Rudy Giuliani Is in Trouble...

American history is full of people who cultivated a "law and order" image, and yet concluded that they themselves were above the law. Rudy Giuliani, who first rose to power by busting mobsters and then promising to clean up New York City, is clearly in that group. And yesterday, The Washington Post published a report that makes clear how very deep the hole has gotten, documenting his central role in a scheme to manipulate the 2020 electoral vote tally through the use of false electors.

Bits and pieces of this story have been floating around for about a week, and we were holding back a bit, so as to work them into the discussion of a possible "slow-moving coup" in 2024, a discussion that will resume next week. However, the news is now too big to wait. The Giuliani scheme was really quite simple, and really quite stupid. In short, he arranged for slates of "Trump electors" to be submitted from seven close states: Pennsylvania, Georgia, Michigan, Arizona, Wisconsin, Nevada and New Mexico.

When the scheme was first put into motion, Giuliani—who was in regular contact with the Trump campaign—was probably on the right side of the law. Recall that when voting for president, people are actually voting for electors who are pledged to that particular candidate. If the candidate wins, that candidate's electors cast their votes for that candidate (unless they decide to be faithless). If the candidate loses, that candidate's electors don't do anything. Usually.

In this case, the Trump electors met, as if the 45th president had been reelected, to cast their electoral votes. That's probably ok, since it's really just a protest statement. If a group of, say, Green Party members want to get together and loudly cast their "electoral votes" for the Green Party candidate, they can do it. However, more than a dozen Trump electors were leery that they were being used for purposes beyond protest, and so bailed on the scheme. This is where we start to get into lawbreaking, since the defectors were replaced by fiat, meaning that the new "electors" were representing themselves as something they were not.

After these "electoral votes" were cast, then Giuliani (and several associates) went from "probably breaking the law" to "full-blown felony." They cooked up fraudulent electoral certificates, got signatures from the highest-profile person willing to play along, and sent those to the archivist of the United States. To quote Michigan AG Dana Nessel (D), that is "an open-and-shut case of forgery of a public record." The fraudulent certificates were rejected, of course.

The conspirators did have a legal justification for their actions. However, it is a justification whose quality is consistent with Giuliani's current level of intellect and legal skill. Their claim is that the Trumpers were following a precedent set in 1960, when the state of Hawaii submitted two sets of electors after a close election. There are two enormous problems with this justification, however. The first is that the two situations are not especially similar. In that year, Hawaii initially went for Richard Nixon by about 200 votes. That was close enough to trigger a recount, but—given that it was an all-paper election—the recount took time. So, both sets of electors met and cast their votes. The governor signed the Nixon certificate and kept the John F. Kennedy certificate in his desk drawer. When the recount declared Kennedy the winner, the governor sent in the Kennedy certificate along with a letter of explanation and a request to withdraw the previous certificate.

In this case, of course, there was no reason to believe that the election results might change in any of these seven states. None of them were close enough to be affected by a recount, and the claims of fraud were unsupported by evidence. More importantly, in Hawaii, both election certificates came from the official who was duly authorized to sign that paperwork. And there was never a time when both were presented as the "true" result. The Nixon certificate was the "true" result while the voting tally supported that, and then the Kennedy certificate was the "true" result once the recount was done. The Giuliani-created certificates, by contrast, were not signed by the correct officials, and were not held until more information was known. They were sent in at the same time as the legitimate certificates.

And that brings us to the second problem with Team Giuliani's justification. On two of the seven certificates, the ones for Pennsylvania and New Mexico, it specifies that they are only to be considered if the Trump campaign's legal challenges are successful. The other five do not contain that caveat. It is hard to convey how monumentally stupid this choice was. If the statement had been in all seven certificates, then it would have decreased the odds they would be taken seriously, but it would also have covered Giuliani's rear end fairly well. And if the statement had been in none of the certificates, then Giuliani & Co. could at least have claimed they didn't think that clarification was necessary. But to have some with the statement and some without? It's the worst of both worlds. You have five certificates—enough to swing the election, not coincidentally—that are falsely presented as entirely valid and legitimate. And you have two certificates proving that the Trumpers knew they were misrepresenting the facts.

Anyhow, what we have is a near-slam-dunk case of fraud (the phony electors) and forgery (the fake certificates), and that's before we get into things like conspiracy, racketeering, or sedition. Oh, and there are at least 100 people who have some legal exposure here: the 82 "electors," Giuliani and his fellow ringleaders, the folks who signed the fake certificates, and any members of the Trump campaign who were part of the scam. There is no way 100 people maintain a conspiracy of silence; these are some heavy crimes, and the time has come for the small fish to save themselves. Indeed, at least a few of them have already had a chat with the authorities.

Finally, note that all of the information in The Washington Post article was based on information that is publicly available. The 1/6 Committee must know more, over and above the Post's reporting. Keeping in mind that Giuliani, in particular, is also exposed in terms of the 1/6 plotting at the Willard Hotel, not to mention the various mega-lawsuits from Dominion Voting Systems and Smartmatic, as well as other sundry matters, "America's Mayor" is going to be spending a lot of time in courtrooms in the next couple of years. And very possibly a lot of time in rooms with iron bars. In other words, he's going to learn about "law and order" from the other side. (Z)

...Of Course, So Is Donald Trump...

He's been out of office for a year, and yet we still don't have Trump-free days very often around here. And we never have Trump-free weeks. One big reason for that is that there is adverse legal news involving him nearly every week, and sometimes every day. And when it's not him, often it's people in his close orbit. Sometimes, it's all of the above. So it was yesterday.

We already covered Rudy Giuliani (see above). However, America's Former Mayor (and America's Future Convict) wasn't the only person in close Trump orbit to make the legal blotter yesterday. Ivanka Trump's name hasn't shown up nearly as often as her father's or her two brothers' names in stories about the family's legal problems, but she's been all over the place this week. And yesterday, she got additional bad news, as the 1/6 Committee sent her a letter advising that they'd like to talk to her.

The general impression given by the letter is that Ivanka was the voice of reason leading up to, and during, the insurrection. The Committee would like to know what she saw, what she said, and what her concerns were. They would also like to know about her efforts to convince her father to speak up on 1/6 and to tell the rioters to go home. It would seem that she was able to break through when others, such as Kayleigh McEnany and Sean Hannity, were not.

It's just a letter for now, and not a formal subpoena. Presumably the latter will be coming if the former president's daughter does not cooperate voluntarily. However, of all the Trumps, she's the one most likely to play ball. As we've pointed out a couple of times recently, the relationship between Donald Sr. and Ivanka has apparently grown a little chilly. Further, she has young kids at home and a husband who is trying to start a new venture capital firm. Unlike, say, Donald Jr., she might not be willing to pay the potential price of keeping Dad safe.

That is not the end of the bad news for Donald Sr., either. Yesterday, Fulton County District Attorney Fani Willis sent a letter to Christopher S. Brasher, chief judge of Fulton County's Superior Court, in which she says that her office has "received information indicating a reasonable probability that the State of Georgia's administration of elections in 2020, including the State's election of President of the United States, was subject to possible criminal disruptions." Consequently, Willis wants approval to empanel a grand jury to look into the matter.

Needless to say, empaneling a grand jury is just one step in a long process. However, it's a big step, and one that makes very clear this is still a serious, ongoing concern. Quite a few people are exposed here, including former White House chief of staff Mark Meadows, Sen. Lindsey Graham (R-SC), and everyone's favorite miscreant, Giuliani.

Trump Sr. may be the most exposed, however, because he was foolish enough to get himself recorded as he tried to pull off his scheme. He would probably be best off just clamming up, and saying no more about the matter until absolutely required (by, say, the grand jury). Alternatively, he should be repeating his (rather thin) defense, namely that he was just trying to make certain that all votes were counted, and he had no intention of encouraging any lawbreaking. Naturally, he chose neither of those, and instead released the sort of statement that makes defense lawyers' toes curl:

My phone call to the Secretary of State of Georgia was perfect, perhaps even more so than my call with the Ukrainian President, if that's possible. I knew there were large numbers of people on the line, including numerous lawyers for both sides. Although I assumed the call may have been inappropriately, and perhaps illegally, recorded, I was not informed of that. I didn't say anything wrong in the call, made while I was President on behalf of the United States of America, to look into the massive voter fraud which took place in Georgia.

A "perfect" call, hm? Perhaps so, from the vantage point of a district attorney who is collecting evidence.

In any event, the plot is thickening all over the place—Georgia, New York, D.C., etc. At this point, the former president's best hope may very well be to delay, delay, delay and then to die before his various cases can be resolved. Not an easy strategy to pull off, and not a particularly pleasant one to consider, if you're him. (Z)

...And Maybe Rep. Henry Cuellar, While We're at It

Not all potential crooks in the world of politics are Republicans, or are connected to Donald Trump. Rep. Henry Cuellar (D-TX) might just be in some trouble, too. The FBI searched his house on Wednesday night, and took away a carful of stuff, including a computer. His campaign office was also searched, with additional potential evidence taken by agents.

We should be clear, it's not yet known if Cuellar himself is under investigation, or if he's likely to be charged with a crime. Thus far, all that has been revealed is that this is connected to a probe involving several American businessmen and their activities in Azerbaijan. It is otherwise a mystery.

Voters are not held to the same standard as juries, though, and often the mere whiff of illegal activity is enough to hurt a politician badly. Cuellar's district, TX-28, is D+7 under the new Texas map, and so he could certainly be vulnerable if voters decide he's dirty. That's true in the general election, and it's true in the primary, where he'll face off against progressive Jessica Cisneros for a second time. Depending on how the legal case goes, this could be progressives' very best chance to replace a moderate with one of their own. Democratic leadership likely wouldn't be too sorry to see that happen; beyond whatever stink emanates from the FBI investigation, Cuellar rebels against the Party as much as any member of the House, and is particularly noted for his criticism of Build Back Better. (Z)

This Is Why We Can't Have Nice Things

There's a fairly well known story, which we've mentioned once or twice before, involving a particularly heated Ronald Reagan press conference. At the end of it, the Gipper thought his microphone was off, and muttered "sons of bitches!" The White House press corps waited until the next day's press conference to hear Reagan's explanation for himself, and he showed up with t-shirts for everyone that read "S.O.B.: Save Our Budget." That was interpreted as an apology, and the whole thing became a non-story.

We bring this up because there was much commentary on Joe Biden's lack of press conferences, and he responded by holding a marathon two-hour presser on Wednesday. He said many important things worthy of attention, as we wrote yesterday. However, the lead story just about everywhere focused on the President's misstatement about Ukraine. He was asked what would happen in the case of a Russian invasion, and said:

It's one thing if it's a minor incursion and we end up having to fight about what to do and not do, et cetera. If there is something that is where there's Russian forces crossing the border, killing Ukrainian fighters, et cetera, I think that changes everything. But it depends on what he does, to what extent we'll get total unity on the NATO front.

Media outlets across the spectrum jumped all over that, declaring that Biden had given Vladimir Putin permission to invade, as long as he doesn't push it too much.

This is, in our view, a non-story. The press wanted to know if there would be an international response if Putin invades Ukraine, and Biden made clear there would be. Prudently, he added the caveat that the extent of that response (and, in particular, the extent of the international cooperation) would depend on how aggressively Putin moved. The words may have been imprecise, but the meaning was perfectly clear to us. And we are confident it was perfectly clear to the press corps, as well. In other words, it's our view that all these "gotcha" stories were written in bad faith. Still, Biden had to spend the day on Thursday reiterating that of course he's not going to look the other way if Putin conducts a "minor incursion" of Ukraine.

The same basic thing happened to Senate Minority Leader Mitch McConnell (R-KY) on Wednesday, incidentally. He was asked about voting laws, and their disproportionate impact on voters of color. And the Minority Leader responded: "[T]he concern is misplaced, because if you look at the statistics, Black American voters are voting in just as high a percentage as Americans." This prompted a gaggle of "gotcha" stories about how McConnell was revealing his inner racism, and his view that Black Americans are different from "Americans."

There is much to criticize McConnell for, not the least of which is that his statement is both inaccurate and misleading. In fact, the turnout among all Americans in 2020 was 66% while the turnout among Black Americans was 63%. So, it is simply not true that turnout is the same. Further, the formulation here is designed to obfuscate. More relevant than overall turnout is the fact that white voter turnout was 71%, which means Black folks lagged white folks by 8%. That's a very meaningful number, particularly in certain purple states with large Black populations (e.g., Georgia). And it's certainly possible the gap was caused, in part, by restrictive voting laws.

Anyhow, if you want to criticize McConnell for being slimy and peddling half-truths here, then have at it. But the thing he was trying to say—something like "The turnout among Black voters was not different from the turnout among all Americans"—is a bit tough to express properly, and he was speaking extemporaneously. His misstatement simply does not read, to us, as thinly veiled racism. His willingness to carry the water for voter ID laws? Ok, that might speak to thinly veiled racism. But it was his misstatement that the coverage beat into the ground, not the problems with voter ID laws.

Returning to the Reagan example, the press corps of that day had a certain tolerance for misstatements, and usually allowed the person to clean things up before trying to make their words into a national scandal. Heck, (Z) has seen high-powered people at press conferences who spoke poorly and told the reporters to "clean that up for me, please." Maybe that's seen as too chummy these days. Or maybe there are too many eyeballs and too many clicks to be had in reporting on the latest "Can you believe [X] said [Y]?" story. Whatever it is, there's considerably less leeway for verbal miscues these days.

The thing is, if a person is going to speak off the cuff for 2 minutes, or for 2 hours, not every statement is going to be perfectly formed. If perfection, or near-perfection, is the standard, then a politician can limit themselves to speeches, prepared remarks, press releases, and other forms of expression that are put together in advance and carefully edited and vetted. And if that is what is required to avoid "Can you believe [X] said [Y]?" stories because the press has to turn every molehill of a gaffe into a mountain, then they really ought not complain about the lack of press conferences. (Z)

Biden's Trajectory, Part I

Joe Biden now has 1 year as president under his belt, and it's been a rocky one. Though he was reasonably popular at the outset, recent months have seen a seemingly endless series of bad polls for him. His approval rating has been in the 40s since before the holidays. That might actually change in the next few weeks. The bad news for him, however, is that is true only because he might break into the 30s.

A new Gallup poll puts the President's approval at 40% and his disapproval at 56%. This is not a good place for a president to be in an election year. It's not a good place to be in any year, in fact. Biden's problems are with all voters. At the start of his presidency, 98% of Democrats approved of him. Now it is 82%. Among independents, approval has dropped from 60% to 33%. Among Republicans it has dropped from 11% to 5%.

If we compare Biden to recent presidents by averaging their poll numbers over their entire first year, we get these figures:

President	Approval
John F. Kennedy	76.4%
Dwight D. Eisenhower	68.8%
George W. Bush	67.9%
George H.W. Bush	65.9%
Jimmy Carter	61.9%
Richard Nixon	61.4%
Barack Obama	57.2%
Ronald Reagan	57.1%
Bill Clinton	49.3%
Joe Biden	48.9%
Donald Trump	38.4%

On the positive side for Biden, he isn't yet in Trump territory.

It is pretty clear what is going on here. People are unhappy with Biden for a variety of reasons:

• The pandemic is still raging out of control
• The pullout from Afghanistan was a mess
• Inflation is soaring
• Biden's promised Build Back Better bill is stalled in Congress
• The bill to protect voting rights is also stuck

All these together are weighing Biden down, even though most of the problems are not of his own making.

So, can he bounce back? Will he bounce back? There is much to be said on that subject, and we don't want to overload readers on information. So, we will take a careful look at those questions on Tuesday of next week. (V)

This Week in Schadenfreude

We're going to do something a little unusual this week. We got a suggestion for this feature that was laid out so well, we don't really see how we can improve upon it, especially since this is a little bit outside of our area of expertise. So, without further ado, we give you this from L.B. in Cardiff, Wales, UK:

Do you take nominations for "This Week In Schadenfreude"? If so I'm sure more than a few of your British readers would put PM Boris Johnson forward.

This is a man who has been plotting his whole life to become Prime Minister and promoted a damaging referendum (i.e., Brexit) in a bid to do so. After failing to be elected Tory leader in 2016 (due to being backstabbed by Michael Gove, another self-serving figure), he spent the next three years persistently undermining PM Theresa May, leading to her resignation. Since coming into office, he's seemed more interested in the title than the job, although he has spent time promoting the ideas you previewed on January 13. And all the while, he's hidden behind a facade of amicable buffoonery.

I'm sure you're aware of the never-ending stream of parties it's being revealed that Boris or his circle took part in during England's lockdowns—the most damaging being the party that took place in Downing Street's garden in May 2020 and the party that took place the night before Prince Philip's funeral. The PM has been forced to apologize to the Queen over the latter, and his excuses over May 2020 have morphed from "I didn't attend" to "I did attend, but didn't realise it was a party" to the blinder "No one told me it was breaking the rules."

Imagine that! No one told the man who approved the lockdown rules, and went on national television to lay out the rules to the British public, that a party in his garden might break them. Well, all right, then! Now his reason for continuing in office that he's not corrupt, just clueless to the highest degree.

This is a fast-moving story, but as of Wednesday, he has had at least 7 members of his caucus urging him to resign, with rumors of a motion of no confidence coming down the pipeline. A member of his caucus has very publicly crossed the floor to Labour and another prominent member of his party (David Davis, Brexit Secretary under Theresa May) called on him to resign at Prime Minister's Questions. The Tories are now 13 points behind Labour in the polls and his approval rating is, according to YouGov, 51 points underwater. He may even spend less time in power than May did.

For such a deceitful and self-serving individual, seeing his teflon stripped away so dramatically really is cause for some schadenfreude.

Thanks for the submission, L.B., and well put! (Z)

Looking Forward: The Readers Predict 2022, Part V: The Supreme Court (and Other Legal Matters)

Onward and upward. Here are the entries we've already run:

• Looking Backward: How Did The Pundits Do?
• Looking Forward: The Pundits Predict 2022
• Looking Forward: The Pundits Predict 2022, Part II
• Looking Backward: How Did We Do?
• Looking Forward: We Predict 2022
• Looking Backward: How Did The Readers Do?, Part I: Donald Trump
• Looking Forward: The Readers Predict 2022, Part I: Donald Trump
• Looking Backward: How Did The Readers Do?, Part II: Donald Trump's Family and Supporters
• Looking Forward: The Readers Predict 2022, Part II: Donald Trump's Family and Supporters
• Looking Backward: How Did The Readers Do?, Part III: Right-wing Politicians and Media
• Looking Forward: The Readers Predict 2022, Part III: Right-wing Politicians and Media
• Looking Backward: How Did The Readers Do?, Part IV: The Biden Administration
• Looking Forward: The Readers Predict 2022, Part IV: The Biden Administration
• Looking Backward: How Did The Readers Do?, Part V: The Supreme Court

As you can see from the headline, we are going to include predictions about other parts of the justice system beyond just the Supreme Court. There are only so many things that one can predict for the Supreme Court.

• B.E. in Sierra Vista, AZ Despite his current non-committal position Justice Stephen Breyer will retire in time for his replacement to be nominated and confirmed before the 2022 midterm elections; and probably before the Court starts its 2022 session in October.
  
  Comments: This was the single-most common prediction we got this year, so we have to conclude it's not extremely bold. That said, you get a bonus point for putting a timeline on it. Boldness: 2/5
  
  
• S.K. in Sunnyvale, CA: Election Day 2022 is November 8. By November 9, it will be clear that the Republican Party will be returning to the majority in the Senate. Stephen Breyer will have his "come to Jesus" moment and announce his retirement in mid-November, allowing Biden to squeak a younger, Black woman through Senate confirmation before Mitch McConnnell gets the leadership back.
  
  Comments: Ibid, except you get a little larger bonus because your timeline is narrower. B: 2.5/5
  
  
• J.F. in Fort Worth, TX: Stephen Breyer will refuse to retire at the end of the 2021-2022 session and will still be on the bench after the disastrous 2022 midterms, thus leaving Joe Biden no way to replace him.
  
  Comments: Here, the boldness is a bit higher, since it's not only a prediction about Breyer's behavior, but also about the outcome of the Senate elections. B: 3.5/5
  
  
• D.H. in Portland, OR: There will be a surprise opening on the Supreme Court besides the above mentioned Breyer.
  
  Comments: On one hand, this doesn't happen very often these days. On the other hand, there is a pandemic going on, and at least one justice doesn't wear a mask. It's not Captain Kirk bold, but it's up there. B: 3.5/5
  
  
• K.E. in San Bernardino, CA: Associate Justice Clarence Thomas will retire due to health issues and Associate Justice Stephen Breyer will also retire, giving President Biden the opportunity to fill two vacancies at the SCOTUS.
  
  Comments: We think this is very bold, indeed. Thomas does not have any known health issues at the moment and, unlike his predecessor in that seat (Thurgood Marshall), we think he'd stay on the bench while a Democrat is in the White House unless he literally cannot do so because he's dead. B: 4/5
  
  
• A.S. in Brooklyn, NY: After the midterms, rumblings will start anew about investigating Brett Kavanaugh for not only perjury, but accepting bribes (due to his debt magically disappearing right before his confirmation).
  
  Comments: This also seems like a longshot. SCOTUS justices are treated with kid gloves, and if there was going to be any investigation, it surely would have commenced already, right? B: 4/5
  
  
• W.R. in Tysons Corner, VA: In June, the Supreme Court will uphold Mississippi and Texas' abortion laws in a 5-4 vote, essentially overturning Roe vs. Wade and turning the matter over to state governments.
  
  Comments: It really comes down to the five non-Roberts conservatives, and whether they all regard abortion as more important than the Court's reputation. There's a pretty good chance the quintet will all prioritize abortion, since they've done so pretty consistently already. B: 2/5
  
  
• A.R. in Los Angeles, CA: SCOTUS won't overturn Roe; instead, they'll uphold the Mississippi law by changing the standard so that the states' interest outweighs a woman's, clearing the way for earlier abortion bans. There will be no nationwide protests.
  
  Comments: We think this is just a little bolder than the previous prediction, given that you got into the nuts and bolts of the ruling, and also added the bit about no protests. Actually, the no protests portion might be the boldest part. B: 3.5/5
  
  
• J.A. in Redwood City, CA: The Supreme Court will strike down Texas' "bounty on abortion" law, but uphold Mississippi's use of gestational age as a basis on which to restrict abortions, effectively ending Roe v. Wade. Over the summer, women in at least 20 states will lose the ability to obtain abortions in their states in a clinical setting. Those states will also attempt to intercept abortion-inducing medications delivered to patients via the US mail or private couriers. Many Democrats will be dismayed to learn that these new restrictions on abortion will not help them (enough) in the mid-term elections.
  
  Comments: The base prediction is pretty safe but, as with the previous prediction, the additional specifics increase the boldness factor a fair bit. B: 3.5/5
  
  
• K.E. in San Bernardino, CA: Facts will surface implicating one or more former president(s) in the Jeffery Epstein matter.
  
  Comments: Fairly likely, since either Ghislaine Maxwell or Prince Andrew could spill some dirt. B: 2/5
  
  
• B.H. in Westborough, MA: In an effort to reduce or eliminate her jail time, Ghislaine Maxwell will give up at least one high profile client, resulting in prosecution for those individual(s). Donald Trump will not be one of the clients.
  
  Comments: This looks very likely to us. B: 1/5
  
  
• D.O. in Denver, CO: Merrick Garland will indict Donald Trump for insurrection, get him convicted, and bar his return to elected office—though there will be some dispute about whether conviction will actually bar him from elected office, or only a federal appointment.
  
  Comments: That would be quite a lot to get done in one year. B: 4/5
  
  
• S.K. in Chappaqua, NY: Grand juries in New York (bank fraud and tax fraud), Washington D.C. (inaction that delays congressional process) and Georgia (attempted election fraud) will have indicted Donald Trump, but the prosecutions will be stalled throughout 2022. Neither the indictments nor the select committee's report will change any Republican's mind or behavior.
  
  Comments: Any one of these is fairly likely. Maybe even any two. But predicting all three is pretty bold, we'd say. B: 4.5/5
  
  
• K.H. in Ypsilanti MI: New York State Attorney General Letitia James will not pursue criminal charges against Donald Trump but instead will file a civil action targeting his ill-gotten gains, which are an easier target and the loss of which would arguably affect him more than any criminal conviction and suspended sentence is likely to.
  
  Comments: This is a very plausible outcome. B: 2/5

Next week, it will be predictions about Congress all week long. (Z)

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