A number of you have written in to ask about Ezra Klein’s audio essay “Democrats Have a Better Option Than Biden: It’s requires them to embrace an old-fashioned approach to winning a campaign.” Is it a good argument? Does it change the equation? What do I make of it? Just for the purposes of cutting to the chase: my answers are “not really,” “no” and “not much.” But Klein is a smart, articulate guy and sitting at the top of the Times op-ed page he has vast influence. So I wanted to break the argument down into its moving parts.
Klein begins his essay by assuring us that he likes Joe Biden and actually thinks he’s done a good job as President. This is to soften the reader up and dispel any notion that he’s got some anti-Biden axe to grind. I don’t think Klein is disingenuous or cynical about this. I think he believes it. He not only doesn’t think age has hindered Biden in doing the job as President so far; he doesn’t think it would in a second term either. The issue for him, Klein says, isn’t about being President but running for President: Biden has slowed down considerably, even from his last run in 2019–2020, and Biden simply is not up to running a vigorous campaign in which the candidate is an asset, not a liability.
Sixteen years ago, things looked bleak for Ed Buckham. The former chief of staff to the House Majority leader had been swept up in a wave of scandal, found himself under investigation by the FBI and, ultimately, was forced to close down his lucrative lobbying firm.
The lawsuit seeks US$10 billion in damages and a court order to force the companies named in the lawsuit – including Smith & Wesson, Colt, Glock, Beretta and Ruger – to change the way they do business. In January, a federal appeals court in Boston decided that the industry’s immunity shield, which so far has protected gun-makers from civil liability, does not apply to Mexico’s lawsuit.
As a legal scholar who has analyzed lawsuits against the gun industry for more than 25 years, I believe this decision to allow Mexico’s lawsuit to proceed could be a game changer. To understand why, let’s begin with some background about the federal law that protects the gun industry from civil lawsuits.
Gun industry immunity
In 2005, Congress passed the Protection of Lawful Commerce in Arms Act, which prohibits lawsuits against firearm manufacturers and sellers for injuries arising from criminal misuse of a gun.
Importantly, there are limits to this immunity shield. For example, it doesn’t protect a manufacturer or seller who “knowingly violated a State or Federal statute applicable to the sale or marketing” of a firearm. Mexico’s lawsuit alleges that U.S. gun-makers aided and abetted illegal weapons sales to gun traffickers in violation of federal law.
According to the lawsuit, the manufacturers intentionally design their weapons to be attractive to criminal organizations in Mexico by including features such as easy conversion to fully automatic fire, compatibility with high-capacity magazines and removable serial numbers.
Mexico also points to industry marketing that promises buyers a tactical military experience for civilians. And Mexico alleges that manufacturers distribute their products to dealers whom they know serve as transit points for illegal gunrunning through illegal straw sales, unlicensed sales at gun shows and online, and off-book sales disguised as inventory theft.
In short, Mexico claims that illegal gun trafficking isn’t just an unwanted byproduct of the industry’s design choices, marketing campaigns and distribution practices. Instead, according to the lawsuit, feeding demand for illegal weapons is central to the industry’s business model.
In response, the gun-makers insist that Mexico’s attempt to hold them legally responsible for the criminal activity of others is precisely the type of lawsuit that the federal immunity shield was designed to block. They argue that merely selling a product that someone later uses in a crime does not amount to a violation of federal law that would deprive a manufacturer of immunity. Additionally, the gun-makers assert that, even if Mexico’s lawsuit were not barred by the immunity law, they have no legal duty to prevent criminal violence that occurs outside the U.S.
The next legal steps
In January 2024, a federal appeals court in Massachusetts decided that Mexico’s allegations, if true, would deprive the gun-makers of immunity, and it sent the case back to trial court. Mexico now needs to produce evidence to prove its allegations that the industry is not only aware of but actively facilitates illegal gun trafficking.
Additionally, to win, Mexico will need to convince a Boston jury that the manufacturers’ design choices, marketing campaigns and distribution practices are closely enough connected to street crime in Mexico to consider the companies responsible for the problem. This is known as “proximate cause” in the law.
For their part, the gun-makers have asked the trial judge to put the case on hold while they pursue an appeal to the U.S. Supreme Court. However, the Supreme Court has been reluctant to weigh in on gun industry cases until they have reached their conclusion in the lower courts, where most of them are dismissed and a few have settled.
High stakes for the industry
If Mexico does win at trial, its demand for $10 billion in damages could drive several of the nation’s largest firearm manufacturers into bankruptcy. Even if the case were to settle for much less, a victory by Mexico would provide a template for a wave of future lawsuits that could change the way the gun industry operates.
Similar theories about dangerous product designs, irresponsible marketing and reckless distribution practices in opioid litigation have transformed the pharmaceutical industry. Civil lawsuits have forced the drugmakers to take public responsibility for a nationwide health crisis, overhaul the way they do business and pay billions of dollars in judgments and settlements.
Mexico’s lawsuit holds out the prospect that the gun industry could be next.
Fulton County Superior Court is holding the second day of its hearing on whether to disqualify District Attorney Fani Willis from prosecuting the Donald Trump election interference RICO case over allegations that she received an improper financial benefit via a relationship with an attorney she contracted to prosecute the case.
Let me share some numbers with you. And let me preface this by saying that I am also very concerned about how perceptions of Joe Biden’s age and mental acuity are going to affect the outcome of this election. Emerson just released a new presidential poll which has Donald Trump up by 1 point over Joe Biden. It’s 45% to 44%. That’s in line with polls over the last month or so which show a very slight move back in Biden’s direction. (All margin of error but across numerous polls means a touch more.) It’s also a “registered voters” screen. And there’s decent evidence that those polls are understating Biden’s strength. They also polled Harris, Whitmer and Newsom. They were down, respectively, 3 points, 12 points and 10 points. Trump’s support was basically identical in every case. 45% with Biden and Whitmer, 46% with Harris and Newsom.
Importantly, this poll is generally in line with other polls going back many months. Most others I’ve seen don’t show Whitmer and Newsom quite that far back. But they’re consistent in showing the other top tier contenders to be no stronger than Biden and usually weaker.
I’m tempted to say, TPM gets results! But it’s not quite that simple, at least in terms of mainstream chronology.
But it’s still super good. So hold tight.
Yesterday I brought you the news of the war time school board of Douglas County, Nevada, which culminates in the hiring of a new superintendent who has the kind of rap sheet that might normally get you expelled from a public high school as a student. All true!
But I’d missed the latest development.
As I explained, last week, the Douglas County School District school board formally offered the job of superintendent to John Ramirez, Jr., by a 4-to-3 vote, notwithstanding the fact that, according to this article at local news site Carson Now and other reports, he has a long list of bad acts, misuse of school credits cards, alleged frauds and multiple formal complaints of sexual harassment. Even more dirty laundry came out in subsequent days. Then on Tuesday of this week a new board meeting was held.
Do you have five minutes to answer a few questions? We aren’t offering any gift card drawings, but on your deathbed you will receive total consciousness – which is nice – and you will help us learn more about how we can improve and adapt TPM to this increasingly volatile news environment. All answers are confidential and used only for internal research. Thank you!
Through two years of war, the people of Ukraine have kept their pets close despite challenging conditions.
A Ukrainian serviceman and a husky during a training session
A serviceman from the 128th Mountain Assault Brigade of the Ukrainian Ground Forces is hunkering down by a Husky as he trains to use a 120mm mortar on December 28, 2023. (Photo by Ukrinform/NurPhoto via Getty Images)
Ukrainian soldier in a trench with his dog
A Ukrainian soldier is seen with his dog in a trench in his fighting position in the direction of Gorlivka in Donetsk Oblast, Ukraine on November 26, 2023. (Photo by Diego Herrera Carcedo/Anadolu via Getty Images)
Ukrainian tank crew with a dog nearby
This photograph taken on December 13, 2023 shows a dog sitting in the snow next to a Ukrainian tank crew in a position near to the town of Bakhmut, Donetsk region, amid the Russian invasion of Ukraine. (Photo by ANATOLII STEPANOV/AFP via Getty Images)
A woman caring for abandoned pets in a frontline city
Lida takes care of several abandoned cats and dogs as the Russia-Ukraine war continues in the frontline city of Huliaipole, Ukraine on May 11, 2023. The city is still heavy damaged and being bombed by planes. The city has lacked water and electrical power since March 2022. (Photo by Andre Alves/Anadolu Agency via Getty Images)
Woman walking her dog past her destroyed building
Tatiana Chvalun, 70, walks her dog Buru past her residential building, which was destroyed as a result of shelling in March 2022, killing 54 people, in the town of Izyum, Kharkiv region. (Photo by ANATOLII STEPANOV/AFP via Getty Images)
A woman walks her dogs next to damaged buildings
A local resident walks with her dogs next to a damaged residential building in Chasiv Yar, eastern Ukraine, on January 5, 2023, amid the Russian invasion of Ukraine. (Photo by DIMITAR DILKOFF/AFP via Getty Images)
A Ukrainian soldier seen befriending a stray dog
Ukrainian soldier Genadi is seen with a stray dog in front of an armored vehicle as they continue in the direction of Bakhmut on the Donetsk front line. (Photo by Muhammed Enes Yldrm/Anadolu Agency via Getty Images)
A Ukranian police officer with his sniffer dog at a checkpoint
Andriy Symchuk, National Police officer of Lviv region, stands with “Bars,” his sniffer dog, at a checkpoint in Izyum, Kharkiv region, on September 25, 2022, amid the Russian invasion of Ukraine. (Photo by YASUYOSHI CHIBA/AFP via Getty Images)
A girl sits with her dog and cat in a subway station
A girl sits with her dog and cat in the Dorohozhychi subway station which has been turned into a bomb shelter on March 02, 2022 in Kyiv, Ukraine. (Photo by Chris McGrath/Getty Images)
A man and his dog sheltering in an underground metro station
A man and his dog are seen resting at the metro station in Kharkiv. Citizens in Kharkiv have been forced to adopt to a new life underground in metro stations, as the second biggest city in Ukraine now faces constant threat of Russian bombardment and airstrikes. (Photo by Alex Chan Tsz Yuk/SOPA Images/LightRocket via Getty Images)
A girl is seen with her puppy in a railway station
A girl affected by the Dnipro river flood evacuates to Lviv from the Kherson railway station with her puppy. Many people near the river shore lost their home under the waters after the destruction of the Nova Kakhovka dam by explosives, on June 11, 2023. (Photo by Celestino Arce/NurPhoto via Getty Images)
Army sergeant plays with a dog while on duty in the Bakhmut district
Sergeant Runa plays with a dog during combat duty on November 10, 2023, in the Bakhmut District of Ukraine. Ukrainian forces continue to fight to retake Bakhmut, which was captured by Russian forces in May, following a yearlong war battle. Over the summer, Ukraine regained territory north and south of Bakhmut but Russia has held the city itself. (Photo by Kostya Liberov/Libkos via Getty Images)
A Ukranian soldier seen with a dog along the front line
A Ukrainian soldier is seen with a dog along the front line south of Kharkiv, Ukraine on July 21, 2022. (Photo by Wolfgang Schwan/Anadolu Agency via Getty Images)
A Ukrainian soldier plays with dogs as he holds his position at the front line
A Ukrainian soldier plays with dogs as he holds his position at the front line near the Russian-occupied Ukrainian city of Horlivka, Donetsk region, on December 14, 2023. (Photo by ANATOLII STEPANOV/AFP via Getty Images)
A man holds his dog while standing in front of a house in ruins
Oleksandr Ivashchenko holds his dog in his arms and stands in front of a ruined house on February 1, 2023 in Bilohirka, Kherson Oblast, Ukraine. At the beginning of the full-scale war, due to the Russian occupation, all the inhabitants of the village of Bilohirka in the Kherson Oblast, numbering up to a hundred, left. The Armed Forces of Ukraine liberated the settlement in September 2022, but the people have nowhere to return to — Russian shells destroyed all the houses. (Photo by Yurii Tynnyi/Suspilne Ukraine/JSC “UA:PBC”/Global Images Ukraine via Getty Images)
A woman and her dog asess the damage to their home following an attack
An elderly woman stands with her dog in her damaged house following a Russian shelling attack in Kherson in April 2023. (Photo by Aziz Karimov/SOPA Images/LightRocket via Getty Images)
The smoldering confrontation in an Atlanta courtroom between District Attorney Fani Willis and the coterie of Trump co-defendants had so many layers of gender, race, and power dynamics that it felt like a theatrical production in which the playwright got a little too exuberant and ended up with an over-the-top script.
Any playwright would die for Willis’ meme-a-minute dialogue, throwing off lines so memorable and original that it was hard to keep up:
“A man is not a plan.”
“I’m not going to emasculate a black man.” (Oh, but she did.)
“I’m not a hand holder.”
Willis: Let’s go on and have a conversation. I don't need anything from a man. A man is not a plan. A man is a companion. I don't need anybody to foot my bills. The only man who has foot my bills completely is my daddy. pic.twitter.com/721zUSUCex
The hearing was ostensibly about whether her romantic relationship with the special prosecutor she hired to manage the RICO election interference case was disqualifying. But that was a thin veil over the roiling cauldron of disrespect, racist tropes, and public humiliation that the defendants were indulging in.
Willis came in red hot, literally running from her office to the courtroom when it was her time to testify. She took over the room. She raised and waived objections from the witness chair. She refused to be led down primrose paths by defense counsel. She talked over everyone: defense counsel, the judge, and her own team. I couldn’t help but think that Trump himself would secretly admire her command and bravura.
But it wasn’t the performative high dudgeon that Bill Clinton patented and every politican since has doubled down with. It was the seething, barely controlled anger of a Black woman put in a position none of her white male counterparts have had to endure, at the hands of a criminal defendant no less. White prosecutors have used the power of the law to torment Black people for centuries, but a Black woman becomes prosecutor and finds herself tormented by white criminal defendants.
ATLANTA, GEORGIA – FEBRUARY 15: Attorney Allyn Stockton, representing Rudy Giuliani, speaks during a hearing in the case of the State of Georgia v. Donald John Trump at the Fulton County Courthouse on February 15, 2024 in Atlanta, Georgia. Judge Scott McAfee is hearing testimony as to whether Willis and Special Prosecutor Nathan Wade should be disqualified from the case for allegedly lying about a personal relationship. (Photo by Alyssa Pointer-Pool/Getty Images)
The most telling moment of the day for me came midway through her testimony, when Rudy Giuliani’s local attorney Allyn Stockton took his turn. He politely introduced himself to Willis and addressed her as “Madam District Attorney” and “Madam DA.” It was a modicum of respect. It was properly deferential to her position and role. Don’t be confused: He was adverse to her, and he proceeded to go after her, in a measured and professional way. But that show of cordiality and basic respect seemed to me to make Willis’ face relax, her body language loosen, her volume go down, and transformed her argumentativeness into a more conversational tone. He gave her deference she had earned, deserved, and was demanding for herself.
I personally think Willis erred by becoming involved with Wade. It put the prosecution of her career at risk. Maybe that would be the conversation to have if white male DAs who boink people in their office were dragged into court by criminal defendants on the regular. Not saying it’s never happened, but I’ve never seen it.
Most of the news coverage elided the racial and gender power dynamics at play. But Black people recognize this modern day spectacle of demeaning and dehumanizing treatment: Willis’ personal life scrutinized, her sex life exposed to public ridicule, her ways of handling money and relationships treated not as a difference of culture or social class but as unethical and disqualifying. And racists recognize it, too! Fox News was beside itself with the spectacle. To take one example, actually just one word: “pedigree.”
Watters claims ‘These cartoon characters don't have the pedigree to be in the same courtroom as the former president.’ pic.twitter.com/Ub2mF8Hfuj
If Black people know what’s going on here and racists know what’s going on here, then why is everyone else content to leave their heads in the sand?
What Happens Next
The Georgia hearing continues today. Willis is due to continue her testimony, but I’ll be curious to see if her team declines to ask her any questions given her strong performance yesterday and instead just proceed straight to its case.
As for the judge, I suspect he’s looking for any way not to disqualify her. She’s the elected DA! Her office handles thousands of criminal cases a year. Judges don’t want to open the door to criminal defendants seeking to delve into the personal propriety of the prosecutor. It would be a nightmare beyond this historically important case.
There was one strong witness against Willis, a former friend of hers who was fired as an employee of the DA’s office who testified that the Willis-Wade relationship began before she hired him in the RICO case. That upsets the timeline to which Willis’ has staked her defense. But Willis’ own testimony was compelling (and to a degree so was Wade’s). My own sense was that by the end of the day the judge was satisifed with the explanation and has found himself a way out of this mess.
Don’t expect a ruling today. The judge said it would come later.
Trump’s First Criminal Trial Is All Set
The other significant news in Trump prosecution world yesterday was in the Stormy Daniels hush money case, where the judge denied Trump’s motions to dismiss and kept the March 25 trial date. Jury selection is a little over a month away.
Waiting On SCOTUS
Following Trump’s reply filing late yesterday, the Supreme Court could announce as early as today whether it will take Trump’s immunity appeal up in the Jan. 6 case. Stay tuned.
BREAKING …
Russian dissident Alexei Navalny, 47, has died in prison, according to a statement from the federal penitentiary service for the region where he was incarcerated.
It’s an unbelievable turn of events for Rep. James Comer (R-KY), Sen. Charles Grassley (R-IA), and the far-right media-propaganda complex who had trumped up Alexander Smirnov’s allegations. Philip Bump grapples with the implications for the Bidens’ accusers (and what a fantastic kicker to Bump’s story – be sure to click on it).
How’d it play on Fox News? It didn’t.
Fox's talk shows have been obsessed with the allegation of a "Biden bribe." Now the so-called "informant" has been arrested and charged with lying. The # of times this bombshell was mentioned by Laura Ingraham, Jesse Watters and Sean Hannity tonight: Zero.
MT-Sen: After one week in the race, Rep. Matt Rosendale (R-MT) has dropped his bid for the GOP nomination to take on Sen. Jon Tester (D-MT). Rosendale was totally screwed when Donald Trump endorsed NRSC-backed GOP candidate Tim Sheehy on the same day Rosendale announced his candidacy. The move does put Republicans in a stronger position to unseat Tester.
WI-Sen: Sen. Tammy Baldwin (D-WI) will be challenged by Republican businessman Eric Hovde.
Nikki Haley: Trump’s court “chaos” will sink Republicans in November.
Have A Great Holiday Weekend!
Morning Memo can’t thank you enough for your support and feedback. See you back here Tuesday!
Fulton County Superior Court held a hearing Thursday to address whether District Attorney Fani Willis should be removed from prosecuting the Donald Trump election interference RICO case.
Over a full day of dramatic testimony, Willis and prosecutor Nathan Wade both took the stand, facing questions from lawyers for Trump operative Mike Roman, for Trump himself, and for other defendants in the RICO case. The day concluded with two hours of questions in which Willis mounted a fiery rebuttal to the accusations about her and Wade’s relationship, repeatedly accusing Roman’s lawyer of lying.
