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In Texas, a state legislator wants to “investigate” hundreds of books in school libraries. In Kansas, a school district is pulling dozens of books off the shelves of libraries and forming a committee to decide “if the books contained on this list meet our educational goals or not.” In Spotsylvania County, Virginia, two school board members are talking outright about burning books.

The Spotsylvania County School Board voted unanimously this week to remove “sexually explicit” material from school libraries, and to consider what else might be “objectionable” in school library collections. But two members of the board went above and beyond. 

”I think we should throw those books in a fire,” said board member Rabih Abuismail. Kirk Twigg wants to “see the books before we burn them so we can identify within our community that we are eradicating this bad stuff.” 

What books? Apparently whatever is determined to be sexually explicit. According to Abuismail, the presence of 33 Snowfish in the Riverbend High Schools’ digital app (which would, if nothing else, make it difficult to burn), means that the schools “would rather have our kids reading gay pornography than about Christ.”

The issue was first raised by a parent who said that she was initially alarmed at LGBTQIA material available to students, and on further investigation found a book she liked even less. That book is Adam Rapp’s 33 Snowfish, and I’m not going to lie, it sounds dark. It was also one of the Young Adult Library Services Association’s top 10 books for young adults in 2004.

While this parent and these board members are definitely targeting LGBTQ content in particular, that’s not all that’s at risk when the book-burning, or the book-removal-from-libraries, starts. Remember that Glenn Youngkin’s winning gubernatorial campaign in the very same state of Virginia ran an ad taking aim at former Gov. Terry McAuliffe for vetoing a bill that would have allowed parents to reject “sexually explicit” reading assignments—and the book in question was Toni Morrison’s Pulitzer Prize-winning Beloved, generally considered to be one of the great U.S. novels of the 20th century.

The media consistently downplayed Youngkin’s appeals to racism—it’s no accident that the book in that ad was by a Black author—and now, just over a week after he prevailed, we’ve got members of a Virginia school board advocating for book-burning and the rest of the board going ahead with an extreme attack on the reading material available to high school students. LGBTQ books and books by authors of color is what’s disproportionately going to be removed from schools by this board, and in Kansas, and in Texas, and in who knows how many more states before the current Republican orgy of bigotry and censorship abates.

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There are definitely some members of Trump’s circle who would not dare talk to the House Select Committee on Jan. 6 without the permission of Donald Trump. There are some who, like John Eastman, should know that any honest discussion of events on and before that day will leave them open to serious charges. But there are others who may very well want to speak—if not out of concern for the nation, then out of frustration and anger at the way they, and their families, were treated as expendable in Trump’s quest for endless power.

Among those who have a good reason to be resentful of how the attempted overthrow of the government played out are a number of aides to Mike Pence. CNN reports that the committee is seeking testimony from at least five members of Pence’s team, including National Security Adviser Keith Kellogg and former Chief of Staff Marc Short. Short may be among those who have already testified. Former Pence Press Secretary Alyssa Farah voluntarily met with Republican Rep. Liz Cheney and fellow Republican member of the committee Adam Kinzinger in October.

Considering recent news that Pence’s team was pressured by attorney John Eastman to carry out his coup plan while the assault on the Capitol was underway, previous confirmation from Short that he was banned from the White House following the attempted overthrow, and currently unconfirmed reports from the Mueller, She Wrote podcast that Pence’s whole team was locked out of their offices on Jan. 6 and placed in additional danger when their security badges were deactivated, all of them could have good reason to spill what they know to the committee.

Over the last few days, the House Select Committee on Jan. 6 has issued a flurry of subpoenas to Trump officials, advisers, attorneys, and campaign members. These followed an earlier group of subpoenas that included one for proud fascist Steve Bannon, who has refused to testify, was held in contempt by the full House, and is currently waiting for the Department of Justice’s decision on whether contempt of Congress is still something that should concern anyone. Even those subpoenas that have gone out are just a portion of the list of people the committee would like to interview.

The frustrating slowness of getting these major figures into a chair—along with the ongoing fight to obtain documents from the national archives that are being blocked by a lawsuit from Donald Trump—may make it seem that the select committee is achieving little when it comes to an actual investigation into events surrounding Jan. 6 and the insurgency. However, back on Nov. 4, Cheney claimed that the committee has already interviewed “more than 150 people.” Cheney did not get more specific, and since most of the committee’s work has been behind closed doors, it’s difficult to know just who has appeared or what kind of information has been collected.

Most of those who have refused to talk have already found refuge in the vast Republican network of “think tanks” and “institutes” that stand by offer GOP insiders a steady six-figure paycheck. Others view themselves as potential candidates for upcoming offices in the Trump-centric party. 

But while Pence himself has made extensive efforts to appease the crowd that was chanting for his neck and the man who hung him out to dry, that attitude apparently doesn’t extend to the members of his staff who, according to the Mueller, She Wrote podcaster, were left “huddled on a loading dock” in the midst of the Capitol attack.

In the latest round of subpoenas, the committee included at least one member of Pence’s inner circle: Keith Kellogg. However, that’s not necessarily a sign that the security adviser is a reluctant witness. As CNN points out, it’s not unusual for “friendly subpoenas” to be produced for witnesses who are willing to cooperate, but who don’t want to be seen as volunteering to tell their story.

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Score one for congressional oversight as former President Donald Trump loses yet another legal fight to keep records hidden from investigators on the Jan. 6 Committee.

First reported by Politico, U.S. District Judge Tanya Chutkan issued the order swatting Trump’s latest request down late Wednesday. It is the third time in less than a week she has done so as the former commander-in-chief has tied himself in knots to shroud hundreds upon hundreds of pages of records that lawmakers say are integral to understanding the Capitol attack and, further, to prevent it from ever happening again.

National Archivist David Ferriero will begin turning documents over to the committee this Friday, barring any intervention from the courts. President Joe Biden has not claimed executive privilege over the documents, and following Chutkan’s latest refusal, Trump has already appealed. 

Before Wednesday night’s ruling, Trump’s attorney Jesse Binnall had requested an injunction to keep records—such as White House correspondence strategizing how to overturn the 2020 election results, for example—away from the committee. Binnall cited confidentiality concerns and claims of executive privilege.

Surreally, Binnall also asked Chutkan to issue a stay of her ruling before she had even rendered it.

She would not.

On Tuesday, Chutkan dressed Trump, now a year removed from his defeat in 2020, down. Writing in a 39-page opinion, Chutkin admonished the former president for his plain failure to “acknowledge the deference owed to the incumbent President’s judgment” and his insistent “notion that his executive power exists in perpetuity.”

“But presidents are not kings and plaintiff is not president. He retains the right to assert that his records are privileged but the incumbent president is not constitutionally obligated to honor that assertion,” Chutkan wrote.

Binnall filed Trump’s appeal just an hour after Chutkan ruled on Tuesday. 

In Wednesday’s ruling against the temporary order request to bar documents from disclosure, Chutkan bristled: “This court will not effectively ignore its own reasoning in denying relief in the first place to grant injunctive relief now.”

She added, as well, that there is no “end-run around preliminary injunction” simply because Trump seeks appellate review.

“Were the court to grant the plaintiff’s motion, the effect would be to give the plaintiff the fruits of victory whether or not the appeal has merit. Plaintiff is not entitled to injunctive relief simply because the procedural posture of this case has shifted,” Wednesday’s six-page ruling states.

She continued: “But while Nov. 12 draws near, this court’s jurisdiction is not imperiled. Plaintiff has already filed a notice of appeal with the Court of Appeals for the D.C. Circuit. He is, therefore, free to petition that court for relief.”

According to the National Archives, documents sought by the committee were broken up into four tranches. The first tranche—anticipated for release Friday—will likely include call logs, White House visitor logs, and files held by Trump’s former chief of staff, Mark Meadows.

That batch is not expected to exceed 100 pages.

The second and third tranche is due to the committee by Nov. 26, barring a judge’s order to stop the hand-off. According to court records, that batch could include up to 724 pages. The fourth tranche spans 551 pages and the review period is still ongoing, so a deadline has not yet been set.

“[The National Archives] anticipates that it will identify additional tranches of responsive records on a rolling basis,” Judge Chutkan wrote on Nov. 9.

Records are expected to include, among other things, daily presidential diaries, schedules, White House visitor logs, drafts of presidential speeches and remarks, and other correspondence related explicitly to Jan. 6.

The Jan. 6 Committee has so far issued nearly three dozen subpoenas. As the anniversary of the insurrection fast approaches, anticipation for public hearings with key figures from the Trump administration are hotly anticipated.

Select committee spokesperson Tim Mulvey told Daily Kos in an email Thursday: “At this stage in the investigation, the Select Committee is gathering facts, reviewing materials, and hearing from witnesses to build a body of evidence. A major aim of the Select Committee’s work, however, is to provide answers to the American people about the violence of Jan. 6 and its causes. We intend to tell this story through hearings and other public events when the time is right.”

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The defendants in the federal civil lawsuit over the lethal 2017 Unite the Right riots in Charlottesville and their neo-Nazi cohorts were hoping to turn the trial currently unfolding in court into a kind of circus where they could strut their propaganda chops—and indeed they clearly have been conducting themselves both in and out of the courtroom accordingly.

But to their dismay, the plaintiffs’ attorneys in the case have diligently, step by step, been peeling back the onion layers of the white nationalist movement’s planning and preparations for the event. Along the way, the defendants are also being exposed as the unrepentant hatemongers and violence-loving thugs they are. It hasn’t been a good couple of weeks for them.

One of the defendants, neo-Nazi Christopher Cantwell, had already dropped the N-word during opening arguments. Cantwell has been the obnoxiously obvious leader of the effort to exploit the trial for their own glorification, hijacking the court as a platform for his ideas.

“I consider this a spoken-word performance, and I take this kind of thing seriously, especially once I found out people were going to be able to listen in,” Cantwell said on a recent podcast. “I thought this was a tremendous opportunity both because of the cause at hand, and because I knew the world was listening.”

“I look like a star,” he added.

As Tess Owen of Vice reports, Cantwell tried last week to question codefendant Matthew Heimbach, erstwhile leader of the white-nationalist Traditionalist Worker Party, and tried to turn it into a circus by asking: “What’s your favorite Holocaust joke?” After a long pause, Heimbach laughed, and Cantwell withdrew the question.

Cantwell’s antics have earned applause on the far right. Codefendant Jason Kessler, posting on Telegram, touted the “epicness and boldness” of Cantwell’s opening statement, hailing it as a “free speech performance.” Meanwhile, on several far-right Telegram channels, their supporters have piled on to make vicious comments about both the plaintiffs and their attorneys—particularly those who are Jewish—and root for the defendants.

As Owen notes, a technical glitch allowed a flood of neofascists into the public access line for the proceedings:

When the court recessed for lunch on Monday, a glitch allowed trolls to swarm the public-access line, delaying proceedings by 30 minutes while the clerk worked to figure out what was going on. At first, listeners who realized the “mute-all” function had been removed began saying things like “Make America Great Again” and “Let’s Go Brandon” (an in-joke for conservatives who hate Joe Biden). One listener namechecked Cantwell’s podcast. Then came the racist slurs: one person said the N-word repeatedly, and another urged the rest of the people on the call to “read Siege,” a neo-Nazi manifesto that’s been associated with violent accelerationist groups like Atomwaffen.

In the meantime, the evidence continued to pile up demonstrating both the defendants’ culpability for specifically planning to create a violent event in Charlottesville, as well as their generally stupid and vicious nature. Even the “smart” white nationalists like Richard Spencer—the primary organizer of the infamous “Jews Will Not Replace Us” tiki-torch parade the night before the lethal riots—were exposed as being both not particularly bright, as well as deeply mendacious.

As BuzzFeed’s Christopher Miller reported, plaintiffs’ attorney Michael Bloch systematically demonstrated Spencer’s leading role in bringing an array of white-nationalist hate groups to Charlottesville through multiple communications and relentless hatemongering. On the stand, Spencer admitted that he and his fellow white supremacists frequently used hate speech in private.

Bloch played a recording of Spencer made the day after the Aug. 12, 2017, riots that left one person dead and multiple people injured after neo-Nazi James Fields drove his Dodge Challenger into a group of counterprotesters. Spencer can be heard on the recording speaking with some of his codefendants, including Nathan Damigo, Jason Kessler, and Elliott Kline, while shouting racist and antisemitic phrases.

“Little fucking kikes. They get ruled by people like me. Little fucking octoroons… I fucking… My ancestors fucking enslaved those little pieces of fucking shit. I rule the fucking world,” Spencer yells. “Those pieces of fucking shit get ruled by people like me. They look up and see a face like mine looking down at them. That’s how the fucking world works. We are going to destroy this fucking town [of Charlottesville].”

Spencer admitted those were his remarks, but says they were unrepresentative: “That is me at my absolute worst. I won’t dispute that that’s me, because at the end of the day I have to live with that,” he testified. “My animal brain. That’s me as a 7-year-old. It’s a 7-year-old that is probably still inside me. I’m ashamed of it. That is a childish, awful version of myself.”

Another video of Spencer, shot at the afterparty for the Aug. 11 tiki-torch parade he organized, show him telling his followers: “I was born too late for the Crusades. I was born too early for the conquest of Mars. But I was born at the right time for the race war.”

Bloch also demonstrated to jurors the reality that they couldn’t believe a word out of Spencer’s mouth by presenting evidence featuring dozens of text-message exchanges between himself and Cantwell. Spencer had told the court they had only communicated a handful of times and “ate lunch once.”.

“Between July and August you exchanged 88 text messages with Mr. Cantwell,” Bloch told him. “But you said, ‘We shared a few text messages, seven in total.’ Isn’t that what you told the jury?”

A long pause ensued. Finally Spencer muttered: “I think I was referring to instances.”

The plaintiffs’ attorneys also played a video for the jury of the deposition of Vasillios Pistolis, a neo-Nazi member of the terrorist action group Atomwaffen Division and a former Marine who was an avid participant in the violence. In online chats leading up to the rally, ProPublica reported, his fellow neo-Nazis had encouraged Pistolis to be vicious with any counterprotesters, maybe even sodomize someone with a knife. He’d responded by saying he was prepared to kill someone “if shit goes down.”

Pistolis was asked in the deposition why he referred to Heather Heyer, the woman killed by Fields’ car, as a “fat cunt.” “Because that’s what she is,” he says. He also called Fields a “hero.” Asked why he posted a meme showing a car running over a Communist protester, he answered: “I thought it was funny.”

In stark contrast, the victims of the violence who appeared on the stand this week were compelling and empathetic. Marissa Blair, who only survived Fields’ attack because her then-boyfriend, Marcus Martin, pushed her out of the way moments before he too was struck and hurled over the top of the vehicle, recounted her ordeal for the jury.

Voice cracking, she described how she got up immediately afterward and saw Martin’s hat, covered in blood, lying on the ground.

“I was confused. I was scared. I was worried about all the people that were there,” Blair told the court. “It was a complete terror scene. It was blood everywhere. I was terrified.”

Blair told the court she was there that day with Heyer, a close friend. “Nobody expects your friend to be killed for standing up for what you believe in, right in front of you,” she said.

Hate crimes expert Brian Levin of the Center for the Study of Hate and Extremism at California State University, San Bernardino, told Owen that the defendants’ antics are likely to backfire badly.

“While it may seem, and often is, that the defendants are using their appearances to platform bigotry and troll the court, they do so at their own legal risk,” said Levin. “Key to legal representation is client control, and while ideology is admissible in the case, an exposition of it in a particularly offensive way is going to leave a jury with a bad taste in their mouth as they attempt to digest a lot of information. No lawyer would advise them to discuss Holocaust jokes and other vile banter because it does nothing to help their defense.”

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The first year of Joe Biden’s presidency appears likely to end with Postmaster Louis DeJoy, Trump’s pick to dismantle the nation’s longest-serving institution, inexplicably still in office. Biden has had a lot do to and many messes to clean up, but this one is right at the top and should have been dealt with already. The problem is, he can’t directly fire DeJoy. The U.S. Postal Service Board of Governors has to do that, and the chair of that board, Ron Bloom, happens to be a big DeJoy booster. Why that’s the case for Bloom, who is a Democrat, is not really known, but there’s certainly a whiff of corruption  behind it.

That can end early next month because Bloom’s term is going to expire on Dec. 8. The Trump appointee was named to serve out the remainder of a seven-year term, left vacant (as most of them were, during the Obama administration) for Trump to fill. That term officially ended one year ago, but he’s been in a one-year holdover term where he has pushed DeJoy’s plan of trying to completely privatize the mail. He has experience at that from his previous employment at investment banking giant Lazard, which made great profits from investing in the privatization of England’s Royal Mail system. So he’s the man to help DeJoy on this job.

Bloom has been cycling in and out of government and corporate restructuring jobs for decades. In his latest gig at Lazard, the Revolving Door Project notes that the National Association of Letter Carriers (NALC) was among his clients. The big postal union “hired Bloom to explore solutions to USPS’s solvency issues. Although celebrated by NALC as a ‘reality check’ for broadly opposing service cuts and encouraging expansion of services, the final report issued by Bloom’s Lazard group also left the door open to ‘greater flexibility to pricing of products’ (read: unpopular price hikes) and private-sector contract partnerships in logistics and freight forwarding services (which postal unions have  long opposed as a form of privatization).”

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Those private-sector contracts are precisely what DeJoy has been pushing (along with the rate hikes, mail slow downs, and fewer hours of operation for post offices) and have raised serious questions about conflicts of interest for him, since he maintains financial ties to his former logistics and freight company which has a new contract with the USPS. It’s a match made in heaven, him and Bloom.

It’s a match that the rank-and-file postal workers of the USPS have a problem with, even though leadership is still backing him. The American Postal Workers Union (APWU), National Association of Postal Mail Handlers Union (NPMHU), National Association of Letter Carriers (NALC), and the National Rural Letter Carriers Association (NRLCA) are focused on trying to get the Postal Service Reform Act of 2021 passed. It’s a critical piece of legislation for the USPS that would free it from the financial shackle of having to pre-fund 75 years of retiree health care and pension payments—$120 billion worth. It’s the only government agency operating under that restriction. Getting that law enacted is a goal for the letter carriers and postal workers, too. But, they argue, it won’t make much difference if the whole institution is dismantled by DeJoy and team.

“It is my fervent belief that if we do not stop the destructive policies that are being implemented in the Postal Service, that we’re not gonna have a Postal Service to negotiate with for a contract—or a need for any kind of legislative relief,” Iowa Postal Workers Union President Kimberly Karol told DC Report. “These policies are so bad and so detrimental to the future of the Postal Service, that I think it is very important that we get the public informed and speak out, and get DeJoy and Bloom replaced for advocating for these very destructive policies.”

At least one senator, Wisconsin Democrat Tammy Baldwin, is on record telling Biden to replace Bloom, and after him, Dejoy. “Our Postal Service is, by law, a fundamental service provided to the people by our government, authorized by the Constitution, created by an Act of Congress, and supported by the people. I don’t believe that Postmaster General DeJoy understands who he works for— the American people,” Baldwin said in a statement last week. “I wanted to see him go last year when he ordered changes that led to delayed mail for Wisconsin families, seniors, veterans, and businesses and I oppose Ron Bloom’s nomination to a new term because I would like to see a new Postal Board of Governors show DeJoy the door and bring on a new Postmaster General.”

There’s a whole raft of public interests groups—77 of them in total—who agree. In a letter sent to Biden last month, the group urged him not to “reward this failed leadership with a new term.”

“Instead, please take this opportunity to correct the course of the Postal Service’s future by moving expeditiously to nominate a replacement for Mr. Bloom who will be forward-looking and more representative of the postal workforce, and will not rubber-stamp the disastrous policies of Mr. DeJoy,” they wrote.

These two have to go. They’re not just destroying the oldest and most beloved public institution in the nation, they’re doing it for personal profit and not even pretending to hide that fact! They should have been fired months ago for the gross mismanagement of the USPS, if not for the stench of corruption surrounding them. Here’s Biden’s chance, and it’s easy. Just pick someone new for the board. Someone who’s not a crook.

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A group of House Democrats are pushing to censure Republican Rep. Paul Gosar after he shared an animated video altered to show him killing Rep. Alexandria Ocasio-Cortez and attacking President Joe Biden. Aside from expulsion, censure is the harshest penalty the House can impose on a member … and it’s likely to be a point of pride for Gosar, to say nothing of a fundraising angle.

“For a Member of Congress to post a manipulated video on his social media accounts depicting himself killing Representative Alexandria Ocasio-Cortez and attacking President Biden is a clear cut case for censure,” 10 Democrats said in a statement. “For that Member to post such a video on his official Instagram account and use his official congressional resources in the House of Representatives to further violence against elected officials goes beyond the pale.”

But the Democrats’ statement also hints at why Gosar won’t face any penalty he finds meaningful: Because he’s just the leading edge of a Republican Party increasingly committed to violence.

“As the events of January 6th have shown, such vicious and vulgar messaging can and does foment actual violence. Violence against women in politics is a global phenomenon meant to silence women and discourage them from seeking positions of authority and participating in public life, with women of color disproportionately impacted,” the Democrats said. “Minority Leader McCarthy’s silence is tacit approval and just as dangerous.”

Gosar is defiantly unapologetic. While the video, which drew a warning from Twitter, is no longer on his Twitter or Instagram pages, he said in a statement Tuesday, “It is a symbolic cartoon. It is not real life. Congressman Gosar cannot fly. The hero of the cartoon goes after the monster, the policy monster of open borders. I will always fight to defend the rule of law, securing our borders, and the America First agenda.”

The rule of law here includes representations of himself killing one of his colleagues in Congress and attacking the president of the United States, something you’d think might draw Secret Service attention.

So Democrats and a very few Republicans may or may not censure Gosar, and it will not make one bit of difference in his behavior, because the violence of today’s Republican Party is not something that gives a damn about the traditional rules or the traditional punishments. Gosar may be, as his own sister said on CNN, a “sociopath,” but the structures around him—the fact that, as she also said, “No one holds him accountable”—are what allow him to continue his dangerous behavior without consequences. And the more Republicans like Gosar—or Reps. Andy Biggs and Marjorie Taylor Greene and Lauren Boebert and Mo Brooks—get away with constantly inciting their followers to see Democrats as the inhuman enemy and violence as a reasonable response, the more the entire Republican Party will continue to move in that direction. All the while the Justice Department under Attorney General Merrick Garland remains obsessed with not appearing to do anything that could ever be construed as partisan, like prosecuting the crimes of high-profile Republicans.

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On Wednesday evening, a U.S. District Court judge in Austin blocked Gov. Greg Abbott’s ban on mask mandates at schools. According to the ruling from Judge Lee Yeakel, Abbott’s actions violate federal law because they present a special danger to students who are at high risk due to preexisting medical conditions. Because of this, refusing to allow schools to institute mask mandates, according to Yeakel, is a violation of the Americans with Disabilities Act (ADA). 

“The spread of COVID-19 poses an even greater risk for children with special health needs. Children with certain underlying conditions who contract COVID-19 are more likely to experience severe acute biological effects and to require admission to a hospital and the hospital’s intensive-care unit.”

Yeakel makes a series of very simple, and easily defensible, points in his ruling:

• Students with special health concerns are at higher risk.
• Schools say that mask mandates will help protect those students in a way that voluntary mask use will not.
• Evidence supports the idea that near-universal mask-wearing helps slow the spread of COVID-19.
• Forcing kids at higher risk to participate in classrooms without a mask mandate puts them at higher risk than their peers.

If this ruling holds up, it could affect not just mask mandates in Texas, but in multiple states were Republican governors, legislatures, and attorneys general have attempted to prevent schools from requiring masks. 

Throughout the entire pandemic, it seems that Republican governors have been scrambling to one-up each other on how willing they are to endanger their citizens. A whole series of steps have become de rigueur—especially for any Republican who believes she or he has a chance of bumping Trump from the slot on the 2024 GOP playbill. That’s included stripping power from local officials to institute their own social distancing rules, taking away authority from state and county health officials, punishing businesses that seek to keep employees safe, punishing employees who seek to avoid unsafe workplaces, fining schools that attempt to keep students safe, and making it illegal for anyone—private or public—to require vaccination. 

The number of players in this game is almost as long as the list of GOP governors, and there has been some outstandingly awful behavior from governors such as South Dakota’s Kristi Noem and Tennessee’s Bill Lee. However, few governors have dueled for the title of Most Willing To Kill Citizens for Political Points the way that Florida Gov. Ron DeSantis and Texas Gov. Greg Abbott have gone at it.

DeSantis often grabs the headline for his habit of treating each downturn in the rate of new cases as an excuse to claim that his policies have worked—while ignoring Florida’s top 10 status in both the rate of cases and of deaths. But Abbott has matched his Florida rival almost step for step when it comes to punishing everyone with good intentions.

For both Abbott and DeSantis, it hasn’t been enough not to impose a statewide mask mandate. Both have issued executive orders that prohibit local authorities from instituting such mandates, both have issued orders to prohibit such mandates in most government facilities, and both have threatened to fine or punish schools that violate the rules. In Florida, the DeSantis-appointed Board of Education has already moved to withhold funds from schools that require masks—not just endangering students, but directly threatening their education. Texas Attorney General Ken Paxton had already launched prosecutions against a number of school districts, but both Paxton and Abbott were set back on their spurs when dozens of districts rebelled against the ban.

Texas is almost certain to appeal Yeakel’s ruling, especially since Paxton is, in almost every measurable way, worse than Abbott when it comes to reflexive attacks on reasonable policies. However, for the moment, not only can schools in Texas feel safer while making kids safer, there are implications that go way beyond one state and way beyond schools.

If a ban on mask mandates is a violation of the ADA, then this is true not just in Texas, but in Florida, South Dakota, Tennessee, and every other Republican-controlled state that has moved to block these mandates. And if this is true for schools, it must be true for everywhere else as well, in public and private space.

Abbott’s own executive order makes it clear that mask mandates have value, because he exempts hospitals, nursing homes, and jails from the ban on such mandates. This is easily recognized as giving value to such mandates. 

With a ruling that touches on the ADA in hand, this is certain to become a fight that will be joined by multiple Republican attorneys general. Because it seems dead simple to extend this ruling to support the idea that cities, counties, government facilities, and private businesses of all types cannot be banned from issuing mask mandates.

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The Daily Kos Elections Morning Digest is compiled by David Nir, Jeff Singer, Stephen Wolf, Carolyn Fiddler, and Matt Booker, with additional contributions from David Jarman, Steve Singiser, Daniel Donner, James Lambert, David Beard, and Arjun Jaikumar.

Leading Off

● ID-Gov: Donald Trump waded into the Republican primary on Tuesday evening by endorsing far-right Lt. Gov. Janice McGeachin’s bid to take down Idaho Gov. Brad Little. Trump did not mention Little in his not-Tweet, which he instead used to laud McGeachin as “​​a true supporter of MAGA since the very beginning.” Whoever wins the nomination in May should have no trouble prevailing in the 2022 general election in what has long been one of the reddest states in the nation.

While Trump has been eager to end the careers of Republican governors and members of Congress who have pushed back on his 2020 election lies, Politico’s Zach Montellaro notes that Little himself doesn’t appear to have done anything to provoke Trump’s wrath. Indeed, Montellaro notes that it was just last week that the GOP leader recognized Little at an event held at Mar-a-Lago. “We also have Gov. Brad Little, who is a terrific gentleman,” Trump said, adding, “Thank you Brad. He’s working on a project.”

There’s no word on what Trump meant by that last line, but McGeachin has made headlines multiple times for taking part in some very dangerous projects of her own. The lieutenant governor has spent the pandemic blasting Little for his efforts to mitigate the spread of the virus, which included a video where she suggested the pandemic “may or may not be occurring.” She also once posted a photo taken at the state Capitol with members of the so-called Three Percenters, a faction in the extremist anti-government “militia” movement.

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McGeachin has also tried to back up her talk with actual action multiple times when Little’s powers passed to her while he was out of state. In May, while the incumbent was attending a Republican National Governors event in Tennessee, McGeachin announced she was issuing an executive order forbidding schools and public buildings from requiring face masks, a directive Little repealed about 24 hours later when he was back in Idaho.

The governor himself declared that he “opposed a statewide mask mandate” but argued that the decision should be left to local governments and that McGeachin’s actions ran “contrary to a basic conservative principle – the government closest to the people governs best.”

McGeachin was far from deterred, though. Last month, she received national attention when she took advantage of another Little trip, this time to Texas, to talk to Major General Michael Garshak about sending the Idaho National Guard to the border with Mexico. Garshak responded, “I am unaware of any request for Idaho National Guard assistance under the Emergency Management Assistance Compact (EMAC) from Texas or Arizona … As you are aware, the Idaho National Guard is not a law enforcement agency.”

McGeachin also used the occasion to issue another executive order that included a rule preventing any ​​state agencies from requiring proof of vaccination or testing. Little responded four minutes later by saying he would be “rescinding and reversing any actions taken by the Lt. Governor when I return.” However, while the governor bashed his nominal number two for “political grandstanding,” her antics seem to have found a very eager audience in Trump.

McGeachin isn’t the only far-right icon aiming to take down Little, though. Anti-government militant Ammon Bundy kicked off a campaign in June, and he may have enough of a base to cost McGeachin some much-needed support.

Redistricting

● AK Redistricting: Alaska’s redistricting commission agreed on a new state Senate map on Tuesday, with the board’s three Republican appointees voting in favor and its two independent members against. The commission also recently approved a new map for the state House, though legal challenges to both plans are likely.

● FL Redistricting: A committee in Florida’s Republican-controlled state Senate released four different draft maps for Congress and four for its own chamber on Wednesday, which you can find here. The congressional maps are all quite similar to one another and largely preserve the status quo, with the addition of one new district that the state earned in reapportionment. That seat would be numbered the 15th, a swingy district in east Tampa that would have narrowly gone for Joe Biden, which would also make the adjacent 14th District (held by Democratic Rep. Kathy Castor) less blue. Republican Rep. Scott Franklin, who represents the current 15th, would instead find himself in the redder 28th District.

● GA Redistricting: Georgia’s Republican-run House passed the GOP’s new map for the chamber on Wednesday on a largely party-line vote, with all Democrats and two Republicans voting against. The plan now goes to the Senate, which already passed its own map earlier in the week. In most states where lawmakers control the redistricting process, each chamber will generally craft a map for itself, with approval from the other house typically a formality.

● MD Redistricting: Lawmakers in Maryland’s Democratic-run legislature have released four different draft maps for the House, two of which would maintain the party’s 7-1 advantage in the state’s congressional delegation and two of which would target the 1st District, the lone Republican seat. However, even under the most aggressive proposal, the 1st would remain very swingy.

Democratic partisans have advocated for an 8-0 plan for more than a decade—and drawn many, many hypothetical maps that would ensure all eight districts would be safely blue. HuffPost’s Kevin Robillard even reported in January that one Maryland operative suggested Democrats might finally go for the jugular following Congress’ vote to certify the results of the Electoral College on Jan. 6: That evening, Republican Rep. Andy Harris nearly instigated a fist-fight after Pennsylvania Rep. Conor Lamb called out Republicans for their lies that had incited the invasion of the Capitol earlier that day.

Barring the introduction of additional maps, however, it does not appear Maryland Democrats are willing to take this step.

● ND Redistricting: North Dakota’s Republican-run state legislature has passed a new legislative map, sending it to Republican Gov. Doug Burgum. Both chambers use the same districts, with each electing two representatives and one senator, though the new map adds two exceptions to that pattern: Two House districts based around Indian reservations would now be divided in half, with each half electing its own member, in order to improve Native representation.

● UT Redistricting: Both chambers in Utah’s Republican-run legislature swiftly passed the GOP’s new congressional map on Wednesday, which lawmakers had only introduced on Monday afternoon. The plan creates four safely Republican seats by cracking the state’s lone blue bastion, Salt Lake County, four ways.

Activists with a group called Better Boundaries said ahead of the vote that they plan to put a measure on the ballot “to repeal and replace the heavily gerrymandered district maps.” However, because the plan passed with a two-thirds vote in both the state Senate and House, it cannot be subject to a veto referendum, which would have blocked the map from taking effect as soon as it qualified for the ballot—had it been able to.

Organizers could instead seek to pass their own map at the ballot box, but Republican lawmakers would be able to repeal it even if it passes since voters can only initiate statutes instead of constitutional amendments, much as they did when they gutted the measure creating a new redistricting commission that Better Boundaries helped pass in 2018.

● VA Redistricting: As expected, Virginia’s new bipartisan redistricting commission has missed the final deadline to produce a new congressional map, punting the task to the state Supreme Court. The commissioners previously failed to come up new legislative maps, meaning the justices will draw those as well. Many Democrats have expressed concern that the court, which has a 5-2 conservative majority, will craft districts that favor Republicans.

Senate

● AL-Sen: While Rep. Mo Brooks and his allies have released several polls showing the Trump-backed congressman with a huge Republican primary lead over former Business Council of Alabama head Katie Boyd Britt, Britt’s side has now dropped a pair of surveys giving her the edge.  

Cygnal, polling in early November on behalf of the pro-Britt Alabama Conservatives Fund, finds her outpacing Brooks 24-22, with Army veteran Mike Durant in third with 9%. Britt’s campaign has also publicized a TargetPoint Consulting poll that gives her a tiny 31-30 lead against Brooks, with Durant taking a similar 12%.

● GA-Sen: If you were waiting with bated breath to find out whom ​​Newt Gingrich, the long ago Georgia congressman, two-term House Speaker, and undoubtedly the inspiration for many terrifying costumes at 1990s-themed parties, is supporting in the Republican Senate primary, your time of trial is over: Gingrich is for NFL player Herschel Walker.

● NH-Sen: WMUR reports that wealthy businessman Bill Binnie, who took a distant third in the 2010 Senate Republican primary, is interested in another try, but there’s no word from Binnie himself.

● UT-Sen: Former Rep. Ben McAdams, who is arguably the most prominent Democrat in Utah, has endorsed independent Evan McMullin’s campaign against Republican Sen. Mike Lee.

● WI-Sen: When asked once again Wednesday if he’ll be running for re-election, Republican Sen. Ron Johnson said, “It’ll all be revealed in the next few weeks.”

Governors

● AR-Gov: Former White House Press Secretary Sarah Huckabee Sanders lost her last notable Republican primary foe on Tuesday night when Attorney General Leslie Rutledge announced that she was switching to the race for lieutenant governor. The Trump-backed Sanders, who enjoyed a massive financial lead over Rutledge, earned endorsements the following day from Sens. John Boozman and Tom Cotton.

● PA-Gov: Senate President Pro Tempore Jake Corman postponed his planned “special announcement” after the Republican tested positive for COVID-19; Corman says his symptoms are mild.

House

● IA-01, IA-03: Republican Rep. Mariannette Miller-Meeks announced Wednesday that she would run for the new 1st District, which contains the vast majority of her current 2nd District. Miller-Meeks’ home of Wapello County was moved to the 3rd District, and the congresswoman has not yet said if she’ll be moving.

● IL-03: Chicago Alderman Gilbert Villegas, who’d been considering a bid for Illinois’ redrawn 3rd Congressional District, became the first candidate to enter the Democratic primary on Wednesday. The Chicago Sun-Times‘ Rick Pearson adds that state Rep. Delia Ramirez and Eira Corral Sepulveda, a commissioner on Chicago’s Metropolitan Water Reclamation District commissioner, are also both interested, though neither woman is quoted.

● IL-17: Two new Democrats announced campaigns for Illinois’ revamped 17th Congressional District on Wednesday, former state Rep. Litesa Wallace and former TV meteorologist Eric Sorensen.

Wallace was first appointed to the legislature in 2014 to fill a vacancy and won two terms in her own right before an unsuccessful bid for lieutenant governor in 2018. Sorensen, meanwhile, served as chief meteorologist for WREX in Rockford for a decade, then held the same position at WQAD in Moline for many years before retiring earlier this year. They join Rock Island County Board member Angie Normoyle and Rockford Alderman Jonathan Logemann in the Democratic primary.

● MI-08: Former Republican Rep. Mike Bishop told The Hill this week that he was considering a comeback bid, though he added that he was waiting for the state’s redistricting commission to complete its work before deciding.

Bishop lost a very expensive 2018 race to Democrat Elissa Slotkin 51-47, but a new map could forestall a rematch even if they both ran in 2022. Last month, MIRS’ Kyle Melinn reported that Slotkin was likely to run for a seat based around Lansing’s Ingham County, while Bishop said he would likely campaign for a district containing Macomb and Oakland counties in the Detroit suburbs.

● NC-04: This week, former Fayetteville Mayor Nat Robertson became the first notable Republican to announce a campaign for the new 4th District, an open seat that, according to data from Dave’s Redistricting App, favored Donald Trump 53-46. Robertson was last on the ballot in 2017 when he lost his bid for a third term to Democrat Mitch Colvin by a lopsided 59-41 margin.

● NC-13: Former Mecklenburg County Commissioner Karen Bentley has filed paperwork with the FEC for a potential bid for the new 13th District, which went for Donald Trump 60-39.

● NJ-05: Marine veteran Nick De Gregorio said Wednesday that he’d seek the Republican nod to take on Democratic Rep. Josh Gottheimer in what is currently a competitive North Jersey seat. De Gregorio has not run for office before, though the New Jersey Globe wrote back in June that he was being advised by prominent consultant Chris Russell and had ties to state GOP chair Bob Hugin.

● NY-24: Air Force veteran Sarah Klee Hood, who just won a seat on the DeWitt Town Board last week, kicked off a bid for New York’s 24th Congressional District on Wednesday. She joins two other former members of the military, Navy veteran Francis Conole and Army veteran Steven Holden, in the Democratic primary.

● TX-15: Republican Monica De La Cruz, who is running for Texas’ open 15th Congressional District, was accused of physically and verbally abusing her 14-year-old stepdaughter in documents filed last month by her husband as part of the couple’s divorce proceedings. In a petition to the court, Johnny Hernandez alleged that De La Cruz had once pinched his daughter, whom he says has struggled with mental health issues, to force her to stop crying. He also says that De La Cruz threatened to divorce him “if he brought the child, who has at times been hospitalized, back to live at their home.” De La Cruz, who has House Minority Leader Kevin McCarthy’s endorsement, called the accusations “false.”

● TX-35: State Rep. Eddie Rodriguez, who’d recently filed paperwork for a possible bid, announced on Wednesday that he’d enter the race for Texas’ open 35th Congressional District. He joins Austin City Councilman Greg Casar in the Democratic primary.

Secretaries of State

● WA-SoS: Gov. Jay Inslee announced Wednesday that he was appointing state Sen. Steve Hobbs to succeed Republican Secretary of State Kim Wyman, a move that will make Hobbs both the first Democrat to serve as Washington’s chief election official since the 1964 elections and the first person of color to hold this office. This post will next be on the ballot in November of 2022 for a special election for the final two years of Wyman’s term; Wyman herself is resigning next week to join the Biden administration to oversee election security.

Hobbs, as Inslee himself noted in his statement, is a moderate. The Seattle Times writes that the state senator, who was elected in 2006, has “broken with the party over the years, and more recently, has clashed with the governor over Inslee’s climate-change proposals.” Hobb’s elevation could allow Democrats to replace him in the upper chamber with a more progressive voice: Under state law, Democrats will submit three names to the county commission in Snohomish County, which is the only county in the 44th Legislative District, and the commissioners will pick one to be the new state senator.

Hobbs has also unsuccessfully sought a promotion three times in the last decade. In 2012, he campaigned in the top-two primary to succeed none other than Inslee in the 1st Congressional District but took a distant fifth place with 7% of the vote. Hobbs ran for lieutenant governor four years later and won fourth with 15% in a crowded race. He launched another campaign for that office in 2020 but dropped out just ahead of the filing deadline.

Prosecutors

● Hennepin County, MN Attorney: Saraswati Singh, who works as a prosecutor in neighboring Ramsey County, this week became the fourth candidate to enter next August’s nonpartisan primary to succeed longtime incumbent Mike Freeman, who announced two months ago that he would not seek re-election. Singh joins former Hennepin County Chief Public Defender Mary Moriarty, Richfield City Council Member Simon Trautmann, and Minnesota House Majority Leader Ryan Winkler in the race to succeed Freeman as the top prosecutor in Minnesota’s largest county.

● San Francisco, CA District Attorney: Local election officials announced this week that District Attorney Chesa Boudin’s detractors had turned in enough valid signatures to force a recall election. The race will take place in June of next year at the same time as California’s regularly-scheduled statewide primary. If a majority votes to oust Boudin, San Francisco Mayor London Breed would appoint his successor; no matter what, the next election for a four-year term will take place in 2023.

● Tarrant County, TX District Attorney: Republican incumbent Sharen Wilson said Tuesday that she would not seek re-election next year, an announcement that the Fort Worth Star-Telegram‘s Bud Kennedy characterized as a “shock.” Wilson’s departure will set off an open seat race in Tarrant County, a populous and politically competitive community that’s home to Fort Worth and Arlington. Joe Biden’s 49.3-49.1 victory made him the first Democratic presidential nominee to carry the county since native Texan Lyndon Johnson’s 1964 landslide, but Republicans held the Fort Worth mayor’s office this year.

Two Democrats were already campaigning here before the incumbent announced her retirement: Albert Roberts, who lost to Wilson 53-47 in 2018; and former prosecutor Tiffany Burks. Any other politicians looking to succeed Wilson will only have a few weeks to decide, as the statewide candidate filing deadline is Dec. 13. Party primaries occur on March 1, with runoffs taking place in late May for any races where no one earned a majority of the vote, and the new district attorney will be elected next November.

Obituaries

● Former Georgia Sen. Max Cleland, whose 1996 victory made him the last non-incumbent Democrat to win one of the Peach State’s Senate seats until this year, died Tuesday at the age of 79. Cleland, who lost three of his limbs while serving in Vietnam, lost re-election in 2002; in that election, Republican Rep. Saxby Chambliss aired an infamous commercial that featured photos of Osama bin Laden and Saddam Hussein.

Cleland was an Army captain during the Battle of Khe Sahn in April of 1968, days after Martin Luther King Jr. was murdered, when he picked up a live grenade that exploded before he could toss it to safety. The future senator, as The Atlanta Journal-Constitution writes, spent decades believing that the weapon that cost him both his legs and his right arm had been from his belt and had fallen because of his own mistake. However, David Lloyd, the Marine who was the first person to reach the wounded Cleland, told him in 1999 that an unnamed “newbie” had accidentally dropped that grenade.

Cleland, sporting a pair of prosthetic legs he would later give up in favor of a wheelchair, returned to his home state of Georgia and in 1970 won a seat in the state Senate. He sought a promotion in 1974 when he campaigned in a crowded primary for lieutenant governor with the backing of termed-out Gov. Jimmy Carter, but he narrowly failed to reach the runoff; the eventual winner was Zell Miller, who went on to become governor and later Cleland’s Senate colleague.

In 1977, the new President Carter tapped Cleland to lead the U.S. Veterans Administration, which is now the cabinet-level Department of Veterans Affairs, but his fellow Democrat was far from done with elected office. Cleland ran for secretary of state in 1982 in a primary against David Poythress, who had been appointed to the post three years before, and narrowly beat him 52-48 in the primary runoff. Cleland won the general election that fall in a landslide in what was still a Democratic-dominated state.

Cleland considered running for governor in 1990 but didn’t go forward with it after audio surfaced of what the AJC characterizes as “a phone sex tape of him and a former girlfriend.” The Democrat later wrote of the incident, “It not only raised my profile in the state in a way no amount of political advertising could, it also showed that I was, despite my handicaps, a full-blooded American male.” That incident also didn’t stop him from easily winning two more terms as secretary of state.

Cleland in 1996 won the primary to succeed retiring Democratic Sen. Sam Nunn without any opposition, but he was in for a very difficult general election against businessman Guy Millner, the Republican who had only narrowly lost the 1994 gubernatorial race to Miller. (Millner won the Senate nomination after a close runoff against future Sen. Johnny Isakson.) Cleland ended up prevailing 49-48 even as Bob Dole was carrying Georgia 47-46, and he quickly established himself in D.C. as a moderate who nevertheless usually voted with his party.

The senator faced a tough race in 2002 against Chambliss in a state that was rapidly moving to the right, but he still looked like the favorite for most of the race. Chambliss, though, did whatever he could to depict Cleland as “too liberal for Georgia,” an effort that included commercials accusing the Democrat of supporting partial-birth abortion and needle exchanges and asking, “Why would he do that?” Cleland pushed back with ads starring the far more conservative Miller, his long ago rival-turned-fellow Senator, vouching for the incumbent.

Cleland himself voted to authorize the war in Iraq during the campaign, later saying that this was “the worst vote I cast.” The senator argued, “It was obvious that if I voted against the resolution that I would be dead meat in the race, just handing them a victory,” but that vote hardly deterred Chambliss’ infamous ad. That spot, which began with pictures of bin Laden and Hussein, featured a narrator declaring, “As America faces terrorists and extremist dictators, Max Cleland runs television ads claiming he has the courage to lead. He says he supports President Bush at every opportunity, but that’s not the truth.”

That commercial set off a firestorm, with GOP Sens. John McCain and Chuck Hagel both condemning it, but Team Blue didn’t get the backlash they wanted. Chambliss unseated Cleland 53-46, a result the Democrat said was “the second big grenade in my life.” Cleland never sought elected office again, though he remained active in public life as a member of the 9/11 Commission, the Export-Import Bank board, and secretary of the American Battle Monuments Commission.

This post was originally published on this site

The Washington Post has a long piece looking at these regular folks who took a break from their regular folks’ life to storm the U.S. Capitol, attack the police officers who defended it, and contribute to an attempt to overthrow the government. What it doesn’t have is much in the way of actual explanations.

That’s a bit of a disappointment, considering that we know quite a bit about how the crowd was radicalized. Then again, if it were The New York Times we were talking about we’d have three reporters all tag-teaming us to show that each Biff and Mary Jane in the crowd were just trying to be “real Americans” who flew into Washington D.C. directly on the wings of an airborne diner and were only wandering through the haze of tear gas because somebody told them there was another diner just off the Senate cloakroom. We’ll take what we can get.

Still, though, the facts remain. While many of those who took place in an orchestrated attempt to intimidate Congress into nullifying a Republican election loss were “were an array of everyday Americans that included community leaders, small-business owners, teachers, and yoga instructors,” and while “about 573” of those facing prosecution “have no known affiliation with an extremist group,” Ma and Pa America came to town specifically to answer a call from Donald Trump asking for warm bodies to come “march” on the U.S. Capitol as plan to overturn a democratic election.

They’re affiliated with an extremist group, all right. It’s the extremist group known as “people propagandized into believing democracy had collapsed because a delusional narcissist who—backed by a majority of the Republican Party, conservative media, and the dregs of Facebook—insisted without evidence that he—a man who oversaw a half million pandemic deaths, was impeached for corruption, cratered the U.S. economy and is now widely known as a rapist and tax cheat—could not possibly have lost a U.S. election unless the liberals and the socialists stole it from him.”

We’re working on a shorter identifier. “Seditionists” will work fine, however.

Despite the wide representation of lifestyles represented by those who responded to Trump calls— featuring everyone from white conservative real estate agents who believed themselves too important to go to jail to white conservative yoga instructors who believed themselves too important to go to jail—everyone in the crowd shared a common belief that they acted on well before they partnered with violent militia members to storm the Capitol by force. Each were there that day because:

• They were furious that Donald Trump had not won the election.

• They were willing to believe, based solely on Republican propaganda claims, that he had not won the election because their political enemies had “stolen” it from their rightful winner.

• They were willing to respond to a call to come to Washington, D.C., for a “rally” or “march” specifically sold as an attempt to intimidate Congress into overturning the results of the election so that Trump could retain power.

They agreed to take part in an attempted coup not when they turned violent and caused the certification of the election results to be temporarily halted as lawmakers fled from the mob. They agreed to take part in an attempted coup when they responded to Trump’s call to assemble in Washington for the explicit purpose of challenging the election. Each in the crowd was of the belief, in that moment, that their own personal feelings were reason enough to challenge the peaceful transfer of power that marks our democracy.

Whether they believed the lies justifying the attempt or did not is irrelevant; even if they did, their proposed solution was to demand that Congress ignore the Constitution and erase the election’s results. They did not care that none of the supposed legal experts on the case were able to provide proof compelling enough to convince a single federal court of their claim. They did not care that, of the uncountable number of officials whose jobs center on protecting the integrity of their elections, none were stepping forward to provide evidence of such corruptions.

They came to the conclusion that because nobody else inside or outside their movement had been successful in validating Republican claims of fraud, they would use their own bodies to assist an effort to erase the election loss regardless. They knew what Trump had called them there to do. They knew that it was timed to coincide, exactly, with the official acknowledgment of the election’s results by a joint session of Congress. They knew that their purpose was to assemble to help foil that constitutional task.

If the crowd was self-selected for those willing to quickly descend into violence to get what they demanded, it is not a surprise. The crowd consisted of those in America who were specifically willing to challenge the Constitution and the election both, rather than abide a loss. It was a crowd of those both eager to believe conspiracies and convinced that they themselves were the tools that would set things right. If those real estate agents or yoga instructors were only haphazard in their violence, compared to the professional militants who more methodically attacked police and went hunting for lawmakers, it was due to their inexperience.

I do not think we need to have much sympathy for Trump supporters whose first acts of political violence were in support of an American insurrection that threatened, however incompetently and implausibly, the peaceful transfer of democratic power. Attempting to erase an election through the use of physical intimidation is an unforgivable crime against the country, whether or not the resulting violence was premeditated or only opportunistic. It is absolutely the sort of crime that should ruin a person’s career and social status, and the sort of crime that suggests the perpetrator values the grievances bouncing around in their own head far more than they value the society and laws that look to constrain them.

Yes, a number are sorry now that they understand that Republican leaders fed them a series of absolute lies in order to goad them into action. But they were still goaded into action. Even if the lies they believed had been true, it was this crowd that decided the appropriate response was to ignore the elections officials, courtroom rulings, and law, taking it upon themselves to erase it all and declare themselves the final arbiters of which elections are valid and which are not.

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This week, Daily Kos won a stunning (albeit preliminary) victory in a California court over Nazi-cavorting anti-vaxxer Robert Kennedy Jr.  

Kennedy is suing Daily Kos, trying to force us to reveal the identity of one of our community members. We’re telling him to go pound sand. Lawyers are involved. You can get the background here, here, here, here, here, and here. The great folks at Public Citizen are providing that community member with pro bono legal services.

This is a big deal, and a real challenge to not just our free speech rights, but your ability to engage in the political process without the fear of being persecuted in your community, workplace, or social circle. We have asked you to help fund the expensive legal process, which spans two states (New York and California), and you’ve delivered. Together, we’re not going to let Kennedy’s unearned wealth violate your rights.

To summarize where things stand, Kennedy sued us in a New York state court. The trial judge allowed Kennedy to issue a subpoena for the identity of our community member, a decision we believe to be grossly in error and have just appealed. Pending appeal, we asked for a stay on the subpoena, but the New York court has so far refused.

Kennedy’s problem is that New York courts can’t enforce a subpoena against a California company. (Public Citizen’s Paul Alan Levy explains why in this blog post, if you’re interested in the legal rationale.) And we sure as hell weren’t (and aren’t) about to volunteer the information. Therefore, Kennedy had to sue us in California court to enforce that subpoena.  

After months of legal wrangling, the California court finally issued its decision, and it was essentially one big “nope” to Kennedy, for now.

In short:

1) the subpoena is stayed pending the resolution of the New York appeal (in other words, it’s currently unenforceable),

2) the California court will take notice of the legal standard used by the New York court in making its decision,

3) if New York doesn’t use the same standard that California courts use or something similar (giving anonymous speech a high degree of First Amendment protection) and rules for Kennedy, then:

4) the case will still need to be litigated in California, and Kennedy will have to show that the subpoena the New York court allowed to issue is actually enforceable in California against a California company. My home state currently has stronger First Amendment laws than New York, though our New York appeal is trying to change that.

The end result is that New York has become just the first hurdle to Kennedy’s effort to dox our community member. Even if Kennedy wins in New York, he will still need to persuade a California judge to enforce the subpoena, and he’ll have to do it under legal standards specifically developed by California courts to protect constitutional rights and guard against the kind of harassment that Kennedy is attempting.

As a practical matter, there’s zero reason for Kennedy to continue this case, except that we know that there’s nothing rational about this case to begin with. Kennedy claims it’s about being defamed, but he hasn’t sued any of the other media organizations that reported on his attendance at the Berlin Nazi rally. He hasn’t sued Daily Kos for repeating, over and over again, that Robert F. Kennedy Jr. cavorted with Nazis at an anti-vaxx rally that was organized and promoted by fascist right-wingers. This has always been about unmasking an online critic and nothing more.

I’ve appended the full California decision below. We’ve been able to fight this (ongoing) battle because you’ve had our back, helping fund this litigation. Furthermore, Public Citizen has stepped up to defend pro bono the community member Kennedy is trying to unmask. As always, I urge you to donate to Public Citizen for their courageous defense of our rights to political participation, as well as to Daily Kos so we can continue to fight this as long as Kennedy insists on tilting at this windmill.  

———-

SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA

Date: 11/08/2021
Time: 8:14 AM
Dept: 16
Judge: Michael Markman

The Court, having taken the matter under submission on 11/02/2021, now rules as follows:  

Petitioner Robert F. Kennedy, Jr. seeks to reveal the true identity of an anonymous blogger using the handle “DowneastDem.” DowneastDem posted an entry on the “Daily Kos” site about Mr. Kennedy’s speech to an audience in Germany. Mr. Kennedy says DowneastDem’s post was defamatory. He persuaded a court in Westchester County, New York to issue a pre-suit subpoena to Kos Media, LLC d/b/a Daily Kos (“Daily Kos”) seeking to obtain information about DowneastDem’s identity. KK

The Westchester County decision is on appeal in New York. Nonetheless, on June 23, 2021, the DowneastDem blogger filed a Petition to Quash Subpoena pursuant to sections 1987.1, 1987.2, and 2029.600 of the California Code of Civil Procedure (RG21102647). And on July 30, 2021, Mr. Kennedy filed a Petition to Compel Kos Media, LLC to Comply with the Subpoena (Case No. HG21107215). Since the identity of DowneastDem is unknown, the Court will refer to the blogger with “they/them” pronouns.

A different bench officer previously denied an ex parte motion to consolidate the two cases without prejudice to a noticed motion. On its own motion, the Court now consolidates the two cases. The two cases concern the same subpoena, and the issues raised in the two cases are substantially similar. Consolidating the cases will benefit all concerned by coordinating hearings and by ensuring consistent adjudication of overlapping identical issues.

The Court will exercise its discretion to STAY both the Petition to Compel and the Petition to  Quash pending the outcome of the appeal of the Decision and Order by the Supreme Court of the State of New York, Westchester County, in Kennedy, Jr. v. Kos Media, LLC (Index No.:  65319/2020), dated April 16, 2021 (the “New York Decision”).

Daily Kos and DowneastDem are collaterally attacking the New York Decision here. Many,  though not all, of the arguments raised by Daily Kos in opposition to the Motion to Compel, and by DowneastDem on their Motion to Quash, were raised in the first instance in the New York action. There, the New York court determined that Mr. Kennedy “alleges sufficient facts, which  fairly indicate that he has a claim for defamation and is thus entitled to pre-action discovery limited to obtaining the identity of prospective defendants.”

New York authorities are apparently split concerning the test for determining whether to issue a  subpoena to reveal the identity of an anonymous speaker. One of New York’s four appellate departments—the Second Department—has held that it is sufficient to simply allege facts that would support a claim for defamation. (See New York Decision at 3 [citing Matter of Konig v.  WordPress.com, 112 AD3d 936, 936 [2d Dept. 2013]; Matter of Toal v. Staten Island Univ.  Hosp., 300 AD2d 592, 592 [2d Dept. 2002]].) Westchester County apparently looks to the law of the Second Department, and the New York Decision follows that approach. 

California law, however, typically requires a prima facie showing with evidence to support a  defamation claim before permitting the use of a subpoena to pierce a speaker’s anonymity (California thus appears to be in line with New York’s other three appellate departments). In Krinsky v. Doe 6 (2008) 159 Cal. App. 4th 1154, 1172, the Court of Appeal conducted a searching analysis of the law at the time concerning the use of subpoenas to reveal the identity of an anonymous speaker. The Krinsky court ultimately concluded:

We therefore agree with those courts that have compelled the plaintiff to make a prima facie showing of the elements of libel in order to overcome a defendant’s motion to quash a subpoena seeking his or her identity. Where it is clear to the court that discovery of the defendant’s identity is necessary to pursue the plaintiff’s claim, the court may refuse to quash a third-party subpoena if the plaintiff succeeds in setting forth evidence that a libelous statement has been made. When there is a factual and legal basis for believing libel may have occurred, the writer’s message will  not be protected by the First Amendment.

(Id.)

Daily Kos and DowneastDem argue at length that the New York Decision is wrong. They argue both that Mr. Kennedy both failed to allege facts sufficient to state a claim for defamation, which would not pass even the Second Department’s test, and failed to present evidence to support a prima facie claim for defamation, in violation of the test set out in Krinsky (as well as the test used by New York’s First, Third, and Fourth Departments, according to the parties’ arguments at the hearing in this case).

A stay of this case may permit the New York appellate process to address whether the New York  Decision made an error in holding that Mr. Kennedy set out allegations sufficient to state a claim under New York’s defamation laws. As the Krinsky decision illustrates, this Court must look to New York’s defamation laws to determine whether Mr. Kennedy adequately alleged facts sufficient to state a claim for defamation. Further, this Court’s interpretation of New York law will determine whether, under Krinsky, Mr. Kennedy has made a prima facie case (with admissible evidence) to support his defamation claim such that this Court may enforce the subpoena issued in New York. That question may be determined with finality in connection with the appeal—particularly if the New York Second Department comes in line with the First, Third, and Fourth Departments (and Krinsky).

Stated another way, if the New York appeal applies Krinsky and finds that Mr. Kennedy satisfied that test, then full faith and credit would seem to dictate that this Court should enforce the subpoena. If the New York appeal declines to apply Krinsky but finds that Mr. Kennedy failed to adequately allege a defamation claim, then again full faith and credit would seem to dictate that this Court should not enforce the subpoena. If the New York appeal declines to apply Krinsky, and finds that Mr. Kennedy adequately alleged a defamation claim, then this Court will seek further briefing on (a) the full faith and credit question, and (b) the distinction between issuance and enforcement of the subpoena, so that the Court can determine what test to apply to the enforcement of the subpoena.

In summary, the New York court must determine whether the subpoena was properly issued in the first instance. If it turns out that the subpoena was not properly issued, then the question of enforcement of the subpoena will become moot. If Mr. Kennedy prevails, the appellate decision could well be relevant to findings that this Court would need to make concerning enforcement of the subpoena. The parties would also be in a better position to more accurately brief the issue of full faith and credit along with the issues of claim and issue preclusion that typically would bar a collateral attack on the New York Decision.

Daily Kos and DowneastDem raise a number of arguments that are not discussed in the New  York Decision. Those arguments do not impact this Court’s decision to await the outcome of the New York appeal before rendering a decision on enforcement of the subpoena. Daily Kos and DowneastDem further argue that California’s shield law for news reporters should apply to DowneastDem. And they argue that California law protecting disclosure of a confidential source might apply to Daily Kos.

DowneastDem further contends the New York courts lack personal jurisdiction over them. The personal jurisdiction issue seems to be a red herring, however, because the New York action concerns a subpoena directed to Daily Kos concerning DowneastDem’s identity (and not a  subpoena to DowneastDem). There appears to be no question concerning whether the New York court had jurisdiction to hear a case about a subpoena to Daily Kos. And the parties do not point to law that a pre-suit subpoena in New York to identify potential defendants must be for purposes of filing the lawsuit in New York rather than in some other jurisdiction.

As interesting as it could be to decide all of these issues right now, discretion is frequently the better part of valor. The Court finds that a stay “will promote the ends of justice” by allowing the New York appellate system to adjudicate the attack on its trial court’s subpoena. (See Cal. R. Ct. 3.515(f).) During the oral argument on the motion, Daily Kos confirmed that it agreed with the Court’s tentative ruling to await the outcome of the New York appeal.