for MacCallum and Buttigieg’s exchange on court-packing, an idea touted by Buttigieg during his own primary campaign. Both Biden and his running mate, Senator Kamala Harris, have dodged questions about whether they would back such an effort if elected.

Buttigieg did the same, dismissing it as “obscure” and “academic” while insisting that Democrats were focused on preventing Amy Coney Barrett, President Trump’s nominee to replace Ruth Bader Ginsburg, from reaching the Supreme Court. It’s anything but an obscure academic footnote though, it would be an enormously impactful action — one that would likely define a Biden presidency — and it’s been embraced by Democrats in both chambers of Congress. The last time it was tried, it was seen as a shameless power-grab; The American people consented to four terms of Franklin Delano Roosevelt, but not to his efforts to pack the Court. So far, Biden and his team have been able to dance around the question of whether he supports it, but I doubt Chris Wallace will let him get away with that tonight.

Politics & Policy

Twenty Amy Coney Barrett Things That Caught My Eye Today (Sept. 29, 2020)


1. Erika Bachiochi: Amy Coney Barrett: A New Feminist Icon 

2. Archbishop Charles J. Chaput: When the Dogma Lives Loudly

3. Ramesh: Amy Coney Barrett Is No Threat to Obamacare

4. Mary-Rose Verret: Amy Coney Barrett Breaks the Real Glass Ceiling

5. Eugene Rivers & co.: A Black Defense of Freedom of Conscience and Amy Coney Barrett

6. Rick Garnett: Amy Coney Barrett understands, and embraces, the role and responsibilities of a judge

7. S.L.M. Goldberg: Will Amy Coney Barrett Arise as a Mother?

8. Kate Bachelder Odell: Amy Coney Barrett Sets an Example for Working Mothers


10. Charlie Camosy: For Democrats, Amy Coney Barrett’s nomination is a trap — and not just in the way you might think

11. Caitlin Flanagan: Will Democrats Fail the Amy Coney Barrett Test?

12. Rachel Campos Duffy: Feminists have an Amy Coney Barrett problem


14. Rod Dreher: Evil Progressive Adoption Politics



17. Dad, deacon, lawyer: Amy Coney Barrett’s father shares his testimony of faith


19. ‘What Is Thy Bidding, My Master?’ Asks Amy Coney Barrett To Cloaked, Holographic Pope

20. CNN Reports Amy Coney Barrett Attended Bizarre Ceremony Where She Ate Flesh, Drank Blood Of Jewish Guy




Twenty Things That Caught My Eye Today: Armenians, Debate Prep, Bill Buckley, & More (September 29, 2020)




3. A Nigerian boy was sentenced to 10 years for blasphemy. Then people started offering to serve part of it. (Including the head of the Auschwitz Museum)




7. Two Charged in Coronavirus Outbreak at Veterans’ Home That Left 76 Dead

8. Black Appalachians find hope in national reckoning on race

9. Civic life is not political life


11. The Public Discourse is running a series of commentary on the election. Here’s one installment: Christian Witness Demands That We Defend Truth—and Reject Donald Trump 

12. Baltimore’s Respect Life Office aims to ‘widen net’ of pro-life movement

13. Preaching and the Election: How Not to Get in Trouble but Still Be Effective


15. Tevi Troy: Battle of the Preppers: Getting nominees ready for presidential debates has evolved into a complex and sometimes bruising process.

16. Fr. Raymond J. de Souza: Why Cardinal Pell Is Vindicated by Cardinal Becciu’s Firing

17. Bill Buckley pops up in an ode to PBS in the NYTimes:

My conservative father had no use for Tudor bedroom drama, but he loved the political drama of “Firing Line” and could do a fair imitation of the show’s longtime host, William F. Buckley Jr. This was the sardonic voice Dad deployed to question political pronouncements he disagreed with. At our house there were many: All three of my father’s children grew up to be liberals, and just as inclined to fierce debate as he was.


18. Marlo Safi: Dearborn beloved





Bombshell Allegation: Hillary Orchestrated Collusion Hoax to Distract From Her Emails, According to Russian Intel

Democratic presidential nominee Hillary Clinton speaks during the third presidential debate with Republican presidential nominee Donald Trump at UNLV in Las Vegas, Nev., October 19, 2016. (Carlos Barria/Reuters)

Hillary Clinton personally signed off on the Russiagate farce to distract attention from her email scandal, according to a Russian intelligence analysis that was obtained by U.S. intelligence agencies in July 2016.

That is the bombshell allegation that National Intelligence Director John Ratcliffe has just dropped on the Senate Judiciary Committee, with the first presidential debate just a few hours away and with former FBI director James Comey scheduled to testify before that Committee tomorrow morning.

Ratcliffe’s letter to Committee Chairman Lindsey Graham (R., S.C.) asserts that in late July 2016, American intelligence agencies “obtained insight” into an analysis by Russian spies, which alleged that Democratic “U.S. Presidential candidate Hillary Clinton had approved a plan to stir up a scandal” against her Republican opponent, Donald Trump. The plan involved “tying [Trump] to Putin and the Russians’ hacking of the Democratic National Committee.”

Let’s put this information in context.

Mrs. Clinton was cleared of criminal charges in a July 5, 2016, press conference by then-director Comey. This prompted outrage over whether the Obama administration had distorted the criminal law applicable to mishandling classified information in order to give Clinton a pass. The email scandal would dog Clinton throughout the campaign.

On July 25, less than three weeks after the Comey press conference, the 2016 Democratic National Convention began in Philadelphia. Just three days earlier, on July 22, the hacked DNC emails began being published. By that point, former British spy Christopher Steele had been commissioned by the Clinton campaign (through a lawyer for the campaign and the DNC) to compile research tying Trump to Russia. Steele ran a London-based private intelligence business, whose clients include Russian oligarchs. Moreover, as I detailed in my column over the weekend, in compiling the dossier, Steele relied heavily on Igor Danchenko, a man the FBI investigated in 2009-10 on suspicion that he was a Russian spy.

Days after the hacked DNC emails began being published, Steele generated a dossier report alleging that Trump was in “a well-developed conspiracy of cooperation” with “Russian leadership.” The “evidence of extensive conspiracy between Trump’s campaign team and [the] Kremlin,” Steele claimed, included the hacking and publication of DNC emails: “[T]the Russian regime had been behind the recent leak of embarrassing e-mail messages, emanating from the [DNC] to the WikiLeaks platform.” This “operation,” Steele maintained, “had the full knowledge and support of Trump and senior members of his campaign team.” In exchange, Trump had purportedly committed both to downplay Russian intervention in Ukraine and raise American defense commitments to NATO as campaign issues.

Further, Steele ludicrously claimed that Trump had “moles within the DNC and hackers in the US as well as outside in Russia.” On the Trump side, Steele added, the conspiracy was “managed” by Paul Manafort, Trump’s campaign chairman, who was purportedly using campaign adviser Carter Page as an intermediary.

This story was absurd, through and through. As I have observed a number of times, Mrs. Clinton is not a correspondent in the DNC emails and was not harmed by them (in contrast to the emails from her own private server, which were a genuine scandal). Plainly, it would have been easy for Steele to weave this tale together from public reporting about the hacking and publication of the emails, Russia’s suspected role in it, Trump’s campaign commentary on NATO, and so on. Page and Manafort did not know each other. And note that in this same dossier report, Steele claimed Russia was using its consulate in Miami as a hub for the sinister arrangement with Trump. Russia did not have a consulate in Miami.

The FBI formally opened its Crossfire Hurricane investigation at the end of July, purportedly based on a conversation between George Papadopoulos and Australian ambassador Alexander Downer. That had occurred two months earlier. Though emails were not mentioned in the conversation, Downer claimed that media reports about the hacking of the DNC emails in July triggered his memory of cryptic remarks Papadopoulos had allegedly made when they briefly met over drinks.

Ratcliffe’s letter concedes that the U.S. intelligence community “does not know the accuracy” of the allegation that Mrs. Clinton personally orchestrated the collusion scandal; nor can our agencies say whether the Russian intelligence analysis in question is disinformation. Nevertheless, this allegation about Clinton’s role was obviously known to the Obama administration at the time. Ratcliffe elaborates that handwritten notes from former CIA director John Brennan show that Brennan

briefed President Obama and other senior national security officials” about the intelligence, including the “alleged approval by Hillary Clinton on July 26, 2016 of a proposal from one of her foreign policy advisors to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.

Thereafter, on September 7, 2016, U.S. intelligence officials are said to have forwarded to FBI director Comey and agent Peter Strzok (then the bureau’s deputy assistant director of counterintelligence) an investigative referral regarding:

U.S. presidential candidate Hillary Clinton’s approval of a plan concerning U.S. presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private email server.

I would note that it was around this time in September that FBI headquarters took notice of the Steele dossier, parts of which had been in the bureau’s possession since early July. The dossier was used by the bureau to seek (and obtain) FISA surveillance warrants against Page on the theory that the Trump campaign was engaged in an espionage conspiracy with Russia that involved hacking DNC emails and leaking them to the media in order to harm Clinton and swing the 2016 election to Trump.

Attorney General Bill Barr provided information about Danchenko to Senator Graham last week. He has signaled U.S. intelligence community concern that the Steele dossier was used by Russia to feed disinformation to the U.S. government. This is among the matters being explored in Connecticut U.S. attorney John Durham’s probe of the Trump-Russia investigation. Given Steele’s reliance on Danchenko, as well as Steele’s Russian oligarch clients (the latter caused State Department intelligence officials to believe Steele had long been peddling Kremlin-influenced information), the Russian government may have had various ways to know what Steele was up to. Russian intelligence may well have known that Steele, on Clinton’s behalf, was running anti-Trump research project in July 2016, which had attributed the publication of the hacked DNC emails to a Trump-Russia conspiracy.

Director Ratcliffe closes his letter by explaining that there is other related intelligence that remains classified. While public disclosure is being contemplated, he has offered Senator Graham a classified briefing.

And now, onto tonight’s debate, and tomorrow’s hearing . . .

Politics & Policy

No, ‘Good Behavior’ Is Not a Meaningless Phrase

(Bill Chizek/Getty Images)

At The Atlantic, Lawrence Goldstone argues in favor of Democrats packing the Supreme Court. Goldstone contends correctly that Congress can set the number of justices to whatever it wishes. But then he tries to pull a fast one by asserting that Congress can limit the terms of Supreme Court appointees without first ratifying a constitutional amendment:

Article III similarly failed to specify how long a Supreme Court justice would serve, stating only that judges “shall hold their offices during good Behaviour.” This has widely been interpreted as serving for life, but with fear of judicial despotism so widespread, “during good Behaviour” could well have meant that justices could serve as long as they discharged their duties professionally and stayed out of politics. (Samuel Chase, the sole Supreme Court justice ever impeached, was brought to trial in part in 1804 for exhibiting open partisanship from the bench.) That is not at all the same as defining how long they are allowed to remain on the bench.

“Good Behaviour” presents a particular problem for textualists, who, as the former Justice Antonin Scalia said at Catholic University in 1996, “don’t care about the intent … don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words.” They “take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” If the Framers intended justices to have life terms, it would have been a simple matter to draft the sentence to make that intention clear. As it stands, one can only assume that good behavior and life are synonymous, and assumption is anathema to textualist philosophy.

This is incorrect. It is not an “assumption” that “good behavior and life are synonymous”; it is a fact. As Goldstone records, Justice Scalia believed that readers of the Constitution must “take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” Indeed so. And the “fairly understood meaning” of “good Behavior” was clear at the time in both America and Britain, as it had been since before the Glorious Revolution: It meant “for life, unless removed.”

The advantages of this system are most clearly outlined by Alexander Hamilton in Federalist 78:

The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

. . .

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

Why did Hamilton cast “good Behavior” as meaning “permanent tenure”? Because, absent a temporal clarification, that’s what it meant when he was writing. As Saikrishna Prakash and Steven D. Smith have noted, contemporary authorities were entirely capable of creating roles that were contingent upon “good behavior” but not awarded for life, and, when they did so, they were entirely capable of explicitly clarifying the limitation — by, for example, awarding a role that lasted for “five years, during good behavior.”

It is true that what constitutes “bad Behavior” is somewhat subjective, and that the details varied both in England and in the early republic. But there is simply no definition from that period that implies that Congress can remove or limit sitting judges according to its quotidian preferences — let alone to set a mandatory timeframe after which all judges are deemed to be in violation of the rules. As Akhil Reed Amar notes in America’s Constitution, the Founders deliberately withheld from Congress the power to remove judges by “address,” as many of the colonies had, and as was common in England, and instead chose to grant it the power “to adjudicate a judge’s alleged misbehavior while sitting in a judicialized impeachment process.”

Perhaps the most famous definition of “bad Behavior” was developed by Sir Edward Coke, who proposed that it meant either refusing to do one’s job or abusing one’s office. Goldstone’s argument turns this on its head, calling as it does for the dismissal of judges based upon the opposite sin: The desire to keep working honestly into old age.

Law & the Courts

‘Barrett’s Mixed Record in Criminal Cases’


Jacob Sullum writes:

The opinions Barrett has written in cases brought by criminal defendants and prisoners since joining the U.S. Court of Appeals for the 7th Circuit in 2017 present a mixed picture. While she is often skeptical of the government’s arguments when it tries to put or keep people in prison, she has sometimes rejected claims by defendants and prisoners that her colleagues found credible.

It is clear from Barrett’s record that she does not reflexively side with the government in criminal cases. . . .

This seems like exactly the sort of record a judge should have.

Sullum closes with a quote from a Barrett dissent in a case challenging prison guards’ conduct under the Eighth Amendment.

The guards may have acted with deliberate indifference to inmate safety by firing warning shots into the ceiling of a crowded cafeteria in the wake of the disturbance. In the context of prison discipline, however, “deliberate indifference” is not enough.

That quote may sound callous out of context. But (based on my skim of the case) Barrett is accurately citing Supreme Court precedent here and following it, and the majority doesn’t dispute her point.

The Economy

Why the Trade Balance ‘Mystery’ Is Not a Mystery

(eranicle/Getty Images)

Today, we learn that the U.S. trade deficit in goods increased by more than expected in August. Why the confusion and mystery concerning America’s negative external balance? After all, the U.S. has run a negative external balance every year since 1975. The reason for that is simple. The negative external balance is “made in the USA” — a result of its savings deficiency.

To view the external balance correctly, the focus should be on the domestic economy. The external balance is homegrown; it is produced by the relationship between domestic savings and domestic investment. Indeed, it is the gap between a country’s savings (read: income, minus consumption) and domestic investment that drives and determines its external balance. This fact can easily be seen by studying the savings-investment identity:

CA = Sprivate – Iprivate + Spublic – Ipublic,

where CA is the current account balance, Sprivate is private savings, Iprivate is private domestic investment spending, Spublic is government savings, and Ipublic is government domestic investment spending. In this form, Sprivate – Iprivate is the savings-investment gap for the private sector and Sprivate– Ipublic is the savings-investment gap for the government sector. For a full derivation of the identity in this form, allow me to direct my readers to a piece Edward Li and I authored in the Fall 2019 issue of the Journal of Applied Corporate Finance: “The Strange and Futile World of Trade Wars.”

So, the national savings-investment gap determines the current account balance. Both the public and private sector contribute to the current account balance through their respective savings-investment gaps. The counterpart of the current account balance is the sum of the private savings-investment gap and public savings-investment gap (read: the public-sector balance).

The U.S. external deficit, therefore, mirrors what is happening in the U.S. domestic economy. This holds true for any country, even those with significant external surpluses. The U.S. displays a savings deficiency and a negative current account balance that reflects its negative savings-investment gap. Japan, China, Germany, and Switzerland all display savings surpluses, and all run current account surpluses that mirror their positive savings-investment gaps.

U.S. data support the important savings-investment identity. The cumulative current account deficit the U.S. has racked up since 1973 matches the amount by which total savings has fallen short of investment. But, that is not the end of the story. Disaggregated U.S. data are available that allow us to calculate both the private and government contributions to the U.S. current account deficit. The U.S. private sector generates a savings surplus — that is to say, private savings exceed private domestic investment — so it actually reduces (makes a negative contribution to) the current account deficit. The government stands in sharp contrast to the private sector, with the government accounting for a cumulative savings deficiency — that is to say, government domestic investment exceeds government savings, resulting in fiscal deficits — that is almost twice the size of the private-sector surplus. Clearly, then, the U.S. current account deficit is driven by the government’s (federal, plus state and local) fiscal deficits. Without the large cumulative private-sector surplus, the cumulative U.S. current account deficit since 1973 would be almost twice as large as the one that has been recorded.

The U.S. government’s fiscal policies, which promise ever-widening fiscal deficits, simply mean that the trade deficit will continue to balloon as far as the eye can see, particularly in the COVID-19 era. Protectionists in the While House, whomever they may be, can bully countries they identify as unfair traders and can impose all the restrictions on trading partners that their hearts desire, but it won’t change the current account balance. The U.S. current account deficit is solely a function of the savings deficiency in the U.S., in which the government’s fiscal deficit is the proverbial elephant in the room.

Law & the Courts

Amy Coney Barrett on Work and Motherhood

President Donald Trump and Judge Amy Coney Barrett depart after holding an event to announce her nomination to the Supreme Court at the White House in Washington, D.C., September 26, 2020. (Carlos Barria/Reuters)

At an event hosted by the Constitutional Studies Department at the University of Notre Dame last spring, Judge Amy Coney Barrett discussed her experience working and being a mother to seven children.

“We have seven children. Five of them are biological, and then we have a son and daughter that we adopted from Haiti. So it’s a very full house,” Barrett said. “I was one of seven growing up, and I loved having a big family, so I always wanted to have a big family. My husband was an only child and had been very lonely growing up so he too wanted a big family.”

Next, Barrett was asked the inevitable follow-up question: “How do you do everything?”

“When Jesse and I got married, I didn’t foresee — and you can’t, I mean, you can’t see what the future’s going to look like — but I had no idea what traits he had that would enable the life that we have now to be possible,” Barrett replied. Here’s some more of her answer:

I didn’t have a preconceived idea of how it would look. As it unfolded, as we had additional children, as we decided to adopt — and our adoption of John Peter was a little spur of the moment — as things unfolded, Jesse really stepped up. We didn’t really have a conversation like, “Hey, we’re going to be locked in. You’re going to do X and I’m going to do Y.” We just each shifted and assumed different responsibilities as it made sense. At some point, Jesse started doing most of the cooking and grocery shopping. At first I kind of resisted it because I like it, and I do still enjoy cooking, but he just said, “You know what, I think this will make your life less stressful. I’m going to take this on.” So he does that.

We live in South Bend where traffic is light. . . . He does most of the driving, the carpools and the kids’ doctors’ appointments, and then we’ll switch. When he gets busy with work, now he has changed jobs and he’s traveling more so I’m doing more of that when he’s gone. So I think the thing that’s made it possible is it really being a team effort and having a husband who has been willing to be a complete all in partner in doing all the things around the house and child-rearing and everything.

Barrett was also asked about the process of adopting their son John Peter, the second child she and her husband adopted from Haiti. After several complications with the adoption paperwork spanning a couple of years, they were told they would no longer be able to adopt him, but last minute, because of the earthquake in Haiti, they were given the option of proceeding with the adoption. By this point, the Barretts had four children, the youngest of whom had been born recently, and they had just discovered that they were expecting their fifth. Nevertheless, they decided to adopt John Peter.

“I can distinctly remember throwing on my long winter heavy coat, walking up to the cemetery, and sitting on one of the benches, and just thinking two things,” Barrett said. “Well, if life is really hard, at least it’s short, looking at all the graves. And then I thought, but in context, when you think about the value of people and the value of life and what’s really most important, what you can pour yourself into, that raising children and bringing John Peter home were the things of the greatest value that I can do right then, rather than even teaching, being a law professor, which I was at the time. That was what was really most important.”

Barrett also spoke about their youngest son, Benjamin, who has Down syndrome. “I think it’s probably the thing in my life thats helped me to grow the most and pushed me to grow the most, having a child with special needs,” she said.

“We weren’t expecting it and we didn’t know what it would mean,” Barrett added. “It has been challenging. There are definitely hard things about it. . . . I think I’ve learned so many lessons about myself, about what’s important in my life. Every night before bed, our three youngest children John Peter, Liam, and Juliet have to say one thing they’re grateful for, and I would say that six out of seven nights, they all say Benjamin. There are obvious difficulties, and the therapies we have to do, and trying to teach him to communicate, things that are really hard. But I think that the effect that it has on my other children, what it teaches Jesse and me about unselfish love, it’s really valuable.”

“Sometimes we see things that are very difficult or that are burdens,” she added, “and Benjamin’s diagnosis definitely derailed us off what we thought life was going to look like, what we thought his life was going to look like. But in a way that we can’t really understand or appreciate but that we see unfold every day, it will be the most important thing that we do probably.”

You can watch the full video of the event here.

Film & TV

Unquiet Graves

Clare Island, County Mayo, Ireland, 2009 (Cathal McNaughton/Reuters)

Two political events are going to drive a small boom in documentaries about the Troubles in Northern Ireland.

First, there is the way Brexit and ongoing negotiations between the U.K. and EU about the status of Northern Ireland drive wider interest in how it is now. Second, is the political rise of Sinn Fein in the Republic of Ireland.

In Ireland, broadcaster RTÉ recently aired Sean A. Murray’s documentary Unquiet Graves. It features the activities of the Glenanne Gang — a group of British soldiers and loyalist paramilitaries, acting in the period between 1972-1978, where they are alleged to have killed 120 civilians during the Troubles. It’s available for rent or purchase on Vimeo.

It’s emotionally wrenching, allowing widows and orphans to narrate the bombings and shootings that made them widows and orphans. And it is the latest in a series of documentaries amplifying claims against the government of the United Kingdom made by Irish nationalists living in Northern Ireland.

I expect soon we may see similar documentaries from the unionist community. The recent book A Broad Church by Gearóid ó Faoleán, provides rich material covering some of the same period, and the sympathies between the Provisional IRA and the government of Ireland in Dublin.


The Stupidest Fact-Check in the History of Fact-Checking

Supreme Court Justice Ruth Bader Ginsburg in 2017 (Jonathan Ernst/Reuters)

Is this the worst “fact-check” article in history? Maybe not, as I would reserve that title for one of the many fact-checks that pass off lies as truth, truth as lies, or opinions as true or false. But it is certainly the dumbest. Last week, conservative Christian satire site The Babylon Bee published one of its daily array of gags, headlined “Ninth Circuit Court Overturns Death Of Ruth Bader Ginsburg.” The Bee goes on, “SAN FRANCISCO, CA—In a landmark ruling, the Ninth Circuit Court of Appeals has overturned the death of Supreme Court Justice Ruth Bader Ginsburg. . . .’ Death, at its core, is a construct designed to subvert the rule of law by taking pro-choice liberal judges away from us too soon . . . We hereby rule any attempt by President Trump to appoint a replacement to be unconstitutional. We will block any attempt until we figure out a way to resurrect her or maybe clone her and restore her to her already ‘legally alive’ state. We’re still figuring that part out.” The joke is a silly one, but it does take aim at runaway judicial activism and its collisions with common sense, against the backdrop of the week’s big news story about liberal angst over the legal consequences of Justice Ginsburg’s death.

A week later, USAToday found it necessary, for some reason, to publish a “Fact Check” of this, by fact-checker Chelsey Cox, entitled “Fact check: Satirical claim that the 9th Circuit Court of Appeals overturned Ginsburg’s death.” “Supreme Court Justice Ruth Bader Ginsburg, who died of metastatic pancreatic cancer Sept. 18, is actually ‘alive,’ the article suggests, because the 9th Circuit overturned her death.” Cox went on for over 800 words, listing fifteen sources, in order to conclude:

Our rating: Satire

We rate this claim SATIRE, based on our research. A satirical article about the 9th Circuit “overturning” Supreme Court Justice Ruth Bader Ginsburg’s death has no basis in fact. It is true that the 9th Circuit has ruled against many Trump-era policies.

You read that right. An editor at a national newspaper assigned a “fact-checker” to determine whether Ruth Bader Ginsburg had been raised from the dead by court order. It took that fact-checker a week to review over a dozen sources of information and conclude “based on our research” that this had not happened. Imagine being the editor who thought this was a good use of journalistic resources, or the writer who took this assignment this seriously. On the editor’s part, that is an admission that you either have too many reporters working for you or that you have the world’s worst news judgment and should never work as an editor of anything ever again. It is not even possible to satirize modern “journalism” that produces this sort of hackery. It would have been too much to include in Idiocracy. There’s a reason people look at Donald Trump, of all people, and say, “hey, I’d rather trust that guy than the newspaper.”

Why did they do this? One explanation is that there is a certain sort of earnest liberal who loves The Daily Show and Stephen Colbert and Seth Meyers and The Onion and takes them seriously, and simply cannot abide the idea that comedy and satire can exist on the right, too. The Bee, like the Onion, is sometimes brilliantly biting and sometimes produces Borowitz-level clapter for true believers, but it’s an up-and-down business, and when the Bee is on target, it can be both hilarious and pointed. That simply must not be tolerated.

The darker interpretation is to be found in the running campaign to get the Bee kicked off social-media platforms by branding it as a purveyor of false information. It was suspended from Twitter in August due to one such campaign, and has taken to milking these controversies for its own material, poking fun at people who try to fact-check its jokes and suppress its humor.

Either way, the only decent response to USAToday in this circumstance is to point and laugh. And wish someone would order journalism to be raised from the dead.

Fiscal Policy

Why Nobody Cares Much about Trump’s Taxes

President Donald Trump speaks at the Cobb Galleria Centre in Atlanta, Ga., September 25, 2020. (Tom Brenner/Reuters)

At Fox News, Howard Kurtz argues that the New York Times report on Donald Trump’s taxes will affect the election “barely at all.”

These are eye-popping revelations, but most people won’t wade through the details, which are complicated as hell. And even the Times doesn’t claim that Trump broke any laws. He took advantage of a labrynth [sic] of legal deductions that are available to people who traffic in real estate and investments–unfairly, in my view, but that’s the system approved by Congress.

I think that’s about right but would add a couple of things. One is the personality-cult, can-do-no-wrong aspect of Trump fandom — and it is a fandom — which simply does not respond to this kind of thing. I have a hard time imagining the person for whom this, of all Trump’s shenanigans, is the final straw. If Trump loses $400 million, then that is just evidence, from that point of view, of his ineffable business genius. As Kurtz writes, most people aren’t going to dig in very deep. As Paul Krugman argues, the really eye-popping part of the Times story isn’t the tax avoidance but what an incompetent businessman Trump is.

Another aspect, which I mentioned in my newsletter today, is that Americans are really quite tolerant of petty personal corruption in tax matters. Our tax code is complex and filled with giveaways to various political constituencies, and none of us is shocked to learn that a bartender or a waitress does not report 100 percent of cash tips for tax purposes. Is that tax fraud? Of course it is. Is it a crime? Yes. Does anybody care? No. But, for comparison, the tax avoidance attributed to Trump is, as far as I can tell, entirely legal.

And let’s not pretend that the Democrats are against tax giveaways to rich people. Nancy Pelosi wants to let up on the SALT cap, which would mean a tax break for high-income people back home in California. The stimulus measure that Trump exploited was in no small part a Joe Biden production.

There are all sorts of ways around this stuff. The truth is that almost no one in either party wants to simplify the tax code or — here is the perverse part — to make it more effective. The Republicans have a pretty straightforward position on this: They want (at least they say they want) less spending and lower taxes. (Just don’t ask them what they want to cut.)

The Democrats have, in a way, a bigger challenge: The left wing of the Democratic Party wants to build a U.S. version of a Scandinavian welfare state, but very, very few Democrats are willing to speak honestly about what that means — a huge tax increase on the middle class. In the Scandinavian countries (and in much of Europe) people with middle-range incomes pay relatively high tax rates: If your household earns $100,000 a year in Sweden, you pay an effective tax rate of 40 percent. In the United States, your effective rate would be about 15 percent — just over a third the tax burden. (Insert here the usual caveats about the complexities that make straightforward comparisons . . . not straightforward.) “But they get lots of good stuff for their taxes in Sweden,” progressives say. Indeed, they do. But Democrats rarely if ever acknowledge just how big a tax increase on the non-gazillionaire would be required to fund the welfare state they imagine, preferring to pretend that it could be paid for by raising taxes on the likes of Donald Trump.

If the tax story doesn’t undo the Trump campaign, it will be in part because many Americans do not think highly enough of our tax system to chafe at somebody’s getting over on it. And Howard Kurtz is right: This is on Congress.


Judge Barrett and the Obamacare Case


My new Bloomberg Opinion column:

Joe Biden’s official statement on the Supreme Court nomination of Judge Amy Coney Barrett mentions her name once. It mentions Roe v. Wade once. It has eight sentences alluding to the court’s pending case on the Affordable Care Act.

The fate of Obamacare is the issue that Biden, and other Democrats, think gives them their best political opportunity during Barrett’s confirmation process. . . .

I go on to argue that Biden doesn’t have any evidence that Barrett would be a fifth vote to end Obamacare — or, for that matter, that there are four other votes on the Court for that position to begin with.

Politics & Policy

Why the Trump Taxes Story Won’t Matter

Internal Revenue Service building in Washington, D.C. (Jonathan Ernst/Reuters)

The big New York Times piece on Donald Trump’s tax returns, obviously timed to feed Joe Biden some attack lines entering the first debate, is part of a campaign-season tradition. Unfortunately for Trump’s critics, that is a tradition of failure.

The story has two main thrusts. One is that Trump has had multiple years in which he paid shockingly little taxes, due to a variety of aggressive tax-accounting techniques. In a couple of years, his net tax liability was $750, less than a great many nowhere-near-wealthy Americans pay. A few of the details show Trump taking business expenses that are embarrassing, such as $70,000 for his hair on The Apprentice. The other is that Trump’s businesses have lost a lot of money over the years, belying his bravado about his fantastic success.

All of this might have been useful to those of us opposing Trump in the 2016 primary, and Democrats plainly share the same frustration that they did not have access to it during the 2016 election, despite Trump’s occasional promises to release tax returns (not that this stopped Democrats in 2012 from running with Harry Reid’s unapologetically false claims that Mitt Romney paid no taxes). It could have been helpful in puncturing some of Trump’s odd combination of braggadocio about his enormous wealth with man-of-the-people populism.

But here is the hard reality: It’s too late. Trump has been president for four years. You can’t beat an incumbent president with stories from before his presidency.

Oh, it’s been tried. The instinct to try it comes from a deep sense of grievance at losing to an opponent who should never have won. Every time there’s an incumbent on the ballot, partisans chase the Great White Whale of a story that will prove, once and for all, not only that he should lose, but that he should never have held the office in the first place. We told you so! This often leads people in conspiratorial directions. With Obama in 2012, that was the Birthers and the folks hunting for Obama’s college transcripts and even the “whitey tape.” With George W. Bush in 2004, it was Rathergate and the “AWOL Bush” story, and an obsession with Bush’s military-service record that drove the Democrats’ choice of nominee, their entire convention, and their dalliance with Michael Moore. With Bill Clinton in 1996, it was Paula Jones, Whitewater, and Mena Airport. With George H. W. Bush in 1992, it was the “October Surprise” investigation into the 1980 election. Every one of these wild-goose chases failed. Bush lost in 1992 because of “it’s the economy, stupid.” Go down the list of all the incumbents who lost — Jimmy Carter, Gerald Ford, Herbert Hoover, William Howard Taft, Benjamin Harrison, Grover Cleveland, Martin Van Buren, John Quincy Adams, and John Adams — and it is easy enough to spot the reasons why in their presidencies, and impossible to make the case that they lost because of something from before they ran for president that could, if known, have been raised four years earlier.

Moreover, consider the reasons why Democratic partisans hyped up for years what they expected to find in Trump’s tax returns: that the returns would show him to be secretly on the payroll of Vladimir Putin and, less dramatically, would debunk his boasts of great wealth. Many efforts were made by conservatives to explain to these people why the promised Russia bombshell was unlikely to turn up, but it was simply too good a storyline to resist, especially for the cable-TV “Resistance” at CNN and MSNBC. The Times story has to concede that it did not find those things:

[The tax returns] report that Mr. Trump owns hundreds of millions of dollars in valuable assets, but they do not reveal his true wealth. Nor do they reveal any previously unreported connections to Russia. . . . Mr. Trump’s elaborate dance and defiance have only stoked suspicion about what secrets might lie hidden in his taxes. Is there a financial clue to his deference to Russia and its president, Vladimir V. Putin? . . . No subject has provoked more intense speculation about Mr. Trump’s finances than his connection to Russia. While the tax records revealed no previously unknown financial connection — and, for the most part, lack the specificity required to do so — they did shed new light on the money behind the 2013 Miss Universe pageant in Moscow. . . . The records show that the pageant was the most profitable Miss Universe during Mr. Trump’s time as co-owner, and that it generated a personal payday of $2.3 million — made possible, at least in part, by the Agalarov family, who would later help set up the infamous 2016 meeting between Trump campaign officials seeking “dirt” on Mrs. Clinton and a Russian lawyer connected to the Kremlin.

After four years of hype, this is a pretty big failure of expectations.

Is Trump the kind of man who would take every trick in the book — including stuff his accountants thought up that the IRS may not ultimately buy — to reduce his tax liabilities? Sure, and everybody already knew that. It’s part of his brand. He’s even used as an excuse for not releasing the returns that he has been under more or less continuous IRS audit for years and years, which would not be the case if he was going out of his way to pay the maximum possible taxes. Has Trump’s business career been full of debt and losses? Sure, and everybody already knew that, too, or would have known it if they cared to learn. The man lost money running golf courses. Which we all heard about in the primary debates in 2015–16.

It may feel unfair to get some dirt on Trump that might have helped four years ago, but it is not going to matter. If Trump loses — which seems likely, but far from certain, at the moment — it will be because people got disenchanted by him as president. Sorry, we don’t get to replay 2016.

Politics & Policy

Park Avenue vs. Scranton


Michael touches on the “Scranton vs. Park Avenue” theme today, and it is good reading. But I might add another complicating factor: Donald Trump has never, to my knowledge, lived on Park Avenue. He grew up in the fanciest part of Queens (tallest building in Wichita?), and Trump Tower is on Fifth. Ivanka lived on Park.

Maybe “Scranton vs. Fifth Avenue”?

But, of course, Joe Biden didn’t grow up in Scranton, either.

I can think of only one recent prominent figure in U.S. politics who did in fact grow up on Park Avenue — working-class hero and man of the people Howard Dean.


Amy Barrett on What’s Most Important in Life — Life! Especially the Life of Each and Every Child


This conversation Phil Muñoz at Notre Dame had with Amy Coney Barrett and Amul Thapar is worth watching in its entirety. But if you don’t have time for that, please fast forward to 30–31 (if you’re really pressed) minutes in. Barrett talks about her family, her marriage, the surprise adoption of John Peter and her youngest, Benjamin, who has Down Syndrome. She talks about what a gift Benjamin has been to each member of the family. Human life is what’s most important, raising children is most important. She has a memento mori reflection moment, too, talking about how the cemetery on Notre Dame’s campus helps with focus on what really matters. So here we are having this massive national fight. But the most important thing Amy Barrett will ever do has nothing to do with the Supreme Court. That’s focusing for everyone in America who is never going to be in the Supreme Court or hold some kind of national office or platform. The family is the most important work. Giving a child love and a shot at life is the greatest gift. Whatever you think about the timing of a vote or anything else, can we rally around this in renewed ways, please?

Amy Barrett on the national stage is good for us, if we let her be.

Politics & Policy

Joe Biden Is an Overhyped Debater


One other good example of how perceptions and memories of a debate change: Joe Biden’s 2012 matchup against Paul Ryan is apparently largely remembered as a solid victory over his Republican rival. Today the New York Times declared, “Biden used a command of foreign policy, Congress and the White House to hammer and at times belittle his rival and turn back attacks on President Barack Obama.” Over in The Guardian, Democrats more or less credit Biden’s performance for saving the Obama campaign:

“Obama’s performance was just miserable,” [Former Bernie Sanders campaign manager Tad] Devine said. “Biden went in there against Ryan and, boy, he was appropriately aggressive. On point. Really drove the thing and I think staunched the bleeding.”

Staffers for the re-election campaign often contrast the first debate with the vice-presidential debate.

“Obama had flubbed the first debate and there was a lot of pressure on [Biden] to deliver and he nailed it and I know he sort of cold-cocked them,” one top re-election campaign adviser recalled.

Except . . . the post-debate polls were hardly unanimous in the assessment that Biden had done the better job. CNN’s poll of viewers conducted right after the debate showed 48 percent of viewers preferred Ryan and 44 percent preferred Biden.  The Reuters poll showed a small margin saw Biden as the better performer: “42 percent to 35 percent — among registered voters, with a similar margin among independents.” The CBS instant poll gave Biden the best review, with 50 percent saying Biden had won, 31 percent saying Ryan had, and 19 percent saying a tie.

What’s more, even usually-friendly media had to acknowledge Biden had interrupted, laughed and shouted his way through the evening. WBUR, Boston’s NPR affiliate:

People watched both candidates on the split screen and they were judging them at all times by how they acted and reacted. So when Biden was grinning broadly while Ryan talked about tragedy in the Middle East, people saw that he was acting inappropriately and wondered whether everything was political to this lifetime pol. He was disrespectful.

Biden was also disrespectful in constantly interrupting his opponent, probably more than any candidate in the history of televised debate. Rudeness isn’t a sin, but it’s a turnoff — especially to people, like undecided voters, who don’t already agree with you.

Four years earlier, when Biden debated Sarah Palin, he enjoyed a considerable advantage in experience, and didn’t botch the evening, but didn’t look like an old pro against an amateur, as some expected. Polls said Biden won but that Palin was more likeable. Some focus groups showed strong preference for Palin. Biden also described some sort of alternate universe where “the U.S. and France had kicked Hezbollah out of Lebanon.”

Throughout Biden’s shaky 2020 Democratic primary debate performances, observers, including myself, remarked that this wasn’t the same guy we saw debating Paul Ryan a few years ago. Then again, maybe the Biden of 2008 and 2012 wasn’t really as good as most people remember him being.

Law & the Courts

So Much for the ‘Litmus Test’

A man holding a phone walks past a TikTok sign, at the International Artificial Products Expo in Hangzhou, Zhejiang province, China, October 18, 2019. (Stringer/Reuters)

I’ll have a column a bit later on the weakness, coming out of the gate, of the Democratic attack on Judge Amy Coney Barrett. Among the lamest aspects is the claim that President Trump has a “litmus test” for judicial nominees. It’s not entirely clear what this “litmus test” supposedly entails other than a commitment to dismantle Obamacare (because of the fortuity for Democrats that a big Affordable Care Act case is about to be argued before the Supreme Court, as I’ll further explain in the column) and, of course, reverse Roe v. Wade (because, though they’re “progressives,” the Dem playbook doesn’t change much).

It is nonsense, of course. There is no litmus test. There are Democrats chanting “litmus test” as if it were a mantra.

I mention this because it was striking this morning to find that a Trump appointee had ruled against the Trump administration in the TikTok case. Judge Carl Nichols of the federal district court in Washington, D.C., granted a preliminary injunction which, for now, stops the president from prohibiting downloads on the video-sharing app. The government believes TikTok serves as an intelligence-gathering arm of the Communist Chinese regime. Judge Nichols says the administration has made its case that China is a serious threat (see Jimmy Quinn’s post from yesterday), but nevertheless finds that the ban oversteps the president’s authority under the International Emergency Economic Powers Act.

We’ll have to see what unfolds in the case. For present purposes, though, one would assume that, in preparation for Judge Barrett’s Supreme Court confirmation hearing in a couple of weeks, Senate Judiciary Committee Republicans and the White House Counsel’s Office are collecting instances of Trump-appointed judges who have ruled against Trump administration positions.

There are a number of such examples. In just the last rush or decisions at the end of the Supreme Court’s term, for example, Justices Kavanaugh and Gorsuch ruled against the president’s extravagant claims of immunity from investigation in two cases. Justice Gorsuch notoriously ruled against the Trump Justice Department’s position in Bostock, the Title VII discrimination case, and took another walk on the wild side in holding that a sizable chunk of Oklahoma is actually “Indian country” for jurisdictional purposes. Justice Kavanaugh authored an opinion about (among other things) severability that the Court will likely rely on in eventually ruling against the Trump administration in the Obamacare case. (The severability doctrine holds that a constitutionally invalid provision in a broad statutory scheme can be surgically excised without invalidating the entire scheme).

President Trump is a nonlawyer who is neither versed nor much interested in litigation strategies. Moreover, the signal achievement of his presidency may be stocking the federal bench with originalist lawyers who maintain that a judge’s job is to interpret the law as it was enacted or ratified, not impose policy outcomes. The president would have a hard time formulating a litmus test, and imposing one would undermine one of the best arguments for his reelection.

In any event, it was not surprising to learn that it was a Trump judge who sided with TikTok, a business claiming irreparable harm, against the Trump administration’s sweeping claim of national-security power.

Law & the Courts

An Empty SCOTUS Seat: Epstein & Yoo on Ginsburg, Barrett, the Hearings, and the Future of the Court


John Yoo is a professor at the University of California Berkeley School of Law and a visiting fellow at the Hoover Institution. Richard Epstein is a professor of law at NYU, a professor of law emeritus at the University of Chicago, and a fellow at the Hoover Institution. In this wide-ranging discussion, recorded the day after Amy Coney Barrett accepted President Trump’s nomination to the Supreme Court, the professors discuss Barrett’s qualifications and why it was correct and proper to nominate her now — five weeks before an election. They also provide, based on her writings on stare decisis (the legal principle of determining points in litigation according to precedent), insight on how Barrett may rule on some issues sure to be put to in front of the court in the near future, including abortion. Finally, Epstein and Yoo remember Ruth Bader Ginsburg, whom they both knew personally, and discuss her career, both as a jurist and as an activist.

Recorded on September 27, 2020


‘Nothing Is So Permanent As . . . .’

Outside the European Commission headquarters in Brussels, Belgium (Yves Herman/Reuters)

Here’s the Economist from July, describing the deal in Brussels under which (subject to various approvals) the EU agreed both its latest multi-year budget and a COVID-19 rescue package:

The deal has two elements: the regular EU budget, or multiannual financial framework (MFF), worth nearly €1.1trn ($1.3tn) over seven years; and a one-off “Next Generation EU” (NGEU) fund of €750bn to help countries recover from the COVID-19 recession (both figures in 2018 prices). Rows over the second of these explain the summit’s length: at one point leaders spent over an hour arguing over whether to replace the word “decisively” with “exhaustively” in the communiqué. But in the end, each returned home broadly satisfied.

“One-off.” Hmmm . . . .

I described the NGEU fund in an article written about a month later:

The rescue package is formally known as the “Next Generation EU” (NGEU) fund, a name unremarkable — in Brussels — for its pomposity, but unusual in that it may really mean something this time. This is less a matter of all those billions than how they will be raised –through direct EU borrowing on the international markets — and then dispensed by Brussels. This is an innovative (to use a kind word) development in that, as Päivi Leino points out in an article for the Centre for European Policy Studies (CEPS) written before the Brussels summit, the EU treaty was “universally seen as prohibiting the EU from borrowing to finance its expenditure.”


The money must be repaid no later than 2058, with the help of the revenues from new EU taxes…

I noted how

Dutch prime minister Mark Rutte may like to claim that the NGEU is a “one-off,” but among the promises that won him reelection in 2012 was that the Netherlands would not participate (“not one more cent”) in a third Greek bailout. But in 2015, it did.


Although the EU’s long march towards “ever-closer union” has, on occasion, taken place in the sunlight, with declarations, fanfares, and flags flying high, it has often crept ahead, not exactly under cover of darkness but assisted by the inability or the unwillingness of some of its enablers to come to grips with the implications of what they are agreeing to.

And part of that process has, from the beginning, included the creation of institutions ready and waiting to take that next step, ranging from the European Court of Justice, which started showing its federalist colors in the early 1960s, to the ESM to, now, the NGEU.

In her article for CEPS, Päivi Leino recognized the institutional significance of the NGEU:

“By precedent, and by its very long duration (until 2058), the NGEU will, in practice, ultimately become a permanent structure. With the taboo [against borrowing] broken and legal limits dissolved, there will be little to stop it resorting to similar measures again. New emergencies will arise, and debt will each time appear to be a convenient way of financing them. Union debt will become a matter of contemporary political decision. The result would be a fiscal capacity for the EU, with a permanently altered division of competences….”

The EU is only set to move in one direction, and that’s forward: “ever closer union” means what it says. That said, I hadn’t expected the process to press for the institutionalization of the NGEU to begin quite so soon.

From the Financial Times, last week:

[The European Central Bank (ECB)] noted that although the fund is “a one-off” it “could also imply lessons for economic and monetary union, which still lacks a permanent fiscal capacity at supranational level for macroeconomic stabilisation in deep crises”.

The EU should consider making the fund a more permanent part of its policymaking arsenal when it restarts talks on its budget rules, the ECB said. The finance raised by the fund will increase the EU’s outstanding debt 15-fold, the ECB estimated.

ECB officials have long argued that the EU should issue a large, commonly guaranteed pool of debt to rival German Bunds in a bid to reduce the bloc’s vulnerability to future national sovereign debt crises. However, the idea is contentious among conservative policymakers who insist the recovery fund — dubbed Next Generation EU — should only be a temporary crisis-fighting tool and worry that some countries may not make efforts to repay EU loans.

Jens Weidmann, president of Germany’s central bank, warned this month about the risk of “creating the impression that debt at the EU level somehow doesn’t count or that it is a way of evading tiresome fiscal rules”. He added that the recovery fund should “remain a clearly defined crisis measure and should not open the door to permanent EU debt”.

What underlies Weidmann’s warnings is his deeper fear that the NGEU will be used to take the EU even further along the path towards fiscal union.

In my article I described how

The EU’s most prosperous states (which tend, mysteriously, to be its more fiscally disciplined) have long worried that the union would be run in a manner that transformed them into milch cows for its more feckless members. Aiding, say, thrifty Estonia after nearly 50 years of Soviet occupation was one thing; being made to pay for Italy’s perennial failure to get its house in order is quite another. Thinking of this type helps explain why the euro zone was set up as a currency union without the safety net of a fiscal union. A fiscal union, fretted some (most importantly in Germany), would be a “transfer union,” a means to siphon taxpayers’ money elsewhere.

Now, returning to the Financial Times, take a look at the ECB’s rationale for making the NGEU more “permanent”:

The [NGEU’s] centrepiece — €390bn of grants — would provide a net benefit worth more than 10 per cent of the pre-crisis Croatian and Bulgarian economies and almost 9 per cent for Greece, the ECB estimated in a research note published on Wednesday. Also among the net beneficiaries are Portugal, which will gain 5.4 per cent of its 2019 GDP; Spain with a gain of 3.4 per cent of GDP, and Italy with a gain of 1.9 per cent of GDP.

The scheme “ensures stronger macroeconomic support for more vulnerable countries”, the ECB said.

The heaviest net losers include the “frugal four” countries that initially opposed the new fund. Austria, Denmark, Sweden and the Netherlands will all lose out on a net basis by nearly 2 per cent of pre-pandemic GDP, as will Germany, according to the central bank’s analysis.

Put another way, the NGEU is looking, just as the frugal four originally feared, like a useful mechanism for bringing a transfer union closer, if only de facto rather than de jure.

“One-off”?  We’ll see.

Woke Culture

Wokes, Trads, and Nones


Matthew Schmitz offers a provocative thesis in Tablet. He divides our culture-war camps into three: the Woke, who are anti-racist politically correct progressive true believers currently seeking cultural hegemony. Opposed to them are the Trads and the Nones. The Trads are traditional, religious, and conservative. Think people like Schmitz himself. The Nones are secular, skeptical, and liberal in outlook. Think of Bari Weiss or, in his way, Joe Rogan.

Schmitz writes:

Wokeism could well become America’s established faith. If that outcome is to be prevented, the more skeptical, scientific, rationalist opponents of wokeism will need to join with people who have different reasons for opposing its utopian claims. Liberals who stress the provisional nature of knowledge, resist all-encompassing political claims, and seek space for public error and disagreement, have grounds for agreement with Jews, Christians, and others who believe that men are sinful and fallen.

I thought of Schmitz’s thesis today when I saw that the College Historical Society of Trinity College Dublin has disinvited the None par excellence Richard Dawkins. Dawkins has unacceptable views about Islam, which probably follow from his atheism.

It’s notable that when “New Atheism” was the big intellectual trend on the scene about 15 years ago, Christians were anxious to debate them as intellectual opponents.

Maybe if Christians were in a position near cultural hegemony, they would, like the Woke, rely on social stigma, and invoke feelings of pollution and safety to avoid unpleasant challenges. But we’re a long way from that.


Three Cheers for Ruth Graham

Judge Amy Coney Barrett during her nomination to the Supreme Court at the White House, September 26, 2020 (Carlos Barria/Reuters)

In her piece in the New York Times today, Ruth Graham captured something quite true: Amy Coney Barrett’s nomination is a cultural moment for conservative women. We don’t like to talk in terms of trailblazing, because these words have ideological implications. But we all remember the “mommy wars” when moms would be asked: “What do you do for a living?” Learning that she was spending some years at home raising children — the most important work in the world — was considered “nothing.”

Anyhow, Ruth Graham’s article today is good, true, and beautiful. I know all of the women quoted in the article, most of them friends and collaborators. They’ve been working in the vineyards, even the youngest, Chelsea Patterson Sobolik, whose life is a testimony to so much we hold dear as conservative women. (We’ve done adoption work together, and will again, I am sure.)

There are many excellent quotes, among them: “She shows that it’s possible for a woman to rise to the top of her profession while having many children,” said Andrea Picciotti-Bayer, a Catholic mother of ten who graduated from Stanford Law School and now serves as director for a conservative legal-advocacy group focusing on religious liberty.

And like Barrett, see how these women aren’t afraid to be confined to talking points or ideological barriers? They can praise and take inspiration from people with whom they disagree on some fundamental issues.

“I found some personal inspiration in Ginsburg — you couldn’t not,” said Mary Hallan FioRito, a conservative Catholic lawyer who graduated from law school in the early 1990s. “She made me know this is possible. It won’t be easy, but it’s possible. Amy Barrett is the perfect replacement for Ginsburg because she, too, in a different way, is saying, ‘This is possible.’”

You don’t, by the way, get much more pro-life than Mary. And with a fullness — and joy.

I’m willing to bet all of the women interviewed — and I know yet others who weren’t quoted, because Graham did a lot of legwork talking to conservative women and knew some of the right people to ask to meet others — have prayed for the repose of the soul of Ruth Bader Ginsburg and have prayed for her family. Now we’re praying that people don’t lose their minds and souls over a coronavirus election year Supreme Court battle.

We’re praying in thanksgiving, too, for Ruth Graham. And, of course, for Amy Coney Barrett and her family.

Politics & Policy

Are You an Amy Barrett Voter?

President Trump holds an event to announce Judge Amy Coney Barrett’s nomination to the Supreme Court in Washington, D.C., September 26, 2020. (Carlos Barria/Reuters)

I just listened to Kamala Harris talk about how Amy Coney Barrett is bad for women, and I can’t help but think “I’m an Amy Barrett voter” is about to become a thing. I remember how excited some conservatives got about Sarah Palin as John McCain’s vice-presidential candidate. Mothers would go out to political rallies for the first time. They felt represented on a presidential ticket for the first time in a new way. So many men emailed me to tell me Palin reminded them of their wives — they wanted women in politics to reflect their values on marriage and family. That all turned out to be a tragic story on many fronts. But now with Amy Coney Barrett, there is so much to celebrate. These are not voters who have litmus tests about the sex of their candidates, but, gosh, can it be refreshing — especially when the left identifies the very word “woman” with legal abortion and contraception and often a hostility toward men — certainly in leadership.

One of the blessings of Ruth Bader Ginsburg is her beautiful marriage and her friendship with Antonin Scalia. Walking around Lower Manhattan over the weekend, I saw a number of RBG shrines and accessories. I’m waiting for the first “I’m an Amy Barrett voter” tote (I saw an RBG one) or T-shirt. Albeit probably not in New York, unless someone wants to make one and send it my way. Because the more crazy the attacks on her get, I can’t help but think some conservative-minded people who didn’t vote for Trump last time may seriously reconsider.

Law & the Courts

Kyle Rittenhouse’s Defense Team Releases New Video

An armed citizen stands on the roof of a building near a growing protest outside the Kenosha County Courthouse after the shooting of Jacob Blake by police in Kenosha, Wis., August 25, 2020. (Stephen Maturen/Reuters)

This largely stitches together footage that was already public, but there are some new details as well, and it’s also worth watching because it thoroughly explains the defense’s narrative of the event:

One thing that’s become slightly clearer since I previously wrote about the case is how the conflict between Rittenhouse and those pursuing him got started. We at least have a plausible theory on that now: The first individual Rittenhouse killed, Joseph Rosenbaum, may have confused him with a different civilian — also wearing a green shirt and carrying a rifle — or become angry that Rittenhouse was putting out fires. After a civilian used a fire extinguisher to put out a fire that protesters had started in a dumpster, Rosenbaum yelled at the other green-shirted man, who apparently was standing nearby. Rittenhouse was also seen carrying a fire extinguisher shortly before Rosenbaum started chasing him.

Economy & Business

New Evidence of a Major TikTok Lie

President Trump speaks during a discussion with state attorneys general on social media abuses at the White House in Washington, D.C., September 23, 2020. (Tom Brenner/Reuters)

On Sunday, the D.C. district court handed down a preliminary injunction that blocks the Trump administration’s TikTok ban order. The decision, which after being pushed back one week was slated to take effect on Sunday evening, has dealt a setback to Trump’s efforts to mitigate the app’s national-security risks in the United States.

And with that injunction, we’re likely nowhere closer to the end of this saga. The administration has vowed to press forward, though a few other outcomes remain possible. Trump could move to implement the Oracle deal and the Chinese government could block it altogether. It’s a mess, really.

However, TikTok’s push to secure that injunction has led to a debunking of how the company’s representatives say it handles the data of its American users. The opinion granting the injunction notes a previously redacted claim made by the Commerce Department in a separate filing:

The Secretary also concluded that the TikTok data of U.S. users is especially vulnerable because TikTok keeps a backup of all its U.S. data in Singapore with a Chinabased company called Alibaba. Commerce Memo [Sealed], ECF No. 21-1, 15. Like ByteDance, “Alibaba is a Chinese company . . . beholden to PRC laws that require assistance in surveillance and intelligence operations.” Id.

TikTok, though, based on its previous statements, would have you believe that its Singapore-based user data is completely impervious to Chinese demands. Here’s a statement issued by TikTok in 2019, as the app started to face more scrutiny:

First, let’s talk about data privacy and security. We store all TikTok US user data in the United States, with backup redundancy in Singapore. Our data centers are located entirely outside of China, and none of our data is subject to Chinese law. Further, we have a dedicated technical team focused on adhering to robust cybersecurity policies, and data privacy and security practices.

There’s no way around it: If the Commerce Department’s findings hold up, TikTok has just been caught in a big lie. U.S. user data, despite the company’s claims to the contrary, is vulnerable to Chinese government requests under the 2017 National Intelligence Law.

And that lie is one that too many journalists accepted uncritically. Sure, many serious observers assumed that TikTok — a subsidiary of ByteDance, which has a long history of cooperation with the CCP — would not hesitate to comply with Beijing’s orders.

But the company’s impressive, U.S.-targeted publicity campaign featuring American executives and press flacks did trick some credulous columnists into using TikTok’s talking points as an important basis for their conclusions. Here, for example, is what the Washington Post’s Geoffrey Fowler wrote in July:

“Protecting the privacy of our users’ data is of the utmost importance to TikTok,” said spokeswoman Ashley Nash-Hahn. “TikTok collects much less U.S. user information than many of the companies in our space and stores it in the U.S. and Singapore. We have not, and would not, give it to the Chinese government.”

My takeaway: TikTok doesn’t appear to grab any more personal information than Facebook. That’s still an appalling amount of data to mine about the lives of Americans. But there’s scant evidence that TikTok is sharing our data with China, and we should be wary of xenophobia dressed up as privacy concerns.

Why were some journalists so quick to believe TikTok’s assertions? It’s not as though there was a lack of available analysis about its likely data management practices. China watchers and national-security experts had been pushing back against the company’s falsehoods for months. And what else is TikTok lying about?

Politics & Policy

We Will Watch the Debates, and Then Forget Most of What Was Said

Students stand in for President Trump and Democratic nominee Joe Biden during preparations for the upcoming debate in Cleveland, Ohio, September 28, 2020. (Jonathan Ernst/Reuters)

Tomorrow night, Donald Trump and Joe Biden will attend the first presidential debate of the 2020 cycle, one of three scheduled in the coming weeks. The coverage and hype will be huge, and who knows, maybe something truly memorable will occur. Between the garrulous “Malarkey! Come on, man!” verbal habits of Biden, and Trump’s full-spectrum combativeness and unpredictability, we’re likely to get fiery exchanges.

But the dirty little secret of the debates is that their effect comes down to what, if anything, gets discussed afterwards and remembered.

In 2016, Donald Trump and Hillary Clinton debated for a collected four hours and 30 minutes over three nights, and Mike Pence and Tim Kaine debated for another 90 minutes. How much of those debates do you remember? How many memorable exchanges were there?

You might remember “you’d be in jail,” or “No puppet! You’re the puppet!” Or maybe you remember Trump’s description of partial-birth abortion. Chances are you remember just one or two moments, even if you watched all three debates in their entirety.

Have you thought about Ken Bone at all since the 2016 election?

Most presidential and vice-presidential debates are remembered for just one moment or exchange — and not always from the candidates who won the election. “I am not going to exploit, for political purposes, my opponent’s youth and inexperience.” “You’re no Jack Kennedy.” “Who am I? Why am I here?” Al Gore moseying on over to George W. Bush’s side of the stage. “The 1980s are now calling to ask to get their foreign policy back, because the Cold War’s been over for 20 years.”

Keep in mind, the person the pundits perceive as the winner may not be the same as the person the broader public sees as the winner, and winning the debates may not mean winning the election. Four years ago, Ezra Klein of Vox concluded, “Hillary Clinton crushed Donald Trump in the most effective series of debate performances in modern political history. . . . We aren’t used to this kind of victory. We aren’t used to candidates winning not so much because of how they performed but because of how they pushed their opponent into performing. But the fact that we aren’t used to this kind of victory doesn’t make it any less impressive. Hillary Clinton has humbled Donald Trump, and she did it her way.”

Did she, now?

Politics & Policy

The Indispensable Ed Whelan


As the debate over Judge Amy Coney Barrett’s nomination to the Supreme Court continues, I can’t think of any commentator more informative than Ethics and Public Policy Center president Ed Whelan, who posts at NRO’s Bench Memos and tweets as @EdWhelanEPPC. In the last few days, he has corrected mistaken criticisms of Judge Barrett from the Washington Monthly, Politico, and NPR.

Some of Barrett’s opponents have sought to discredit Whelan because of a serious error in judgment he made while defending his friend Brett Kavanaugh from what he firmly (and justifiably) believed to be a false charge. Unlike many, many others who said things they shouldn’t have during that debate, Whelan admitted it and apologized. Dwelling on that incident is no substitute for engaging with the evidence and arguments he raises — although it is, admittedly, much easier.

Update: I have eliminated two mistaken commas.


It’s Time for a Change in Leadership

(Image via Getty)

A lot of people — including me — will tell you he didn’t belong in the top job. We will tell you that nothing in his past performance indicated that he could handle the responsibility or had the right temperament for the pressures of leadership. Some of us opposed him before he stepped through the door and took charge. Considering the state of things, those of us who were opposed or skeptical from the start would be more than justified to declare, “See, I told you so.”

He promised winning, but all you have to do is look with open eyes and see the disastrous wreckage on his watch. People are hurting. There’s no reason to think things will be better by November. Putting this man in command, at a time when so much was at stake, when so many people had lost hope and were yearning for something better, was a colossal mistake, and the sooner we all recognize it, the better.

You still hear some of his defenders insisting, “But he won in Florida that time!” Yes, and a broken clock can be right twice a day. Enough with the relentless spin and desperate search for silver linings. The record is clear. In one great American city after another, week after week, we have seen high hopes just go up in flames. Almost everyone he’s picked to work under him has performed their duties terribly — and either he’s following bad advice, or he’s not following the good advice he’s given. The difference is moot.

Some people say he manipulates the media, and it’s not hard to find talking heads on the cable channels who will constantly make excuses for him. I certainly agree no one ever holds him accountable. No matter how many reports add up just how bad his record is, no matter how many times a review of the numbers demonstrates, beyond any doubt, just how clearly he failed in areas that were supposed to be his strengths, it never seems to stick to him in a way that matters.

But the cavalcade of excuses and unpersuasive spin in the media is only the side problem; it all starts at the top. No matter how bad things get, he always insists it’s somebody else’s fault. He stubbornly contends he’s got the right ideas and the right approach, and that everyone under him just botches the execution. He sticks to what he knows, no matter how many times it blows up in his face.

Now, in autumn 2020, the time for a decision can’t be put off any longer. It is time to correct an error, and to end this deeply disappointing era.

There’s just no two ways about it: Adam Gase must be fired as head coach of the New York Jets.

Wait, whom did you think I was talking about?

Politics & Policy

A Ridiculous Recusal Demand Aimed at Clarence Thomas

Supreme Court Justice Clarence Thomas in his chambers at the Supreme Court in Washington, D.C., in 2016. (Jonathan Ernst/Reuters )

Efforts to browbeat conservative justices into recusing themselves from any important Supreme Court case are standard fare from liberals and progressives these days (a tactic Donald Trump has aped by demanding that Justices Sotomayor and Ginsburg recuse themselves over criticisms of him, in Sotomayor’s case in written opinions). Colbert I. King, in the Washington Post, argues that Clarence Thomas should recuse himself from any case involving the 2020 election because Thomas has believed since 1991 that Joe Biden is a two-faced liar:

By any measure, Thomas’s confirmation hearing was one of the most acrimonious and polarizing congressional events of the 20th century. . . . The chairman of that committee was Biden, whom Thomas characterizes in his book as a liar. “A few days before I faced the Judiciary Committee, Joseph Biden invited Virginia [Thomas’s wife] and me to tour the Caucus Room in the Russell Senate Office Building where the hearings would take place,” Thomas wrote. He said Biden was reassuring, stressing that the hearings weren’t meant to be an ordeal. “He said that since I’d be nervous at first, he would start the questioning with a few ‘softballs’ that would help me relax and do my best, assuring me that he had no tricks up his sleeve.” . . .  At the break in the proceedings, young lawyers who had helped Thomas prepare for the hearing looked at the text of the speech quoted by Biden. “The point I’d been making [in the speech] was the opposite of the one that Senator Biden claimed I had made.” . . . “Senator Biden’s smooth insincere promises that he would treat me fairly were nothing but talk.” Before the committee vote, Thomas said he spoke to Biden on the phone. . . . Thomas wrote that Biden replied, “Judge, I know you don’t believe me, but if any of these last two matters come up [referring to Anita Hill’s allegations as well as a leaked draft opinion he had written as an appellate judge that had drawn criticism], I will be your biggest defender.” “He was right about one thing,” Thomas wrote. “I didn’t believe him.”

We went through this two years ago, back when Democrats still had high hopes for the Mueller investigation and Cory Booker demanded that Brett Kavanaugh recuse himself from any Mueller-related cases simply because Kavanaugh was nominated by Trump, a standard that had not been met during the Clinton and Nixon scandals by their appointees. The test for recusal from Supreme Court cases is very high: Elena Kagan did not recuse from the Obamacare cases even though she had been Solicitor General organizing some of the early legal defenses of Obamacare. Justice Breyer has criticized efforts to demand recusals:

“If you’re in a court of appeals and you’re uncertain, you know, it’s a sort of borderline, take yourself out of it,” Breyer said. “Because there are a lot of other judges who can step in.” But on the Supreme Court, “If you take yourself out of a case, it could affect the result. And therefore, you have to be careful on the one hand to take yourself out of the case if there is an ethical conflict of some kind, and not to take yourself out of the case if there isn’t, because you have to participate.”

It’s notable that King managed to get through writing this entire column without even mentioning that Justice Kagan once worked for Biden: As special counsel to the Senate Judiciary Committee for Supreme Court nominations, she spearheaded the confirmation hearings for Ruth Bader Ginsburg. Kagan took a leave of absence from her academic position to work for Biden then.

Given the two candidates in this presidential race, it highly likely that most or all of the Justices think one or both of Biden and Trump to be two-faced liars; Thomas is just the only one to have written it in a book. Chief Justice Roberts, in 2018, took the extraordinary public step of rebuking Trump for talking about “Obama judges,” which Roberts regarded as a threat to the legitimacy of the courts; Trump fired back on Twitter.

Of course, this is all still hypothetical. While litigation over the 2020 election is virtually inevitable given the current posture of the two sides and how the pandemic will unsettle voting and vote-counting, it is far from certain that the Supreme Court will get involved. It only did so in 2000 due to a particularly lawless supreme court of Florida trying to hand the election to Al Gore, and the justices clearly regretted getting the Court involved. There is obviously nothing Roberts would like less than to have the Court involved in another election decision. There are clearly fewer states in 2020 that (1) could potentially be decisive and (2) have out-there left-leaning state supreme courts (although one never knows what could happen if, say, a liberal Ninth Circuit panel does something eccentric about Arizona).

What is bizarre about King’s argument is that he blames Thomas for correctly recounting his own experiences in his own confirmation hearing. This is nothing like the long-running public personal feud between Eric Schneiderman and Donald Trump, for example. If the recusal standard is that Democratic senators can maltreat Republican nominees and then demand their recusal as a result of that maltreatment, that would create the most perverse of incentives. Even in the lower courts, it is hard to get a recusal based entirely on how a judge reacts to an abusive or dishonest litigant. Worse, it might create a standard in which the justices could be threatened publicly for purposes of getting them off cases.

Economy & Business

The Unsurprising Trump Tax Story


As I read it, it has three layers to it.

First, Trump is losing a lot of money, and he may lose more when some debt he’s guaranteed comes due. We’ve long known his “amazing businessman” façade was just that, but the report does add new details.

Second, he pays little or no taxes most years. This is supposed to shock us independently of the first layer, but it mostly just follows from it: People who don’t make money don’t pay taxes. Also, Trump has bragged about not paying taxes, so it’s not as if this is new information either.

Third, Trump sometimes tries to reduce his tax bills in borderline ways that may or may not be kosher. This isn’t really a surprise either, though of course if he’s actually flouting tax laws the IRS should call him on it. The biggest item here, a huge refund of past taxes he claimed when he later lost money, is the subject of an audit — though it’s an unremarkable feature of the tax code that businesspeople can “carry” losses from one year to reduce tax liability in another. (This avoids overtaxing businesses with more volatile revenue streams.)

Incidentally, the rules on loss-carrying have gone back and forth a lot recently. Obama’s stimulus law extended the “carryback” period, allowing Trump to attempt this at the time he did; the recent GOP tax bill eliminated the ability to carry losses backward in time for a refund of past taxes (while removing the 20-year limit on carrying losses forward); and then the CARES Act brought carrybacks back for the 2018–2020 tax years to inject some money into businesses during COVID.

Anyhow. Politically, none of this is going to help the president, but I don’t see it swaying many votes against him either.