Greg Abbott's Jury Nullification

The pardon is even worse than it looks.

Governor Greg Abbott (Photo by Michael M. Santiago/Getty Images)

“The benefit of control of the state is less the power to persecute the innocent; more the power to protect the guilty. Texas Governor Abbott is about to demonstrate what I had in mind.” –David Frum

Happy Thursday.

We’ll get to the Texas pardon story in a moment, but let’s catch up a bit first:

• The Wapo has the scoop: Leaker of U.S. secret documents worked on military base.

• Grift watch: Special counsel focuses on Trump fundraising off false election claims.

• Under oath again. What could go wrong? “Trump to be deposed in New York AG's business fraud lawsuit.”

• Fox News has another epically sh*tty day in court: “Judge Imposes Sanction on Fox for Withholding Evidence in Defamation Case.”

• My Kevin’s hostage crisis is about to get worse. Puck News: “The Taliban 20’s McCarthy To-Do List.”

  “There’s no reason for the 20 to negotiate against what was already agreed to,” [Matt] Gaetz told me, regarding the grab bag of promises they extracted in exchange for supporting Kevin McCarthy’s speakership in January. “We shouldn't have to pay twice for the same hostage.”

• The fight over abortion pills remains a clusterf**k. “Appeals court partially blocks federal judge's abortion pill ruling.”

  However, the three-judge panel determined that other parts of Kacsmaryk's ruling, which suspends changes the FDA later made to mifepristone's approved use and halts distribution of the drug by mail, could still go into effect at the end of the day Friday.

• Witness intimidation in broad daylight. “Trump sues ex-lawyer Michael Cohen after grand jury testimony.”

  The lawsuit comes as Cohen, who once said he would "do anything" to protect Trump, appears poised to become a star witness against him at a possible criminal trial in New York on the charges unsealed last week.

• The DiFi drama deepens.

  [Less] than an hour after POLITICO broke news of growing concerns about Feinstein’s slow recovery from the shingles — Rep. RO KHANNA (D-Calif.) tweeted something that many Democrats were saying privately:

  “It’s time for @SenFeinstein to resign. We need to put the country ahead of personal loyalty. While she has had a lifetime of public service, it is obvious she can no longer fulfill her duties. Not speaking out undermines our credibility as elected representatives of the people.”

• “Republican election denier expelled from Arizona House.”

  Liz Harris, an election-denying Republican lawmaker in the Arizona house of representatives, was expelled by her colleagues on Wednesday after she invited to a committee hearing a conspiracy theorist who accused elected officials of unproven corruption and bribery.

  Republican and Democratic representatives joined together to expel Harris with a 46-13 vote

• Meanwhile… “How Tennessee Became the Poster State for Political Meltdown.”

  Today, Tennessee represents the grim culmination of the forces corroding state politics: the nationalization of elections and governance, the tribalism between the two parties, the collapse of local media and internet-accelerated siloing of news and the incentive structure wrought by extreme gerrymandering. Also, if we’re being honest, the transition from pragmatists anchored in their communities to partisans more fixated on what’s said online than at their local Rotary Club.

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Our Cartoonish Politics

It was nearly seven years ago (in October 2015) that veteran journalist John Harwood asked Donald Trump: "Let’s be honest: Is this the comic book version of a presidential campaign?"

And yet here we still are. We discussed that (and much more) on yesterday’s Bulwark podcast.

You can listen to the whole thing here.

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Abbott’s Nullification

I am a bit late to this story because, I have to admit, part of me thought: Surely this cannot be as mind-bendingly awful as it sounds.

But it is.

Texas Governor Greg Abbott appears determined to pardon Daniel Perry, who was just convicted of murdering BLM protester Garrett Foster.

And so begins another chapter in our political devolution.

**

“The jury’s verdict was both reasonable and consistent with Texas law,” writes Radley Balko, but the “entire horrific incident is now firmly enmeshed in the culture war.” As usual, Fox News has seized on the case with a torrent of misinformation, and Abbott has seized on the murder as an opportunity for tossing more bloody red meat to the base.

I suppose we could think of it as the Kyle Rittenhouse Effect, but this case is much worse.

The day the jury unanimously convicted Perry, Abbott declared on Twitter: “Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury or a progressive District Attorney.”

Nick Catoggio notes that Abbott makes “no specific allegation of misconduct. The closest Abbott gets is accusing the jury and local district attorney of having ‘nullified’ the state’s ‘stand your ground’ law, which smells suspiciously like code for ‘reached a verdict that offends my political prejudices.’”

Either Abbott is suggesting that Perry’s account of what happened is so compelling that it should override the considered judgment of the D.A., a grand jury, and a trial jury—which is unlikely—or he means to signal that anyone who kills a left-wing activist in Texas should and will be excused provided there’s a fig leaf of self-defense.

And, indeed, that seems to be exactly what Abbott is signaling.

**

Radley Balko breaks down what we know about the case:

— According to multiple witnesses, Perry ran a red light, then accelerated directly toward a group of protesters. He could easily have driven around the protest. He did not.

— According to multiple witnesses, Perry’s car nearly struck Foster’s fiancée Whitney Mitchell and the man who was pushing her wheelchair. (Mitchell is a quadruple amputee. Not related, but also awful — year later, an Austin police officer would dump her from her wheelchair during a protest.)

— According to multiple witnesses, protesters then surrounded Perry’s car, some of them kicking or slapping at the outside of it. Foster stood next to the car, holding his rifle. Multiple witnesses say Foster never pointed his rifle at Perry, though it’s worth noting that these witnesses were protesters, and thus hostile to Perry. The only photo of the incident is ambiguous.

— Perry himself initially said Foster never pointed the rifle at him. During his police interrogation, Perry said, “I believe he was going to aim at me. I didn’t want to give him a chance to aim at me.” If someone is holding a rifle in your general vicinity, but not pointing it at you, you do not have legal cover to kill them.

— According to multiple witnesses, Foster also gestured for Perry to move on. He also instructed Perry to stay in his car to avoid any further confrontation. Neither is consistent with someone who presented an immediate threat to kill or harm Perry.

— Despite claims from right wing personalities, Foster never fired his gun.

— Even if Foster had pointed his gun at Perry, he would not have been in violation of Texas law. Based on Perry’s actions — running a red light toward a group of protesters — Foster had good reason to believe that Perry was attempting to harm Foster and those around him. He had the right to use lethal force to defend himself and others.

— At Perry’s trial, a defense expert testified that Foster could have raised his rifle and shot Perry in well less than a second. This is irrelevant. Texas is an open carry state. Anyone openly carrying a rifle could, in theory, point, aim, and kill someone in a fraction of a second. If what Foster did justifies lethal self-defense, you could plausibly argue the same about anyone carrying a rifle in public, particularly at a protest, or at any tense situation where there’s the possibility of conflict.

The court record is filled with details about Perry’s possible motivation. “There is ample evidence,” writes Balko, “that Perry intended to harm the protesters.”

— In one Facebook comment responding to a post about protesters in another state, Perry wrote, “send them to Texas. We will show them why we say don’t mess with Texas.”

— A friend of Perry’s also testified that a month before the incident, Perry had texted him to ask about other incidents in which someone had shot at protesters, and inquired if those shootings were legal.

— In the weeks leading up to the incident, Perry had conducted internet searches on the phrases “protest tonight”, “protesters in Seattle gets shot,” “riot shootouts,” and “protests in Dallas live.”

— After that latter search, Perry texted to a friend, “I might go to Dallas to shoot looters.”

— Among the other messages and comments he had recently sent or left online: “I might have to kill a few people on my way to work they are rioting outside my apartment complex,” and “No protesters go near me or my car.”

**

But in the right-wing media ecosystem, it is Foster who is being demonized, while his murderer is lionized. Writes Balko: “You only valorize Garrett Foster’s killer if you’ve convinced yourself that Foster deserved to die….

If Abbott and the Texas pardon board want to free Perry and clear his record, they have the power to do it. But we ought to be clear about why they’re doing it. This isn’t about the rule of law. It’s the rule of ideology, enforced with violence.

Balko’s analysis here is scorching:

For all the degeneracy on the political right in the Trump era, this is what I find most alarming—the dehumanizing of political opponents to the point where violence isn’t merely justifiable, it’s almost a moral imperative.

Their opponents aren’t just wrong, they’re criminal.

People accused of crimes aren’t just presumed guilty, they deserve to be abused by police. Immigrants aren’t just crossing the border illegally, they’re mostly rapists and criminals.

Protesters aren’t merely misguided, they should be flattened by big-ass trucks.

Exit take: This is how a cold civil war becomes a hot one.

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Quick Hits

1. Tim Scott Looks at Joe Biden and Thinks Civil War

Amanda Carpenter writes in today’s Bulwark:

Scott declared his ambition to seek the highest office in the land on Wednesday, April 12, with an ad filmed at Fort Sumter, where the first shots of the Civil War rang out 161 years earlier to the day. He wanted people to pay attention to that fateful anniversary.

Because the way Scott sees it, America is on the verge of another civil war. And if you think Scott is talking about the threat posed by Donald Trump’s insurrectionist mob, well, HAHAHAHAHAHA. Wrongo!

Scott, that winsome, uplifting, inspiring, rising star of the GOP, is launching his presidential exploratory bid on the notion that it’s Joe Biden who is leading a new confederacy that threatens to tear the country apart.

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2. Ron DeSantis’s “Insidious” Immigration Bill

Tim Miller in the Bulwark:

RON DESANTIS’S REMARKABLE 2023 legislative session is replete with compassionless quasi-conservative bills that he hopes will power an upcoming presidential campaign. The session is set to reach its apex this month with the signing of a Stephen Miller-style immigration law that targets immigrant communities in his not-really-a-border-state state.

HB 1617: “An Act Related To Unlawful Immigration,” has yet to garner a catchy “Don’t Say Gay”-type moniker to describe its barbarism. My proposal, the “Miep Gies Criminalization Act of 2023,” probably won’t be the one that sticks.

But the name of DeSantis’s legislation matters less than the particulars. Among them: requiring hospitals to collect the immigration status of patients and report it to the government and preventing legal DACA recipients from obtaining law licenses.

But the most troubling provisions are related to the “transport” and “harboring” of immigrants….

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Cheap Shots

The stupid. It burns.

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