The midterms: Between the election and the agenda falls the shadow

Face it, the Democrats are on the run; they seem to have lost their mojo. It seems to be a foregone conclusion that the MAGA Republicans will take the House of Representatives in the mid-terms, and the GOP has a good chance to take the Senate as well. The architecture is strongly in their favor — they are set to pick up 30 seats in the House; they need only five for a majority. There are 219 seats that polling guru Nate Silver rates as leaning Republican, likely Republican or solidly Republican — one more than the 218 needed for a majority. So even if the Democrats won all the seats that Silver rates as toss-ups, it wouldn’t be enough to carry the day.

Most of the Republican candidates (a whopping 51 percent ,according to one estimate) have swallowed the Trump lie that the 2020 election was stolen, and that Biden is not a legitimate president.

In the Senate, unless the Democrats can pull off unlikely upsets in North Carolina, Ohio or Wisconsin, they will have to win two of the three closest races in Georgia, Pennsylvania and Nevada to maintain their majority.

Senate Majority Leader Chuck Schumer (D-N.Y.) recently told President Biden on a hot mic that the Pennsylvania debate between John Fetterman (D) and Mehmet Oz (R) “didn’t hurt us too much” but Georgia is slipping away. That is why they sent former President Obama to Georgia to put his finger in the dike. There, Obama rubbished Georgia Senate hopeful Herschel Walker as “a celebrity who wants to be a politician.”

If Schumer’s assessment is correct, and Walker defeats Raphael Warnock in Georgia, Democrats would need an upset in Nevada, where they are trailing in the polls and the election machinery is firmly in the Republicans’ grip.

So, if we have a GOP Congress, what happens to all this Trump-related criminal litigation we are hearing so much about?

• The Democrats will still have the lame duck period between the election and Jan. 2, when the new Congress takes over, to complete their Jan. 6 investigation and issue a report. After that, the charging decisions will be up to the Justice Department

• Congress will probably never see Trump’s tax returns. The D.C. Circuit Court of Appeals just ruled (apparently without any dissenting votes) that Trump’s losing case against the House Ways and Means Committee to quash the House subpoena of his tax returns should not be reheard. Trump will doubtless seek review by the Supreme Court. It is unlikely that the Court will rule on Trump’s application before Jan. 2, and Trump, ever gaming the system, will have run out the clock once again.

• Garland’s investigation of the Mar-a-Lago papers will continue into next year with the possibility that Trump will be indicted in the District of Columbia sometime after the midterms. Possibly, Trump will announce his candidacy for president just after the elections to bolster his bogus argument that he is the victim of a political vendetta.

Don’t expect much substantive legislation out of the Republican Congress with Rep. Kevin McCarthy (R-Calif.) probably replacing Rep. Nancy Pelosi (D-Calif.) as speaker of the House. McCarthy was one of many Republican congressmen who voted to deny the results of the 2020 election.

Unlike some of his predecessor Republican speakers, like Paul Ryan and John Boehner, McCarthy seems much more willing to pay obeisance to the hard rightwing of the GOP.

McCarthy will have to keep his base together. Gone will be the restraining voices of Reps. Liz Cheney (R-Wyo.) and Adam Kinzinger (R-Ill.). You will see a House where the shrillest voices of Reps. Marjorie Taylor Greene (R-Ga.) and Jim Jordan (R-Ohio) carry the day, and where the hard right is increasingly influential. Greene, once a political outlier, has become a power, up front and center with McCarthy as he elaborates his agenda before the cameras. The bills introduced will be designed to galvanize the base, even if there is no chance of enactment:

• Extend the Trump-era tax cuts for the wealthy. Cutting taxes on the rich in a time of inflation spelled the downfall of the Liz Truss government in England. It made no sense there, and it makes no sense in America.

• Repeal $80 billion in the Inflation Reduction Act appropriated for the hiring of 87,000 IRS agents.

• Demand more transparency from lenient prosecutors who decline prosecution.

• Enact a parents’ bill of rights (it is unclear how this works when public education is governed by the states) to modify remote learning and repeal mask mandates.

• Revive Trump’s draconian border restrictions.

Then, expect a litany of oversight:

• More intensive looking over the shoulder of the White House on the border and crime.

• Subpoena Hunter Biden, whom at least one Republican has termed a “threat to national security.”

• Subpoena former Director of the National Institute of Allergy and Infectious Diseases Anthony Fauci, who is no longer in the government, to what end we don’t know.

• Probe the circumstances of our withdrawal from Afghanistan.

And, finally, there is impeachment, going after every piñata the MAGA party can bat around — not just President Biden but also Attorney General Merrick Garland, Homeland Security Secretary Alejandro Mayorkas and who knows who else.

Forget about a nationwide abortion bill codifying Roe v. Wade. If there is any national abortion bill, it will be what Sen. Lindsey Graham (R-S.C.) wants, to prohibit all abortions after 15 weeks, possibly with no exception for cases of rape or incest.

Forget about gun regulation, immigration reform or climate change legislation. Forget about Biden’s judicial nominees. Forget about voting rights. And, of course, forget about diversity, equity and inclusion.

It is all pretty depressing. What must they think of us in the rest of the world, where we are supposed to be an example? What must we think at home, other than, “What kind of country are we living in?”

James D. Zirin is a former federal prosecutor in the Southern District of New York.