In This Episode
D.C. is not a state. At least not yet. The District is allowed to govern itself in some ways, but its laws are subject to veto authority by the federal government. All that forms the backdrop for a big dust up surrounding a lengthy effort by the city council here to update the city’s janky old criminal code. What would ordinarily be a technical, local issue turned into a multifaceted political fiasco for the city, the mayor of Washington, the people of Washington, Democrats in Congress, and even President Joe Biden. What was actually in the much-debated bill? Why did Biden agree to overturn it? Will it be revived? Will Republicans continue to use the federal government’s power over the city as a wedge issue to divide Democrats? And what does the whole episode say about the future of the city and its and its determination to govern itself completely? Slate writer Mark Joseph Stern joins host Brian Beutler to discuss the actual substance of the bill and what the whole incident reveals about how sincerely Democrats support equal rights and democracy reform, and whether they’re equipped to fight against an increasingly fascist opposition party.
Brian Beutler: Hi, everyone. Welcome to Positively Dreadful with me your host, Brian Beutler. So here’s a quick summary of my time in Washington, D.C., which at least partially shapes my perspective on this week’s conversation. I’ve lived here almost continuously since about this time in 2005. When I arrived. The city was in the early stages of a big revival. Its population had just started growing again after shrinking pretty continuously since the civil rights era. Its crime rate and particularly its violent crime rate were falling. Combine those two things. And one, there was a lot of optimism about the city’s future. But two, housing costs skyrocketed. I remember hearing from some worrywarts when I was finalizing my plans to move here and they warned me, don’t go east of 16th Street or 14th Street. Only when I got here to find out for myself that there were a ton of fun things to do east of 16th Street and lots of people were out and about doing them until late into the night. But D.C. still had this reputation for being a dangerous city, and in some ways, and in some places it was before those falling crime rates bottomed out in the early to mid aughts, there were still about 150 to 200 murders a year. That was way down from the height of the crime wave in the late eighties and early nineties, when there were probably three or four times as many, but more per capita than some other cities that were also growing again in this sort of miracle mayor era. And a large percentage of my friends in the aughts were mugged or jumped at one point or another in that stretch. I personally had a run in with a couple of would be muggers in 2008 who wanted me and a friend of mine to hand over our phones. And when we refused, one of them shot me three times. So. So just as a benchmark, violent crime can be at that level and that level sort of too high for anyone to be complacent about, but still compatible with a vibrant city life and a sense of optimism and a sense that nearly all people can go where they please and do what they please without hassle. Most of the time. I continued to live my life in that spirit through the ensuing decade, and and for most of that time, crime continued to drop. The city continued to grow. Housing became less and less affordable. And through that period, questions about how D.C. could and should adjust to its growth seemed to overshadow questions about public safety. Over the last couple years, that dynamic has at least partially reversed. For reasons that are hard to sort out, but probably have something to do with a mix of Donald Trump, the pandemic, social media, DC’s lack of statehood. It’s a very complicated set of issues. But housing prices are still sky high, and yet homicides are basically back up to where they were when I first moved here. Crime overall is probably down a bit, but we don’t know if homicides are flat or rising or falling. Carjackings and auto theft are way up at the moment, which seems to become something like a fad crime, at least in Washington. Parts of downtown Washington are experiencing something like a depression, which I think is a consequence of work from home policies that have cleared out office buildings in the city center. So if you look at the circumstances today and the ones that prevailed 15 years ago, things look similar in a lot of ways. Just at a snapshot level, but the trajectories are reversed and that’s contributed to what anecdotally, anyhow, seems to be a growing sense of foreboding. Some of that is based on reality and lived circumstances and some of it is sort of like heebie jeebies or vibes fueled by sensationalized media, and all of it forms the backdrop for a big dust up. You may have heard about, surrounding a lengthy effort by the city Council here to update the city’s janky old criminal code. So this is, in one sense, a very local issue, maybe even a passing issue, but it’s also a multifaceted political fiasco for the city, the mayor of Washington, the people of Washington, Democrats in Congress and Joe Biden. It touches on everything from how sincerely Democrats support equal rights and democracy reform to whether they’re equipped for a fight against small l liberal America, against an increasingly fascist opposition party to whether local leaders in cities like Washington and elsewhere understand how fragile the urban revival of the past two decades is. So the shortest version of the crime code story is that thanks to the Constitution and decades of political neglect and cowardice, D.C. is not a state. At least not yet.
[news clip]: And yet, what the Democrats really are trying to do that they will not admit is gain even more representation by creating a city state whereby they get two more senators.
[news clip]: Even putting aside these practical and constitutional problems with D.C. statehood, though, we return to a basic truth. Washington is a city with all the characteristics of a city, not a state.
Brian Beutler: And without the autonomy of statehood, it’s something like a vassal of the federal government without real representation. For the past 50 years, D.C. has enjoyed at least some measure of sovereignty thanks to a law known as home rule. And that law allows D.C. to govern itself in some ways, but it doesn’t control much of its criminal justice apparatus. Federal prosecutors and federally appointed judges run much of the show there, and our laws are subject to veto authority, basically by the federal government. Pretty much every time Republicans come to power in Washington, perhaps particularly when they come to power in Congress and the president is a Democrat, they try to intrude on D.C. sovereignty. They portray the city as a hotbed of sin and Black violence and then use the federal government’s power over the city as a wedge issue to to divide Democrats. Do Democrats want to vote to uphold abortion on demand and drug use and violent crime? And that’s basically what happened with the D.C. criminal code rewrite. It passed the council unanimously. The mayor, Muriel Bowser, vetoed it, citing a handful of measures either didn’t like politically or on policy grounds. The council overrode her veto, and so House Republicans started doing their thing. They immediately introduced legislation pursuant to the home rule law to overturn the new criminal code. The Biden administration issued a policy statement claiming to oppose this GOP intrusion on home rule. And so most House Democrats took that as a sign that they should vote against the resolution. But when it became clear that the resolution would pass both the House and the Senate, Biden pulled the rug out from under them and said he’d sign the resolution anyhow, citing the very same provisions that Bowser cited when she vetoed the bill initially. Biden specifically cited a provision that lowers maximum penalties for carjacking. So now Senate Democrats are racing to throw the D.C. Council under the bus, Washington, D.C. under the bus. House Democrats are furious at the White House. The White House is pissed at, I guess, the council for not Republican proofing their criminal code rewrite. But most importantly, they’ve thrown the baby out with the bathwater. And so D.C. will continue to live under a century old criminal code, complete with laws banning common scolds and other nonsense. And even beyond that, many critics worry that Democrats have really just shown their cards revealing an at best, tepid commitment to D.C. statehood. Though when push comes to shove, they’ll cave to Republican bullying and propaganda and leave D.C. residents without real representation, even if they’re lucky enough to win another governing trifecta at any point in this coming decade. I share some of those worries, but I also have to confess that in civic terms, I’m a pretty bad D.C. citizen. I’m fully immersed in what’s happening in federal politics, but I’m a fairly low information voter about my own city. If there’s fun and interesting things to do within walkable distances and local businesses seem full and things seem safe, I’m pretty content and try to tune things out. But when the downtown collapses and local reporters say the city is struggling to keep repeat offenders off the streets and the mayor vetoes a criminal code rewrite, I’m as susceptible to these kinds of reflexive concerns as any normal citizen, not just about the crime bill and what the bill would do, but about the overall viability of this place I live in. And I don’t think you can completely detach the fact the Republicans found a target and hit the target from this greater context about what’s happening in Washington, D.C. right now. The good news is this week’s guest, Slate writer Mark Joseph Stern, knows what the D.C. crime bill does and is, generally speaking, a better citizen of the district than I am. And so we’ll get into all of it. What’s in the bill? Why did Biden agree to overturn it? Will it be revived? And what does the whole episode say about the future of the city and its determination to govern itself completely? Mark, it’s good to see you.
Mark Joseph Stern: Good to see you, too. And thank you so much for having me on.
Brian Beutler: What did I get wrong there? Presumably something since, as I said, I’m bad at being a local resident.
Mark Joseph Stern: No, I think you got most of it right. I’ll just say, you know, we’ll dig into a few of these contested issues, like how exactly the code is outdated. You know, it’s not just about these provisions that still ban like playing any ballgame in an alley [laughter] or being a common scold or housing your mule for too long on D.C. property. It’s also and more importantly, about the facts that the current code was written by Congress in 1901 and is just horribly antiquated in every way you can imagine, including a number of super vague and ambiguous and sometimes just downright unconstitutional provisions that actually prevent police and prosecutors in many cases from doing their job because there’s so much uncertainty about what the law permits and prohibits, what elements of a crime prosecutors will have to prove in courts that they just give up and are unable to prosecute certain crimes and try to shoehorn actions into other criminal offenses where they don’t really fit. The whole thing is a mess for everybody, and I think it’s important to remember that it’s not just about like the code being written in an old timey font or using like thee and ye and that kind of thing. It’s about being super ambiguous to the point of not helping the city actually enforce the law and keep the peace.
Brian Beutler: As luck would have it, these are like the first questions I had for you. [laughter] Like for those specifics that you said we’d get into later, it’s not that like the penalties are flibbertigibbets or whatever. I do want to talk about the provisions in the bill that ultimately doomed it or like at least became the pretext for overturning it. But what was the what was the central aim of the rest of it like the biggest problems it was meant to solve. You were alluding to those, but let’s put meat on on that bone.
Mark Joseph Stern: Yeah. [laughs] So one one thing that’s really basic is that in modern criminal law, it is a constitutional requirement that every crime have a number of elements and each element has to be proved to a jury beyond a reasonable doubt. So the elements of, say, robbery and this is just off the top of my head, the person had the intent to, you know, steal a certain amount of property from an individual, took an overt act to further that and, you know, whatever. And all of those points have to be proven to a jury. The current code does not explain the elements of many, many, many crimes and does not actually say what a prosecutor has to prove to a jury to convict someone of a crime, which forces courts to simply make it up. And so we have spent decades in D.C. courts trying to figure out what a law forbids and what it doesn’t. And the answer in a lot of cases, including for a lot of very common crimes, is still unclear. So so that’s like problem number one. Problem number two is that the code was primarily written in 1901. It’s been updated piecemeal over the last century, and that has led to a lot of bizarre disparities and incoherence, inconsistencies within the code. So, for instance, like attempted property crimes are punished more harshly than actual property crimes. The crime of robbery encompasses anything from pickpocketing to brutally beating someone within an inch of their life and carries the exact same penalty. The crime of carjacking, as we’ll discuss hopefully in great detail, is not divided into armed carjacking or unarmed carjacking. And the penalty is way higher than any judge actually hands down, which has led to all kinds of problems. And there’s just no proportionality or sense of coherence in the way that the crimes are ordered and defined. And I know that might sound like a silly kind of technocratic problem, but this was actually a crisis in American law up until the 1960s, when the American Law Institute wrote the model Penal Code, which a majority of states have already adopted to modernize their criminal codes. And that is at bottom what D.C. was trying to do, to do exactly what 35 plus other states have already done, modernize the criminal laws so that they make sense so that a regular person can read and understand them and so that prosecutors and police can enforce them in a way that is coherent and consistent.
Brian Beutler: So, I mean, what I gather then is that the law is a big law, and it’s sort of a mix of elements that might make the criminal justice system here more fair, but also just make for a smoother, functioning criminal justice system so that the like process of law enforcement can can be streamlined and. You know. It’ll help police focus on what they’re supposed to be doing and help prosecutors focus on what they’re supposed to be doing. And judges focus on what they’re supposed to be doing without getting tied up in ancient procedural knots. And that, if anything, that was like the bigger part of it, then, you know, what we normally think about when we when we talk about criminal justice reform. And that’s gone too now.
Mark Joseph Stern: Yeah, absolutely. And, you know, you can actually go read the law that the D.C. Council passed when it created this commission that ultimately wrote the revised code. And it had a number of goals for the commission. And notably, absent from those goals was any reduction in mass incarceration or racial inequities in the system. The commission was not told to address those problems, and so it did not actually address those problems to the extent that it imposed reforms. Those reforms were designed to make sentences more proportionate to the crime in light of how people are actually being sentenced here in D.C. and also in light of other state sentencing practices. The commission crunched just a mind boggling amount of data to see how a person is typically charged, convicted and sentenced for something like robbery all around the country and used that to try to figure out how to make this proportional. It was not saying, well, we just don’t think this crime is such a big deal, you know, so we’re going to reduce it because we want to go soft on carjackers. It was how are other states doing this? What’s working, what isn’t, and how can we adopt what’s working for D.C.? [music plays]
Brian Beutler: So I can see, like clearly why law enforcement officers, city administrators would find that all to the better and think it was actually essential to get done. And then I could also see why, if you, you know, do man on the street type conversations about it and you explain all that to them, they’d say, that sounds great. Do you think that it would have, you know, beyond sort of teaching people about it and then thinking it sounded good, do you think it would have affected day to day life in the city in meaningful ways, that people would then be like, oh, yeah, like, look, the the revised criminal code did X-Y-Z, that made things better.
Mark Joseph Stern: The vast majority of D.C. residents would have no idea that this code was passed or that this code took effect. It was set to take effect in 2025. Build in a large buffer so that everybody involved could learn it and implement it. I really don’t think that the average person on the street would have a clue that things had changed. So many of these changes were so purely technocratic that it’s very difficult to even think of a circumstance in which a normal non-lawyer and nonpolitical obsessive would somehow notice that, like the laws operating in the background of our criminal system had had changed in some ways that like made them more coherent. It’s just impossible to imagine.
Brian Beutler: Right. And that and that, I assume, extends not just to like, you know, beautification of the city or whatever, but like this passes and it’s not like crime shoots through the roof or crime collapses. It’s it’s really much more about the administered ability of the city for the people who do that work.
Mark Joseph Stern: Yeah. And, you know, at some points that I’ve been [laughs] trying to make in my coverage of this. Two of the key players here in drafting this new code were the U.S. Attorney’s office, which is the federal prosecutor in D.C. and the D.C. attorney general, which is the local prosecutor. Together, those two offices prosecute all crimes in the district, adult and juvenile minor, to very, very serious. They had a seat at the table and participated the entire time and were very, very thoughtful in reflecting on how they could make their jobs easier and fairer through this code. And they voted, along with the rest of the commission unanimously, to send this code to the council for passage. So to say that prosecutors hated this or that it’s, you know, anti-police or anti prosecutor, it is just flatly untrue. And it ignores the history of how this came to be, which is totally intertwined with how the prosecutors in D.C. wanted to move forward in charging and proving crimes here in the district.
Brian Beutler: Okay. But so they worked on it literally for years. All the stakeholders had input. But am I wrong that in the home stretch, both Bowser and the U.S. attorney for D.C. said, wait a minute, we actually don’t like the final bill because of such and so provisions.
Mark Joseph Stern: So the U.S. attorney never actually came out in opposition to the bill. The U.S. attorney did raise several concerns about the bill. Bowser took it further. She said she agreed with 95% of the bill, but that that remaining 5% was so troubling that she had no choice but to veto it. We can dig into the politics—
Brian Beutler: Yes.
Mark Joseph Stern: —of Bowser—
Brian Beutler: Well yes, both.
Mark Joseph Stern: —and the police union and the prosecutors [laughs] and all of that, but I mean that unfortunately, from from my perspective really dominated the narrative. And although I think the council acted nobly in this whole process, I do think the council failed to get out of in front of this as a political issue, did not do enough work explaining to the district, to the public why it was passing this bill. Yes, it tried to some degree, but it was not as quick in countering lies as it might have been. And I think it rested on an assumption that Democrats and the president would come to the council’s rescue if this all went haywire. And of course, that assumption proved false.
Brian Beutler: Yeah, and I think embedded there and we will get to the politics in a second. But like another aspect to that last point about trying to be like think ahead to the politics on Capitol Hill is that those become more complicated when D.C. itself is not presenting a united front. So when the mayor says support 95% of this, 5%, I don’t I’m going to veto it over those 5% unless you guys remove those provisions that, you know, a savvier council might say maybe we should work with her on this so that she doesn’t veto it, because if she does, that’s going to make it easier for Republicans to demagogue. And we know how Democrats act when Republicans start demagoguing stuff like they tuck tail and run. And yeah, I like, this whole episode has made me. Has has caused me to ask questions about who who advises the council on federal politics stuff [laughs] but—
Mark Joseph Stern: I think. I don’t think it’s really anyone. Actually, I think this is part of the problem is that the council is so inwardly focused that it’s not thinking through what the Hill could do to screw it over. And so, yeah, absolutely. Like, would it have been bad policy to cave to Bowser and change that 5% of the bill? Definitely bad policy, bad effect on real people’s lives for no good policy reason. But would it have been better than the entire bill going up in smoke? For sure. And that is the kind of sophisticated realpolitik kind of calculations that all politicians are supposed to make, but that our lovely little D.C. council maybe did not take seriously enough despite the threat of an incoming Republican House.
Brian Beutler: Okay. So you say that those provisions those 5% as Bowser characterized it, of of the bill were good. So what what were they and why were they justified?
Mark Joseph Stern: So let’s start with like the number one thing here that Bowser talked about, that Biden talked about, that Republicans really focused on, which is carjacking. So the huge criticism of this bill is that it lets carjackers off easy. It frees carjackers to jack as many cars as they want and they just get a slap on the wrist. That is untrue. That is grievously untrue. What the bill actually does is reduce the maximum penalty for carjacking from 40 years to 24 years. And it does that because the commission looked at the actual sentences handed down in D.C. Superior Court for carjacking over the last decade and saw that no judge was ever handing down a sentence for carjacking longer than 15 years. So the commission said, well, what we should do is lower the penalty, still keep it nine years higher than anyone is ever getting for carjacking. So that in the most egregious, incorrigible case, a judge still has that latitude. But let’s at least reduce it so that it is more in line with practice in D.C. Superior Court. And again, you know, that is just like a good government kind of thing because reformers and criminal justice, people in general want the law on the books to reflect the law on the ground and having a maximum penalty that is wildly higher than the actual penalties being handed down. It creates this disproportionality that has ripple effects all throughout the rest of the code.
Brian Beutler: So that the you know, under the under the revised criminal code, the maximum sentence for like the most violent kind of carjacking would be 24 years.
Mark Joseph Stern: So let me stop you there. No.
Brian Beutler: Okay.
Mark Joseph Stern: The maximum sentence for a standalone offense of carjacking would be 24 years. But there are a ton of other offenses that come with carjacking, possession of a dangerous weapon, possession of an illegal firearm, felon in possession. All of those can be slapped on and in many cases are if there is injury to the driver, if there is kidnaping, if there is homicide, all of those are standalone offenses that all carry their own penalties. And those penalties can be stacked on top of each other, which means they can run not at the same time, but consecutively. So someone gets 24 years for the standalone crime of carjacking, ten more years for various weapons offenses, 20 plus more years for any injury they inflict. They are looking at a de facto life sentence. So even that 24 year figure is actually incredibly misleading because judges can and would stack these sentences to ensure that truly violent offenders are kept away for a very long time.
Brian Beutler: That’s like I didn’t know that until right now. And, you know, I was coming into this conversation prepared to say, you know, people are making a huge deal about the reduction of the maximum penalty for carjacking to 24 years and I’m thinking like and I’m thinking this is somebody who has been a victim of violent crime. Like, that’s a long time on the scale of a human life. 24 years is a long time. And, you know, for for even worse crimes than than stealing a car. But I didn’t I didn’t realize that if you like, steal a car. And in the process, I punched the driver in the face, then you’re looking at even more than 24 years. At the lower end of the scale. Is it four years for like if somebody leaves their car idling and you hop in and drive off with it?
Mark Joseph Stern: Well, so this is the other controversial thing that the law does, which is eliminate many, though not all, mandatory minimum sentences. And the reason for that is, I think like should be self explanatory. There’s this guy named Joe Biden who opposes mandatory minimums, this other guy named Merrick Garland you might have heard of who is currently trying to work around mandatory minimums in federal law. It is the official policy of the Biden administration that mandatory minimums are bad. Why? Because we all know mandatory minimums were introduced in the 1980s as part of the war on drugs, also as part of the war on Black communities that forced judges, that really handcuffed them to these disproportionately high sentences that prevent them from taking any kind of mitigating factors into account. So one thing this bill does, again, is is just eliminate a lot, though, again, not all mandatory minimums for these crimes so that judges have broader leeway to take into account mitigating factors. So, look, if a if somebody jacks a car and doesn’t hurt the person inside and they jack an idling car and they drive away, I don’t know how long that person would necessarily get under the revised code, but I know that it would probably be years and years and years even though they didn’t injure someone. And I really doubt that it would be any lower than they would really receive under the current law, because, I mean, maybe it’s a possibility, but it just seems unlikely that judges would alter their sentencing practices when they’re given more latitude to do what they’re already doing, if that makes sense.
Brian Beutler: I just thought I thought that there was like a maximum for that kind of like you don’t actually you’re not actually assaulting anyone or battering anyone or pointing a gun in their face. There’s just somebody leaves their car idling. You hop in and you drive off. I thought that there was like—
Mark Joseph Stern: If you do that and you have, you know, I’m not actually see this is starting—
Brian Beutler: Okay.
Mark Joseph Stern: —to get into the gradations of the different offenses.
Brian Beutler: Okay. We don’t have to—
Mark Joseph Stern: Yeah, sorry. [laughs]
Brian Beutler: I only I only I only mention that because I’ve heard from critics of the bill that it that in lowering the statutory maximums, it’s not just, you know, 24 years at the at the high end that lower down in the severity of crime where it’s not like a carjacking anymore but more like I don’t know, like property theft because it’s just idling there that it lowers the maximum penalty for that, too. And like, once again, like, I find myself thinking that, you know, carjacking is a very vivid kind of crime. And obviously, if you leave your car idling and you go inside someplace for 30 seconds and you come out, your car’s gone, like that really sucks. [laughs]
Mark Joseph Stern: Right.
Brian Beutler: But like, if if you know, if somebody sets a briefcase that has a watch in it down on the sidewalk and somebody else grabs it, it runs off, and then that guy gets caught, and then they go to prison for four years for it. I don’t feel like anybody would really say that guy got off real easy. [laughs] You know what I mean?
Mark Joseph Stern: Yeah.
Brian Beutler: Like four years is not like 24. It’s shorter than that, but it’s still like a long time to be locked up in a cage for what was ultimately, like, a crime of opportunity that, you know, maybe you hoped that you would, you know, end up with with something a little less valuable than a Rolex. But [laughs] I don’t know.
Mark Joseph Stern: Yeah, or maybe a fake Rolex. I mean [laughter] one of the problems here and this makes it difficult to talk about with a lot of specificity, I have a chart of like all of the current penalties and then what the revised penalties would be that I can whip out. But the basic issue is that a lot of the current laws are not divided into first degree, second degree and third degree. So there’s no gradation between the severity of the offense. And so, I mean, the best example here is for robbery, where, again, like, you know, a pick pocketer and a brutal assaulter are facing the same maximum sentence of 15 years. That’s because there’s no gradations within the within the crime. And what the new code does is create those gradations. But that has allowed Fox News to claim falsely that the crime of robbery has seen the maximum penalty drop from 15 years to two years. Well, that is only true in the sense that, yes, pickpocketing is now punishable by two years, but a violent beating for robbery is punishable by up to 14 years, which is only one year lower than it’s currently handed down and is also longer than most sentences that are being handed down. So, you know, this is where like getting into a debate here becomes very difficult if you’re if your opponent is deciding to be slippery because you can pluck out these individual comparisons and say, well, robbery has gone down, way down. That’s just a two year max. That’s ridiculous. And it’s very difficult to explain. Like that is third degree unarmed robbery. If we get out our matrix and we go three squares down into the right, you’ll see that the sentence for a you know, that is not a good way—
Brian Beutler: Yeah.
Mark Joseph Stern: —to win an argument. And that is hindered a lot of debate about this.
Brian Beutler: Yeah, you have to memorize every single detail in the code to wage that argument and they have to memorize like the lowest numbers in the code—
Mark Joseph Stern: Yeah.
Brian Beutler: —which they can then throw throw at you like, well this crime, low sentence case closed and yeah. And then, you know, the truth is still getting his pants on so I am persuaded that the the sentencing maximum thing, the carjacking thing specifically is a is a red herring. The other issue that I’m familiar with is surrounds the I guess one could call it an an unfunded mandate around the new codes. Is it a guarantee of a jury trial, even in all misdemeanor cases?
Mark Joseph Stern: Yeah. So here’s the thing. D.C. had misdemeanor trials up until the nineties when due to some of the budget crises that you alluded to at the outset, partly related to violent crime, partly related to the hollowing out of American cities, led to the defunding of misdemeanor trials. And so since the nineties we have not had them. The problem here is partly on principle, but just partly as a straightforward Sixth Amendment issue. So the Sixth Amendment guarantees a right to a trial by jury for criminal offenses. The Supreme Court has held that that right does not attach unless the individual faces more than 180 days in jail. And so D.C. has designed its harshest misdemeanor punishments to be 180 days, which would mean in theory, if you’re convicted of a misdemeanor, you only face 180 days, the Sixth Amendment does not apply to you. The problem here, again, is that judges can stack sentences, including misdemeanor sentences. And so you could face four different misdemeanor convictions and be sentenced to 180 days for each of them, which takes you far, far beyond the maximum amount of incarceration that the Supreme Court has permitted without a trial by jury. And so what the new law does is phase in even more slowly than the other provisions, misdemeanor trials, so that individuals can vindicate their Sixth Amendment rights that they have been able to for most of D.C. history. This is a sort of aberration in our current moment. Would I call it an unfunded mandate? Sort of the issue here is that, you know, Congress pays for our court system, Congress pays for our judiciary. The money that it puts in is frequently fluctuating. And Charles Allen, who was one of the leaders of this of this drive to push the new bill, he’s a member of the city of the D.C. Council. He has already been working with Chuck Schumer to increase the amount of funding for the D.C. courts up to the point that this bill would be fully implemented and people would have misdemeanor trials. That would be a good thing for a lot of reasons. The courts are already clogged up. We don’t have enough judges. We don’t have enough money. A lot of people have to wait forever to get a trial. And so the idea here was that it would be doubly good, like we would fix the current problems that we have with the system and we would allow for misdemeanor trials so that people would have their Sixth Amendment rights vindicated and there would be enough money and enough judges for all of that to happen. That then became an argument against the bill by opponents because they said, well, everybody accused of a misdemeanor is going to refuse to take a plea deal. They’re going to demand a trial and that’s going to clog up the system and prevent the the prosecutors from ever obtaining a conviction. That is a hypothesis of how this would work. It would almost certainly be false if Congress expanded funding, which I think it probably would do eventually if this bill were passed. But now we’ll never really know because it seems like the bill is permanently dead and misdemeanor trials are never coming back.
Brian Beutler: Just as a technical question, did the jury trial guarantee also attach in cases where someone’s charged with a single misdemeanor with a sentence below 180 days, or would would defendants in that circumstance still be denied a jury trial?
Mark Joseph Stern: It would cover all misdemeanor offenses.
Brian Beutler: All misdemeanor. So. So even in cases where there wasn’t a stacking issue, this provided the Sixth Amendment right even to the—
Mark Joseph Stern: Yeah.
Brian Beutler: —you know, in excess of what the Supreme Court has guaranteed.
Mark Joseph Stern: Right.
Brian Beutler: Okay—
Mark Joseph Stern: As many states already do. And by the way, as as the D.C. Court of Appeals has actually already ruled applies to immigrants who risk getting deported if they are convicted of a misdemeanor. We have this bizarre system where if you’re an immigrant who is facing a misdemeanor charge in D.C., you get a jury trial because deportation is a really bad threat to your liberty. But if you aren’t an immigrant, if you are a U.S. citizen who doesn’t face deportation, then you don’t get a jury trial for a misdemeanor offense because you don’t face deportation. And 180 days in jail isn’t that bad.
Brian Beutler: I am really interested in what you said about the what you implied. I think about the the code as written being maybe a forcing mechanism to to make Congress take DC’s under-resourced courts more seriously because, you know, the sentencing maximum stuff that’s just like Democrats scared of being called weak on crime. Right. I think we can chalk all of it up to that. Here you have like an actual policy dilemma in that it would you know, it would set up a sort of looming cliff. And if you if you go over the cliff in a couple of years and Congress doesn’t give you what you need to process all all of those cases, then the courts could become overrun. Like the hypothesis is not crazy—
Mark Joseph Stern: Can I just add a little footnote, though?
Brian Beutler: Sure.
Mark Joseph Stern: Almost all of this discussion is sort of pitting no trial versus jury trial, but already people charged with misdemeanors can have a bench trial in front of a judge with no jury, which already requires a lot of time and resources and requires a full on trial. It’s just that a judge is deciding guilt or not guilty as opposed to a jury. And we don’t see a huge number of misdemeanor defendants seizing upon their right to a bench trial in order to clog up their their like the entire system and convince prosecutors to toss the case.
Brian Beutler: Right.
Mark Joseph Stern: So I guess the theory is specifically that like the time that it takes to do voir dire would clog up the system, which I don’t think it stands up to a lot of scrutiny. But I just wanted to add that footnote.
Brian Beutler: Yeah, I mean, I guess I don’t know if I were like a public defender or or just regular like a defense attorney, whether I would see that as like a way to hack the system. Like, hey, look like you’re, you’re, you’re on the hook for 1 to 3 misdemeanors. Let’s just ask for a jury trial and see if that. See if that like gets them to back off.
Mark Joseph Stern: Right.
Brian Beutler: I mean, I don’t know how it would work out, but I take your point. But I was I was aiming at something more specific to to the council, which is that if they if they had articulated this as like we need Congress to take our needs seriously. Like if they’re going to criticize D.C. for, you know, problems with our criminal justice system while denying us the judges we need to have a smoothly functioning criminal justice system like it’s it it’s like trying to have it both ways to say that, oh, we set up an unfunded mandate. It’s like, yeah, we set up an unfunded mandate so that you’d give us what we need or so that you changed the law so that we can pay for our own judges. But as you say, we can’t do that even when the cities flush with revenue.
Mark Joseph Stern: Well, and we can’t even confirm our own judges. The Senate confirms presidentially nominated judges to D.C. Superior Court. And so, I mean, there is some collaboration. Sometimes when Democrats have Senate control, they do talk to local leaders. When Republicans have control, they don’t really care. But like, it’s it’s it is absolutely part of a broader crisis that we face. And I do think that forcing Congress’ hand one way or the other would have been effective. I don’t think that the council articulated that very well, and I fear the council did not do as good a job as it could have. Countering all of these criticisms of the unfunded mandate with the more technocratic explanation of why it is long past time to force Congress’ hand.
Brian Beutler: Okay. So in another city. If this same bill kind of bill passed, we just take for granted. And, you know, if there were problems with it and people were concerned, we would take for granted that, you know, if the city government does something unworkable and, you know, three years after passage, problems with the bill arise, we would just assume that it would have to go back and fix it, or we’d assume that, like residents would fix it with a ballot initiative or some democratic process would intercede to fix the problem that the democratic process earlier created. Right. It’s it’s abnormal, even though, like city or state governments do have some authority over city government, some places for for higher powers to just reach into a city’s local affairs and say, sorry, we don’t like this. So the decisions of your democratically elected government are hereby overturned. Like that just doesn’t happen outside of D.C. very much, right?
Mark Joseph Stern: Not very much. Republicans are getting more aggressive about doing that with blue cities in red or purple states. But yes, as a rule, cities are allowed to govern themselves. And there’s a lot of debate about whether D.C. is better compared to a city or a state. But either way, the principle remains the same that when the democratic process produces certain laws, typically we see how those laws play out. And if we don’t like them, we revisit and revise or appeal them.
Brian Beutler: So do you think this does damage to the cause of D.C. statehood? Like like it’s obviously an affront to statehood and to statehood supporters, but does it place statehood further out of reach materially do you think?
Mark Joseph Stern: Oh absolutely. I mean, this is a huge blow to the fight for statehood and just to the fight for preserving home rule. I mean, D.C. has made a lot of gains in home rule over the last 30 years. It’s been three years since since this kind of legislation passed that just openly nullified a substantive bill passed by the D.C. Council. And in those decades, D.C. has done a good job cultivating the Democratic Party and ensuring that the party would sort of stand strong in favor of statehood. We saw that in Biden’s first two years. You know, almost all of the party lined up in support of statehood. The House passed a bill in support of statehood, and undergirding that were a lot of statements that went even broader than statehood, that just talked about the principle of home rule, of autonomy, of respecting the results of a democratic process. And now Democrats have shown that they will abandon those alleged principles when they’re afraid that it might hurt them in an ad a couple of years down the road when they’re afraid that it could produce a few negative news cycles for them or a bad poll. And I think that shows that this was never a true commitment, that this was a trendy thing for Dems to do when they had control of Congress. And then could blame the filibuster on it not actually working. This was a good way to kind of bolster their status as the party of small d democracy after 2020 and January 6th. You know, a lot of the arguments for D.C. statehood are about respecting our democracy and allowing the people’s elected representatives to make the laws. And then as soon as that became difficult, all of it fell away. And I am very skeptical that this will be the end of it. I think that we will absolutely see Republicans who are now totally emboldened by Democrats caving, who are going to introduce more bills like this, more budget riders that try to either repeal or defund various D.C. laws. And it looks like Democrats will go along with at least some of them. And at the end of the day, however many of them pass, it is going to be clear that the Democratic Party never actually believed in D.C. statehood or even D.C. home rule as a as a fundamental principle, and that is going to knock statehood way down the list of priorities if and when Democrats ever regain a trifecta.
Brian Beutler: This is sort of like a weird thought experiment to engage in. But if Senator Ron Johnson decided to retire early to go spend more time with his wife’s plastics fortune and four New York Republican House members resigned in disgrace, George Santos and three others. And so suddenly, Democrats control the House again. And also they have 52 votes in the Senate. And it’s like, you know, it’s like three weeks from now or something like that. You think that with this reconstituted majority. They would they would say, yeah, we’re still not doing statehood. And like, it’s because we’re scared of what will happen when you know, somebody gets killed on the metro three weeks later or whatever.
Mark Joseph Stern: Well I mean, if they did, then Republicans would just say, look, Democrats are trying to insulate D.C.’s radical, soft on crime, criminal coddling policies from congressional review. They’re running scared of, you know, our our strong efforts to make the nation’s capital safe again. And so they’re just using statehood to try to shield D.C. from the congressional adult oversight that it desperately needs. And so, yeah, I think that statehood would not really be a top priority, if any kind of priority, because Dems have let themselves be backed into a corner where any kind of argument for D.C. home rule becomes an argument for letting carjackers get off free.
Brian Beutler: Would you feel any better about that if, instead of emphasizing these, quote unquote, “tough on crime views,” Biden had said, look, I don’t think Congress and the president should trample D.C. sovereignty, and I’m going to keep fighting to give the people of D.C. statehood. But until that happens, I’m also not going to pretend that the power I have over D.C. doesn’t exist. And so I don’t like this new law. Fix it and pass it again.
Mark Joseph Stern: I mean, I don’t really get that argument because, like, Congress has all kinds of powers that it could exercise but does not for good reason. You know, Congress has the power to declare war. Congress could declare war on Canada tomorrow. And if you criticized it, would, would the defenders say well, we have this power. It’s in the Constitution. Why not go ahead and use it? That is the argument that Republicans seem to have mounted. They’re like, oh, well, we have the power to override D.C. laws, so we’re just going to do it. And if you criticize us, we’re going to whip out the Constitution and show you that we can do it. Just because they can doesn’t mean that it’s wise or that they should do it. And so I think my heart would still be broken. I think if there were an effort to let the council repass the bill, that would certainly make me feel a little better. The council wants to do that. Maybe it’s sending kind of mixed signals. I don’t think Bowser is interested in rehashing all of this, but Republicans have made it clear that they don’t want anything to pass, that they want to keep us stuck laboring under the 1901 code. So I would have very mixed feelings and I would still be pretty heartbroken. That’s the answer. [music plays]
Brian Beutler: So, yeah. You were saying that even if Biden had sort of couched his decision to overturn the D.C. Criminal Code in language that was more deferential to the concept of statehood and home rule and D.C. sovereignty, that it wouldn’t allay your concerns about the damage he was doing to the cause of statehood very much. Maybe some, but not not—
Mark Joseph Stern: Yeah. I mean, just look at what he actually tweeted. He said, I support D.C. home rule, but I’m going to sign a bill that nullifies the product of D.C. as democratic process. Those two things are mutually exclusive. You can either support D.C. home rule or you can support nullifying the product of D.C. home rule, you cannot claim to support them both at the same time.
Brian Beutler: Right. And the thing that galls me about it the most, I think is like I’m I’m not really sure it would have been worse for his politics, for Democratic politics, if he’d said, like, I think this bill’s a real stinker. If I were on the council, I’d vote against it or whatever. And I hope the council fixes it. Right. Just does what what Bowser says they should do. You know, if if he said, this is me, sometimes I think Democrats make mistakes and when they do like, I’ll tell you so. But this is ultimately a question for the citizens of the district to decide, not me. And I mean, that’s basically the mayor’s position at this point. Even if she’s sort of secretly grateful that Biden did this, like, you know. We can get into. Why? I don’t think Biden. Can can see that. But but to me, just as far as like. Articulating a position and hoping to derive some political benefit from it or avoid political backlash. Just saying that is a way of saying I look like I’m not. I’m not like the dictator of Washington, DC. And if D.C. wants to pass a terrible bill, that’s their business. And like if if my concerns about this bill are borne out, I hope the residents of D.C. vote their vote in a new council that will fix it or whatever.
Mark Joseph Stern: That could have been one option. But another option for Biden was to explain all of the ways in which this bill is actually tougher on crime than the status quo. And that’s not just clarifying penalties, it’s also harshening a lot of penalties. So the law dramatically increases penalties for various sex offenses, for various gun crimes. It shifts the maximum for attempted murder from five years to 22.5 years. It creates new crimes, including this one really important new felony offense that covers anyone who fires a gun in public. We need that on the books because right now it’s very difficult, surprisingly, for prosecutors to to go after people who fire a gun when they don’t hit anyone because they can’t always prove that they intended to hit someone. This would take care of that problem by making it a standalone offense punishable by prison time for anyone to fire a gun in public. And now we don’t get that law. We don’t get these enhanced penalties against gun crimes, we don’t get enhanced sentences for sex offenses because the Congress took it away while claiming to make us safer. And if Biden had spent any time learning what the bill actually did, he could have talked about that. He could have gotten out in front of it. But instead he decided to take the coward’s way out. And that has led to, I fear, the president just legitimizing all of this hysteria that’s been fomented on Fox News and within the Republican caucus.
Brian Beutler: I mean, it’s it could actually be like it’s not just he could have gotten out in front of what Republicans were going to say about the bill or the law. It’s that he could have said Republicans want to be soft on sexual assault. They want to be soft on gun crime and like use their own kind of tactics against them, but with like the benefit of the truth on his side and that, you know, like like hell, no, he’s not going to override a criminal code that makes people safer. And if Republicans want people to live in more danger, then they should go tell their voters that and see if they get reelected.
Mark Joseph Stern: Yeah. Yeah.
Brian Beutler: I hadn’t actually pondered that because, you know, like like I was saying, I’m a I’m a I’m a bad D.C. resident and I got, you know, somewhat swept up in this idea that like, oh, like, oh, maybe, maybe just in general, this lowers penalties for stuff. And like, of course Democrats are be scared of that. But like as always, I don’t know. They’re, they assume that if Republicans. Give them, like confront them with this choice, overturn the criminal code or leave it in place. The Democrats vote to leave it in place, and Biden chooses to leave it in place that Republicans will pretend as though Democrats are responsible for every violent crime that takes place in D.C. from here to eternity. And so they’ll still scour the news and CCTV for for like the most ghoulish possible footage of, of course, like Black crime. And then they’ll run that nonstop on on Fox, you know, 600 days from now before the next election. And like this terminal D.C. brain to not realize that like, A, there will probably be other stuff on people’s minds 600 days from now but also like they are going to have that part in their campaign no matter what. It’ll just be footage from crime in L.A. or San Francisco or like a swing state city like Milwaukee. And so they have not spared themselves anything by taking the coward’s way out.
Mark Joseph Stern: Well, I totally agree. I’ll just I’d like to be very cynical. If they [laughs] were to take the coward’s way out. They should have settled on that early on instead of changing their minds. I mean, what happened here is that the House Republicans started, you know, working on this bill. The White House issued a statement in opposition to the bill saying President Joe Biden strongly opposes this bill because it is an affront to D.C. autonomy and D.C. statehood. The vast majority of House Democrats voted against the bill, and then suddenly Biden changed his mind and completely reversed positions. So that is leaving all of these House Democrats out on a limb, people like Abigail Spanberger, who’s kind of vulnerable, moderate in Virginia. She’s already facing attack ads for voting against nullifying this bill. And what are the ads say? Even President Joe Biden thought this bill went too far. But Abigail Spanberger is to Biden’s left. She’s a coddler of criminals.
[news clip]: 173 House Democrats voted to support reduced sentences for violent crimes. So crazy even President Biden won’t support the anarchy. What’s next? Defund the police. Tell Abigail Spanberger to keep Virginia families safe. National Republican Congressional Committee is responsible for the content of this advertising.
Mark Joseph Stern: Biden gave them what they needed to make this an effective political attack. So whatever the wisdom of opposing this nullification bill, he had to stick with it if he was ever going to do it and switching horses midstream was just the worst possible way to handle it.
Brian Beutler: Yeah, I you know, I didn’t know about that, that’s a Spanberger ad that’s already airing or?
Mark Joseph Stern: Yeah, it’s already come out.
Brian Beutler: Wow. That’s amazing. [laughs] They’re so good. I mean, I’m sorry. Hats off to Republicans. They’re clever, like, also terrible, but clever. You know, to the question of you know, Biden, presumably in his heart of heart, doesn’t think any president should have this kind of power. But he does still have the power. If we take a generous view of the situation and assume he really knows what’s in this bill and just thinks it’s a really bad bill in the same way that like if we had a very right wing D.C. council and they passed an anti-trans law or an abortion ban or something like that, he’d dislike that bill, too. And then I think advocates would say, look, we want D.C. to be its own state, but you have the power now to stop this from happening. If he genuinely thinks it’s a terrible bill, should he nevertheless step back and say, I’m going to I’m going to not use the power I have to stop it?
Mark Joseph Stern: Gosh, you’re asking me to step into the president’s shoes and make this incred—
Brian Beutler: Well also to imagine a D.C. council that will never exist. But. [laughter]
Mark Joseph Stern: I, I’m. I don’t know. I don’t know. I don’t know. I don’t know what to do. What to do in that position. I don’t know.
Brian Beutler: Yeah.
Mark Joseph Stern: I mean, if the D.C. Council wises up and gets a direct line to the White House and figures out how to do this. That opens up a whole other situation. But what now, what I’m hearing from the council is that they’re also dispirited. They’re not even going to try because they don’t think they can get a House Republicans to agree with anything now that they’ve smelled blood in the water.
Brian Beutler: Yeah. Yeah. I mean, I guess my my my view on that on the whole situation of these sort of. You know, these old anti majoritarian powers that are also sort of discretionary like the filibuster, Right. Like, I support eliminating the filibuster. At the same time, as long as the filibuster exists, I don’t think Democrats should unilaterally disarm and refuse to filibuster Republican bills when Republicans have the Senate. At the same time. Same time, I also don’t think that they should. Just filibuster everything the way Mitch McConnell does out of some—
Mark Joseph Stern: Right.
Brian Beutler: —you know. You know, it’s like it’s it’s it’s analogous in some ways to like prosecutorial discretion. Like. Yeah, a prosecutor has a power to charge a lot of crimes, but based on who they answer to or their own judgment, they sometimes are leaning about some stuff so that they can focus on immigration or whatever. Right. And I kind of see this the same way that. If if Biden, A, doesn’t think he should have this power, but B accepts that he does, then C he should use his discretion to only overturn bills that he thinks are bad on the merits. But this gets us to the irreducible question. Does Biden really think this bill is bad on the merits, or is he just scared or does he even really know what’s in it? And so I—
Mark Joseph Stern: I don’t think he knows what’s in it.
Brian Beutler: Right and so—
Mark Joseph Stern: I just don’t think he knows.
Brian Beutler: I and so I don’t think that you can tackle the rightness or wrongness of what he did without getting into his mind a little bit and the mind of like the Democratic centrist consultant board. Right. And just kind of like use your own judgment and your expertise in politics that you accumulate over years of doing this kind of work to say like, no, he just got spooked and or someone convinced him that he should do this because they got spooked and like. I think that’s what I find the most annoying about this, even though obviously the substantive ramifications are the most important thing is, is that like how much of this whole debate is driven by this these centrist consultant types who have this sort of deep thinking about how politics works? I mean, we’ll never be able to run the experiment twice or anything, but I, I would probably bet some money that this whole thing will end up being a political nullity and would have been if he had, like, stood up for the city and not agreed to sign the bill overturning it. And, you know, I was thinking like the cost to him for going this way is like a more dysfunctional relationship between the White House and Dems on the Hill. And he pissed off a bunch of Democrats who care about small d democracy and criminal justice reform. But apparently he’s also already hurt a bunch of the Democrats who who, like just assumed he would do what his White House said he would do and voted for it. And. I don’t know. It just seems like a total mess.
Mark Joseph Stern: It’s a total mess. It’s. Everybody loses. Everyone loses except for Republicans. [laughter] The city, you know D.C. loses. The council loses. I guess the mayor wins because she got this bill defeated. And so she can tell the police union like you can you can count on me but, you know, the House Democrats lose. Senate Democrats are just going to betray the cause. Now that Biden has sort of thrown D.C. under the bus, we’re going to see 20 to 30 Senate Dems vote for this bill by the time the episode airs, we’ll know for sure because there’s a vote in a few hours. So, yeah, I mean, like it’s really screwed over massive parts of the Democratic Party and Biden doesn’t seem to either know or care.
Brian Beutler: Do you think the situation I mean, I if if ever possible, I like to close out on like a more optimistic note or at least a less pessimistic note. Do you think that like seeing how this is already being used against the people he thought he was protecting politically will make him and maybe the mayor and then maybe the council like get together and just be like, look. Just repass it. And this time I’m solid. If only so that, you know, if if this remains an issue in a year or a year and a half, people like Spanberger could say, no, I was with I was with the president the whole time. And that’s why, you know, the council fixed the bill and and it’s now law and it’s working well, you know, or whatever.
Mark Joseph Stern: It’s a it’s a very narrow path to that outcome. But I think that is the best outcome. The city council bites the bullet, so to speak, and screws up the bill in some ways, screws up some of the provisions, delays its implementation more. Whatever does what Bowser demands, Bowser gets on board, declares victory, and Bowser goes to the White House. I mean, Bowser and Biden have a good relationship like, you know, Bowser is in the driver’s seat here. And I think if she tells Biden, like I’m signing this bill I need you to support it, that would work. And I think that that would create a new cycle of like, yes, Republicans won, but I’m sure they would still oppose the bill and it would allow Democrats to say, well, we made it reasonable and Republicans still oppose it. Now, this is about D.C. autonomy, but will people understand that? Look how long we spent talking about this. And most people are probably still kind of confused about what happened and what the bill does. There are so many layers to this story that I fear that once you abandon that top line principle of deferring to home rule in DC, you lose people and it becomes just a political stinker.
Brian Beutler: Yeah, I. Well, don’t worry about it. We’re going to make everyone in America listen to this episode. [laughter] But I mean, yes, she is a she is a has been like a very loyal Biden ally. I also sense that she’s probably getting between this and like I know that she believes that Biden’s work from home policy for federal employees is at least contributing to the the economic hardship in downtown Washington, which is real. If you walk through it, you can see it. And I wonder like I mean, that’s her legacy. Like people will blame her even if in her mind it’s Biden’s fault or just a pandemic, you know, and like, at some point, is she going to cash in her chips like. At some level, the way things are and the way things seem to be going. If I were her, I would be really worried about my ability to bring the city back to the sort of mid-aughts baseline when when crime was at a low ebb and the city was growing faster and, you know, it was just like the best the city had been in a while, notwithstanding its existing problems of inequality and everything else that like. Now she’s beset on all sides like Biden and his choices and the fact that like anything she tries to do to revitalize the city in other ways could also end up in the in the crosshairs of Republicans. And does she have allies that will protect. What she’s trying to do from that kind of sabotage. I mean, and if and if she’s worried about that, like. Should she speak up and say, like, you know, I, I have held my tongue about this stuff long enough, but and I’ve tried to be a loyal ally to the president, but I’ve reached the end.
Mark Joseph Stern: So I think that what is really going on here is that Bowser wants Biden to make federal workers go back to the office.
Brian Beutler: Yes.
Mark Joseph Stern: This is what’s causing the depression downtown. This is what’s causing the crisis in Metro. This is what’s causing DC’s projected budget shortfall. Biden is between a rock and a hard place because the federal unions don’t want him to make them go back to the office and they’re going to play a big role in his reelection campaign. So you have Bowser on the one hand saying, please make them come back. You have the federal unions, which I respect. On the other hand, saying, you know why? Why should we have to be the economic engine of D.C. and Biden in the middle, trying to figure out where his where his truest loyalty lies. And I suspect that Bowser wants Biden to feel like they’re on the same page and wants to be able to walk into the Oval Office one day and say, Joe, it’s time. I don’t know if this will help her in that quest, but that is definitely one of her chief priorities, because she sees correctly that if we don’t solve that problem one way or the other, the entire revival is at risk of collapsing. And the city could fall into another budget crisis that would draw undoubtedly even more congressional interference in our—
Brian Beutler: Yes, exactly. You end up in this spiraling thing. And like I had sort of assumed that the end when when the public health emergency is officially over in May like that would be when Biden decided to call the federal workforce back, if only you know, because he also clearly doesn’t want COVID and COVID mitigation to be a major topic of political discussion. And if federal workers are working from home under, for, in order to supposedly avoid exposure to COVID, then A, you’re talking about that again. But B, you’re also like you’re like teeing another thing up for for Republicans, which is like the next Republican president is definitely going to call them back. So, you know, it’s either now or in two years or else they’ll like they’ll try to do it directly, like force the workforce back into the office over Biden’s hemming and hawing about it.
Mark Joseph Stern: Yeah.
Brian Beutler: Like at some point the hemming and hawing itself is the thing that is creating all these problems for Bowser and for Biden. I don’t know.
Mark Joseph Stern: I agree. I think that you and I would make a really good president mayor, tag team [laughter] and we could figure all this stuff out Brian.
Brian Beutler: Yeah, I agree—
Mark Joseph Stern: We could make it work.
Brian Beutler: —I agree too. I hate to say that I would want to be president in that circumstance because it sounds like big footing, but as I’ve said multiple times [laughter] I’m a terrible D.C. citizen and so I probably shouldn’t be mayor. [both speaking] Mark Joseph Stern. [laughter] Mark Joseph Stern, thank you for spending so much of your time with us. I really appreciate it.
Mark Joseph Stern: Yeah of course. Thank you so much for having me on. [music plays]
Brian Beutler: You may have noticed that I was struck when Mark mentioned the Republicans had already begun using Biden’s decision to nullify the D.C. crime bill to go after House Democrats like Abby Spanberger, who stood up for D.C. sovereignty and voted to uphold it only to get the rug pulled out from under her by Biden himself by recording time. I hadn’t seen those reports, but I have now and they’re revelatory to me in a couple of ways. First, they make manifest the totally predictable consequences of Biden’s decision to reverse himself, a decision he made, presumably from a defensive crouch to protect himself and his party, not himself, at the expense of his party. If he believed all along that the D.C. Criminal Code reform was toxic. He would have opposed it from the get go so that the easily spooked House Democrats would feel free to vote against it. The alternative? Pretending to support it, knowing he’d later reverse himself only makes sense if you think he wanted to set a trap for Democrats like Spanberger. I don’t think he did. I do think he got spooked himself or got bad advice after his party was already dug in. By then, the responsible and strategically wise decision was to just stick to his guns. Either oppose the D.C. bill on the merits, but stand up for democracy anyhow. Or flip the script. Use details from the bill like stiffer penalties for sex offenders to attack Republicans for being soft on sex offenders. What he ultimately did underscores the obvious follies of triangulating between Republicans operating in bad faith and matters of basic principle, or of reflexively splintering in fear. Whenever some right wing coded issue like crime becomes salient for some reason. These follies began with Mayor Bowser, continued with the D.C. Council, and then became a problem for the whole party. When Biden pulled this switcheroo. And the larger problem is these kinds of dilemmas will keep tripping Democrats up until they defeat the root source of them, which is the bad faith actors themselves. They thrive on poisoning reasoned debate. In this case, the substance of the bill basically disappeared from the debate, and Democrats had to choose between fight and flight. They will keep confronting that decision unless and until they figure out how to make bad faith acting politically toxic in and of itself, and let the Republican Party choose between its nature and its survival. [music plays] Positively Dreadful is a Crooked Media production. Our executive producer is Michael Martinez, our producer is Olivia Martinez and our associate producer is Emma Illick-Frank. Evan Sutton mixes and edits the show each week. Our theme music is by Vasilis Fotopoulos.