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  • A Plan to Outlaw Abortion Everywhere

    A Plan to Outlaw Abortion Everywhere

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    The year 2022 was a triumphant one for the anti-abortion movement. After half a century, the Supreme Court did what had once seemed impossible when it overturned Roe v. Wade, stripping Americans of the constitutional right to terminate a pregnancy. Now movement activists are feeling bolder than ever: Their next goal will be ending legal abortion in America once and for all. A federal ban, which would require 60 votes in the Senate, is unlikely. But some activists believe there’s a simpler way: the enforcement by a Trump Justice Department of a 150-year-old obscenity law.

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    The Comstock Act, originally passed in 1873 to combat vice and debauchery, prohibits the mailing of any “article or thing” that is “designed, adapted, or intended for producing abortion, or for any indecent or immoral use.” In the law’s first 100 years, a series of court cases narrowed its scope, and in 1971, Congress removed most of its restrictions on contraception. But the rest of the Comstock Act has remained on the books. The law has sat dormant, considered virtually unenforceable, since the Roe v. Wade ruling in 1973.

    Following the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision in 2022, the United States Postal Service asked the Justice Department for clarification: Could its workers legally transport abortion-inducing medications to states with bans? The DOJ replied by issuing a memo stipulating that abortion pills can be legally mailed as long as the sender does not intend for the drugs to be used unlawfully. And whether or not the drugs will be used within the bounds of state law, the memo notes, would be difficult for a sender to know (the pills have medical uses unrelated to abortion).

    If Donald Trump is reelected president, many prominent opponents of abortion rights will demand that his DOJ issue its own memo, reinterpreting the law to mean the exact opposite: that Comstock is a de facto ban on shipping medication that could end a pregnancy, regardless of its intended use (this would apply to the USPS and to private carriers like UPS and FedEx). “The language is black-and-white. It should be enforced,” Steven H. Aden, the general counsel at Americans United for Life, told me. A broader interpretation of the Comstock Act might also mean that a person receiving abortion pills would be committing a federal crime and, if prosecuted, could face prison time. Federal prosecutors could bring charges against abortion-pill manufacturers, providers receiving pills in the mail, or even individuals.

    The hopes of some activists go further. Their ultimate aim in reviving the Comstock Act is to use it to shut down every abortion facility “in all 50 states,” Mark Lee Dickson, a Texas pastor and anti-abortion advocate, told me. Taken literally, Comstock could be applied to prevent the transport of all supplies related to medical and surgical abortions, making it illegal to ship necessary tools and medications to hospitals and clinics, with no exceptions for other medical uses, such as miscarriage care. Conditions that are easily treatable with modern medicine could, without access to these supplies, become life-threatening.

    Legal experts say that the activists’ strategy could, in theory, succeed—at least in bringing the issue to court. “It’s not hypothetical anymore,” Mary Ziegler, a law professor at the UC Davis School of Law, told me. “Because it’s already on the books, and it’s not ridiculous to interpret it this way, [the possibility] is not far-fetched at all.”

    Eventually, the Supreme Court would likely face pressure to weigh in. Even though a majority of the Court’s justices have supported abortion restrictions and ruled to overturn Roe, it’s unclear how they’d rule on this particular case. If they were to uphold the broadest interpretation of the Comstock Act, doctors even in states without bans could struggle to legally obtain the supplies they need to provide abortions and perform other procedures.

    This is what activists want. The question is whether Trump would accede to their demands. After years of championing the anti-abortion cause, the former president seemed to pivot when he blamed anti-abortion Republicans’ extremism for the party’s poor performance in the 2022 midterm elections (only a small fraction of Americans favors a complete abortion ban). Recently, he’s come across as more moderate on the issue than his primary opponents by condemning Florida’s six-week abortion ban and endorsing compromise with Democrats.

    As president, Trump might choose not to enforce Comstock at all. Or he could order his DOJ to enforce it with discretion, promising to go after drug manufacturers and Planned Parenthood instead of individuals. It’s hard to be certain of any outcome: Trump has always been more interested in appeasing his base than reaching Americans in the ideological middle. He might well be in favor of aggressively enforcing the Comstock Act, in order to continue bragging, as he has in the past, that he is “the most pro-life president in American history.”


    This article appears in the January/February 2024 print edition with the headline “A Plan to Outlaw Abortion Everywhere.”

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    Elaine Godfrey

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  • The Danger Ahead

    The Danger Ahead

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    For all its marvelous creativity, the human imagination often fails when turned to the future. It is blunted, perhaps, by a craving for the familiar. We all appreciate that the past includes many moments of severe instability, crisis, even radical revolutionary upheaval. We know that such things happened years or decades or centuries ago. We cannot believe they might happen tomorrow.

    When Donald Trump is the subject, imagination falters further. Trump operates so far outside the normal bounds of human behavior—never mind normal political behavior—that it is difficult to accept what he may actually do, even when he declares his intentions openly. What’s more, we have experienced one Trump presidency already. We can take false comfort from that previous experience: We’ve lived through it once. American democracy survived. Maybe the danger is less than feared?

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    In his first term, Trump’s corruption and brutality were mitigated by his ignorance and laziness. In a second, Trump would arrive with a much better understanding of the system’s vulnerabilities, more willing enablers in tow, and a much more focused agenda of retaliation against his adversaries and impunity for himself. When people wonder what another Trump term might hold, their minds underestimate the chaos that would lie ahead.

    By Election Day 2024, Donald Trump will be in the thick of multiple criminal trials. It’s not impossible that he may already have been convicted in at least one of them. If he wins the election, Trump will commit the first crime of his second term at noon on Inauguration Day: His oath to defend the Constitution of the United States will be a perjury.

    A second Trump term would instantly plunge the country into a constitutional crisis more terrible than anything seen since the Civil War. Even in the turmoil of the 1960s, even during the Great Depression, the country had a functional government with the president as its head. But the government cannot function with an indicted or convicted criminal as its head. The president would be an outlaw, or on his way to becoming an outlaw. For his own survival, he would have to destroy the rule of law.

    From Trump himself and the people around him, we have a fair idea of a second Trump administration’s immediate priorities: (1) Stop all federal and state cases against Trump, criminal and civil. (2) Pardon and protect those who tried to overturn the 2020 election on Trump’s behalf. (3) Send the Department of Justice into action against Trump adversaries and critics. (4) End the independence of the civil service and fire federal officials who refuse to carry out Trump’s commands. (5) If these lawless actions ignite protests in American cities, order the military to crush them.

    A restored Trump would lead the United States into a landscape of unthinkable scenarios. Will the Senate confirm Trump nominees who were chosen because of their willingness to help the president lead a coup against the U.S. government? Will the staff of the Justice Department resign? Will people march in the streets? Will the military obey or refuse orders to suppress demonstrations?

    The existing constitutional system has no room for the subversive legal maneuvers of a criminal in chief. If a president can pardon himself for federal crimes—as Trump would likely try to do—then he could write his pardon in advance and shoot visitors to the White House. (For that matter, the vice president could murder the president in the Oval Office and then immediately pardon herself.) If a president can order the attorney general to stop a federal case against him—as Trump would surely do—then obstruction of justice becomes a normal prerogative of the presidency. If Trump can be president, then the United States owes a huge retrospective apology to Richard Nixon. Under the rules of a second Trump presidency, Nixon would have been well within his rights to order the Department of Justice to stop investigating Watergate and then pardon himself and all the burglars for the break-in and cover-up.

    After Trump was elected in 2016, he was quickly surrounded by prominent and influential people who recognized that he was a lawless menace. They found ways to restrain a man they regarded as, to quote the reported words of Trump’s first secretary of state, “a fucking moron” and, to quote his second chief of staff, “the most flawed person I’ve ever met in my life,” whose “dishonesty is just astounding.” But there would be no Rex Tillerson in a second Trump term; no John Kelly; no Jeff Sessions, who as attorney general recused himself from the investigation into the president’s connections to Russia, leading to the appointment of an independent special counsel.

    Since 2021, Trump-skeptical Republicans have been pushed out of politics. Representatives Liz Cheney and Adam Kinzinger forfeited their seats in the House for defending election integrity. Representative Tom Emmer withdrew his bid for House speaker over the same offense. The Republican Senate caucus is less hospitable to Trump-style authoritarianism—but notice that the younger and newer Republican senators (Ted Cruz, Josh Hawley, J. D. Vance) tend to support Trump’s schemes, while his opponents in the Senate belong to the outgoing generation. Trump’s leading rivals for the 2024 nomination seldom dare criticize his abuse of power.

    Most of the people who would staff a second Trump term would be servile tools who have absorbed the brutal realities of contemporary Republicanism: defend democracy; forfeit your career. Already, an array of technically competent opportunists has assembled itself—from within right-wing think tanks and elsewhere—and has begun to plan out exactly how to dismantle the institutional safeguards against Trump’s corrupt and vengeful impulses. Trump’s likely second-term advisers have made clear that they would share his agenda of legal impunity and the use of law enforcement against his perceived opponents—not only the Biden family, but Trump’s own former attorney general and chairman of the Joint Chiefs of Staff.

    If Trump wins the presidency again, the whole world will become a theater for his politics of revenge and reward. Ukraine will be abandoned to Vladimir Putin; Saudi Arabia will collect its dividends for its investments in the Trump family.

    First-term Trump told aides that he wanted to withdraw from NATO. Second-term Trump would choose aides who would not talk him out of it. Other partners, too, would have to adjust to the authoritarianism and corruption of a second Trump term. Liberals in Israel and India would find themselves isolated as the U.S. turned toward reaction and authoritarianism at home; East Asian democracies would have to adjust to Trump protectionism and trade wars; Mexico’s antidemocratic Morena party would have scope to snuff out free institutions provided that it suppressed migration flows to the United States.

    Anyway, the United States would be too paralyzed by troubles at home to help friends abroad.

    If Trump is elected, it very likely won’t be with a majority of the popular vote. Imagine the scenario: Trump has won the Electoral College with 46 percent of the vote because third-party candidates funded by Republican donors successfully splintered the anti-Trump coalition. Having failed to win the popular vote in each of the past three elections, Trump has become president for the second time. On that thin basis, his supporters would try to execute his schemes of personal impunity and political vengeance.

    In this scenario, Trump opponents would have to face a harsh reality: The U.S. electoral system has privileged a strategically located minority, led by a lawbreaking president, over the democratic majority. One side outvoted the other. The outvoted nonetheless won the power to govern.

    The outvoted would happily justify the twist of events in their favor. “We are a republic, not a democracy,” many said in 2016. Since that time, the outvoted have become more outspoken against democracy. As Senator Mike Lee tweeted a month before the 2020 election: “Democracy isn’t the objective.”

    So long as minority rule seems an occasional or accidental result, the majority might go along. But once aware that the minority intends to engineer its power to last forever—and to use it to subvert the larger legal and constitutional system—the majority may cease to be so accepting. One outcome of a second Trump term may be an American version of the massive demonstrations that filled Tel Aviv streets in 2023, when Prime Minister Benjamin Netanyahu tried to remake Israel’s court system.

    And what might follow that? In 2020, Trump’s advisers speculated about the possibility of using the Army to crush protests against Trump’s plans to overturn that year’s election. Now those in Trump’s circle are apparently thinking further ahead. Some reportedly want to prepare in advance to use the Insurrection Act to convert the military into a tool of Trump’s authoritarian project. It’s an astonishing possibility. But Trump is thinking about it, so everybody else must—including the senior command of the U.S. military.

    If a president can summon an investigation of his opponents, or summon the military to put down protests, then suddenly our society would no longer be free. There would be no more law, only legalized persecution of political opponents. It has always been Trump’s supreme political wish to wield both the law and institutional violence as personal weapons of power—a wish that many in his party now seem determined to help him achieve.

    That grim negative ideal is the core ballot question in 2024. If Trump is defeated, the United States can proceed in its familiar imperfect way to deal with the many big problems of our time: the wars in the Middle East and Ukraine, climate change, educational standards and equal opportunity, economic growth and individual living standards, and so on. Stopping Trump would not represent progress on any of those agenda items. But stopping Trump would preserve the possibility of progress, by keeping alive the constitutional-democratic structure of the United States.

    A second Trump presidency, however, is the kind of shock that would overwhelm all other issues. It would mark the turn onto a dark path, one of these rips between “before” and “after” that a society can never reverse. Even if the harm is contained, it can never be fully undone, as the harm of January 6, 2021, can never be undone. The long tradition of peaceful transitions of power was broken that day, and even though the attempt to stop the transition by violence was defeated, the violence itself was not expunged. The schemes and plots of a second Trump term may be defeated too. Yet every future would-be dictator will know: A president can attempt a coup and, if stopped, still return to office to try again.

    As we now understand from memoirs and on-the-record comments, many of Trump’s own Cabinet appointees and senior staff were horrified by the president they served. The leaders of his own party in Congress feared and hated him. The GOP’s deepest-pocketed donors have worked for three years to nominate somebody, anybody, else. Yet even so, Trump’s co-partisans are converging upon him. They are convincing themselves that something can justify forgiving Trump’s first attempted coup and enabling a second: taxes, border control, stupid comments by “woke” college students.

    For democracy to continue, however, the democratic system itself must be the supreme commitment of all major participants. Rules must matter more than outcomes. If not, the system careens toward breakdown—as it is careening now.

    When Benjamin Franklin famously said of the then-new Constitution, “A republic, if you can keep it,” he was not suggesting that the republic might be misplaced absentmindedly. He foresaw that ambitious, ruthless characters would arise to try to break the republic, and that weak, venal characters might assist them. Americans have faced Franklin’s challenge since 2016, in a story that has so far had some villains, many heroes—and just enough good luck to tip the balance. It would be dangerous to continue to count on luck to do the job.


    This article appears in the January/February 2024 print edition with the headline “The Revenge Presidency.”

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    David Frum

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  • Newsom-DeSantis debate draws 4.75 million viewers on Fox News

    Newsom-DeSantis debate draws 4.75 million viewers on Fox News

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    The Thursday debate between California Gov. Gavin Newsom and Florida Gov. Ron DeSantis on Fox News — the talk of the political world this past week — delivered a decent bump in the channel’s ratings.

    Billed as the “The Great Red State vs. Blue State Debate,” the event moderated by Fox News host Sean Hannity averaged 4.75 million viewers, according to Nielsen data.

    The number was more than double the November average for “Hannity,” which was 2.3 million viewers, as the debate pulled in people who do not typically watch his nightly diatribes against liberals and the Biden administration. The figure also accounted for 73% of the viewers watching cable news in the 9 p.m time slot.

    The event faced stiff competition, up against a close, high-scoring “Thursday Night Football” contest between the Dallas Cowboys and Seattle Seahawks streaming on Amazon, and the finale of “The Golden Bachelor” on ABC, the most-watched TV program of the night.

    The highly anticipated match-up staged in a suburb outside Atlanta was unusual for TV news, with DeSantis, a contender for the 2024 Republican nomination for president, facing off against a sitting governor who has repeatedly stated he is not running for national office.

    Newsom, a leading surrogate for the Democratic party, was also entering an arena where the moderator, Hannity, was clearly aligned politically with DeSantis.

    Despite the efforts of Hannity to keep order — he pleaded on and off the air with both participants to not talk over each other — the 90-minute event became chaotic at times, making it difficult for viewers to understand either of them.

    The questions offered up by the conservative host were mostly built around unfavorable comparisons of California to Florida on issues such as crime, handling of the COVID-19 pandemic, homelessness and gasoline prices, and put Newsom on the defense for much of the evening.

    But Newsom entered the showdown with nothing to lose, as he is insistent he will not be Democratic candidate for president in 2024, despite chatter in right-wing circles. He largely used his time to defend the performance of President Biden’s administration while getting exposure in front of a national audience that may not have been familiar with him.

    When Hannity served up a question stating emphatically that Biden was in cognitive decline, Newsom shot back that he will “take Joe Biden at 100 versus Ron DeSantis any day of the week at any age.”

    DeSantis needed the event to ignite his flagging presidential campaign, as he badly trails former President Trump in polls and has fallen behind former UN Ambassador Nikki Haley in some primary states.

    DeSantis used props in his presentation, including a very brown map that depicted the volume of human fecal matter on the streets of San Francisco, where Newsom was once mayor.

    Fox News used clips of the debate on its Friday opinion programs, touting it as a win for DeSantis, who up to now has failed to catch fire with the network’s audience.

    “This was a victory of conservatism over liberalism,” said Kaleigh McEnany, the former Trump White House press secretary who is now a co-host of the Fox News daytime show “Outnumbered.”

    But McEnany said Newsom, whom she described as “sharp,” cannot be written off as a political competitor.

    “Watch out for him, because he’s coming if not in ‘24, in ‘28,” she said.

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    Stephen Battaglio

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  • Opinion: How did California's Gov. Newsom fare against his Florida rival, Gov. DeSantis?

    Opinion: How did California's Gov. Newsom fare against his Florida rival, Gov. DeSantis?

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    What the hell was that?

    Ostensibly, Thursday’s debate between California Gov. Gavin Newsom, who is not running for president, and Florida Gov. Ron DeSantis, who is, was supposed to be an exploration of the ideological differences between the two chief executives.

    Opinion Columnist

    Robin Abcarian

    After all, one is the embodiment of progressive, blue-state policies and a high-profile surrogate for President Biden and Vice President Kamala Harris. The other represents the younger, less orange face of Planet MAGA, and, as it became clear, can’t pronounce “Kamala” correctly.

    Twenty minutes in, however, I had a headache. There was so much cross-talk and interrupting — by both governors — that it was impossible to hear what they were saying.

    If a third debater had been onstage, they almost certainly would have piped up, “See folks, this is why those two should not be on this debate stage.”

    It was actually pretty funny that Sean Hannity, an unabashed supporter of former President Trump who engineered this overhyped meeting of ideological opposites, positioned himself as the grownup in the room, the guy who wanted to take the temperature down a few notches in order to get his loaded questions answered.

    “Let each other breathe,” pleaded Hannity. “I don’t want to be the hall monitor.” Don’t worry, Sean, you weren’t. He prefaced one of his loaded questions thus: “Joe Biden has experienced significant cognitive decline.”

    DeSantis performed better than I expected against the voluble Newsom, who has two decades of political experience to DeSantis’ one. In three previous Republican debates, DeSantis failed to distinguish himself, appearing almost wimpy next to the verbally muscular former South Carolina Gov. Nikki Haley, who has overtaken him in polls. (Which probably explains why he agreed to debate Newsom after refusing to for most of the past year.) He landed well-deserved blows about California’s infamous, and well-acknowledged, problems — homelessness, in particular.

    The problem with this spectacle was that too many incompatible things were simultaneously going on: The flailing DeSantis was trying to reestablish himself as a viable GOP alternative in the event that Trump’s felony indictments make him, finally, unpalatable to Republican voters.

    Newsom was trying to raise his national political profile, defend the Biden-Harris record and argue that California is a better place to live than Florida. (Which, of course, it is.)

    Did Newsom have anything to lose? Not really.

    Yes, we all know that California is expensive, and that for the first time in forever, more people are leaving than coming in. Yes, we had lockdowns during the pandemic. This was the gist of DeSantis’ argument that he’s the better governor.

    And yet, as Newsom pointed out, more Floridians have recently moved to California than Californians to Florida.

    “There is one thing that we have in common,” said Newsom. “Neither of us will be the nominee for our party in 2024.”

    Oh snap.

    @robinkabcarian

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    Robin Abcarian

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  • Fox News debate with DeSantis puts Newsom on the defensive

    Fox News debate with DeSantis puts Newsom on the defensive

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    California Gov. Gavin Newsom and Florida Gov. Ron DeSantis turned their feud over blue and red state policies personal Thursday, clashing for more than 90 minutes over crime, taxes, COVID-19 pandemic policies, immigration, book bans and other divisive issues in an unorthodox debate that both men hoped would propel their national political ambitions.

    California has “failed because of his leftist ideology,” DeSantis said of Newsom, whom he called a “slick politician.”

    “There’s one thing … that we have in common,” Newsom said. “Neither of us will be the nominee for our party in 2024.”

    The forum in Georgia between the liberal Democrat and the conservative Republican, hosted by Sean Hannity on Fox News, culminated months of shadow boxing between the two governors, who have used their states’ opposing partisan approaches to governing to attack each other.

    Newsom was on the defensive for much of the debate as Hannity focused on taxes, crime, late-term abortions, California’s high gas prices and other topics on which conservatives believe they have the upper hand politically. Newsom responded by ignoring or reframing many of the questions.

    DeSantis, who has seen his once-promising presidential campaign sag, recognized an opportunity to take down the leader of the most prominent Democratic-led state, which he attacked as a bastion of unhinged progressive policies that have led to lawlessness and mass departures.

    Newsom, who may run for president in 2028, saw an opportunity to cement his reputation as a warrior for Democratic values, unafraid of Fox News and Republicans, as he savaged DeSantis’ vision of freedom as phony in a state where books are banned and abortion rights are curtailed.

    The risks for both men were clear. Some viewers may see the obvious downgrade in DeSantis’ campaign as he battles a governor who is not running for president, instead of former President Trump, the overwhelming favorite to win the GOP nomination, or President Biden, the man he hopes to ultimately unseat. Newsom could come off as too eager for attention and overconfident in believing he could dispatch DeSantis, who came well prepared, in a debate moderated by Hannity.

    It’s unclear whether Thursday’s debate will change minds on policy. But viewers got a clear contrast in a nation where differences are more often being played out in the states, which are increasingly dominated by a single party.

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    Noah Bierman, Taryn Luna

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  • Donald Trump greeted by loud boos at South Carolina football game

    Donald Trump greeted by loud boos at South Carolina football game

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    Former President Donald Trump was met with loud boos as he arrived at Williams-Brice Stadium in South Carolina on Saturday ahead of the Palmetto Bowl.

    Trump, the frontrunner for the Republican nomination in the 2024 presidential primary, was in Columbia to watch the Palmetto Bowl college football game between the University of South Carolina’s Gamecocks and Clemson University’s Tigers.

    The former president remains a popular figure in South Carolina, a state where he beat President Joe Biden by 12 points in 2020. South Carolina is a key early voting state, and Trump has maintained a commanding lead in polls over his GOP rivals, including former South Carolina Governor Nikki Haley.

    Haley, a Clemson alumna and trustee who was twice elected the state’s governor, did not attend the annual rivalry football game, according to local media reports.

    The former president was invited to watch the football game at the request of Governor Henry McMaster, who became Haley’s successor after Trump named her U.S. ambassador to the United Nations in 2017.

    Trump faced a mix of boos and some cheers while at the bowl game, according to videos posted on social media.

    Former U.S. President Donald Trump waves to the crowd while on the field during halftime in the Palmetto Bowl between Clemson and South Carolina at Williams-Brice Stadium on November 25, 2023, in Columbia, South Carolina. Trump faced boos while at the game, videos on social media show.
    Sean Rayford/Getty

    The MAGA leader was greeted with audible boos as his black SUV was arriving at Williams-Brice Stadium on Saturday, according to video clips shared on X, formerly Twitter. In a minute-long clip, posted by Beth Hoole, a director for local station WHNS, the crowd’s jeers can be heard roughly 10 seconds in.

    Hoole’s video was reshared on X by 11Alive journalist Cody Alcorn, who called it an “explicit welcome.”

    “You can hear the boo’s and explicit welcome Trump received as his SUV arrived at Williams-Brice for the Palmetto Bowl,” Alcorn said in the post.

    Despite a smattering of boos, the crowd wasn’t entirely hostile as chants of “We Want Trump” and “USA” rang out whenever the former president was shown on the jumbotron.

    Steven Cheung, a spokesman for Trump, told a Newsweek editor in an email to “step away from your computer on a Saturday night and come to an event sometime to experience the electric Trump effect.”

    “South Carolina loves President Trump,” Cheung said. “Just take a look at all the videos circulating social media of giving him a warm and rousing welcome to the Palmetto Bowl.”

    Simon Ateba, Chief White House Correspondent at Today News Africa, shared a video on X showing the crowd inside the stadium cheering and clapping for the former president.

    “EXPLOSIVE: Massive pro-Trump crowd as Trump arrives in Nikki Haley’s state of South Carolina,” Ateba said in the X post. “Multiple indictments and MSM have not changed the minds of the voters. WATCH.”

    Trump’s stop in South Carolina comes amid potential key updates involving his criminal and civil trials that could tarnish his 2024 presidential campaign.

    A reporter for local outlet The Post and Courier, Caitlin Byrd, shared a clip of Trump as he took the field with McMaster at halftime.

    “Additional video from AP’s Meg Kinnard captures the mix of cheers and boos when Trump + McMaster walked onto the field tonight for a quick appearance during halftime of the USC-Clemson football game,” Byrd posted. “The boos are audible, as is someone shouting, ‘We love you!’”