300

For close to 2,500 years, the number 300 has been associated with valor, commitment to duty, and self-sacrifice, as that is the (alleged) number of Spartans that took on and significantly delayed a vastly larger Persian force at the Battle of Thermopylae. Now, the number may end up associated with a very different set of values.

Why? Well, that's roughly the number of classified documents that Donald Trump had at Mar-a-Lago, according to a new report from The New York Times. That includes both the initial cache surrendered during the "give us back our documents" incidents in January and June and also the materials recovered during the search of Mar-a-Lago a couple of weeks ago.

Reportedly, the pressing concern that justified a warrant was not any particular document, nor any particular imminent action (like, say, handing materials over to the Russians). It was, instead, the sheer volume of material that the former president retained, even after multiple attempts by the government to reclaim it. Remarkably, the DoJ still isn't certain they've got everything, and they want to review security footage from Mar-a-Lago to see if there might be clues as to more purloined letters.

Meanwhile, Judge Bruce Reinhart released a 13-page order yesterday that lays out his current thinking on the Mar-a-Lago affidavit. There were two things of note in the order. First, the Judge reiterated that he is "satisfied that the facts sworn by the affiant are reliable." Second, he implied that he may not allow the DoJ to redact parts of the document before it is released. His exact words: "I cannot say at this point that partial redactions will be so extensive that they will result in a meaningless disclosure, but I may ultimately reach that conclusion after hearing further from the Government." The DoJ has until Thursday to respond and to try to win Reinhart over to its point of view.

Team Trump also produced a filing yesterday. If you're a lawyer, and you want an amusing example of how one page worth of legal argument can be turned into 27 pages of political bluster, then click on the link. What the former president says he wants is the appointment of a special master to go through the seized materials and to return anything that shouldn't have been taken. Is there anyone reading right now who thinks this is anything other than an attempt to waste time and drag out the process?

There are two other bits of news on the Trump legal front. The first of those is that, in July alone, Trump's PAC spent nearly $1 million on legal fees. And that is with the RNC picking up the tab for some of his representation. Given how expensive things will get if he's actually indicted, Trump might not be able to afford to declare for president, for fear of losing the RNC kick-ins.

And finally, there were not one but two op-eds on Fox this weekend that were, for lack of a better description, pro-FBI. They were headlined "The Trump Mar-a-Lago search was justified" and "Checks and balances on search of Trump's Mar-a-Lago home and resort display limited government at its best." Does it mean anything? Maybe, maybe not. But it certainly does nothing to disabuse us of the notion that Fox is trying to move on from Trump, just as the Rupert Murdoch-owned Wall Street Journal and New York Post already have. (Z)

Graham's Reprieve Will Be Brief

Late last week, Sen. Lindsey Graham (R-SC) got a temporary reprieve from having to testify in Fulton County DA Fani Willis' probe of 2020 election interference in Georgia. And now, it's looking like it will be very temporary, indeed.

District Court Judge Leigh Martin May has been ordered, by the appeals court, to take another look at Graham's request to quash the subpoena he received. It would seem that the Judge wants to dispense with this as rapidly as possible. And so, he issued an order yesterday giving Graham until Wednesday at 9:00 a.m. to file a motion laying out what questions he wants to the Court to look at. Then, Willis' office will have until Monday at 9:00 a.m. to respond, and Graham will have until next Wednesday at 9:00 a.m. to reply to that. It all points to a decision by Friday of next week, give or take a day.

Graham's angle here is that he can't be asked to testify about U.S. Senate business. May is clearly not buying it that when the Senator started twisting arms in Georgia, he was just acting in his official capacity. So now, Graham and his lawyers will have roughly 24 hours to try to come up with plausible arguments for why question [X] or question [Y] that Willis is sure to ask is really just part of Graham's job. It won't be easy. (Z)

Fauci to Retire

This has long been rumored, but now it is official: After 38 years of service to the federal government, Anthony Fauci will step down from his various posts at the end of the year.

What is prompting Fauci to exit government service? Maybe, at age 81, he just wants a well-deserved retirement. Perhaps, with COVID and Monkeypox on the march, he's just burned out. Or, possibly, some university or think tank made him an offer he couldn't refuse. It could also be that he's tired of being a whipping boy for Republicans, and he really doesn't want to spend most of his time next year traipsing over to the Hill to testify in investigation after investigation, should the Republicans regain control of the House.

If the last guess is the right one, Fauci may not accomplish his goals, even with his retirement. Numerous House Republicans greeted the announcement by making clear that they are going to investigate Fauci regardless of whether he's still working for the government or not. For example, here's would-be speaker Kevin McCarthy (R-CA):

Dr. Fauci lost the trust of the American people when his guidance unnecessarily kept schools closed and businesses shut while obscuring questions about his knowledge on the origins of COVID.

He owes the American people answers. A @HouseGOP majority will hold him accountable.

— Kevin McCarthy (@GOPLeader) August 22, 2022

Republican whip Steve Scalise (R-LA) declared: "It's good to know that with his retirement, Dr. Fauci will have ample time to appear before Congress and share under oath what he knew about the Wuhan lab, as well as the ever-changing guidance under his watch that resulted in wrongful mandates being imposed on Americans." And Rep. James Comer (R-KY), who is in line to take over the House Oversight and Reform Committee, warned "Retirement can't shield Dr. Fauci from congressional oversight."

It's another reminder that if the Republicans take over the lower chamber, they are going to use their investigative powers to their full extent, often in a bad-faith manner. We wonder, however, if they benefits of doing this will be rather less than McCarthy & Co. imagine. First of all, the base is already convinced that Fauci, Hunter Biden, DHS Secretary Alejandro Mayorkas, etc. are crooked. For the other 65% (or so) of Americans, the Republicans could reach "The Boy Who Cried Wolf" territory very quickly if they keep coming up with a daily litany of "shocking" revelations. Consider how effective the 1/6 Committee has been; in part, that is because they've been a model of restraint rather than trying to dominate every news cycle.

In addition, don't forget that Congress has no power to enforce... anything. They would need the Department of Justice to climb on board if any of these Democrats are to be punished. Hunter Biden's already under investigation; the DoJ doesn't actually need help on that one. As to the others, we just can't imagine AG Merrick Garland having any interest in going after Fauci, or any of the members of Joe Biden's Cabinet, or any of the Republicans' other favorite targets. (Z)

Ron Johnson Flips and Flops

Sen. Ron Johnson (R-WI) is, of course, up for reelection to a third term this year. We could have sworn he promised to serve only two terms, but maybe we misunderstood. Or maybe they use the New Math in Wisconsin, or something.

In any case, the Senator made headlines yesterday for two different examples of sleazy politician behavior. First, he is really, really trying to distance himself from his involvement in the effort to overturn the 2020 election. And appearing on a local news program, he offered up the latest spin on that front, asserting that his involvement with the plot only lasted "a couple seconds." Imagine telling a judge that your participation in a murder only lasted "a couple seconds" or that you only pointed a gun at the bank teller for "a couple seconds." Put another way "only a little guilty" is still "guilty."

Meanwhile, a couple of weeks ago, Johnson strongly implied he was a "yes" vote for a bill to protect LGBTQ+ marriage. Now, he has changed course, and told a reporter that his real concern is "religious liberty," while also decreeing that there's no need to protect LGBTQ+ marriage. because "The decision on gay marriage will never be overturned." Hm, interesting. Perhaps the Senator did not read Clarence Thomas' dissent, in which the Associate Justice suggested gay marriage would be next up, now that Roe has been struck down.

In any event, there's a point to all of this. A senator does not twist and turn, and flip and flop, like this unless they are feeling less-than-confident about their reelection chances. And whaddya know? Marquette, which is a good pollster overall, and which knows Wisconsin as well as any house, released a new poll this weekend that has Lt. Gov. Mandela Barnes (D) up 7 points on Johnson, 51% to 44%. That is unhappy news for Johnson for two reasons, in particular. The first is that, if the numbers are correct, Johnson can't just win over the undecideds, he has to win back some voters who are currently committed to Barnes. The second is that the last time Marquette polled, Barnes was at 46% while Johnson was at... 44%. In other words, the Senator is holding steady while the Lieutenant Governor's support appears to be growing. There was also a poll from Beacon/Fox this weekend; it has Barnes up 4 points, 50% to 46%.

So, it is not a big surprise that Johnson is suddenly trying to "clarify" certain things for voters. The problem is that he's very ham-fisted, and so his words just come off as calculated and inauthentic. Voters hate inauthentic, and that's particularly true of the Trumpy voters Johnson badly needs. (Z)

Ballsack Polls

What item could possibly justify that headline? Read on. To explain, we must first point out, for those who do not know, that there are a great number of 24/7 sports radio stations in the U.S., as well as a dozen or so 24/7 sports cable channels. Of course, most hours of the day don't have any live sports (at least, not domestically), and there's only so much mileage that can be gotten out of replays and highlights, especially once those replays and highlights are a day old.

To fill in the gap, most sports broadcasters have given their morning (and often afternoon) hours over to talking heads. And the primary job of the talking heads is to issue forth with "hot takes" and to argue with the other talking heads. In the Renaissance era, scholars debated endlessly how many angels could dance on a pinhead. But they had nothing on folks like Stephen A. Smith, Colin Cowherd and Skip Bayless, who can get a whole week's worth of content out of the question of whether or not the Lakers should trade their backup point guard.

Of course, these shows really and truly hit their stride when some sort of controversy emerges. And there's really no better controversy than when one current or former pro athlete says something snotty about another current or former pro athlete. Kareem Abdul Jabbar thinks LeBron James couldn't hold a candle to Magic Johnson? Ben Roethlisberger hints that Antonio Brown is a prima donna and a lousy teammate? Kyle Schwarber thinks Bryce Harper isn't really hurt, and is faking it? That's manna from heaven for the sports talkers.

As you might gather, this programming is entirely without substance. The hosts say the things most likely to get a rise out of listeners, not necessarily the things they believe. And today's debate is entirely forgotten as soon as the program ends. It is the programming equivalent of cotton candy—providing no real sustenance or lasting benefit, but impossible for some to resist.

It was in June of last year that a gentleman in Akron, OH, recognized that this was a situation ripe for shenanigans. And so, he created the Twitter account @BallsackSports. It features tweets like this one, with professional-looking graphics that highlight "breaking news" (often controversial quotes from athletes):

Former NBA player Josh Smith says LeBron wouldn’t be as dominant in his era pic.twitter.com/2Z3eeJblUL

— Ballsack Sports (@BallsackSports) February 1, 2022

For those who don't follow sports, this quote is, on its face, ridiculous. Josh Smith is still playing. LeBron James is still playing. In other words, they play in the same era. It is unlikely that a second-tier star would ever say something like this about a still-active top-tier star, but even if they did, the second-tier star would know enough to know that the top-tier star was still playing.

Point is, the quote doesn't pass the smell test. And that's before we recall that the "news" was reported by an outlet called Ballsack Sports. Ballsack's Twitter bio even notes, if it was not already clear, that the account is "Parody/Satire." And yet, the talking heads ate that quote up, along with many other Ballsack-reported stories. ESPN, in particular, has been fooled a sizable number of times.

We spent that much space describing the sports talk landscape because politics-followers might notice some of the same dynamics in political media. There's a need for content, of course. Further, there is a tendency to gravitate towards stories that are shocking, or that pander to viewers'/listeners'/readers' biases. The only surprising thing is how long it took for a phony pollster to step into that breach.

But, as of July, one has. We give you @CarletonPolling, which might as well be called Ballsack Polls. Its twitter bio is: "'The gold standard of American polling.' The greatest pollster delivering the best and most reliable data to a community desperately in need of brilliance," while also identifying the account as parody. And, clearly sensing where the easy marks are most numerous, Carleton has begun producing "polls" that show Republicans doing far better in their races than reported by other pollsters. For example, this:

NEW #PASEN POLL SHOWS INCREDIBLY TIGHT RACE@DrOz 45.9%@JohnFetterman 46.3%
Others: 4.5%
Undecided: 3.3%

Conducted 8/15-8/19, 2,800 Likely Voters

Carleton was the most accurate Senate internal in 2020. Consider giving us a follow to support our new public polling journey.

— Carleton Polling (@CarletonPolling) August 20, 2022

So, who took the bait? No, no, not Fox, which tends to be pretty careful about polls, even if they're laissez-faire about everything else. Actually, it was Breitbart. Not only did Senior Editor Joel B. Pollak neglect to read (or, at least, grasp) Carleton's Twitter bio, he also neglected to check and see if Carleton has any Internet footprint whatsoever (they don't), or to look at the crosstabs of the poll (which are just a Google Docs spreadsheet with a very small handful of numbers and no notes on methodology).

Eventually, when Pollak/Breitbart were flayed on social media for biting on an obviously phony poll, the site went back and rewrote its piece around the next-best poll it could find (which has Lt. Gov. John Fetterman, D-PA, up by five). Here is how Carleton responded:

BREITBART REMOVED OUR POLL FROM THEIR ARTICLE. THEY SOLD OUT TO THE LIBERAL MEDIA AND ARE NOW ENGAGED IN A CONSPIRACY TO TAKE US DOWN. THIS IS UNACCEPTABLE FROM RINO BREITBART.

— Carleton Polling (@CarletonPolling) August 22, 2022

Actually, that sounds a lot like Donald Trump. It brings to mind Poe's Law, which was initially expressed thusly: "Without a winking smiley or other blatant display of humor, it is utterly impossible to parody a Creationist in such a way that someone won't mistake for the genuine article." Others later went back and generalized the law to refer to any form of extremism, and not just to creationism.

We point this out because it's a useful reminder that there are a lot of problematic pollsters out there. There are the ones that are basically incompetent, of course, and the ones that have a partisan agenda they are trying to advance. And now, we also have to keep in mind that a pollster might be entirely fake. Carleton is making no secret of their intent, but the next parody (or hyperpartisan propagandist) pollster might not be so forthright. (Z)

The World's Courts, Part IV: The Great White North, and the Land of the Rising Sun, Redux

Last week, we had two reader reports on the Canadian judiciary. Those resulted in some useful comments, and we thought it made more sense to run the comments before moving on to some other part of the world. So, here are a couple of them:

• J.I. in Regina, SK, Canada: Thanks for printing my summary of the Supreme Court of Canada's jurisdiction. Of course, after I read it, I realised I had forgotten to mention one thing: Section 33 of the Canadian Charter of Rights and Freedoms. This is a provision of the Charter which allows Parliament or a provincial legislature to state that a law will operate for five years, "notwithstanding" certain provisions of the Charter. When used in a statute, it has the effect of insulating that statute from consideration by the courts with respect to certain clauses of the Charter. If used, that means that the specific Charter issue is temporarily removed from the jurisdiction of the courts, including the Supreme Court, as an affirmation of legislative supremacy. Section 33 was one of the key clauses in the 1982 Patriation settlement which enacted the Charter. Some of the provincial governments were concerned that giving the courts the final say on all issues was contrary to the democratic principle, so S. 33 was the result, as a type of legislative check on the courts. When used, a "notwithstanding" statute lasts for five years.
  
  I would also like to comment on the summary by G.T.M. in Vancouver. I'm afraid I disagree with G.T.M.'s comments about the way the same-sex marriage issue was decided by the courts. The common law, inherited from England, and the civil law in Quebec, did in fact provide that marriage was only between a man and a woman. Same-sex couples could not marry. There were court challenges in several provinces, including Ontario, Quebec, and British Columbia. The Courts of Appeal in all three provinces held that the existing legal definition infringed the equality clause of the Charter and was of no force or effect, clearing the way for same-sex marriages. The federal government, which has jurisdiction over the definition of marriage, chose not to appeal those decisions. Instead, it posed a reference to the Supreme Court, asking how to implement the new same-sex marriage requirement without infringing on anyone's rights, and to clarify the scope of the federal marriage jurisdiction. The Court gave an advisory opinion on three of the questions posed by the federal government, but declined to comment on whether the Charter required same-sex marriage, as the federal government had already decided it was going to pass legislation to implement the lower court decisions, and the constitutional question was therefore moot.
  
  
• D.J.M. in Salmon Arm, BC, Canada: J.I. in Regina and G.T.M. in Vancouver make two excellent comments on the Supreme Court of Canada. They are: (1) The SCC is not seen as overtly political, and (2) that Canadians want fair and honest courts—even if they disagree with their decisions. To illustrate these points I would add that the average Canadian voter could not name a single member of the SCC (and I mean zero) while the well-informed might get one. Ironically, we can all name every member of the SCOTUS.

In addition, here's a follow-up comment on the Japanese court system:

• J.C. in Auburn, AL: I'm actually surprised (and delighted) to see someone commenting as bluntly as S.R. in Stockton, CA did with regards to the Japanese court system. This shows that even when you have implemented a judicial branch that is, in theory, a co-branch of the government, it doesn't really mean much when everyone in that branch just rubber stamps whatever the ruling party wants.
  
  One example of this absurdity is how pornography is "regulated." Legally, all adult content, digital or print, are banned by the Penal Code of Japan (specifically, the distribution of "obscene materials"), but as anyone knows, it's impossible actually do that. So, essentially, the industry "self-regulates" while the government "tolerates" by not actively targeting them. All the while, the government reserves the right to interpret what constitutes as "crossing the line," as well as changing the "standard" whenever and however they want.
  
  So what happens is that the government conducts raids and arrests/fines artists/publishers every decade or two to keep them in line, using that as a way to convey any new standard.
  
  And the courts then affirm how "adult content on the market is fundamentally forbidden by law, even if it isn't actively targeted," and how "the production and publication of adult content isn't covered by the freedom of expression enshrined in the Japanese Constitution." The courts than deny any appeal.
  
  This might be unimaginable in the U.S., but it's what happens in Japan.

Next week, we really will return to Europe. (Z)

Morrison Under Investigation in Australia

Quite a few Republicans have thrown the term "Banana Republic" around in the past few weeks, suggesting that is the only sort of nation that holds former leaders accountable for bad/illegal behavior. Well, Australia is certainly not a banana republic, and yet that nation is in the process of holding former PM Scott Morrison accountable for behavior that appears to be unethical at best, and illegal at worst.

The basic issue is this: At the height of the pandemic, Morrison took advantage of the general confusion, and the fact that people's attention was elsewhere, to secretly appoint himself to several posts in the Australian government. He was, at least in part, running the ministries of home affairs, treasury and finance without the public, or most of Parliament, knowing he was doing do.

Yesterday, current PM Anthony Albanese announced that there would be an independent inquiry—essentially, the appointment of a special counsel—to look into the matter. Morrison probably won't be charged with a crime, as Solicitor General Stephen Donaghue has already issued an opinion that his actions were unethical, but probably not against the law. However, the current government wants to get to the bottom of the matter, and is not concerned that it may offend some voters, or that it may encourage Morrison's Liberal Party to respond in kind whenever it is back in power. From where we sit, that seems the best way to approach something like this. (Z)

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