Trump Legal News: Life in the Fast Lane

There was some very interesting news on the Trump legal front yesterday; news that makes clear that Donald Trump is up against a real pro in Special Counsel Jack Smith.

One of Trump's arguments in his defense, particularly in the 1/6 case being overseen by Judge Tanya Chutkan, is that he is immune to prosecution by virtue of having been a sitting president when the events took place. It is true that officeholders have pretty broad latitude for a lot of the things they do, so the argument cannot be dismissed out of hand. Certainly there is enough merit that Trump has the potential to squeeze several appeals out of it, potentially making a March 4 trial date impossible. That, in turn, could push the trial date past the election, since it would be pretty hard (albeit not impossible) to put a major-party presidential candidate on trial at the height of the campaign. What Trump is praying for (well, OK, he doesn't really pray; so just substitute whatever you think he does in search of good fortune) is that he manages to halt the trials until November, then gets himself reelected, then is able to pardon himself. All three parts of that are shaky propositions, but some small hope is better than none.

Smith was not born yesterday, and he can certainly see what the scheme is. So, in an effort to cut Trump off at the knees, the Special Counsel filed a petition with the Supreme Court yesterday, asking them to address the issue, once and for all. Normally, SCOTUS allows the appeals process to play out before getting involved, but that can be put aside in extraordinary circumstances, and Smith argues that is what we have here. It would seem the Supremes agree, as they agreed to expedite consideration of the petition, and ordered Donald Trump's counsel to submit a response by December 20.

It is certainly possible that SCOTUS takes a long look and says, "Sorry, we've heard from both sides, and we're going to wait until the appeals courts have had their say," but that seems unlikely at this point. Smith makes a good point that time is of the essence here, and everyone knows this is going to end up at the Supreme Court anyhow, so why not just deal with it and get it over with?

Needless to say, if and when SCOTUS rules, it will be a pretty momentous decision. First, there is Donald Trump's fate; if he doesn't have immunity by virtue of his high office, then his list of potential defenses is pretty meager. Second, if presidents have immunity for anything they do (because everything they do is deemed to be acting in their official capacity), then that opens quite a Pandora's Box. Would it be legal for a sitting president, then, to take a bribe? To pull a gun in the Oval Office and shoot someone? To order the FBI or the IRS to harass political enemies? To sell nuclear secrets to the highest bidder?

Trying to game this out, it takes five justices to accept a petition. Surely, the three liberals will vote to accept, so it only takes two of the six conservatives. We think that two will be found among Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Amy Coney Barrett. Then, when it comes to the actual ruling, we know that the three liberals will vote against Trump's position, and that Associate Justices Neil Gorsuch, Samuel Alito and Clarence Thomas—all of them "unitary executive" guys who believe the president can do no wrong—will vote with his position. So, Smith will need two of the three among Roberts, Kavanaugh and Barrett. Past experience suggests he will get two, or very possibly all three. That trio, despite two-thirds of them having been appointed by Trump, has consistently ruled against his most outlandish legal arguments (particularly those from the "stop the steal" saga). On top of that, if SCOTUS sides with Trump, we'd end up with a bizarro legal world in which a president can be sued for civil offenses against individual citizens, but not for criminal offenses against the U.S. and its people.

The ruling, should SCOTUS take the case, will come sometime around Christmas. So, one side stands to get a very nice Christmas gift, indeed, while the other is going to be left holding a lump of coal. (Z)

Nikki Haley, Faux Frontrunner

Nikki Haley is on the cusp of doing everyone a big favor. In theory, there is supposed to be a CNN-sponsored Republican candidates' debate on Jan. 10, just before the Iowa caucuses. However, Haley is now suggesting that she is not willing to participate. If she sticks to that, it would effectively kill the debate. Vivek Ramaswamy and Chris Christie are not likely to qualify, so without Haley, it would just be Gov. Ron DeSantis (R-FL). And there is no person on earth who wants to watch him prattle for 90-120 minutes while looking constipated the whole time.

Tactically, this probably makes sense for Haley. If it was her versus DeSantis, he would come in with nothing but unchecked aggression. And while Haley has done pretty well deflecting such aggression when it came from the whackadoodle conspiracy theorist Ramaswamy, she would probably have a tougher time against the more measured, somewhat-evidence-based attacks of DeSantis. Especially if we're talking 1.5 to 2 hours of him being on offense.

That said, let us not lose sight of the fact that while Haley is acting like a frontrunner would, she and DeSantis are actually jockeying for a distant second-place finish in Iowa. Ann Selzer just released her latest poll of the Republican field, and she has Donald Trump at 51%, DeSantis at 19%, Haley at 16%, Ramaswamy at 5%, Christie at 4%, other candidates with 3% and "not sure" with 3%. Compared to the last Selzer poll, Trump gained 8 points, DeSantis gained 3, and everyone else is level.

This raises the real possibility that neither Haley nor DeSantis will be getting good news when the caucuses are actually held. First, because of the way caucuses work, Trump could end up with considerably more than 51% of the vote, and with most or all of Iowa's delegates. Second, when there are seven or eight or nine candidates, then a second-place, or even a third-place, finish means something. Maybe not much, but something. But when there are only three serious or semi-serious candidates left, will voters really see a lot of meaning in which person finishes in second with 13% and which person finishes in third with 11%? We doubt it.

That Haley is just an interesting point of discussion right now, and isn't a meaningful threat to Trump, is indicated by the fact that, as The Bulwark's Tim Miller points out, no politicians are expending political capital on her. If ever there was a time to endorse her as the alternative to Trump, this is it. But... crickets. Meanwhile, numerous Trump-skeptical Republican senators have begun signaling that it's time to accept that, like it or not, Trump is going to be the nominee. That's probably good advice for... everyone. (Z)

The Spoils of Office, Part I: Republicans Try to Get Mileage Out of Stopping an Abortion

We don't know for sure, but we suspect that the names of Kate Cox and Terri Schiavo will be linked for a very long time, as examples of Republican assertiveness (from one perspective) or overreach (from the other) when it comes to the alleged sanctity of human life.

Cox has been in the headlines for a couple of weeks at this point, so many readers presumably know her story. She is (or very possibly, at this point, was) pregnant with her third child. The fetus has been diagnosed with Trisomy 18, also known as Edwards syndrome. Such fetuses have significant anatomical defects, including heart and brain issues. They are rarely delivered alive, and even when a live birth does come to pass, the 1-year survival rate is less than 10%, and the 3-year survival rate is very close to 0%. On top of that, Cox has had two cesarean sections, and a few other interventions, in the past. And so, she and her doctor both say that carrying the pregnancy to term could put her life in danger. Nobody has stepped forward, as far as we can find, to dispute this assertion.

In short, even under Texas' restrictive abortion laws, Cox should have been entitled to the procedure. However, she could not get a doctor to perform it without sign-off from a court. She initially won, but then the ultra-corrupt state AG Ken Paxton (R) got involved. He appealed the case to the state Supreme Court, which is very conservative, and got the lower-court decision overturned. He also warned that any Texas doctor who performed an abortion for Cox would prosecuted. Doctors who perform abortions in Texas are at risk of prison terms of up to 99 years and six-figure fines.

On Monday, it was reported that Cox finally bowed to the same reality that so many other women have bowed to, and traveled out of state to get an abortion. She had dozens of offers of assistance, from Kansas, and California, and New York, and Illinois and even... Canada. Cox's attorneys have not revealed which destination she chose, but presumably, by the time you read this, her saga will be over.

Or will it be? Paxton is not the type to take a loss lying down, and he's made this a cause célèbre in the Lone Star State. So, our guess is he'll try to prosecute Cox for breaking state law. Or to prosecute one or more of the people who helped Cox travel out of state. He might even succeed, although even if he doesn't, he doesn't much care. He just wants the PR from having done battle against Cox and her supporters.

And that brings us to what we would say is a very good question: Who, other than Paxton, benefited here? If someone is pro-choice, it is obvious why this fiasco would be deemed outrageous and offensive. But even if someone is anti-choice, is this really the best hill to die upon? Or even a good hill? Next year, this incident will serve as (even more) fodder for Democratic criticisms that these harsh abortion policies put innocent women in cruel and unusual situations. Again, Cox wants a baby. She's only aborting because the fetus is unlikely to be born alive, is not going to survive even if it does, and may put her own life at risk. Does fighting this fight say "pro-life" to you? Because it sure doesn't to us. (Z)

The Spoils of Office, Part II: Republicans Try to Get Mileage Out of Antisemitism on Campus

At this point, surely all readers know that the United States House Committee on Education and the Workforce, with Rep. Elise Stefanik (R-NY) taking a leading role (despite not being part of the Committee's leadership), summoned Harvard president Claudine Gay, MIT president Sally Kornbluth and Penn president Liz Magill to the Hill to be grilled about antisemitism on campus. All three women struggled with questions about whether it was OK for students to call for genocide against Jews, and there was enormous backlash. Magill has already been compelled to resign, while Kornbluth and Gay are hanging by a thread.

We've gotten a bunch of e-mails about this situation, and we'll tell you a few things that would largely only be known to professional academics. To start, we are not excusing the three presidents' clumsy testimony, but we can explain exactly why it happened: They fell victim to a trap set for them by House Republicans.

The first thing that is important to understand is that managing free speech on campus is really, really tricky. There is a vast amount of case law that makes clear that campuses, particularly college campuses, are required to give extremely broad latitude to the free speech rights of students and faculty. And because universities have very deep pockets, any misstep is sure to produce a big lawsuit, even if the lawsuit is a long shot. So, university leadership learns to tread lightly.

On top of that, university presidents (and chancellors, and provosts, and rectors, and whatever other titles are used for the person at the top of the heap) are answerable to a lot of different stakeholders, often with wildly contrary interests. The people who manage the university (usually called a "board" or "regents" or "overseers") want the school's image to stay squeaky clean, while raking in as much cash (donations), awards and glory as is possible. The student body, to a greater or lesser extent, tends to be absolutist on free speech, excepting that their absolutism often starts to break down when it comes to ideas they don't agree with. In other words, "Cornel West should be able to come on campus and say whatever he wants, but not Ben Shapiro." Or, "Ben Shapiro should be able to come on campus and say whatever he wants, but not Cornel West." Faculty, including the all-important faculty senates, are between the two extremes, but closer to the "free speech is absolute" end of the spectrum, on the whole.

You have to be at least somewhat capable of juggling these various interest groups, or you don't get promoted to the big chair. But, more often than not, university presidents are not great at it, since it's not what they're trained for (university presidents are almost always former professors), it's not the main thing they are hired for, and it's not an easy task even if you're Solomon. Even worse, and this is where the trap comes in, university presidents are not experienced givers of testimony. That's doubly true when it comes to the glaring lights of Capitol Hill, in a context where speed and simplicity are demanded by committee members (like Stefanik), and yet nuance and subtlety are what is actually required to answer the questions.

In short, it was nearly impossible that the three presidents could have succeeded during their trip to the Hill, despite all three of them being brilliant and accomplished to the point of having risen to leadership of three of America's preeminent universities. That said, it wasn't their testimony, per se, that was their downfall. As we have written before, the #1 job of a university president is to be Chief Fundraiser. And the moment we knew that Magill was a dead woman walking was when we saw this headline on Saturday: "Penn loses $100 million donation over antisemitism hearing." No university president is more valuable to their school than $100 million. And so, Penn's leadership threw Magill under the bus. They will now hire someone with impeccable credentials when it comes to standing against antisemitism, and then the new president will beg that $100 million donor to reconsider their donation.

So, that's the subtext of what's going on with the universities. Now, how about the Committee? If you believe nothing else, believe this: The members of the Committee majority, starting with Stefanik, have no interest in combating antisemitism on campus, or making the lives of Jewish students easier. It is not a secret that Republicans are hostile to higher education in general, and to diversity, equity and inclusion (DEI) initiatives in particular. The current situation is only loosely connected to DEI, but nonetheless, House Republicans believe this is an opportunity to score some points, and to impose themselves on universities in various ways (for example, tying federal funding to certain GOP expectations, like "no use of affirmative action" or "no use of stem cells"). Stefanik herself has been crowing, following Magill's downfall, "one down, two to go." If one's goal is to "take down" university presidents, then one is clearly not focused on solving any actual problems. Stefanik, a Harvard alumna, may care more about revenge, having been kicked off a Harvard advisory board in 2021 for her baseless claims of voter fraud.

And that, in the end, might be what saves Gay, in particular, and possibly Kornbluth, as well. Harvard's Board of Overseers is not happy with their president, and with the damage done by her clumsy testimony in Washington. It does not help that, among all of America's universities, Harvard might have the very worst track record of antisemitism, given the school's longtime policy of limiting Jewish admissions (no longer in effect, of course). At the same time, the Board is very reluctant to give Stefanik a "win," in part because they don't like the Representative and the way she conducts her business, and in part because they don't want to set the precedent that when Washington says "jump," Harvard says "How high?" We'll know how it turns out within the week; if Gay is still on the job at this time next Tuesday, she'll have weathered the storm. (Z)

The Spoils of Office, Part III: Republicans Try to Get Mileage Out of Biden "Criminal Enterprise"

The House GOP has a resolution calling for a Joe Biden impeachment inquiry, and now Speaker Mike Johnson (R-LA) thinks he has the votes to approve the resolution. A vote is scheduled for tomorrow.

With such a thin margin for error, nothing is official until it's official, of course. But clearly, most or all of the Biden 17 (down from 18 having lost "Santos") have fallen into line, despite previous skepticism about the plan. We are having trouble figuring out what changed. It's possible that Johnson threatened them behind the scenes ("How would you like to be reassigned to the House Committee on Keeping the Toilets Clean?"). It's possible that they need to throw some red meat to Republican voters in their districts. It's possible that they see the writing on the wall, and they want to let this run its course before next year's elections. We really don't know.

Officially, the reason the Republicans are formalizing things is that a formal inquiry will lead to more cooperation from the White House. Nobody can possibly take this explanation seriously, however. First of all, how much cooperation did the 1/6 Committee get from Team Trump once it was conducting an official, full-fledged investigation? Second, this whole impeachment inquiry is based on the fantasy that Joe Biden was involved with Hunter Biden's shady business dealings. Because it is a fantasy, there hasn't been a shred of evidence that it's true, because that evidence doesn't exist. Making the inquiry "official" isn't magically going to cause that evidence to spring into existence, any more than it's going to make unicorns real, or make Crocs fashionable, or make the Chicago Bears a Super Bowl contender.

So, what's really going on here? With 218 or so votes for an inquiry, we'd guess there are several different motivations. Some members are presumably true believers who think that somehow, some way, this will produce an actual impeachment, and will embarrass Biden. More savvy members presumably hope that an ongoing inquiry will create a general impression of Biden-as-criminal, particularly among those voters who don't pay THAT much attention, and who don't ask too many questions. There are surely also some members whose primary goal is to genuflect before King Donald I, since he badly wants to "even the score" with Biden. The only thing that would make His Majesty happier is if the House can somehow find a way to impeach Barack Obama and/or Hillary Clinton.

In (Z)'s lecture on Gilded Age politics and political machines, he says something like, "When Americans elect someone as mayor, or governor, or president, or whatever, those people are given various 'resources' to expend on the voters' behalf—tax revenue, government jobs, the right to pass laws, etc. The expectation is that the politicians will use those resources in a way that will make people's lives better. But that's not the only option; sometimes the politicians use the resources in a manner that primarily benefits themselves and their friends. That, in a nutshell, is the 'spoils system.'"

Forgive us for saying so, but while Republicans on the national and state levels seem to be very busy these days (see this item, and the previous two), is there anything here that is going to make even a single voter's life better? Indeed, can you think of any project the Republicans are working on these days that will benefit the general public, or some subset thereof? If there are answers to that question, there aren't many of them, as far as we can tell, and we write about politics every single day. It isn't quite the same as the spoils system of the Gilded Age, but more and more it's hard to avoid the conclusion that we've entered the era of spoils system v2.0. (Z)

Freedom Caucus Has a New Chair

Speaking of people who have an interesting interpretation of what they have been sent to Washington to do, the Freedom Caucus has a new chair. It's Rep. Bob Good (R-VA), who is and was an outspoken enemy of former speaker Kevin McCarthy (R-CA), and who was among those FCers who conspired to boot the Californian from his former lofty post.

What are the implications of this change to Good from soon-to-be-former chair Scott Perry (R-PA)? Time will tell, but there are a couple of possibilities that we can see at the moment. First of all, in our experience, people who get a promotion look to hit the ground running, and to make their mark. Given that the budget talks are right around the corner, we could foresee Good taking some pretty extreme positions, so as to make sure everyone knows there's a new sheriff in town. In other words, it's possible that Mike Johnson's already tough headache has just gotten a little achier.

The second is that while the FC is pretty secretive, it's clear there are some cracks in the armor. Several members of the Caucus were not happy about Good's taking over as chair, and at least one of them, Warren Davidson (R-OH), resigned from the board of the group in protest. We don't know exactly what the source of tension is, but we have a pretty good guess. It is very probable that some of them realize they are never going to get someone in the speakership who is more friendly to their ideas than Johnson is, and so want to try to work with him to achieve some of their goals (even if they have to sacrifice others). Others likely remain committed to a hard-right "no compromises" point of view.

Presumably, we'll soon learn if any of this supposition is on target. Remember, however, that with a tiny margin of error, it doesn't take the entire Freedom Caucus to throw a wrench in the works. It just takes three or four of them (depending on how far into the future we're talking about). (Z)

A December to Rhymember, Part VII: Eighties Rewind

Today, it will be 1980s song parodies about Donald Trump's malfeasance. The first, which might as well be sung by Jack Smith, is from J.L. in Los Angeles, CA, who draws inspiration from "Every Breath You Take" by the Police:

Every doc you take,
And every lie you make,
Every law you break,
All the news you fake,
We'll be catching you.

Each time we survey
Every word you say,
Try'n to get away
With your election play
We're indicting you.

Oh, can't you see?
There'll be perjury.
Your poor heart aches
Each time we raise the stakes.

Every grift you take,
Any scheme half-baked,
Oh, for goodness sake,
We can see you quake.
We're all watching you.

Since you lost the election, you've defaced
All the laws upon which our country's based.
Look around, we can see you're laying waste
To all the truths that the People once embraced.
Your lawyer's shouting: "Donald, Donald...please (shut up)!"

Oh, don't you see
We're a democracy?
One day you'll awake.
With no more moves to make.

Every big mistake
That you undertake,
You're a lying snake.
No more grab and take.
We'll be judging you.

You've got plans to make
For your big jailbreak.
We're convicting you.

And now A.R. in Los Angeles, CA, with a take on "We Didn't Start the Fire" by Billy Joel:

Mark Meadows, Jeffrey Clark
Kenneth Chesebro, Stewart Rhodes
Standing up and standing by
Enrique Tarrio

John Eastman, Giuliani
Sydney Powell on the prowl
Jenna Ellis, Matt Gaetz
Watch the numbers grow

We didn't start the riot
It was a peaceful protest
Everybody knows it

We didn't start the riot
It was just a coincidence
It happened on January 6

Fake electors, bogus suits
Hannity to squeeze the juice
Just announce the vote was rigged
We'll do all the rest

Stop the count, seize machines
Find more votes—that's all we need
Flynn's plan without flaw:
Just declare martial law!

We didn't start the riot
It was a peaceful protest
Everybody knows it

We didn't start the riot
It was just a coincidence
It happened on Jan. 6

Rile the crowd: hang Mike Pence!
Tear down the chain-link fence
Broken windows, silenced pleas
Screaming out for Nancy

We can rewrite history
Voters have short memories
Take the effing mags away
What more do I have to say?

We didn't start the riot
It was a peaceful protest
Everybody knows it

We didn't start the riot
It was just a coincidence
It happened on Jan. 6

We're still looking for submissions; send 'em here. (Z)

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