Schmitt Gets Jacked Up

Some Senate Republicans are subtly distancing themselves from Donald Trump and MAGA. Others, by contrast, continue to flog the same old conspiracy theories that Trump loves so well. Are they trying to remain in the Dear Leader's good graces? Do they think this will help the Republican Party in November? Do they have a screw loose? Your guess is as good as ours.

Consistent with this, the Senate Judiciary Committee welcomed former special counsel Jack Smith yesterday for a nice 4-hour chat. Smith already talked to the House Judiciary Committee twice—once in December of last year and once in January of this year. However, the Republicans wanted one more bite at the apple before Election Day, in hopes of coming up with some sort of smoking gun, or sound bite, or video clip they could wield in advance of the elections.

The trade-off here is that witnesses who are called before Congressional committees get to make an opening statement. In his statement yesterday, Smith reiterated what he's already told Congress twice. Here's the meat of what he said:

I stand by my decisions as Special Counsel, including my decision to bring charges against President Trump. I made these decisions without regard to President Trump's political association, activities, beliefs, or candidacy in the 2024 presidential election. Our investigation developed proof beyond a reasonable doubt that President Trump engaged in criminal activity. If asked whether to prosecute a former President based on the same facts today, I would do so regardless of whether that President was a Republican or a Democrat.

The charges against President Trump were the result of the evidence. Grand juries in two separate districts reached this conclusion based on his actions, as alleged in the indictments they returned. Rather than accept his defeat in the 2020 presidential election, President Trump engaged in a criminal scheme to overturn the results and prevent the lawful transfer of power. The evidence showed that President Trump attempted to induce state officials to ignore true vote counts; to manufacture fraudulent slates of presidential electors in seven states that he had lost; to force his own Vice President to act in contravention of his oath and to instead advance President Trump's personal interests; and, on January 6, 2021, to direct an angry mob to the United States Capitol to obstruct the congressional certification of the presidential election and then exploit the rioters' violence to further delay it. Over 140 heroic law enforcement officers were assaulted that day, a fact we should never forget.

And, as set forth in the original and superseding indictments issued in the Southern District of Florida, President Trump stored classified documents at his Mar-a-Lago social club after he left office in January 2021 and he repeatedly tried to obstruct justice to conceal his continued retention of those documents. Highly sensitive information was held in non-secure locations, including a bathroom and a ballroom where events and gatherings took place. Tens of thousands of people came to the social club during the time period when those classified documents were stored there.

As with my appearances before the U.S. House of Representatives Committee on the Judiciary, I am prepared to answer your questions truthfully. I stand by my testimony before the House of Representatives. I will not be silenced by the continued threats of prosecution from the President or others.

In short, Smith was able to lay out clearly and concisely that he thinks Donald Trump is a crook, and that multiple grand juries agreed. Presumably Republicans are counting on this to not make an impression, either because Smith has already said the same several times before, or because they hope nobody but political wonks pay attention to opening statements. They may be right about that, although snippets from Smith's remarks were all over social media yesterday.

Once Smith had his opportunity to speak, the members of the Committee got to work. It could not have been clearer that the Republicans on the Committee (most of them, at least) were interested only in insulting Smith and his (former) team, and in desperately trying to contrive a "gotcha" moment. And that pretty much brings us to the utter train wreck that was Sen. Eric Schmitt's (R-MO) line of questioning.

Schmitt came to the hearing with text messages between Smith and his staff, which the Senator blew up and arranged on a pretty posterboard. Schmitt believed that Smith was unaware that he (Schmitt) had the text messages, and he may well have been right about that. The Senator's goal was to "prove" that Smith was part of a grand conspiracy to take Trump down, and in particular that Smith had met with Fulton County DA Fani Willis, so that they could coordinate their attacks on Trump.

The Senator, who clearly has watched too many episodes of Matlock or Perry Mason, presented his general suspicions, and then began laying his trap for Smith, springing this question from out of the blue: "Did you go to an NBA game between the Golden State Warriors and the Atlanta Hawks on February 3, 2024?" Smith was clearly caught unaware (delighting Schmitt), and asked for the question to be repeated. After hearing the query a second time, Smith stuttered a bit as he tried to make sense of what was going on, and said that he did not recall having been in Atlanta during his time as special counsel, and that if he was, it would only have been to pass through the airport. He also said that he definitely never attended an Atlanta Hawks game.

This was Schmitt's moment of triumph. Thrilled that Smith had fallen into his grasp, the Senator unveiled his posterboard, which showed text messages between Smith and his staff about basketball tickets for February 3, 2024, confirming that Smith would be sitting in Section 109 Row 1. Schmitt was fairly aglow as he smirked and declared that Smith had just perjured himself before Congress. He also slurred Smith as a "total dirtbag."

It pretty much all went to hell in a handbasket from there. The posterboard was on display for less than 3 seconds, which made it hard for Smith to respond, and which suggests that maybe Schmitt knew he was pulling a fast one. In any event, Ranking Member Amy Klobuchar (DFL-MN) was the next Senator to be allotted speaking time. And with her help, and the return of the posterboard, Smith was able to figure out what actually happened. He was telling the truth about not having gone to a Hawks game. In fact, the tickets were for an Iowa Hawkeyes game. That was when Caitlin Clark was on the team, and so their games were the hottest item in town. And while the Hawks play in Atlanta, the Hawkeyes were playing in Maryland, more than 500 miles away from Fani Willis, wherever she might have been that night.

The video of the encounter is all over the Internet already. Readers should really consider watching it for themselves, particularly if they would like to see a United States senator hoisted by his own petard. The most important part of the video is the first 2 minutes or so; Schmitt's "triumph" comes at 1:51. Or, you can watch the full 7 minutes (and change) and see Amy Klobuchar (and Smith) cut Schmitt down to size:

There is, by the way, no doubt that Schmitt was wrong. The Hawks play at State Farm Arena, which assigns letters to rows, rather than numbers. In other words, there is no "Section 109, Row 1" at that venue—not now, and not back in 2024. However, there is a "Section 109, Row 1" at Xfinity Center, where Maryland plays its home games.

So, what are the ramifications here, other than an awful lot of schadenfreude? Well, it's at least possible that such an embarrassing mistake could stick to Trump and the Republicans in 2026, and hurt their electoral prospects a little. It might even come back to haunt Schmitt in 2028, when he's next up for reelection. On top of that, it's very possible this is the end of the Jack Smith shenanigans. The Republicans have gotten nothing useful out of Mr. Imperturbable, and they will probably lose control of the House (and its committees) in November, and may also lose control of the Senate (and its committees). Finally, it's proof-of-concept for why Anthony Fauci was right to plead the Fifth in response to every question, and why any other people called in for one of these sham "investigations" would be wise to do the same. (Z)

Game of Shadows

Let us start this item with a brief bit of history. The Supreme Court's "shadow docket," as it currently exists, has only been around for a short time. Historically, these brief, emergency orders were used somewhat rarely, and usually for minor/procedural decisions, like halting an execution for a week. The basic idea was that the status quo might be unredeemable if events were allowed to take their course before the courts could weigh in properly, and so the Supremes were just granting a brief pause. There is, of course, no particular need to explain why a person should not be executed immediately, or to know which justices supported that position.

Chief Justice John Roberts is directly responsible for "innovating" the shadow docket into a situation where substantive legal rulings are made without the Court fully explaining its reasoning (or without the Court explaining its reasoning at all), and without a clear indication as to how each justice voted. The ruling that established the new regime came in 2016, because Roberts and some number of his colleagues wanted to halt the Obama administration's Clean Power Plan. So, the Supremes issued an unsigned decision blocking the program, and that was that. News coverage at the time included some of the very first uses of the term "shadow docket," which had only been coined a year earlier by former Roberts clerk and University of Chicago law professor William Baude.

We have made no secret of the fact that we are not fans of this practice, as it currently exists, because the lack of accountability is wholly undemocratic. And it could not be clearer that it's quickly gotten out of control. We wrote an item a week ago observing that the recently completed term was the first one during which SCOTUS made more decisions via the shadow docket than the regular docket. And yesterday, the Trump administration set a new record of sorts, making its 41st request for a shadow-docket ruling.

Here is a breakdown of shadow-docket requests by president since the start of the 21st century, per the Brennan Center for Justice:

As you can see, in 4 years, Joe Biden more than doubled the total for 16 years of George W. Bush and Barack Obama. And in his first 4 years, Donald Trump more than doubled Biden's total. Now, less than 2 years into his second term, Trump has already equaled his first-term total. At this pace—and there's no reason to think the current administration won't keep it up, particularly if they can't work with a Democratic Congress—Trump would make a total of 138 shadow docket applications.

There are two obvious reasons the shadow docket is being used so excessively. The first is that the Supreme Court cannot handle its caseload anymore, and is using this as a shortcut. The second is that the process is particularly ripe for use and abuse when you have a president who is impatient and doesn't want to wait for processes to play out the normal way, along with a Supreme Court that is extremely partisan and wants to protect itself from political blowback as much as is possible.

We wrote in the item last week that it could not be clearer that reform is needed and that, in particular, a new court (e.g., a Constitutional Court) should be created to handle certain kinds of cases, and to reduce the SCOTUS caseload. There is nothing we've written here that causes us to rethink that conclusion. (Z)

Some Parties Handle Sexual Misconduct One Way; Others Seem to Handle It Differently

We could not help but notice the juxtaposition of two different news stories this week. The first involves Lt. Gov. Dale Caldwell (D-NJ), who was accused of sexually harassing at least one staffer, and also using his political influence to try to secure raises and promotions for his girlfriend. Gov. Mikie Sherrill's (D-NJ) administration hired the firm Lowenstein Sandler (with former NJ AG Christopher Porrino, who is on staff there, taking the lead) to look into the matter, and they released their final report a week ago. It's 61 pages, and kind of dry, but the conclusion is clear: Caldwell did what he was accused of doing.

Once the report was public, Sherrill demanded that Caldwell resign immediately, giving him a deadline of last Friday. The Governor cannot actually fire the Lieutenant Governor, but what she can do is strip him of all official duties, leaving him with, well, a bucket of warm pi** and not much else. Further, there was the strong implication that impeachment proceedings would be commenced if Caldwell did not read the writing on the wall. So, he threw in the towel and resigned.

After Caldwell's demise was official, Sherrill spoke to reporters and decreed: "The president continues to undermine confidence in public service at the federal level. In New Jersey, I will not accept a culture that sweeps misconduct under the rug." It's not universally true in all cases, but it's certainly largely true that Democrats don't tolerate sexual misconduct, even those penis crimes that are more like misdemeanors rather than felonies. One can make a pretty long list of Democrats whose heads have rolled as soon as they got enmeshed in sexual misconduct scandals: Al Franken, John Conyers Jr., Anthony Weiner, Eliot Spitzer, Eric Swalwell, Graham Platner, etc. And if you're placing your Kalshi bets, Rep. Jimmy Gomez (D-CA) will be the next to go. We recognize, of course, that this is a more recent standard; the misdeeds of Bill Clinton in the 1990s were very much swept under the rug.

Meanwhile, it is also largely true that Republicans are far less likely to police their own. The fellow in the White House was elected to his current term after he was found to have sexually assaulted E. Jean Carroll and was described as a rapist by a judge in open court. Matt Gaetz was brought down by his corruption and his decision to resign in search of higher office, not his (alleged) sex trafficking. Rep. Max Miller (R-OH) is almost certainly guilty of felony-level crimes, but is running for reelection. Republicans can't kick him off the ballot, but they can expel him from the House if they wish. But they don't wish. They could also kick out Cory Mills (R-FL), who lost his primary because of his misconduct, but they haven't done that, either. Madison Cawthorn, Dennis Hastert and Roy Moore were also all done in by voters, not their fellow Republican politicians. And, of course, there are all the folks enmeshed in the Epstein scandal. The only GOP head to roll recently was Chuck Edwards (R-NC), although he's still in the House, too, until his term expires. If you want to go back 5 years, Van Taylor and Tom Reed also paid the price for their misdeeds (though only Reed resigned immediately).

And that brings us to the second story we note above. It's not so easy to expel a member of the House, so it's not entirely surprising that it doesn't happen very often, even when a member is forced to abandon their reelection bid. However, even the easy choices, Republicans don't seem to be interested in making. There was a MAHA summit in Washington yesterday. And one of the "honored guests" was actor and comedian Russell Brand, who has been accused of rape by six different women, and will face trial in the U.K. in just a few months.

One would think the administration would not invite an accused rapist until that person's name was cleared. Or, if they didn't know, you would think they would dis-invite him. But no, Brand was there with bells on yesterday, palling around with Robert Kennedy Jr. and J.D. Vance. He was also a member of a panel that included Trump administration member Dr. Mehmet Oz. And during that panel, Brand and Vance joked and laughed, and Brand even made a comment about how he hugged a female member of the administration backstage (Secretary of Agriculture Brooke Rollins), but that the embrace was consensual (eye roll, and laugh, with Oz joining in).

Between the various birth-control-related policies, and the general indifference to sexual assault, the GOP is certainly developing quite the reputation for being hostile to women. We have no doubt that will play at least some role in November's elections. And if we're not at the point that this perception is almost permanently baked into the Party's rep, we've gotta be very close. (Z)

It's Time for the Skeletons to Dance: Republican Edition

Yesterday, we wrote that it's now primetime for political skeletons to come out of their various closets. If any reporter or oppo researcher is sitting on something juicy... well, absentee ballots are about to be in voters' hands, and Election Day is only a month away.

In yesterday's item, we noted that the only major Democratic dirt we've seen in the last couple of weeks is a New York Times' exposé on former Alaska representative and would-be future Alaska senator Mary Peltola, and how she was mean to her staff sometimes. We don't know how much that will hurt her, if at all, but we do know the story only survived for one or maybe two news cycles before disappearing from view.

We also said that today we'd pass along some recent Republican dirt. There's been a bit more of that recently. First up, at almost exactly the same time that the Times was tearing down Peltola, they were also conducting a focus group with a dozen Texans who voted for Donald Trump in 2024, and how they feel about this year's two major-party U.S. Senate candidates, James Talarico (D) and Ken Paxton (R). The responses that got the most attention, from other media, were the 12 answers to the question, "When you hear the name Ken Paxton, what comes to mind?" Here are all of the answers:

1. Crook
2. Criminal, crook, all those. Yeah.
3. Crooked
4. Bad
5. Amoral
6. Disgusting
7. Two words: morally corrupt
8. Disgusting
9. Corrupt
10. Womanizer, crook
11. Crook is the word that comes to my mind.
12. Controversial. There's just so many things that he's been accused of and acquitted of. And I took a more neutral approach to your question. So controversial, but more in a negative way.

Depending on how you count that last one, that's either 12 negative reviews or 11 negative and one sorta neutral.

Of course, a focus group is not "dirt," per se. And in Paxton's case, there hasn't exactly been new dirt in the last week. That is because there is already so much dirt on him, old dirt just keeps bubbling up to the surface on a regular basis. This week, it's been the fact that Paxton and his staff released a child predator (Adam Hoffman) after he served virtually no time. During an appearance at the United States Hispanic Business Council, Paxton was asked how he could release Hoffman after just 1 day in jail. The would-be senator was irritated by the question, and said that it wasn't 1 day, it was 60 days. That may not be the "tough on crime" flex that Paxton thinks it is.

Next up is Sen. Susan Collins (R-ME), who is currently in a tough race against Troy Jackson (D). Collins is famous for bringing pork home to her state, though she's never been implicated in any sort of pay-to-play shenanigans. At least, not until this week. Investigative journalism outlet ProPublica reported that, back in 2020, Collins was facing a different tough race and was low on campaign cash. So, the head of Collins' PAC met with the CEOs of several corporations who have government contracts, and secured six-figure donations from several of them, including Navatek's Martin Kao.

Kao eventually got busted for making bribes. He was indicted in 2022 and spent the next 2 years spilling his guts in hope of a reduced sentence. He is thus not an entirely reliable source. However, he said that Collins was aware of the nature of the arrangement, and that she agreed to steer millions in government contracts to his firm. That is not quite enough to convict, but it was enough to cause the FBI to commence an investigation of Collins and her staff in late 2024. However, before that investigation could bear fruit, the Trump administration retook the White House, and all such FBI probes were canceled.

We may never know if Collins was on the take. But, as we have written many times, the court of public opinion is not a court of law. Mainers love their pork, but they do not love corruption. This story is getting at least some play in the Pine Tree State, so it could do some damage to the Senator. And in a year where she doesn't need additional anchors weighing her down.

And finally, at least for today, there is Sen. Roger Marshall (R-KS), whose reelection bid is a fair bit tougher than one would expect for a Republican politician in a ruby-red state. In yet another New York Times' exposé (at least they are exposing poor behavior for both Democrats and Republicans) it was revealed that the Senator, who was an OB/GYN in his past life, sued over 700 patients who were unable to pay off their bills, in part because of the usurious 18% interest rate he charged. And 81 of those were arrested and spent at least some time in jail. The bills were often for fairly small amounts of money ($100 or so), and the targets were almost all mothers of newborns.

In fairness, Marshall probably needed the money. After all, his salary in his last full-time year as a doctor was a paltry $780,000, and his net worth is between $3 and $10 million. Hard to make ends meet with that kind of scratch. Both the Senator and his bill-collecting attorney say that people have to be held to account if they don't pay (true enough), and that most doctors pursue delinquent accounts with this same vigor (not true, according to the experts the Times interviewed, one of whom described the behavior as "definitely on the extreme side"). And, as with Collins, politics is about perception. The image of a mother of a newborn being hauled off to prison because she couldn't afford the 18% interest rate is not a good one.

Anyhow, as you can see from our map above, our method of weighting polls actually has Adam Hamilton (D) leading the Senator. The aggregators all have Marshall with a tiny lead of less than 1%. And earlier this week, The Hill had a piece headlined "GOP fears 'perfect storm' could lead to Marshall's loss in red state Kansas." This new reporting certainly isn't going to do anything to dispel that perfect storm.

At the end of our item yesterday, we asked readers to send in any dirt on Democrats we might have missed, and we got a couple of things, which we'll run soon. If any readers have additional dirt on Democrats, or dirt on Republicans that we missed, please do let us know at comments@electoral-vote.com. (Z)

Today's Senate Polls

Is Abdul El-Sayed (D) really pulling away? It's possible; it would seem, according to Sarah Longwell of The Bulwark, that being on the right side of the Israel question is more important than being on the right side of MAGA for some Michigan voters. Meanwhile, we won't be too shocked if Brown wins Ohio comfortably. He did win statewide election there five times, and was only brought down because of Joe Biden's unpopularity. Now, it's the other guy who has to worry about an unpopular president. It also does not help that Sen. Jon Husted (R-OH) is both milquetoast and, by all appearances, a bit of a crook. This is not Jim Traficant's Ohio; Buckeyes ain't got no truck with that kind of behavior anymore. Especially from guys who do NOT have the world's worst toupee.

Once again, you can click on the state name in the "Today's Senate Polls" section every day to see a graph of that race going back as far as there were 2026 polls of the general election (often before the primaries, when some pollsters tested all combinations). (Z)

State	Democrat	D %	Republican	R %	Start	End	Pollster
Massachusetts	Ed Markey*	54%	John Deaton	28%	Sep 14	Sep 22	MassINC
Michigan	Abdul El-Sayed	45%	Mike Rogers	40%	Sep 18	Sep 21	Beacon + Signal
Ohio	Sherrod Brown	51%	Jon Husted*	43%	Sep 24	Sep 27	Marist Coll.

* Denotes incumbent

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