The Morning Dispatch: The Kraken is Backtrackin’

Happy Tuesday! Declan’s March Madness bracket in the TMD pool is currently 850th out of 1,197 completed entries. Everyone point and laugh at Declan.

Quick Hits: Today’s Top Stories

• Ten people were killed in a shooting at a grocery store in Boulder, Colorado yesterday, including a Boulder police officer. Authorities said the alleged shooter is in custody, and the ongoing threat to the public has ended.

• AstraZeneca announced yesterday that U.S. Phase III trials found its two-dose COVID-19 vaccine to be 100 percent effective at preventing severe disease and hospitalization and 79 percent effective at preventing symptomatic illness. The NIH, however, issued a statement early this morning expressing concern that AstraZeneca “may have included outdated information from that trial” leading to an “incomplete view of the efficacy data.”

• The United States—in conjunction with the United Kingdom, Canada, and European Union—imposed sanctions on two Chinese officials for their role in the People’s Republic of China’s “genocide and crimes against humanity in Xinjiang.”

• The Senate voted 68-29 on Monday to confirm Boston Mayor Marty Walsh to lead the Department of Labor.

• President Biden on Monday formally announced his intent to nominate Big Tech critic Lina Khan for Commissioner of the Federal Trade Commission.

• Eric Greitens—the former Republican governor of Missouri who resigned under threat of impeachment in 2018 after the woman with whom he was having an affair accused him of blackmail and physical abuse—announced last night he is running for the open U.S. Senate seat in Missouri in 2022. Sen. Roy Blunt recently announced he is not running for reelection.

• Elgin Baylor, the Hall of Fame forward who played 14 seasons with the Los Angeles Lakers, died Monday at the age of 86.

• The United States confirmed 49,255 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard. An additional 532 deaths were attributed to the virus on Monday, bringing the pandemic’s American death toll to 542,888. According to the Centers for Disease Control, 26,215 Americans are currently hospitalized with COVID-19, and 2,028,324 COVID-19 vaccine doses were administered yesterday. 82,772,416 Americans have now received at least one dose.

The Kraken is Backtrackin’

As all but our youngest Dispatch readers will remember, there was a presidential election in November—and a lot of people spent a very long time in denial about its outcome. Many are still there: 65 percent of Republicans in an Associated Press poll last month said they believe Joe Biden was “not legitimately elected” to the presidency.

Within that 65 percent, the denialism isn’t monolithic. Some cite so-called “censorship” by Big Tech and “the media” as justification for their claims, while others argue expanded absentee balloting in states across the country created vulnerabilities in election infrastructure. But those truly dedicated to the cause believed that Smartmatic and Dominion Voting Systems conspired with communists in Venezuela, Cuba, and “likely” China to use Hugo Chavez-directed software to rig the election against Donald Trump.

That theory, of course, comes—more or less verbatim—from on-and-off Trump campaign lawyer Sidney Powell, and formed the basis of a series of “Kraken” election lawsuits across the country that went nowhere in court. Powell shared these hypotheses, flanked by top Trump campaign and GOP officials, from a podium at the Republican National Committee in November. She shared them—or had them cited, unchallenged—dozens of times on Fox News and Fox Business between the election and January 6. She shared them with Donald Trump himself at the White House as late as December 18—four days after the Electoral College met and voted. On January 3, three days before the assault on the Capitol, Trump retweeted Powell’s claim that “this ‘election’ was stolen from the voters in a massive fraud.”

Powell pushed a variety of conspiracies before settling on her foreign-intervention fantasy. “There has been a massive and coordinated effort to steal this election from We the People of the United States of America, to delegitimize and destroy votes for Donald Trump, to manufacture votes for Joe Biden,” she told Maria Bartiromo—and millions of Fox Business viewers—on November 8. “They have done it in every way imaginable, from having dead people vote in massive numbers, to absolutely fraudulently creating ballots that exist only voting for Biden. … They also used an algorithm to calculate the votes they would need to flip. And they used the computers to flip those votes from Biden to—I mean, from Trump to Biden.”

But Powell may have flown too close to the sun. She was hit with a $1.3 billion defamation lawsuit in January from Dominion alleging she spread her false claims about the company’s machines deleting or flipping votes “to financially enrich herself, to raise her public profile, and to ingratiate herself to Donald Trump.”

Now that Powell is facing real consequences for her rhetoric, she is singing a different tune. Seeking to dismiss Dominion’s lawsuit, the pro-Trump lawyer and her legal team filed a motion on Monday arguing that “no reasonable person would conclude that [Powell’s] statements were truly statements of fact.”

Rather, Powell and her attorneys argue, her allegations about Dominion were political in nature, and therefore, citing an earlier case, “prone to exaggeration and hyperbole.” And she claims Dominion’s suit makes her case for her.

“Indeed, Plaintiffs themselves characterize the statements at issue as ‘wild accusations’ and ‘outlandish claims,’” the motion continues. “Such characterization of the allegedly defamatory statements further support Defendants’ position that reasonable people would not accept such statements as fact but view them only as claims that await testing by the courts through the adversary process.”

Powell’s legal team went on to argue that the case involves “a matter of public concern,” and that Dominion had “already been subject to scrutiny” well before Powell entered the scene. Plus, they made the case that Dominion failed to prove Powell knew her statements were false. “In fact,” the motion reads, “she believed the allegations then and she believes them now.”

As ridiculous as this all sounds—and is—the legal strategy has proven effective in the past. Fox News was able to get a defamation lawsuit against Tucker Carlson dismissed last year by getting a judge to agree that “given Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’ about the statements he makes.” Comcast and MSNBC did the same with a defamation case against Rachel Maddow. “The point of Maddow’s show is for her to provide the news but also to offer her opinions as to that news,” a judge wrote. “Therefore, the Court finds that the medium of the alleged defamatory statement makes it more likely that a reasonable viewer would not conclude that the contested statement implies an assertion of objective fact.”

The circumstances are different here: Powell certainly presented herself as a serious lawyer. In claiming that “no reasonable person” would believe what she was saying to be true, she is impugning the intelligence of not only the former president of the United States and countless GOP lawmakers, but also millions of Republican voters that donated to or otherwise supported her efforts in recent months.

Powell’s efforts to undermine the results of a legitimate election have, of course, caused damage that extends far beyond the $1,3 billion price tag placed on it by Dominion. The same can be said about Trump’s former personal attorney Rudy Giuliani and MyPillow CEO Mike Lindell, both of whom are also currently being sued by Dominion, as well as Fox News itself, which is currently being sued by Smartmatic. For two months, they pushed evidence-free claims that the election was stolen from Trump, eroding trust in the very foundations of American democracy and misleading millions of voters. The violent consequence of this misinformation campaign was the Capitol riot of January 6, and its impact on institutions and how voters perceive election integrity will continue to be felt regardless of the result of the lawsuits.

The effects of this campaign of deceit are still evident today. In his recent public appearances, Donald Trump has continued to insist that the election was stolen, claiming “we won the election as far as I’m concerned” in an interview on Fox yesterday. Later today, Regent University is hosting a symposium on “election integrity” featuring a number of prominent election conspiracy theorists, including Eric Metaxas and the team of conspiracists from The Gateway Pundit.

And if Sidney Powell is backing away from some of her wildest claims, others are still pushing them. A March 11 article in The Federalist decried the fact that Powell’s claims weren’t taken seriously by the courts. “The Supreme Court also refused to hear any of Sidney Powell’s cases—in Arizona, Wisconsin, and Michigan—and in doing so, deprived Americans of the chance to hear evidence for and against very serious claims that electronic voting machines could be manipulated,” wrote Bob Anderson. “Of all of the allegations, perhaps none more so instilled fear into voters as the possibility that our votes could be tampered with and changed, thwarting democracy itself. Did the machines really show decimal totals for votes rather than integers? Were they designed to flip votes, and in such a way that no audit could trace it? Were these machines connected to the internet on election night, and did data show that foreign actors accessed it? Voters will never know.”

Latest on the Southern Border

Is there a crisis at the southern border? In recent weeks, the Biden administration has danced around the question of how well it is handling a surge of migrants attempting to cross from Mexico into the United States. Homeland Security Secretary Alejandro Mayorkas testified before a House committee last week that his department was facing “historic and unprecedented challenges at the border”—but insisted that the administration was doing the best it could to get the U.S. asylum system up and running again after it ground nearly to a halt under President Trump.

The difficulties involved with that task, however, are only becoming more apparent. Border crossings—particularly of unaccompanied minors—are approaching all-time highs. Biden’s backers correctly point out that has as much to do with the previous administration’s policies as the current one’s—the Trump administration shuttered all asylum proceedings last year, ostensibly as a Title 42 pandemic public health measure, and the resulting backlog of people meant border crossings were always going to spike when that temporary measure ended, as it now has for unaccompanied minors. But the fact remains that the U.S. simply isn’t currently equipped to process them all.

Migrants whom the Border Patrol determines are unaccompanied minors must be handed over to the Department of Health and Human Services to be placed with a sponsor or in a facility that meets minimum quality-of-life standards. But when there are more minors than HHS can process in a timely fashion, they are instead temporarily shunted sideways into grimmer DHS facilities unequipped to house children humanely—which is exactly what’s happening now. Photos obtained by Axios this week show crowded conditions in Border Patrol “overflow facilities,” with dozens of unaccompanied minors huddled side-by-side under Mylar blankets.

For liberals, such images evoke those taken when the same facilities were used as part of the Trump administration’s despised 2019 “zero tolerance” policy, under which the number of unaccompanied minors in federal custody surged for another reason: The administration was making thousands of children unaccompanied by arresting and holding their parents for crossing the border illegally, even when they were not charged with other crimes. The Biden administration hasn’t returned to that policy, and has argued using overflow facilities is better than the alternative of turning minors away back into Mexico. But progressive critics argue that “more humane than Trump’s family separation” isn’t a particularly high bar to clear, and doesn’t make extended use of these facilities any less concerning.

“It is difficult, because the entire system was dismantled by the prior administration,” Mayorkas told CNN on Sunday. “There was a system in place in both Republican and Democratic administrations, that was torn down during the Trump administration, and that is why the challenge is more acute than it ever has been before.”

At the same time, Biden’s acceptance into the country of unaccompanied minors represents only a partial break with President Trump’s border policies: Most other border crossers, whether family units or solo adults, remain subject to summary expulsion under Title 42. A cornucopia of Biden officials have made a point of saying in recent days that “the border is closed,” beseeching migrants not to attempt to enter the U.S. for now. Biden himself said as much in an interview with ABC News last week.

But the crush of bodies at the border has also led to cracks in enforcement for these other populations as well: NBC News reported yesterday that border agents in the Rio Grande have been authorized to release migrant adults and families even before they have been given a court date for an asylum hearing. Scheduling a court date and permitting the asylum seeker to remain in the country in the meantime is a policy immigration hawks have long derided as “catch and release”; under this change, some migrants who have been released have simply been asked to provide contact information so Border Patrol can get in touch once a court date has been set.

For Republicans, the chaos caused by even a partial reversal of Trump’s border policies is confirmation of a core argument made by border hawks: Any policy that makes illegal immigration (or seeking asylum) more likely to succeed will only increase the number of people who attempt to migrate to the U.S. illegally (or seek asylum here). “When you permit something, you’re gonna get more of it,” Mark Krikorian of the hawkish Center for Immigration Studies told The Dispatch earlier this month.

After participating in a bipartisan visit to the border with Mayorkas in recent days, Sen. Rob Portman shared what he learned on the Senate floor yesterday. “Actions speak louder than words, and the actions of the new administration was clear,” he said. “These abrupt moves to dismantle the immigration policies that were working to provide a disincentive for unlawful migrations gave the green light to a lot of people seeking a better life, but it also gave the smugglers and the human trafficking groups in the Northern Triangle and in Mexico the ability to convince more families and more children to take the dangerous trip north.”

While Biden is still enjoying a bit of a political honeymoon—his net approval rating is somewhere around +14 percent—the immigration issue could bog him down, and quickly. Sixty-five percent of Americans in a recent Reuters poll approved of the president’s handling of the pandemic, and 52 percent said the same regarding the economy. On immigration, however, Biden was in the red, with just 41 percent approval.

Democrats with more direct insight into the situation are sounding the alarm. “When you create a system that incentivizes people to come across, and they are released, that immediately sends a message to Central America that if you come across you can stay,” Rep. Vicente Gonzalez, a South Texas Democrat, told the Washington Post. “It incentivizes droves of people to come, and the only way to slow it down is by changing policy at our doorstep. If they don’t change the policy, the flow of continued migration traffic isn’t going to stop or slow down.”

Worth Your Time

• “Freethinkers are rightly worried that private online platforms such as Amazon, Twitter, and Facebook are increasingly—and often arbitrarily—cracking down on speech for political reasons,” Nick Gillespie writes in a piece for Reason. But “the much graver threat comes from governments at all levels seeking to compel or ban speech.” From the Kentucky Senate passing a bill that would criminalize insulting police officers, to competing Texas and Colorado proposals that would interfere with social media companies’ speech, to two congressional Democrats sending letters to cable and satellite companies interrogating their carrying of Fox News and Newsmax, Gillespie argues the biggest threat to free speech always comes from the government, not private companies. “When Amazon won’t sell your book, you can head to Barnes & Noble. When government cancels your expression, there’s nowhere left to go.”

Presented Without Comment

Toeing the Company Line

• On the website today: Ellen Bork on a path forward for the 2022 Olympics in Beijing, and former DHS official Elizabeth Neumann on the situation on the southern border.

• On Monday’s action-packed episode of Advisory Opinions, Sarah and David discussed the death sentence for the Boston bomber, speculation surrounding Justice Stephen Breyer’s retirement, a D.C. Circuit dissent by Judge Laurence Silberman, the MAGA right’s rejection of originalism, and best picture nominee Promising Young Woman.

Let Us Know

Today is National Puppy Day, and one of your Morning Dispatchers is very seriously considering getting one of their own.

How old were you when you got your first pet, and what advice do you have for a potential new puppy owner?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Haley Byrd Wilt (@byrdinator), Audrey Fahlberg (@FahlOutBerg), Charlotte Lawson (@charlotteUVA), Ryan Brown (@RyanP_Brown), and Steve Hayes (@stephenfhayes).