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The Dept. of Justice Has Responded to Trump's Request for a Special Master

In response to the execution of the search warrant at Mar-a-Lago, Donald Trump requested a special master to check if any of the material was covered by executive privilege, a concept nowhere to be found in the Constitution or any laws relating to the handling of national security documents. Naturally the DoJ got a chance to respond in court to Trump's request. Late Tuesday, it did. Boy, did it. And what did we learn from its filing, now that everyone's had a full day to digest it? Quite a bit.

It is up to the judge to decide if a special master is needed, but Trump has a pretty weak case here. (V)

Will The Red Wave Become a Red Puddle?

On Monday, we had an item about how the previously announced red wave might not show up as scheduled. We aren't the only ones who have detected a sea change since the spring. The always-astute Ronald Brownstein also thinks the "tsunami" might be more of a "puddle." His take is somewhat different from ours, but there are multiple ways to look at the campaign.

To summarize, he says: "It was a referendum. Now it's a choice." Our focus was on the many actual developments since the spring, like Dobbs, Kansas, special elections, polls, etc. His focus is on Donald Trump's antics. In the spring, Republicans were planning to make the election about Joe Biden and his alleged failures. Donald Trump didn't play a role in that picture. Since then, the execution of the search warrant at Mar-a-Lago and Trump's reaction to it, and the Republicans' forced reaction to Trump, has pushed Trump into the spotlight. So now, for many voters, the question is not: "Biden: good or bad?" but "Biden vs. Trump." Some 155 million voters faced that question in Nov. 2020 and we know how that turned out. The result of this change is like one weather system replacing another. Last week it was clear and sunny; this week it is rainy and stormy and the sunny is forgotten.

Democratic strategist Jennifer Fernandez Ancona said: "We need voters to see the midterm as a crossroads, not a referendum." What this means is getting all the Democrats who showed up in 2018 because they hate Trump to show up again because he is in the news all the time now. Why he is in the news doesn't matter so much, although the fact it relates to a crime he is likely to have committed is not helpful for him or the Republican Party.

An NBC poll last week captures the mood of the electorate well. Republicans have the advantage on inflation, the economy, crime, and the border. Democrats have the advantage on abortion, climate change, guns, and health care. The voters are in parallel universes. There is no overlap. Democrats are never going to convince Republicans to vote Democratic and vice versa. What each side has to do is maximize its turnout. Normally Republican turnout in midterms is good and Democratic turnout is poor. Democrats need to boost it. Biden's move to cancel some student debt will motivate some marginal Democrats to vote whereas the Republicans who hate it were already motivated to vote.

In focus groups, some people have said: "Prices go up and down, but I can't prevent myself from being raped and not being able to have an abortion." Even Republican strategists believe the economy won't be the only issue.

The "choice election" model is clearer in Senate races than in House races because so many GOP Senate candidates are tied closely to Trump, making them a referendum on Trump more than on Biden. Also Senate races get a lot more attention than House races. House races tend to turn more on that little (D) or (R), with candidate quality less important. Nevertheless, a recent Pew poll showed congressional Democrats leading with voters who somewhat disapprove of Biden. In short, Brownstein thinks there is a good chance of a split decision, with the Democrats holding the Senate and barely losing the House. That hasn't happened in the past 80 years, but it is a real possibility this year. (V)

DeSantis Is a Test Case for Democracy

Thomas Edsall is another columnist who usually makes good sense. This week's column is how Donald Trump's legacy may be getting many Americans to tolerate, if not embrace, authoritarian leaders. After Gov. Ron DeSantis (R-FL) took office in 2019, the first thing he asked his general counsel was to make a list of all the things he could do as governor without the legislature or the courts or anyone else checking him. He wanted to know those areas where he had unbridled authority. Then he knew his starting point and worked from there.

For example, he banned public schools from using 54 math textbooks because they had "social-emotional learning content." He told a reporter: "Math is about getting the right answer. It's not about how you feel about the problem." As another example, during the pandemic, he threatened the Special Olympics with a $27.5 million fine is they insisted the athletes be vaccinated. After all, his base just lapped up the idea of forcing vulnerable people to take a potentially fatal risk to engage in sports they loved. The Special Olympics caved. Then DeSantis threatened to "Tax the Mouse" over Disney's position on his pet "Don't say gay" law. The list goes on and on. It's all about riling up the base. There is no evidence that DeSantis cares a whit about any of these things.

A poll by Democratic pollster Peter Hart in May in seven battleground states showed the depth of feeling DeSantis clearly understands and is exploiting. For example, a message saying schools must stop teaching kids that biological sex is a myth and there are many genders got strong support. So did one saying schools should stop teaching about race and focus on readin', writin', and 'rithmetic. Other culture wars subjects also got strong support. DeSantis (and Donald Trump) understand this.

Edsall asked N.Y.U. political science professor Arturas Rozenas, who studies backsliding democracies, what authoritarians do to get maximum bang for the buck (or zloty or forint). He says using the "salami technique" is popular. Make small changes that fly under the radar, like changing election laws, strengthening political control over the civil service, and weakening the judiciary. If done in small steps, they may not be noticed until it is too late. Stealth is the key here. Political elites might notice, but the average voter won't. Taxing the Mouse is a good example. It makes clear that even multibillion-dollar corporations had better knuckle under to the authoritarian or they will be hit hard in a way they hurts them badly but nobody else will notice. After all, if the Reedy Creek Improvement District were abolished, how many Floridians would care?

Prof. Rick Hasen, a top election-law specialist who recently was upgraded from UCI to UCLA, says the test of democracy could come as soon as 2024 if some Republican becomes president. What will matter is how the victory was achieved. If it was by genuinely winning more electoral votes than the Democrat, fine, but if it is due to some form of election subversion, the U.S. will then cease to be a democracy. The new president's agenda would surely be focused like a laser on solidifying and maintaining power, such as using the president's powers over the military and reformulating election rules so the regime would be self-perpetuating. This would lead to massive street protests that would be put down with violence. Media outlets that dared to report the situation honestly would be hit hard using the full power of government. How about an executive order saying the reporters must have a license from the newly created Dept. of Information? Would that be legal? We haven't had a chance to ask Clarence Thomas and Samuel Alito so we don't know. Sorry

Another professor of law specializing in elections and politics, Richard Pildes of NYU, envisions some of the things Trump or DeSantis might do. One would be to dramatically expand the courts and appoint hundreds of judges loyal to the president. Another is to implement "Schedule F," to allow the president to fire all high-level civil servants and replace them with toadies. Another is to use government power to pressure businesses and states to toe the line. During the pandemic, for example, Trump said that governors who were nice to him would get desperately needed life-saving equipment and supplies. Governors who weren't were on their own. Bidding rules on lucrative government contracts could be changed to give cabinet officials far more discretion. They could then let it be known that CEOs who publicly praised their actions would be more "likely" to get big contracts than CEOs who opposed the regime or who were silent. In China, everyone has a "social credit" score, like a FICO score. Except that it doesn't deal with finances. It deals with how often you have praised (or opposed) the regime on social media. The higher your score, the better the apartment and job you get. Surely Facebook and Twitter could implement that pretty easily.

Donald Moynihan, a professor of public policy at Georgetown University, said that democratic backsliding would affect different constituencies differently. Conservatives would believe that their rights were not threatened and life would be normal. Historically marginalized groups, including Black and LGBTQ+ people would suddenly fear new restrictions and voting laws could be changed to make it harder for them to vote. One could imagine state laws saying that each county must have exactly 5 polling places, no more and no less, which would mean massive lines in urban counties but have little effect in rural ones. It would not be hard to imagine the Supreme Court ruling that if that is what the people's chosen state legislators want, that is up to them. Moynihan also believes DeSantis better represents these threats than Trump because he has shown his interest and ability to do a long list of authoritarian things. Trump talked a lot, but did little. DeSantis both talked and acted. If he is reelected—especially if it is by a substantial margin over a strong candidate (Charlie Crist)—that will show that Americans don't object to authoritarians. They even like them. And if that works in a demographically mixed state with many minority voters like Florida, it will certainly go over in Nebraska or Idaho.

Edsall believes that the right-wing populism that DeSantis and Trump are exploiting has two causes. The first is essentially an outgrowth of Richard Nixon's Southern strategy, which was a not-so-subtle appeal to white racists in the South (and later, nationally) who were none too happy with the Civil Rights Movement and enfranchisement of millions of Black voters. The second is economic uncertainty for millions of working-class voters, in part due to outsourcing of jobs to China and in part due to the economic crisis of 2008. To this list, we would add immigration and the changing demographics of the country. (V)

Republicans Are Running Away from Their Own Positions on Abortion

In the past 2 days there have been several articles, including in The Washington Post and The Hill, on how the Republicans are running away from Donald Trump and the political positions they ran on in the primaries.

For example, Yesli Vega (R), who is running against Rep. Abigail Spanberger (D-VA) in a swing district, has suddenly removed all mentions of Donald Trump from her campaign website. Colorado state Rep. Barbara Kirkmeyer (R) suddenly forgot she is a staunch defender of the "sanctity of life" and that magically vanished from her website. Even Arizona Senate candidate Blake Masters (R) has removed not only all mentions of abortion from his website but also all the false claims that Trump won in 2020. Tiffany Smiley (R), who is running against Sen. Patty Murray (D-WA), suddenly is saying that although she is still pro-life, she is against a national ban on abortion. If PaddyPower were taking bets on this in the (unlikely) event she is elected, we'd go with "changes her mind on Nov. 9." Scott Jensen (R), who is running for governor of Minnesota, is now saying: "I'm just gonna say it real clearly. Without question, rape and incest are exceptions that, with no hesitation on my part, I would want a pregnant woman to feel that they absolutely have the choice." That's the opposite of what he was saying before the primary. When The Hill reached out to him for a comment, he wasn't home.

The list goes on and on. Many Republicans have scrubbed abortion and/or Trump from their websites and rallies. They hope the voters forget. The trouble is, when they were loudly proclaiming the opposite of what they are now proclaiming during the primaries, the Democrats had their cameras rolling. They will be in playback mode fairly soon. Also, in the first week after the Dobbs decision, Act Blue took in $80 million. And that was just one week.

Whit Ayres, a veteran Republican pollster, says Democrats are energized and have closed the "enthusiasm gap." He wouldn't say that unless the Democrats were now more enthusiastic about voting than Republicans. He says Republicans should not talk about Trump and abortion and just talk about inflation. Good luck with that when a debate moderator asks the Democrat about inflation and the candidate says: "Prices go up and down but if Republicans control Congress, abortion is gone forever."

So Republicans are going to be in the tough position of trying to run away from positions they loudly espoused only a month or two ago and for which there is plenty of evidence. Ads in which some candidate is shown saying he is against all abortions, followed by him saying that he has always been in favor of exceptions for rape and incest aren't hard to make. Then the Democrat goes on camera saying that he or she doesn't switch positions just because the primaries are over. The voters have short memories but the Democrats are gearing up to jog their memories, say, 10 times a day. (V)

Over Half of GOP Nominees for Governor Are Election Deniers

Donald Trump may be in legal trouble, but his power over Republican candidates is still enormous. In at least 21 of this year's 36 gubernatorial races, the Republican nominee is either a full-blown election denier, someone who actively tried to overturn Joe Biden's 2020 win, or someone who has raised doubts about the process. Most of these people probably don't believe what they are saying, but think it is necessary to lick the boots of Hair Furor in order to get elected. And again, these are not nutcases from some R+22 district in the backwoods of Georgia. They are people who have either won a statewide election for governor or at least a Republican primary for governor. Here is a quick rundown:

It is just incredible that over half the Republican nominees for governor of a state are scared to say out loud what nearly all of them believe: Trump lost. Is democracy lost? Depends on who wins the various elections. (V)

One of Trump's Lawyers Could Be in Trouble...

Although the search of Mar-a-Lago is dominating the news now, don't forget that New York AG Leititia James is still actively looking at Trump's business for wrongdoing. As part of this, she ordered Trump to produce certain documents for her. Trump then authorized one of his lawyers, Alina Habba, to search Mar-a-Lago for those documents, and also to search some of his other properties. In May, she told a New York state court that she made a thorough search as ordered, including "all desks, drawers, nightstands, dressers, closets, etc." She didn't bother to mention whether she searched all the boxes of classified material that the FBI recently carted away.

If she did, she certainly violated the law since she does not have a Top Secret security clearance. If she didn't, she committed perjury by telling the New York court that she searched everything. Oops. It will be tough to have it both ways. The Dept. of Justice is naturally going to interview her. It will take some creativity to get out of this one. Maybe she will tell the DoJ that she missed the whole rooms full of boxes of documents because she was focusing on the nightstands. Then she will tell the New York court that she searched all the boxes in compliance with their order, not caring about classification because she was intent on carrying out the court order precisely. Then she could pray that the DoJ and New York court not to talk to each other. When asked for a comment, Habba did not reply.

What is especially bad for her is that she specifically told the court that she searched Trump's desk. And the FBI found three classified documents there. Classified documents all have a cover sheet in color stating the classification status. They are tough to miss. Maybe Habba will use the "colorblindness defense."

Now all of a sudden, she has to worry about covering her own a**, not protecting Trump's. That's one fewer lawyers for Trump now. (V)

...No, Make that Two of Trump's Lawyers

John Eastman, he of the innovative theory that state legislatures can forget the voters and just appoint their own electors, sat before D.A. Fani Willis' grand jury yesterday. He discussed one of the most important parts of the Constitution with them—the Fifth Amendment. And he did it over and over.

Making up a cockamamie theory is not a crime in Georgia. Getting various party officials to sign false certificates claiming they are the valid Georgia presidential electors is. That's where the good old Fifth Amendment comes in. Eastman can clam up all he wants, but Willis is certainly going to talk to the fake electors and ask them who put them up to it. Eastman is going to have to cross his fingers and hope some of them say Westman, some say Northman, and the rest say Southman. That's the way it goes with investigations. It often doesn't really matter what the target will or will not say when there are plenty of other witnesses.

The $64,000 question is what happens if Willis has a rock solid case with 16 people swearing under oath that Eastman conspired with them to commit election fraud, so she indicts Eastman. Will he fall on his sword to protect Trump or will he squeal like a stuck pig? (V)

Mary Peltola Is Going to the House; Sarah Palin Is Going Home

Alaska has finished processing all the ranked-choice ballots from Alaska's Jan. 16 special election for the vacant seat held for decades by Don Young (R). And the winner is Rep.-elect Mary Peltola (D), who dispatched former governor Sarah Palin, 51.5% to 48.5%.

Peltola's victory is historic, because she is the first native Alaskan to be elected to Congress. She joins five other members who have Native American heritage: Tom Cole (R-OK), Sharice Davids (D-KS), Yvette Herrell (R-NM), Kai Kahele (D-HI) and Markwayne Mullin (R-OK). Peltola is also the first Democrat to represent Alaska in the House in half a century thanks to Young's long service. That gives Speaker Nancy Pelosi (D-CA) one more vote for her caucus, which offsets the -1 resulting from Charlie Crist's resignation yesterday.

Needless to say, ranked-choice voting in Alaska is new enough, and the result is close enough, that one cannot confidently will predict what will happen in November when Peltola, Palin and Mark Begich are all on the ballot again in search of a full term, joined this time by Libertarian Chris Bye. That said, Palin outspent Peltola 4-to-1 this time, and lost. Maybe the former governor can crank that up to 8-to-1 or 12-to-1, but maybe not. We suspect that the Sarah slayer is going to have a very good day on ActBlue today.

In addition, the results suggest that about a third of Alaska voters would prefer to be represented by a normal Republican (i.e., Begich), but if they can't have that, they would prefer a normal Democrat to a nutty Republican. That is not great news for Palin in advance of the next go-round, nor is it good news for Trump-endorsed U.S. Senate candidate Kelly Tshibaka (R). It seems pretty clear that the Sen. Lisa Murkowski (R) voters will rank Pat Chesbro (D) ahead of Tshibaka and the Chesbro voters will rank Murkowski ahead of Tshibaka. It's entirely possible that Trump's handpicked candidate will not only lose, but won't even survive to the final round of voting.

This result is also a bit scary for Republicans nationwide, since ranked-choice voting is slowly spreading, and makes it considerably harder (in most states) for fringy candidates to win. At least one prominent member of the GOP has already expressed his dislike for the system:

Ranked-choice voting is a scam to rig elections.

— Tom Cotton (@TomCottonAR) September 1, 2022

60% of Alaska voters voted for a Republican, but thanks to a convoluted process and ballot exhaustion—which disenfranchises voters—a Democrat "won."

— Tom Cotton (@TomCottonAR) September 1, 2022

It's an interesting argument that a process that takes into consideration the wishes of the majority of voters is somehow less democratic than one where a candidate can win with a plurality of the vote. It's also worth noting that if the original vote had been allowed to stand, then... Peltola still would have won, because she led after the first round of voting. Oh, and let's not forget that this "convoluted process" was put into place by Republicans. After all, Alaska is hardly a blue state. Still, it's not surprising that Cotton is scared. There is no mechanism by which the Republican Party can stop fringy candidates from declaring, so greater use of ranked-choice voting could take a big bite out of the party's ass. Well, out of its elephant.

And ranked-choice voting is fairly similar to having a run-off a few weeks after the election, something almost all the (Republican-controlled) states in the South have. All it does is make the process easier for the voters. In effect it is saying to some of the voters: "You can't have your favored candidate. Who is your second choice? And third choice? Why can't the voters say that right off on Election Day instead of having to come back to the polls a month later?

Right now, nearly all of the predictors—Inside Elections, Sabato, Politico, RCP, Fox, DDHQ, FiveThirtyEight—have the Alaska seat going to the Republicans in the general election. The only exception is Cook, which has it as a tossup. Perhaps some of the other pundits will be updating their ratings in the next few days. (Z)

House Conservatives Are Preparing to Impeach Biden

If Republicans capture the House, multiple Republicans will introduce resolutions to impeach Joe Biden. Then the speaker will have to decide which ones, if any, to bring to a vote. Various Republicans are already working on their resolutions in hopes that the honor belongs to them.

Already, at least eight resolutions are ready to go. They have been introduced but got nowhere because Speaker Nancy Pelosi (R-CA) refuses to bring them up. Under a Republican speaker, that could be quite different. Three of the eight relate to the border. They basically charge Biden with failing to take care that the immigration laws are faithfully enforced.

For example, Rep. Bob Good (R-VA) has a resolution to impeach Joe Biden for intentionally opening our border and making Americans less safe. Good luck with that one. The chance that the speaker wants to hold a vote on is just about zero. The speaker knows: (1) that will not fly with the majority of voters and (2) after the Republicans started to process to impeach Bill Clinton in 1998 for lying about a consensual sexual affair with an intern, they lost the midterms. So, any Republican speaker has to thread the needle between keeping their caucus happy and not making the 2024 election about an impeachment resolution that most voters think is crazy. The speaker will also know that getting two-thirds of the Senate to vote to convict ain't gonna happen no matter what, so this is all for show. Furthermore, the speaker is going to point out to the various firebrands that even a successful impeachment and conviction would make Kamala Harris president. Do they see a progressive Black woman as an improvement over a moderate white man?

Another three resolutions target the withdrawal from Afghanistan. Of course, the authors neglect to point out that the withdrawal agreement with the Taliban was worked out and signed by Donald Trump, including the withdrawal date. Biden felt that just tearing it up would announce to the world that an agreement signed by one president could be discarded by the next one, so making an agreement with the president means nothing. That is not what any president wants, certainly not Biden.

As to the other two resolutions, one denounces the eviction moratorium that protected renters during the pandemic. The other is totally nutty. It says that Joe Biden is responsible for the business dealings of his son, Hunter Biden, none of which have been proven to be illegal. One wonders how many Republican members of the House would feel if some Democrat introduced a motion to expel them from the House based on an alleged—but unproven—misdeed of one of their children.

Who is behind these resolutions? It's not hard to guess. Rep. Marjorie Taylor Greene (R-GA) is the lead sponsor on four of them. All resolutions expire on Jan. 3, 2023, but Greene will just reintroduce them that day. Her seat is safe and she doesn't care if moderate voters trash the Republicans in 2024 for her nuttery. She can stay in the House until the cows come home.

If Rep. Kevin McCarthy (R-CA), proud owner of a rubber backbone, ignores Greene, hard-line conservatives will scream and might try to force a vote on his continued speakership. If the Republicans have, say, 225 seats in the House and all 210 Democrats vote to boot him, it would take only 8 members of the Freedom Caucus to get to 218. McCarthy knows what happened to John Boehner and Paul Ryan and doesn't especially want to join the club.

Fundamentally, with a handful of hard-line Republicans introducing resolutions to impeach Biden, McCarthy, or whoever has the speaker's gavel, will be in a hot seat. Placating the hard-liners will surely mean a disaster in Nov. 2024, but not placating them is likely to result in a motion to vacate the chair, which might just carry. It will take a political strategist of a much higher level than McCarthy to pull this off. Especially when Senate Minority Leader Mitch McConnell (R-KY) is warning the House not to impeach Biden for fear of a disaster at the polls in 2024.

One potential "compromise" strategy for the House hotheads is to impeach some official instead of Biden. There are already resolutions floating around to impeach Kamala Harris, Secretary of Homeland Security Alejandro Mayorkas, and AG Merrick Garland. House Freedom Caucus chairman Andy Biggs (R-AZ) is a big fan of going after Mayorkas and Garland for "violating the rule of law." Biggs has a J.D. from the University of Arizona and probably knows very well that this is garbage, but it sells well with the base. That said, Biggs also knows that going after Garland for violating the law would generate a huge backlash. But even if Biggs were to decide this is bad politics, other Republican Reps., including Ralph Norman (SC) and Mary Miller (IL) are raring to go. This will be an earlier and important test for any potential Republican speaker, especially McCarthy, who has none of Pelosi's cat-herding skills. (V)

Over 40% of Americans Think a Civil War Is Coming

A recent YouGov poll shows that 43% of Americans think a civil war is at least somewhat likely in the next 10 years. Only one in three say it is unlikely. A majority expect more political violence in the coming years.

It is not surprising that so many people believe this. Disagreements over tax policy, climate change, gun control or even abortion don't generate this kind of reaction. The cause is that, fundamentally, the Democrats and Republicans have completely different view of what America should be. Sarah Palin talked about "real Americans," which was her shorthand for people who live in small towns and rural areas and who have the outlook and views of people from small-town America in the 19th century. They see cities as dens of iniquity and the opposite of real America. People who live in those cities see Palin's "real Americans" as stupid, bigoted, racist hicks who have no business trying to dictate who is a real American. Each side sees the other as a mortal enemy. No wonder so many people see civil war as likely.

Of course, people who are angry can say they expect a civil war without having a clear idea what that means. If pollsters asked: "Do you expect one or more state legislatures to pass a bill formally seceding from the United States?," it would surely be a lot lower than 43%. Probably close to zero, since the reaction of the federal government would be swift and unpleasant, and the federal government is lot bigger and stronger than it was in 1861.

So what might civil war look like? Most likely it could take the form of a guerrilla war, with armed groups pulling off raids like John Brown did in Oct. 1859 and a mob of Trump supporters did in Jan. 2021. Secretive groups would plot attacks on government facilities with the goal of getting more people to join the cause. That would create more partisanship, which the plotters would probably see as a feature, not a bug. It might be hard to stop if the groups were careful to vet prospective new members and use only secure communication channels. And it could go on for a while and be hard to stop. This might be what the 43% had in mind. (V)


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