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Kroger’s “nefarious bargain” Dave Infante

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This is a special joint edition of Popular Information and Fingers, a newsletter about drinking in America by journalist Dave Infante. Fingers is a must-read for anyone who cares about the business, culture, and chaos of booze. Sign up HERE.

(Photo by Jakub Porzycki/NurPhoto via Getty Images)

In January 2022, as COVID case rates soared nationwide, 8,400 workers at Colorado’s King Soopers supermarkets went on strike for better pay, hours, and on-the-job protections from infection and unruly customers.

King Soopers’ 78 Colorado locations are owned by Kroger, one of the largest grocery firms in the country. The company, which generated $4.3 billion in adjusted operating profit in the year leading up to the strike, called the UFCW’s stoppage “reckless and self-serving.” Workers struck for for 10 days, before ratifying a new contract with higher starting wages and better healthcare benefits in early February 2022. 

A lawsuit filed earlier this month by Colorado’s attorney general alleges that Kroger had a secret reason to believe it could weather the UFCW strike two years ago without major disruptions to its King Soopers business: a “nefarious bargain” that it struck with rival grocer Albertsons to ensure the latter wouldn’t poach the struck chain’s picketing workers or inconvenienced customers. 

“Executives at the very highest levels of both companies knew of this unlawful arrangement and allowed it to go forward,” the complaint claims, citing contemporaneous emails between the grocers’ executives, as well as subsequent testimony of Albertsons executives before the Federal Trade Commission. The so-called “no-poach” and nonsolicitation agreements “harmed workers and blatantly violated antitrust law,” Colorado A.G. Philip Weiser said in a statement.

The stakes of this suit, filed in U.S. District Court in Denver on February 14th, are dramatic. Less than nine months following the conclusion of the King Soopers strike, Kroger announced a plan to acquire Albertsons for $24.6 billion to create the country’s second-largest mega-grocer behind Walmart. The merger is opposed by a broad coalition of labor organizations, independent industry experts, prominent Congressional Democrats from both chambers, and attorneys general from across the country, including Colorado’s Weiser. Yesterday, the Federal Trade Commission announced its own suit to block the deal.

Blunting labor’s pandemic leverage

Like many businesses with large brick-and-mortar footprints, grocers large and small were desperate to hire employees at the time of the strike, 18 months into the pandemic. By late 2021, shifting labor demand and disproportionate frontline fatalities due to Covid helped push the average hourly wage for restaurant and grocery workers past the $15 mark for the first time. 

For Kroger workers, the unusual hiring dynamics offered a particular boon. An Economic Roundtable study of 10,000 of the firm’s workers, underwritten by UFCW and published in January 2022, found that “over three-quarters of Kroger workers are food insecure.” The Executive Excesses 2022 report from the Institute for Policy Studies, a progressive think tank, pegged the median pay of Kroger’s workers nationally at just $26,763 in 2021 — 679 times less than the $18 million Kroger chief executive officer Rodney McMullen was paid that year.

As the hours ticked down towards the King Soopers strike, Denver’s CBS4 reported King Soopers stores were already short 2,400 employees in Colorado. “We have brought in 300, 400 people from across the country from some of our sister companies in Kroger,” division president Joe Kelley told the outlet, describing the grocer’s strike preparations. “We have also been hiring temp workers the best we could. You know what the work market looks like.”

The soaring demand for supposedly “unskilled” labor could have created a rare win-win scenario for Colorado King Soopers workers. A strike to force Kroger to offer UFCW Local 7 a better contract would also invite staff-starved competitors like Albertsons — which unlike Kroger, had agreed to extend negotiations between the union and its 100 Safeway stores in Colorado — to lure picketing workers with higher pay and benefits. 

Because Albertsons would continue bargaining with UFCW Local 7 for a Safeway contract while Kroger faced a strike over its offer to King Soopers workers, the union was in a position to play the grocers against one another to improve collective bargaining agreements for both workforces. Such a bidding war over labor was in neither company’s interest. 

A “nefarious bargain”

To protect King Soopers from an Albertsons recruitment raid, and “help Kroger hold the line” and “stay strong” against the UFCW to prevent a bidding war, Weiser alleges that Albersons’ Denver division president Todd Broderick and senior vice president of labor relations Daniel Dosenbach promised Kroger’s vice president of labor relations Jon McPherson that his firm would not poach workers for the duration of the strike. 

The pair also agreed that Safeway would not encourage King Soopers’ pharmacy customers to move their prescriptions. (For big grocers, pharmacy departments are key because they create customer loyalty and cross-selling opportunities, and King Soopers’ pharmacy technicians were involved in the strike.) Then, they allegedly looped in their respective firms’ top executives about it. The complaint includes a lightly redacted email from Dosenbach to McPherson on January 9th, 2022, with the subject line “Union Communications,” outlining the truce: 

A Kroger spokesperson denied the existence of any such arrangements in an emailed statement to Popular Information, calling it “disheartening for Coloradans that General Weiser would mischaracterize the facts.” They declined to elaborate. Albertsons, which reached its own deal with UFCW Local 7 covering 5,400 workers in Colorado and Wyoming in late February 2022, did not respond to Popular Information’s requests for comment.

“The public has a right to know that the leaders of these companies cannot be trusted to do right by their employees or customers,” said Kim Cordova, President of UFCW Local 7 in a statement. A day after the State of Colorado filed suit, the union lodged unfair labor practice charges with the National Labor Relations Board (NLRB) based on the allegations in the suit. The NLRB complaint accuses both Albertsons and Kroger of violating federal labor laws with “bad-faith bargaining” and “coercive actions.” 

The $24.6-billion elephant in the room

The “nefarious bargain” is not the only illegal activity that Colorado alleges Kroger and Albertsons have undertaken.  Colorado’s suit alleges the proposed $24.6-billion merger between Kroger and Albertsons is itself illegal. The deal is “precisely the kind of activity that the Colorado antitrust laws were drafted to address,” Colorado’s complaint alleges. 

It is not the only entity suing to stop the deal. A week prior to Weiser’s suit, Washington State made its own move to block the controversial tie-up; less than two weeks later, on Monday February 26th, the Federal Trade Commission joined the fight, with eight more states joining in with the regulator’s lawsuit. 

The three suits echo concerns from a varied group of opponents to the deal, including the UFCW and The Teamsters (which represent tens of thousands of grocery workers nationally), Congressional Democrats from six states, and 40% of Alaska’s legislature. Kroger and Albertsons say the merger is necessary to compete with Walmart, which controls over 20% of the U.S. grocery market, as well as Costco and Amazon, which acquired Whole Foods in 2017.

“The combine[d] duo would become the latest private sector unionized employer,” wrote grocery analyst Errol Schweizer, the host of industry podcast Checkout Radio and a former Whole Foods Market executive, in a column excoriating the deal shortly after its announcement in October 2022. Along with other independent experts like journalist Benjamin Lorr, author of the 2020 industry exposé The Secret Life of Groceries, Schweizer has argued that the merger will empower the newly combined firm to be “tougher” on unions, slash white-collar jobs, squeeze wholesalers, and close stores that had previously competed with one another in communities that desperately rely on them. 

The FTC, announcing its suit, emphasized a dim view of the merger’s labor implications. “A combined Kroger/Albertsons… would gain increased leverage over workers and their unions—to the detriment of workers,” the enforcer alleged in a release. 

The FTC’s suit explicitly references the broad strokes of Colorado’s explosive “nefarious bargain” claim (though most of the details are redacted in its complaint.) “Executives from both Respondents acknowledge that the unions’ ability to play them off one another using credible strike threats creates pressure to meet or beat each other’s agreements,” the FTC alleges in the filing.

Another “unmitigated failure”?

In a bid to preempt FTC opposition to the deal on antitrust grounds, the companies in September 2023 proposed to divest over 400 stores to a third firm, C&S Wholesale Grocers. In a December 2023 letter requesting the FTC sue to block the deal, Senators Cory Booker (D-NJ), Mazie K. Hirono (D-HI), Bernie Sanders (D-VT), and Elizabeth Warren (D-MA), and Representatives Summer Lee (D-PA) and Alexandria Ocasio-Cortez (D-NY) pointed to recent history as evidence that such a “remedy” would fail to ensure competition in the grocery market. 

“When Albertsons acquired Safeway, Inc. in 2015, the companies agreed to sell 168 of their stores to four buyers,” the lawmakers wrote. “[T]his effort to preserve competition through structural remedies was an unmitigated failure… In fact, dozens of the locations were sold back to Albertsons, in some cases, for as little as one dollar.”

Kroger insists that history will not repeat itself, claiming C&S is an appropriate competitor to divest the stores, and that the newly merged firm will close no stores as a result of the deal (a notoriously difficult promise to enforce after the fact.) “The merger means workers gain from $1 billion in higher wages, expanded benefits, long-term job security, and a strong unionized workforce,” a Kroger spokesperson told Popular Information in a statement. 

Washington and Colorado aren’t buying it. Neither is the FTC. The enforcer, in its announcement of its suit, alleged the grocers’ “inadequate divestiture proposal is a hodgepodge of unconnected stores, banners, brands, and other assets that Kroger’s antitrust lawyers have cobbled together and falls far short of mitigating the lost competition between Kroger and Albertsons.”

 

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The Free Press LIVE from the RNC: Biden’s Interview, Trump, J.D. Vance, and More! Bari Weiss

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A lot happened in American politics last night: the Biden interview, the Vance unveiling, Trump’s RNC entrance—his first public appearance since Saturday’s shooting. And there, to help you all make sense of it, was The Free Press team in our first-ever live video on X. To be honest, we weren’t sure how it was going to go. We were blown away by the response.

There were some 350,000 of you watching this experiment, in which we had the kind of panel we wish were assembled on cable news, or as host Michael Moynihan put it: “the Traveling Wilburys of political panels.”

Monday night’s supergroup included Newsweek editor and Free Press contributor Batya Ungar-Sargon, Puck correspondent Tara Palmeri, Red Scare co-host Anna Khachiyan (chain-smoking, of course), legendary pollster Frank Luntz, Manhattan Institute president Reihan Salam, author and Free Press contributor Rob Henderson, and journalist James Pogue. This is a group of people you just cannot find anywhere else.

Today, we’ll play that live conversation for you. And stay tuned for more live! Follow The FP on X.

Learn more about your ad choices. Visit megaphone.fm/adchoices

 

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These Republicans use violent rhetoric. They are featured speakers at the RNC. Judd Legum

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A view of the convention floor before the 2024 Republican National Convention on July 14, 2024, in Milwaukee, Wisconsin. (Photo by ANDREW CABALLERO-REYNOLDS/AFP via Getty Images)

In the wake of the attempted assassination of Donald Trump, his top political aides and allies are blaming Democrats for inciting the horrific attack. The co-manager of Trump’s campaign, Chris LaCivita, wrote that “for years, and even today, leftist activists, democrat donors and now even Joe Biden have made disgusting remarks” about Trump and it’s “high time they be held accountable for it.” (LaCivita later deleted the post.) “This isn’t some unfortunate incident,” Senator Rick Scott (R-FL) said. “This was an assassination attempt by a madman inspired by the rhetoric of the radical left.” Senator J.D. Vance (R-OH) flatly asserted that the Biden campaign’s rhetoric “led directly to President Trump’s attempted assassination.” 

Authorities have not determined the motive of the shooter, who was registered as a Republican.

The Republicans’ concern about violent and extreme rhetoric is a new phenomenon. This is a party that nominated Trump, who has spent his political career advocating and encouraging violence. Here are just a few examples:

At an event in 2017, Trump encouraged the police to rough up protesters. “Please don’t be too nice,” Trump said.

In 2018, Trump praised then-Congressman Greg Gianforte (R-MT) for assaulting a reporter. “Any guy that can do a body slam, he is my type!” Trump said. “You know, that’s nothing to be embarrassed about.” Gianforte pled guilty to misdemeanor assault.

During the protests following the killing of George Floyd in 2020, Trump tweeted, “when the looting starts, the shooting starts.” The phrase was used by notorious segregationist George Wallace and others to justify police brutality. 

In a September 2020 presidential debate, Trump refused to denounce the Proud Boys, a militant far-right organization, telling the group to “stand back and stand by.”

After he was indicted for fraud in New York in March 2023, Trump warned of “potential death & destruction” that “could be catastrophic for our country” if he was convicted. 

In an interview with Time Magazine earlier this year, Trump was asked if he was concerned about “political violence” following November’s election. “[I]f we don’t win, you know, it depends,” Trump responded. “It always depends on the fairness of an election.”

This week, the Republican National Convention features numerous speakers who have used violent and extremist rhetoric.  

Arizona Senate candidate Kari Lake: “Strap on a Glock”

After Trump’s conviction for falsifying business records to cover up payments to Stormy Daniels, Arizona Senate candidate Kari Lake (R) suggested that she and other supporters would fight the verdict with firearms. In a video, Lake said, “If you want to get to President Trump, you’re gonna have to go through me and you’re gonna have to go through 75 million Americans just like me, and I’m going to tell you … most of us are card-carrying members of the NRA.” Lake continued to say that it was “not a threat,” but “a public service announcement.” She later defended her comments, posting on X, “I meant what I said.” 

Lake also encouraged her supporters to arm themselves during an April campaign event. “They’re coming after us with lawfare. They’re going to come after us with everything. That’s why the next six months is going to be intense,” Lake said. “We are going to put on the armor of God. And maybe strap on a Glock on the side of us just in case.” 

North Carolina Lt. Governor Mark Robinson: “Some folks need killing”

In June, North Carolina Gubernatorial candidate Mark Robinson (R) promoted the murder of “socialists,” “wicked people,” and other perceived enemies. “Some folks need killing,” Robinson said. “It’s time for somebody to say it. It’s not a matter of vengeance. It’s not a matter of being mean or spiteful. It’s a matter of necessity.” 

Robinson has also said that he owns semi-automatic rifles in case he needs to use them against the government, the Charlotte Observer reported. “I’ll tell anybody, I got them AR-15s at home and I like to go target shooting and all that. That’s not what they’re there for,” Robinson said in May. “I’m not ashamed to say it, I’m probably not supposed to say it, but I’m gonna say it anyway — I got them AR-15s in case the government gets too big for its britches. Cause I’m gonna fill the backside of them britches with some lead.”

Congresswoman Marjorie Taylor Greene: Nancy Pelosi deserves to be executed

In response to the attempted assassination of Trump, Congresswoman Marjorie Taylor Greene (R-GA) posted on X that Democrats were “the party of pedophiles, murdering the innocent unborn, violence, and bloody, meaningless, endless wars.” Although the shooter was a registered Republican, Greene said that the “Democrat party is flat out evil, and yesterday they tried to murder President Trump.”

A 2021 CNN investigation found that Greene “repeatedly indicated support for executing prominent Democratic politicians in 2018 and 2019 before being elected to Congress.” In one instance, Greene liked a comment calling for the execution of former House Speaker Nancy Pelosi (D-CA) with “a bullet to the head.” Greene later claimed that staff members ran her account. But in 2019, Greene “created a White House petition” to impeach Pelosi for “crimes of treason,” for supporting immigration policies that Greene opposed. “[I]t’s a crime punishable by death is what treason is,” Greene said. “Nancy Pelosi is guilty of treason.” 

Senator Tom Cotton: Throw pro-Palestine protesters off the Golden Gate Bridge

In April, Senator Tom Cotton (R-AR) encouraged people to respond to pro-Palestine protesters on the Golden Gate Bridge with violence. “I encourage people who get stuck behind the pro-Hamas mobs blocking traffic: take matters into your own hands to get them out of the way. It’s time to put an end to this nonsense,” Cotton posted on X. On Fox News, Cotton was more explicit, saying that he would support throwing protesters off a bridge. “If something like this happened in Arkansas, on a bridge there, let’s just say I think there would be a lot of very wet criminals that had been tossed overboard not by law enforcement, but by the people whose road they’re blocking,” Cotton said. “If they glued their hands to a car or the pavement, well, probably pretty painful to have their skin ripped off but I think that’s [how] we would handle it in Arkansas.” 

Congressman Matt Gaetz: We should “hunt down” Black Lives Matter protesters

In 2020, during the Black Lives Matter protests, Congressman Matt Gaetz (R-FL) posted, “Now that we clearly see Antifa as terrorists, can we hunt them down like we do those in the Middle East?” The post was flagged as violating X’s rules because it promoted the “killing of fellow Americans.”

Former Fox News anchor Tucker Carlson: Democrats are seeking a “one-party state”; Republicans should not “give up your AR-15s”

In March 2023, after Trump was indicted in the Stormy Daniels case, Tucker Carlson said that Democrats were involved in a “political purge” and are “pushing the population to react.” He described the charges as a test to see if Trump’s supporters were “demoralized and passive.” After a guest asserted that Democrats were pursuing “a one-party state and authoritarian government,” Carlson advised that it was “not the best time to give up your AR-15s.”

Senator Ted Cruz: “Grab a battle axe and… go fight the barbarians”

In a 2022 speech to the Conservative Political Action Conference, Senator Ted Cruz (R-TX) described the Biden administration and Democrats in Congress as “power hungry, abusive totalitarian nitwits.” He said his job as a Senator was to “grab a battle axe and… fight the barbarians.” He said that the conservative activists at the conference should think of themselves as “dangerous radicals… like those who died at the Alamo.”

 

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Who Is J.D. Vance? Plus. . . Oliver Wiseman

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(Photo by Win McNamee/Getty Images)

In case you hadn’t noticed, there’s a lot going on. On The Front Page today, we bring you reporting, analysis, and commentary on the ongoing fallout of Trump’s brush with death; another prime time Biden interview; the dismissal of the Trump classified documents case; and much more. 

But first: the Hillbilly running mate. 

Donald Trump’s selection of J.D. Vance as his running mate is remarkable in more ways than one. There is Vance’s journey from the broken home in a poor, rural Ohio he wrote about in Hillbilly Elegy, to the Marines, to Ohio State, then to Yale Law School and to the Senate, and now a presidential ticket. Also remarkable is his transformation from a prominent “Never Trumper”—who once called his now–running mate “America’s Hitler” and an “opioid for the masses”—to an enthusiastic Trumpist in the vanguard of the New Right. 

For some, Vance’s journey is simple enough to explain: it’s the story of a smart and ambitious “sellout” and an “angry jerk,” as one of his (ex-) friends from law school put it on X yesterday. To this crowd, Vance is only the most extreme example of a familiar story of Republicans kowtowing to the man who took over their party. 

But Vance is a much more complicated—and interesting—figure than that. 

Agree with him or not, he has undergone a sincere ideological conversion since 2016. That much was obvious to me when I followed him on the campaign trail in 2022. And it’s obvious from any speech or interview he gives. He is not someone who just parrots his party’s talking points. (He has also undergone an actual conversion: I recommend Rod Dreher’s interview with him on the day he was baptized and received into the Catholic Church in 2019.) 

In the Senate, he hasn’t just voted with the GOP herd but teamed up with Democrats on a range of bills that stake out new ideological territory for Republicans. He makes some of Trump’s donors uncomfortable. 

By picking Vance, Trump has made clear his project is about more than personality. The Republican presidential ticket now has a distinct ideological flavor. It has teeth. National Review’s Philip Klein called the pick “another nail in the coffin of Reagan Republicanism.” (This is not a compliment at that magazine.) Vance is a prominent critic of U.S. involvement in Ukraine (for more on his foreign policy views, I recommend this piece by my colleague Isaac Grafstein). 

He’s also economically unorthodox—and more relaxed about government involvement in the economy than many of his colleagues. He has backed a higher minimum wage and praised Lina Khan, Joe Biden’s FTC chair and a proponent of more robust antitrust policies. 

Did these ideological considerations clinch it for Vance? I suspect a bigger factor was that in Vance, Trump saw someone who was welcomed into the elite—as Trump never has been—but who turned his back on it.

How did the pick go down at the RNC in Milwaukee? Olivia Reingold was on the convention floor to find out. 

It’s just before 4 p.m. and everyone at the Republican National Convention is jockeying for a glimpse of Senator J.D. Vance. A woman kicks off her bedazzled heels, then stands on her seat barefoot to get a better view. A delegate tells me he just borrowed a woman’s lipstick to scrawl “VANCE” in capital letters on a white Trump sign.

Everyone is craning their necks toward the Ohio delegation, where Vance is shaking hands, posing for selfies, and gleefully fist-bumping attendees who pull away with a bewildered look, as if they can’t believe they just crossed paths with the future vice president of the United States.

“We love you, J.D.,” a man bellows through a rolled-up “Trump 2024” poster.

Vance—the man of the evening—pulls back for a second, as if to process the surreality of the moment, then shouts back: “I love you too, man.”

On Monday, Vance continued his ascent as the wunderkind of the Republican Party by becoming Trump’s 2024 running mate. In a statement released on Truth Social, the former president—and recent survivor of an assassination attempt—announced that 39-year-old Vance, who was elected senator of Ohio only two years ago, was “the person best suited to assume the position of Vice President of the United States.” Click for more from Olivia on the Trump critic turned Trump running mate.

A lot happened in American politics last night: the Biden interview, the Vance unveiling, Trump’s RNC entrance—his first public appearance since Saturday’s shooting. And there, to help you all make sense of it, was the Free Press team in our first-ever live video on X. To be honest, we weren’t sure how it was going to go. We were blown away by the response. 

There were some 350,000 of you watching this experiment, in which we had the kind of panel we wish were assembled on cable news, or as host Michael Moynihan put it: “the Traveling Wilburys of political panels.” 

Monday night’s supergroup included Newsweek editor and Free Press contributor Batya Ungar-Sargon, Puck correspondent Tara Palmeri, Red Scare co-host Anna Khachiyan (chain-smoking, of course), legendary pollster Frank Luntz, Manhattan Institute president Reihan Salam, author and Free Press contributor Rob Henderson, and journalist James Pogue. This is a group of people you just cannot find anywhere else.

If you missed it, catch up below. And stay tuned for more live! Follow The FP on X.

Doug Mills is the photographer who captured the remarkable image of Donald Trump and the bullet that clipped his ear on Saturday. Here he gives his first account of the shooting. “I probably did not do the smartest thing by running right at it, but that’s what [photojournalists do],” he said. (Fox News

In a New York Times/Siena survey conducted before Saturday’s shooting, Kamala Harris outperforms Joe Biden in two states: Pennsylvania and Virginia. The near assassination of Donald Trump has bought Joe Biden time in his fight to remain his party’s nominee. One Democratic insider said Sunday the shooting “probably saved Biden’s nomination” but also “doomed his reelection.” (New York Times

If any Democrats thought Joe Biden was their only problem, a new poll from NBC makes for a sobering read. It finds that the popularity of the Democratic Party has taken a dive and now matches its all-time low in the three-decade history of the survey. The party is the most unpopular figure or institution in the poll. (NBC

Trump once unified Democrats and divided Republicans. The shooting and the debate have turned the tables, writes Jonathan Martin. He reports that Nancy Pelosi, convinced that Biden will lose, has been “working the phones” since the debate looking for a “way to ease him off the ticket.” (Politico

Joe Biden agreed to extend Secret Service protection to RFK Jr. on Monday. The independent presidential candidate, whose father was assassinated on the campaign trail in 1968, has been asking for federal protection for months. After Saturday’s assassination attempt on Trump, the only question is: What took Biden so long? (Associated Press

Comparisons between Trump and nineteenth-century president Andrew Jackson are nothing new. But Walter Russell Mead argues that “Saturday’s events made America more Jacksonian and gave Mr. Trump an unbreakable hold on Jacksonian America.” (Wall Street Journal)

The system is out to get you, says Substack co-founder Hamish McKenzie: “Our leaders have called for a cooling down of our political rhetoric, but unfortunately this is not a problem that can be solved by presidential decree. To change the conversation—not just its contents, but also its tenor and tone—we need to change the incentives of a system that has ensnared us in its addiction feeds.” (Substack Reads)

Forty-four percent of Ukrainians support starting peace talks with Russia, compared to 35 percent who say it is not time to negotiate yet, according to a new poll. Zelensky said he was open to a Russian delegation attending peace talks later this year. (Semafor

A French soldier was stabbed Monday in Paris, eleven days before the Olympic opening ceremony. The soldier was injured but is not in a life-threatening condition. (ABC

Rapper 50 Cent has been shot nine times. His song, “Many Men (Wish Death)” is an ode to cheating death. In Boston on Saturday night, he performed the song in front of a blown-up version of his album cover Get Rich or Die Tryin’, only Donald Trump’s face replaced that of the rapper. There is chatter that “Fitty” might perform at the Republican convention this week. (Vibe

As the dust settles after Saturday’s very nearly successful attempt on Donald Trump’s life that killed one person in the crowd and left two in critical condition, one of the many confounding questions that linger is: How did the Secret Service fail so badly? Some have noted the Secret Service’s DEI push under current head Kimberly Cheatle. Amid serious retention and recruitment struggles, she has said she is focused on “attracting diverse candidates.” Does this suggest an organization laser-focused on its purpose: ensuring the safety of its protectees? Or does it suggest a bloated and distracted bureaucracy in dire need of reform? Rupa Subramanya investigates. 

→ Trump’s classified documents case is thrown out—for now, writes Yale Law professor Jed Rubenfeld: In a legal stunner, Judge Aileen Cannon yesterday threw out Special Counsel Jack Smith’s classified documents prosecution of former president Trump.

Contrary to early reporting, Judge Cannon’s dismissal of the case had nothing to do with the presidential immunity ruling recently announced by the Supreme Court in Smith’s other prosecution of Trump—the one dealing with January 6.

Instead, Judge Cannon ruled that Attorney General Merrick Garland had no constitutional authority to appoint Smith as special counsel in the first place. Because the appointment was unconstitutional, Smith had no power to bring a criminal case against Trump. So the whole case had to be dismissed. 

Boiled down, Judge Cannon’s key conclusion is that no statute authorizes the attorney general to appoint a special prosecutor if the appointee is someone from outside the Department of Justice, as Smith was when he was appointed. But Judge Cannon faces a little problem in reaching her conclusion: the Supreme Court stated the opposite in 1974. 

In the landmark U.S. v. Nixon case, the Court ordered President Nixon to comply with a subpoena issued by Leon Jaworski, who had been named special prosecutor to investigate the Watergate scandal even though he was outside government at the time of his appointment. Citing the same statutes that Garland and Smith relied on, the court stated that Congress had “vested in the Attorney General” the power to make Jaworski a “Special Prosecutor with unique authority and tenure.” 

In the decades since, lower courts, including appellate courts, have considered this statement conclusive. But Judge Cannon held that the Court’s statement was mere “dictum”—a point of law assumed only by the Court, not actually ruled on, and therefore, not binding on her. 

This remarkable conclusion makes her ruling extremely vulnerable on appeal. 

In her favor is the fact that Justice Clarence Thomas, in the immunity case, strongly implied that he views Jack Smith’s appointment as unconstitutional. Against her is the fact no other justice joined Thomas.

Smith will undoubtedly appeal, but one consequence is certain. Just as the Supreme Court’s presidential immunity ruling guaranteed that Smith’s January 6 case against Trump won’t be tried before the election, Judge Cannon’s ruling has the same effect on the documents case. Given the appeals process, it will be a very long time before this case could ever be tried. And long before then, there may be an occupant of the Oval Office who sees to it that this case is dropped. —Jed Rubenfeld

→ Biden doesn’t lower the temperature: For Americans looking to see if President Joe Biden has changed his approach to the presidential election after an assassin nearly killed his opponent, Donald Trump, Monday evening’s interview on NBC will have been disappointing. 

Biden stuck to his talking points about lowering the rhetorical temperature in the nation. But he seems to believe this advice does not apply to himself. Holt asked the president about some of his own overheated rhetoric. “You called your opponent an existential threat,” Holt said. “On a call a week ago you said, ‘It’s time to put Trump in the bull’s-eye.’ ”  

Biden replied with confused defiance. “I didn’t say cross-hairs,” Biden said in response to a question about putting Trump in the “bull’s-eye.” When Holt corrected him and said he indeed did say “bull’s-eye,” Biden responded, “It was—it was a mistake to use the word. I didn’t mean—I didn’t say ‘cross-hairs.’ I meant ‘bull’s-eye.’ I meant focus on him. Focus on what he’s doing.” 

Biden recovered a bit after that, but still made the case that his calls for calm after Saturday’s shootings referred to Trump and his supporters and not his own side. “I’ve never seen a circumstance where you ride through certain rural areas of the country and people have signs there stand—big Trump signs with—middle—signs saying ‘F Biden’ and the little kid standing there putting up his middle finger,” he said. 

Apparently, Biden is unfamiliar with the last eight years of his party and supporters comparing Trump to Hitler and asserting that Trump is a Russian agent. Biden seems unaware of his own Twitter feed. On June 28, Biden’s X account posted, “Donald Trump is a genuine threat to this nation. He’s a threat to our freedom. He’s a threat to our democracy. He’s literally a threat to everything America stands for.” 

None of this is to absolve Trump for his own excessive rhetoric. Trump’s irresponsible speech is well-known because it has been covered extensively by the mainstream media since he announced his first bid for the presidency in 2015. 

But the excesses in countering Trump by the Democrats have been papered over. After Saturday’s near catastrophe in Butler, Pennsylvania, one might expect the leader of the Democratic Party to pull back and reassess. After Biden’s interview Monday evening, don’t hold your breath. —Eli Lake

→ Morning No: In the wake of Saturday’s near assassination of Donald Trump, everyone from elected officials to media bigwigs agrees it’s time to “lower the temperature.” At 30 Rockefeller Center, NBC executives decided that the only way they could ensure they were seen to calm things down was to turn the dial right down to zero in the studio of Morning Joe, MSNBC’s flagship breakfast news show. Per one report: “A person familiar with the matter told CNN that the decision was made to avoid a scenario in which one of the show’s stable of two dozen-plus guests might make an inappropriate comment on live television that could be used to assail the program and network as a whole.” 

Translation: At a crucial moment for the country—right after an attack on American democracy, as the RNC gathers to nominate Trump, and with Joe Biden fighting to stay in the race, we don’t trust the people we pay to bring you the news to bring you the news. It’s confirmation that so much of cable news exists for partisan entertainment, not to inform its audience. And next time you think of switching on MSNBC, ask yourself: If the network’s own executives don’t trust these people, why should I? —OW 

→ Who wants a Trump Got Shot tattoo? America’s great entrepreneurial spirit kicked into full gear over the weekend, after the attempted assassination of former and probably future president Donald Trump. A veteran of reality TV, Trump knows better than anyone how to play for the cameras, and he proved it this weekend. The bloodied face, the raised fist, the American flag in the background—it’s a hell of a picture, and now, it’s everywhere. You can buy it on t-shirts from former Trump assistant Sebastian Gorka, or right-wing commentator Candace Owens, or Etsy, or even from random boardwalk shops

Images of the bloodied, defiant Trump are also available on trading cards; a fake $2 bill that, perhaps criminally, advertises itself as “Genuine U.S. Legal Tender”; coffee mugs; and much more. People have already designed and administered tattoos of it. They vary in quality.

Is it in bad taste to profit from an act of political violence that left an innocent bystander dead? Yeah, probably. But do you think anyone wearing a politically charged graphic tee is worried about taste? This is America, a country where people go to museums and visit the gift shop first. There’s no version of our nation where this doesn’t happen, so if you’re on the fence about making your own Trump assassination merch, strike while the iron is hot. This is the American dream, and if you aren’t selling out, you’re buying in! —River Page

Oliver Wiseman is a writer and editor for The Free Press. Follow him on X @ollywiseman

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