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Opinion | Susan Collins faces a moment of truth after the leaked Supreme Court draft


(Illustration by Eleanor Shakespeare for The Washington Post; photos by Pete Muller for The Washington Post and Getty Images)
(Eleanor Shakespeare for The Washington Post; photos by Pete Muller for The Washington Post and Getty Images)

Sen. Susan Collins (R-Maine) has never been known for being angry, or animated, or really any adjective more charged than “concerned.” Once or twice, she has gone so far as to declare herself “disappointed.”

You might imagine, nonetheless, that the leaked draft of a Supreme Court opinion overturning Roe v. Wade would have been enough to expand her measured vocabulary. You’d be wrong.

“If this … is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office,” said the statement the senator released after the story broke. “Obviously, we won’t know each Justice’s decision and reasoning until the Supreme Court officially announces its opinion in this case.”

This is about as fiery as it gets for a fifth-term moderate dedicated, above all else, to dealmaking and decorum. By comparison, Sen. Lisa Murkowski (R-Alaska), hardly hot-tempered, said the opinion “rocks my confidence in the court right now.”

All the same, you have to wonder whether Collins is less serene under the surface.

She made a spectacular bet on Brett M. Kavanaugh during his nomination hearings in 2018: saying that she believed him when he said that Roe was settled law — much like the bet she made on Neil M. Gorsuch in 2017 when he said precedent was “the anchor of the law.”

These justices, of course, might yet come through for Collins by the time the court finally rules — even if only to preserve some portion of the precedent that has enshrined the right to abortion for almost half a century. But the February draft that has much of the nation on fire boasted five conservative votes to bulldoze the rulings that have defined the status quo for decades.

This means that after a career in the U.S. Senate of 25 years, full of big bills passed, coalitions forged and bridges physical and metaphorical built across rivers and party lines, Collins confronts a moment of truth: Was she duped into securing a sturdy majority on the court for an increasingly radical Republican Party? Or did she manage, as she has always tried to do, to find a compromise that serves her ideals, her self-interest and her institution alike?

Susan Collins is as neat as her tailored skirt sets and monogrammed suitcase. She shows up early, shakes every hand, knows every name. She studies, and studies, and studies some more. She might not need to work this hard, and yet she does anyway. In politics, seasons and tastes change — but a fourth-generation Maine politician might be one of the few people in either party who doesn’t have to worry about them changing very much.

“Twelve years is long enough to be in public service,” Collins said — 25 years ago. Obviously, she changed her mind. And her voters are mostly happy with the choice.

Those beyond Maine’s borders treasure the state as a pristine natural sanctuary, but those within its borders idealize it as something else entirely: rugged, occasionally ruthless and independent by necessity. They look for the same traits in their legislators. Aroostook County — whence Collins hails — embodies the attitude.

Aroostook nestles up against Canada. It’s rural, remote and vast — larger than several states. It’s conservative and becoming more so: It voted blue in six presidential races from 1992 to 2012, and then red in 2016 and 2020. It’s also not what it used to be; gone is the era of a booming lumber industry that propped up mills, factories and all the opportunity that came with them. “There was a lot of activity in that area,” says longtime Collins chief of staff and all-around Svengali Steve Abbott. “And now there’s not.”

Ask any in-the-know constituent about Collins, and you’ll hear that she’s all about Aroostook — as if this explains everything. Every fall, the high school in her hometown of Caribou recesses for two weeks to allow the students to help the farmers get in their potato crop before the freeze arrives to doom the ground-bound spuds. These students, more than half a century ago, included a preteen Collins, because, as she told me last year, “It didn’t matter what your family’s income was, it didn’t matter what your parents did for a living, everybody joined together.”

Those last three words might be her political motto.

The family seemed almost hard-wired for politics. Her father was in the state legislature. Her grandfather was in the state legislature. And, no kidding, her great-grandfather was in the state legislature. Her mother, Patricia, was mayor of Caribou (and so was her father, before serving in the legislature). Susan was president of her high school student council when her mother was on the school board. Maybe Collins wasn’t always going to be who she is today (she herself says with some awe, “I never envisioned that I would be a United States Senator,” and you can hear the capital letter before each word). But she was always going to be somebody.

And that’s what Collins has done all these years: be somebody — starting in her days as a Lyndon B. Johnson intern for then-Rep. Bill Cohen (R) in the Watergate era, when she took the bus from Catholic University to Capitol Hill every day for 10 weeks with the same lunch, a Swiss cheese sandwich on whole wheat bread, in hand.

“We had two interns,” remembers Tom Daffron, her boss then and her husband now. “One was supposed to set up the Farm Advisory Committee, and one was supposed to set up the Veterans Advisory Committee. She did the Farm Advisory Committee in one afternoon. The other guy, he may still be working on it.”

She eventually took Cohen’s place in the Senate, arriving in 1997 to a chamber no longer the civilized seat of clubby, across-the-aisle, accord that it once was. The polarization that defines today’s politics was already present enough that she could stand out simply by breaking from her party here and there.

She began by joining with fellow Maine Republican Olympia Snowe to acquit President Bill Clinton after his impeachment by the House of Representatives. She quickly cemented her reputation as an overachiever: She had, as a 1997 New York Times profile points out, “so little seniority that she ranked 99th out of 100 senators when it came to being allotted offices.” Yet she was the top of the list when it came to being sought out for bill co-sponsorship. “I have a lot of power — I like that,” she said at the time.

What kind of newcomer wouldn’t like John McCain (R) and Russell Feingold (D) knocking at her door to secure her support for their campaign finance reform bill?

Who wouldn’t appreciate the chance to overhaul the entire national intelligence community with Sen. Joe Lieberman (D) after the 9/11 attacks?

And who wouldn’t take pride in hanging on so hard to the Affordable Care Act against her party’s yanking — eventually managing, with the help of McCain and Murkowski, to save it?

Underlying her record has been something deeper — a sense that is, as longtime ally Bob Tyrer puts it, “less an ideology than a theology,” grounded in the idea that government ought to work.

That means deeply researching every issue; it means following the textbook “regular order” of congressional business; it means pulling policy proposals away from the extremes so that members of both parties can summon the gumption to vote for them.

So, if you wanted to get things done and do it with a minimum of carping and backbiting, she has always been the reliable partner. Susan Collins, in other words, has stood for a version of the Senate of which people like Susan Collins are the most important members.

Certainly, Collins was the most important senator in 2018 when President Donald Trump nominated Brett M. Kavanaugh to the Supreme Court.

The question then was twofold: whether Collins, a pro-choice Republican, would vote for a pro-life Republican nominee. And: Did Collins buy whatever assurances Kavanaugh made to her in private that his respect for precedent ran so deep that he wouldn’t double back and overturn Roe v. Wade — or did she vote for him in order to stay on the right side of her party ahead of 2020?

Chief of Staff Abbott’s explanation — “Susan Collins confirms Supreme Court justices” — goes only so far. Yes, she puts on the bench nominees from presidents of both parties, pro-choice and pro-life alike, from Samuel A. Alito Jr. to Sonia Sotomayor to, most recently, Ketanji Brown Jackson. But she has made exceptions to preserve institutional norms, never to flout them.

Take Amy Coney Barrett, for instance: Collins opposed jamming her through mere days before an election, after then-Senate Majority Leader Mitch McConnell (R-Ky.) had justified refusing even to give Merrick Garland a hearing because his nomination occurred within a year of an election.

Neil M. Gorsuch, on the other hand, presented lower stakes than either Barrett or Kavanaugh: Antonin Scalia’s death meant the opening of a conservative seat, and Gorsuch, a conservative, was named to fill it. Voting for him didn’t require upsetting the balance on the court on abortion. Voting for Kavanaugh after Anthony M. Kennedy’s retirement did.

All of which is to say, when Kavanaugh arrived on Capitol Hill, Collins had to choose what mattered most.

She certainly put in the time. She had a two-hour session with Kavanaugh that she called “excellent,” owing in part to his agreement with Chief Justice John G. Roberts Jr. that Roe v. Wade, as she put it, was “settled as a precedent of the court.” This came after she and a working group of two staffers and three former staffers took six briefings from Congressional Research Service attorneys over 10 hours to formulate her queries. (Naturally, she had them over to dinner afterward to thank them.)

This exercise, if you ask her allies, was an example of her obsessive thoroughness: an honest effort to judge the judge. “There’s just no way … that she would spend 10 hours and six meetings listening to this rather arcane question of where he stood on severability … if she had been driven by political matters,” says working group member Steve Diamond. “I really regret it wasn’t taped.”

Her critics charge that it was a more calculated effort to make a rubber stamp look like a carefully considered hard call. “She appears more than willing to take Kavanaugh at his word,” wrote Bill Nemitz, the political columnist at the Portland Press Herald, at the time, “and steer clear of what may lie hidden among the weeds.”

The real answer likely sits somewhere in the middle. Collins wasn’t looking in those meetings for something to persuade her to vote for Kavanaugh. Collins was looking for nothing to dissuade her.

Surely this involved balancing principle and politics, but it also involved balancing principle and principle: Her dedication to the sacred Senate ritual of advice and consent clashed with her dedication to protecting a woman’s right to choose. Which likely meant she couldn’t vote to confirm Kavanaugh — unless there was enough space to argue that the right to abortion would survive if she did.

Collins had said she wouldn’t vote for someone who “demonstrated hostility” to Roe. But what did hostility look like?

As an appeals court judge, Kavanaugh had ruled in a single abortion case, Garza v. Hargan, involving a 17-year-old migrant trying to terminate her pregnancy while in detention. She was 15 weeks pregnant, and at 20 weeks her abortion would become illegal in Texas. He acknowledged in a dissent that Roe v. Wade applied as precedent, but he argued that young women didn’t have a right to “an immediate abortion on demand.” He wrote, “The Supreme Court has repeatedly said that the Government has permissible interests in favoring fetal life.”

More revealing was a speech he made at the American Enterprise Institute the year before his nomination, in which he lauded William H. Rehnquist for crying foul on Roe way back in 1973.

“Justice Rehnquist was not successful in convincing a majority of justices in the context of abortion,” he said. “But he was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”

These prior expressions of pro-life sentiment tempered by respect for stare decisis were squishy enough that Collins, if she wanted, could have molded them into reason not to worry — at least with enough assurances both public and private. All Kavanaugh would have had to do was not shout his pro-life sympathies from the rooftops — and instead soberly intone that precedent, all of it, deserved exactly the measure of deference a certain key senator insisted it was due. Planned Parenthood v. Casey, he said, was “precedent on precedent.”

Christine Blasey Ford’s allegations of sexual assault against Kavanaugh turned a set of hearings that were already a trapeze act into a full-on circus. Yet Collins’s speech announcing her support of Kavanaugh read as if the meat of it had been written before all that. Amid accusations of smears, conspiracies and moral corruption flying across the aisle in both directions, she delivered a nearly hour-long speech stuffed with legal arcana — and focused most of all on the question of precedent (a word she used, by the way, 16 times).

She explained that the judge — in their two-hour face-to-face session followed by a one-hour telephone conversation — had assured her of his belief “that precedent provides stability, predictability, reliance and fairness.” The Supreme Court would overturn a precedent only in “rare and extraordinary times” — including, and here she borrowed Kavanaugh’s language, when a decision is “grievously wrong.”

Admittedly, Kavanaugh said plenty in his public hearings about the limits of precedent, and plenty more in his past that set off alarms for pro-choice activists. For Collins, these bells never tolled. The nominee’s “views on honoring precedent,” she proclaimed, “would preclude attempts to do by stealth that which one has committed not to do overtly.”

Four years later, with a decision on the Mississippi law that many expect the Supreme Court to use as an excuse to overturn Roe v. Wade just weeks away, the question remains: How did so meticulous a lawmaker put herself in this position?

You could argue that Kavanaugh misled her, and that Collins believed his promises. He didn’t have to swear to whatever testimony he gave behind the closed doors of her office, after all. You could argue that she was blinded by nostalgia for a politics of a kinder, gentler character — even though that evaporated years ago. Or perhaps she fooled herself into somehow thinking so pivotal a nomination was not forcing her, finally, to pick between the two commitments she’d made to her constituents: both to confirm qualified Supreme Court nominees and to protect abortion rights.

Some even argue that Collins didn’t believe Kavanaugh at all — that she only pretended she did to remain in her party’s good graces two years ahead of a race for her fifth term. Perhaps she wanted to avoid Donald Trump’s ire, or a primary challenge from the right; or perhaps she wanted to attract the conservative dollars, which, as it turns out, her campaign needed.

Perhaps, also, she was just mad. “We have come to the conclusion of a confirmation process that has become so dysfunctional, it looks more like a caricature of a gutter-level political campaign than a solemn occasion,” Collins said in her speech.

Sen. Susan Collins (R-Maine) delivered a 45-minute long speech on the Senate floor before confirming her support of Supreme Court nominee Brett Kavanaugh. (Video: Joyce Koh/U.S. Senate)

She decried “dark money” flowing from “special interest groups” who “whip their followers into a frenzy by spreading misrepresentations and outright falsehoods.” Earlier, she had described a crowdfunding campaign designed to fund a bid to oust her if she voted for Kavanaugh as “an attempt to bribe me.”

This was feisty rhetoric from the paragon of “concern” and “disappointment.” Yet she was giving as good as she got. She’d read nasty letters and listened to nasty phone calls; she’d been shouted at in airports; she’d been startled outside her D.C. townhouse late at night in the rain by a strange man demanding answers; she’d received a faxed threat to slit her throat and sever her limbs.

You might say all this is standard politics today, and you would be right. But it’s also precisely the kind of politics she had managed for most of her career to avoid and the kind that a moderate with civility as a credo deplores.

Even today, Collins hasn’t forgotten — or forgiven — the way her Democratic colleagues, especially their leader Chuck Schumer, brought everything to bear to pressure her to reject Kavanaugh’s nomination. And when she didn’t, they brought everything to bear to defeat her in 2020.

What the progressives achieved, in the end, was more or less the opposite of what they’d hoped. Daffron and Abbott both said as much. Collins and her tightest circle were discussing the matter at the dinner table right after Thanksgiving that fall, and she said it outright. She would rather lose than have these people think they made her quit.

If you’re wondering whether Collins can survive the end of a constitutional right to abortion, you’d be wise to ask the question: Survive where?

Not a single public poll in 2020 predicted she’d weather her reelection — and then her constituents catapulted her back to Capitol Hill with a stunning nine-point victory.

Her votes to confirm Kavanaugh in 2018 and then acquit Trump in his first impeachment trial in 2020 might have ingratiated her with the president’s devotees, but the votes infuriated his critics no matter to which party they belonged. Her October vote against Amy Coney Barrett in 2020 might have given some of her former fans permission to re-embrace a familiar face, but more had left for good. “We bled Republicans,” says Abbott. “We had people unenroll from Republican to independent, we had people unenroll from Republican to Democrat.”

So, how did she win reelection?

What the rest of the country missed, Collins tells me between bites of fried clams at Anglers Restaurant in Searsport, is Maine. Her pollster, she notes, “eviscerates” her opponents’ pollsters for their rookie mistakes modeling Maine’s ornery voters. The people the candidates needed to reach — those in the good old middle — don’t take surveys on the Internet. They don’t care about who’s saying what down in Washington, or whether Chuck Schumer or Mitch McConnell will rule the U.S. Senate.

They care, mostly, about Maine.

And besides, everyone up there knows Collins. Those who don’t, she says, feel like they do: “People call me Susan, which I like. I always introduce myself that way. … And that’s how they think of me.” She marches in all their parades; she takes bus tours to every county; she convinces her colleagues to fork over the funds to build breakwaters and repave thoroughfares.

They didn’t know Sara Gideon, her opponent and the speaker of the state’s House of Representatives, nearly so well. You’re either “from here” or “from away” in Maine. Gideon lives in Freeport, home to L.L. Bean. Yet in an early campaign ad, she wore a Patagonia jacket. She had, in short, a bit too much “away” about her. She also didn’t bring any sense of “here” to the campaign trail. “That campaign could have been run in any of the 50 states. Take it, plop it down,” explains Abbott.

Some in the state think a single man changed the race: a mustached newscaster named Bill Green, who clocked 45-plus years of evangelizing for the state in his outdoors-oriented feature program on public television. He’s the here-est from-here Mainer you can find, pointedly authentic and authoritative on what makes Maine Maine — not least, its vaunted independence.

“The national Democratic Party saw this as a chance to get her, and that’s when they decided to dump whatever $100 million they dumped in here,” Green grouses to me as he steers a motorboat around Boothbay Harbor. “That crowd came in and you started seeing ‘Bye Bye, Susan’ bumper stickers, which really irked me.” So, Green volunteered to help.

The resulting ad: Green walking through the woods looking right at the camera just like most Mainers saw the former newsman do every weeknight back when they were schoolkids. “Did you know that Susan Collins hates dogs?” he challenged his audience. “That’s kind of what I’m expecting to hear next from a ridiculous smear campaign.”

“Susan & Pepper,” read the text of the closing cut of the candidate on a couch petting her happy, panting black Labrador. The ad, Green says, “talks Maine.” And Maine listened.

The thing is, Collins comes from a land before time — from a place where many voters still care far less about the drama of Washington than about whether a snowplow can get through in the winter or whether a port’s deep enough for ships to put in. They cherish their independence from the nonsense farther south, and they treasure the independence of their representatives to rise above our downward-spiraling politics.

This attitude has allowed Collins to do what she’s been doing for 25 years, even as the country and her party transform around her — and even as moderates elsewhere have withered away. It’s just not as easy as it used to be.

Collins cruised to victory and went back to work. Sen. Joe Manchin III (D-W.Va.) called her at 7:45 a.m. the day after her reelection to say, basically, let’s get moving. Several other colleagues called, too, claiming they wanted to erase the ugly scribbles on the Trump-era slate and start over. Did they mean it? Most likely, in the words of Daffron, “some of them did, some of them didn’t.”

Regardless, Collins was all in: “She wants to be in the middle of it, and she can’t help herself,” Daffron explains. “She says, ‘Well, I’m just not going to be in any more of these gangs,’ and I say, ‘Sure you are.’ ”

Certainly, she was in the middle of it when Sens. Kyrsten Sinema (D-Ariz.) and Rob Portman (R-Ohio) decided to pull together an infrastructure package in early 2021. The gang, which met 50-odd times, divvied up the work; Collins got highways and bridges, of which her state has loads, and broadband Internet, of which her state has relatively little.

These were, respectively, the largest single area of spending and the least charted. Broadband in particular she learned almost from scratch, laboring with Democrat Jeanne Shaheen from next-door New Hampshire. Both senators remember sitting in Collins’s office late into the night, calling Commerce Secretary Gina Raimondo intermittently to check on the administration’s positions. Finally, one night at 10 o’clock, they figured they were done — until Shaheen suggested they go back through it all another time to ensure there were no missing pieces or misunderstandings.

They found two knotty areas, so they stayed and they fixed them. When they took their work back to the broader group, the other members accepted the product virtually wholesale because they trusted the producers. This, Collins tells me with some nostalgia, was like the old days.

But in so many other areas, the old days — the cooperation, the civility, the celebration of those things as virtues — are long over. Even for Collins.

These days, she’s favoring the half-step. She voted to impeach Trump the second time around, and she voted with Democrats for a commission to investigate the Jan. 6 insurrection. But she torched the select committee that eventually emerged as “partisan” when House Speaker Nancy Pelosi rejected the appointment of two GOP purveyors of election falsehoods.

She refused to support Democrats in raising the debt ceiling, too — though it is one of those institutional norms to which usually she is so friendly. The solution she suggested, whereby some in the GOP would lend a hand on the debt ceiling should Democrats abandon the larger Build Back Better bill, went nowhere.

Lately, Collins has been working, in concert with Manchin, to forge her favorite thing — a compromise — reforming the Electoral Count Act, which sets out procedures for Congress and the states to follow as they tally electoral votes following a presidential contest. Early efforts yielded lots of meetings but nothing in the way of a bill, thanks in part to friction over whether to include or ignore the eroding Voting Rights Act. There are signs that a breakthrough could be imminent: The group has already agreed to make clear the narrow ministerial role of the vice president, for example, and to increase the number of members necessary to trigger a challenge to a state’s electoral college votes. There’s another meeting next week where the senators will try to resolve what remains. Some Democrats are likely to bristle at the proposal’s focus only on the certifying of votes; some Republicans are likely to resist any attempt to guard against another Jan. 6.

The reactions to her efforts can frustrate her. She’s punished, she might say, for being so reliably bipartisan in the past that Democrats often seem to forget she’s a Republican. Every time she doesn’t support the opposition, she gets slammed — partly because she has gone blue plenty of times before. And every time she does give progressives her vote, any move toward the middle is written off as meaningless or expedient.

The Supreme Court has been an especially good example. “It’s significant that I‘ve voted on seven of the nine Supreme Court justices now, and no one’s ever asked me, gee, are you disappointed in Elena Kagan’s vote?” Collins notes. Daffron puts a finer point on it: “There’s nothing she could do that would satisfy the lunatic left.”

It doesn’t help that across-the-aisle squabbling has now reached up the East coast. “I remember John Chafee, who was as fine a senator as we’ve ever had and a real gentleman … telling me never to campaign against a colleague in a colleague’s state,” she says. And she hasn’t. “But now that’s not the norm.” At least one of her colleagues, she recalls, went to her state and was “very personal in her attacks against me.”

She will still work with the other guys. Of course she will. Collins told me that neither side is more responsible than the other for today’s extremism — that there’s plenty of blame to go around. “But the days that Bill Clinton was trying to find the third way right in the middle,” she says, “unfortunately for now are gone.”

If anything, that’s optimistic. Those days feel gone forever. Straddling the gap between left and right has become a gymnastic feat. In early May, as the Democrats prepared to vote on a proposal to codify Roe v. Wade, Collins announced she wouldn’t support the effort. She and Murkowski presented an alternate bill that they insist would preserve Roe and Planned Parenthood v. Casey while also protecting the competing right of conscientious objectors in the medical profession not to provide abortions. “I want the law today to be the law tomorrow,” Collins said this week.

She’s also working with both Murkowski and Sen. Tim Kaine (D-Va.) to codify not only Roe and Casey but also Griswold v. Connecticut to “enshrine contraception access.” What she won’t do, she explains, is toss out current law, such as the religious protections in the Affordable Care Act and the Hyde Amendment, as desired by Democrats seeking to shore up women’s imperiled ability to choose.

To the extent this sort of difference-splitting used to fly in politics, it now struggles to get off the ground. The stakes — when it comes to the right to an abortion, or the right to vote, or the right to protest, and on and on — are too high. The two sides are too far apart.

The case Collins wants to make is for more “fanatical moderates,” she says. She holds fast to the dream that the civil can legislate as the uncivil cannot, by relying on the type of mutual faith that only common courtesy can foster. “The voices that are the loudest are on the extremes,” she notes. “The irony is that I believe that most people in this country are still in the middle.”

But, in a nation with little appetite for compromise, anyone can see that she is looking for wiggle room where there isn’t much room to wiggle. There is good reason, based on the Alito draft and the accompanying reporting, to believe Kavanaugh will vote to overrule Roe. But imagine, even now, that Kavanaugh finds a way to preserve the case, at least nominally, eroding but not demolishing the right to abortion. Could Collins claim, then, that she was right in the end? Would anyone care, since compromises of that kind don’t have many fans in an all-or-nothing world?

The year after Kavanaugh ascended to the high court, he dissented in a case setting aside a law that required abortion providers in Louisiana to obtain admitting privileges at a local hospital. This was ominous. The chief justice gave the liberals his vote — and a majority — because the law in question was almost identical to another struck down in Whole Woman’s Health v. Hellerstedt.

Roberts had objected to that outcome, but precedent was precedent. Not so for Kavanaugh. How did Collins respond? “He said under oath many times, as well as to me personally many times, that he considers Roe to be ‘precedent upon precedent,’ because it had been reaffirmed in the Casey v. Planned Parenthood case.” She added, “To say that this case … tells you that he’s going to repeal Roe v. Wade, I think, is absurd.”

She believed him, because trusting in each other is how government always used to get things done. Susan Collins might soon have a different worry: After this, who’s going to trust her?



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