Bill Moyers

The criminal case against Donald Trump is just waiting to be made

What may be behind President Trump's refusal to concede the election, despite overwhelming evidence that he lost, is a desire for a pardon that might shield him from federal criminal prosecution once he leaves office. His former White House Communications Director, Anthony Scaramucci, has said as much. In effect, he wants a hardball deal. Joe Biden, to use Lincoln's words, commendably wants to "bind up the nation's wounds," "with malice towards none; and charity for all," and he may just be inclined to give Trump a pass so he can spend the next four years attempting to undermine the government. Indeed, he has started already.

Trump loves the pardon power. Just today, he pardoned his disgraced former national security adviser, Michael Flynn, who twice pleaded guilty to lying to the FBI about his contacts with the Russians. In addition to four Thanksgiving turkeys, he has pardoned only 28 individuals with close political and personal ties to himself, not a staggering number, but presumably, he is not finished yet. We can surely expect a flurry of pardons out of the White House in the 55 days before January 20, 2021.

Of course, Trump might try to pardon himself. Then, he won't need Biden, but legal scholars are uniformly of the view that self-pardon won't stick. "No man may be a judge of his own case," the venerable maxim goes. Some have suggested that he could resign, and have Mike Pence pardon him, but this is far-fetched and politically untenable. Smacks too much of Roy Cohn and Roger Stone.

President Gerald Ford made the right call when he gave Richard Nixon a blanket pardon in August 1974, although it cost him the presidency two years later. The pardon proclamation was silent on just what Ford was pardoning Nixon for. The text read that Ford as President was pardoning Nixon "for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in" from the time Nixon had taken office through the date of the pardon.

Ford, however, left us to speculate on what were Nixon's crimes. Was it the Watergate burglary, was it the cover up, was there obstruction of justice, the catch-all crime where someone tries to put his thumb on the scales of justice?

We are not a banana republic, and of course we should not criminalize policy differences. This would be a bad reflection on the United States. Of course, after the way Trump has behaved in respect of this election, our reputation around the world for upholding democratic values isn't roses anyway.

In Judeo-Christian thought, pardon is unthinkable without confession of sin, which leads to absolution. In "Merrie Olde England" where we found all these arcane concepts, the sovereign would only pardon the subject who confessed his crimes against the state.

Nixon never admitted what were his crimes, but Trump should as a pre-condition of any Biden pardon admit all of his crimes with specificity. If he refuses, no pardon.

There is rampant speculation that Trump may have committed additional crimes in connection with the election. His Oval Office conduct in pressuring Republican legislative leaders from Michigan to delay or revoke certification of an overwhelming vote in their state smacks of sedition and conspiracy to defraud the United States. Their stay at the overpriced Trump International Hotel where they wined and dined sumptuously smacks of bribery. At stake are the very underpinnings of our democracy. It would be shameful enough to do this before the election, but to hold out to Michigan voters that their laws assured them their votes for electors would count, is an abomination, which only gives comfort to the cynic and weakens the faith of the believer.

The Michigan votes will be counted and certified; so will Pennsylvania's, and the people's voice will be heard. "We the people," still have the call in this country. And, the attempt to deny them their franchise borders on criminal conduct.

There are a number of federal white-collar crimes that might be investigated and pursued once Trump leaves office. Among other things, there are financial crimes: money laundering and false financial filings in connection with the payments to porn star Stormy Daniels and Playboy bunny Karen McDougal. There is tax fraud and tax evasion, insurance fraud and election law violations. And there is the obstruction of justice in connection with the Mueller investigation, starting with the firing of Comey, and the other 10 instances cited in the Mueller Report. Mueller declined to prosecute Trump for this conduct because he was a sitting President, and under a Justice Department 1973 legal opinion, this is a no-no. When the Mueller report came out in 2019, more than 700 outraged former federal prosecutors from Republican and Democratic administrations signed an open letter stating that if those same acts had been committed by anyone but the president, they would have resulted in a felony prosecution.

There is bribery possibly involved in his accepting illegal emoluments from foreign governments, whose officials circuited in and out of Washington, stayed at his hotels, played at his golf courses, and purchased his amenities.

Early on, I was of the view that federal prosecutors ought to ignore all of Trump's commercial crimes. Some of them might be hard to prove, and they might have other fish to fry. Besides, the state authorities in New York, New York District Attorney Cy Vance, and Attorney General Letitia James will continue to investigate Trump, because, as everyone knows, they are not bound by a federal pardon.

But, Trump's most recent crimes are too serious to ignore. And to ignore them would be to ignore the rule of law. As The New York Times puts it in a rhetorical question: "Can America Restore the Rule of Law Without Prosecuting Trump?"

The attempt to subvert the election with no evidence is pardonable, but unforgivable. The Hatch Act makes criminal using one's official authority to influence a federal election and the president is not exempt from its provisions.

To ignore the rule of law does not bind the wounds; it wraps them in sackcloth and ashes. Other countries do not believe their leaders are above the law. Sarcozy is standing trial in France for corruption. Israel will proceed to try Netanyahu for his alleged crimes. They believe in an "eye for an eye." As Colonel Alexander Vindman said so stirringly at the impeachment inquiry: "This is America. Here right matters." Here, the people rule.

'Terrifying people': Experts explain how Trump's 'specious' lawsuits will never work

ANNOUNCER: Welcome to Moyers on Democracy. President Trump still will not admit he lost. He tweets and repeats the lie that the election was a fraud, the vote rigged, the election stolen. There are fewer than ten weeks before he must leave office, but he refuses to cooperate with Joe Biden in the transfer of power, denying the man who beat him by over five million votes the resources usually provided to a president-elect. Trump has flooded the courts with lawsuits contesting the results, seeking recounts, trying to stop the certification of ballots in battle ground states. Washington grows more paralyzed, the country more polarized, the rule of law in limbo. Here to assess what’s going on are two of the country’s most experienced lawyers in election litigation. Daryl Bristow is the former senior partner of the multinational law firm Baker Botts LLP, based in Houston. A graduate of the University of Oklahoma and Harvard Law School, he worked for George W. Bush’s legal team on two Florida lawsuits regarding balloting for the 2000 presidential election. David Berg founded the firm Berg & Androphy, with offices in Houston and New York City. He has recently taken Trump and others to court over their efforts to use the Postal Service to discredit and dismiss mail-in ballots. He’s written two acclaimed books — the memoir RUN BROTHER RUN, and THE TRIAL LAWYER: WHAT IT TAKES TO WIN. Here to talk with Daryl Bristow and David Berg is Bill Moyers. BILL MOYERS: David Berg and Daryl Bristow, thank you for joining me. DARYL BRISTOW: Happy to be here. BILL MOYERS: One headline after another in the last few days has described Washington in a state of chaos. Does it appear to you to be that bad there? DARYL BRISTOW: The first thing I think about is the tense time we live in, because politics has gotten to be almost a religion. And it’s turned people into a religious fervor. Friends, close friends, people that I have long-standing relationships with– there’s a strain now when we even think about talking about politics because their views are extreme. And they’re extreme in an atmosphere of mendacity; lies and liars. It seems like that’s acceptable as long as you achieve the bottom line on the lawsuit, although, frankly, I don’t see much to the lawsuits. DAVID BERG: On the issue of these lawsuits, they’re terrifying people. I’ve gotten emails the last few days asking if Trump’s lawsuits are going to upset the results of the election. And, as Daryl and I both can tell you, the lawsuits are specious. The one that’s gotten the most attention is the one filed in Pennsylvania where the lawyers are attempting to shut down the certification of the Pennsylvania vote, which I can tell you right now, for a number of reasons, that’s never going to happen. BILL MOYERS: Have the Trump lawyers won any of these many suits they are scattering across the country? DAVID BERG: They’ve won a modest order out of the Supreme Court. Justice Alito agreed to refer the question of whether or not, in Pennsylvania, the ballots that were received after Election Day were segregated from those received before Election Day. But it’s absurd because they were segregated. And the election was decided on votes received by November 3rd. So, it’s absurd. If your listeners want to, go to the website of Democracy Docket and you will see that, of all the cases that have been filed– the case where they’re asking to shut down the certification in Pennsylvania, one of the things that you’ll find is that they drew a judge who was appointed by Barack Obama and he’s got an excellent, scholarly past. And I disagree with Justice Roberts. There are Trump judges and there are Obama judges. So, we’ve got a hell of a shot at seeing that knocked out quickly. DARYL BRISTOW: You know, David, I will say this. No question, you have judges who’ve been appointed and they have allegiances. But at least my experience in 2000 was that those judges did the right thing. we had concerns about some of the judges in a situation as serious as the one we were in. They did the right thing. So, I believe, in the end, although there’s going to be a lotta speculation and a lotta fear, I think the system will work. And— DAVID BERG: To your point, Daryl, I have what I call the Andy Hanen rule. Judge Hanen is a very conservative judge. And about a week ago, a couple of very right-wing plaintiffs filed suit in his court seeking to disqualify 127,000 votes that had been cast around Houston in Harris County at drive-through ballot boxes. And Judge Hanen’s response was, first of all, the Supreme Court had approved establishing these ballot boxes where you could just drive through. But he said, you’ve come to me at the last minute, he was obviously perturbed with that, trying to change the rules. Secondly, he said, I have questions about the legality of these drive-through ballot boxes. It has to do with what’s called legislative deference, that the local officials in Houston who set up these ballot boxes had no right to make that change. But he said, even if I found it illegal, I would still count those votes. And one of Daryl’s points that he’s made repeatedly that it’s absolutely true, you have these innocent voters who rely on officials, for instance, in Pennsylvania on the Supreme Court, saying if your vote is postmarked timely and comes in after the election it’ll be counted. BILL MOYERS: Daryl, you mentioned your experience. The fight you were in, what was that, briefly? DARYL BRISTOW: I represented Bush and Cheney. In 2000, we had three election contests — the Bush v. Gore case, which we all know well, and then two mail-in ballot cases, Seminole County and Martin County, where the Democratic people, were essentially attempting to invalidate 25,000 ballots because the ballot request forms had incorrect voter registration numbers. And the Republican representatives had gone in and corrected those numbers; a violation of Florida law. So, there was a technical violation. And the contention was that because the law had been violated with regard to process, that voter’s ballot should be discounted. And if they won those cases, Bush would’ve lost the presidency. Our position was you cannot set up a system, have a supervisor of elections send out the ballot forms, have the voter actually cast the ballot– all of that, admittedly, the voter had attempted to cast the ballot, had casted the ballot and the Florida Supreme Court confirmed what was state, federal and constitutional law. And that is, you don’t invalidate, you don’t disenfranchise a voter after the fact when they have relied on the system in order to cast their vote. BILL MOYERS: Does that experience connect in any relevant way to what’s happening right now with all these suits that the Trump team has filed? DARYL BRISTOW: Well, you know, think about the fact that the Bush campaign, back then, was defending the voting system, was defending the integrity of the ballot. The Trump administration basically is trying to dismantle the integrity of the ballot, disenfranchise voters who innocently cast their ballots. That experience was where the system was tested in one state where there was a few hundred votes’ difference. Here, we’re talking about five states and a huge amount of ballot difference, and over 5 million votes in the popular vote; a very different situation. A lot less room to stand up and question the election. BILL MOYERS: David, the last time you and I talked you had just filed a suit against the Postal Service. Where does it stand? DAVID BERG: We actually filed a suit against Trump, the Postmaster General DeJoy, and against the Postal Service. The object of the exercise was to reverse certain practices that DeJoy triggered. When DeJoy came on board at the Postal Service, DeJoy instituted policies that were, in fact, detrimental to the to on-time delivery of mail-in and absentee ballots. And he froze any more hiring at the Postal Service when thousands upon thousands of postal workers had been felled by the coronavirus or fear of going back to work because of it. Not just Judge Sullivan, the district judge in the district court of D.C. where we filed our suit along with three other suits, but three or four other federal judges issued preliminary injunctions. And by the way, there are eight preliminary injunctions telling the Postal Service, stop doing what you’re doing. Reinstitute late delivery, extra trips, hire personnel. Stop this hiring freeze. And, in our case it told them, you’ve got to reverse these policies. You’ve got to hire the personnel to get these ballots, these mail-in ballots and absentee ballots delivered on time. This led to a lot of issues, Bill. In Judge Sullivan’s case, we had hearings every day for two weeks or more, Saturdays and Sundays included, during which the Postal Service was required to produce evidence of the delivery rates of mail-in ballots and also absentee ballots. BILL MOYERS: Right. DAVID BERG: And what’s astonishing to all of us is that after these injunctions were sent to the United States Postal Service, the testimony was– from high-ranking officials, executive vice presidents who reported directly to DeJoy, a very critical factor– nothing happens there now without his approval. What we learned was that they treated the injunctions as suggestions. They did nothing different. And instead of improving on-time performance, instead of making sure these mail-in and absentee ballots were delivered on time, the performance rates deteriorated, degenerated badly. Now Judge Sullivan stayed very much on top of this. And he issued orders making sure that the various post offices were swept. In only about seven or eight jurisdictions, one example was Atlanta, where they had very sub-standard delivery of absentee and mail-in ballots. Houston, Detroit, astonishing low delivery rates. If I were of a conspiratorial mind, I would say that it’s very suspicious. And this was the basis of our lawsuit. Those three are Democratic strongholds. All three of them, Detroit, Atlanta, Houston had sub-standard delivery. There were some other areas like central Pennsylvania that had sub-standard delivery. But that was the exception. And that’s a Republican area. So, where does it stand now? We had this discussion with a court the other day. Are we now mooted? Biden has been elected. The ballots have been cast. No, it’s not over. That’s just one example. And this was my grave concern. We have a runoff in Georgia that could, as the judge pointed out, that could tip the scale of power in the Senate. I mean, it’s a point that all of us know. And we cannot give the DeJoy-led Postal Service free reign over delivery of mail-in ballots. So, the case continues. And I think it will end in a consent decree in which the just the Postal Service, through its lawyers at the Justice Department agree that they will never institute the kind of destructive policy, the termination of extra trips by the Postal Service, of late trips, of hiring the personnel they need. That they never again will do that during an election season. BILL MOYERS: You’re looking to the future as well as to the recent election. DAVID BERG: Absolutely. We want to not only put an end to what they’ve been doing that impedes the delivery of mail-in and absentee ballots. But we want to stop it from now on in every election year. We can never have this kind of interference. DARYL BRISTOW: David, a question I have about the lawsuits– when we’re sitting here now in a situation where most mail-in ballots tend toward President-elect Biden, even if ballots didn’t make it to the polling places, what difference does it make, and what’s the endgame for your lawsuits at this point? DAVID BERG: We had this discussion with the court. Judge Sullivan has issued orders compelling the post office to do sweeps to make sure nothing is left behind. And what the endgame is now, at least from my legal and a political viewpoint– we’ve got the Georgia runoff and we have to keep our foot on the pedal to make sure that all the mail-in ballots are counted. DARYL BRISTOW: Got it, got it. BILL MOYERS: What did the two of you think when Attorney General Barr gave prosecutors around the country to investigate voter fraud claims? It’s unusual, isn’t it, since Justice Department policy prohibits any action that could influence the outcome of the election until the vote is formally certified, which will be December the 8th? Couldn’t the investigations provide the president more information for his lawsuits, if they uncover serious wrongdoing? DARYL BRISTOW: Well, let me preface my comments by the obvious. I’m a Bush Republican. I represented Bush and Cheney. I knew H.W. Bush well. And Barr was the attorney general under President Bush. I believe that how he has acted is unforgivable. I think he is simply fanning the flame to spread misinformation and speculation about something that is obvious anyway. If there were real fraud, if there was a real malfeasance, the Justice Department would be investigating it. You don’t need Bill Barr to make a comment like that to expect your Justice Department to do what they need to do. The point is there isn’t any real hard evidence of fraud. There really isn’t anything that we can see. You know, if Barr were going to be helpful, he would say, “All right, I’m ordering the Justice Department to step up because…” and then “Here’s the meat.” Well, where is the meat? It’s just not there. BILL MOYERS: Does it resonate with you in any way that the morning before he issued that letter the attorney general was seen entering and leaving Mitch McConnell’s Capitol Hill office and that, earlier, 40 Republicans in Congress sent a letter to Barr, asking him to get to the bottom of the voter fraud claims? Does that raise any suspicion on your part? DAVID BERG: I see a different kind of conspiracy, Bill, that really troubles me. If you connect the dots, the object of this exercise I think is twofold by the Republicans. They are attempting to undermine the belief that Biden was elected lawfully. There are 71 million people in this country who voted for Donald Trump. And I think Donald Trump is going to preside over his 71 million voters as if it’s a mini country. It is anti-democratic. I don’t know why these Republicans are so scared of him now. He’s toothless. But there’s two issues that really trouble me. The lawsuits themselves are designed to undermine confidence so that Trump can claim after the election Biden was not elected lawfully. And it’s racist at heart. What they’re saying is black folks have to cheat to be able to win an election. That’s the underlying appeal of the attack on the election. The second thing is, I’m terribly worried that the Biden folks are doing what they can. But the refusal to allow Biden full access, to be able to send his folks in to each department. You send folks in to find out what the hot spots are. In Trump’s case, he’s handcuffing Biden and I would be very fearful of some sort of terrorist attack or some incredible failure of security. I know Biden knows where the bathrooms are in the White House, as they say. But he can’t know all the dangers we face from the forces arrayed against the United States.
The lawsuits … [are] racist at heart. What they’re saying is black folks have to cheat to be able to win an election. That’s the underlying appeal.

— David Berg

DARYL BRISTOW: Bill, let me weigh in on what’s happening with the Republicans now in terms of their support of these conspiracy theories. I really believe that the Republican party is panicked over the proposition that they may lose the two races in Georgia for Senator, and that they have got to whip that base into a frenzy and energy them so that they can get that vote out in Georgia. And if they don’t get that vote out you may have a Senate controlled by the Democrats. I think that’s much of what’s going on. It’s shameful that that would be the case, but it is politics. BILL MOYERS: There’s a political scientist of note at the Hoover Institution at Stanford University. And he’s in a conservative environment. He told Evan Osnos of THE NEW YORKER recently, quote, “There’s no other way to say this. The Republican party, with notably few exceptions, has become a party of semi-loyalty to democracy. If you want to stop this, the answer is very simple: The Republican politicians who know better in the House, the Senate and the governorships have to speak up. If they don’t put the preservation of democracy and civility over their own political careers, we’re going to keep sliding down the path.” Does that make any sense to you as a Bush Republican? DARYL BRISTOW: I say amen to that. I voted as Biden had put it, as a character issue, as an issue of integrity, as an issue of what do we want to stand up and represent the face of our nation no matter what the politics are. I couldn’t find a 401K issue or a tax issue or another issue that was important enough for me to see a continuation of the personality that has put such a bad face on this country for four years. BILL MOYERS: David, I think I heard you say that the president as a lame duck has no ammunition in his rifle, that he’s just a noise-maker now. DAVID BERG: I did say that. I said there was a second thing that concerned me, Bill— BILL MOYERS: Yeah, yeah. DAVID BERG: And that’s his takeover of the Defense Department. There’s a lot of speculation about why he made the move with Secretary of Defense Esper who was a stalwart, a bulwark, against some pretty irrational moves that Trump wanted to make. Moves that would harm our defense. I think that Anne Applebaum’s TWILIGHT OF DEMOCRACY should send chills through any country where virtually 50% of the electorate is in, basically, in my mind, a cult following of Trump. I’m sure some percentage of the 71 million votes were not cast because they believe everything that Trump has to say. But there’s grave danger, as she points out, in the growing rise of right-wing governments. And Biden’s victory is a victory for democracy. The number of voters is a sign that democracy may in fact survive this. But I have grave doubts that our country is going to stop the slide toward an autocratic government, toward– we came so close. We’ve had a man in government who has crushes on strongmen, on Putin, Duterte, on Kim Jong-un says we had love letters. And how can people, how can 71 million people, my fellow citizens, vote for someone that obviously crazy? DARYL BRISTOW: Let me speak to it along the conservative side, on the Republican side– BILL MOYERS: Sure. DARYL BRISTOW: I don’t feel quite the way David does about all 70 million of those people who voted for Trump. I believe there’s a very substantial percentage that held their nose when they voted for Trump. Much of that vote is reflective of a concern that perhaps the Democratic party could go too far to the left. We have strong views, far left; we have strong views, far right. And I believe we are basically a in-the-middle, slightly-left country. And those people who were in the middle and even slightly left may have been voting for Trump out of fear that the political system may move too far to the liberal side. I don’t give up on the American people yet. I do not. I do believe we have a significant percentage that we’ve got to find a man like President-elect Biden to lead our country into a more moderate view and accepting the fact that we are a very different country than we were 200 years ago, in terms of the makeup of the people who live here and who must be cared for here. DAVID BERG: May I– Daryl disagrees with me so may I rebut my former friend, Daryl Bristow? Obviously, what this presidency has done for the American people, at least for my side of the aisle– I was brought up, Daryl knows, and you know, to believe that Republicans were born without opposable thumbs. I mean, we were a family of yellow Democrats. And what this has done for people like me– BILL MOYERS: I think in Texas, we call them yellow dog Democrats DARYL BRISTOW: That’s exactly right. BILL MOYERS: In Oklahoma, we call them yellow dog Democrats. But Arkansas may have a slightly different definition of a yellow Democrat than a yellow dog Democrat. DAVID BERG: Oh my God, I’m with two Oklahoma natives. I don’t know what to do, how to rebut two hillbillies who are ganging up on me. Okay? And Arkansas– I came from the highly educated part of the Arkansas because I got through grammar school. But what troubles me so deeply is, as a liberal Democrat, and I may be the only liberal Democrat, Daryl, you’ll be happy to know, really worried about the national debt. I think we have huge problems facing us and Biden has an extraordinary opportunity to become the FDR of this age. We have huge structural problems. We have huge societal problems. And I don’t give up on the American people at all. But I do think if you underestimate the people who believe blindly that what Trump says to them about fraudulent elections, you’ll never go wrong. They are absolutely a drain on democracy. BILL MOYERS: What both of you have said takes me back to the opening of our discussion. Every headline I’ve seen almost in the last two days talk about it. And one of my favorite writers, Tom Engelhardt, says “We’re in a gridlocked, post-election moment of previously unimaginable extremity in an increasingly over-armed, ever more divided country that used to be known as the “last superpower.”” He says, “With Donald Trump’s America still fully mobilized and ready for… well, for anything… don’t count on good tidings ahead.” Does that have your teeth grinding? DARYL BRISTOW: It does. It does. I wear my mouth guard during the day now. BILL MOYERS: Here’s another headline, David, from yesterday: “Trump’s Transition Chaos is National Security Nightmare.” He “…remains commander-in-chief for only ten more weeks, until President-elect Biden takes office in January. But during that time, he’s in a position to make destabilizing foreign policy choices that could… restrict Biden’s future policies.” So, while the president’s been tweeting like crazy on Twitter, his administration is elevating the risk of mayhem and alarming experienced officials across Washington, D.C. And as you know, he signed an executive order recently that to place political loyalists in some very influential roles usually held by civil servants. So, what, in a sense. they’re suggesting is a kind of slow-motion coup, which many people (conservatives) would say is a conspiracy on the left. What do you think about that, both of you? DAVID BERG: Let me address that Bill, because it’s inherent in what I mentioned about the transition; the failure to engage in a logical, orderly transition of government. So, obviously, we have President-elect Biden who is not being armed with the proper daily briefings. That may come that may happen as of next week. Senator Lankford, a Republican Senator from Oklahoma says he’s going to make it happen. But you also have hotspots. You have issues within every department, if you just look at the Defense Department, there’s speculation about why he’s got his cronies there. I realize several of the people under Esper resigned. But he has his man, Miller, at Defense now. What’s to stop him from picking a fight, picking some sort of military action, to try to galvanize the country? You can’t get rid of a president in the middle of a war. Some folks dismiss that as paranoia. But there are many gifted thinkers in the political science field who are concerned about that. Or is it that he just wants to get all our troops home by Christmas? And that, itself, presents defense problems. The concern I have– I think it’s absurd to think that there’s a coup from the left. They’re accusing now Dr. Fauci and, of course, the old standby, George Soros and I’ve forgotten whom else, maybe Aaron Judge from the Yankees of being involved in a coup. I think the real problem, the real chaos that’s being created is designed specifically to convince some huge portion– maybe not 71 million people as Daryl rightly points out, but some huge portion of this country, that this election was stolen. I know how I felt after the 2000 election. But I lived with that because the Supreme Court, while I didn’t agree with their decision, put an end to the fight. I did have the suspicion that the election was rigged because the Republicans controlled the processes. But can you imagine now having people at the highest level of government telling so many Americans this election was stolen from you? There’s a potential for blood in the streets, Bill. DARYL BRISTOW: I might comment on something David said with regard to at least 2000 and the fear that something was rigged. The MIAMI HERALD commissioned a national accounting firm to go conduct a recount in Florida as though the Florida Supreme Court decision had held. Bush won that recount. So, the Supreme Court did not make George Bush president. The voters in Florida made George president. And to move to today, my overarching disappointment in people that I knew, for example, John Cornyn, someone that I knew pretty well when he was a Texas State Supreme Court justice. The idea that these people would sit back, even be complicit, in some of the irrational things that Trump does simply because they are fearful about some element of their radical, right-wing base, to keep them in office has caused, as far as I’m concerned, the destruction of the Republican party that I knew and that I loved and that I felt was a good counterpoint in terms of conservatism versus liberalism. I think that there’s a reason for both sides to argue those points. But we’ve lost that and as long as Trump can fan that fire and these people are not willing to stand up and do the right thing then, Bill, we have real reason for concern about how President-elect Biden can pull this country back together, how we can have civil discourse. DAVID BERG: I think that we need a phalanx of prominent Republicans to do what Goldwater and his colleagues did when they went to the White House and told Nixon he had to resign. It’s going to take a change of heart. I’ve talked to people in politics who privately tell you they can’t stand what this man is doing. Oh, I wouldn’t have him to my house. And you hear reports of Republicans who know this election is over. I think that one of the hallmarks of this period in history will be the Republican Senatorial cowardice in the face of Donald Trump and angry tweets. We had a discussion right after the election, Bill, and it stuck with me. You pointed out that the coalescing around an individual, a personality by the populace, is the first step. The second step is when big business– and I use the analogy that as Hitler got the backing of the Krupps and the German billionaires of the time– and all that remains was the coalescing between Trump and the military. And I was brought up to be suspicious of the military, and now I’m just grateful as I can be because they have been a bulwark against extraordinarily divisive politics. Look at General Mike Esper at Defense apologizing for their involvement in that hideous display in Lafayette Square where Attorney Barr, like some scout for an army troop, goes ahead and makes sure that the area has been cleared of peaceful protesters, cleared by the use of military. Look at what happened. You had Esper and Milley apologizing for their conduct. They have been the main bulwark against what could’ve been a coup from the right. And I do not believe that that was out of the question. BILL MOYERS: Earlier this year Trump told a reporter, quote, “I have the right to do a lot of things that people don’t even know about.” And then Alan Dershowitz wrote this piece with the headline, “Does President Trump Have the Power to Declare Martial Law?” Both of you have spent much of your lives at this intersection where the Constitution meets politics. Does the president, a lame duck, does he have the power to declare martial law? DARYL BRISTOW: The short answer to that is if the rest of the government sits back and does nothing, he can do whatever he wants to do. Unless our courts step in, unless our Justice Department steps in, unless our Senate and our Congress steps in, unless we step up and say, “No–” he can do a lotta damage. But if we turn around and say, “Wait a minute. We’ve got a system that is the bright, shining system of the world. We cannot let it disappear,” then he won’t have that power. DAVID BERG: Specifically, under the emergency powers, the president can declare martial law. Lincoln, for instance, suspended habeas corpus during the Civil War. He can do that. But I think Daryl’s right. The danger of martial law would be that all ordered to stay in our houses. The Electoral College is not allowed to proceed. And the president just stays in office. But we have safeguards, as the Biden campaign aptly put it, there are ways to escort a trespasser out of the White House. I do not think the public will is there to allow him to invoke these emergency powers. I want to ask both of you a question if I might. What is the moral movement in the country now that meets Biden as the right man at the right time to bring us together?
I am not going to give up on the American people.

— Daryl Bristow

DARYL BRISTOW: Well, we live in a country now that is a country that has a make-up very different from the 1950s. And so, there is a moral imperative. And I am not going to give up on the American people. I am not going to give up on the on the hope that there is going to be a leader that can ignite those feelings and that we can come together, left toward the right, right toward the left, to get to what’s meaningful. And that is meaningful health care. It is meaningful advancements for minorities. It is meaningful changes in terms of the vast disparity of wealth and poverty. There are so many issues like that out there that are so dramatic right now. And they’ve been masked by four years of rhetoric that is just hard for me to take. DAVID BERG: Can I respond to Trotsky, Bill, for just a moment? My friend Daryl and I go way back. My faith in the American people comes from having been in front of so many juries and see them work so hard and do the right thing. What troubles me, and I don’t want to be Pollyanna. And I don’t think you’re being Pollyanna, Daryl, at all. I have great hope, a great belief in the American people. Like Churchill said, you know, after trying everything else, Americans always do the right thing. But what troubles me– and we haven’t talked about this. But as you both know, there is a straight line in this country over a 400-year period that goes from slavery to the Civil War, to Reconstruction, to the deconstruction of Reconstruction, to Jim Crow laws, lynching. You can go right through to the high moment of, “One man, one vote.” It all goes back to the issue of voting. And you bring it through to the present day. And let’s just look at Georgia– Governor Kemp, when he was the Secretary of State, he was the king of voter suppression. I think that one of the most extraordinary moments in American history, and I think that the historians will agree, is the moment when the umbrella was taken down from the storm. The analogy that Justice Ginsburg utilized in the case of Shelby County v. Holder. There was a provision that said that any change in election laws, any at all, had to be approved by the Justice Department in certain states. It was all the Confederate states, all the Southern states, some northern counties in New York, and some in California where there’d been a history of voter suppression. And virtually everything that Justice Ginsburg predicted: purging of polls, the new poll taxes, the identification, the causes– all of the impediments to voting. This is the central issue in the division between those who believe as you do, Daryl, and I do, that racial justice has to come at last. And it’s extraordinary that people in Georgia overcame impediments to voting. Georgia has more procedures that impede voting, suppress voting. What a miracle that the Democrats won there. That Biden flipped that state and just parenthetically, you think that the Republicans are turning out their base with this attack on mail-in balloting. Wait till you see what happens now that Democrats, especially the African American community in Georgia realizes, “We can win.” But I am terribly concerned. Anyone involved in politics, anyone who thinks about this country. I would rename Dr. James Cone’s book. The title should be extended from THE CROSS AND THE LYNCHING TREE to, “The Cross and the Lynching Tree and Shelby v. Holder,” where a majority of the Supreme Court just unleashed the gates of voter suppression by striking down important provisions in the Voting Rights Act, just gutted it. DARYL BRISTOW: Let me add one specific in terms of my hope that we may turn a corner. It is in the youth of our country. DAVID BERG: Yes. DARYL BRISTOW: As the younger people, they are accepting of the America that we live in. They are concerned about the rights of minorities and about economic disparity. We may not get there tomorrow. But I really do believe that the bright spot is the hope that our younger people as they come in will make a big difference. BILL MOYERS: I am an optimist about America. A conservative I admire is an economist name Bruce Bartlett. He moved away from the Republican party some years ago because he got concerned about the economics that the conservatives were following. He wrote a piece for the present NEW REPUBLIC that says, “Every four years Americans get a little lesson in Constitutional law when they’re reminded that presidents are not actually elected by the people. The winner of the popular vote nationally doesn’t necessarily win the election. The official winner is chosen by the Electoral College.” Now there are people out there writing right now that that’s Trump’s and the Republican’s strategy is to try to frustrate the election so that some states send their electoral votes to whom they choose to be. Do either of you think there’s any credibility to the argument that the Republicans are trying to get this shifted from the popular vote in their states to the electors that they can send if they want to? DARYL BRISTOW: There is no question in my mind that the lawyers and the administration are aware of those states. And if you do not have the Electoral College that has been selected by the vote by November 23. The legislature votes on its own slate of electors and says, okay, these are the electors that are going to elect the president. You can bet that the Trump administration has got those issues in mind. And they’re not easily answered. DARYL BRISTOW: Let me add one thing. And that is in order for the horribles that I talk about to come to pass, you would have to have a serial pollution of the system. And it’s not going to happen. You’d have to have the courts doing things they shouldn’t do, legislatures doing things they shouldn’t do, Congress doing things it should not do. I don’t believe it’s going to happen. Not with this vote, not with this many states, not with this mandate. I think President-elect Biden is going to be President Biden. BILL MOYERS: What happens if Donald Trump refuses to leave? DAVID BERG: There will be nothing more satisfying to 77 million Americans who voted for Biden to see him do a perp walk right out of the White House. He will be removed. He is not going to have squatter’s rights to the White House. BILL MOYERS: There are 71 million who don’t want him to leave the White House. DAVID BERG: Well, I under– BILL MOYERS: That’s a lot of people. DAVID BERG: No, but my point is somewhat different. And that is that we would be pleased to see what is inevitably going to happen. And I believe it was Michael Cohen who said that Trump is going to go to Mar-a-Lago at Christmas and never return. There’s no institutional support for him to stay in the White House unless there’s a military coup. And that’s not happening. I have no fear of that. I’m with Daryl 100%. On January 20th, we will see President Biden and Vice President Harris sworn in. BILL MOYERS: Daryl Bristow, David Berg, thank you very much for joining me. I learned a lot and I enjoyed being with you. DAVID BERG: Thank you, Bill. DARYL BRISTOW: Thank you. ANNOUNCER: Thanks for listening to Moyers on Democracy. You can find more information about the 2020 election lawsuits at democracydocket.com. Until next time, you’ll find all this and more at Billmoyers.com.

Expert details the secretive ‘shadow network’ behind America's radical right for the past 40 years

ANNOUNCER: Welcome to Moyers on Democracy. What is the shadow network behind the nomination of Judge Amy Coney Barrett to the Supreme Court? Who selected and groomed her for this moment? Who's financing the campaign to get her confirmed? Who's counting on her to side with President Trump if he's losing the election and wants the Supreme Court to declare him the winner? For the answers, Bill Moyers talks to journalist and investigator Anne Nelson about her book: SHADOW NETWORK: MEDIA, MONEY, AND THE SECRET HUB OF THE RADICAL RIGHT. In it, she exposes the powerful and little-known Council for National Policy, the organization behind the conservative movement of the past 40 years – from Ronald Reagan's secret war in Central America to their success in turning the Supreme Court into the Trump Court. Ms. Nelson has received the Livingston Award for her journalism and a Guggenheim Fellowship for historical research. Here to talk with her is Bill Moyers.

BILL MOYERS: Welcome. It's a pleasure to talk to you.

ANNE NELSON: My pleasure.

BILL MOYERS: Let me begin with the most current part of the story, which comes just a little bit after your book is published when the conservative movement is facing a very decisive encounter with the very forces it's been trying to defeat now for 40 years. How do you think the shadow network reads the confirmation of Amy Coney Barrett to the Supreme Court? What are they making of it?

ANNE NELSON: Well, I think that they consider it a great triumph and a kind of culmination of 40 years of effort. And I demure a bit at the term conservative because this is, for me, the radical right. It is so far to the right of mainstream American public opinion that I feel that it's in a different category both in terms of its ideology and its tactics. But they decided way back in the day of Paul Weyrich, one of the architects of the movement that they–

BILL MOYERS: In the early 1970s, right?

Read an excerpt

ANNE NELSON: We're going back to the '70s and even earlier, because he was active on the Barry Goldwater campaign. And he was frustrated time and again by moderates in the Republican Party and people who were willing to work with Democrats to advance policy and solutions to public problems. And he created organizations and tactics that he openly declared should destroy the regime, as he called it, which would be the U.S. government as we've known it for the last century.

BILL MOYERS: Paul Weyrich is the man I remember saying–

PAUL WEYRICH: I don't want everybody to vote. Elections are not won by a majority of people. They never have been from the beginning of our country and they are not now. As a matter of fact, our leverage in the elections quite candidly goes up as the voting populous goes down.

BILL MOYERS: He was essentially saying, as a newly anointed leader of the religious right, what their philosophy was. The fewer people vote, the better their chance.

ANNE NELSON: That's right. And from the beginning, in terms of their electoral tactics, it has been a matter of weaponizing certain churches and pastors and really exerting tremendous pressure on them to use churches as instruments of a radical right ideology. And then using similar tactics to suppress votes for Democrats, especially in key battleground states.

BILL MOYERS: So that's why you conclude in your book they were to the right of the Republican Party. They were not just an offshoot of the Republican Party. They were not just fundraisers for the Republican Party, but they were ideologically and organizationally taking the Republican Party far to the right.

ANNE NELSON: Absolutely, and somewhat to my surprise, I found that their prototype was the Southern Baptist Convention, where they decided that in order to move it to the right, they had to use questionable tactics to elevate their supporters to key positions of influence and purge the Southern Baptist Convention of moderates in the seminaries and in the colleges and among the pastors. And it was a fairly ruthless process, and once these tactics were developed, they applied it to the Republican Party. And you had the same kind of tactics going on of purging moderates, some of whom had been in office for years.

BILL MOYERS: I should point out to some of our younger listeners and readers that the Southern Baptist Convention at the time and still today was the largest Protestant denomination in America. You know, something like it eventually reached 16 and a half million members scattered throughout the South and the West. We'll come back to them in a moment. What do you think about the NEW YORK TIMES' assessment that Amy Coney Barrett represents a new conservativism rooted in faith. That's how their headline described a three-page portrait of her life and career. Does that make sense to you?

ANNE NELSON: Not entirely, because as a conservative Catholic, she follows in the footsteps of others such as Brett Kavanaugh and Antonin Scalia. So that's not very new. And what I look at in my book SHADOW NETWORK is how these interlocking organizations support each other. The book is about the Council for National Policy– a radical right-wing organization that is very secretive, and it brings together big donors like the DeVos family and oil interests from Texas and Oklahoma and political operatives. And, for example, members include the leadership of the Federalist Society. Well, Amy Coney Barrett was a member of the Federalist Society for a number of years and is still a speaker at their events. It includes the head of Hillsdale College, which is one of their campus partners. Amy Coney Barrett was commencement speaker for Hillsdale College this year. So, there are all of these organizations that have been turning their wheels to promote her really for several years going back. She appeared on previous lists of potential nominees for the Supreme Court, and I don't believe she would have been included in those lists had she not confirmed to their traditional idea of an activist judge.

BILL MOYERS: They knew what they were looking for.

ANNE NELSON: And I should add that one of the most powerful components in the Council for National Policy is the anti-abortion movement. Organizations such as the Susan B. Anthony List and Concerned Women for America and other interests, which are anti-environmentalist interests from the fossil fuels industry. So, I think that we've seen a roadmap of what to expect moving forward.

BILL MOYERS: Tell me, who does make up the Council for National Policy?

ANNE NELSON: So, the Council for National Policy has traditionally been around 400 members. From the beginning, it's included people with big money, a lot of them from the Texas and Oklahoma oil industries, but also the DeVos family of Michigan from the Amway fortune, and Betsy DeVos, of course. So, it has the big money to pay for things. It's got the leaders of so-called grassroots organizations. Now, I say so-called, because they do not spring from the grassroots the way that you would expect from the name. They are organized with a great deal of money from the top down. So, for example, the National Rifle Association– their leadership is part of the CNP. They get money from the donors, they organize their millions of members, and you combine these with the strategists and the media owners. And I spend a lot of time in my book talking about the power of fundamentalist and conservative radio in swing states. Things that people on the East Coast overlook to a terrible degree. And the same thing with fundamentalist broadcasting, which has really several of these broadcasters — the Christian Broadcasting Network, the Trinity Broadcasting Network have really turned into outlets replicating the messaging from this organization. So, you have them interlocking and interacting and each supporting each other's function. And I should explain something here, which is that they represent historically a white, Protestant, I'm sorry, but male-dominated patriarchy–

BILL MOYERS: No, that's okay.

ANNE NELSON: And I have to say that demographically its time has passed. The United States has become more diverse religiously, ethnically, and racially. And they recognize that their core positions are not supported by the majority of Americans. So, they went to the limit, pulled out all the stops to get Trump elected by a tiny margin, but they doubt that they can do that again. The signs are not good. What they can do is make their hold on the federal courts concrete through the Supreme Court, and therefore, get majorities in cases like gerrymandering, voter suppression, and their political activation of the churches with tax-exempt status. And further their hold on power through the courts.

BILL MOYERS: So which part of the shadow network do you think chose, mentored, and groomed Amy Coney Barrett for this moment?

ANNE NELSON: Well, I have to speculate here. But I would see a fairly straight line from her position to Leonard Leo's. Now, Leonard Leo is a very conservative Catholic. He was the operational figure of the Federalist Society for a number of years, and recently he shifted from that position to an even more activist position. Amy Coney Barrett was already a member of the Federalist Society. The Federalist Society has a pipeline through the lower federal courts, which she benefited from. So, in terms of this Catholic interaction they would be quite close to each other. Another key figure is Carrie Severino, who is from the Judicial Crisis Network, which was co-founded by Leonard Leo. And again, very right-wing Catholics who have tended to be overlooked while people focus on the fundamentalist Protestants. But Ralph Reed, who has been somebody who's been active with the fundamentalist politicization for decades declared openly years ago that the next step to their campaign was to enlist the Catholic vote. And they've been aggressively doing that in recent years.

BILL MOYERS: And then there's Don McGahn who was for three years Donald Trump's chief White House counsel, graduate of Notre Dame, admirer of Amy Coney Barrett, who was scouting himself for recruits to bring up, train, groom, and put into the mix for potential Supreme Court justices. And I read that he was highly enthusiastic about her, had talked to Leo and that they had you had both these White House and legal forces behind her, knowing that she was one of them.

ANNE NELSON: Yes. And I would guess that they suffered enough embarrassment over the Brett Kavanaugh hearings and the discussion of possible sexual harassment that was involved, that it was a convenient moment to bring a female to the top of the list to avoid that. So, there were a number of elements in her favor. I should add that in the process of these nominations Trump cut a deal in 2016 with this movement, and it was publicly reported that he was going to accept lists of nominees from three organizations run by Council for National Policy members: the Heritage Foundation, the Federalist Society, and the National Rifle Association, believe it or not. And he has actually followed suit with that. The Federalist Society has taken the lead on this, but you will find the Heritage Foundation in the background of all of these proceedings, as well as the NRA.

BILL MOYERS: Did you see anybody from the shadow network at the White House when President Trump announced her nomination? Could you identify any there as members of the Council for National Policy?

ANNE NELSON: Why, as a matter of fact, I could. I've got the September 2020 membership list. So, I went through U.S.A. Today's publication of who was present at that event, which has been called the COVID superspreader event on September 29th. And what I found was that they had six members of the White House staff, nine members of congress, and 14 current members of the Council for National Policy.

BILL MOYERS: Fourteen?

The moment of truth in those hearings came when she [Amy Coney Barrett] was asked if it was against the law to interfere with the vote in a federal election. And she couldn't answer that. Which to me demonstrated either an ignorance of the law or a disregard for the law that is truly alarming on the eve of an election.

ANNE NELSON: Fourteen, and 12 of them were from the leadership bodies, the board of governors, and the gold circle elite members. So, they were there in force. They were having a victory dance this was a culmination of plans that had been in the works for decades.

BILL MOYERS: But if she is willing to put people at risk that way, to go along with the president in ignoring guidelines from the Centers for Disease Control, are we okay in asking questions about her judgment? I mean, could she not have said, “Mr. President, I'm honored by this nomination, but can you wait until there's better days for us to do this?"

ANNE NELSON: I think that statement would have required someone who could restrain their ambition. And for me, the moment of truth in those hearings came when she was asked if it was against the law to interfere with the vote in a federal election. And she couldn't answer that either. Which to me demonstrated either an ignorance of the law or a disregard for the law that is truly alarming on the eve of an election.

BILL MOYERS: I was noticing in a story in THE WASHINGTON POST that the Council for National Policy had a three-day meeting in Southern California. And one member — a woman named Rachel Bovard — described Ginni Thomas, the wife of Justice Thomas as a crucial link to the White House. “She is one of the most powerful and fierce women in Washington. She is really the tip of the spear in these efforts." Did you come across Ginni Thomas in your book?

ANNE NELSON: I came across her repeatedly, and she has risen to the rank of the executive committee of CNP Action, which is their lobbying arm. She also is very active with another CNP member named Charlie Kirk who runs something called Turning Point U.S.A. She's also a so-called correspondent for a right-wing media platform called The Daily Caller, which is owned by members of the Council for National Policy. So, Ginni Thomas, who is from Omaha is married to a Supreme Court justice and is both a public and behind-the-scenes radical right-wing activist across the country. I don't know what the protocol is for spouses of Supreme Court justices, but I find it difficult to believe that people think this is appropriate.

BILL MOYERS: But what struck me about that is that so many of the characters that are now on stage in the third and fourth year of Trump's administration are clearly linked by the Council for National Policy, something few Americans have heard of. How did you come upon it?

ANNE NELSON: In my early 20s, I was a reporter in El Salvador. And from there, I joined the staff of Human Rights Watch. And so, I knew a lot about death squads in El Salvador, and learned in writing this book that the Council for National Policy and its partners had hosted death squad leader, Roberto d'Aubuisson, in Washington. An idea that was just shocking to me. They were heavily involved in the Contras during the Reagan administration. The support for the extreme right wing in El Salvador. I didn't know that at the time. I circled back to them decades later. I was in my hometown of Stillwater, Oklahoma, driving to Walmart and had the radio on. And started hearing some radio accusations against John Kerry who was running for president at the time, that shocked me, because the local preacher was claiming that John Kerry would make heterosexual marriages unsanctified by promoting marriage equality. And it was a very strange statement. So later I started tracking who owned that radio station, and then I found out it belonged to a group of radio stations owned by members of the Council for National Policy. And then I said, “Well, what's that?" And, as you know, an investigative reporter just keeps pulling at the thread until something emerges. They were incredibly secretive, and I think it's only thanks to the internet and things that they've inadvertently published online that's made this research even possible.

BILL MOYERS: Let me summarize what I take away from your book the SHADOW NETWORK. You say that, for these past four decades, it's been a strategic nerve center for channeling money and mobilizing votes out of sight, correct?

ANNE NELSON: Yeah.

BILL MOYERS: How did they get away with that?

ANNE NELSON: Well, I say a few times in the book that I think the Democrats have been asleep at the wheel. But part of the problem is rooted in our crisis in journalism. Because when I was growing up, you had lots of vibrant local newspapers that published AP and New York Times syndicate stories on international and national news, as well as the local news and the basketball scores. And you had a population across the country that was working from the same page, as it were. These newspapers have been dying off. They have lost their business model due to the digital revolution and the economic crises. And nature abhors a vacuum. In their place, these fundamentalist radio stations and this engine for misinformation has taken their place. And it makes me angry. When you lose the local professional news organizations, the substitutes can lead people down a terribly damaging path.

BILL MOYERS: How do you connect that to the growth of the Council for National Policy.

ANNE NELSON: They use a lot of stalking horses in terms of their organizations. So, I think most people wouldn't think of the National Rifle Association as primarily a political organization. Certainly, they didn't in the 1970s. It was kind of a shooting club. It's been converted into a political organization. And that has happened with tens of thousands of churches. And I grew up in those communities. I don't think my friends and neighbors and family members went to church thinking, “We're going to go get told how to vote." That's not what they went for. But now that's what they get. And they are given voting guides in the sanctuaries inserted into the church bulletin, right? You turn the page from the hymn, and there you get the voting guide basically telling you to vote for a Republican. But it doesn't have the signature of the Council for National Policy. It just says, iVoterGuide produced by the Family Research Council, whose president has been the president of the Council for National Policy. So, you've got t0 connect the dots, but the dots are all there and highly connectable. You have people who are identifying with organizations, and they're looking at news media such as The Daily Caller, such as the Christian Broadcasting Network, such as Salem Media, which are tied into this system. And it's not about journalism. It's about messaging: we're going to tell you what to think.

BILL MOYERS: But this organization started, with a handful of people. How did they multiply their effect so thoroughly throughout our political system that they now dominate. How did that happen?

ANNE NELSON: Well, I think that what you had is this odd element of our electoral system where the electoral college carries this weight. And a lot of candidates for national office focus on the popular vote, but the strategists like Paul Weyrich and others realize that the popular vote is actually irrelevant. The electoral college is what elects our president. So, what they figured out how to do was identify critical bands of voters who were corresponding to these mostly religious organizations in critical states. If you could reach these millions of voters, many of whom were not engaged, and convince them that it was a sin to vote for a Democrat, then you could win the state. And if you won the right states, you'd win the electoral college. And they worked on this approach over various decades. And they kept going to various Republican candidates and bringing their voters to them and trying to cut a deal where they would deliver the response in terms of power. And I have to say that, a number of presidents including Reagan and the first President Bush had those conversations and reneged on the deal, right? They did not deliver the cabinet appointments. They did not deliver the reactionary social policies. And what they found with Trump was a transactional president who didn't really care about abortion or gay marriage or any of the rest of it. He just wanted the office. So, he cut a deal and he honored it. And he gave the former president of the Council for National Policy, Tony Perkins, carte blanche to write elements of the Republican Party platform in 2016, which have been just renewed for 2020 without amendment. So, they worked behind the scenes. It's been influence peddling, and it's been big, big money. The book traces hundreds of millions of dollars that have sloshed around in this circular way where the DeVoses fund the Koch brothers' operations. And the Koch brothers fund the DeVoses and Foster Friess funds The Daily Caller. And when you have the Democrats not paying sufficient attention to the swing states, when you have the local media in a state of collapse, that is the window of opportunity.

Strategists like Paul Weyrich and others realize that the popular vote is actually irrelevant. The electoral college is what elects our president. So, what they figured out how to do was identify critical bands of voters.

BILL MOYERS: So, we have the pastors on one side and the plutocrats on the other side. You have this alliance between very dogmatic, religious zealots and men of huge wealth whose interest is not in piety. What joins them?

ANNE NELSON: Well, I think that, in religious terms, it's all about mammon.

BILL MOYERS: Mammon being the biblical term for money.

ANNE NELSON: That's right.

BILL MOYERS: The biblical metaphor for money.

ANNE NELSON: Yes. I keep looking at their so-called positions of principle. And, you know, you scratch at them and they don't go very deep. But what you do have with the Kochs' and the DeVoses and the various fossil fuel interests are people who've made immense fortunes and are terrified of losing their economic power. But also, these people don't want to pay taxes, and so pushing through a tax bill that favored the fraction of a 1% was a priority. And Donald Trump and the Republican Senate delivered it.

BILL MOYERS: The Washington Post last week released some video of the August meeting of the Council for National Policy. Let me just read a few things that were said at that meeting. Videos provided to the Post covering dozens of hours of CNP meetings over three days in February and three in August offer an inside view of participants' obsessions. Here are some of the things that were said:

BILL WALTON: This is a spiritual battle we're in. This is good versus evil. We have to do everything we can to win.

BILL MOYERS: –said the Council for National Policy's executive committee president, Bill Walton. Ralph Reed, chairman of the nonprofit, Faith and Freedom Coalition told the CNP audience that conservatives are going to be harvesting ballots in churches. “We're going to be specifically going in, not only to white evangelical churches, but into Hispanic and Asian churches and collecting those ballots.'" And then, here's the one that really stands out. At that meeting, J. Christian Adams, a former Justice Department official and the president of the Public Interest Legal Foundation, a charity, described mail-in voting as the number one left-wing agenda. He urged the activists not to worry about the criticism that might come their way. Quote, “Be not afraid of the accusations that you're a voter suppressor." Any of that surprise you?

ANNE NELSON: Not in the least. On the contrary, you'll find the footprints of those statements in my book. One of the techniques that this movement has used is using data profiles and directing information to voters to either get them to vote for Republicans or to suppress the vote if they're not likely to. The Koch brothers brought state-of-the-art political data operations to the table with an organization called i360. And that was harnessed to organizations that were run by CNP members. So, for example, one of them was the Susan B. Anthony List, which is anti-abortion. One of them was the NRA. They also combined data from churches and from political data and consumer data. So that allowed canvassers for these organizations to do their door-to-door canvassing having a huge amount of information about each individual voter, and a tailored individual script for them. So, for example, if you are canvassing in Springfield, Missouri, and you're working for the Susan B. Anthony List, you know that at such-and-such an address, there's a Catholic housewife with six kids there who watched an anti-abortion film on Netflix and ordered LIVES OF THE SAINTS from Amazon. You have all of that in your cell phone, and you also have a script that's been prepared and tailored for that voter, right? But you're going to have a totally different script based on the data for the next-door neighbor who's a gun owner who's all about the second amendment. And the Democrats have lagged behind, not in terms of the data they have, but the way they've networked data across state lines and to organizations that are doing their political groundwork. So that's been a factor. The use of data has been very important in the last few campaigns, and not always well-understood. But there's also a really important matter of how data is used to suppress votes. And that's where I would direct people to a news story done by Channel Four in Britain. The Council for National Policy partners and the Koch brothers' data platform i360 used data from Cambridge Analytica with several hundred million voters, with some 2,000 data points for every voter. So that includes you and me, Bill, okay? They know a lot about us, and so what they did in this story documenting what happened with African Americans in Milwaukee, Wisconsin, was find that if voters were not likely to vote for Republicans. If they leaned Democratic, they would target them with misinformation that would disincline them to vote at all. And in other cases, such as what's been documented in Michigan, some 90,000 African American voters were persuaded not to vote for the top of the ticket for Hillary Clinton by these methods. So, in these states, they always go by very, very narrow margins. So, I would argue that a lot of these data operations, some of them of questionable legality, have actually changed the course of electoral history.

BILL MOYERS: What do you think they're doing for this election in two weeks?

ANNE NELSON: Well, we know that the Trump 2020 app has highly questionable practices, in terms of its privacy and the way it accesses people's cell phone directories, all of their contacts, friends and family, and then sends messages out to them, often without the user knowing that they're doing it. They also combine that with consumer data. So, for example, if you downloaded their app on one phone that was a different account, they could trace your credit card records back to your own account. They also use geolocation, so once you download the app, they figure out where you are and what kind of messaging would appeal to you and leverage you to attract other voters. And they use this through beacons that are placed around areas like political rallies and churches, right, to locate the people with the apps and then engage them for political purpose. It has been recently revealed that these beacons had even been implanted in Trump yard signs. So, they're really, I would say, on the cutting edge of political technology. And it's in this very murky area of law where there are abusive practices involving privacy, but there's no clear legal framework to govern it.

BILL MOYERS: And what stuns me is their ability to connect this very sophisticated information gained by very up-to-date, modern technology to a lot of poor pastors in East Texas and Southern Alabama who are concerned about the state of the world. And here, they've been led into, one of the most sophisticated political campaigns that really has not their interest at heart. And they become soldiers in the crusade–

ANNE NELSON: Absolutely. And again, these are the people I grew up with, and I see a lot of cases where the pastors have been bullied into it. And they say, “Wait a minute, I want people to come to church and reflect on spirituality. We're not here to run a political campaign."

BILL MOYERS: Yet the fact remains, as you make clear in the book, that they have a very acute grasp of electoral college politics. How do you win the 270 votes of the electoral college, even if you lost the popular vote? How did they get there?

ANNE NELSON: Well, they work harder at it. I think they worked harder at it than the Democrats have. They've got a pollster named George Barna.

BILL MOYERS: Yeah.

ANNE NELSON: And he has paid a lot of attention to these voters. He has identified characteristics to them, and one of them is that older white evangelicals from largely rural areas have a 91% turnout at the polling places. That is powerful. And that's something where it's not exactly fashionable in Democratic circles to talk about that. And why we should have a dialogue with these voters. So, when you get that information, and when you work over and over again to refine messaging that will touch a nerve with these groups, some of it's misinformation, and some of it's just hard work and smart strategy.

BILL MOYERS: And they have enlisted these fundamentalist white churches to serve as their political proxies by doing smart things, like inviting them on junkets that the CNP pays for, writing sermons for them to download, producing their church bulletins for them, and delivering voter guides to them for distribution to their congregations. That's down at the very grassroots. And they do it.

ANNE NELSON: They've even constructed a multi-million-dollar Museum of the Bible, steps from Capitol Hill. And it's really a kind of monument to conservative fundamentalist political ideology.

BILL MOYERS: It's really a remarkable turn of American politics in the last 40 years, and you have written a very smart, detailed, informative, and narratively-driven book on it. You say, in your epilogue, in the beginning, there were the Southern Baptists, and there were two of them in particular, Pastor Paige Patterson — who became president of the Baptist seminary I had attended long before him — and a state judge named Paul Pressler. In effect, you say, they started it all. The Southern Baptists were the core.

ANNE NELSON: They were kind of the godfathers, I would say, yeah.

BILL MOYERS: Southern Baptists had long believed in the inerrancy of the Bible, that the Bible is literally God's word. But my generation of Baptists were discovering historical criticism of the Bible and began to change the denomination. And what Paige Patterson and Paul Pressler did was to alarm the Baptists who still believed in the literal meaning of the Bible and said, “They're going to take it away from you if you're not careful." And so they were able to drive the moderate leaders out of the Southern Baptist Convention and replace them with literalist, fundamentalist pastors from churches around the country, including some very large churches. And before we knew it, the Southern Baptist Convention had become a radically conservative Republican denomination.

ANNE NELSON: Yeah, and I see that as tragic, because it divides families, it divides communities. It changes the nature of spirituality in these communities. But then you see those tactics, which are all about power, right? And they're replicated in the Republican Party. Same thing happens. You drive out the moderates, you defeat the moderates, and you replace them with ideologues or card-carrying members of the movement. And I think we can look at Amy Coney Barrett as another iteration of the same thing. What you're doing is weeding out the moderate and liberal judges and replacing them with people who will march to this beat. And traditionally, that's not been the principle for our court. People could say, “The courts need to have some kind of standard that's open to all Americans," not something that's driving a particular minority ideology. So, for me, that's the glaring danger that's facing our democracy.

BILL MOYERS: And you sum up the Council for National Policy as, “An elite club of high-powered fundamentalists, oligarchs, and their allies, deploying a media empire to flood the country with propaganda, bankrolling handpicked colleges to promote extremist Libertarian ideas, and to groom up and coming politicians," and I would say judges, “to advance its cause." And you say this is all aimed at the very heart of democracy.

ANNE NELSON: Well, democracy is the blind man and the elephant, because my democracy is an America where people from diverse religions and national backgrounds came together and chose to live together under the rule of law. It aspired to give everyone equal opportunity and rights as citizens. And I don't want another religion imposing its practice on me, that's not my idea of being an American or respecting my fellow Americans. If their idea of the American ideal is so different, I would think they'd have to show some evidence that the majority of Americans saw it their way. And the evidence is all to the contrary and moving in the opposite direction. So that's why we're seeing so many manifestations of questionable maneuvers for securing power, as opposed to winning it through the ballot box. We've got two weeks before the elections. Then we've got another period which is the interregnum until the inauguration. But then we're going to have this entire cohort in the judiciary which is going to be defining our public life for years, perhaps decades to come. So I'm afraid it's going to be no rest for the weary. The cliche is, “Eternal vigilance is the price of freedom." And I think that eternal vigilance is going to be very important for everyone who wants to defend other people's rights.

BILL MOYERS: Anne Nelson, thank you so much for SHADOW NETWORK: MEDIA, MONEY, AND THE SECRET HUB OF THE RADICAL RIGHT. And thank you for your time today.

ANNE NELSON: Thank you so much, Bill.

ANNOUNCER: Thanks for listening to Moyers on Democracy. On our website, you can read an excerpt from Anne Nelson's book. Until next time, you'll find all this and more at Billmoyers.com.

'Railroading of the American people': Inside right-wing activists' effort to install Trump's Supreme Court pick

Welcome to Moyers on Democracy. Lisa Graves returns to discuss President Trump's nomination of Amy Coney Barrett to succeed the late Ruth Bader Ginsburg on the Supreme Court. A trained lawyer, Ms. Graves is one of the nation's foremost experts on judicial appointments. She served as chief counsel for nominations for the U.S. Senate Judiciary Committee and as a career deputy to two attorneys general, one a Democrat, the other a Republican. She has spent the past ten years investigating the impact of dark money on judicial selection, public policy, and elections. She is currently Executive Director of True North Research, a nonprofit watchdog group focused on legal policy and ethics in federal and state government. Here to talk with Lisa Graves is Bill Moyers.




BILL MOYERS: Thank you, Lisa, for taking my call.

LISA GRAVES: My pleasure, Bill. Thank you so much for calling me.

BILL MOYERS: What exactly does it mean to be the chief counsel to the U.S. Senate Judiciary Committee for nominations of federal judges?

LISA GRAVES: My job was to vet the judicial nominees and the U.S. Attorney nominees that were being put forward by President George W. Bush in his first term in office. My job was to review their background, review any information available about them, and make recommendations about whether they were people who had the demeanor and the temperament and the record of fairness to become a federal judge for a lifetime position on our federal courts.

BILL MOYERS: And you also served as deputy assistant attorney general under two attorneys general, one a Republican, the other a Democrat.

LISA GRAVES: That's correct. I was a career deputy assistant attorney general at the U.S. Department of Justice under both Ms. Reno and Mr. Ashcroft. And for the first part of 2001, my job was to aid in the orderly transition of government and to advise Mr. Ashcroft in particular on judicial nominations on a relationship with the federal judiciary and the state judiciary.

BILL MOYERS: You know the nominating process inside and out, right?

"I personally think it's important to talk to the American people about the courts and what's at stake… I think that that case needs to be made not just to not fight about the courts but to basically tell the American people quite plainly how important the courts are."

LISA GRAVES: I do. I both worked in it for several years and have been a student of it for many years before that.

BILL MOYERS: What do you think of how President Trump and the Republican leader of the Senate, Mitch McConnell, are doing in rushing Amy Coney Barrett's nomination through the Senate in just a matter of weeks if not days?

LISA GRAVES: I think what's happening with the Senate and with this White House in terms of the Supreme Court is profoundly illegitimate for a number of reasons. First, the election is literally weeks away and this president has said expressly that he wants someone confirmed so that he can have a vote on that court to win the litigation that he and his team are planning to bring to that court. That's just profoundly illegitimate. It's also the case that President Trump and his campaign team are doing enormous fundraising to try to use this nomination to an independent branch of our government in order to advance his own partisan political interests and try to push Amy Barrett onto the court really for the next 30 or 40 years. So, no matter what happens in terms of his election, Trump's election, if they're successful, he will have placed three people on the Supreme Court, two of them basically due to vacancies during election years. And as you know, the other part of that story is the just extraordinary hypocrisy of Mitch McConnell, of Senator Lindsey Graham, of other senators who stalled a nomination by President Obama for months. Justice Scalia passed away in February of 2016. And the Republicans refused to allow Judge Merrick Garland a hearing, for months, even though Judge Garland had been on the bench in the D.C. circuit for many years and was well-regarded as a fair judge. Here you have a nomination that's only been vacant for a week or so, and a rush to push someone through at all costs, and to put someone on the court who I think does have a troubling record.

BILL MOYERS: But the Constitution is silent on the issue of when a president who has the power and responsibility of appointing Supreme Court justices should make that appointment. I mean, the fact that it's near an election is a coincidence. So, what makes this illegitimate?

LISA GRAVES: Well, it's certainly the case that the Constitution provides for the power of the president to propose a nomination. It doesn't put any time limit on it. But the fact is that historically, it has been the case that the Congress has been reluctant to approve nominations in election years, in part because the notion is that the American people are about to decide the course of the nation. Back in 2016 that Supreme Court seat of Justice Scalia's sat vacant for basically almost an entire year. There was no crisis on the court as a result of that vacancy. And the Republicans expressed no urgency to move a nomination forward. And so, in this situation, you have a case where, unlike back in 2016 where you had a president who was elected twice to the presidency, here you have someone who won the election in 2016 without the popular vote. You have a president who's been impeached by the House of Representatives. I understand that this Senate did not vote to actually remove him from office. But you have serious allegations that face this president on both foreign and domestic issues about his fitness to be the president of the United States, a decision that the American people will be facing in these coming weeks. And this is no time to rush through an irrevocable decision on the part of this president to put someone on the Supreme Court who is in her late 40s. And she's been a judge for a very short period of time. I think that there are a lot of troubling components to the nominations process as it's unfolded over these many years. At the beginning of our nation's history, people served on the court only ten, maybe 20 years due to life span of people back then. And also, the notion that people needed to have a really long and established career to have that role. Now you have people who are being appointed and they're serving not just for a decade or two but for generations. In my lifetime, for the last 52 years, there have been 19 people appointed to the United States Supreme Court. Fifteen of those nominations have been made by Republican presidents and confirmed. Only four of the confirmed justices who have been appointed in my lifetime were appointed by Democrats. And so, at one point last week, Senator Mitt Romney said, you've got to get over the idea of there being a liberal Supreme Court. And I thought, "What liberal Supreme Court?" We have a court that's been dominated by one party through these appointments. The Republicans have chosen very young people for those positions. And, in fact, that was the plan of the Republican appointment of Justice Thomas, who was in his early 40s at the time he was appointed. He's now in his early 70s.

BILL MOYERS: The Republicans have long treated control of the Supreme Court as a very important political issue. Electoral issue. Election issue. The Democrats have not. The Republicans have outsmarted the Democrats on the evaluation they place on the political aspects of the Supreme Court.

LISA GRAVES: It is the case that the Republicans have really politicized the courts in that way, while they claim that the Democrats have. The court that they complained so much about, the one historically complained about, was the Warren court. That was led by Chief Justice Earl Warren. And that court in my view, really did a tremendously valuable job for the country, because what it actually did was to read the Constitution to apply its terms to ordinary people. So equal protection of the law—

BILL MOYERS: What do you mean?

LISA GRAVES: Using that phrase in our 14th Amendment that people will not be denied equal protection to ensure that Americans could not be segregated in our schools through racial segregation. That was attacked vociferously on the right as an inappropriate and outrageous decision. It was following the plain language of the Constitution. The Warren Court ruled that when the Constitution says you have a right to counsel in the case of Gideon v. Wainwright, that you actually have a right to counsel. And so, there were a number of decisions in the '50s and '60s that the right wing, they called themselves conservatives or libertarians, opposed. And in the aftermath of those decisions the Republicans really began running on a claim with Richard Nixon of supposed law and order. Part of that law and order campaign was about the courts and trying to pack the courts with people who he thought would reverse those rulings that gave meaning to people's rights that were listed and written in the Constitution. And then Ronald Reagan went a measure further. He decided to say that he, through his attorney general Edwin Meese, at the time, was going to have a litmus test about abortion, that he would only appoint someone to the Supreme Court who would overturn Roe v. Wade. With Reagan, there was a specific determination, to appoint people basically pretty far to the right at the time. They did manage to get Justice Scalia on the court, and they did manage to put William Rehnquist [as Chief Justice] on the court, who'd been an advisor to President Nixon. And then it was 12 years of real court packing by Ronald Reagan and George Herbert Walker Bush. And when Clinton came into office in the early 1990s the path he chose was one to say that litmus test was wrong and that we needed fair judges. And so, the effort was articulated as trying to put people of moderation on the court. I personally think it's important to talk to the American people about the courts and what's at stake. And talk about how people are being put on the courts by the right, by the Republicans, in order to overturn precedent. In order to overturn our rights. I think that that case needs to be made not just to not fight about the courts but to basically tell the American people quite plainly how important the courts are. And this movement that's underway to overturn those rights. I would say to you one of the things that came out in an investigation by THE WASHINGTON POST last May by Robert O'Harrow and Shawn Boburg was that Leonard Leo, who's been working on helping to pack the courts for, almost two decades or more now—

BILL MOYERS: Leonard Leo, tell me who he is.

LISA GRAVES: Leonard Leo, for many years served as the vice president of the Federalist Society. And he is still an advisor to the Federalist Society. He has been the architect for the last few decades of this long-term effort to put far right judges on the Supreme Court and the federal courts and other courts in order to change the law by changing what decisions are being issued by those very judges. And he has created basically a big dark money operation that THE WASHINGTON POST tallied at more than $250 million to influence who gets installed on the Supreme Court. And those people are being chosen from his own lists. And they are having an utterly disproportionate influence on who gets confirmed to the U.S. Supreme Court. Leonard Leo gave a speech last year to a group called the Council for National Policy, which is made up of fundraisers on the far right. People who are funding this effort to capture our courts, as Sheldon Whitehouse has described it. And in that speech, he said that we, America, and the people in that room, were standing on the precipice of what he called the revival of what he described as the quote, "Structural Constitution," that would roll back 100 years of precedents in America. And that the appointments that Trump was making were in design to do just that, to remove the rights of people to organize in labor unions. The rights of people to petition their government for social security and programs that help protect us from the extremes of our economy. To protect our lives. Efforts to protect our environment and protect us from pollution from corporations that aren't restrained or regulated. That was really a shocking speech about the level of judicial activism that the right wing is pushing. And this new nomination by President Trump of Amy Coney Barrett is in that mold to try to use the courts to reverse Americans' rights.

BILL MOYERS: We learned after Brett Kavanaugh's confirmation that some very rich people had put up millions of dollars to quote, "Sell" his nomination to the public. Will those people do the same thing for the Barrett nomination?

LISA GRAVES: It's already under way. One of the main groups that Leonard Leo has helped to orchestrate is called the Judicial Crisis Network, JCN. And it's already running ads in swing states, states where senators are facing close election to try to promote this judge. And Leonard Leo is the one who's helping to orchestrate for the campaign to use dark money to put these judges in position to rule on our rights and to remove our rights. I know there are groups on the right and left who spend money on nominations. But this circumstance is really extraordinary, because you have unknown billionaires or multi-millionaires who are secretly giving to a group that gives to a group. During Kavanaugh, it was the Wellspring Committee giving to Judicial Crisis Network.

BILL MOYERS: Who's in this Judicial Network you're talking about? Can you name some names? Organizations? Individuals? And where's the money coming from?

"If this court rules that our federal government cannot pass measures to regulate carbon, it's an existential consequence of who's being put on the court. And we know that people like Charles Koch have been spending big money to try to capture the courts because he wants to have people on the court who will limit our ability to regulate corporations."

LISA GRAVES: Yes. So, the Judicial Crisis Network is formally led by Carrie Severino, along with the assistance of Gary Marx, a longtime political ally, of Leonard Leo. Leonard Leo is the former vice president of the Federalist Society. And he now leads a dark money network, along with a guy named Greg Mueller. He and Leo have a group called CRC Advisors that is devoted to capturing both the U.S. Supreme Court and federal courts, as well as state Supreme Courts. Carrie Severino's a former clerk of Justice Thomas. And Gary Marx is someone who has been working on judicial nominations with Leo really for the last two decades through all the fights to try to pack the courts. Their funders are unknown. We do know that there was one huge donation to the Wellspring Committee. That huge donation was almost entirely given to Judicial Crisis Network. Judicial Crisis Network spent some of that money and then gave some money to other groups in the network, like the so-called Independent Women's Forum that was created back around the Clarence Thomas nomination. That's where they got their start was in judicial nominations. But who is that original donor? We don't know. There's no disclosure of who that one donor was who spent these millions and millions of dollars to capture the court. Who was that? Who was that donor? Who were those people? And they were boasting about how successful their efforts were in trying to rally their base, the base of Republicans, to try to come out in the 2018 election. That fight over Brett Kavanaugh actually had the effect of bringing a lot of people out who were progressives and moderates who thought we shouldn't have someone like Brett Kavanaugh on the Supreme Court. But to JCN and the Independent Women's Forum and their network, they believe judicial nominations help motivate the base because even though they will tell the press and the public that this person is a rule of law judge or a law and order judge or a judge who's going to follow precedent– now they're calling Amy Coney Barrett a so-called Constitutionalist, or original interpretivist in the mold of Justice Scalia. These are all just catchphrases that they try to use. They're not appointing her because they think she'll be fair. She's been chosen because they are convinced she will be unfair. They are convinced that she will decide in their favor to overturn people's rights on a host of issues. That's why they're investing. They're not investing to get a fair judge. If you are trying to appoint a fair judiciary you may not put a lot of political capital in that because it's not seen as a political appointment. Instead, if one party is trying the pack the courts and seize the courts as pawns in their political war. And so, they're willing to invest enormous funds in order to get those people in place so that they can change the law to advance the agenda of those people who are funding it. On the left or in the middle what you have is a subset of people who believe courts should be fair and they shouldn't be political partisans. And so, you're not going to spend political capital to talk about that very much or to make your case. Because they're not seen as partisan. And then you have some progressives who have said, "No." You've got to stand up to what's happening. This is a total capture and takeover and it's going to undermine our ability to do almost anything a modern society would do. For example, undermine our ability to have rules that try to mitigate climate change. If this court rules that our federal government cannot pass measures to regulate carbon, it's an existential consequence of who's being put on the court. And we know that people like Charles Koch have been spending big money to try to capture the courts because he wants to have people on the court who will limit our ability to regulate corporations. And we know that Leonard Leo and Carrie Severino and their team are trying to put people on the court for that reason, as well as to limit women's reproductive rights, and more. And so, you have this confluence on the right where they are choosing people and trying to put them in place because they don't think they'll be fair. Because they're convinced that they will rule in their favor, which is the opposite of what you expect from a judge, to be fair and impartial.

"They're not appointing her because they think she'll be fair. She's been chosen because they are convinced she will be unfair. They are convinced that she will decide in their favor to overturn people's rights on a host of issues."

BILL MOYERS: Let me read you what Josh Marshall wrote about this. He's founder and editor in chief of TalkingPointsMemo.com and a terrific journalistic watchdog when it comes to the judiciary. He says, and I'm quoting, "I don't know a lot about Amy Coney Barrett. But I know she's accepting the nomination from a president actively trying to subvert a national election and threatening to hold onto power by force, an attack on the Constitution unparalleled in American history. Do I need to know more?"

LISA GRAVES: I think he's exactly right. It would be an honor to be nominated to be a Supreme Court justice, but under these circumstances, I think it reveals a lack of devotion to the Constitution to be a willing party to what's unfolding. Where you have a president who has said expressly that he wants you on the court in order to rule in his favor in this election to keep him in power, a president who has said expressly that if they can stop the ballots, there we be will be no transition. It will just be a continuation of his power. When you have a president that has made lie after lie about some sort of massive voter fraud in America, when in fact, the statistics and evidence show that that's not the case. So, you have someone who's willing to take that nomination, take that baton from this president, I think that is damning in its own way.

BILL MOYERS: Is it possible, Lisa, that she doesn't know that the fix is in and that she's the fix?

LISA GRAVES: Anything is possible. I don't think it's probable. And the reason I don't think it's probable is because if you look at her decisions as a judge in the very brief time that she's been a judge, as well as her actions before then, you can see someone who has a very agenda-driven view of the law. One in which she has expressly articulated that she doesn't feel bound by precedent. She doesn't believe the Constitution requires judges to follow precedent. In fact, she thinks it does not require judges to follow precedent, which is the definition of being an activist, that you're someone who wants to impose your own views of the law, regardless of the precedent that people are relying on in this country. I don't think that she is unwitting. In this circumstance, you have this election that is happening as we speak, and litigation around that election that is happening as we speak, and a president who has said quite clearly, he's going to use the courts to try to win a victory in this election no matter what the ballots say, and to try to stop them from being counted. And you have an attorney general in Bill Barr, who has shown time and again that he's more the president's lawyer than acting in the office of the attorney general, though he's using the office of the attorney general of the United States, advancing the partisan interests of this president and the lies of this president around voting. And has indicated that he's going to aid in those claims by this president. And now you have a judicial nominee who has willingly stepped into this role of potentially being a deciding vote on the Supreme Court in cases that will affect the outcome of this election. And I certainly hope, if she has a hearing, which is slated this month, that she will commit unequivocally to recuse from any such litigation. I don't believe she will, though. I don't believe she'll commit to recuse to anything.

BILL MOYERS: Are you suggesting that she is fully aware that she is also a political operative and a political force in this scenario you just outlined?

LISA GRAVES: I believe that she is. There's no doubt that she's smart. There are a lot of smart people out there. They're not all fair. There're a lot of people who are more advocates than judges. I think when you look at Amy Coney Barrett's record, what you see is someone who has been groomed for this position. She clerked for one of the very sort of activist right-wing judges on the D.C. circuit. She then clerked for Justice Scalia, who often wrote his opinions more like he was writing an op-ed column than writing an opinion of the United States Supreme Court. He was determined to move the law, to change the law, to advance his original point of view, although he cloaked it in originalism but it really managed to be miraculously aligned, for the most part, with his personal views. And she's also been someone who's been an activist in attacking the Affordable Care Act. She has written and spoken about a lot of these issues in ways that show that she has a very specific point of view. And I don't think she's been on the bench long enough to know that she can actually set aside her personal views. In fact, I think it seems pretty clear from her decisions, in the brief time she's been a judge, that she has tried to impose her personal point of view on the law. I don't think she's unwitting in this effort. I think she is embraced by the Judicial Crisis Network, by the Leonard Leo operation, by the president as someone who they think is a sure thing. A sure vote for them and for their right-wing agenda.

BILL MOYERS: There's been a lotta talk about her hardline ideology in the last few days, that she will be opposed to women's reproductive freedom, to affirmative action, to voting rights for minorities, to environmental regulations. Even worker safety rules. What I've seen of her record suggests also a very strong bias on behalf of corporate power. The last decision or rule she issued was that workers, gig workers, can't file for a class-action lawsuit against their employer. That's going to be a real blow to workers in what is an expanding gig economy.

LISA GRAVES: I think that decision is very troubling. Jeffrey Toobin pointed out in his piece about the impact of the Federalist Society on our courts and on our law, that she is straight from that mold set forth by Lewis Powell before he became a Justice of the Supreme Court. Lewis Powell had been a tobacco lawyer. Before he really was known widely as a tobacco lawyer, he was the main person involved in the Richmond schools, as it was fighting the efforts of Brown v. Board of Education to get those schools integrated. So, you have this tobacco lawyer who represents a segregated school district, who is asked by the United States Chamber of Commerce to write a memo about where the law could go. And he wrote a memo which is known now as the Powell Memo. And that memo basically said that in his view, no one in America had less influence on policy than business people. And they needed to dramatically change that through changing the courts and changing the way businesses fund think tanks at the federal and state level. As well as the way businesses support universities. And so that Powell blueprint from the early 1970s to really push for courts that were going to be pro-corporation and I think she very clearly represents that perspective. Her decisions show that she does, but regardless of her background, I think this would be an illegitimate nomination, and illegitimate to proceed. It's fundamentally unjust for anyone, no matter their background, to be put on the court under these circumstances with this election pending. I think it's really a disaster for our country, for this nomination to be proceeding.

BILL MOYERS: Do you really think, Lisa, that a Democrat as president would pass up this opportunity to name a Supreme Court justice if he were in the place or she were in the place that Trump is right now?

LISA GRAVES: Well, I don't know that a president would not nominate someone under these circumstances. Although typically, you know, there's usually, like, 30-40 days between a vacancy and a nomination to do an F.B.I. background investigation, to do a thorough vetting of a candidate before someone is even named. In this case, it's super accelerated. As you said, there's no Constitutional restriction by time from doing so. But I do think that the president's prerogative in naming someone is not the same as that person that getting confirmed, as we've seen. The Senate's role is to thoroughly examine a nominee's record. And to allow for there to be time for the American people to understand the record of a person who's being chosen for a lifetime job on the court. Is this the best person? Is this the right person? Is this someone who we trust, who we would entrust with our lives, who we believe absolutely without reservation will be fair? This process, where the president's named someone this weekend, the nomination will have arrived in the Senate at the very end of September. The Senate is racing to have a hearing in two weeks. That hasn't happened in the modern era, someone has received a hearing that quickly. And that Mitch McConnell has vowed to use the rules of the Senate to try to get a vote before the end of October. It's extraordinary. And it's a real railroading of not just this nomination but of the American people.

BILL MOYERS: Trump obviously believes that she will be a wedge to help him win a second term. And that's the issue.

LISA GRAVES: I have never seen a president in my lifetime that has disavowed the results of the election before they've even happened. That has basically vowed to try to stop people from voting. Who's vowed to unleash tens of thousands of people to go to polling places to try to, in my view, intimidate them. Is now doing fundraising to enlist a quote army to defend his results in this election. We've never been in a circumstance where we have had a president so unmoored from the law, so reckless in his disregard of the Constitution. And to have that person choosing his own jury in a case that he's determined to bring to this court is outlandish and outrageous.

BILL MOYERS: Tell me what's right and what's wrong about this scenario. Trump keeps repeating that vote by mail is rife with fraud. So Republican lawyers will try to get a large number of mailed ballots thrown out after the election as Trump declares himself the winner on the basis of the ballots that had been cast and counted before and on Election Day. He has refused to commit to leaving office if he loses. And he will challenge those ballots that have not been counted to try to get them thrown out. It's there and on other procedural points that he will need the Supreme Court majority to take his side, including the justice he is putting on the court. So, isn't he sending a message to the world that he expects the court and its new nominee to rule for him and nail down a second term? Is that the strategy?

LISA GRAVES: I believe that's precisely the strategy. This president is trying to secure for himself an illegitimate victory in this election. He has said he is going to win on in-person voting. And that any ballots that come in or that are counted afterward are somehow illegitimate, that they have to be thrown out. And he has said, quite clearly, he's going to take this to the Supreme Court. The court is actually problematic in a number of ways. First of all, you have someone like Justice Thomas who has expressed personal antipathy toward Joe Biden from his time as the chairman of the Senate Judiciary Committee presiding over Thomas' nomination. Justice Thomas' wife has been very active in electoral politics and was active during Bush v. Gore and was on the transition team for George W. Bush. As that case was coming through the court, she then became part of the transition team for the victor. You have a Justice of the Supreme Court in John Roberts who advised on the Bush v. Gore case. You have another recently confirmed justice in Justice Kavanaugh who was an attorney on one of the original cases that resulted in the decision in Bush v. Gore. And now you have a nominee who also worked on the Bush v. Gore case in Amy Coney Barrett.

BILL MOYERS: So if she's confirmed three members of the nine-member court will have worked to get the Supreme Court to deliver the presidency to George W. Bush.

LISA GRAVES: That's correct. One third. And you would have a court that has also demonstrably been trying to limit people's voting rights. Justice Roberts was part of the decision to really restrict the power of the Voting Rights Act. So, you already have a court that a reasonable person would question whether that court could or would fairly rule in this election, or whether it would again put its thumb on the scale of justice in favor of the party of the president that nominated them, put them on the bench. And this president saying that he's choosing someone specifically to help him win that ninth vote on that Supreme Court, and someone who also participated in the litigation that resulted in that extraordinary decision that installed George W. Bush as president by stopping the counting of ballots. And once the ballots were counted, the actual count showed that Al Gore would have won the electoral college. And would have been president but for that intervention by the U.S. Supreme Court.

BILL MOYERS: We've had two of the last four presidents elected by minority vote. They got the electoral college, but they lost the popular vote. And they turn around and appoint Supreme Court justices who perpetuate the pattern.

LISA GRAVES: Yes, it's very troubling. John Roberts and Justice Alito arguably might not have been confirmed had Bush not been the incumbent, by virtue of this decision in Bush v. Gore. Justice Sandra Day O'Connor disavowed and regretted enormously that she had participated in that five/four decision in which the only justices who ruled in favor of Bush were justices appointed by presidents of his political party. Then you had President Obama who had three vacancies, including one in February of 2016 that could've been filled anytime during that entire year. And there would've been plenty of time for people to weigh in and express any reservations they had about Merrick Garland. Almost none were expressed because he'd been a judge for a long time and had a reputation for being a fair judge. And that third nomination of President Obama was blocked. That meant that the Supreme Court was able to have a five/four majority of Republican appointees, rather than a five/four majority of Democratic appointees. President Trump, who has appointed two justices. And that's why, right now, you have a court that is five Republican appointees and three Democratic appointees. And they're trying to make it six Republican appointees and three Democratic appointees. The Republicans have certainly gamed the system and they're going to come out with a bunch of ads saying how nice Amy Coney Barrett is or how good of a neighbor she is or how nice she is as a colleague or as a teacher. There are a lot of nice people. That doesn't mean they're fair people. That doesn't mean they're people that you would trust to decide impartially in a case involving your rights. And in fact, everything we know about this process, from President Trump, from Leonard Leo, from the Federalist Society, from the Judicial Crisis Network that's backing them, is that she's been chosen with the very hope and belief that she won't be fair, that she will rule in their favor.

BILL MOYERS: Her very nomination under these circumstances is going to cast another long shadow on the court's integrity and on Amy Coney Barrett's, quite frankly. You wonder why someone who's on the record for being a person of faith and a moral person wouldn't say thank you, Mr. President, but let's wait a week or two or three and then we'll both come out better in the judgment of history.

LISA GRAVES: If you are a person who believes in the integrity of the judiciary, in the independence of the judiciary, if you're someone who believes that the court's core power stems from the public esteem and regard for it as an independent and fair institution, I really can't see how you could be a willing participant in this sort of railroading of a nomination through the court on the eve of an election. I think a person who had such high value of the court and the importance of the courts as an independent tribunal in our country would call herself for this nomination to be delayed until after the people have a chance to say.

BILL MOYERS: Let me– let me interrupt there if I can. I'm not sure that waiting for the people to speak, so to speak, in an election is an appropriate way to measure the worthiness of a Supreme Court nominee.

LISA GRAVES: Well, it's a complicated issue. I don't think that we should be in this position in the first place because I think with an election so close that a nomination should probably not have been put forward, because of the very way in which it is being politicized and will be politicized.

BILL MOYERS: I agree with that.

LISA GRAVES: –and could affect the outcome of the election, one way or the other.

BILL MOYERS: Let's take an example. The court is scheduled to hear a big health care case a week after the election. And conservatives are openly counting on Barrett to help throw out the entire Affordable Care Act, once and for all. Pandemic or no pandemic, they want to get rid of the Affordable Care Act. Should the senators interrogating her at the hearings come right out and ask her stance on that vote?

LISA GRAVES: I don't think she'll give an answer. But the issue of the Affordable Care Act is one in which this president has campaigned on trying to destroy it, has attempted to stop it legislatively and through a number of machinations, through executive orders, to make it harder for the health care exchanges to work. And while some are now trying to claim that that decision from the 5th Circuit that's coming up to the Supreme Court, people shouldn't worry about it, I would say that's what the right-wing is trying to say to try to minimize that case. The reality is that it's been teed up for this moment, for the ACA to be overruled, and with it, the provisions that protect people with preexisting conditions. And now, we have millions more Americans who have preexisting conditions due to this pandemic. And you also have some serious deceptiveness by this president on this point in particular, where after Justice Ginsberg died and he made the decision to move forward with a nomination immediately knowing that the Affordable Care Act was going to be an issue, he suddenly issued an executive order claiming that it's the policy of the federal government to protect people with preexisting conditions. That executive order does not replace the actual statute if it's overturned. It's a talking point, that he and his advisors have cooked up to try to use in this Supreme Court battle and in this election to claim that even though he's determined to overturn the Affordable Care Act, that suddenly he now cares about this. They're going to be using that talking point to try to defend this nominee about her determination to overrule the Affordable Care Act. And she, both as a judge and before she was a judge, has attacked the Affordable Care Act. And so, I think that, as they say, when people tell you who they are, you should believe them, we should believe very much that she's someone who's hostile to the Affordable Care Act, and that this president's hostile to the Affordable Care Act, and that could affect the lives and health of millions and millions of Americans. And it will.

BILL MOYERS: What will you be watching for during the confirmation hearings?

LISA GRAVES: That's a great question.

BILL MOYERS: I mean, I, myself, am sick and tired of these hearings that really are charades. The senator asks a question and, on the pretext of not revealing a position or prejudging—

LISA GRAVES: Yeah.

BILL MOYERS: –the nominee says bull. Pleasantly, elegantly, sometimes, but it's bull.

LISA GRAVES: Yeah.

BILL MOYERS: And the public moves on.

LISA GRAVES: It can be very frustrating watching those hearings because these nominees of this president have been so prepared to try to avoid answering any meaningful questions for the American people under this guise that they can't answer or they would be prejudging when, in fact, they've been chosen on some of these issues because they have, in fact, prejudged them. What's been happening with this president's nominees on these questions is so deeply troubling because they have refused to commit to the importance of longstanding precedents, including Brown v. Board of Education, a precedent that's been on the books for nearly 70 years in this country, they will not agree that that's good precedent. They will only agree that that is, quote, "Precedent," which is meaningless when you have a nominee like Amy Coney Barrett who said that precedent, in her view, violates due process. I'm sure we're going to see what some people call Kabuki theatre or theatrics at that hearing in which she declaims about her fairness and her impartiality and, therefore, she won't discuss any substantive issue about how she might rule, when the reality is that her record about how she favors corporations over individuals, how she favors corporations, including in cases involving discrimination– racial discrimination, LGBTQ discrimination and more how her record shows that she has an agenda and that she is desirous of using that agenda, propelling it forward with the force of law. So, I think that, when you have someone who wants to impose their personal views as law, in essence by judicial fiat (not through the legislative process), but imposed their views and disavows the value of precedent, refuses to say that core, bedrock cases like Brown are good precedent that must be followed, I think you have someone who will be behaving disingenuously in a theatrical way to try to deceive the American people.

BILL MOYERS: Would you concede that she might see this in the context of what she said to the commencement at Notre Dame when she said that there was a larger purpose to being a lawyer than being a lawyer, and I'm paraphrasing, that it was a way to help build the kingdom of God and implying, therefore, that there are times when you do justify the means by the ends, and that she actually thinks as a sincere, faithful Christian that she is helping to build with this man who is anything but virtuous– the kingdom of God by going on that court under these questionable circumstances so that she can accomplish what some of what it takes to build the kingdom of God here on earth?

LISA GRAVES: Yeah. You know, it is the case that we've seen, from the Falwell world and other worlds, a real willingness to turn a blind eye to the many ways in which this president has transgressed the basic moral code on a daily basis. You know, I'm not even going to get into THE NEW YORK TIMES report about the failing to pay taxes or potential tax fraud and what that means in terms of theft from the public treasury. You have a president who has been more aggressive in violating those moral norms than I think any president, probably since Nixon; maybe much worse than Nixon. And you have him embraced by the religious right. Not all people of faith. There are progressive and moderate evangelicals and people from the Catholic faiths who do not embrace this president as a moral leader. But you do have people in this country like Leonard Leo and William Barr and the Judicial Crisis Network that are willing to advance this president's agenda because it helps them win changes in Supreme Court doctrine, including in particular on Roe v. Wade, but also on gay rights, on the rights of LGBTQ Americans and more. In terms of Amy Coney Barrett, all people are entitled to their faith and to make decisions about their conscience and what their faith means to them and how it enriches their lives. I think the challenge is that the United States Constitution expressly forbids a religious test for office. But the corollary of that is that the United States is not a theocracy. People are not given positions of trust in our government in order to impose their religious views on millions and millions of Americans without their consent. But the fact is we see already in communications by the right-wing about this nomination that they believe that she will rule in their favor on these religious issues. They probably are not wrong, given what we've seen of her statements in the record. But I think the broader issue is I think if you're going to be put on our highest court, you ought to be someone who's not just young and smart and a right-wing advocate but someone who has a lengthy record of a willingness to set aside personal views in order to follow the law, and to administer the law fairly for all people.

BILL MOYERS: But if you're sitting there with the President of the United States and if you're informed and knowledgeable and aware, you know that this is the man who told the nation that COVID-19 was a hoax, even as he was telling Robert Woodward it was deadly stuff. And if he's giving you the bull about why you should be on the court– I don't want to be unfair to her, but because she has spoken openly and honestly, I think, about her faith she has presented us with questions like this. What's happening in the country is not all Donald Trump. He's being enabled. Look at the people who have surrounded him at the moment to enable her nomination. She's enabling him by accepting it under these circumstances. And so, it raises questions as to how do we stop such things if so many participate in them and benefit from them.

LISA GRAVES: I don't know if I would call it the conundrum but it's one of the very uncomfortable circumstances of both this administration's approach to the law and the news cycle and public policy where it's so transactional that these two things can coexist.

BILL MOYERS: By transactional, you mean–

LISA GRAVES: Transactional in the sense that they have a meeting at the Rose Garden that's all love about this nomination and its greatness that exists separate from the president's statements in which he said that he wants this nomination in order to basically take the election by legal force, by judicial fiat, which exists in the context of a president who I think it was only two weeks ago that the story broke that he knew exactly how contagious this disease was, how deadly it was, months and months ago, and that he deliberately downplayed it to the American people and deceived them. And so, all these things are happening as if they're separate things. Like, that Rose Garden ceremony of introducing her happens as if there's this normalcy. We're in a normal presidency. This is a normal America. And this is all just business as usual to have this ceremonial embrace of this nominee and this nomination as being something that's about the rule of law in America and is exalting the law. When outside of that Rose Garden, you have a scenario in which you have a president that has thumbed his nose at the law, who has violated the law in a number of ways that have been documented, and who has attacked the integrity of our very democracy, and has impugned the integrity of the Supreme Court by how he has described the judges who've been put on it as "his judges," and has described why he wants this judge confirmed to it, to rule in his favor. And so, the people who are joining with him in these different endeavors, it's as if they're able to put on blinders and ignore the reality, the full record of what's transpiring before our very eyes, which is an assault on the rule of law, an assault on our actual Constitution, an assault on our very institutions both in the executive branch at the Justice Department and other agencies, the way they've been so distorted (and grotesquely distorted) by partisan, right-wing people who Trump has put in power, who have distorted health policy that has resulted in the death of hundreds of thousands of Americans and the infection of millions of Americans, due to the fundamentally immoral actions by this president and by the people he has put in place to distort public opinion, to distort the record about a deadly disease. It's extraordinary to have the Senate in Mitch McConnell and these Judicial Crisis Network people supporting her, the ones that are running ads in support of her at that White House ceremony announcing her, to be acting as if this is just a normal transition of the Supreme Court when, in fact, it's a capture of the Supreme Court and a further deployment of the Supreme Court as a weapon for the far-right to use to impose its narrow views on the rest of America, and to destroy core regulation of businesses in this country, including businesses that have harmed our climate. It is extraordinary to me that these things all seem to happen in these silos from the standpoint of coverage when, in fact, they're inseparable. And the assault on the Supreme Court, this effort to capture it and move it as far to the right as possible for ten, 20, 30, possibly 40 years. And to do it in defiance of the American people's desire to have a fair say is also grotesque. It's another manifestation of the dysfunction of our democracy. And it's not just the president, it's that he has a number of enablers in the administration, and outside the administration, that are willing to turn a blind eye to almost everything he does in order to advance a very narrow and regressive agenda.

BILL MOYERS: It's clear that Chief Justice John Roberts wants people to think that the Supreme Court is a nonpolitical institution, that it's not beholden to the Republican party. But with this new nomination and likely confirmation, it's going to become just the opposite. Beholden to the Trump presidency and to the Republican party.

LISA GRAVES: I think that's right. If Coney Barrett is confirmed to the Supreme Court, it will cast a cloud over every decision that she makes, every decision that this court makes; that this court has been manipulated, has been captured, is designed to be unfair, is designed to put the thumb of the far-right and the corporate right-wing on decisions of this court. And that fundamentally undermines the idea of an independent court, what is happening to it right now.

BILL MOYERS: Lisa Graves, thank you very much.

LISA GRAVES: Thank you.

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