Trump’s Unindicted Co-Conspirators in Congress

And other analysis of recent news and election trends.

Today’s post will feature several shorter takes:

• Congressional Republicans remain Trump’s unindicted co-conspirators.

• Gaslighting the mainstream media: The SCOTUS ruling on Allen v. Milligan. 

• A new look at Latino voting trends.

• Why Democrats are still winning despite apparently-higher turnout from Trump supporters. 

First, a few even shorter notes:

The DOJ report on the Minneapolis police: Today’s Juneteenth celebration comes in the shadow of the unsurprising report on the routine civil rights violations committed by the Minneapolis police department. It’s also a reminder that more than three years after the brutal police murder of George Floyd and the largest outpouring of non-violent mass protest in American history, fatal police shootings have actually increased somewhat overall (at least 999 in 2019, 1,021 in 2020, 1,052 in 2021, and 1,020 in 2022.) Meaningful reform has not materialized – but a backlash against acknowledging the role racism plays in our policing and politics has. We’ve seen this not only in MAGA’s escalating attacks on racial justice, but also in a more subtle way from mainstream and liberal opinion leaders who would consider themselves committed to civil rights. Such commentators are often eager to find reasons other than race to explain the nation’s toxic divisions – urging a kind of reconciliation with “non-college voters” who hold more “conservative” views on “cultural” issues. The result is a sort of historical revisionism which, like the emergence of the “lost cause” mythology after the Civil War, rehabilitates the notion that America is divided by those seeking justice rather than by those denying it. 

RIP William Spriggs: I want to note with deep regret the passing of a long time colleague at the AFL-CIO, William Spriggs. As the New York Times’ obituary relates, Bill was “One of the most prominent Black economists of his generation” who was also “an outspoken and frequently quoted advocate for workers, especially Black workers.” His contributions should be fully recognized. He will be missed.

Wildfires and the Clean Air Act: If you live in the Northeast corridor, you recently saw firsthand the effects of Canadian wildfires on air quality. Leaving aside the very worst days, my reaction has been that when I was growing up, the word we had for what we’re experiencing now was simply “outside.” Although the Clean Air Act obviously cannot address wildfires, this moment should convey how successful that law and its associated regulations have been as the Supreme Court proceeds with its agenda of dismantling the administrative state. It’s also a moment for taking note of a new study which shows the dramatic extent of the “triple inequality of the ‘global climate problem.’” The Climate Inequality Report 2023 shows how in 1990, two thirds of carbon inequality was between countries; now, two-thirds is within countries.

ICYMI: My latest Substack post, The Emerging Anti-MAGA Majority, was featured in Ron Brownstein’s excellent Atlantic piece about Gen Z voters.

Congressional Republicans: Trump’s Unindicted Co-Conspirators

Before both of his arraignments, Trump issued the same kind of invitation he offered in December 2020, when he urged his followers to come to DC on January 6th – “Be there. It will be wild.”¹ To say that the response this time was underwhelming would be an overstatement, yet Trump still has a commanding lead over DeSantis and the rest in his quest to reclaim the White House. What gives? 

Some give credit to the prosecution of, and sentences given to, the January 6th rioters. And it's true that this was both a deterrent, and a reflection of resumed efforts by DHS and the FBI to prioritize disrupting right wing networks, something the Trump White House resisted.² But it is also true that showing up outside the courthouse in either instance would not have exposed people to any kind of legal jeopardy. 

There is a much more important factor that remains stubbornly unnoticed. The deadly assault on the Capitol would not have been possible without Senators Cruz, Hawley, and others announcing that they were going to challenge the Electoral College vote. The difference between Trump’s recent futile calls and the one he made for January 6th is that those Republican congressional leaders – especially in what they said outside of the mainstream media (on Fox et al, as well as in social media and fundraising appeals) – created the illusion that coming to Washington on January 6th could actually overturn the results of the 2020 elections. In the fantasy world they breathed life into, those coming to Washington could easily imagine that they would soon be seen as patriotic heroes. They were not coming to Washington merely to “protest” or to show their solidarity with Trump, but to literally take back their country. 

It’s well past time to acknowledge that Republican congressional leaders are Trump’s perennially unindicted co-conspirators. Without them, Trump would have been unable to get away with his crimes (and possibly unable to commit them in the first place).

It’s important to remember that before January 6th, congressional Republican leaders knew that the Justice Department could find no evidence of fraud in the election. They knew that Trump knew this too, since Barr et al had told him the fraud claims were “bullshit.” 

Yet in the weeks and days before January 6th, they still rallied Trump’s supporters around the idea that the Electoral College results could be successfully challenged. 

And by the time the vote restarted in the evening of January 6th, GOP leaders already knew some of the most damning details about Trump’s criminal actions that the January 6th Commission would later surface. They knew that:

• Trump summoned and incited a mob that included armed militia members to attack the Capitol building to prevent the pro-forma certification of the election;

• For three hours, Trump did nothing to respond to urgent calls for help;   

• Members of the mob had chanted “hang Mike Pence,” and Trump tweeted inflammatory attacks against Pence during the riot;

• Even after the riot, Trump disavowed nothing. 

Yet they still went ahead with the vote to challenge the Electoral College count. 

What’s more, McConnell and McCarthy knew that members of their caucuses were actively participating in and assisting with Trump’s plans, and that some were almost certainly breaking the law doing it (at a minimum, the ones seeking pardons).  

What did they do?

• Voted against impeaching or convicting Trump;

• Voted against and filibustered the creation of an independent commission that would have quickly informed us of what we only much later learned more details about;

• Filibustered allowing debate on election reform legislation;

• Refused to cooperate with the January 6^th Committee and attacked it as a partisan witch hunt.

The mens rea couldn’t be clearer. Trump’s unindicted co-conspirators in Congress knew what they were doing.

Allen v. Milligan: Voting Rights, Democracy, and SCOTUS Gaslighting

Obviously, the SCOTUS decision in Allen v. Milligan was a welcome (and surprising) relief from the long string of decisions that have eviscerated the Voting Rights Act. Here, a few thoughts about the reaction we’ve seen from commentators. 

What the headlines did and didn’t say

Typical was, “If Democrats Win Back the House, They Will Have John Roberts to Thank.” It is important to remember that a swing of five seats would give Democrats the majority, and that analysts see this decision creating four or five districts that would lean heavily toward the Democrats. 

The headline we should have seen was something along the lines of, “Republicans Have John Roberts to Thank for Their House Majority.” That’s because the Supreme Court’s recent decision does little more than undo what the Court did in February 2022 when it prevented the maps from being drawn for that year — ones that can now be drawn for 2024 and beyond (unless, as is possible, they return to their traditional dismantling of the Voting Rights Act and find some thinly veiled excuse to reverse course in a future term).

As I pointed out the week after the 2022 midterms, the Federalist Society majority on SCOTUS “literally handed four seats over to the MAGA Republicans.” Not only was this point not in any of the analysis stories about the Republican win – the main thrust of every story in major mainstream media that touched on the role of redistricting was to rebut any notion that redistricting had contributed to the Republican margin at all. 

SCOTUS is gaslighting us

In his just-published, essential book, Supermajority: How the Supreme Court Divided America, Michael Waldman writes, “liberals must fall out of love with the Supreme Court.” In any abusive relationship, the abuser is rarely horrible all the time; the delivery of intermittent rewards is one of the most powerful ways to ensure compliance and dependence. In this case, the intermittent rewards are rulings such as the one that preserved the ACA. 

These intermittent rewards can cause us to give the Federalist Society justices more credit than they deserve. It persuades us that they are capable of impartially ruling on cases, and that the game is not so rigged – if we make the right arguments, we can win. But to believe that is to, among other things, believe that Shelby, Citizens United, Dobbs, etc. could have been won if the right arguments had been made. If we properly understand that those decisions were political, and calculated to realize a revanchist agenda, why do we find it so difficult to believe that decisions like Milligan are just as political and calculated? Given how much damage has already been done – and how much more damage they still plan to do – they needed to throw a few crumbs to placate the people whose need to validate the court is greater than their good sense.

Furthermore, given Roberts’ track record, taking this ruling as a positive sign for the Court’s legitimacy is akin to thanking the bully on the days he doesn’t steal your lunch money. To the extent that coverage mentioned Roberts’ previous rulings on the Voting Rights Act, it was only in the effort to demonstrate how surprising the result had been. Nowhere was the ruling used as an opportunity to reveal the enormous consequences of those previous decisions on American democracy. 

Sportscasting democracy

The mainstream media has narrowed its aperture to the point that the only question worth asking seems to be whether a given ruling will help Democrats or Republicans. Remember, the purpose of the Voting Rights Act was not just to abolish Jim Crow barriers to Black participation; it was to help ensure that the voices of Black voters would be properly heard in legislative decision making. Even if individual Black people don’t face discriminatory barriers to casting their ballots, their interests are discriminated against if the communities in which they are an overwhelming majority are divided into multiple jurisdictions in which they are minorities. 

Should the ruling have its anticipated effect, in 2025, there will be four or five more representatives from African American communities in the South in the Democratic caucus. But we’re only hearing about this in terms of how it might help Democrats, and not how it will make these communities more democratic in the sense of being more fairly and fully represented.  

The media also generally fails to grapple with how redistricting can affect what happens in the primaries – and how this can cause a massive disconnect between what people in a district actually want, and what their representatives vote for. Consider pre-viability abortion bans. A recent 50 state survey conducted by PRRI reconfirmed what has been the case for quite a while – that not only does a majority of Americans oppose the overturn of Roe vs Wade, but there is not a single state where the majority supported the overturn. (The closest was Arkansas, where the support for overturning is estimated at 48%.) Looking at the PRRI survey results, not much more than a third of those living in states with pre-viability abortion bans approved overturning Roe. However, at least 58 percent of Republicans in those states supported overturning Roe. Even more importantly, and obviously correlated, at least 81 percent of white Evangelicals in those states supported overturning Roe. Since there are few congressional districts in those states in which white Evangelicals constitute less than 40 percent of GOP primary voters, and because nearly none of the seats held by Republicans in those states are considered competitive, there’s no mystery as to why. 

Latino Voting Trends

I highly recommend the midterm post-mortem report just released by Equis. Catalist data lets us see how, more than nearly any other demographic group, Latino partisanship in presidential and congressional races has varied. With Latino voters, House Democrats fell 7 points short of Obama’s margin in 2012, 19 points short of Clinton’s in 2016, and only 2 points short of Biden’s in 2020. 

This data suggests that, with the exception of the 2018 Blue Wave election, House Democrats' margin with Latino voters has actually been fairly stable beginning in 2016 (22, 22 and 25 points). In other words, Latino voters’ support for a standard Democrat dropped in 2016 – but Clinton dramatically overperformed a standard Democrat among Latino voters. 

Here’s another data set that corroborates the point using election results by congressional district, calculated by Catalist. As you can see, the higher the Latino density in a congressional district, the better Clinton did relative to congressional Democrats.  

Now, anyone seeing this shift who has not been bombarded with the conventional wisdom would not be surprised that the first Black presidential incumbent, and the first woman candidate for president who leaned in heavily to embracing diversity (Stronger Together), would do much better with voters of color than the standard Democrat, or that Joe Biden, who campaigned as that kind of standard Democrat, would not see much difference from House Democrats by voters of color. 

In particular, it’s likely that Clinton’s foregrounding of Trump’s anti-immigrant and anti-Latino hate speech helped her do much better with Latino voters. According to Pew, ahead of the 2016 election, immigration was “a top voting issue for Latino voters, second only to the economy.” Pew did not find that to be the case in 2020, when according to the Wesleyan Media Project a much smaller share of Trump’s advertising addressed immigration than in 2016, and Biden’s less than Clinton’s. It seems unlikely that linked fate was felt as acutely in 2020 as it was in 2016.

Thought experiment: Had Biden’s election been the first in the sequence, then pretty much everyone would have understood why Clinton and Obama did better with voters of color. But because we have a strong cognitive preference for explaining changes over time in terms of what happened than in terms of what didn’t happen, all of this has managed to remain hidden in plain sight. 

The Trump Turnout Paradox

In my last Substack post, The Emerging Anti-MAGA Majority, I made the point that as a group, those who did not vote in 2016 but have voted since are for the most part more Democratic than those who voted in 2016, and that in all of the Blue and Purple states, those new post-2016 voters are net Democratic. Thus, Democrats win Purple states when enough of those new voters come to overwhelm the advantage that Republicans have with those who voted in 2016. But Democrats have not been able to win in Red states because those who did not vote in 2016 but have since are either also Republican leaning, or are only barely Democratic leaning.  It’s why since 2016, to a degree that seems unprecedented,³ very, very few of the races that were forecast to be “competitive” (by the standards for that judgment before 2016) have ended up being competitive in fact in Red and Blue states. The old heuristic that “persuasion” and “turnout” move in the same direction still mostly holds up in those states. 

At the same time, it also seems to be true that those who support Trump and MAGA have been turning out at a higher rate than those who oppose them. In 2020, according to the US Election Project, there were 240 million Americans eligible to vote, of whom about 155 million voted for either Biden (81 million) or Trump (74 million). In its validated voter study for both the 2020 and 2016 elections, Pew also reports on the presidential preferences of those who did not vote. Here’s what they found: 

The striking difference between 2016 and 2020 was the change among those who hadn’t voted. In the graph above, look at how much taller the “non-voters” bar is in 2020 than in 2016. That’s because in 2020, the share of voters who wouldn’t indicate a candidate preference (who aren’t shown in the graph) dropped from a full third (33 percent) to just 15 percent. In other words, the experience of the four Trump years more than cut in half the share of voters who had no preference between Trump and the Democratic nominee (Biden or Clinton). And that shift very much favored Biden, taking the non-voter margin from Clinton +7 points to Biden +15 points.

Consider this thought experiment. The following graph shows what the 2016 and 2020 elections would have looked like if everyone who expressed an opinion to Pew had also voted, with the dark blue and red representing how people actually voted and the light blue and red representing those who did not vote. 

Now, let’s take this calculation a step further. In 2016, Clinton’s 65.9 million votes represented 66 percent of those who did or would have voted for her. But Trump’s 63 million votes represented 70 percent of those who did or would have voted for him. It’s a glass half-empty or -full question to ascribe that to Trump’s appeal or to Clinton’s lack of appeal, although I’m inclined to ascribe it to the latter (1) in light of the turnout rates in previous elections, and (2) that Trump ran behind House Republicans. 

Now, if we fast forward to 2020, using the same logic, we can see that the turnout rate for Trump supporters rose by three points to 73 percent, while the rate for Biden supporters increased by just a point to just 67 percent. Thus, the turnout gap grew from 4 to 6 points, as the next graph shows. 

It’s always best when addressing these kinds of questions to find independent approaches to see if similar conclusions can be reached. To do that, we’ll look at the same question using the Catalist voter file instead of polling. Catalist scores every record on its file with what they call Vote Choice Index (VCI), which is intended to rate the likelihood of that voter having voted for a Democrat. VCI is much more accurate than traditional polling-based modeling because scores are normalized to the actual votes cast in each precinct. Although not specifically intended to, the VCI scores track House Democratic performance more closely than they track presidential, but obviously the two are close.⁴ In both 2016 and 2020, the Catalist file includes 94 percent of the total number of eligible voters in the country.⁵ 

Now, after all that windup, what we find are very similar results, but we can also compare it to 2012. This data shows a partisan turnout differential as well, and shows it increasing over the last three cycles. 

Future posts will explore the sources of those trends.

1. You might also remember that after January 6th, right-wing extremists vowed to return to Washington for Joe Biden's inauguration ("We will come in numbers that no standing army or police agency can match.”

2. White House rebuffed attempts by DHS to make combating domestic terrorism a higher priority (CNN).

3. Based on Cook Report ratings - but, of course, those ratings go back only so far, so I cannot say so categorically. 

4. In 2016, Clinton received 2.6 points more than Democratic congressional candidates, and in 2020, Biden received 1.8 points more than Democratic congressional candidates.

5. Importantly, this USEP estimate differs from the more frequently seen Census CVAP (Citizen Voting Age Population) because it makes an estimate of those who, though citizens are not eligible to vote because, for example, they are in prison, on probation or parole, or are in a state in which felons cannot vote.) Thus, USEP’s CVEP (Citizen Voter Eligible Population) is more relevant to turnout questions and a better benchmark for administrative records. That said, it is important to remember that turnout as a percent of the citizen voting age population is a better measure of democratic participation given that CVEP reflects the disproportionate disenfranchisement of poor and minority Americans.