A Lightning Round (12.14.23)

An impeachment inquiry, SCOTUS takes up abortion and corrupt obstruction, Judge Chutkan calls a halt pending appeal, and terrific economic news

Image courtesy of the U.S. Supreme Court

Some days, the news is light, and I can go deep on a topic of broader general concern.

Today isn’t one of those days. There are five big stories I was deciding among, so it’s a good time for another lightning round. I’m going to go a bit of a different path with these by giving the gist of what’s happened and then adding the one main takeaway I have on it. With five stories, that already makes for plenty of ink.

Ready to play a lightning round? Start the timer, let’s go.

House votes for an impeachment inquiry of Joe Biden

There was nothing surprising about yesterday’s party-line vote to begin an official impeachment inquiry against President Biden. There is no evidence linking him to any wrongdoing, and investigators don’t really even know what evidence of what crime they are looking for. 

This exchange between Rep. Joe Neguse (D-CO) and House investigator Rep. Guy Reschenthaler (R-PA) said it all.

Neguse: What is the specific constitutional crime that you’re investigating? 

Reschenthaler:  Well, we’re having an inquiry so we can do an investigation to compel the production of witnesses and documents. 

Neguse: And what is the crime you’re investigating?

Reschenthaler: High crimes, misdemeanors and bribery. 

Neguse: What high crime and misdemeanor are you investigating?

Reschenthaler: Look, once I get time, I will explain what we’re looking at.

Here’s the main takeaway: This impeachment is not only shamelessly for the benefit of only one man (Trump), who wants to not be the only impeached nominee on the presidential debate stage, it is politically stupid. Impeachments generally help the president who is being attacked by rallying the base. Impeachments without evidence, as we have here, are even more likely to cause anger and harden Democrats in their resolve. This is particularly impactful in the 18 House districts won by Joe Biden that are currently occupied by Republicans. The insane thing is GOP leadership knows this is a terrible idea politically, but they have to do it anyway because, well, Trump wants it.

Quick pledge break for those who’ve been meaning to upgrade!

SCOTUS to hear the abortion medication case

Far-right religious extremists were never going to be satisfied with sending abortion back to the states to decide after Dobbs. They want a national ban, and one way to get there in practice is to go after abortion medication. After all, that’s how millions of American women are able to obtain safe and effective abortions. So if they can knock out the drug, they can deal a crippling blow to abortion access.

That’s why they shopped around for the most extreme jurist (Judge Matthew Kacsmaryk based in Amarillo, Texas, an anti-abortion activist appointed by Trump to fill the sole seat in that district) in the most extreme circuit (the arch conservative Fifth Circuit) and then filed suit there to launch their frontal assault on the popular abortion medication, mifepristone.

The theory of the case is that the FDA had abused its authority in authorizing the drug 23 years ago, and that therefore it needs to be pulled. Let’s put aside the fact that the drug is enormously safe and effective. Let’s also note that the approval process should be left in the hands of actual scientific experts, and not those of a single extremist judge on the warpath. The fundamental weakness of this case is that the backers of the lawsuit—the Christo-nationalist organization, Alliance Defending Freedom—have simply never had any standing to sue. 

That’s why they invented a plaintiff called the Alliance for Hippocratic Medicine, a group of doctors based in, you guessed it, Amarillo, Texas. But even those doctors have very dubious standing to bring suit because they were never actually harmed by the approval of the drug. They claim that somehow, somewhere, a doctor could prescribe mifepristone and it could go awry, forcing one of them to have to perform the abortion. How traumatic! Perhaps they should be called the Alliance for Hypothetical Medicine instead.

So with the announcement that SCOTUS will now hear the case, will extremists on the Court affirm this nonsense? No, I don’t think so. My main takeaway is this: SCOTUS already batted down the Fifth Circuit’s partial affirmation of Kacsmaryk’s ruling, indicating it was pretty annoyed by it. Then that circuit went back and tried it again, and now SCOTUS has stepped in. Even the conservative justices know that adopting this standard for standing, based on a purely hypothetical harm, would grant nearly everyone wishing to sue the right to do so. 

For now, I’m filing this in the “likely reverse” folder. If the far-right wants to come for abortion medication, they’ll have to find actual plaintiffs who were actually injured by it.

Judge Chutkan pauses the big case

Say what you want about her, Judge Chutkan follows the law. When Trump filed his motion to dismiss on grounds of absolute presidential immunity, it raised a question that must be settled prior to the trial commencing. And generally speaking, when that issue is appealed, the case should halt while the issue is decided. After all, if Trump is correct—a very big if—then he shouldn’t have to go through all the time and expense of preparing for a trial. Judge Chutkan agreed, and on Wednesday she ordered a stay of the case pending resolution of the appeal.

As I wrote about earlier, Special Counsel Jack Smith is taking a two-pronged approach to get the question of immunity settled as quickly as possible. The first is with his “petition before judgment” with the Supreme Court. The justices gave Trump’s team until December 20 to respond to Smith’s petition. We will all be watching closely to see if they grant it and, if so, what kind of briefing and argument timetable they lay out.

The second is through an expedited appeal before the D.C. Circuit. That court just granted Smith’s request for an expedited schedule and set a schedule that will have the parties working through the holidays with all briefs in by January 2 and a hearing shortly thereafter.

With the case paused and appeals pending, the clock is ticking. The trial date could still hold if SCOTUS acts very quickly, or perhaps it would just be pushed back a month or two. It does seem very likely, however, that many voters, especially those on Super Tuesday in early March, will cast their ballots before Trump’s trial begins.

Here’s my main takeaway: The expedited briefing granted by the D.C. Circuit takes a bit of pressure off SCOTUS to jump in now. At the same time, everyone now understands that the trial is on hold, per order by Judge Chutkan, and so we’ve really got to move it along, folks. We’ll see how quickly (or not) SCOTUS decides whether to grant review. I still believe there are four justices who would be quite inclined to get to early resolution of this question so that the trial date can more or less hold.

A SCOTUS swipe at conspiracy to obstruct official proceedings

Speaking of actions by SCOTUS, here’s one I rather don’t like: The High Court has agreed to hear an appeal from one of the January 6 defendants on the question of whether the law against corrupt obstruction of Congress can apply to the insurrectionists.

This is an area that Merrick Garland had hoped to settle through his meticulously prosecuted cases against hundreds of January 6 defendants over the past year and a half plus. There’s a section of the law, originally designed to target white collar financial crimes, that concerns obstruction of official proceedings. Justice Department prosecutors have been using the “corrupt obstruction” law to slam defendants with a charge that could bring up to 20 years in prison. 

But it’s clear that Congress didn’t have the January 6 insurrection or other violent acts in mind when it drafted the law against corrupt obstruction. It’s just that the language of the obstruction statute was broad enough to cover the actions of the rioters and conspirators.

Now the Supreme Court may yank that all out from under prosecutors and give defendants convicted under that statute a boost. If the Court overrules the D.C. Circuit on this, a number of convictions on these grounds would be overturned. More importantly for the rule of law and our democracy, any later conviction against Trump for corrupt obstruction of Congress might also be impacted, particularly if the Court holds after his trial is done that the basis for that law was too attenuated to fit the circumstances here.

My takeaway: Even if Jack Smith obtains a conviction against Trump on these grounds that is then overturned by the Supreme Court, he has two other grounds that won’t be affected: conspiracy to defraud the U.S. and conspiracy to deprive civil rights. Smith of course was aware of this when he filed charges, and he built in some back-ups. Because the same factual circumstances underlie each of these other charges, it is hard to see how he could be convicted for corrupt obstruction of Congress and not convicted for the other charges, too. So a bad Supreme Court decision on this question probably won’t undo the entirety of any jury verdict. And because it’s not the kind of legal question that must be decided before the trial, it also won’t hold up the proceedings the way his immunity argument has.

Good economic news

A slew of good economic news hit this week, just in time for the holiday break when folks will be gathering to talk with their families. 

First, inflation came in low enough (again) that the Federal Reserve announced it would hold rates steady. Perhaps more importantly, it signaled that it was considering three interest rate cuts in 2024. This would reduce the cost of borrowing and free up more money for consumers, especially those with home mortgages. It would assist the home market by making it less expensive to finance a purchase. And it would lower borrowing costs for companies, thus increasing their profits generally.

The markets reacted very positively to the news, with the Dow Jones setting an all-time record, defying predictions by Trump that if Joe Biden were elected, the stock market would crash. The leap in value could give many American households with IRAs and 401Ks a sense of greater confidence because their nest eggs will appear much larger in value. That psychological shift could help raise consumer confidence, which in turn would keep the economy chugging along.

Another piece of good news on rents was reported on Business Wire. The real estate brokerage firm Redfin reported that the median U.S. asking rent actually declined 2.1% year over year in November, making it the biggest annual drop since the start of the pandemic in February of 2020. It represents a sizable 0.6% decline in asking rents since October.

Economic news like this is hard to digest when your own rental situation is the exact opposite of this report. (My rent has continued to go up, too, in NYC.) A median decline of 2.1% necessarily means that there are still a large number of rental properties where there is less of a decline, no decline, or a rise in asking rent. In addition, stable or falling asking rents don’t help those who are already locked into high rents, at least until they can renegotiate them.

But a median decline of 2.1% does mean that the long upward trajectory in asking rents is coming to a close. Within a few months, if the trend continues, tenants will be able to point to falling rents to ask either for their own rent to remain the same or for it to come down. Landlords will be under pressure to hold onto tenants who might jump to another property to take advantage of cheaper rents there.

Rent increases have been one of the most stubborn elements of high inflation, so the fact that rents are now coming down is very important to the bigger economic picture. 

My takeaway: With interest rates set to fall, rents and gas prices coming down, the Dow at an all-time high, unemployment below four percent, and wages outpacing inflation, Americans could come out of the high inflation hangover. They could begin to give credit to the idea that the economy is actually doing far better than the media and their fellow Americans have been saying over the past year. And that will remove one of the biggest weights on Biden’s approval ratings: his handling of the economy. By all objective measures, that handling has been superb. Now it’s up to the public, and especially the Democratic base, to come around to that fact—even those whose personal financial circumstances might not reflect how well the country as a whole is doing.