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Pence Will Not Appeal the Ruling Requiring Him to Testify

Special counsel Jack Smith wants to have a word with Mike Pence, so he sent the former VP an invitation (in Latin: subpoena). Pence said: "No, thanks!", but Chief Judge of the D.C. District Court James Boasberg said he thought it would be a good idea for Pence to have that chat. Pence could have asked the D.C. Court of Appeals what it thought, but somewhat surprisingly, yesterday he said he won't fight it and will show up to see what Smith wants from him.

If Pence does talk to Smith, that could be bad news for Donald Trump. Smith undoubtedly wants to know all about the conversations Pence and Trump had about (not) certifying the electoral vote on Jan. 6, 2021. If Pence answers all the questions honestly, he could implicate Trump in multiple crimes. If Smith interviewed him with only male aides and no women in the room, he would be a very credible witness.

There is still a small chance that Trump could block Pence's testimony. He and Pence challenged the subpoena on different grounds. Trump claimed executive privilege. Pence didn't claim that. He said that when acting in his role as President of the Senate, the Constitution's speech and debate clause applied to him. Boasberg said that Pence's claim had some merit, but it only shielded him from answering questions about what happened when he was actually carrying out his duties as President of the Senate. Discussions with Trump before the morning of Jan. 6, and after the count of EVs was completed, are not protected.

Trump could still appeal, even if Pence doesn't, but the courts have not looked with favor on claims of executive privilege when they interfered with criminal cases. If Trump appeals and the appeals court bats him down, Pence will be free to talk to Smith. He will probably be the final witness. Prosecutors generally start at the bottom and work their way up. Pence is about as high as it goes other than sending Trump a subpoena. But Trump would fight like hell against that and if forced to show up, would plead the Fifth Amendment on every question, so Smith will probably stop calling witnesses as soon as he has heard from Pence. Then he could begin writing his report for AG Merrick Garland.

Pence is in an awkward situation now. He has the delusion that he is a viable presidential candidate. As such, anything he can do to disable Trump would be helpful. Telling Smith all about the crimes Trump committed could be helpful, of course. On the other hand, he needs to inherit Trump's base, and selling The Donald up the river might not be the way to get them. So once the last hurdle is removed and he makes an appointment to testify, Pence has to think carefully about what he will tell Smith. It is very unlikely he would lie. Not only will he be under oath and is aware that Smith already knows a lot from other witnesses, but Pence knows God will be hovering just above the room listening intently. Nevertheless, he (Pence, not God) could decide to answer each question truthfully but compactly and not reveal any more information than necessary. Or he could be more expansive and reveal everything he knows. For example, he could answer a question with: "Yes, that is true. And by the way, on Jan. 5 in the evening, Trump called me and said ..." We very much doubt that Smith would cut him off if he began to reveal interesting information that was not strictly the answer to a question. (V)

The Afterparty Was Fun

It is a tradition with amateur theater groups to hold a cast party after the first live performance. So is it with political theater. After being arrested, fingerprinted, photographed, and booked, did Donald Trump go home and have serious meetings with his lawyers about his defense strategy? No. Of course not. He held a big party, as though he had just won the Iowa caucuses. The media were invited to cover it and bright lights were installed so the video quality would be excellent. Usually when someone is indicted, their first reaction is not to create a movie set for the media, but Trump is not your generic defendant. In sports, it is sometimes said that "the best defense is a good offense." Trump seems to think that holds for law and politics as well. We have our doubts about the law part, but for politics, being able to spin being indicted for 34 crimes as a huge win might work, at least for some voters. It's enough spinning that even Rumpelstiltskin would have been impressed.

Details? Get this: There was a parade in the ballroom, with couples walking in it smiling and waving, as if an indictment were like winning the lottery or the Super Bowl or the like. Donald Trump Jr. and Kimberly Guilfoyle took part, as did Eric and Lara Trump. Even Tiffany Trump and her husband, Michael Boulos, showed up. Rep. Matt Gaetz (R-FL) and his new wife, Ginger, took part. Rep. Marjorie Taylor Greene (R-GA) was there alone. Although she called only for a national divorce, her former husband, Perry Greene, took it personally and divorced her in December. If she was looking for a replacement who is Trumpy as hell, she came to the right place as the room was packed with them.

Other attendees included a Who's Who of Trumpworld. Roger Stone, Mike Lindell, Reps. Ronny Jackson (R-TX) and Matt Rosendale (R-MT), among others, showed up for the festivities.

Caroline Wren, who worked for failed candidate Kari Lake in Arizona, said: "It's pretty wild to see these people here celebrating. Who has a baby shower when you can have an arraignment party?" Johnny Cash's "Ring of Fire" was playing when Trump stepped up.

The former president naturally gave a speech listing all his grievances, the scandals he has endured, and the opponents he has faced. He called Manhattan D.A. Alvin Bragg the real criminal and special counsel Jack Smith a lunatic. In case you have forgotten, calling people names can have consequences. In 2 weeks, Trump will be in court because he called writer E. Jean Carroll a liar when she said he raped her. But Trump was undeterred.

Trump also repeatedly attacked Judge Juan Merchan, who presided over the trials of the Trump Organization, Steve Bannon, and Allen Weisselberg. Trump clearly wants him removed from the case, but there the no reason to expect that he will recuse himself or be taken off the case by the chief judge. If he were removed, however, Trump would tout that as a massive victory.

In addition, on his social media website, he called for defunding the police—no, sorry, defunding the FBI. Traditionally Republicans supported law enforcement, but Trump's support is very selective. When they are doing things he likes, he supports them. Otherwise, no.

If this is how Trump celebrated being indicted on minor charges of falsifying bookkeeping records, just imagine what he will do if Fulton County D.A. indicts him for trying to steal an election. He'll have to rent Disney World for a week to top this. Which, you know, he just might, given Disney World's relationship with Gov. Ron DeSantis (R-FL). After all, the enemy of my enemy is my friend. (V)

Will Anything Change Now?

Donald Trump combines three things: norm breaking, convention flouting, and hyperpartisanship. They have all been on display this week. In fact, they have been there from the start. Nevertheless, many observers of politics subscribe to the "politics of revelation theory." They react as if stone was being carved away to reveal a statue, especially with regard to Trump That's really not true. Trump's the same guy he's been for decades, including his ideas on race, immigration, paying debts, and following the law.

Even if Trump hasn't changed, what is interesting is how people react to him. From the Access Hollywood tape, to the Unite the Right rally in Charlottesville, and all the rest, Republican politicians refrain from criticizing him. The media just describes his latest offense against decency and labels it "unprecedented." It is called "norm-breaking." It is never called "republic-breaking." Tuesday's events followed the usual pattern.

At the heart of the story is that partisanship overwhelms everything. Trump's approval ratings in office barely went up or down. Naturally, he was a Republican the whole time. Why should they have budged? Events, policies, and economics don't matter. Only partisanship. Nothing that happened on Tuesday will change that. Americans prefer to defend their teams rather than preserve democracy, although this clearly holds more for Republicans than Democrats.

Could the indictments finally break the pattern? After all, the indictment (and conviction) of high-ranking officials is nothing new. Here is a list of over four dozen federal officials who have been convicted of crimes. They include eight senators, 34 representatives, as well as judges, cabinet officials, and others. At the state level, it is even worse. Here is a list of state officials convicted of corruption. It includes 11 governors (with Illinois leading the list with three specimens), 12 statewide elected officials (AG, SoS, etc.) and 91 state legislators. Many more were indicted but escaped conviction, sometimes on technicalities. While no president has ever been indicted, prior to Trump, the indictment and conviction of senators, representatives, governors, and state officials is actually quite common. None of these have ever broken the chokehold partisanship has on the country and there is no reason to think one more indictment, even of a former president, is going to change that. The beat goes on.

One person who ought to be worried about Trump's indictment is Joe Biden. Once he is out of office, he will become a target. There are 30,321 district attorneys in the U.S. Of them, 54% are women and 76% are white. We couldn't find statistics on how many are Republicans, probably because many of them are nominally nonpartisan. But probably north of 10,000 are (de facto) Republicans. All it takes is one to say: "They indicted one of our people, so I will even the score and indict one of theirs." He or she then makes up some charge (e.g., "failed to defend the border") and we get a new circus. Pretty soon every ex-president gets indicted. This could be an opporunity to break the hold of partisanship on everything, but we are not optimistic and neither is Julia Azari, a professor of political science at Marquette University, who wrote the article linked at the start of this item. (V)

McConnell: " "

The headline above is an exact quote of what Senate Minority Leader Mitch McConnell (R-KY) had to say about Donald Trump's indictment. Nothing. Zero. Crickets. While some Republicans are saying that the judge hates Trump and he is being railroaded, McConnell didn't have anything to say at all. Is it because of his health problems? Well, he has recovered well enough from his concussion that he was able to congratulate Finland on its admission to NATO. The Trump business must have just slipped his mind. It takes a while to fully recover from a concussion.

Al Cross, a professor of journalism at the University of Kentucky, has long followed McConnell's career very closely. When asked about McConnell's silence, he said: "There will be other shoes to drop and I expect Mitch McConnell knows more about Donald Trump's situation than we do. He is one of the most influential and best-informed people in the country and has all kinds of sources of information and he probably sees other things coming." Scott Jennings, a Republican strategist who has advised McConnell in the past and knows him well, said that McConnell wants to stay clear of Trump, no doubt due to what he sees ahead. Trump has attacked McConnell furiously in the past, but McConnell generally just pulls his head inside his shell and waits for the danger to pass, as all good turtles do.

McConnell is concentrating on winning back the Senate. He has said: "We're focusing now to try to get the very most electable candidates nominated in West Virginia, Montana, Ohio and Pennsylvania." What he didn't mention is that in some of those cases, his turtle in the race will be opposed by Trump's. He knows how that turned out in 2022 and is not looking for a repeat performance. Apparently his "Trump strategy" is to simply ignore the former president and stay laser-focused on the top Senate races.

Over in the other chamber, things couldn't be more different. Speaker Kevin McCarthy (R-CA) Tuesday tweeted: "Bragg is attempting to interfere in our democratic process by invoking federal law to bring politicized charges against President Trump, admittedly using federal funds, while at the same time arguing that the peoples' representatives in Congress lack jurisdiction to investigate this farce." Alvin Bragg's office revealed earlier this week that about $5,000 of the Trump investigation was covered by federal funds. Of course, this is a tiny fraction of the overall cost, and the DA only had the money in the first place because Congress appropriated it. It's not like Cyrus Vance and Bragg hopped in their cars and robbed the Federal Reserve Bank of New York. (V)

Stormy Daniels Was in the News Tuesday

With Donald Trump sucking up all the oxygen this week, you might have missed this. Stormy Daniels was in the news Tuesday. And no, it was not related to Trump giving her $130,000 to keep quiet about their 90-second tryst. The U.S. Court of Appeals for the Ninth Circuit in San Francisco ordered her to pay Trump $122,000 in lawyers' fees in another case, not related to his indictment. Bummer because this has otherwise been a good week for her.

Daniels has claimed that in 2011, an unknown man threatened her in a parking garage when she was with her baby daughter. He warned he to "leave Trump alone." He also said: "That's a beautiful little girl. It'd be a shame if something happened to her mom." Trump sent out a tweet calling her a liar and she sued him for defamation. She lost the defamation suit and appealed all the way up to the Supreme Court, which refused to take the case. Now the appeals court has ordered her to pay Trump's legal fees.

The head of one of the law firms that will get the money, Harmeet Dhillon, who recently ran for RNC chair and lost, said: "Congratulations to President Trump on this final attorney fee victory in his favor this morning. Collectively, our firm obtained over $600,000 in attorney fee awards in his favor in the meritless litigation initiated by Stormy Daniels."

Daniels was formerly represented by high-profile lawyer Michael Avenatti. Daniels claims that he filed the suit against her will. He also stole money from her and other clients and was sentenced to 14 years in prison for that and tax fraud. He was flying high while he was representing Daniels and in the news constantly, the kind of publicity any lawyer would die for. But he got too greedy and ruined it for himself and everyone around him.

On Trump's boutique social media site, both Donald Trump Jr. and Eric Trump cheered the court's ruling. (V)

Is Trump Out of the Doghouse with Rupert Murdoch?

For a while, Rupert Murdoch's media properties seemed to be moving toward Ron DeSantis as the country's savior, but now that Donald Trump has been indicted and DeSantis is dropping in the polls, Murdoch may be having some second thoughts. Here is the Fox website and the cover of the New York Post, both from yesterday:

As you can see, top story on the Fox site is the North Carolina state representative who switched parties. Admittedly, that is big news, but does it really overshadow Trump's indictment? Ah, but the next story is about Alvin Bragg—and how some New Yorkers don't like him. Indeed, they were able to interview a couple of the pro-Trump protesters in lower Manhattan and they don't like Bragg, But the anti-Trump protesters were far more numerous. That part is left out.

The New York Post, also owned by Murdoch, at least acknowledges that Trump was indicted, but says Bragg's case falls flat and suggests the charges are "trumped up." Some lawyers have concluded that Bragg's case is weak, but "trumped up"? No. There is absolutely no doubt that Trump committed multiple cases of misdemeanor falsification of business records. The weakness is whether they were a felony offense. Trumped up they are not.

So is Murdoch having second thoughts about Trump now and ending his little love affair with DeSantis? It is a bit early to tell, but he clearly wants a winner, and if DeSantis no longer looks like a winner, Murdoch will not be embarrassed to drop him like a hot potato.

Also noteworthy is that yesterday morning, Fox host Steve Doocy warned Trump about attacking Alvin Bragg's wife. Doocy said: "It is a very bad look to attack the family." Was he trying to help Trump avoid trouble? Did Murdoch put him up to this? We don't know. It's just curious. (V)

Whitmer Signs Bill to Repeal Anti-Abortion Law

In January, the Democrats took over the trifecta in Michigan and now they are starting to use their new power. Yesterday, Gov. Gretchen Whitmer (D-MI) signed a bill repealing the 1931 law that banned abortions. It hadn't been enforced in years due to Roe v. Wade, but since the Dobbs decision, it became functional again. But now it is history. Whitmer called it a zombie law.

Technically, repeal wasn't necessary since the voters approved a constitutional amendment last year enshrining the right to an abortion in the state constitution, but Whitmer wanted to get rid of it anyway so it couldn't pop up later at some unexpected moment (e.g., if the voters ever repealed the amendment). While she was at it, Whitmer also signed a bill repealing another law that made it a crime to sell books or pamphlets describing how to make drugs that cause abortions.

With the victory of Janet Protasiewicz for the Wisconsin Supreme Court, it is expected that an abortion case will come before the that body very soon and it will rule 4-3 that the state's anti-abortion law violates the state Constitution. If that happens, in a four-state bloc in the Upper Midwest (Minnesota, Wisconsin, Michigan, and Illiniois), abortion will be legal post Dobbs. (V)

Jacky Rosen Is Running for Reelection

In 2022, Sen. Catherine Cortez Masto (D-NV) had a down-to-the-wire reelection race against Adam Laxalt in her desert swing state. Democrats were hoping that Sen. Jacky Rosen (D-NV) would run for reelection in 2024, since defending an open seat would be so much harder. Rosen didn't disappoint. Yesterday, she announced her reelection campaign, as Democrats let out a sigh of relief:

Rosen is a loyal Democrat, but somewhat on the moderate side, given the purple nature of her state. She likes to talk about working across the aisle, but also about defending the right to an abortion and the climate crisis. So far, no Republican has announced a run for her seat.

In 2016, Rosen was computer programmer with no political experience when Harry Reid asked her to run for a vacant House seat. She won the primary and the general election. In 2018, she ran against incumbent senator Dean Heller (R) and beat him 50% to 45%. In Nevada, "None of the above" is a valid ballot choice, and it got almost 2%. Three minor candidates got the rest. Unless Laxalt runs again, Rosen is probably the clear favorite. If Laxalt does run, she's probably still the favorite, but only slightly. (V)

RFK Jr. Is Running for President

Marianne Williamson thought that she had the kooks and weirdos lane all to herself. Nope. Yesterday Robert F. Kennedy Jr., the son of Bobby and nephew of Jack filed papers with the FEC to run for president as a Democrat. Kennedy's platform is that vaccines are harmful and Anthony Fauci is a fascist. Geez.

Our conclusion is that RFK Jr. did not inherit Bobby's charisma and political instincts. Also, he is apparently not very smart. Poll after poll has shown that Democrats don't really want Joe Biden to run again, but in the absence of a viable alternative, they are resigned to him. But what if a much younger candidate with Bobby's charisma, Jack's name, and Bernie's politics showed up? Whoa! There would be a real horse race. A lot of young Democrats would sign up to volunteer for him and he'd be a serious threat to Biden. Shades of 2016 with Bernie vs. Hillary? Or maybe shades of 1968, with Gene McCarthy and Bobby Kennedy vs. Hubert Humphrey? But a Kennedy with no charisma who has long spread conspiracy theories about vaccines? He makes Williamson look good.

We are semi-inclined to write Kennedy off as irrelevant as Williamson but for one thing. Suppose he and Williamson want to debate and get some media outlet, most likely Fox News, to sponsor it. The outlet then invites Biden to join and he naturally declines, for fear of giving the other two massive free publicity. So they debate with a cardboard cutout of Biden on stage. Would either of them get enough delegates to hurt Biden? Well, the Democrats use proportional representation in their primaries, so if RFK Jr. got 10% of the votes (from Democrats who think Biden is too old), he would have a few hundred supporters as the Democratic National Convention. They could make a fuss that Fox News would report as "Democrats in disarray, as usual." It could happen. The best case scenario for the Democrats is that RFK Jr. gets a really serious case of COVID while campaigning, becomes a laughingstock, and is sidelined for months. (V)

Is a New Constitutional Convention a Real Possibility?

Art. V of the Constitution offers two ways to amend the document. First, anyone in Congress can propose an amendment. This has been done over 11,000 times. If two-thirds of each chamber support it, it goes to the states for ratification. To be added to the Constitution, three-quarters of the states (i.e., 38 states) have to ratify it. That has become hugely difficult, with the only one amendment ratified in the past 50 years, the 27th Amendment in 1992. It's only one sentence, but you get an A+ if you know what it is about.

The other way to amend the Constitution is to call Constitutional Convention. This requires two-thirds of the states (34) to ask to Congress for one. Currently, Republicans control 28 state legislatures, which is within spitting distance of 34. Many conservatives want to call such a Convention and completely rewrite the Constitution there. Among other clauses would be:

• A ban on abortion
• Elimination of same-sex marriage
• A provision that birth certificates must state the sex of the child and that all laws must honor that designation
• A provision that religious rights prevail over secular law in all cases
• A requirement for the federal government to have a balanced budget
• Elimination of Congress' power to create federal agencies (e.g., FDA, FEC, EPA)
• Changes to citizenship law stating that only babies born on U.S. soil to two citizen parents are citizens
• Term limits for Congress
• Elimination of all restrictions on campaign finances
• The right of states to veto federal laws

And a whole laundry list of other things. Some current Amendments might get repealed. Top targets are the 1st (prohibits Congress from establishing an official religion), 13th (no slavery), the 14th (due process), 16th (income tax), 17th (direct election of senators), and 19th (women's suffrage). Maybe go whole hog while they are at it and have a new one stating that any state wishing to restrict voting to straight white Christian men over 30 who own property (real estate) would be constitutional. The sky's the limit here. However, note that a Convention could only propose amendments. They would still have to be ratified by 38 states.

How close are we to 34? Here is a map showing the current status. The map linked to has a pop-up box for each state showing the status of the call in that state.

Nineteen states have passed a call and six more are working on it. It failed in 15 states, but several of them (Wyoming, Kansas, Ohio, and Kentucky) are Republican-controlled and could try again. Idaho and Montana didn't try, but it could probably pass there. Getting to 34 could be touch-and-go. It would be close.

The U.S. has come close to a Convention a few times. After the Supreme Court required "one person, one vote," which made all legislative districts have the same population, 32 states signed on. In 1969, Iowa became #33, but no state signed up to be #34, which would have triggered the process. Less than a decade later, it happened again, this time over a balanced-budget amendment. This one got 32 states to apply. Of course, once the Convention started, the delegates could just rewrite the Constitution from scratch.

Part of the problem with a convention is that the Constitution doesn't define the rules for it. Would each state get one delegate and one vote or would each state get as many delegates as it has members of Congress (like the electoral college)? Things like that kind of matter. Who picks the delegates? The state legislature? Can the governor veto the choices? Election by congressional district (plus two statewide) or all statewide (like presidential electors)? Under what rules would the convention operate? Could Congress make them? Could the convention throw out these rules? It could be a real mess. Let's be honest, sometimes the Founding Parents did sloppy work.

There is a group actively working to invoke such an Article V convention. In 2016, a group of over 100 state legislators gathered in Williamsburg, VA, to run a mock convention, to get their plans debugged. They even made a video about it:

The video is extremely slick and believable. It was clearly made by very serious professionals. It even has cameo appearances by James Madison and George Washington. The whole thing is done the way the national media cover the Democratic and Republican Conventions, with clips of people making motions, debates, reporters discussing the action, and more. It runs for almost 6 hours, but if you watch the first half an hour, you get a pretty clear idea that these folks are deadly serious. And remember, the attendees are mostly actual state representatives and state senators, not random actors hired for the video.

In principle, blue states could also work on plans for one, too, but there are only 17 Democratic trifectas, so they would need to corral another 17 like-minded states. That is very unlikely under the current map. (V)

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