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As you may have heard, Donald Trump was indicted for a third time this week. That fact may just be reflected in the Q&A this week.
D.F. in Ann Arbor, MI, asks: I am hoping some of your coverage of the new indictment will address a question I have been having about how crucial it is for Jack Smith to show that Trump was aware he lost the election. I can see how it strengthens the argument for why he went to such extraordinary lengths to stay in power, but fomenting an insurrection is a crime—even for a person who had the conviction that he was wrongly deemed the loser of the election. What am I missing?
(V) & (Z) answer: You're not missing anything. We have an item planned this week that talks about some of the legal "urban legends," for lack of a better word, that have already sprung up around the third Trump indictment. And this is something we'll address.
The short answer is that it does not matter what Trump believed about the election. Imagine that you believe a grocery store overcharged you for a gallon of milk, and they refuse to refund the difference. Heck, imagine they actually did overcharge you and then refused to refund the difference. You are free to work through whatever their appeals process is (say, contact the regional manager). Or you can sue in small claims court. But you are not entitled to rob the store to make yourself whole.
Similarly, even if Trump believed he won the election, that does not justify acts of conspiracy, fraud, and interference with a government proceeding that he undertook. You don't get to take the law into your own hands just because you think you've been wronged.
R.M.S. in Stamford, CT, asks: George Washington University law professor Jonathan Turley has made quite a name for himself over the past decade defending almost anything Donald Trump does, even things Turley says he disagrees with. This week, he published an opinion piece in USA Today asserting that the charges against Trump in relation to the 2020 election are in violation of his First Amendment rights. Turley says Jack Smith is pursuing a prosecution of Trump for spreading election misinformation, and doubts the charges will stick.
I read most of the indictment and the core of the charges isn't anything Trump said. It centers around an attempt to defraud the government by conspiring with attorneys to generate false electors and telling Mike Pence to accept them on January 6.
What do you think of Turley's analysis? Where in the Constitution does it protect pressuring others to commit illegal acts?(V) & (Z) answer: Who knows what is going on with Turley (and with Alan Dershowitz, for that matter). Are they making money off their adversarial takes? Do they just like attention and notoriety? Are they playing devil's advocate? Who knows.
In any event, Turley's argument is nonsense. We did not go to law school, much less graduate and then become a law professor, and even we know that the First Amendment is not absolute (and not particularly close to being absolute). You can't steal someone else's words and claim them as your own. You can't shout "fire" in a crowded theater, or "bomb" at an airport. You can't say something about another person that you know to be untrue and that damages their reputation. And you most certainly cannot rouse people to violence, or conspire with people to commit crimes, and then claim you were just exercising your free speech rights.
Even if you don't value our opinions about the law, for every one Turley "but what about his free speech?" piece, there are 10 op-eds from lawyers saying that the First Amendment is not germane here. On top of that, Jack Smith and his team explicitly noted in the indictment that Trump has every right to express his opinions about the election, but that the indictment starts at the moment he moved beyond free speech and into criminal behavior.
A.S. in Bedford, MA, asks: Among Donald Trump's loud and repeated calls of political persecution, the Democrats should be regularly reminding people of what we all know is true: Trump chose to run in 2024 because he knew he was about to be prosecuted. He is not being prosecuted because he chose the run.
Or to frame this as a question, why aren't the Democrats hammering on this?(V) & (Z) answer: First, because it would play into Trump's argument that this is all a political game, and has nothing to do with actual criminal conduct. Second, because attacking Trump doesn't work (see Clinton, Hillary 2016). Third, because even if the Democrats disregard problems one and two, it's too early to wield any particular hammer right now. If you start in with this kind of talk in summer 2023, people will be completely numb to it by fall 2024.
H.S in Lake Forest, CA, asks: With all the indictments hanging over Donald Trump's head, how do you predict the 2024 election plays out on the Republican side? Short of any medical issues, I, for the life of me, can't come up with a plausible scenario, in which Trump does not end up winning the Republican primary. I am curious to hear if you have a different take.
(V) & (Z) answer: The easy answer is that the nomination is Trump's, and nothing is going to change that, short of his death. If we must commit to an answer, this is the one we choose.
That said, if you want the contrary position, polls show that, to a greater or lesser extent, what Trump's supporters think is NOT that these crimes are no big deal, but instead that he didn't actually do anything, that it's all made up. This may prove to be a difficult delusion to maintain, particularly as the news media is flooded with coverage of his trial(s), and even more particularly if he's convicted of one or more crimes. It is also possible that if Trump is headed to prison/house arrest, some of his supporters may decide that he's been treated unfairly, but that he also won't be able to function properly if he's locked down, and so they have no choice but to vote for someone else.
S.S. in West Hollywood, CA, asks: Has there been any polling on what happens with the Republican primary if Trump was removed from the equation? (I would assume because of an unexpected trip to the fiery pits of hell... or prison... or both.) If Trump is gone, do Republican voters flock to DeSatan? If Trump already has the nomination, does the Republican Party leadership turn to DeSpicable if he has the second most primary votes?
(V) & (Z) answer: There is one pollster that consistently polls this question, and that pollster is Harvard/HarrisX. They consistently report the result that if there's no Donald Trump in the field, then Gov. Ron DeSantis (R-FL) becomes the frontrunner.
However, that comes with a very large caveat. Earlier this year, say in the mid-May Harvard/HarrisX poll, DeSantis had a massive lead, claiming 41% of the vote to 15% for Mike Pence. But the overall trendline has been aggressively downward for the Florida governor. In the most recent entry, which is just 2 months after DeSantis was crushing the field, Harvard/HarrisX has him at 29% and Vivek Ramaswamy at 19%.
In short, things are in flux, and if Trump were to disappear in, say, 3 months, there are a number of candidates who might plausibly succeed him as frontrunner.
D.B. in San Diego, CA, asks: Just saw the new Reuters poll that saying that 45% of Republicans wouldn't vote for Trump if he had been convicted of a felony, which jumps to 52% that wouldn't vote for him if he's currently in prison. Which raises the two questions: (1) Would Trump likely be "in prison" (whatever that might mean for an ex-president) while he inevitably appeals an initial guilty judgment? and (2) If he is "in prison," how do all the logistics work out for his other court cases in other jurisdictions?
(V) & (Z) answer: The second question is easy, so we will answer that first. When a prisoner faces trial in a different jurisdiction, he or she is just transferred to a local prison for the duration of the trial. To take a fairly current example, disgraced Hollywood mogul Harvey Weinstein was serving time in Wende Prison in New York, and when it was time for him to go on trial in California, he was transferred, for about 6 months, to Twin Towers Prison in Los Angeles. It surely must have been an extra bitter pill for him, since Twin Towers is visible from where Weinstein's studio, Miramax, was headquartered.
As to the first question, that one's hard. They usually let a person out while they appeal, unless they are violent or a flight risk. Trump's not violent, but is he a flight risk? Maybe. There's also the question of how quickly his appeals would be handled. Given the obvious time pressures, they might well be fast-tracked. He could possibly be convicted, appeal, lose, appeal, and lose again, all in time for the Republican National Convention next year. Not likely, but possible.
G.W. in Oxnard, CA, asks: Donald Trump is far ahead of the other Republican candidates and the first primary debate is scheduled for August 23. Is there any way he would show up? Would he not be better served by leaving the other candidates to attack each other, since it is pretty clear that the other candidates can't attack Trump? Am I missing some incentive for him to show up?
(V) & (Z) answer: He might well show up for one of two reasons. First, he might decide that the other candidates are running out of time and are going to have no choice but to start attacking him, and so he needs to be there to fight back. Second, he might decide that the debates will give him a golden opportunity to rail against the deep state and how he's being persecuted by the Biden administration.
M.S. in Las Vegas, NV, asks: I think it is reasonable at this point to assume that: (1) Donald Trump will be found guilty of (likely) multiple felonies prior to the GOP convention next year, and (2) will have won the GOP nomination by then.
So my obvious question is, what happens if Trump is found guilty on, say... May 1, 2024, and also has won the GOP nomination? What do you see as the possibilities? Would the GOP have the nerve to give him the boot. Could they legally even do so?
And what are the chances of a Democratic blowout across the board because a convicted felon is at the top of the ticket and enough people are disgusted by this on both sides of the Trump fence that all GOP candidates take a major hit and the Democrats roll to huge wins in the House and Senate* as well as state races? What are the chances of the opposite?
* - Since so few GOP Senate seats are in jeopardy I'd consider a "huge" Senate win in 2024 to be the Democrats keep all their seats and maybe gain even 1 or 2; I'm not suggesting something ridiculous, like they pick up 10 Senate seats.(V) & (Z) answer: Political parties are largely allowed to make their own rules, and the RNC by-laws are set up to allow that party to be particularly flexible. So, the Republicans certainly could kick Trump off the ticket, if they so desired. We doubt they would actually do it, however, unless Trump publicly announced he was withdrawing from consideration. Otherwise, the RNC would create a schism that would wreck the party for 2024, maybe for 2026 and 2028, and possibly even permanently.
As to a Democratic blowout, it's certainly possible. There's very little precedent, of course. But we can at least take note of the Election of 1816, when the already-minority Federalist Party was crushed at the polls due to the perception that they were anti-American (thanks to their opposition to the War of 1812). Voters of most stripes lined up to teach the Federalists a lesson, and they were effectively finished as a national party from that point forward.
A Republican blowout is far, far less likely. The Trump base is a minority of the population, and is mostly concentrated in ultra-Trumpy pockets (like Alabama, the Villages in Florida, rural Ohio, etc.). There just aren't the numbers there to inflict a blowout, even if a Trump trial/conviction leads to huge, Trumpy turnout.
B.Z. in McLean, VA, asks: Trump's Use of PAC Money for his own personal legal expenses... How does that work? Wouldn't those contributions count as income for Trump? And how do contributors feel about money they contribute towards Trump's reelection being used for a completely different purpose. That cannot be legal. Of course, Trump could set up a Legal Defense Fund, but that is a different animal from a PAC. Something very fishy.
(V) & (Z) answer: It does emit a peculiar odor, but it's probably legal enough that he's not going to get popped. The people who gave money to the PAC were told vaguely that they were helping to Make America Great Again. If they didn't get specifics as to what that means, that's on them. And Trump can plausibly argue that to be able to Make America Great Again, he has to fight off his enemies in court. It doesn't count as personal income, because the things he's in trouble for are at least partly related to his political career, and so are within the domain of his political PAC.
J.A. in Forest, VA, asks: Just wondering—Has anyone, anywhere, ever, run up more in the way of legal bills, lifetime, than Donald Trump?
If not, then he really is the best at something.(V) & (Z) answer: There's a very good chance that he's #1 on that list. First, because he has gotten himself into so much legal trouble—civil, and now criminal—over the course of his life. Second, because he's used lawyers and lawsuits as a primary weapon in his business "career." Third, because his businesses are almost all set up as passthrough S-corporations, which means that he and the corporation are basically the same. It's possible, and even probable, that a major entity like the Disney Corporation has fielded ten times the number of lawsuits that Trump has. But those lawsuits aren't against the person Walt Disney. On the other hand, lawsuits against Trump U., the Trump Organization, etc., are indeed against the person Donald Trump.
D.E. in Lancaster, PA, asks: When reading mainstream news sites about the Trump indictments, I keep seeing, in regards to the scheduling of the January 6 conspiracy trial, that it is going to be more difficult what with the upcoming presidential campaign schedule (debates, primaries, etc.). Can you please tell me how often courts take into account a defendant's schedule for job interviews or even important current job events when it comes to scheduling court dates? I'm going to spitball it here and say my guess would be closer to never than rarely. So why are debates, which Trump routinely threatens to not attend; campaign rallies, where a large portion of his conspiratorial proclamations take place; and primaries, where the candidate doesn't need to attend for them to proceed, being treated like untouchable High Holy Days? This is madness!
Also, we know that the presiding judge decides the sentence but who decides which jail is used for incarceration terms and how is that decision rendered?(V) & (Z) answer: Courts will accomodate a person's schedule in some cases, but there are obviously limits, or else every defendant would discover they have 5 meetings a day they just can't miss. As you imply, most of the "important" events that Trump needs to present for, he's not going to be able to make a good argument for postponing his court case. The rallies are scheduled by him and his staff, and take place at night. The debates also take place at night. The primaries don't really require his presence. And he also has a private plane. We doubt Judge Tanya Chutkan will give him much in the way of special dispensation.
And judges rarely involve themselves in the choice of prison. Convicts are handed over to the Federal Bureau of Prisons (or the state-level equivalent), and then the professionals decide where to house the convict, based on where there is available space, but also based on the particular needs/challenges that come with the particular convict.
E.W. in Skaneateles, NY, asks: I read the annotated third Trump indictment and noticed that there are pretty long prison terms associated with each of the counts. Not to jinx it, but if Donald Trump were to be found guilty on some or all the charges could he end up getting a more lenient sentence for being a "first time offender" (as absurd as that sounds)?
(V) & (Z) answer: They almost never give the maximum sentence, unless the person is a repeat offender, and also there are other aggravating circumstances. So Trump would almost certainly get a less-than-maximum sentence, something that would also take into account his age (77), and the fact that anything more than 5-10 years is a life sentence.
D.W. in Fremont, CA, asks: If Donald Trump is convicted of a felony, will he lose his right to vote in Florida?
(V) & (Z) answer: Yes, until he fully satisfies his debt to society.
P.B. in Danbury, CT, asks: If Donald Trump were to be convicted and sent to the Big House, would he be forced to cut his hair?
(V) & (Z) answer: Not likely. The official policy: "The [Federal] Bureau of Prisons permits an inmate to select the hair style of personal choice, and expects personal cleanliness and dress in keeping with standards of good grooming and the security, good order, and discipline of the institution."
That said, unless Trump is given house arrest or is held in some version of solitary confinement, they surely won't allow him the tools and the hairstylist assistance that is needed to execute that monster combover.
D.J.M., Salmon Arm, BC, Canada, asks: You have laid out clearly the charges against Donald Trump and the possible consequences. However, there seems to be one possibility that gets little attention. That is, Trump pleads guilty and cuts a deal. Given the strength of the cases and the need for money do you think it is fast becoming a viable option?
(V) & (Z) answer: There would be a lot of logic in this, if it's on the table. If you accept that his primary goal in running for president it to evade the long arm of the law, then trading a promise never to hold office again for a slap-on-the-wrist penalty might give everyone what they want.
On the other hand, it might not. Authorities in three different jurisdictions have spent a lot of resources putting together their cases against Trump, and may not be happy with something like a 2-year suspended sentence. Meanwhile, Trump has huge psychological problems with losing and/or admitting culpability, so he might not be open to a deal.
D.K. in Iowa City, IA, asks: Does anyone know whether a president can pardon himself? Isn't that an important issue that should be cleared up?
(V) & (Z) answer: In the Renaissance, scholars spilled gallons of ink debating how many angels can dance on the head of a pin. And today, scholars spill gallons of ink (and use up millions of pixels) debating whether a president can pardon himself.
The argument in favor of "a president can pardon himself" is pretty simple: The Constitution places no limits on the pardon power.
The argument against "a president can pardon himself" is not that much more complicated. The fellows who wrote the Constitution understood it to be operating in the context of existing precedent and legal custom, and it was already well established by their time that "no man may serve as his own judge." So, if one is an originalist, and is seeking to understand the intent of the authors to the document, it's clear that they did not mean to give presidents the power to pardon themselves.
There's also a modern precedent, of sorts. If a president could pardon himself, Richard Nixon surely would have done it, even if he still decided to resign to avoid impeachment.
R.M. in Las Vegas, NV , asks: Given the latest indictments, where does Trump rank in this list of American traitors?
- Benedict Arnold
- Jefferson Davis
- Aaron Burr
- Aldrich Ames
- Robert Hanssen
- The Rosenbergs
- John Walker Jr.
(V) & (Z) answer: We start by noting that our answer assumes Trump is guilty of the crimes of which he was accused. After all, we saw the 1/6 insurrection on TV, just like everyone else.
We will immediately dismiss Arnold, Ames, Hanssen, the Rosenbergs and Walker. What they did was damaging, but was a relative trifle compared to what the remaining three did. None of them put the continued existence of the nation in danger.
Davis, Burr and Trump all launched attacks against the very fabric of democracy and, if successful, might have destroyed the United States. However, one of these things is not like the others. The outlier is... Jefferson Davis. His assault on the American government was far and away the most dangerous and the most damaging. It also came closest to succeeding. That said, it was not primarily instigated by him, nor was Davis motivated by his own personal needs and goals. He didn't even particularly want to be president of the Confederacy; he preferred to serve as a general.
Burr and Trump were less effective, but were definitely the instigators and were definitely motivated primarily by their own self-interest. Of the two, we'd say Trump's actions were more damaging and more egregious.
And so, the top of the traitors list is Davis-Trump in some order. Which one of them is #1, we would say, depends on whether you assign greater demerits based on personal culpability (which would place Trump on top of the heap) or on damage done (which would put Davis on top).
T.J.R. in Metuchen, NJ, asks: Given that: (1) the election is not based on popular vote, (2) roughly half the country is Democratic and (3) Donald Trump's core base is 35%, doesn't that all mean that Joe Biden is ahead 50-35 and Trump needs practically all of the remaining 15%? And wouldn't that roughly be true in the individual swing states? I find it hard to see that someone who is not already on the Trump bandwagon deciding that now is a good time to jump on.
(V) & (Z) answer: To start, your numbers are a little off. Biden's floor is probably something like 43%. Trump's floor is probably something like 40%, because there are the Trumpers, and then there are people like former AG Bill Barr, who say they will vote for Trump because they may hate him but they hate Democrats even more. So, Trump needs more of the theoretically non-committed voters, but he doesn't need all of them.
We share your skepticism that Trump's legal troubles will grow his general election support. His "persecution" narrative may get Trumpers to the polls, and may win back some Republicans who were wavering, but we would guess he's absolutely toxic to everyone else, particularly if he ends up convicted of one or more crimes.
J.R. in Malden, MA, asks: Polls often focus on the popularity of candidates and positions in samples of Republicans vs. Democrats. But has the proportion of people identifying as Republican or Republican-leaning vs. Democratic or Democratic-leaning remained fairly static or has it changed markedly in recent times? I haven't seen much on that.
(V) & (Z) answer: The last 20 or so years have seen a steady rise in the number of people who "left" the two parties, and who are now registered as independents or as members of third parties. In fact, there are now more independents than there are Democrats or Republicans. However, we put "left" in quotations because most of those people still vote pretty reliably with the party they used to belong to.
A.S. in Brooklyn, NY, asks: If one really, really wants Biden to win the 2024 election, how concerned ought he/she be about Cornell West's Green Party candidacy (run by Hillary-killer Jill Stein)?
(V) & (Z) answer: We wouldn't be too terribly concerned, until the data suggests otherwise. Our guess is that Trump (or Ron DeSantis) represent such an existential threat that many Greens will ultimately hold their noses and vote Democratic. Further, recall that Howie Hawkins got half a million votes in 2020, so it's not enough for West to get some votes; he'd have to get something like 1 million votes to potentially affect the outcome. Finally, recall also that there will be a Libertarian candidate, and those folks tend to absorb otherwise-Republican votes at a greater rate than Greens absorb otherwise-Democratic votes. In 2020, the Libertarian (Jo Jorgensen) got three times the votes that Hawkins did.
J.A. in Kansas City, MO, asks: In light of Donald Trump's most recent indictment, why aren't legislators in swing states with blue trifectas (I'm thinking of you, Arizona and Michigan) actively pursuing laws using the Fourteenth Amendment as a basis to prevent Trump from appearing on the ballot in November of 2024?
(V) & (Z) answer: There are two reasons, one practical, one political. The practical reason is that nobody has endeavored to put Trump's name on a ballot yet. So, there's not yet a cause of action. Also, the Democrats don't have a trifect in Arizona.
The political reason is that Democrats don't want to play into the narrative that all of this is about gaining political advantage. So, state officials in the various swing states aren't going to pursue this until it's absolutely necessary. And what they are going to hope, probably with success, is for outside groups to take the lead here. It would look considerably better if the lawsuit came from, say, the Brennan Center than if it came from some Democratic state secretary of state.
M.M. in Plano, TX, asks: What would Jack, Bobby, and Teddy think of Bobby Jr.? It seems like he is violating every principle that they fought for.
(V) & (Z) answer: They would say: "California Uber Alles!"
Wait. Wrong Dead Kennedys. We think Jack, Bobby and Teddy would share the opinion of their still-living relatives, that they love RFK Jr. as a family member, but that they abhor his politics.
T.V. in Moorpark, CA, asks: If House Republicans vote to impeach Biden, do you think the trial in the Senate will be like the Clinton impeachment trial, where actual evidence was examined. or more like the two Trump impeachment trial, where they really didn't look at the evidence? It seems to me that Republican senators would face a difficult choice in an election year if it was clear that Biden did noting impeachable.
(V) & (Z) answer: We doubt that Senate Majority Leader Chuck Schumer (D-NY) has decided on a strategy yet. One option is to spend 10 minutes on the whole thing, so as to send the message that it's a trivial waste of time. Unfortunately, that will also lead to the charge that Democrats are covering up for Joe Biden. Alternatively, Schumer could give the Republicans copious amounts of time, and then let them twist in the wind as it becomes clear they have no real evidence. That might be better, though today's Republicans have proven pretty good at conjuring up lots and lots of "evidence," even if that evidence is nonsense. So this approach could backfire, too. Schumer probably won't huddle with his leadership team and decide until he absolutely has to do so.
A.R.S. in West Chester, PA, asks: Can you opine as to whether or not President Biden (or any other president for that matter) can be impeached for reasons attributed to actions allegedly taken while not in the office of president?
According to the House practice manual, "Impeachment is a constitutional remedy to address serious offenses against the system of government." Certainly one interpretation would be that the offenses must necessarily occur while in office, and not for something that occurred prior to attaining an office.(V) & (Z) answer: As Gerald Ford observed, "high crimes and misdemeanors" means... anything Congress wants it to mean. And Congress is surely the final and only decider here; if the matter was ever taken to the Supreme Court, they are 100% guaranteed to say that it's a political question and not justiciable.
We will also add one more thing: If it was discovered that, prior to taking office, a president was a child molester or a serial rapist, and that president refused to resign, you can be damn sure that person would be impeached and convicted. So, we have no doubt that, under the right circumstances, impeachment could be used for pre-presidential misdeeds.
C.P. in Silver Spring, MD, asks: Regarding the item on Gov. Andy Beshear (D-KY) picking Sen. Mitch McConnell's (R-KY) replacement, I got to wondering, what if he didn't appoint anyone and just left the seat empty? Would that help the Blue Team in a more indirect manner, as opposed to trying to appoint a Democratic politician to the seat?
J.C. in Oxford, England, UK, asks: You write: "we really can't imagine why Beshear would consider such shenanigans, since he's up for reelection this year. It would almost certainly cost him his job, and for what? Somewhere between 6 and 18 months of +1 Democratic senator, before an election could be held (or before a GOP lawsuit was successful)?"
As I understand it (largely as a long-time site reader), the parties in the U.S. don't control a "membership" the way they do in the U.K. (with the benefit of being able to expel the unpalatable fringe or the terminally disloyal), but rather people just declare which party they're in when they register to vote.
Couldn't the lawsuit issue, at least, therefore be avoided by having a Democrat "self-identify" as a Republican in advance of being nominated? Or as a more plausible fallback position, some Republican who has drifted so far from the party in the Trump era that they would probably caucus with the Democrats, but never changed their voter registration?(V) & (Z) answer: Kentucky Republicans, when they passed this legislation, anticipated these loopholes. Here's what the law says:
The appointee shall be selected from a list of three (3) names submitted by the state executive committee of the same political party as the Senator who held the vacant seat to be filled, shall have been continuously registered as a member of that political party since December 31 of the preceding year, and shall be named within twenty-one (21) days from the date of the list submission.So, Beshear would be time-limited and could not pull a "Merrick Garland," and would not be able to appoint someone who recently "discovered" that they are a Republican. On the other hand, a RINO, or a Democrat who had the foresight to re-register last year? Possible.
R.W. in Brooklyn, NY, asks: If Andy Beshear were indeed to defy Kentucky law and appoint a Democrat to replace Mitch McConnell, and if that appointment were later to be struck down by the courts, what impact (if any) would that have on the votes in which the new senator participated? Could they be nullified entirely? Could that vote simply be deducted from the total? Obviously, either scenario would/could create complete chaos given the close split in the Senate, but there is certainly an argument to be made that an illegitimate vote should/can not be counted.
(V) & (Z) answer: First, if Beshear tried it, Kentucky Republicans would almost certainly get an emergency injunction, prohibiting the new "senator" from taking their seat until the court case was resolved.
Second, in order to serve as a U.S. Senator, one has to be given official credentials by the state secretary of state. We think it unlikely that Kentucky SoS Michael Adams (R) would play along with shenanigans from Beshear.
Third, even if the would-be senator avoids an injunction and somehow gets credentials, then those credentials have to be accepted by Secretary of the Senate Sonceria Berry. She is unlikely to accept credentials from someone whose legality is in question.
However, if all of these issues were set aside, and if the person was actually seated, their votes would be official and they would be basically unremovable. The only entity that has the power to police such matters is the Senate itself. A court cannot order that a senator be ejected, nor can it decree a Senate vote to be invalid.
M.V, San Francisco, CA, asks: What is your opinion of the Dilbert guy Scott Adams?
Obviously it is very negative, and you have written about him before, but when I come across his posts (usually his Twitter feed) I can't help but cringe. He speaks with a kind of authority that does not seem warranted—for example, this week he said that after the testimony by whistleblowers against Hunter Biden, Joe Biden will be guaranteed to not serve a second term.
I know E-V.com does make occasional doom predictions that don't materialize, but I don't think I have seen such certainty here about someone you dislike. What is with this confidence from people like Adams?(V) & (Z) answer: Adams is not predicting, he's advocating. And he's doing so from the position of someone who feels aggrieved, and who is constantly trying to "settle the score" with his enemies, as he perceives them. Those enemies are, roughly speaking, Democrats/the Left/the Woke/who knows?
For our part, we try not to be wishy-washy, but we also try not to be overconfident either. Sometimes, it's a hard balance to strike. However, you will note that we generally allow for the possibility that while we think [X] is correct, [1/X] might actually be correct. You can see several answers today that are like that. Also, we will acknowledge when we erred. Adams, and those like him, don't often allow for the possibility their assessment is wrong, and they don't own their mistakes.
R.S. in Ticonderoga, NY, asks: This might be a more appropriate question for the ethicist from The Sunday New York Times, but as it's politically related, I thought I'd try you first.
Is it appropriate for me to make economic decisions, such as who to use as a plumber or where to shop for convenience store items, based on the political beliefs of the provider? I first started pondering this back when I lived in Vermont when the state passed its civil unions law in 2000. There was a lot of blow back on this "ahead-of-its-time" law and "Take Back Vermont" signs starting appearing throughout rural Vermont in protest. At the time, I had second thoughts about shopping at businesses that displayed the "Take Back Vermont" signs.
Now I live in the heart of Rep. Elise Stefanik's (R-NY) district in northern New York where there are a plethora of signs, bumper stickers, and flags on businesses and their vehicles proudly proclaiming various MAGA mantras. I no longer use my long-time plumber because of the "Hillary for Prison" sticker on his business van, while there is another plumber with "Let's Go Brandon" on his store front. There is a local pub I no longer frequent because of the Elise Stefanik campaign posters that are there 365 days a year, not just during election years. I have no problem transacting business with someone I know is MAGA, I just cannot do it if they are spouting that message as part of their business.
I know the ethical question can go either way. Is it ethical to not support a business because of their overt political message? Is it ethical to do business with a company or individual who is so upfront about a political stand you find repulsive? I totally understand if you pass this on to the staff ethicist, if he's not currently under investigation.(V) & (Z) answer: The staff ethicist watched last week's episode of Star Trek: Strange New Worlds, "Under the Cloak of War," and hasn't been right ever since.
Luckily, we don't need her for this one. It is not you that has injected politics into the business relationship, it's these various contractors and vendors. They've made a choice to intermix their politics with their livelihood, either because it's that important to them, or because it's a part of their marketing. And if they made a choice that they think/hope will attract MAGA customers, the trade-off is that they are going to drive away some non-MAGA customers. They certainly know that and are OK with the trade-off.
Here's a real example for you. There is a very famous restaurant in Los Angeles called Barney's Beanery. It's famous because it was the very last restaurant on the famed Route 66, and it was also the last place that Janis Joplin ate before she died. It's also right on the edge of West Hollywood, which emerged as the LGBTQ portion of Los Angeles in the 1940s. From the 1950s up through 1984, Barney's Beanery had a big sign on the wall that said "No Fa**ots Allowed," and they also gave out matchbooks that said the same thing. Would you expect an LGBTQ person to dine there, with that sign on that wall? We wouldn't. Heck, the sign's been gone for almost 40 years, and many Angelenos (among them Z) still won't dine there because of it.
B.H. in Greenbelt, MD, asks: The other day, while driving through Ohio, I passed a dirt racetrack and thought I saw a Trump sign on the grounds. It wasn't on the racetrack grounds, it was next door, but that got me thinking. Could Trump's campaign (or anyone else's) sponsor a NASCAR team? I would have thought not, but then there was your item about the Miami Heat donating to the Ron DeSantis super PAC. That's not the same as sponsorship, but it doesn't miss by much.
(V) & (Z) answer: The answer is "no," but not for the reason you think. It is entirely legal for a political campaign to advertise on a NASCAR car (or an NBA jersey, or an MLB outfield wall, or an NHL faceoff circle), but the leagues generally don't accept that advertising because they don't want to alienate fans. NASCAR, for its part, banned advertising for political candidates in 2021, after the "Let's Go Brandon" incident. Before that, it was fairly common for politicians to buy a space on a driver's car and/or racing suit.
P.L. in Skövde, Sweden, asks: Thanks for all your coverage of voir dire and what is happening in the jury room. What I (as a foreigner) am missing is what happens before that.
- Who is expected to do jury duty and who will not be asked to?
- Can you excuse yourself for jury duty before even coming to the court?
- How does it look like when being asked to be on a jury?
- When will you know what kind of trial you will be a part of?
- Have the employer anything to say about an employee being taken away for jury duty?
(V) & (Z) answer: Note that there are some slight variations, depending on the jurisdiction, but everything we write here is broadly correct. To start, the jury pool for a particular jurisdiction is anyone who lives in the jurisdiction, is a citizen, and is 18 years of age or older. However, there are also some automatic disqualifiers, including an inability to speak English, being a registered sex offender, being a juror on some other trial happening at the same time, being in prison, and being the subject of a conservatorship.
In general, anyone can contact a court prior to your service and ask for a postponement if their scheduled dates are problematic for some reason. Some jurisdictions do it via phone, some via postal mail, some via e-mail. You can also advise them if you are not qualified to serve for some reason, and you can ask to be temporarily or permanently disqualified on the basis of disability. If you make the latter claim, you have to provide a letter from a doctor, or other proof.
Usually, jurors are summoned via postal mail. Sometimes, they are merely ordered to check in, via a telephone system or a website, for some period of time (a week, quite often) to see if they are required to report to the courthouse. Sometimes the jurisdiction skips that first step and just orders the person to report on [X] date. When the person arrives, they are usually placed in a room with other potential jurors, and perhaps given some remarks on what it all means, and their civic duty, and yada yada yada. Then, they might or might not be assigned to one or more courtrooms that are in the process of jury selection.
If a potential juror or a group of potential jurors is assigned to a courtroom, then they start to get some indication of what kind of trial it is. Generally, they will be called to the jury box in groups, and subjected to some sort of voir dire or other scrutiny. If they pass muster, they're on the jury. If not, they are excused and told to go back to the holding room. If the day ends without assignment to a jury, the person is usually excused from all jury duty for some period of time (1-2 years).
As a general rule, employers have no input, excepting that the would-be juror can say "serving would be a hardship on me, or on my employer, for [X reason]." That will sometimes lead to a dismissal or to a postponement. For example, college professors can almost always get postponed to summer, based on the argument that they can't afford to cancel class for a week or two or three. There are a few employers, like the military, who potentially can step in and secure a dismissal.
Note that all of this speaks to your garden-variety, everyday jury. The circumstances change a lot if we're talking about a grand jury, which makes indictments. And the circumstances change some if we're talking about a high-profile case, like Donald Trump going on trial. In that case, jurors may well be summoned specifically for that trial, and there may be some pre-screening, like a questionnaire, before they ever get to the courthouse. That doesn't happen in most trials.
J.W. in Folsom, CA, asks: After reading your item about The Virginia governorship, I looked up Doug Wilder on Wikipedia. A passage there that stuck out to me was: "He was the first African American to serve as governor of a U.S. state since the Reconstruction era, and the first African American ever elected as governor."
I see this passage a lot—"first African American... since Reconstruction." My question is: What happened in Reconstruction?(V) & (Z) answer: For a relatively brief period of time, roughly 1866-72, Black Southerners were allowed to vote while former Confederates were not. That made it possible for some Black men to be elected to political office, including a governor (P.B.S. Pinchback in Louisiana) and a couple of U.S. Senators (Blanche K. Bruce and Hiram Rhodes Revels in Mississippi).
E.D. in Saddle Brook, NJ, asks: In "Ron DeSantis... and the Lost Cause," you wrote: "Over the course of a couple of generations, in both North and South, the Lost Cause became the predominant understanding of the Civil War. It would remain that way for close to a hundred years."
Would you mind clarifying what timeline you were thinking for that? As someone on the older end of the millennial generation, I never heard anything remotely like the Lost Cause growing up. The only time I ever remember hearing that viewpoint was in an argument with a very right-leaning friend at some point in my 20s, and to be blunt, their entire explanation came across as completely ridiculous as they tried to explain it. It was easy to write that person off as crazy, as they often repeated completely outlandish Fox talking points. Outside of that, I think my only experience with the Lost Cause is from learning about it on this site. Anything I was taught about the Civil War left zero doubt that slavery was awful, that it was the cause of the war, and that it driving force in politics for much of the early days of the U.S. There wasn't a hint that any of it was controversial, and there wasn't even a trace of ambiguity as to who the bad guys were.
"A couple generations" + "close to a hundred years" probably covers most of the time from the Civil War to today, so it's hard to reconcile that with my experiences.(V) & (Z) answer: The first traces of the Lost Cause can be detected in the months immediately following the war, but the fellow who first whipped it into a cohesive interpretation was Lt. Gen. Jubal Early. He was the first general to write an account of the war, A Memoir of the Last Year of the War for Independence, in the Confederate States of America (1866), and then in 1869 he co-founded the Southern Historical Society, which had as its primary purpose to preserve and promote the Southern version of the war.
So, the Lost Cause was a going concern by the late 1860s. It became dominant in the mid-1880s, and it remained dominant until after the Civil Rights Movement of the 1960s.
M.D. in North Canton, OH, asks: I wondered if the staff historian has seen The Young Indiana Jones Chronicles and what he thinks of it. Obviously, there is some serious bending of the truth and timelines, but the vast majority of people Indy meets, could have been where they are represented—Picasso in Paris, Ho Chi Minh at the Versailles talks, Paul Robeson at Rutgers, among others.
(V) & (Z) answer: (Z) has seen it, and while it's been a while, he liked it. He also approves of doing a little time-bending, and using the notion that it's an adult remembering (and sometimes mis-remembering) his childhood as justification. The movie A Christmas Story does the same thing, as does the TV show The Goldbergs.
M.G. in Boulder, CO, asks: This seems like a good time to ask this question. How do you increase your donation? I thought I'd give it a try and was easily defeated. Admittedly, I've never found much on a computer to be "intuitive."
(V) & (Z) answer: This is our very least favorite answer to give in the Q&A, but... we don't know. We see something different than readers do when we go to Patreon, and we can't sign up to be a donor and to see what the reader setup looks like without creating an alternate (and false) identity.
So, all we can offer you is this page created by Patreon, which gives instructions.
Here is the question we put before readers last week:
J.W. in North Canton, OH, asks: As an Ohioan, the surge in early voting is no shock to me. And I expect the special August election will have huge turnout. Ohioans, both Democratic and Republican, are hopping mad that the legislature is trying to pull a fast one under the radar. It feels like "revenge voting" and I expect Issue 1 to fail and the pro-abortion issue in November to pass. The whole thing will blow up in the Republicans faces.
It got me thinking about revenge voting by voters unhappy with the shenanigans of their legislators. Have there been similar situations in other states, or nationally?
And here some of the answers we got in response:
J.R. in San Francisco, CA: Proposition 13 (1978, California) was the quintessential populist revolt, if not exactly revenge. Property taxes automatically escalated, driving some people out of the life-long homes. Proposition 13 put a cap on this escalator.
D.G. in Portland, OR: Oregon's Death With Dignity Act is an example of just this situation. This was the first physician-assisted-suicide law in the U.S.
The original 1994 ballot measure squeaked through, 51% to 49%. Three years later, the state legislature submitted a ballot measure to repeal the original. The repeal was rejected by 60% of annoyed voters.
K.S. in Harrisburg, PA: In 2005, the Pennsylvania legislature voted themselves a pay raise at 2 a.m. with minimal debate. Public outrage was so great that the pay raise was later repealed. Despite the repeal, two of the top Republicans lost the next year's primary and a number of losses in the general election in 2006 were attributed to the pay raise.
P.F. in Fairbanks, AK: I think the passage of Ballot Measure 2 (Ranked Choice Voting) in Alaska in 2020 constitutes a voter rebellion. While it was not a rebellion against both parties, it was certainly a rebellion against the Alaska Establishment. It was even a citizen-initiated ballot measure that had a well-funded opposition campaign.
R.C. in Minneapolis, MN: In Minnesota, back in 2012, the Republicans controlled the Minnesota legislature, but the Governor was the DFL (Democrat) Mark Dayton. The Republicans passed a couple of laws, one against same-sex marriage and one requiring voter ID. This was typical for them.
Dayton vetoed these and so the Republicans passed two amendments to the Minnesota constitution, one to ban same-sex marriage and the other to put these photo-ID requirements into the state constitution. Since the governor could not veto a proposed constitutional amendment, they were added to the November 2012 ballot.
I was pretty sure that both would pass, the photo-id one especially. However, both were defeated, much to the embarrassment of the Minnesota Republicans. The Minnesota Republicans were also defeated in the legislature and lost their majorities. Was it "revenge voting"? Who knows. It probably helped that Barack Obama was running, too.
J.C. in Peabody, KS: In Kansas last August, we had a very memorable ballot question about abortion that failed and garnered national news. What wasn't as popular in the media was the ballot question in November: legislative override of the executive branch. Basically the question was established so that, if passed, the legislature, heavily Republican, could overrule any administrative agency's regulations. This would have effectively killed our Democratic governor's agenda and initiatives and undermined the separation of powers. The measure failed by 8,645 votes, out of 952,000 votes cast, but by a slimmer margin than the abortion vote (59%-41%). As an employee of one of the state agencies, I was glad to see it go.
J.K. in Portland, OR: The closest I can come to "revenge voting" is not at the legislative level, but rather the presidential. Theodore Roosevelt was unhappy with his hand-picked successor, William Howard Taft (who, as Richard Armour observed 70-odd years ago, was so massive that he needed two first names), and in revenge created the Bull Moose Party to run against Taft's re-election bid in 1912. The result was that Thomas Woodrow Wilson slipped into office; he was at best a highly mixed blessing whose only surviving feature is a number of generations of people with the first name Woody.
T.H.W. in Marlboro, VT: In 1998, Fred Tuttle, a Vermont farmer and erstwhile comedian and local movie star (Man with a Plan), entered the Republican primary election against Jack McMullen, a multimillionaire carpetbagger from Massachusetts who evidently moved to Vermont as a cheaper place from which to run for the U.S. Senate. In the broadcast debates during the primary campaign, Tuttle mocked McMullen's unfamiliarity with Vermont. McMullen was unable to pronounce correctly the names of many Vermont towns, and when Tuttle asked him how many teats a Holstein has, McMullen thought there were six, not four. (It has been many years since there were more cows than people in Vermont, but they are still very much part of the rural landscape and have a somewhat iconic status in Vermont consciousness.)
Because in Vermont, voters may choose any party's ballot for the primary, and because Patrick Leahy clearly had the Democratic nomination sewn up, many Democrats and independents opted for Republican ballots, and Tuttle won the primary by 10% with nearly 55% of the vote. He immediately turned around and endorsed Leahy for the general election, even campaigning with him, saying that "He knows how many tits on a cow." Leahy won handily, though Tuttle still drew almost a quarter of the votes.
J.G. in Woodridge, IL: As a resident of Illinois, this was easy: Carol Mosely Braun. Illinois has had our share of awful politicians, corrupt politicains, and just plain crooks. And it isn't restricted to one side of the aisle. For every Rod Blagojevich there is a Dennis Hastert. I'll see your Otto Kerner and raise you George Ryan.
But CMB is a special case. She was the first Black woman ever elected senator, defeating John Dixon in the primary by half a million votes and an empty suit named Richard Williamson in the general by an equal margin. She had the entire Cook County machine on her side, and racked up huge margins in the city. She also won quite a few downstate counties, which is still shocking.
Then she took that goodwill and frittered it away, especially by going on an unannounced, unapproved trip to Nigeria to cozy up with then-dictator Sani Abacha and defend his human-rights record. By 1998, Illinois had a severe case of buyers' remorse. Even in a year when the Clinton impeachment was making life tough for Republicans, and even in a left-leaning state like Illinois, CMB couldn't survive. She lost to Republican Peter Fitzgerald (yes, kids, Illinois used to elect Republican senators once in a while, and even Republican governors!) by nearly a hundred thousand votes.
Six years later, Fitzgerald retired from the senate. Rumor had it that he couldn't stand George W. Bush. His seat was eventually won by... Barack Obama.
Here is the question for next week:
D.S. in Palo Alto, CA, asks: What it is about Donald Trump that so enamors him to the people who love him?
Submit your answers here!