Aug.02

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Trump Legal News: Every Breath You Take

Somebody really needs to use this newfangled AI technology to make a video of special counsel Jack Smith serenading former president Donald Trump:

Every breath you take
And every move you make
Every bond you break
Every step you take
I'll be watching you

Every single day
And every word you say
Every game you play
Every night you stay
I'll be watching you

Oh, can't you see
You belong to me?

Anyhow, as everyone has undoubtedly heard by now, the imminent 1/6 indictment came down yesterday.

This is a very big story with a lot of moving pieces, so we're going to break it down into chunks:

The Basics

The indictment is a tight 45 pages, you can read it here, or you can read an annotated version here. Trump is charged with four felony counts. They are:

1. Conspiracy to defraud the U.S. government (statute: 18 USC 371): This means that Trump is alleged to have cooperated with at least one other person (though in his case, it's six) to overturn the results of the 2020 election. The indictment mentions the fake electors, the pressure brought to bear on state election officials, the twisting of Mike Pence's arm, and egging on the insurrectionists. This one carries a potential sentence of 10 years.
   
   
2. Conspiracy to obstruct an official proceeding (statute: 18 USC 1512(k)): This is essentially a more focused version of the previous charge; one focused specifically on the counting of the electoral votes. It carries a potential sentence of 20 years.
   
   
3. Obstruction of and attempt to obstruct an official proceeding (statute: 18 USC 1512(c)(2)): In contrast to the first two counts, which have to do with planning to do naughty things, this one accuses Trump of actually doing the naughty thing. This is the crime most commonly charged—and successfully prosecuted—of the various 1/6 defendants who have already gone through the legal process. This also has a potential sentence of 20 years.
   
   
4. Conspiracy against rights (statute: 18 USC 241): It is a crime for "two or more persons [to] conspire to injure, oppress, threaten, or intimidate any person in any State Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States." Trump is charged with working with his co-conspirators to have done so, specifically by trying to interfere with the rights of Americans to exercise their franchise.
   
   This law was passed as the Enforcement Act of 1870 and, if you read the whole statute, it's obvious it was aimed at the Ku Klux Klan ("If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege..."). Quite a few commenters have described it as "ironic" that it's now being used against Trump. We think those commenters are misunderstanding what "ironic" means, as we would say that if you got out your Ouija board and asked them, Radical Republicans like Thad Stevens and Charles Sumner would say that going after Trump is entirely the sort of thing they had in mind.
   
   This particular count carries a sentence of 10 years, at least with the fact pattern alleged against Trump. It is possible to get the death penalty for breaking this particular law, but the person has to be found guilty of attempted or successful murder, rape or kidnapping. Trump is not charged with any of these things.

As we note, there are six co-conspirators alluded to in the document. As far as is publicly known, they have not been charged (though they could be, and probably will be). The names are not revealed in the Trump indictment, but there are enough details to conclusively finger five of the six. Here they are, as described in the indictment:

1. Co-Conspirator 1, an attorney who was willing to spread knowingly false claims and pursue strategies that the Defendant's 2020 re-election campaign attorneys would not. This is Rudy Giuliani.
   
   
2. Co-Conspirator 2, an attorney who devised and attempted to implement a strategy to leverage the Vice President's ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election. This is John Eastman.
   
   
3. Co-Conspirator 3, an attorney whose unfounded claims of election fraud the Defendant privately acknowledged to others sounded "crazy." Nonetheless, the Defendant embraced and publicly amplified Co-Conspirator 3's disinformation. This is Sidney Powell.
   
   
4. Co-Conspirator 4, a Justice Department official who worked on civil matters and who, with the Defendant, attempted to use the Justice Department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud. This is Jeffrey Clark, the low-level Department of Justice attorney Trump considered elevating to acting AG, but was forced to back down when DoJ staff threatened to resign en masse.
   
   
5. Co-Conspirator 5, an attorney who assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding. This is Kenneth Chesebro.
   
   
6. Co-Conspirator 6, a political consultant who helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding. This is... an unknown person.

Note that in most cases, there are additional details elsewhere in the indictment that allow the identities to be nailed down to a certainty. For example, Co-Conspirator 1 is described as saying: "We don't have the evidence, but we have lots of theories." It is widely known that Giuliani said that to then-Arizona state Rep. Rusty Bowers (R). There isn't enough detail about Co-Conspirator 6, though the Internet is full of theories, of course. Among the names being floated are the Federalist Society's Leonard Leo, Judicial Watch's Tom Fitton, Trump crony Roger Stone, Trump crony Steve Bannon, Trump ally Tom Barrack, disgraced former NSA Michael Flynn, virtually the entire primetime lineup of Fox as constituted in January 2021, and everyone's favorite Supreme Court spouse, Ginni Thomas.

Our best guess is that it's Stone, since the person in question was clearly in the loop, and was a frequent participant in e-mail chains and conference phone calls. In any event, their identity won't remain a secret for long.

While the indictment does not paint a flattering picture of Trump or his co-conspirators, to say the very least, there are others who have to be feeling pretty good right now about the choices they made. Chief of Staff Mark Meadows clearly tried hard to get Trump to do something to defuse the insurrection. White House counselors Pat Cipollone and Pat Philbin warned the then-president that he was playing with fire, and that he'd never be able to stay in office. Philbin put it particularly succinctly in a conversation with Trump that took place in December 2020: "there is no world, there is no option in which you do not leave the White House [o]n January 20th." And it looks more and more like Smith's most valuable source of information was... Mike Pence, who—we know from the indictment—was careful to take copious notes in real time. The former VP may have been motivated by his sense of civic duty, or he may have been motivated by the desire to save his own neck, but either way, he shared his notes with the Special Counsel and his team.

One day, we may learn the ins-and-outs of the chess game that Jack Smith is playing, and whether his choice to file the Mar-a-Lago case first was due to it being ready first or due to overall strategy. Whatever the case might be, the situation in Florida is about as ideal as Trump could hope for—lots of Trumpy potential jurors, and a judge who is apparently rather friendly to him (and whom he appointed to the bench). The situation with the new indictment is the polar opposite. To start, the case was filed in the United States District Court for the District of Columbia, which means the jury pool will come from the capital. That would be the same capital where Joe Biden got 92.2% of the vote and Trump got 5.4% (90.6% for Hillary Clinton and 4.1% for Trump in 2016). It is entirely plausible the jury will have zero Trump voters on it. Certainly, the odds of getting a die-hard, will-never-vote-to-convict Trumper on the jury are tiny.

Meanwhile, if Aileen Cannon is Trump's dream judge, then the judge he drew in Washington, Tanya Chutkan, is his worst nightmare. She's an Obama appointee, but one who came to the bench with an impressive résumé, such that she was confirmed by the Senate 95-0. She is both Black and an immigrant (from Jamaica). We only mention that because with a Black immigrant judge appointed by a Black president, the odds of Trump eventually saying something racist are... very high, to say the least.

Like every judge on the D.C. circuit, Chutkan's already heard a bunch of 1/6 cases, and has been the harshest sentencer among her colleagues. Chutkan's also heard a 1/6 case involving Trump, when he tried to block the House Select Committee from accessing some of his presidential documents, and she ruled against him. You may recall the most quotable portion of her order: "Presidents are not kings, and Plaintiff is not President." Chutkan is also well known for running a tight ship, and for having no tolerance for foot-dragging tactics.

And that brings us to Smith's chess-playing. He has brought a case in D.C. that is doable in a fairly short timeframe. The list of charges is fairly short, the facts are well established, and there's no classified information involved, and thus no need for security clearances. The special counsel's also got a judge who's going to be open to getting this matter wrapped up with all due haste. Trump's legal team is now left to triangulate, because they certainly want to drag out the looks-like-a-slam-dunk Mar-a-Lago case. But if they push that case too far back, then Smith can go to Chutkan and say "now we have time to try the D.C. case while waiting on the Florida case." The D.C. case also looks like a slam dunk, and it's not going to be easy to put them both off to December 2024 (or after).

Incidentally, Manhattan DA Alvin Bragg has already said he'll delay the New York case if it interferes with either of the federal cases. Odds are that Fulton County DA Fani Willis will also be amenable to working around the feds, if and when she indicts Trump.

Trump Responds

Donald Trump already had plenty to be worried about, and there's just no way around it, things got a lot worse yesterday. The New York Times' Maggie Haberman is the Trump Whisperer, and she appeared on CNN yesterday to report that the former president is "rattled" by the new indictment. No surprise there.

Even if we did not have Haberman's report, it is always obvious when Trump is upset because he lashes out on social media. That's certainly what he did yesterday. For example, this, which came shortly before the indictment was formally announced:

I hear that Deranged Jack Smith, in order to interfere with the Presidential Election of 2024, will be putting out yet another Fake Indictment of your favorite President, me, at 5:00 P.M. Why didn't they do this 2.5 years ago? Why did they wait so long? Because they wanted to put it right in the middle of my campaign. Prosecutorial Misconduct!

And this, from a statement issued by the Trump campaign and then re-truthed by Trump himself:

The lawlessness of these persecutions of President Trump and his supporters is reminiscent of Nazi Germany in the 1930s, the former Soviet Union, and other authoritarian, dictatorial regimes.

For Trump to compare himself to, say, the victims of the Holocaust seems perfectly fair, right? For some reason, however, those spoilsports at the Anti-Defamation League don't agree; Director Jonathan Greenblatt already responded with a statement: "Comparing this indictment to Nazi Germany in the 1930s is factually incorrect, completely inappropriate and flat out offensive. As we have said time and again, such comparisons have no place in politics and are shameful."

Of course, the new indictment creates both an opportunity, and a desperate need, to fundraise. So, Trump's campaign has already sent out a flurry of e-mails promising "1,500% matching!" As we have discussed numerous times, this is a nonsensical and misleading promise, since any potential benefactor willing to fund this would quickly run up against campaign limits. One wonders how long it will be until he's promising "15 Skillion% matching!" Trump is also selling t-shirts that say "I Stand With Trump 08.01.23," that undoubtedly cost no more than a couple of dollars to manufacture and that can be yours for the low, low price of $47 (Get it? 47th president). Trump sold the same shirts (albeit with 03.30.23) after the New York indictment. Of course, if you're a true Trump fan, you'll want to be sure to collect the whole indictment-t-shirt set.

Trump's big problem here is that his legal costs are going up, up, up, while his fundraising take is going down, down, down. In just the first 6 months of 2023, his operation has doled out more than $20 million to 40 different law firms. And it turns out that while Trump donors are willing to spend their dollars on owning the libs, they are less excited about paying for a bunch of lawyers. So while his first indictment produced a relative bonanza, the second one resulted in a much more modest return (about 75% less). One imagines that indictment number three won't be any more profitable than number two was. And indictment number four, when and if it comes, could be a real bomb. We're talking Jaws 4 or Superman IV here.

Meanwhile, between the legal bills and, you know, running a presidential campaign, Trump is spending considerably more than he's taking in right now (and again, the legal costs are only going to increase). His super PAC isn't doing well, either; it had $105 million on hand at the start of the year, and now it's down to just $4 million. A big part of that was $60 million that the PAC transferred to a different PAC to spend on TV advertising. Now that the primary looks to be locked up, while Trump looks like he might soon get locked up, attorneys are a more pressing expense than ads. So, the Trump PAC had to ask for its $60 million back.

What Trump will do about this, we do not know. Maybe he'll dip into his own holdings to make up the obvious shortfall that is going to develop. Maybe he'll do something illegal, like sell documents to Iran, on the theory "in for a penny, in for a pound." The only thing we know is that his usual strategy for dealing with a situation where costs are way up and proceeds are way down is not available to him. A criminal defendant cannot solve their financial problems by declaring bankruptcy.

Trump's Defense

Donald Trump's defense of himself is going to operate on two different levels: political and legal. We'll deal with the political defense, such as it is, first. The former president needs to keep his supporters unified behind him, because the primaries are still nearly half a year away, and because he needs to keep as much money rolling in as he can. As you can see from the quotes above, his basic argument to his base will be that he's being persecuted unfairly so the Democrats can win the 2024 presidential election. There's a small flaw in this thesis, namely: "If this was the plan, why not wait until much closer to the election to file the case?" However, Trump never concerns himself with logic, and he knows his followers don't concern themselves with it, either.

Over time—and by that, we mean perhaps in the next 24 hours—Trump's attacks are going to get more specific and more vicious. He will undoubtedly attack Chutkan for being biased against him. He will probably accuse Obama of being a puppetmaster, and of pulling the strings behind the scenes. And, as we note above, we foresee the use of racist dog whistles, racist dog bullhorns, and possible outright, unvarnished, racist language.

As to his legal defense, Trump's attorneys have already signaled that they are already at work on Plan A, which is to delay, delay, delay. As we note above, this may not work so well, since Smith is locked and loaded and ready to go and Chutkan has no patience for foot-dragging. She's certainly not going to buy an argument that the case should be postponed until after next year's election, just 'cause.

Team Trump knows this, which is why they are apparently also at work on Plan B, to throw Eastman and Giuliani under the bus, and to blame them for everything. In other words, they will make the case that Trump was just following the advice of counsel, and he had no idea that there was anything wrong with what he was being advised to do.

A defendant has to go with whatever they think gives them the best chance of prevailing, of course. However, if the point-the-finger strategy is ultimately what Team Trump goes with, well, it's got some problems. First, "counsel" ceases to be "counsel," legally speaking, when they become co-conspirators. At that point, following their advice affords no special legal protections. Second, the indictment lays out that there were plenty of other Trump lawyers (including the two Pats, see above) who told him that what he was doing was wrong. He cannot plausibly claim ignorance, even if he is someone born to make that particular defense. Finally, the street goes both ways, even the part that is under the bus. If Trump turns on his inner circle, the same inner circle that knows all of his secrets, then they will turn on him. And if Smith has the choice to give Eastman immunity in order to seal Trump's fate, or the choice to give Trump immunity to seal Eastman's fate, which do you think the Special Counsel will choose? (Hint: The whale.) It's just another way in which Trump does not seem to have learned the lessons of the The Tragedy of Richard Nixon.

The Trump defense does have other angles, but they're tough sells. For example, they could build the case around the First Amendment, arguing that Trump's words and actions constitute free speech and cannot be encumbered by the government. The problem is that urging someone to commit a crime is not free speech, it's making yourself into a co-conspirator.

Alternatively, there are ways that Trump's lawyers could try to poke a bunch of small holes in the government's case. For example, there has been some dispute over the meaning of the fourth crime charged against Trump, namely "obstruction of an official proceeding." Most judges who have heard 1/6 cases have said that what happened on that day satisfied the wording of the statute, but Judge Gregory Katsas has taken the minority position that you can only obstruct an official proceeding if you tamper with documents. It's a curious analysis, and besides, Trump's scheming involved the creation of fake election certificates and phony Justice Department letters, which are documents last we checked, so there's probably no relief for him here.

The broader point stands, however, and that is that there's no such thing as a 100% airtight case. Trump is going to have a lot of lawyers looking for chinks in Jack Smith's prosecutorial armor, and they will certainly find... something. If you'd like a more detailed, weedy overview of some of the potential angles of attack, see here.

The Politicians Respond

We'll start with the Democrats here, since they are largely on the same page. After the previous two indictments, the response from Blue-Team officeholders was very muted, and basically boiled down to "Let's let the process play out." This time, however, we're dealing with something that affected many Democratic lawmakers personally, since their lives were put in jeopardy. So, they're a little less restrained this time. The joint statement from Senate Majority Leader Chuck Schumer (D-NY) and House Minority Leader Hakeem Jeffries (D-NY) is illustrative:

The insurrection on January 6, 2021 was one of the saddest and most infamous days in American history, personally orchestrated by Donald Trump and fueled by his insidious Big Lie in an attempt to undermine the 2020 election. In a deadly effort to overturn the will of the American people and block the peaceful transition of power, our nation's Capitol—the very symbol and home of American patriotism and democracy—fell under attack to thousands of vicious and violent rioters.

The third indictment of Mr. Trump illustrates in shocking detail that the violence of that day was the culmination of a months-long criminal plot led by the former president to defy democracy and overturn the will of the American people. This indictment is the most serious and most consequential thus far and will stand as a stark reminder to generations of Americans that no one, including a president of the United States, is above the law. The legal process must continue to move forward without any outside interference.

That's about as unhinged as Democrats get, as contrasted to Trump and his invocation of the Nazis.

And now the Republican response. In Congress, it was exactly what you would expect. The Senate was largely quiet, with Minority Leader Mitch McConnell (R-KY) pointedly saying absolutely nothing. In the House, there was all kinds of silly blather. Speaker Kevin McCarthy (R-CA) issued a lengthy statement claiming that Jack Smith is just trying to deflect attention from Hunter Biden. Uh, huh. Rep. Elise Stefanik (R-NY) parroted Trump's line of attack, and decreed "Today is yet another dark day in America as Joe Biden continues to weaponize his corrupt Department of Justice against his leading political opponent." Riiiiiiight. Rep. Marjorie Taylor Greene (R-GA) blamed it all on the communists. The 1950s called, Marge, they want their paranoia back. There is a word for people like these three. That word is "collaborator."

The response from Trump's presidential opponents was rather more interesting. They're not quite ready to call him a crook yet, but they are also getting a lot more cautious about defending him. Are they sensing weakness, and preparing for a more frontal approach to campaigning against Trump? Or are they worried about saying something supportive, seeing Trump get convicted, and then having their statement come back to haunt them? We don't know, but the more polls that come out showing that their candidacies are going nowhere, the less they'll have to lose by attacking the throne head-on.

There are two Republican presidential candidates whose response is particularly worth noting. The first of those is Mike Pence, who actually had some pretty strong words for Trump yesterday:

Today's indictment serves as an important reminder: anyone who puts himself over the Constitution should never be President of the United States... As Americans, his candidacy means less attention paid to Joe Biden's disastrous economic policies afflicting millions across the United States and to the pattern of corruption with Hunter.

That is about as brave as the former VP gets when it comes to his rhetoric. Maybe he is figuring out that you don't overcome a 50-point gap in the polls by tiptoeing around the frontrunner. Or maybe he realizes that now that everyone knows he spilled his guts to Jack Smith, he's never going to be able to get the votes of Trump's base. That's been obvious for a very long time, mind you, but maybe Pence has finally joined the rest of us in the real world.

And then there's Chris Christie, the one Republican presidential candidate who has no problem whatsoever tearing into Trump. As a former prosecutor and a master of snark, he recognized that yesterday was tailor-made for the uncorking of a few choice remarks. Christie helpfully suggested that Trump should sell "Trump Tower" or "the plane" or "one of the golf courses" to pay his legal bills. He also observed that by the time the August debate rolls round (23 days and counting), the former president could very well be "out on bail in four different jurisdictions." Ouch.

The Experts Respond

The indictment was major news, and it came early enough in the day, such that people who know the law much better than we do have had time to weigh in. So, here are some of their assessments:

Richard Hasen, Slate/Election Law Blog: Forget hush money payments to porn stars hidden as business expenses. Forget showing off classified documents about Iran attack plans to visitors, and then ordering the pool guy to erase the security tapes revealing that he was still holding onto documents that he had promised to return. Forget even corrupt attempts to interfere with election results in Georgia in 2020.

The federal indictment just handed down by special counsel Jack Smith is not only the most important indictment by far of former President Donald Trump. It is perhaps the most important indictment ever handed down to safeguard American democracy and the rule of law in any U.S. court against anyone.

Norm Eisen, CNN: We heard Jack Smith, I thought in that incredibly powerful press conference, the two most important words that I heard were "speedy trial"...

Judge Chutkan knows how to move a case quickly. There'll be none of this dallying that we saw before Judge Cannon in Mar a Lago. She will move this case quickly. I disagree with my friend Ty Cobb, also a longtime defense lawyer here in D.C. I think we are going to see this case go to trial before the 2024 general.

Scott R. Anderson, Quinta Jurecic, Gia Kokotakis, Katherine Pompilio, Natalie K. Orpett and Benjamin Wittes; Lawfare: The first point to note about this indictment is that, procedurally,it [sic] will be easier to litigate than the one concerning classified material at Mar-a-Lago. That case involves large volumes of classified discovery. This case will involve a large volume of discovery, but none of the relevant material is classified. While one can imagine a hundred complexities in this case, that fact alone will smoothe [sic] the path.

The second notable feature of the indictment is its almost overpowering factual density. The document is not long, but it contains an enormous amount of information. Each sentence has, one must presume [sic] witness testimony and documentary material behind it. It's a powerful case, assuming Smith can prove it in court. And it's one of which the former president should be very afraid.

Dennis Aftergut, Slate: Unveiled on Tuesday, the Washington, D.C., grand jury's indictment of Donald Trump for his role in attempting to overturn the election is a model in the art of prosecution. We know that from the selection of charges and from the grand jury's sweeping investigation whose detail the indictment reflects.

The new indictment is at once sure-footed, streamlined, and prudently aggressive. It takes on charges that must be brought and whose evidence overlaps in a careful design to ensure an efficient trial that can be completed before the November election.

Ankush Khardori, Politico: Republicans and Trump supporters on Capitol Hill and in the conservative media have certainly spent much of the last year laying the groundwork for the tendentious narrative of a "weaponized" DOJ—literally going back to the day that Trump's home at Mar-a-Lago was searched by the FBI, before any of them could possibly have known what was going on in that case.

But the notion that Biden or Garland was somehow determined to prosecute Trump relies on a serious distortion of the public record. Indeed, that record vexed some observers, including me, who repeatedly expressed frustration over how the two men seemed to be going out of their way for most of the first two years of the administration to avoid investigating and potentially prosecuting Trump.

What changed?

The best explanation at the moment—the one that most neatly fits the available facts and a robust body of credible reporting—is that the work of the Jan. 6 select committee spurred the Justice Department to action.

We looked to see if we could find any legal analyst who thinks the case against Trump is weak. We could only find a couple:

Jonathan Turley: Special Counsel Jack Smith just issued the first criminal indictment of alleged disinformation in my view. If you take a red pen to all of the material presumptively protected by the First Amendment, you can reduce much of the indictment to haiku...

John Lauro : The government has had three years to investigate this and now they want to rush this to trial in the middle of a political season. What does that tell you?

Turley, of course, is the fellow who claims he isn't a Trump supporter, but who has made quite a second career for himself of writing pieces defending Trump (not to mention appearing as a witness for Trump in the second impeachment trial). And Lauro is currently working as part of Trump's defense. So, neither of these fellows is exactly a beacon of dispassionate and fair analysis.

In short, the weight of the expert opinion seems to be that Trump's in some very hot water.

What's the Prognosis?

From a legal standpoint, there's a pretty good argument to be made that the Washington case is Trump's greatest legal exposure so far. The Bragg case doesn't come with substantial criminal penalties. And while the Mar-a-Lago case is very strong, it does have the wildcards of a Trumpy juror and/or a Trumpy judge. As we note above, Trump isn't likely to get a Trumpy juror in D.C., and he definitely didn't get a Trumpy judge. Plus, the facts that underlie the new indictment have already been used to send other people to prison.

From a political standpoint, there's the money problem, of course. And there's the very real possibility that Trump's competitors will begin to point out that the emperor has no clothes. Thus far, Trump has been able to isolate and destroy those who would dare challenge or criticize him, but that was because he could take them on one-to-one. If six or seven wannabe presidents all start talking about how crooked he is, can he withstand that? Nobody knows, because it hasn't happened before.

Very possibly, a bigger problem may be the visual nature, for lack of a better word, of the new charges. What (allegedly) happened in New York is pretty corrupt, but it's possible to wave away by saying "Eh. Trump just fumbled some paperwork. All businessmen do it." And what (allegedly) happened at Mar-a-Lago is really bad, but it's possible to wave away by saying, well, "Eh. Trump just fumbled some paperwork. All presidents do it." But the things Trump did on 1/6 were there for everyone to see, for themselves, on TV (or on YouTube, or social media). It's not going to be so easy to claim that it was all just a misunderstanding, or that Trump's just a busy guy who sometimes gets a detail wrong here or there.

There's also the breadth of Trump's... enterprise. He's almost certainly going to be facing four indictments by the end of the month, and probably by the end of the week. The gears of justice are grinding elsewhere, as well. It's not getting any attention, for obvious reasons, but a couple of Trump allies were indicted in Michigan yesterday for tampering with voting machines. That's on top of the phony Michigan electors who were already indicted, while other phony electors may be indicted elsewhere. Several of Trump's attorneys have been disbarred, or will be. At least some of his co-conspirators, in one case or another, are going to turn state's evidence. It is getting harder and harder to ignore that all of these unethical and criminal acts have one person in common, and that person is Donald Trump.

Note that we do not believe, for a minute, that the base will desert Trump in any meaningful way. They are with the Dear Leader no matter what. However, they are not the people who are going to decide the next presidential election. No, the keys to the next election are Republicans who are willing to cross the aisle, independent voters, and Democrats who don't always vote but who might be motivated to get out to the polls under the right circumstances. We think that Trump's ever-increasing legal woes will have an effect on all of these demographics, pushing them in a Democratic/Joe Biden direction.

And that brings us to the Siena/New York Times poll we wrote about yesterday. One of the findings, which we did not include in our comments, was that Biden and Trump are in a dead heat nationally, tied at 43% to 43%.

The things we did write about yesterday, like Trump's massive lead over Gov. Ron DeSantis (R-FL), we included because we believe those numbers are meaningful. We believe it is possible to get some sense of the primary field at this point, and we also don't believe that leads of 30+ points can be attributed to a fluke or a wonky polling sample.

On the other hand, we don't believe for one minute that the Biden-Trump result is instructive. There's the fact that the popular vote does not determine the presidential winner, of course. There's also the fact that the presidential contest is well over a year away, and it's way too early to know who is and is not a likely voter. But most important is that 14% that is supporting neither candidate. Those folks, by and large, would obviously prefer that neither man run in 2024. But when push comes to shove, we believe these folks will disproportionately vote for Biden. If a person believes that one candidate is a doddering fool and the other is an anti-democratic proto-fascist, well, at least doddering fools do less harm.

Let's put it another way. In 2020, Biden got 51% of the vote and Trump got 47%. We see no plausible cause of action that would convert large numbers of Biden 2020 voters into Trump 2024 voters. On the other hand, we can absolutely see a plausible cause of action, namely the criminal cases, that might turn some meaningful number of Trump 2020 voters into Biden 2024 voters, or at least into stay-at-home 2024 voters. Time will tell, but the bottom line is that you can't take general election polls seriously at this point.

Trump will appear in court on Thursday to enter yet another "not guilty" plea. And the next day, it could be the Fani Willis Show. We're going to stop there for today, because additional items don't fit all that well with a 7,000-word piece about a rather major historical event. (Z)