Yes, Senate Democrats’ response to Al Franken is a double-standard. And yes, we have to accept that. (More)

“No final decision has been made and the Senator is still talking with his family”

Minnesota Public Radio reported that Sen. Al Franken will resign today, but Franken’s staff immediately rebutted that report:

That said, he’ll probably resign, largely because he’s lost the support of the women who work with him:

The Democratic women of the Senate had been talking among themselves about the Franken allegations for weeks, one Democratic aide said. None, however, went further than to call for a Senate Ethics Committee probe of the Minnesota senator, whom many had considered a close friend.

That stance became increasingly untenable as the accusations against Franken piled up. In calls and texts, the female senators eventually came to an unstated agreement, according to another aide familiar with their discussions: The next credible story of misconduct in a credible news outlet would prompt them to call for Franken’s resignation.

When POLITICO reported Wednesday that a former Democratic congressional aide said Franken tried to forcibly kiss her in 2006, the aide said, it “was the tipping point.”

POLITICO reports that Minnesota Gov. Mark Dayton will appoint his lieutenant governor, Tina Smith, to fill the seat until a special election next year:

Part of the reason Smith could be heading to the Senate, the sources said, is that she has indicated no interest in running for Congress in the past and would not run for the remainder of Franken’s term, which expires in 2020, in a 2018 special election. That would clear the way for a wide open Democratic primary next year if Franken steps down.
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“[Smith] really gets Minnesota, she gets the players, she has great built-up relationships,” said a Democratic operative with long experience in Minnesota. “She makes practical sense, and she would be a good bridge builder.”

Yes, Franken’s resignation – along with Rep. John Conyers’ resignation on Tuesday – will create a double-standard. Going forward, anytime there are credible allegations of sexual harassment or misconduct against a Democratic official, other Democrats will expect that official to resign. So will Republicans, who think every Democrat should resign period. And because Democrats and Republicans will agree, the media will demand that Democrat’s resignation as a matter of course.

“People who live in glass houses, even if it’s the White House, shouldn’t point fingers”

No, Republican officials will not be held to the same standard. Yes, a new Quinnipiac Poll found that 70% of Americans think Congress should investigate the charges of sexual harassment against the God-King:

“The message to President Donald Trump on calling out offenders: People who live in glass houses, even if it’s the White House, shouldn’t point fingers,” [poll assistant director Tim] Malloy said.

But, predictably, Republican voters are the outliers in that poll:

Republicans and Democrats differ on the issue. Just 39 percent of Republicans say they think Congress should look into the allegations against Trump, compared to 86 percent of Democrats who feel the same way. Another 67 percent of registered Independents polled agreed Congress should look into the allegations.

RedState’s Susan Wright thinks that’s hypocrisy:

Trump and the White House’s official position is that while Franken’s and Conyers’ accusers should be listened to, Trump’s accusers are all liars.

And if you’re salivating over another Al Franken accuser, but you’re indignant when Trump’s accusers are mentioned, you are a hypocrite.

And at least a few Republicans agree. Yesterday conservative columnist Jay Kaganoff called on Supreme Court Justice Clarence Thomas to resign:

All along, in other words, I didn’t doubt [Anita] Hill. I knew the truth was on her side. But I was subconsciously belittling her experience, and that was wrong. In 2017, post-Weinstein, we can’t let sexual harassment slide just because it doesn’t rise to the severity of rape, or because we believe that boys will be boys.

I believe Anita Hill. I believe that Clarence Thomas abused his authority to sexually harass a woman who worked for him. And lied about it. And smeared his accuser.

And got away with it.

As painful as it is to repudiate a man I respected, I believe Thomas should never have been confirmed and should resign.

That won’t happen, but this isn’t a matter of hypocrisy. The plain fact is that most Republicans just don’t think sexual harassment is a serious problem:

Nearly eight in 10 Democrats say sexual harassment in the workplace is a “serious problem” in the United States, according to a recent Washington Post-ABC News poll. Two-thirds of independents say the same, but Republicans aren’t so sure: Only 42 percent of Republican respondents believe sexual harassment is a major problem.
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Looking back at a September Marist poll, 53 percent of Democrats perceived workplace sexual harassment as a problem, compared to 31 percent of Republicans. Moreover, 24 percent of Republicans said sexual harassment wasn’t an issue at all compared to 6 percent of Democrats, and 80 percent of Democrats described sexual harassment as sexual abuse, compared to 66 percent of Republicans.

Republicans are salivating over Franken’s accusers because they think every Democrat is corrupt in some way or another. Early responses in the right-wing media mentioned the sexual harassment accusations only in passing and instead focused instead on claims that Franken “smears, lies, and deceives” all the time and that he ‘stole’ the 2008 election with help from George Soros and socialists and Code Pink and blah-blah. They don’t give a damn about the women that Franken allegedly harassed, except that their accusations offer an opportunity to claim a Democratic scalp.

As for Roy Moore, most white women in Alabama don’t believe the accusers and think abortion is a bigger deal than sexual harassment anyway.

So no, Republicans in Congress will not investigate the charges of sexual harassment against the God-King, and Justice Thomas will not resign, and Republicans won’t challenge Roy Moore if he wins next Tuesday. And if Democrats object, Republicans will claim the attacks are just partisan politics, and the media will report the GOP response as if it were a valid argument — the resignations of Franken and Conyers (and Anthony Weiner) bedamned.

So yes, the New Rule is that any Democrat credibly accused of sexual harassment must resign and, yes, that New Rule applies only to Democrats. Republicans will still be judged by the Old Rule, as stated by Edwin Edwards: “The only way I lose this election is if I get caught with a dead girl, or a live boy.”

“It’s easy to see this as an act of shortsighted martyrdom”

Vox’s Dara Lind makes a solid argument for why Democrats must accept that higher standard, and says that virtue will have a political reward over time:

Democrats don’t have the power to decide that people who have serially harassed women can be forced out of public life, or out of politics. Republicans aren’t going to clean house just because Democrats do. They may very well not clean house at all. If Roy Moore wins the Alabama Senate election, he’ll probably be seated; the president of the United States will remain a man who has bragged about grabbing women “by the pussy” and has been accused of assault or harassment by more than a dozen women.

This is the nature of civil society, though: No person can dictate whether others live up to his values, or even their own. No organization can either. The only actions they can control are their own.

If you believe that a more just world is one in which sexual harassers lose their jobs, the only way you can act to enforce that norm is to take care of the sexual harassers in your midst.

It’s easy to see this as an act of shortsighted martyrdom: losing power by adhering to your ideals, winning a moral victory while losing the war. But that’s not actually how it works.

The Democratic Party isn’t just attracted to the idea of “the resistance” out of idealism. It’s attracted because that ideal – and the backlash against serial harassers in the post-Weinstein era (to the extent that the two are even different from each other to begin with) – reflects a new energy among certain groups of people (especially middle-aged suburban women of all races) that can be channeled into Democratic politics. Democrats have the power to help solidify the norm against harassment by acting on it — and they have the opportunity to show the resistance that their actions can generate real change, thus encouraging more activism down the line.

The most powerful counter to the litany of “Democrats have no message!” is for Democrats – individually and as a party – to say: “This is what we believe … and we live by it.”

“That’s not the purpose of attorney-client privilege”

That message will be especially powerful in contrast to antics like this:

Donald Trump Jr. on Wednesday cited attorney-client privilege to avoid telling lawmakers about a conversation he had with his father, President Donald Trump, after news broke this summer that the younger Trump – and top campaign brass – had met with Russia-connected individuals in Trump Tower during the 2016 campaign.

Though neither Trump Jr. nor the president is an attorney, Trump Jr. told the House Intelligence Committee that there was a lawyer in the room during the discussion, according to the committee’s top Democrat, Rep. Adam Schiff of California. Schiff said he didn’t think it was a legitimate invocation of attorney-client privilege.

“I don’t believe you can shield communications between individuals merely by having an attorney present,” he said, after the committee’s lengthy interview with Trump Jr. “That’s not the purpose of attorney-client privilege.”

Representative Schiff is probably correct. A federal court described a multi-part test for attorney-client privilege:

[t]he privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

It’s not enough that “there was a lawyer in the room.” If that were the standard, almost every conversation in D.C. would be privileged because there’s hardly a room in the city that doesn’t contain at least one lawyer. If a squirrel visits the veterinarian at the National Zoo, there will probably be a lawyer within earshot. Just sayin’.

For the conversation to be privileged, that person in the meeting with the God-King and the God-Prince must have been “acting as a lawyer” — present for the express purpose of offering legal advice. If he was merely another campaign staffer who happens to also be a lawyer, and if no legal advice was sought or given, then the conversation is not privileged.

But don’t expect Republicans to pry open that can of worms either. Multiple committees conducting years-long investigations with hundreds of subpoenas and dozens of hearings … well, that’s another For Democrats Only thing.

Get used to it.

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Photo Credit: Chip Somodevilla (Getty)

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Good day and good nuts