Senate page     Aug. 16


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New polls:  
Dem pickups: (None)
GOP pickups: (None)

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Giuliani, Graham Get Bad News

Things aren't exactly peachy right now for former New York City mayor/current Donald Trump "lawyer" Rudy Giuliani and Sen. Lindsey Graham (R-SC). Both of them got some unhappy news out of Georgia yesterday.

Starting with America's former mayor, Giuliani got confirmation of something that he, and everyone else, surely suspected: He is a target of Fulton County DA Fani Willis' investigation into 2020 election interference. In fact, The New York Times story that broke the news refers to him as a "central figure" in the scheme. Giuliani, of course, was working hard behind the scenes to overthrow the 2020 election results, and he also made three appearances before the Georgia state legislature to peddle his conspiracy theories.

Giuliani spent much time on his podcast Monday railing against the news, which means that both of his listeners now know that he considers all of this to be a "political stunt." Well, that's what he's claiming, at least—in reality, he's gotta be scared witless that he's in some very hot water. He is going to be chatting with Willis' grand jury this week, once his Lyft, or his tractor, or his party bike, or whatever form of land transportation he's chosen arrives in Atlanta. Presumably, he will be invoking the Fifth Amendment and/or executive privilege a lot, even if the latter is of dubious applicability here.

Meanwhile, Graham also has trouble on his hands. On Monday, U.S. District Court Judge Leigh Martin rejected his argument that he shouldn't have to speak to Willis' grand jury because he's a senator. "[T]he Court finds that the District Attorney has shown extraordinary circumstances and a special need for Senator Graham's testimony on issues relating to alleged attempts to influence or disrupt the lawful administration of Georgia's 2022 elections," wrote Martin in her 22-page ruling.

Graham has already said he's going to appeal, to nobody's surprise. If he actually has to show up and testify, he's left with three options: (1) admit to most or all of the elements of a criminal act, namely trying to exert influence over Georgia election officials, (2) plead the Fifth a bunch, which voters will interpret as a sign of guilt, or (3) perjure himself. Options one and two have the added problem that they will aggravate Trump. And the Senator doesn't like it when the boss is angry.

It was also revealed on Monday, thanks to reporting from The Washington Post, that lawyers working for Trump had more success than previously known in terms of breaching election systems in various swing states. Somehow, some way they managed to lay hands on actual voting-machine data from at least three different states, among them Georgia. There are so many moving parts to this thing, it's no wonder Willis' investigation is taking so long.

Of course, the person that Giuliani, Graham, and the data-pilfering lawyers all have in common is Trump himself. And, as you may have heard, the former president also made a couple of phone calls in an effort to try to influence the election results. Normally, a person is not formally advised that they are the target of an investigation until they are about to testify, so that they can make informed decisions about their Fifth Amendment rights. Since Trump has not testified, and is not apparently close to doing so, he has not been so advised. But if he's not in as much trouble as Giuliani and Graham combined, we'd be very much surprised. (Z)

TrumpWorld Is Working Out Its FBI "Raid" Talking Points

As long as we're on the subject of Donald Trump and his numerous legal woes, it would seem that he and his enablers are settling on their lines of attack when it comes to the FBI's search of Mar-a-Lago. Here they are, with some comment:

• It's Not Transparent Enough!: This one is an all-purpose talking point. No matter how much information the Justice Department shares about the search, Trump and his acolytes can always claim it's not enough, which in turn implies improper behavior on the part of the Department. The Trumpers will be aided in this quest by the fact that the DoJ said Monday that it would not release the affidavit that led to the (now-unsealed) search warrant. AG Merrick Garland &. Co say that publicizing the affidavit would interfere with the investigation and would reveal the identities of key sources.
  
  
• It's a Political Hit Job!: In current-day Republican rhetoric, Joe Biden is simultaneously a doddering old fool who can barely put together a coherent thought and a brilliant and conniving chess master capable of manipulation that would make Machiavelli blush. When it comes to Mar-a-Lago, the notion is that the President put the DoJ up to the search. Biden and Garland both deny this, and their denials are plausible, since both have shown every indication that they take seriously the wall that is supposed to exist between the Oval Office and the DoJ. Nonetheless, it's impossible to prove a negative (e.g., "there was no order from Biden"), so there's no way to definitely undermine the claim that the whole thing was a hit job. And Republicans tend to find this particular claim credible since it's exactly how they have used the DoJ for the last two GOP presidential administrations (if not more).
  
  
• It's a Conspiracy!: On a related point, many in TrumpWorld, including Trump himself, have suggested that whatever evidence was found at Mar-a-Lago was planted by the FBI. This is, of course, preposterous. First of all, the search was recorded, and it would be obvious if the Bureau was carrying boxes of documents into the residence. Second, why would they include a bunch of detritus, like notes about the President of France? Third, how would they get their hands on this material? The FBI can't just go to NARA or the Atomic Energy Commission and say "Hey, can we borrow some highly classified documents for a few days so we can set up a former president?" Fourth, Trump's own lawyer signed documents attesting that the inventory of materials the FBI found at Mar-a-Lago really was found at Mar-a-Lago.
  
  
• It's All Kosher!: There is also the claim that Trump waved his magic declassification wand before leaving the White House, and that makes everything OK. The careful reader will note, first of all, that this argument is entirely contrary to the claim that the documents were planted. It cannot simultaneously be true that Trump had no documents and that he had documents but there was nothing wrong with having them. Also, as we pointed out this weekend, whether or not the documents were classified is actually irrelevant to the crimes being investigated. Either way, having them is a violation of multiple federal laws. That means that the many, many articles like this one from Politico, which is headlined "Why Donald Trump's declassification claim might not be that outlandish" are unwittingly toting some water for the former president. The question of whether a haphazard, amateurish declassification process counts as actual declassification is, in the end, a straw man and a distraction.
  
  
• Blame Obama!: There is literally nothing bad Trump can do that he can't point to Barack Obama and claim an even worse version of the same behavior. And so, #45 and his acolytes have declared that #44 took far more classified material with him when he left office, stashing it at his presidential library in Chicago. How much classified material? Depends on who is making the claim, but sometimes it's tens of thousands of pages, sometimes it's hundreds of thousands, and sometimes it's millions. This is either ignorance, or a willful misrepresentation of how presidential libraries work. The documents may be at the library named for the particular president, but they are still under the full control of NARA. And in Obama's case, the documents aren't even going to be physically present at the library (excepting those being used for museum displays). They're going to be digitized.

So, those are the talking points. However, the most instructive thing coming from Trump right now is not his bloviating about how he's simultaneously innocent and a martyr. Yes, that is somewhat instructive, because this is how he responds when he knows he's in trouble. But even more instructive is what he's not saying or doing. The ever-litigious former president absolutely has the right to go to court and push back against the DoJ and/or to demand the return of the materials taken from Mar-a-Lago. And yet, there's been none of that. Sounds like someone who has absolutely no basis for a legal case, and who is limited to whining, complaining, and conspiracy theorizing.

Oh, and since we've already run a couple of items about expert lawyers' takes on this whole situation, how about one more? John Dean, of course, served as counsel to Richard Nixon during the Watergate investigation. So, he knows a bit about crooked behavior. And, appearing on CNN, Dean said that the people who are defending Trump right now are going to end up with "egg all over their face." Dean takes the view that the DoJ in general, and Merrick Garland in particular, would never have undertaken this search if there wasn't something very serious underlying the whole thing. We've already made that point several times, but it's good to have confirmation from an expert. (Z)

NRSC Pulls $13.5 Million from Swing State Races

The National Republican Senatorial Committee, currently under the leadership of Sen. Rick Scott (R-FL), is responsible for raising money and then investing it as wisely as is possible with a view to winning as many Senate seats as is possible. And the Committee's spending choices in the last month or so have been... very interesting.

First of all, there are the two states where the NRSC made unexpectedly large ad buys: Washington and Colorado. Those are very blue states, of course, with incumbent Democratic senators running for reelection. So, one would not think that spending precious cash in those places would make much sense. We assume Scott & Co. have internal polls or other evidence that tells them that the GOP has an opportunity in these states. But we must also point out that in Colorado, every publicly released poll has given Sen. Michael Bennet (D) a lead of 6 points or more. And in Washington, every publicly released poll has given Sen. Patty Murray (D) a lead of 5 points or more (and the latest gave her a lead of 20 points).

Meanwhile, there are also at least four states where the NRSC has canceled previously announced spending since Aug. 1. Those are Pennsylvania ($7.5 million in cuts), Arizona ($3.5 million), Wisconsin ($2.5 million) and Nevada ($1.5 million). Needless to say, if the Republicans are to retake the Senate, at least a couple of the states on that list are basically must-haves for the Party.

Under these circumstances, the committee pooh-bahs always offer up a bunch of spin meant to persuade all of us that cutting spending is a good and wise thing that will ultimately put the Party in a stronger position. So it is here; there was much talk yesterday about "more effective targeting" and "closer cooperation with the campaigns." But the truth of the matter is that the NRSC is having a pretty terrible cycle, money-wise, with its Democratic equivalent (the DSCC) having raised roughly twice as much in donations. You can't spend money you don't have.

Further, there's no sense in throwing good money after bad. As crazy as it seems to be to spend in Washington and Colorado, those might actually be better investments than Pennsylvania and Arizona. In the latter two states, polls are giving the Democrat (Lt. Gov. John Fetterman and Sen. Mark Kelly, respectively) an average lead of about 10 points. With less than 3 months to the election, that's dangerously close to "lost cause" territory. And if two states that the NRSC was really hoping to win are off the table, then all it can really do is move on to the two next-most-promising targets and see if it can move the needle there. (Z)

Red Wave Dissipating?

Also on the subject of Republicans' electoral hopes, we have this column from The Washington Post's Dana Milbank, headlined "That red wave is looking more like a ripple. Here's why." As that suggests, there are some significant signs of headwinds for the Republicans that will affect not only the Senate races but also those for the House.

What's the evidence? Well, first of all, Democrats are gaining ground on the generic ballot, now leading the Republicans by 0.5 points. That particular question has only been polled consistently for about 30 years, and in that time, the incumbent president's party has been gaining at this point in the cycle just once (in 2018). On top of that, Democratic enthusiasm is increasing right now, while Republican enthusiasm is level. The two parties' voters are almost equally enthusiastic at the moment, but if the current trend holds, Democrats will be considerably more enthusiastic than Republicans by the time the election rolls around.

Of course, in politics a week is a lifetime, and at the moment there are exactly 12 lifetimes until Election Day. Still, we can only talk about the numbers we have at the moment, and those numbers are good news for the Democrats. Milbank believes that the primary explanation for current trends is the resurgence of Donald Trump, which has effectively put him on the ballot in November. Milbank has the large number of crappy, extremist Republican candidates as the second-most important reason, and the Dobbs decision in third place. We might reverse that ranking but, in the end, it doesn't matter too much. If any or all of those things is relevant, well, they will continue to be factors through November. That is to say, Trump, the crummy candidates, and Dobbs aren't going anywhere before Election Day. (Z)

March... Sadness, Part XX: The Ten Also-Rans

We had to put this on the back burner for a couple of reasons, but it's finally time to bring it on home. Today, tomorrow, and Friday, we will reveal the final results for the March Sadness bracket. Then, that will set the stage for a follow-up we've been planning and working on.

As readers will recall, we had a consolation bracket in which we asked for votes about who maybe shoulda made it deep into the competition, but didn't. Today, we reveal the 10 people who were pushed aside (either for a first time, or a second) in favor of more nefarious characters. Without further ado:

20. Judges and Governors #16 Judge Neomi Rao
21. Executive Branch #10 Former vice president Mike Pence
22. Judges and Governors #4 former governor Andrew Cuomo (D-NY)
23. Executive Branch "Last Four Out" Former first daughter Ivanka Trump
24. Others "Last Four Out" Trump adviser and lawyer Sidney Powell
25. Others #13 Anti-vaxxer Robert F. Kennedy Jr.
26. Judges and Governors #2 Chief Justice John Roberts
27. Chinese president Xi Jinping
28. Judges and Governors "Last Four Out" Associate Justice Amy Coney Barrett
29. Legislative Branch #14 Rep. Madison Cawthorn (R-NC)

The biggest surprise to us, perhaps, is how little traction RFK Jr. got. He's a really terrible person, you know. Most of the others were in competition with folks who are similar, but more venal. So, we can't say we're surprised about Roberts or Powell or Cawthorn putting up a bad (good?) performance.

Tomorrow, the next eight finishers. (Z)

The World's Courts, Part III: The Great White North

And the spring cleaning continues (even if it's already well into summer). We had to pause this series, as well, but now it's back. As a reminder, we already had two sets of reader reports on the world's court systems, with an eye toward the question of whether other nations allow judges to strike down laws, as in the United States. Here are those two entries, if you care to reread them:

• Part I: Germany and Austria
• Part II: Island Nations

Up today are a couple of reports on Canada:

• J.I. in Regina, SK, Canada: In answer to your invitation to comment on the power of the highest courts in other countries, I would say that within its judicial system, the Supreme Court of Canada (SCC) is one of the most powerful courts in the world, with one of the broadest jurisdictions.
  
  To start with, the SCC is a "general court of appeal" for all of Canada. Any decision of the provincial and territorial courts of appeal can be appealed to the SCC, which has jurisdiction to determine any question of law raised in the lower courts. Constitutional law, of course, but also any question of either federal or provincial statute law, human rights, administrative law, and private law matters such as contracts, torts, wills and estates, family law (whether under the common law or the Code civil du Québec).
  
  The constitutional law jurisdiction is particularly broad. There is the division of powers between the federal Parliament and the provincial legislatures. There is also the Canadian Charter of Rights and Freedoms, which applies to the federal government and the provincial governments. All laws potentially can be measured by the courts against the Charter, with the SCC having the final say.
  
  Finally, there is a special reference jurisdiction. The federal government can refer any question of law to the SCC for an advisory opinion; the provinces can refer any question of law to their courts of appeal, with an automatic right of appeal to the SCC. The reference power has been used extensively throughout our history for constitutional rulings.
  
  Overall, it's a very broad jurisdiction in the SCC. However, the SCC is not seen as an overtly political, partisan, institution, which is increasingly the case with SCOTUS...
  
  
• G.T.M. in Vancouver, BC, Canada: I choose to live in Canada (for one thing, my U.S. dollar income goes more than one-third further here than it would if I moved 5 miles south).
  
  It's tough to say whether the Canadian courts (at the appellate levels) are more (or less) "liberal" than the U.S. courts because it appears that the U.S. courts and the Canadian courts operate according to different ideologies.
  
  American courts (at the appellate levels) seem to make their decisions based on "This is what the law SHOULD BE," while Canadian courts (at the appellate levels) seem to make their decisions based on "This is what the law IS.".
  
  Two excellent examples of this are "gay marriage" and "women's surnames after marriage termination".
  
  In the first case, when the matter reached the Supreme Court of Canada, the Court found that there was no need to "legalize gay marriage" as it had never actually been illegal and, since "That which is not prohibited is permitted." that meant that it was already "legal" (and always had been).
  
  In the second case, the matter never even got into court. What happened was that the Registrars of Vital Statistics were flooded with applications for name changes from "married name" back to "maiden name" and this was causing a whole lot of extra work. Some creative bureaucrat took a look at what the law actually was and discovered that those women had never filed the necessary legal applications to have their names "legally changed" from "maiden name" to "married name" so that meant that there was no necessity to change what their "actual legal name" from the "name that they were using" to their "actual legal name". In short, someone decided that "custom" and "law" did NOT mean the same thing - REGARDLESS of whether or not they "should."
  
  The other difference, it appears to me, is that the Canadians (people and government alike—regardless of political alignment) do NOT want to have their courts making political ideology driven decisions but would prefer to live with even the decisions that they don't—individually—like rather than seeing the law yo-yoing all over the place depending on the whims of whichever political party currently controls the government.
  
  I guess that the best distinction that can be made is between "I want fair, honest, and reliable courts—even if I disagree with their decisions." and "I want courts that agree with me—even if they aren't fair, honest, or reliable."

Thanks to both of you for your thoughts! Next Tuesday, we'll return to Europe again. We also continue to welcome submissions on this subject. (Z)

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