Trump Legal News: I Am The Law

It's not too often that you get politics mixed in with a song by Anthrax, but then, most politics-writers haven't seen that band in concert on five different occasions. Yesterday, U.S. District Judge Tanya Chutkan handled her first hearing in the Donald Trump 1/6 case, and she left no doubts as to who was in charge.

Note that "I am in charge here" is not the same as "I am unfair." Chutkan had strong words for both sides of the case, holding the feet of Jack Smith and his team to the coals more than once. That said, she also made clear that while she is mindful that Donald Trump is a candidate for political office, that does not mean that justice can be pushed by the wayside. "The fact that he's running a political campaign has to yield to the orderly administration of justice," she remarked.

The single biggest problem before Chutkan, at the moment, is Trump's tendency to run his mouth (or, in the case of social media, his fingers). On one hand, judges don't particularly like to incarcerate defendants prematurely. That's particularly true when doing so could, you know, lead to rioting in the streets. On the other hand, Chutkan needs to make sure that Trump remains reined in, and that he does not try to use his sizable platform to influence jurors/witnesses or to make public information that should stay private.

The Judge navigated this little problem rather deftly. We don't know if she's dealt with this issue before, or if she learned from someone else who's dealt with it, or if she just came up with the solution for this particular case. However, what she did was warn Trump's counsel (he wasn't present) that if he doesn't keep his lip zipped, it will force her to speed up the timeline for the trial. Her exact words:

Even arguably ambiguous statements from parties or their counsel, if they can be reasonably interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process. The more a party makes inflammatory statements about this case which could taint the jury pool... the greater the urgency will be that we proceed to trial quickly.

It is entirely possible that if the penalty was imprisonment, Trump might keep flapping his gums, daring the Judge to do something about it. But speeding up the trial is something he might fear even more than he fears a trip to the hoosegow. Further, punishing him with a tighter timeline would make it much harder for him to play the martyr card. In short, it was a pretty masterful move from Chutkan, and if anything is going to get Trump to act like a grown-up, this is surely it.

Otherwise, the Judge and the lawyers hammered out the terms by which Trump and his team will be allowed to review the evidence to be used against the president. The government is ready to start turning over documents immediately, and will begin doing so in short order. The total is a staggering 11.6 million pages. Do you know how many bathrooms it takes to store that many?

Anyhow, a tone has been set, and Team Trump should have a very clear understanding of who is calling the shots here (Hint: not the former president). The next hearing is scheduled for Aug. 28; at that time Chutkan might well set a trial date. (Z)

(Hunter) Biden Legal News: Strange Days

"May you live in interesting times," goes the old Chinese "curse." Well, in what is surely a reflection of the current state of American politics, the United States now has three active special counsels for the first time in its history (that is true even if including other, essentially identical, titles like "special prosecutor").

The first special counsel, by date of appointment, is Trump-truth-bringer Jack Smith. The second special counsel is Robert Hur, who is looking into classified documents found in Joe Biden's office and residence. Hur has been pretty quiet since his appointment, so who knows what he's up to, or how much longer he'll be on the job. The third special counsel, as of yesterday, is David Weiss.

Weiss was already the U.S. Attorney for Delaware, and in that capacity, was responsible for the ongoing investigation into Hunter Biden. In theory, the Biden investigation was nearing its end, right up until the plea bargain negotiated between Team Weiss and Team Biden fell apart under scrutiny from Judge Maryellen Noreika. Subsequent negotiations over a new plea deal fell apart, and so Weiss requested, and received, appointment as special counsel from Attorney General Merrick Garland. Weiss was already acting as a de facto special counsel; this just made it official.

At the moment, it is expected that the Biden case is going to go to trial. This is, of course, very unhappy news for Joe Biden. On a personal level, he obviously does not want to see his child go through a criminal trial, especially since it is well within the realm of possibility that "Hunter Smith" would not receive the same treatment. On a political level, Republicans are going to wield this as a cudgel, as part of their ongoing campaign to paint the Biden administration and family as hopelessly corrupt.

Indeed, on that point, the usual GOP suspects were all over Twitter Friday afternoon, complaining about the news. This tweet, sent by Rep. Steve Scalise (R-LA) is representative:

Don't be fooled. Garland appointing Weiss as a sham special counsel on Hunter is a way to block info from Congress while claiming they're investigating.

Weiss approved the sweetheart plea deal. This is an even better deal for Hunter since charges may never come.

Outrageous.

Readers can reach their own conclusions, but for our part, we'll point out two things. First, Weiss was appointed as U.S. Attorney by Donald Trump. So, Trump picked badly, or Weiss has become hopelessly corrupt in the span of about 3 years, or the claims of bias are nonsense. Second, you might ask yourself: What, exactly, do Republicans want? When it was "plea deal," they were screaming bloody murder. Now that it's "continue the investigation, and conduct a criminal trial," they are screaming bloody murder. It's almost like they are acting in bad faith, and are going to complain about any course of action, regardless of what it is.

Needless to say, the Republicans' overall goal, beyond their usual goal of tearing down a president from the other party (which, to be clear, is a long-honored tradition on both sides of the aisle), is to draw an equivalence between the Bidens and Donald Trump, and thus to lessen the negative impact of Trump's ongoing legal woes. This will be a very tall hill to climb, since Hunter Biden is not running for president and Donald Trump is. Further, Biden's (alleged) crimes are rather less serious than Trump's (alleged) crimes. There is no world in which paying your taxes late and owning a gun you're not supposed to have is worse than grossly mishandling intelligence and/or trying to overturn an election result. Undoubtedly, the Republican base will buy into the notion that Hunter Biden is a modern-day Al Capone, with Joe as his caporegime, while Donald Trump is a modern-day Martin Luther King Jr. But those people are already voting GOP; the challenge is persuading some additional number of voters that the Bidens are more dangerous and corrupt than the Trumps.

Meanwhile, if Hunter Biden goes on trial, is convicted, and is handed a prison sentence, then Joe Biden is going to have a tough call to make. If it's 6 months in a minimum security facility, that's one thing. But if it's say, 3-5 years, particularly in a tougher prison, then the President is going to be extremely tempted to use the pardon power, politics be damned. It is likely that Hunter himself, following his brother's example, will say "Please wait until at least January 21, 2025." But will Joe listen? We may soon find out. (Z)

Saturday Q&A

The legal problems of one Donald John Trump continue to be of great interest.

Current Events

M.M. in San Diego, CA, asks: It appears Jack Smith is about to indict Sidney Powell, who has been described as a "conspiracy-theory-obsessed lawyer." My question: Does being conspiracy-theory-obsessed qualify one to use an insanity defense?

(V) & (Z) answer: In and of itself, no.

When (Z) took abnormal psychology as an undergrad, the professor noted that 80% of people qualify for diagnosis of at least one psychological disorder under the guidelines laid out in DSM-IV (it was a long time ago; DSM-IV has now been superseded by DSM-V). That 80% applies to the general population; we tend to assume that the figure is higher for people who end up on the wrong end of an indictment, since such folks tend not to be the most well-adjusted people in the world.

Ipso facto, suffering from one or more underlying psychological conditions is not enough to escape prosecution for a crime. If it was, just about everyone would get off that way. To make an insanity defense work, it must generally be demonstrated that the defendant was so mentally compromised, they were not capable of understanding they were doing something illegal.

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D.D. in Hollywood, FL, asks: Considering Donald Trump's indictment, what is the difference between ignorance of the law is no defense, and the prosecutor must prove intent?

(V) & (Z) answer: Both circumstances start with the understanding that the alleged action took place. However, the former is an argument that the defendant was not bound by the law because he didn't know about it. This almost never flies. The latter is an argument that the fact pattern of the act did not fit the parameters necessary to be considered a crime.

Let's use killing a person as an example, because it's the usual one used here. If you kill someone, and then tell the judge that you had no idea that killing people was against the law, you're going to prison. Ignorance is no excuse; if it were, everyone would say they had no idea you can't kill people, steal, cheat on your taxes, take classified information home with you, etc.

On the other hand, if you kill someone and say that you did it because you believed they were about to shoot you, then that's very different than if you did it because you believed they had enjoyed sexual relations with your romantic partner. This is a question of intent, and there are many crimes where intent is a part of the question before a judge or jury. Sometimes, intent makes the difference between "guilty" and "not guilty." In other cases, intent merely dictates the level of the offense (e.g., manslaughter vs. murder).

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R.M. in Lincoln City, OR, asks: I'm trying to understand what a search warrant on Twitter might accomplish. Other than someone's Twitter posts, which anyone can see, what information would Twitter have that could be useful to a prosecutor?

(V) & (Z) answer: There are two basic possibilities. The first is that if Donald Trump's tweets are going to be entered into evidence, the chain of custody has to be as clean as is possible. Acquiring copies of his messages sent from his account is better than relying on copies published to the Internet, which could theoretically be altered.

The second is that there is some information that is not public but that is of use. For example, Twitter allows the sending and receiving of direct messages, which are not public. So, Trump might have sent or received messages that are not viewable without a login and/or a warrant. Or, Team Smith might want to examine something like timestamps (or other metadata), so as to establish as clear a timeline for Trump's actions on that day as is possible.

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J.R. in Auburn, CA, asks: Is there anything to stop a billionaire defendant (e.g., TFG) from going through a sequence of filing an objection in court, appealing an adverse court ruling to an appellate court, and then appealing an adverse appellate court ruling to the Supreme Court, ad infinitum? If not, the legal system is fatally flawed.

(V) & (Z) answer: Yes, because that is not how a trial works. If every overruled objection was instantly appealable, then every defendant (or, at least, every defendant with money) would raise endless objections and appeal them ad infinitum.

And so, the way it works—and has worked, for many centuries—is that any decision by the judge is appealable, once the trial is over. So, in other words, with only a few rare exceptions, any issues the defense wants to argue about are handled all at once. In fact, that's pretty much what an appeal is—"let's discuss the concerns we have about the now-completed trial." Quite often, counsel will raise an objection in the initial trial that they know will be overruled, just to preserve their right to raise the matter on appeal.

In the interest of completeness, we should also note that while this is how things have worked, in general, since well before there was a United States, there is one thing that's changed since about 1900 or so. It used to be that when raising an objection, a lawyer specifically had to note that they might appeal the particular question. In this case, the term "exception" was used rather than "objection," and it was a signal that everyone needed to carefully document whatever came next. However, the emergence of near-perfect transcripts eliminated the need for special care in note-taking, and so for the last century or so, all objections are considered to be exceptions, and thus can be raised in an appeal.

Given how the system works, it is entirely possible that Trump's lawyers could raise 500 objections, lose their trial, and then make 500 arguments for setting aside the verdict on appeal. Certainly, this kind of ham-fisted approach is something we've seen a few times from Team Trump. It's probably not the wisest approach, however, as appeals courts tend to look askance at "everything but the kitchen sink" appeals. They tend to presume that if a convicted defendant had one or two or three legitimate arguments, then the defendant would focus on making those to the best of his and his counsel's ability. And if that's not what's happening, it implies that the defendant doesn't have any particularly legitimate arguments, and is just trying a gaggle of Hail Mary passes.

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D.P. from Pittsburgh, PA, asks: I'm trying to find out more about what would happen if Trump appeals after a January 6th conviction. Would it go to the federal Court of Appeals? Could it go to the Supreme Court? Could his appeal be denied? If so, could all of this still happen before the election? Will he remain free on appeal or could he be made to go to prison?

(V) & (Z) answer: First, note that an appeal is not "let's try this whole case over again." It is, as we discuss in the previous answer, "let's discuss certain specific issues we had with the now-concluded criminal trial." The defense first has to convince the appeals court that there are one or more issues worthy of their review and then, if granted a hearing, has to actually convince the appeals court that a reversible error was made. This is a very, very high bar to clear, but if any of the judges above the district court are persuaded, then they can either set aside the original verdict entirely and dismiss the case with prejudice (in other words, permanently), or they can set aside the original verdict and order a new trial.

As to the appeals potentially available to Trump, he could possibly get up to three of them: three-judge panel from the Appeals Court, en banc hearing from the Appeals Court, and Supreme Court. However, the higher the level, the more likely the court is to say "no, we're not hearing this."

As to timeline, it's very hard to say for certain, but there's an obvious need for quick action here, given Trump's political career. So, the odds are pretty good that any and all appeals would be heard before the election, assuming that the original trials commence on the timeline currently indicated.

And as to Trump's incarceration status while appealing, we think that is pretty much unknowable. For a normal defendant, in order to be freed during appeal, they have to persuade the court that they are not going to commit additional crimes, that they are not a flight risk, and that they have a strong possibility of prevailing on appeal. In Trump's case, he might be given extra leeway here, given the argument that he needs to be out on the campaign trail.

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J.R. in Harrogate, England, UK, asks: I understand that the federal courts in the U.S. do not allow trials to be televised. Given that there are going to be (at least) two federal trials of the beloved former president, is there any chance at all that this rule can somehow be set aside?

Given the stark divisions in our nation, and given that people are going to consume news about the trial from their font of choice (OAN, CNN, Fox News, etc.), it seems that limiting the trial to what the news media reports is just going to exacerbate the stark divisions in the country.

It seems blindingly sensical to me that this trial should be televised unedited and in real time to the world.

I am frankly quite worried that if the trial isn't televised, the media is going to exacerbate the divisions within the country by spinning the facts to fit their polictical views. If it is televised, people will see the evidence for themselves and perhaps be swayed away from entrenched partisan perspectives.

(V) & (Z) answer: To start, here are the six approved uses of electronic recording devices in a federal courtroom:

1. for the presentation of evidence;
2. for the perpetuation of the record of the proceedings;
3. for security purposes;
4. for other purposes of judicial administration;
5. for the photographing, recording, or broadcasting of appellate arguments; or
6. in accordance with pilot programs approved by the Judicial Conference

If one of the judges overseeing a Trump case wanted to allow cameras in the courtroom, they would have three basic options. The first would be to request special dispensation from the Judicial Conference of the United States. The second would be to interpret the existing guidelines as allowing it. The third would be to observe that the trial is historical and unprecedented in nature, that cameras can be allowed, and too bad if people are upset. While a judge could theoretically be sanctioned for such behavior (e.g., a suspension), they are unlikely to be impeached and removed from the bench for it.

In short, cameras are certainly possible, given the special circumstances. What the judges will do, we do not know.

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K.K. in Los Angeles, CA, asks: Where would you rank Justice Clarence Thomas among the most unethical justices in U.S. Supreme Court history?

(V) & (Z) answer: When it comes to accepting gifts and favors he should not be accepting, and being buddy-buddy with politicians and others he should not be buddy-buddy with, Thomas has left all of his colleagues and predecessors in the dust, including the previous king of this kind of shady SCOTUS behavior, namely Lyndon B. Johnson's good buddy/lackey Abe Fortas.

That said, Chief Justice Roger Taney conspired with President James Buchanan to "resolve" the slavery question in favor of slave owners like... Roger Taney. The Dred Scott decision was corrupt in the extreme, and was almost certainly the grossest example of judicial overreach and "legislating from the bench" in U.S. history. While the Civil War probably would have happened anyhow, the decision inflamed tensions, sped up the crumbling of the union, and eliminated whatever small chance there was of avoiding armed conflict.

For these reasons, we still have Taney over Thomas on our "most corrupt SCOTUS justices" list.

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C.H. in Atlanta, GA, asks: Your item on Clarence Thomas got me thinking and I came up with two questions that I hoped you might be able to provide some insight on.

The first is how shocked I am at how suddenly surprising it is that Clarence Thomas has been cultivating lucrative relationships. Since he was confirmed to the bench in 1991, I don't recall reading anything showing this level of scrutiny into his financial (mis)doings. Why is it just now coming out that he's been on the take? It seems unlikely that he suddenly developed a flexible attitude towards ethics.

The second question was based on your statement, "All he has to do in return is vote with the other conservatives on the Supreme Court." Love him or hate him, but he has to be one of the most consistent right-wing votes on SCOTUS (basically following Scalia's or Alito's lead). I know that, of the 70-80 cases the court hears each year, only few really hit on the major social issues that draw large-scale attention. Has there been any evidence that he ruled in an unexpected way in some less-sensational cases to the benefit of his benefactors?

(V) & (Z) answer: When it comes to finding the skeletons in a person's closet, you have to decide first to put that person under the microscope, and then you have to figure out exactly where to look. Undoubtedly, there have been folks who looked into Thomas's dealings previously, but most media outlets and other organizations are only going to invest so much money before deciding to move on. ProPublica got kind of lucky in striking gold with Harlan Crow, and even then only managed to uncover the truth with some very clever research tricks (looking at flight plans, interviewing staff at resorts, etc.). Once the first breakthrough was achieved, then there were lots of other strings they could pull to see what turned up.

As to Thomas' voting pattern, there's no clear example of his vote having been "bought," per se. But he's as reliable a conservative vote as one could hope for, assuming that one is hoping for conservative votes. And allowing him to live the life of a billionaire on a $200,000 salary almost certainly has two effects: (1) it makes Thomas think twice about crossing the aisle and voting with the liberals, and (2) it makes Thomas very reluctant to retire. After all, once he says good-bye to the robe, he probably also says good-bye to the luxury vacations. So, the billionaires are most certainly getting something for their money, especially if they prevent Thomas from retiring during a Democratic administration.

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M.M. in Charlottesville, VA, asks: Now that Issue 1 is resolved, and with perhaps more passion than the polls expected, the attention in the Buckeye State necessarily turns to November's abortion amendment. I'm wondering, though, if perhaps the blue team moved prematurely on this. On the one hand, enshrining an amendment as soon as possible is essential to protecting the rights of Ohio women and will certainly save lives. But on the other hand, I'm sure Sen. Sherrod Brown (D-OH) and swing-district House Democrats would have appreciated the wind of that amendment at their backs in 2024. New York, for example, felt the red tide in 2022 when abortion was not on the ballot. Might this year's November election win a battle at the cost of next year's war? Are there other off-year elections in Ohio that might benefit Democrats from this timing?

(V) & (Z) answer: The positions being filled by elections this year are all municipal positions, like boards of supervisors, and all of them combined don't have the might of a single U.S. Senate seat.

That said, while the Democratic Party might prefer to keep this card in their back pocket until November of next year, it's not Democratic Party functionaries who are driving things here, it's pro-choice activists. And the pro-choice activists are nowhere near as concerned with the success of the Democratic Party as they are with the health and well-being of Ohio women.

It is also the case that Ohio is a state run entirely by Republicans who have already shown they are willing to do sleazy and undemocratic things in order to achieve their political ends. Giving them another 18 months to come up with some chicanery is a risky thing to do, if a person wants abortion to remain legal in Ohio.

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K.G. in Phoenix, AZ, asks: With regards to the Biden-Burisma conspiracy theory, one conservative talking point is that Joe Biden's actions to force out former Prosecutor General of Ukraine Viktor Shokin were "unprecedented," in the sense that the U.S. doesn't normally exert pressure on foreign governments to sack officials at Shokin's level.

At first blush, I assumed this must not be true, and that it is a common diplomatic tactic. However, after doing some extensive googling, I can't actually find any clear cut examples other than Shokin. There are certainly examples of the U.S. putting pressure on foreign heads of state to step down, but no one at Shokin's level. Is this happening regularly but it's such a dog-bites-man story that the news media doesn't cover it? Is my google-fu not strong enough? Or do the conservatives have a point here?

(V) & (Z) answer: This is a tricky question to answer, because the Shokin situation is a little unusual. Recall that Russia annexed Crimea, which thus created an issue of international concern. As part of that, the international community, particularly the movers and shakers of the E.U., determined that Shokin was a big part of the problem rather than a part of the solution. Eventually, the Obama administration was persuaded that action needed to be taken, and Biden was dispatched as an emissary on the part of both the White House and the international community.

That kind of situation, and that kind of pressure, do not happen very often. However, the United States most certainly does flex its muscles in a lesser manner when it comes to foreign officials it finds problematic. Several cabinet-level departments maintain lists of foreign actors, both public- and private-sector, that they find objectionable. For example, the Treasury Department's list runs over 2,000 pages; the "Specially Designated Nationals" on the list are not allowed to conduct business with Americans. The State Department has a similar list, and so too does the Department of Commerce.

There are also more specialized lists. One that aligns pretty closely with the Shokin situation is known as the Engel List, because it was created at the instigation of then-Chair of the House Foreign Affairs Committee Eliot Engel. It contains the names of current and former public officials in Central America who have been deemed corrupt by the U.S. government, are not allowed to travel to the U.S. or to conduct business with Americans. The Biden administration issued an extensive update last year, although the Trump administration also added names to the list sometimes, such as that of Guatemalan infrastructure minister Alejandro Sinibaldi.

These various lists may not be quite as aggressive as sending the sitting VP to demand an official's resignation. But the implicit message is clear: In the eyes of the U.S., this person needs to go.

Politics

D.K. in Iowa City, IA, asks: Will Robert F. Kennedy Jr. be able to force Joe Biden to have a debate before the election? What are the rules or requirements?

(V) & (Z) answer: If, by "force," you mean "compel Biden to debate against his wishes," Kennedy has no means of doing that. If such means did exist, half of the people in America would be instigating a "debate" with the sitting president, for various reasons. The DNC might nominally be able to compel Biden to debate, if it so desired, but the DNC works for Biden. That's always the case with the DNC (or RNC) and the sitting president.

If by "force," you mean "put pressure on Biden to debate, so that Biden decides he has no choice but to accede," we would say RFK Jr.'s chances here are very slim. Biden is a frontrunner by a mile, and there's no need to risk that, particularly given the possibility that he has one of his patented verbal gaffes. Further, if RFK Jr. was a serious Democrat with serious ideas, then a discussion between him and Biden might be illuminating in some ways. For example, imagine what you might learn from a friendly debate/discussion between Biden and Sen. Bernie Sanders (I-VT). But RFK Jr. is not a serious Democrat with serious ideas, he's a crackpot who is unconstrained by either reality or by evidence. Trying to "debate" someone like that is a fool's errand; they'll just Gish gallop around the stage all night long.

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B.C. in Walpole, ME, asks: Enquiring minds must know: Why does Gov. Ron DeSantis (R-FL) wear a fleece vest in August? The rest of us, including all of the voters, sweat, especially during the hottest summer ever recorded. But every time I see video of DeSantis, he's wearing a fleece vest. Does he need the insulation? Is he cold-blooded? Has his body been taken over by an alien species from a moon of Neptune?

(V) & (Z) answer: There are definitely people out there who are almost always cold, just as there are people out there who are almost always hot. (Z) knows, because he is among the latter. And the fact is that a top-tier presidential candidate is not often subjected to the elements, as they spend most of their time in air-conditioned rooms and vehicles.

The other answer we've got for you is that wearing the fleece is pretty much the only way that DeSantis can stay in somewhat formal/business dress, and yet still show off his logo:

Given that he's still trying to introduce himself to the American people, there's some value to this. Not everyone will necessarily know what his name is.

The other guy who conspicuously wears fleece vests a lot is Gov. Glenn Youngkin (R-VA):

Maybe DeSantis got the idea from his fellow coastal Southern governor. Or maybe they are prone to getting the chills. Or maybe they are both aliens from the planet Antede III.

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M.E. in Greenbelt, MD, asks: Having contributed to Tim Ryan's Senate campaign, I'm still getting e-mails from him. Recently he launched a centrist group called We The People. While trying to find unity in this era of extreme partisanship and division is laudable, it seems a fool's errand. I don't see what he's really trying to accomplish here, other than keep his name in the news and maybe gather some favors to call in later.

Are you aware of this new group? Do you have any further insight (or speculation) into why Ryan is doing this?

(V) & (Z) answer: Some members of Congress do get into activism when their career is over; such is the case with Russ Feingold, for example, or Jim DeMint. And some people in the world of politics apparently really do believe that there exists a magical third way in which vast swathes of the American public can be brought together for a rousing chorus of kumbayah, in order to stick it to the "extremists" in both parties.

That said, while we hadn't heard of We the People, our guess is that Ryan thinks he's too young, at 50 years of age, to be done with politics, and that he's keeping a hand in the game so that he might make an eventual return to the arena. The Senate seems unlikely, since he already lost one of those seats, and the other is occupied by a Democrat running for reelection. And the House is unlikely because members don't like to return their with their tails between their legs after failing to earn a promotion. But, given the obvious un-Democratic overreach by Ohio Republicans, statewide office seems plausible. For what it is worth, Gov. Mike DeWine (R-OH) is term-limited, and so the seat will be open in the 2026 election.

Civics

M.M. and M.M. in Potomac, MD, asks: Why do (all but one of the) U.S. states have senates? At least at the federal level you can point to equal representation for the constituent states in one chamber, whatever the historical justifications at the time of the founding actually were.

(V) & (Z) answer: The practical answer is that when you're trying to come up with a system of government, it's easier to copy that which already exists, as opposed to trying to reinvent the wheel. And so, most state governments were a copy of the British system, or the U.S. constitutional system, or both.

The philosophical answer is that, as with the U.S. Senate, state senators invariably represent a larger number of people than do state representatives. They also often serve longer terms. Whether it's one or both things, this theoretically makes them less subject to the "passions" of the moment, and more deliberative. In turn, and in view of this, state Senates tend to be granted certain responsibilities not given over to state Houses, such as the power to approve political appointees.

As an aside, all 50 states have a state Senate. Nebraska used to have a bicameral legislature, but during the depression, the votes eliminated the state House to save money. The members of the current Nebraska legislature are referred to as "senators."

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R.H. in Santa Ana, CA, asks: If Sen. Dianne Feinstein (D-CA) dies before the election, Gov. Gavin Newsom (D-CA) will certainly appoint a Democrat to replace her. But what happens to her seat on the Judiciary Committee? Will it require 60 votes to replace her there?

If the tables were turned, there is no doubt that Senate Minority Leader Mitch McConnell (R-KY) would change the rules if necessary to fill the seat with a Republican. Will Senate Majority Leader Chuck Schumer (D-NY) have to change the rules, or will Joe Biden get no more Article III judges until at least January 2025?

(V) & (Z) answer: When Senate Republicans rejected the idea of allowing a temporary replacement for Feinstein, they had a fair bit of cover, because that would be an extraordinary arrangement. If Senate Republicans refused to allow the replacement of a senator who had died, however, they would be striking at the very foundations of Senate operations, and would have zero excuse for doing so. Not only would it look bad, but it would invite Senate Democrats to block selected (or maybe all) committee assignments the next time the Republicans were in the majority.

Nothing is impossible with McConnell, of course. If he did try it, then the question would be whether Sen. Joe Manchin (D?-WV) or Sen. Kyrsten Sinema (I-AZ) would be willing to vote to change the rules, and to exempt organizing resolutions from being filibustered. It would only take one of the two, and they both claim to be institutionalists, so theoretically Schumer should be able to get the single vote he needs. But there's no way to be sure until it happens.

History

R.M.S. in Stamford, CT, asks: Has there ever been a U.S. president with a more fanatical fan base than Donald Trump? Franklin D. Roosevelt seemed to have had an aggressive fan base, but I couldn't have pictured his supporters attacking government buildings and members of his party sweeping it under the rug.

(V) & (Z) answer: FDR's supporters loved him in a way that Donald Trump longs for, but will never experience. We may have mentioned the somewhat famous story of a man who camped out along the road for Roosevelt's funeral procession, and was in tears the whole time. A reporter asked him: "Did you know the president?" "No," said the man. "But I felt that he knew me."

FDR would never have asked his supporters to stage a coup, so we are necessarily talking apples and oranges when we talk about the sort of support that he, or John F. Kennedy, or Theodore Roosevelt, or Ronald Reagan enjoyed, as compared to the sort of support that Trump has. That said, if there is a president who could have incited a violent riot among his supporters, it is surely Andrew Jackson. Old Hickory was too much a patriot to entertain the idea of overthrowing the government, or overturning an election. But he was certainly OK with violence, and his supporters were quite fanatical. So, for example, if Jackson had wanted a lynch mob to string up VP John C. Calhoun, that was probably doable.

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R.M. in Bryan, TX, asks: I've recently enjoyed reading a historical novel by Earl Murray titled Flaming Sky. The main character is a journalist who takes part in General George Armstrong Custer's last campaign. In reading the characterization of Custer, I'm much reminded of Donald Trump (or Biff from Back to the Future films). How much validity is there to this characterization? What are the similarities and differences between the two men?

(V) & (Z) answer: Neither of us have read the book, because neither of us, including the historian, much cares for historical fiction. That said, if the book does indeed identify its main character as General Custer, that's a little bit of a bad sign, because his proper rank at the time of Little Bighorn was lieutenant colonel (his regular army rank; he was only a general officer in the much larger Civil War-era volunteer army).

Certainly, there are similarities between the two men. Both were academic underachievers, vain, spent vast amounts of time on their hair, loved any and all publicity, and had acrimonious relationships with many of their subordinates. As to key differences, Custer was much smarter, much poorer, had a good relationship with his (one) wife, and actually responded to the call of duty when his country needed him in time of war.

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J.M. in Silver Spring, MD, asks: I read your answer to the question about greatest traitors in American history and you wrote that Aaron Burr is near the top of the list. I was unaware of any Burr treason, so I read the Wikipedia piece on him. Yeah, not the greatest source but it definitely left me with the impression that while he did some shady things (planning a freebooter invasion of Mexico), "treason" was mostly Jefferson's desire to bend the U.S. justice system to his will to punish a political rival and Burr never had any designs to do any harm to the U.S., per-se. Further, multiple grand juries laughed the (possibly forged) evidence out-of-court.

I certainly don't place more credence in Wikipedia than in a history professor but can the resident historian shed some light on why you feel Burr is one of the three greatest traitors in American history and what things Wikipedia got terribly wrong here?

(V) & (Z) answer: Well, at very least, Burr killed a major political rival in cold blood. In addition, he precipitated a constitutional crisis by refusing to disclaim the presidency, even though he knew full well he was the VP candidate.

But it's true that much of the argument against Burr comes down to the Burr conspiracy. Hard evidence is in short supply because it was a very long time ago, and because people involved in a conspiracy generally work hard to cover their tracks. Was Burr up to no good, or was he just an innocent victim of the early-19th century version of the Deep State? Our assessment last week was based on our view that there is way too much smoke there for there to be zero fire. Just about everyone who's looked closely at the matter has reached the same conclusion.

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M.L. in West Hartford, CT, asks: As a non-believer who was raised Catholic, I was surprised to see you refer to Catholicism as a Christian sect that is "strongly associated with a critical-thinking approach to faith." Historically, the Catholic Church has been so strongly opposed to free thinking that it practically invented the word "dogma." Even in the 21st Century, the only reason that Catholics—at least American Catholics—do not follow Church doctrine as closely as they did in the past is that they refuse to be bound by some of the Church's most outdated teachings, such as that the use of birth control is a sin. The Church itself seems to me to be as dogmatic as ever; it's the laity who have changed.

If you might be willing to explain your comment regarding the Church, I would be most interested to read it.

(V) & (Z) answer: First, in any religious tradition that is millennia old, and that has included literally billions of adherents, there are going to be lots of differences in how various people approach the religion. Second, "critical" does not necessarily mean "oppositional," it just means "analytical."

The Catholic church has a long history of apologetics, which means using analytical tools to verify and justify the various tenets of the religion. Probably the most famous of them is Augustine of Hippo. The church also has a long history of people who challenged and refined elements of church doctrine. Some of those thinkers, like Origen Adamantius, saw their unorthodox ideas become, well, orthodox. Others, like Martin Luther, were tossed out of the church.

The bottom line is that there are dozens and dozens of notable Catholic theologians, notable schools of thought, and notable centers of study and learning, up through the present day. Heck, the pope right before the current one spent his career as a Catholic intellectual. All of this being the case, the Church clearly has a strong analytical tradition, even if strict adherence to dogma has been the major theme for the last 500 years or so.

Gallimaufry

J.W.H. in Somerville, NJ, asks: I periodically see comments about NPR from those writing in to the site. Often, it's complaints about their bias and penchant for focusing on liberal topics. Other times, it's about the quality of their programming.

For example, A.C. in Monterey included this in a comment in last week's mailbag, about the loss of newspapers (emphasis added by me):

One reason I avoid news is that almost every website I have ever looked at for news other than this one is either copy-and-pasted from press releases by an involved party, or is missing any kind of meaningful analysis, (NPR for example)..."

I've listened to NPR (primarily through WNYC, or sometimes the NJ affiliates) since the 70's, and have always appreciated the fact that they do more in-depth items with some meaningful analysis vs. the average commercial broadcast radio news. I often find their pieces making me think about something I hadn't really considered before. Is there something I'm missing here?

(V) & (Z) answer: To start, keep in mind that there's a lot of NPR programming, some of it national (e.g., This American Life, All Things Considered, Morning Edition), much of it local. So, the experience of someone in New York City may be very different from the experience of someone in Peoria, IL. Heck, the experience of two New York City listeners might be different, since one of them might be listening to WNYC and one of them might be listening to WFUV.

Beyond that, some people find NPR off-putting because of their generally liberal slant, or because much of their programming comes off as kind of pretentious or smug. Some of their music programming, in particular, is a little snobbish.

As to the analysis, some of their politics-themed programming is in-depth and analytical, but some of it definitely isn't. The website also tends to offer only surface-level coverage. And perhaps most importantly, newspapers tend to focus on news, with feature-type reporting as the icing on the cake. NPR seems to prioritize feature reporting, with news getting second billing. There's certainly value in that, as it's pretty much the only way you're going to get 20 minutes about homeless people in Detroit, or languages nearing extinction in Bhutan, or the life and times of the Bolshoi Ballet's first lesbian dancer. However, we can see how some people would find that less than analytical.

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M.R. in San Diego, CA, asks: On July 31, you wrote: "Carter was generally perceived as a decent person whom voters across the spectrum at least respected," but on August 1, you wrote: "We can think of roughly one president in the last 50 years who fits the profile. Yes, it's that peanut-shilling sleazeball Jimmy Carter."

I fully expected someone else to pose the question and get an answer on what I'm missing about Jimmy Carter being a "sleazeball," but since nobody did, maybe I'm just not understanding and you can break it down because I would have selected Nixon or Trump.

(V) & (Z) answer: Here's the full paragraph from July 31:

If a president is going to sell access these days, he or she would have to check most or all of these boxes: (1) low on ethics, (2) willing to do nearly anything for money, (3) in possession of a complex web of businesses/financial instruments that make it plausible to hide a few million here and a few million there, and (4) persuaded that he or she is invulnerable to legal prosecution. We can think of roughly one president in the last 50 years who fits the profile. Yes, it's that peanut-shilling sleazeball Jimmy Carter.

That could only possibly describe one person, and it's Donald Trump. The line about Carter was a joke, since among presidents, he is the furthest removed from that description.

Reader Question of the Week

Here is the question we put before readers last week:

D.S. in Palo Alto, CA, asks: What it is about Donald Trump that so enamors him to the people who love him?

We got a LOT of answers to this one. Here are some of those:

K.R. in Austin, TX: My friend is a Trump supporter. I do not believe my friend is racist or hateful against immigrants or any other group. I've tried to figure out why he likes Trump so much.

My friend's life has not gone how he expected it to go. He's middle aged, unmarried, has a low-paying job despite going to college, and he generally feels he has not done better in life than the previous generation. So, the politicians who've run things for the last 30 years get some of the blame from him.

That and more feeds into the narrative he tells me. The current crop of politicians is corrupt and their greed and selfishness is allegedly to blame for my friend's issues.

Donald Trump is a very successful businessman sees the problems and is smart enough to know how to fix them. Since he is already rich and not mired in the swamp, he can think differently and push for an end to corruption. He is doing this out of the goodness of his heart. He walked away from a successful career to dedicate the rest of his life to public service in fighting against the swamp and make government work for the people again like it did when we were kids. Trump is the hero fighting the whole system and coming out victorious.

I believe that one other reason my friend loves Trump is the idea that a bully is bad unless he's on your side.

This friend and I both cheered for the Detroit Pistons as kids. There was a player who played dirty and was hated throughout the league named Bill Laimbeer. The rest of that team was also generally hated for being too rough. However, in Detroit, the team was loved and admired for being tough, working hard, and not taking crap from anyone. They were celebrated as the "Bad Boys." There's something exhilarating about feeling that everyone is against you, but you have a fighter on your side who proves all the stuck-up elites like the Los Angeles Lakers and Boston Celtics wrong.

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B.H. in Southborough, MA: The people who support Donald Trump have almost universally been screwed by the system, or perceive that they have been. They are poor, or at best middle-class, and generally uneducated. No other politician has empathized better with this voting bloc than Trump.

This was best illustrated when, when asked if the system was rigged, he answered, "Of course it is, I use it every day. I'll clean up the system, drain the swamp, level the playing field, and in fact inflict pain on those that did this to you." And when accused of paying little to no taxes, his reply is "that makes me smart." He has turned this into blind religion by pitting his followers against the left, the deep state, the commies, and even the RINOs. He is the one-man-army that will fight and even the odds. They will suffer for what they've done. All the women he has conquered adds to the immortality. This is best illustrated thusly:

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G.L. in Chicago, IL (but until recently in Washington, DC): There are three Trump fans who, tragically, are biologically near me, and I think they each have different reasons.

One is a true believer, and appreciates the open racism.

One is, to be blunt, among the stupidest humans I've ever met. When she turns this intellect to politics every 2 years, she evaluates each pitch she comes across without considering practical matters like "Is this possible?" or "Is this a good idea?" and without considering any patterns of behavior or any of the knowledge that humanity may have developed in the past several hundred thousand years. (I think she also appreciates the open racism.)

The third is most interesting and most confounding. I think my mom (the tea party early adopter from November 24, 2022) understands the wrongness of Trump and the Republican Party. When I watch her mental gymnastics to try to justify blatantly dishonest things—well, she'll never say so, but I do think she's genuinely pained by the effort. She's very consciously cautious now if she's around anyone who might challenge what she says. A charitable reading would be that she's just trying to keep the peace, but I know her and I am confident she's avoiding battles she knows she can't win.

Why does she stay a Trumper when she knows better? I'm less certain, but I think there are a few factors: (1) She's been marching down this road for a long time (In addition to Trump and the tea party, she embraced George W. Bush's wars, reflexively hating both Clintons, and the late-80s rise of Rush Limbaugh) and she doesn't want to find a better path; (2) The true believer above is my father/her husband of 60 years, and she long ago decided on appeasement as a strategy for dealing with him; (3) She has a deeply ingrained opposition to anything a younger person—especially her son—might say.

I think this third, generational issue, is a lot more widespread than we acknowledge. I don't want to claim that all Boomers are unwilling or incapable to listen to younger people, since it's patently untrue to claim that all members of a generation are identical. (Also, the parents are technically from the generation before Boomers.)

But having said that, I've also spent a wearying amount of my life having my thoughts and arguments and often documented facts dismissed in favor of dubious (or ludicrous) Boomer "authority." It's certainly not the only factor, but I suspect there's a significant number of older people whose support for Trump is basically contrarianism, and they are simply enamored by the sense of power they feel from dismissing ideas from "the kids."

That was a cleansing and depressing thing to write.

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C.S. in Philadelphia, PA: Never Trump Republican here. I am also a proud American, had family members serve in the military, have retired police officers in the family, and am an Orthodox Jew. While I despise Trump and all that he has done, I will attempt to answer based on my reasons for becoming a Republican when I started following politics.

There are elements of the left (that get far too much attention) that are virulently anti-capitalism, anti-military, anti-police, and anti-faith. The Republican Party (used to be) outspokenly pro all those things. Growing up in the 90s, I saw the beginning of the politically correct left demanding orthodoxy in thought and speech. To borrow a word from President Obama, my views on a number of issues have evolved. Yet, you were a considered a bigot if you were not fully on board.

The main drivers of (secular) culture—the media, Hollywood, and higher education—all lean left. I work in higher education; it's not the bastion of Marxist indoctrination some in the right would have you believe, but the liberal tilt is there. Now sports (usually apolitical) and corporations (usually conservative) have seemed to publicly move left.

Then Trump comes along. I said this back in 2016: For all of his business failings, the one thing he is brilliant at is marketing and, specifically, marketing himself. He sold himself and his followers bought all of him. I saw through it, fortunately, and redirected my political values to kindness, democracy, and facts. However, the Trumpists are fully invested in him and they will not give him up at all.

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K.M. in Tacoma, WA: I have talked to many of my Trumpist friends to figure this out. Of course he is not dissimilar to many nationalist leaders who evoke adoration and loyalty in the masses. But still I wanted to learn what followers of Trump themselves think why they like him. Some common themes emerged:

• As a star of the TV show The Apprentice, he was very popular and loved. Many trace back their admiration and emotional connection to him to this time.
  
  
• His anti-immigrant and racist views, dubbed politically incorrect by others but seen as a positive by his fans, who were happy that he has given them permission to say things out loud that they could not say before, but that they strongly believed in.
  
  
• His wealth and so called business acumen is admired, and considered a plus for a president.
  
  
• His brash style, his brand of machismo and misogyny, his breaking of traditions (they don't think he has broken any laws) makes him a strong leader.
  
  
• And last, but not least, he is funny and entertaining.

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R.B. in Seattle, WA: Lots of reasons, but the most enduring, I think, is that he won. To the amazement of nearly everyone including himself, he did win the presidency in 2016. Before that, it seemed obvious that the Republicans would have to become more inclusive, moderate, and modern to remain competitive in the 21st century (see the post-Romney "autopsy"). But Trump and his supporters have been able to spend every day since 2016 shouting "We won, we rule, we're still in charge, nothing anywhere can change because we say no." They're wrong and they know in their hearts they're wrong, and the world continues to leave them farther behind every day. But as long as they only look at that win, they can almost believe it meant what they want it to mean.

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S.P. in Harrisburg, PA: Donald Trump is a fighter. No other Republican president, like him or not, fought to fulfill his campaign promises to the extent that Trump did without wavering. Name pretty much any other Republican politician, and you see a politician that got sucked into the Washington swamp. Any other Republican compromises, wavers, and rolls over to the Democrats once the pressure builds. Would a would-be President Romney ever have shifted the balance of the Supreme Court in the remaining weeks of his term?

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J.E. in San Jose, CA: Trump says what so many are thinking. And because of how he is portrayed (such as via a Truth or in a soundbite), there is never anyone there to stop or contradict him. As a result, not only is his message heard, but it is uninterrupted and unrebutted. There is no greater feeling of power.

That so many struggle with this concept exacerbates the situation. This is why so-called elites are hated: A lack of empathy for those who think differently. Oh, the irony.

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R.M. in Williamstown, WV: My theory is that Trump voters are single issue people—those who only care about one thing. And before you leap to the conclusion that single-issue folks can't add up to that many, consider the fact that there are a LOT of issues. While the number of people who consider any single issue the only one of importance may be relatively small, if you take all of the issues and aggregate them, you get a sizable number of issues.

What Donald Trump has done has convinced this hodge-podge of single-issue people that he is on their side. Most of the single-issue folks are against something, rather than for something. So, if you are against immigrants, think that women should be kept barefoot and pregnant, think that the only acceptable religion is your religion, are a white supremacist, oppose abortion, think the environmentalists are going to take your job in the coal mine of oil field, or any number of other issues, the thing that these folks have in common is that it is the ONLY thing they care about. So The Donald is their man. They don't care that he's a serial liar, that he is a philanderer or a xenophobe or a misogynist or a racist, or whatever. They see him as at least sympathetic to whatever is bothering them (good people on both sides; now go home, we love you; stand back and stand by, etc.).

If you add all these people up, then they may indeed, account for a substantial number of people. And this rag-tag batch of dissimilar people all agree on one thing—that the Donald is their Savior.

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M.C. in Falls Church, VA: The best explanation I've seen for why his adoring fans genuinely love Donald Trump (as opposed to those who vote for him for other reasons) was on a t-shirt that I first saw in Gatlinburg, TN: "I love Trump because he pisses off all the people I can't stand."

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M.W.O. Syracuse, NY: The answer was on a bumper sticker I recently observed on the back of a semi while tooling down the interstate through the "north country" of New York State:

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M.M. in Plano, TX: According to the Public Religion Research Institute, the portion of America that is white AND Christian AND of Anglo ancestral culture has dropped to 42%. The intersection of these three sets used to be a dominant majority. This intersection has been dethroned. A majority of Americans are minorities by color OR culture OR creed. We are now a majority-minority country. A large proportion of the formerly dominant intersection feels that it has been denied a sense of privilege that once seemed like a right. They feel strongly aggrieved at this loss.

Throw in the almost-constant talk in the media about gay and trans people and the marketing of group guilt by the voices of Critical Race Theory and Critical Queer Theory, and many of those in the erstwhile intersection of presumption are ready to heed the voice of he who offers no policies, no solutions, and no philosophy, but continual anger.

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S.W. in Kansas City, MO: Bigotry. Completely remove bigotry from Trump's persona, and he would lose over half of his most devoted. The remaining devotees are the pseudo-Christians prepped for baseless devotion.

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A.L. in Highland Park NJ: Racism. That is the leading order effect by far. But white opinion peddlers are really, really reluctant to call it out. David Brooks is famous for half-baked thoughts, but his latest column tries to put the blame for MAGA on liberals, for, I don't know, language? Going to selective colleges?

Twice-elected Barack Obama upset a lot of worldviews and assumed social hierarchies. The tea party wasn't really a thing before his presidency. These people had always ignored politics because irrespective of party, the same American aristocratic class always held power and defined the pecking order. Black people could get rich and famous, but only through entertainment and sports. The ascension of Obama was a violation of this order and only Trump seemed able to call it out. Other Republicans were attacking Obama for his policies. Trump was attacking Obama for who he was. MAGA world noticed.

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W.H. in New Orleans, LA: In Mississippi, at least, they love Trump because he has made it OK to be openly racist again. I was born and raised in Mississippi, the most racist state in the country. However, even there, by the 1980s, it had become politically incorrect to be openly racist, except for a very small minority of KKK and skinhead types. In the 80s, the majority of the white people in Mississippi were still racists but they were not open about it as they had been earlier because it was no longer socially acceptable.

Donald Trump changed that. Because Trump was openly racist, the closet racists were emboldened to once again be openly racist themselves, and they love him for it. I estimate that at least 80% of the white population in Mississippi falls into that category. They don't give a damn about what his policies are, or how his policies will affect them, or even whether he's committed serious crimes. Trump liberated them from the "oppression" of having to keep quiet about their racist beliefs. As a result, they will follow him to hell and back.

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A.C. in Columbus, OH: Is has been said that "Trump is a poor man's idea of a rich man, a weak man's idea of a strong man, and a stupid man's idea of a smart man.", and I think that's true.

More to the point, Trump's supporters look to him as an avatar of what they wish they could be. Trump speaks and acts without a filter, while most of his supporters know if they talked or acted like that in public or at their job, they'd be punished for it. Since they themselves can't do it, they revel in watching Trump say and do the things they wish they could say and do.

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A.B. in Wendell, NC: Here is my short and sweet answer, which I believe to be the truth, the whole truth and nothing but the truth: Basically, Trump gives them "permission" to be, if you will pardon this...a**holes.

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J.B.C. in St. Louis, MO: All I can think of is the words of H.L. Mencken: "As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart's desire at last and the White House will be adorned by a downright moron."

Here is the question for next week:

S.B. in Winslow, ME, asks: With another year of record hostile weather conditions, what will it take for the country to make climate change a serious priority?

Submit your answers here!

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