Weekly Mailbag - Strategery on Capitol Hill

Installment #3 of my (mostly-)weekly Q&A with your questions, including what we can do to get at least some Republicans to cross the aisle, what the heck happened with the 14th Amendment, and more.

Welcome to the weekly mailbag Q&A! Leave a comment on this post to send your question for next week — subscribers here on Substack will get dibs, and the very first dibs will now go to anyone who’s a paid supporter, helping me build a larger team to produce a much stronger ecosystem of pro-democracy content, for the price of a (fancy) cup of coffee. (And if you’re already supporting, thank you so much! And make sure to include a 🙏 emoji with your question so I can find you more quickly.)

Plus: I’m also going to start experimenting with doing a Q&A on the podcast. So your question may get answered on the air over there!

Ok, time for the questions!

Who else here besides me has ever had a Rural Route or RFD address?

Joy Reynolds: Is there any way to make MAGA congressmen see that they are a different branch of government than the president, so they don't have to agree to everything he says?

The truly MAGA ones in deep-red districts? Not very likely. But there are a lot of others to target.

If we want to calculate the probability that a given Republican politician will stray from the Cult of Trump, we just need to see what their constituency looks like. If they’re in a relatively purple district or state, or even a pinkish one, or better yet a blue one, then they’re more likely to vote their own way — not because they’re altruistic, but precisely because they’re self-interested. They want to get re-elected. And if they take the Trump bus all the way to Crazytown, they may be committing political suicide back home.

This is how Mike Johnson was foiled the last two years: he didn’t have the votes once a certain number of moderates bolted to save themselves. And trust me, it was not lost on GOP members of Congress what happened to a significant number of their colleagues — including some strongly MAGA ones — in November, as a number of them lost their seats for being too Trumpy in relatively middle-of-the-road districts.

These are the people we need to focus on — and this will be a major theme here in the next two years.

carol_really over there: Do you think that there is a chance that there are enough Republicans in both houses that would convert to Democrats to give Dems a majority so our country can be saved?

This takes the strategery one step further. Is it possible that some of the moderate Republicans would go so far as to switch parties? This is much more rare and difficult to achieve, but it’s possible. It happened in 2001, when Vermont Senator Jim Jeffords left the Republicans to become an independent, caucusing with the Democrats — and flipping the Senate to Democratic control, from a 50-50 tie with then Vice President Dick Cheney giving the Republicans control, to a 51-49 Democratic majority.

In the new Congress, Republicans will have a 53-47 majority in the Senate, and a tiny 220-215 edge in the House.

Flipping the Senate would be a tall order. The more realistic goal is to get particular Senators to cross the aisle on particular votes — such as confirmation votes for Trump’s cabinet and judicial nominees. But is it possible that Alaska’s Lisa Murkowski could finally reach her limit with the MAGAs and become an independent? Maybe. But she might be the only possible defector (given that I am simply not falling again for the idea that Maine’s Susan Collins will give anything other than empty lip service to all her “concerns.”)

Flipping the House is not impossible, but again, it’s not the most likely outcome, whereas peeling off particular House members for particular votes, like saving the ACA or stopping a 50-state abortion ban, is much more achievable.

Yet if we want to play this game — and admittedly, it’s a fun one — the next thing to look for is the special elections to replace all the various Trump administration figures. Who will win the Ohio senate seat soon to be vacated by JD Vance, for example?

Sharon C. Storm: What is the ‘speech and debate clause’, and does it protect members of Congress from prosecution for January 6?

The Speech and Debate Clause comes from Article I, Section 6 of the Constitution: “for any Speech or Debate in either House, they shall not be questioned in any other Place.”

Basically, it gives members of Congress a limited zone of immunity, both criminally and civilly, for what they say while convened in the House or Senate. Accuse someone of misconduct on the House floor, and you cannot be sued for defaming that person. This has been extended to include statements and actions undertaken by a member in his or her official capacity, even if it occurred away from the Capitol.

So the question of January 6 is a fact-based one. Members cannot be sued or prosecuted for casting votes against certification of the 2020 election results, or even for making a speech in favor of Trump and his false claims of election fraud. But if any of them helped facilitate invasion of the Capitol? Or assisted in sharing or disabling any security features? Or conspired with Trump and/or others to disrupt and delay the certification proceeding itself, to stop it from happening? Those are not speech or debate, or the exercise of the member’s official duties, I would argue.

However, I do believe that the mere existence of the Speech and Debate clause has caused prosecutors to shy away from going after any members of Congress for January 6 — once again, they have been so scared of looking political that they have in fact made a political determination in favor of insurrection, fraud, and violence.

Michelle G. Barker: Could President Biden preemptively pardon any general or military leader that may be targeted by the incoming administration?

Yes, and I hope that he will. Various middling commentators will point out that Biden’s pardons then open the door for Trump to pardon more people — but let’s be real, Trump is going to issue a ton of pardons no matter what Biden does. Do you really think that Biden’s actions are going to dictate whether Trump pardons everyone involved with January 6? When he’s sung songs with them and raised money for them and called them political prisoners? When the higher-level ones conspired with him in the crimes for which he himself was indicted?

Yet this does not mean that DOJ should not move forward with indicting all of the other co-conspirators in the January 6 plot. They refrained from doing so a year ago, presumably to make the indictment of Trump streamlined and quicker to try. But now that DOJ’s terrible OLC memos preclude any possibility of prosecuting Trump (as I discussed the other day), Jack Smith should go forward with indicting all the other participants, right now — even if Trump will then pardon them.

Make Trump take those actions. Make him burn political capital. Make him reveal himself even more as the corrupt, criminal extremist he is.

Anything less is obeying in advance.

@steverino76.bsky.social: Why isn't anyone even talking about challenging the validity of Trump v. Anderson, 601 U.S. 100 (2024)?

This is a very good question, and one that I’ve been planning to explore further.

Trump v. Anderson was the Supreme Court case from earlier this year that said the 14th Amendment’s Disqualification Clause (Section 3 of the 14th) cannot be used by the states to remove anyone from a federal ballot slot.

However, that case did not address whether anyone in the federal government could use the Disqualification Clause to stop someone from assuming a federal office — or to remove them once in office.

If we accept the argument from William Baude and Michael Stokes Paulsen, then any federal government official could point to the Disqualification Clause and say that an insurrectionist official is ineligible for office. No one is doing so. Yet. But is it then possible for a suit to be filed to challenge Trump’s eligibility for office? Who would be the defendant? What plaintiff(s) would have standing? This is something I’m going to be exploring.

Maria: Recess appointments are supposed to be for filling positions that come up at the time of a recess. Am I wrong? Not for intentionally recessing to fill appointments.

You are not wrong! If a key role — say, with national security implications — becomes suddenly vacant during the traditional August recess, then yes, the president has the power to fill it. Temporarily, until the Senate returns to handle the confirmation. You know, the confirmation required by the Constitution.

This will potentially be an early test of the willingness of the Senate and the Supreme Court to stand up to Trump. Will at least some Senate Republicans cry foul if Trump tries to abuse the recess appointment power? Will someone have the intestinal fortitude to go to court over this? Will SCOTUS then follow longstanding law in this area to rule that the president’s powers in this area are extremely limited?

We the People must absolutely demand that the Constitution be followed — and we must be ready to take action if our leaders let us down yet again.