The Prodigal Son Returns

If you follow the news very, very closely, it's possible that you were dimly aware that Donald Trump, who was once the President of the United States, returned to his home state of New York yesterday to face arraignment in the criminal case brought against him by Manhattan DA Alvin Bragg. This story may have even come up once or twice on this site. We'll have to check Google to make sure.

Ultimately, there weren't all that many surprises yesterday. As reported on Monday, there are indeed 34 felony counts. Every single one of them is for "FALSIFYING BUSINESS RECORDS IN THE FIRST DEGREE." The number of counts reached 34 because Bragg's office treated every distinct interaction with Michael Cohen as a discrete criminal act. So, for example, when the Trump Organization accepted a phony invoice from Cohen for one month's payment, then cut a check in response to that invoice, and then recorded the check as a business expense in the company's ledger, Bragg treated that as three separate crimes. And since Cohen was invoicing and being paid over 12 months, well, the numbers piled up quickly. If you want a more precise inventory, there are 11 invoice counts, 11 check counts and 12 ledger entry counts. You can read the indictment here, and the statement of facts here, if you wish.

Donald Trump's behavior yesterday was also unsurprising. He pleaded not guilty, of course. Even less surprising is that, after Judge Juan Marchan declined to impose a gag order (for now), Trump delivered a rambling, 40-minute speech full of laments about how he's a victim coupled with numerous baldfaced lies. He also attacked the judge directly, calling him a "Trump-hating judge with a Trump-hating wife and family." Brilliant legal strategy there, Donald. Undoubtedly his attorneys (the real ones, not the TV ones) are already pulling their hair out.

Perhaps the least surprising news on the Trump front, however, is the fact that he is already aggressively fundraising off of Tuesday's events. It's always about the grift, after all. The last thing he did before heading to court was beg his followers for money. He's also selling t-shirts with a fake mugshot for about 40 bucks:

We really don't understand why his real mugshot needed to be suppressed, but he was happy to be pictured in a fake mugshot. Though we suppose this version allowed someone to sneak in the oh-so-subtle detail that he's the 45th and 47th president.

Meanwhile, outside the courthouse, the crowd was definitely much more anti-Trump than pro-Trump, though he did have a couple of well-known members of Congress show up to support him, and it was the exact pair that the writing staff of Saturday Night Live was undoubtedly praying for as they prepare to lampoon this whole thing: Reps. Marjorie Taylor Greene (R-GA) and "George Santos" (R-NY).

Pretty much every time Greene tried to speak, she was drowned out by the crowd, although she did manage to share her view that Trump is very much like Jesus. We actually think that the Representative is on to something here, as there are a lot of similarities between the two men:

• Neither of them said anything useful after the age of 33
• Neither of them wrote the book that made them famous
• Neither of them paid taxes (although one of them was at least amenable to doing so)
• Neither of them won the 2020 presidential election
• Neither of them could really trust their "loyal" acolytes
• Both had distant relationships with their fathers
• Both consorted with sex workers
• Both fraternized with people hostile to Jews
• Both bring to mind white robes and crosses
• Both think they are God

We're not sure which of these commonalities Greene was thinking of, but it was undoubtedly one of them. In any case, her arrival on the scene was no surprise, because she announced it several days ago. "Santos'" presence was a bit more unexpected, though it really shouldn't have been. As the presiding judge in the case, he had to be there.

At this point, the $64,000 question on everyone's mind is undoubtedly how strong the case against Trump really is. The two documents linked above total about 30 pages, which means two things. The first is that there's been plenty of time for legal experts to read both of them. The second is that they do not provide anything close to a comprehensive view of Bragg's case against Trump. For most lawyers, particularly government lawyers, 30 pages is barely enough for them to clear their throats.

Plenty of legal commentators who are not in the bag for Trump (in other words, no Alan Dershowitz or Jonathan Turley) have already written pieces offering their preliminary assessments of the case. None of them sees a slam dunk in the documents that are now publicly available, and opinion generally breaks down pretty evenly between "it's a problematic case" and "we have to be patient and wait and see." Some selected comments:

• Scott R. Anderson, Anna Bower, Saraphin Dhanani, Hyemin Han, Quinta Jurecic, Tyler McBrien and Benjamin Wittes, Lawfare Blog: The bottom line is that the case unsealed today, like many cases, requires more complete presentation before evaluation. It certainly does not put before the courts the conduct of the former president of most concern to us—there are at least three other ongoing investigations that might present much more serious allegations than the ones the New York grand jury handed up. On the other hand, it would be a mistake to dismiss it, either on legal or factual grounds, without hearing the whole of what Bragg has to say.
  
  An indictment, after all, is only a beginning.
  
  
• Mark Joseph Stern, Slate: These charges will be difficult to prove. There can be no doubt that the district attorney faces an uphill climb. They tell the story of a complex conspiracy to illicitly alter the course of the 2016 election—potentially, a powerful tale of corruption that persuades both the jury and the public of this prosecution's necessity. But Bragg's legal theory is, if not convoluted, a fairly confusing effort to patch together disparate offenses into one alleged crime, carried out over 34 illegal payments. This is not at all the slam-dunk case that so many Democrats wanted.
  
  
• Rick Hasen, Election Law Blog: Based on what I have seen so far, the decision to charge Donald Trump with felonies in New York state is a mistake both legally and politically... I would rather see the fire aimed where it belongs: at Trump's attempts to undermine American democracy and interfere with the peaceful transition of power during the 2020 election. Those kinds of prosecutions can help to support the rule of law. This one may undermine it.
  
  
• Liz Dye, Above the Law: What is most surprising is the indictment itself. Before last night, there was rampant speculation that the district attorney would charge for both second degree falsification of business records under NY PL § 175.05, a misdemeanor, and first degree falsification under NY PL § 175.10, a felony because the defendant's "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." But the indictment includes no misdemeanors, and no conspiracy charges as was also speculated. This may be a risky gambit for the DA, because it requires him to prove "intent to defraud," and also because the "other crime" here is conduct for which no one was ever charged. When asked about this at the press conference, Bragg made vague references to violations of "New York state election law," which makes it a "crime to conspire to promote a candidate by unlawful means," as well to violations of federal election law.
  
  If the court buys this theory, then he'll have succeeded in convicting the former president of multiple felonies—assuming he can get around the five-year statute of limitations problem. If the court refuses to accept the election crimes as a predicate for first degree falsification, Bragg doesn't even get to go home with a misdemeanor conviction as a participation trophy (which would have a two-year limitations problem of its own).
  
  
• Zachary Basu, Axios: Bragg will need to prove Trump tried to conceal crimes that he has not been charged with—and that are not actually named in the indictment. One of those potential crimes—violating federal campaign finance laws—is not in Bragg's power to prosecute as a district attorney. The unusual legal strategy could pose a significant challenge—and may backfire in spectacular fashion if Trump is acquitted or the judge dismisses the case before it's even brought to trial.
  
  
• Jessica Levinson, CBS News: Unless you have a smoking gun, showing intent to commit another crime can always be a challenge... It hinges on David Pecker. And I think it hinges on other people in the Trump Organization who actually helped him make these payments.
  
  
• Noah Feldman, The Washington Post: The relatively minor charges brought by the Manhattan district attorney regarding Trump's alleged hush money payments to cover up extramarital sexual encounters do not target the core of Trump's challenge to our democratic constitutional system. As a practical matter, they may even make it more difficult to prosecute him for more serious crimes.

The executive summary is this: The Trump Organization engaged in financial transactions with Michael Cohen, and then produced a paper trail that fraudulently misrepresented the nature of those transactions. Each piece of paper in that trail (again, each invoice, each check and each ledger entry) is a separate crime. If that was the end of it, these misrepresentations would be misdemeanors. However, Bragg believes that the goal of these misrepresentations was to cover up some other crime (likely election fraud), and in that case, the misdemeanors become felonies.

Exactly how Bragg plans to approach that other crime, and what evidence he has to support his argument, remains largely unknown. There are numerous potential problems with his plans, at least in the abstract, most obviously that if he cannot prove the underlying crime, the whole case collapses. The folks above, all of them trained lawyers, can see those potential problems, and so that's what they're talking about here. Remember, though, that all of these folks are just hazarding their best guesses. The only difference between now and last week is that they have some important new information. But Bragg is a trained lawyer, too. He can also spot the weaknesses in a case, and he's had a lot more time to think about this than they have. He has not laid his whole hand on the table, by any means, and so we really don't know how he plans to deal with these potential problems.

And now, we enter hurry up and wait mode. There will be many, many months of motions and counter-motions, as Trump's team tries every trick in the book to get the case dismissed, moved, or otherwise dragged out. His next court date isn't until December 4, in part because the judge wanted to leave time for all the maneuvering, and in part because it is not a top priority to resolve lesser felonies where the perpetrator is not in prison. By the time this moves forward, if it does indeed move forward, there's a very good chance that it's only the second- or third- or fourth-most significant legal headache the former president faces.

And that's the story, for now. We have many lawyer readers, if any of them would care to write in with their thoughts on the indictment, the statement of facts, the strength of the case, the timeline, or anything else, we will run an item on Friday. (Z)

Democrats Go 2-for-2 at the Ballot Box on Tuesday...

It's not often that the most important Election Day of the year is in April, but that's the situation in 2023. The Democrats were guaranteed to win one of the two major elections that took place yesterday, since the Chicago mayor's race was Democrat vs. Democrat. However, the blue team also won the other, namely the judicial election in Wisconsin.

It did not seem to us that the election in Wisconsin would be close, as the state's voters pretty clearly lean pro-choice (the position of Janet Protasiewicz, the candidate everyone knows to be a Democrat, despite the officially "nonpartisan" nature of the election). Further, not only is Daniel Kelly anti-choice (and the candidate everyone knows to be a Republican), but he's already lost a statewide judicial election as an incumbent. Clearly, the good people of the Badger State aren't buying what he is selling.

The only thing that kept the race nominally competitive, we suppose, was the enormous infusion of cash in favor of Kelly, primarily from a few mega-rich conservative donors. As it turns out, however, that was money poorly spent. Protasiewicz ended up winning by nearly 11 points, 55.4% to 44.6%. Keeping in mind that Donald Trump lost the state in 2020 by less than a point, Kelly clearly isn't Wisconsinites' cup of tea. Or maybe we should say he just isn't their chunk of cheese. If the billionaires hadn't spent $20 million to prop up Kelly's candidacy, he might have lost by, what, 12 points? Maybe 13? Again, money poorly spent. Reader R.V. in Pittsburgh brought Kelly's concession speech to our attention; it is the epitome of "low class," and certainly helps one to understand why he turns off more voters than even Donald Trump. The icky part starts at 3:45 in.

Protasiewicz's win means that the Democrats will have a 4-3 majority on the state Supreme Court, which, as we've noted many times, is going to be helpful for the blue team in upcoming, high-profile decisions on abortion, gerrymandering and voter ID laws. Barring a death or resignation, the 4-3 majority will hold until at least November 2025, which is when the seat of "nonpartisan" Democrat Ann Walsh Bradley will be up.

A bit to the south, meanwhile, folks in Chicago decided that while they don't like Lori Lightfoot anymore, they still want a Black progressive running the city, and so they gave the mayoralty to Brandon Johnson over Paul Vallas, 51.4% to 48.6%. In contrast to merely running as a progressive, like Lightfoot did, Johnson might actually govern as a progressive. Time will tell.

Meanwhile, in the United States' last two major-city mayoral elections, the more progressive Democrat (Karen Bass in L.A., Johnson) triumphed over a moderate Democrat (Rick Caruso in L.A., Vallas) running on an anti-crime, hire-more-cops platform. We doubt this is a sign that Americans, even in very liberal cities, are ready to embrace "defund the police." But it is possibly a sign that "hire more cops" has become less compelling than it was in the past, and that candidates who want to run on combating crime are going to have to come up with something more thoughtful.

And that is it for a good long while when it comes to interesting and important election results. It's going to be a few months before we even have primaries of significance to write about, much less general elections. Unless, of course, someone dies or resigns and triggers a special election. (Z)

...But Suffer a Big Setback (Potentially) in North Carolina

Democrats are undoubtedly thrilled to control the whole ballgame in Wisconsin now. But every action has an equal and opposite reaction, it would seem, because they effectively lost control of the ballgame in North Carolina yesterday.

At the outset of this week, the only obstacle to Republican plans in the Tar Heel state was Gov. Roy Cooper (D-NC). The GOP controls the state Supreme Court and it controls both chambers of the state legislature. Cooper has veto power, of course, and has vetoed much legislation that was sent to his desk. The legislature is empowered to override vetoes, but the Republicans were one vote short of a supermajority in the state House.

Not anymore, though. Reader A.R. in Chapel Hill, NC, alerts us to the news that state Rep. Tricia Cotham, who is currently a Democrat, is going to become a Republican. And so, the red team will be in a position to override vetoes without needing to flip any Democratic votes.

Cotham's district is pretty blue; she won election by 20 points last year. It's possible this is a matter of conscience, and she's decided she needs to be true to her real political beliefs, career be damned. However, most politicians do not operate this way. So, we are inclined to suspect that she foresees changes to her district coming when North Carolina redraws its maps (yet again), and that she wants to get out ahead of the reddening of her constituency. That's just a guess, though.

And as long as we are on the subject of guesses, there has been much speculation in North Carolina that the Republican legislature would write abortion restrictions into the state budget, making it much harder for Cooper to exercise his veto. Now, the apostasy of Cotham has A.R. (again, the reader who sent this item in) speculating that the Republicans knew this was coming, and therefore they knew they could get a straight abortion bill passed into law without needing additional trickery.

All of this said, nothing is quite a done deal yet. Cotham hasn't yet re-registered or left the Democratic caucus, and we suppose it's possible she could be bluffing in exchange for (barbecued?) pork. Not terribly likely, but at least possible. Meanwhile, when a party has zero margin of error, it can be hard to get things done. In particular, we could imagine Republicans in swing districts not wanting to open themselves up in 2024 to the charge: "But for your vote, [fill in bad consequence of an abortion ban] would not have happened." (Z)

Abortion Is Going to be on the Ballot in Many Places

As long as we are on the subject, there are many states where one party or the other does not control enough of the state government to impose that party's preferred abortion policy. Not all of those states allow ballot initiatives, but some of them do. And so, there are already a number of abortion-related ballot initiatives in progress; we'll start with the two that activists are trying to get on the ballot this year:

• Ohio (2023): The Ohio Right to Make Reproductive Decisions Including Abortion Initiative would establish that the government has no voice in residents' reproductive decisions.
  
  
• Pennsylvania (2023): The Pennsylvania No State Constitutional Right to Abortion Amendment would do the polar opposite of the Ohio bill, and would amend the state Constitution to decree that residents have no right to abortions.
  
  
• Florida (2024): The Florida Right to Life of Preborn Individual Initiative would change the Florida Constitution to include this: "The right to life of the preborn individual is God-given, thus unalienable and recognized accordingly. Therefore, it shall not be infringed at any stage of development."
  
  
• Hawaii (2024): The Hawaii Right to Reproductive Freedom Amendment would guarantee residents the right to both abortions and contraceptives.
  
  
• Iowa (2024): The Iowa No State Constitutional Right to Abortion Amendment would add this text to the state Constitution: "To defend and protect unborn children, we the people of the State of Iowa declare that this Constitution does not recognize, grant, or secure a right to abortion or require the public funding of abortion."
  
  
• Maryland (2024): The Maryland Right to Reproductive Freedom Amendment would amend the state constitution to guarantee the right of reproductive freedom, including the right to have an abortion.
  
  
• New York (2024): The New York Equal Protection of Law Amendment would add "people who have had an abortion" to the list of protected classes in the state.
  
  
• South Dakota (2024): The South Dakota Right to Abortion Amendment would guarantee the right to an abortion in the first two trimesters, and thereafter only in the event that the mother's life is threatened.

Thus far, only the Maryland and New York initiatives have qualified to appear on the state's ballot, but the others are all close to making the cut. There have also been efforts in Nevada, Oklahoma and Washington that came up short, but are expected to be renewed. There's also plenty of time for citizens in other initiative/referendum states to get something going.

In 2022, there were a total of six states that voted on abortion-related ballot initiatives, and the pro-choice position won all six, even in red states like Kansas and Montana. The evidence thus suggests, at least tentatively, that such initiatives work to the benefit of the Democrats by motivating their voters to get to the polls. There are some pretty swingy states on the list above, where 2-3% more Democratic voters showing up on Election Day could make a big difference. So, this is something we'll be watching very closely. (Z)

Tennessee Republicans Channel Their Inner Mussolini

This story is, quite frankly, frightening. There was, of course, a mass shooting in Tennessee last week. That led, not surprisingly, to mass protests in favor of gun control, including one that took place on the steps of the Tennessee state house. Three Democratic state representatives—Gloria Johnson, Justin Jones and Justin Pearson—stood on the floor of their chamber with a megaphone, expressing their support for the protesters. The Republican supermajority in the chamber was furious, has already stripped them of their committee assignments, and will soon vote on whether to expel them from the legislature entirely.

Naturally, the Tennessee politicians behind this maneuvering have drawn an equivalency between what the three Democrats did and what happened in Washington on 1/6. This parallel is, quite clearly, absurd. There is no comparison between storming a government building and committing acts of violence in an effort to overturn an election versus exercising one's First Amendment right to engage in protest. The 1/6 folks were breaking the law, which is why a bunch of them have already gone to prison, and a bunch more are headed there. By contrast, nobody is arguing that the three Tennessee Democrats broke the law. Maybe yelling from the floor of the state House chamber is a violation of the rules (although we suspect it happens a fair bit). If so, then there are appropriate sanctions for that, ones that stop well short of expulsion.

Further, even if you grant the equivalency (and again, we don't), none of the members of Congress who participated in the insurrection in any way have yet been sanctioned in any way for their actions on 1/6. Not Sen. Ron Johnson (R-WI), who tried to introduce a fake slate of electors, not Sen. Josh Hawley (R-MO), who egged the insurrectionists on, not Rep. Lauren Boebert (R-CO), who may have led tours of the Capitol so the insurrectionists could plan their maneuvers. Maybe if these folks are charged with a crime, and definitely if they are convicted, they will be tossed out of Congress. But until then, they are members in good standing, with the full list of privileges their office confers.

What's really going on in Tennessee, even though we hardly need to spell it out, is that those in power are using that power to silence all dissent. That's not what happens in a democracy, it's what happens in a dictatorship. These folks lament a Xi Jinping or a Kim Jong-Un, and yet they run the same damn playbook. Oh, and if you want to feel extra dismay, one of the three Democrats being targeted is a woman and the other two are Black. Just a coincidence, we are sure. We hope that if the members are expelled (and the prediction in the local media is that they will be), they run in the special election and are returned to their seats by overwhelming majorities. Then, we hope that Tennessee voters punish those responsible, the next time they have an opportunity to do so at the ballot box. (Z)

Things Are Getting Interesting in West Virginia

There is much about the 2024 elections in West Virginia that remains up in the air. We don't know if Sen. Joe Manchin (D-WV) will run for reelection, will try to get his old job as governor back, or will retire from politics so he can spend his days puttering around until he goes to the big coal mine in the sky. We also don't know if Gov. Jim Justice (R-WV), who is term-limited, will decide he likes the sound of "Sen. Jim Justice," and will throw his hat into that ring, or if he'll decide he's had enough of politics.

Just because the state's two most prominent politicians are in a holding pattern does not mean there's not meaningful news out of West Virginia, however. To start with, state AG Patrick Morrisey (R) has announced that he's running for governor. In addition, the Club for Growth (and other right-wing groups) have decided that the former Democrat Justice, though conservative, is a RINO and they don't want him as their senator. So yesterday, they said they would back the much further right Rep. Alex Mooney (R-WV) for the job.

At this point, the most interesting question, of course, is exactly what Manchin is going to do. We find it unlikely that he plans to retire. He's got politics in his blood and, on top of that, he's spent the last couple of months loudly carping about how Joe Biden is just too durned lib'rul. All of this has the feel of someone who's gearing up for an election in West Virginia next year.

If Manchin does run, then what office should he run for? At this point, let us point out that there has only been one poll of Manchin vs. [Republican] done in 2023, and it's from The Tarrance Group, which is a Republican outfit. Nonetheless, their numbers are pretty stark, and conform with the general sense of things expressed by experts in West Virginia politics, and by Republican pooh-bahs, among them Senate Minority Leader Mitch McConnell (R-KY). According to Tarrance, Justice would defeat Manchin 52% to 42%, Manchin would defeat Morrisey by the exact same margin, and Manchin would defeat Mooney 55% to 40%.

The correct choice here seems crystal clear to us, and that is that Manchin should run to keep his Senate seat. There's an excellent chance he could end up facing off against Mooney, the weakest candidate of the three; that would happen if Justice doesn't run or if Justice loses to Mooney in the primary. And even if Justice survives to the general, he'd be bloodied, and would be left trying to unite his base. Plus, running for the Senate, Manchin would enjoy the benefits of incumbency, particularly the argument "Hey, I have the seniority to bring home the bacon." That would not be true if he ran for governor.

So, our guess is that he announces a reelection bid, and sooner rather than later. Of course, Manchin is one of the most inscrutable members of Congress, so take any predictions about him with a grain of salt. Or a lump of coal, if you prefer. (Z)

Note: The last few days have been heavy on news and other commitments. We'll do Venality, Part II on Friday, and then we'll be back on course next week. That said, we would be interested in readers' answers to two questions. First, should be do two bracket entries per week, or four? Second, would it be better to do letters on Saturday and questions and answers on Sunday? We've had both of these suggestions via e-mail, and so while we're not committing to anything, we'd like to know what people think. If you care to weigh in, here is the place.

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