We're posting this note late because we were waiting for confirmation on the proper wording. Happy 'Teenth!

Maybe This Time Will Be Different

The first polls taken after Donald Trump's federal indictment seem to say that he is not losing much support among Republicans and will probably be the Republican presidential nominee. But David Leonhardt of The New York Times has a somewhat different take on the polls.

Here is a recent poll from ABC News/Ipsos:

Now here is the interesting part. Democrats are completely united that Trump's charges are serious (91%-5%) whereas Republicans are badly split (38%-50%). Also on the question of should Trump be charged, Democrats are united (86%-5%) whereas Republicans are split (16%-67%). In politics, it is always better when your side is united and the other one is divided. This offers an opportunity to use the issue as a wedge and drive some of the opposition away from their party.

Headlines that merely reported that a majority of Republicans (67%) don't want to see Trump charged ignores the fact that 16% do want to see him charged and 17% aren't sure. If 33% of Republicans are potentially up for grabs, that's a lot. Elections are close these days and if a third of Republicans flip or stay home on Election Day, that's enormous. Even if half of these come grudgingly back home, it's still a lot of unhappy Republicans, especially in states where elections are decided by 1 point or less.

Here is another chart. It shows that among all groups, Americans think the new charges are more serious than the New York State charges about filing false business reports. The jump among Republicans is especially large:

We are not surprised since it is easy to think of the hush money charge as a bookkeeping error. Giving Stormy Daniels money to stay silent wasn't a crime and if Trump's campaign had simply reported something like: "Stephanie Gregory (her maiden name) was paid $150,000 for her assistance with the campaign" there would not have been charges. The second indictment (holding defense documents in an unauthorized location) is more clearly a crime for most people. What we are thinking is that the likely Georgia indictment (trying to overturn an election) is going to move all the arrows above even further to the right, since it is very easy to understand and very clearly a crime, not to mention there are three credible witnesses and an audio recording.

Here's another view of whether all of this will hurt Trump's chances to get the GOP nomination. Veteran political observer Charlie Cook doesn't think so. He thinks the main dynamic within the Republican Party is feeling like a victim and Trump encourages his supporters to think of themselves that way with him as their savior. Even if his supporters are split on the indictments, there is no other candidate who caters to their victimhood at all, really. Gov. Ron DeSantis (R-FL) says that the Disney Company is woke and he will put them back to sleep again, but he doesn't keep telling his supporters how awful they are being treated these days and how he will save them. His pitch is much more intellectual, but that is not what most Republicans want nowadays. They want politicians to tell them how horrible it is that the deep state has oppressed them. That's not DeSantis' pitch at all.

If you don't understand how the rank-and-file membership of the proud party of Ike, St. Ronnie, the Bushes, John McCain, and Mitt Romney has come to feel like a bunch of victims then you don't understand how Trump changed the Republican Party. He drove out most of the affluent college-educated professionals (who liked the idea of low taxes) and replaced them with working-class people seething with white grievance that the professionals never had. In essence, the parties have swapped huge segments of their respective bases. The share of the Republican vote among people without a college degree has jumped from 49% in 2014 to 62% in 2022. The share of the Republican vote among people with a college degree dropped from 38% to 25% in the same time period.

And the shift is continuing. In effect, Trump is remaking the Republican Party into one that worships him above all else. Political parties are not static. They change and the Republicans are becoming more angry, which fits Trump's style perfectly. Just as they see themselves as victims, they see Trump's indictments as evidence that he is a victim, too, just like them. More indictments may peel off a few more GOP primary voters, but probably not enough to deny him the nomination against a field that simply doesn't get it. DeSantis and Nikki Haley and Sen. Tim Scott (R-SC) and the other wannabes aren't touting their victimhood and desire for revenge. But that's what the base wants. (V)

When the (ex-)President Does It, It is Not Illegal

How do Republicans justify Donald Trump's hiding of defense documents? Let us count the ways. There are nearly a dozen of them already. But in the end, they all kind of come down to Richard Nixon's famous remark: "Well, when the president does it, that means that it is not illegal." In effect, Nixon was saying that the law doesn't apply to the president. Now Republicans are expanding that and saying that it doesn't apply to ex-presidents either. A good question to ask them might be: "If Bill Clinton shot and killed Donald Trump, would that be legal?"

But getting back to the original point, how are Republicans justifying Trump violating the Espionage Act? Here are some of the claims they have made:

• Trump is entitled to obstruct: John Yoo, a former deputy assistant AG, said that because Trump was mistreated by the DoJ and FBI, he is entitled to obstruct them. They weren't nice to him so why should he be nice to them? Alan Dershowitz has gone one step further and said that as long as Trump believes that—even if it is not true—he is entitled to refuse to cooperate with people he believes are trying to get him.
  
  
• Declassification: Here, too, Dershowitz says facts don't matter. As long as Trump believes that he declassified documents, he has every right to hold onto them and not turn them over. Of course, at least one of the audio recordings shows that Trump didn't actually believe he declassified the documents, so this is a very weak argument to bring up in court.
  
  
• The Presidential Records Act allows it: Actually, it is just the opposite. The PRA says that all documents related to Trump's duties as president belong to the National Archives, not to the president. One of Trump's lawyers, Christina Bobb, has claimed that the president gets to determine what is NARA's and what is his, but that is not so. At a trial, Special Counsel Jack Smith will simply read the relevant part of the law to the jury.
  
  
• Merely taking the documents makes it legal: Fox News' Jesse Watters has said that the mere act of taking government documents home makes them the president's personal property. He said Bill Clinton did this, so that's that. Actually, there is no evidence that Clinton took anything he shouldn't have and, of course, the act of stealing something doesn't magically make it legal.
  
  
• A former president may hide documents...: This theory has been floating around Fox a bit. It maintains that a former president can take and hide documents as long as he doesn't destroy them. Where did they get this idea? They just made it up. It will not hold up well in court.
  
  
• ...and also destroy them: Jim Trusty, one of Trump's now-former lawyers, went even further and said that since Trump could declassify documents at will, they were no longer national secrets so he could take them home and throw them in a bonfire and it would be legal. Of course, this flies in the face of both the PRA and the Espionage Act, which say the opposite. But since Trusty is now gone, probably this argument won't surface again.
  
  
• Ex-Presidents can ignore the rules: CPAC Chairman Matt Schlapp thought of an interesting defense. He said that Trump was justified in ignoring the rules because the people who made them were all corrupt. In other words, the entire national security establishment going back 100 years or so, through the presidencies of many Republicans, is all corrupt so the rules don't apply any more. Schlapp might want to think carefully about the implications of that argument, and how Democrats might apply it to the jurisprudence coming out of the Supreme Court these days.
  
  
• The classification system is illegal: Vivek Ramaswamy says that the whole classification system was imposed by executive order rather than by statute, so classifications don't have the force of law. First, quite a few people have gone to prison for violating this non-law. Do they all get sprung now? And in any event, the Espionage Act doesn't mention classification because that system came later. It mentions defense documents.
  
  
• Congress can't constrain a former president: Another Trump lawyer, Jesse Binnall, says that even if Congress were to pass a law making a former president subject to the Espionage Act, the Supreme Court might say the law is unconstitutional. Claiming that Trump is innocent because a law Congress hasn't actually passed might one day be found to be unconstitutional is a bit of a stretch, but sometimes lawyers like to think out of the box.
  
  
• No former president should be prosecuted: Yoo has also said that Trump should be left alone because prosecuting him would make future presidents nervous about making tough decisions. There is some truth in that, but maybe the test should be whether the president actually committed a crime, rather than simply making an unpopular decision.
  
  
• It's like a coup: Kimberly Guilfoyle, Trump's daughter-in-law to be, says that having FBI agents execute a search warrant against a former president is like a coup. That's a new definition of "coup." Maybe her creative thinking is what got Gov. Gavin Newsom (D-CA) to marry her. Or maybe it is what got him to divorce her 5 years later.
  

In short, all the defenses are basically just made up out of thin air, but defenders gotta defend. When the case actually comes to court, we suspect few of these will show up, as Jack Smith will be able to shoot them down by telling the jury what matters is the actual law, not what someone feels like or what the law could have been. We suspect that a lot of the defense will have to be attempting to claim the process is improper and the evidence is tainted. It is hard to see what else might work. (V)

One of These Is Different from All the Others

The U.S. national security classification system was created by Executive Order 13526, which replaced earlier XOs. Vivek Ramaswamy's argument that Donald Trump is innocent (see above) hinges on this little-known detail.

However, Reuters is reporting that one of the documents Donald Trump has been charged with taking and hiding is different from all the others. It is a document about nuclear weapons. It is so secret that there is an actual statute, not just an XO, that protects it. The statute says that in order to declassify it, the president needs the consent of the Dept. of Defense and the Dept. of Energy. (As readers may recall, even though Rick Perry did not when he accepted the job of Secretary of Energy, the DoE's job is not selling American oil to foreign countries. It is about guarding nuclear weapons.)

The upshot of this law is that no president has the authority to declassify that particular document. Not by XO, not in writing, and certainly not by thinking "It's declassified!" The law prescribes a very specific procedure a president must follow to declassify it. Needless to say, Trump did not follow this procedure. So even if the other 30 charges of holding a document in an unauthorized location are thrown out because the judge rules that telepathic declassification is allowed, there is a specific statutory procedure for declassifying No. 19 that Trump almost certainly did not know about or follow.

Additionally, as we note above, the classification status of the documents is actually irrelevant because the Espionage Act does not refer to classification, which was invented after the Act was passed. But if the judge goes rogue, the appeals court is likely to focus on No. 19, which was classified by law, not by XO. Will it matter? It shouldn't, but if Judge Aileen Cannon is in the bag for Trump, this one could matter more than the others on appeal. (V)

Biden Is Starting To Campaign

For a while, it wasn't clear that Joe Biden was planning to run for reelection. Then he announced a run but still didn't act like a candidate. These days, he is beginning to look and act like a candidate. He held his first rally on Saturday, in Philadelphia, when he spoke to a union group at the Philadephia Convention Center. He talked about how his program is helping ordinary families. He is also now starting to hold fundraisers and hire staff. Yup, he is really in.

Nevertheless, some Democrats think it is not enough and not fast enough. They want more action. That said, it is doubtful that it will make a lot of difference. Everyone knows who Biden is at this point and a few more ads aren't likely to make a difference, especially against Donald Trump, who is also well known. Also, running ads this early in the cycle may be a waste of money since by next June they will be largely forgotten and by Nov. 2024 they will be completely forgotten. The main argument for Biden to get moving now is to counter Republican arguments that he is too old for the job. If he is seen holding rallies and appearing at fundraisers, everyone can see that he is perfectly capable of doing what candidates are supposed to do.

In the next 2 weeks, fundraising will be high on the agenda, with events in Atherton, CA; Kentfield, CA; Chevy Chase, MD and Chicago; all of them involving big donors. In some cases, the governor of the state will appear with him. Meanwhile, Jill Biden will be raising money in Minneapolis and Nashville. Kamala Harris will be at fundraisers in New York City, Dallas, and Potomac, MD. Top of the line tickets are going for $100,000. That buys one a seat at a platinum table, photos with the luminaries, and a VIP reception. People in the cheap seats get fewer perks. These events are all intentionally in June, so the amounts raised will be recorded as Q2 donations. The idea is to make an announcement in July showing how great Biden is at raising money. That could help build excitement and momentum.

Rallies and fundraising are not the only things on Biden's agenda. He has hired Michael Tyler, a former DNC worker, as his communications director and former deputy White House press secretary TJ Ducklo as the campaign's senior communications adviser. Rob Flaherty, the White House digital strategist, will also join the campaign.

Biden is also busy rounding up endorsements. He just got the AFL-CIO and three of the four biggest environmental groups.

Despite all the activity, one senior Democrat close to the campaign said: "The more people are talking about Trump and less about us, the better off we are." (V)

Loser, Loser, Loser

Chris Christie appeared on CNN's State of the Union yesterday and made it clear what his campaign will be all about. It will be all about calling Donald Trump a loser. Over and over and over. Christie helpfully pointed out that in 2018, Republicans lost the House, ending their trifecta. In 2020, they lost the Senate and the White House. In 2022, they hugely underperformed the historical average for the party not in the White House with the Democrats even picking up a Senate seat. He described Trump as "loser, loser, loser."

Christie didn't talk about why he would be a good candidate, only why Trump is a bad candidate. Maybe he is not really running to be president. More likely, he is running to rid the Republican Party of Trump and Trumpism, so in the future, people like himself and Jeb! can win. Think of it as a public service. And Christie is only 60, so he's got what, 25 more years left where he could still run for president? Is christie2048.com taken yet?

It is an interesting strategy for several reasons. For one thing, if there is one thing Trump hates it is being called a loser. If Christie starts to get a bit of traction, Trump may start to get into a p**sing match with him. Unlike just about all the other Republican candidates, that would be playing to Christie's strength. He is a street fighter and won't be afraid to hit below the belt. After all, he has nothing to lose. For another, just focusing on Trump as a loser may encourage some Democrats to toss $1 his way so he hits the 40,000 donor mark and makes it onto the debate stage. If Christie makes it, he will attempt to demolish Trump before a national audience—ideally with Trump there, but without Trump if he doesn't show up. If the former president is not there, Christie will call him a loser and a coward and say "If he is scared of me, how is he ever going to face down Xi Jinping?"

One problem for Christie is that one of the RNC's conditions for being allowed on stage is signing an agreement that the candidate will support the Republican nominee. Christie said that is "useless" and has repeatedly said he would never vote for Trump. He handled the issue by saying he would take the pledge as seriously as Trump took the same pledge in 2016. If Christie signs the pledge and Trump gets the nomination, Christie could get on camera and say: "OK. I support Donald Trump, the biggest loser since Benedict Arnold. There, I said it. However, I am voting for Joe Biden and will actively campaign for Biden in order to purge the Republican Party of losers like Trump. The only way to clean House is for losers like Trump to be crushed in the biggest landslide in history. So everyone, be sure to vote for Biden." Or if he won't go that far, he could say he is voting for the Libertarian Party candidate. Or writing someone in.

Also noteworthy is that Ron DeSantis has been careful not to attack Trump directly, but has often said that the Republicans need to dump their "culture of losing." Sooner or later some reporter is going to ask him to explain that and he will have to point out that Trump is the problem. If more Republican candidates try to solve the problem of prying loose Trump's supporters without directly attacking him, harping on the problem of "losing all the time" might be a way out. On the other hand, people who love Trump because he tells them they deserve to be winners may not be thrilled to hear their hero described as a loser. (V)

Newsom Is Preparing to Be the Backup

Gavin Newsom has been all over the media of late, even though he is term-limited as governor and probably won't run for president in 2024. He is likely to go for it in 2028, but it is a bit early to start his 2028 campaign now. So what's he doing?

For one thing, he is picking a fight with Ron DeSantis, calling the Florida governor a "small, pathetic man." Is that an attempt to take DeSantis down and indirectly help Donald Trump get the nomination? Maybe. It could be that Newsom sees Trump as a weaker opponent, so this is his way of helping Biden.

However, one Democratic strategist, Steven Maviglio, thinks Newsom is just positioning himself in case something happens to the 80-year-old president and the Democrats need someone else at the last minute. Newsom and other Democrats remember how bad a candidate Kamala Harris was in 2020. She was so hopeless that she dropped out before the Iowa caucuses. This line of thinking says that should something happen to Biden that takes him out, Newsom would be the backup, not Harris. In any event, lots of PR now can't hurt his 2028 campaign, even if it doesn't help much either. And if 2028 ends up as DeSantis' "turn" as the 2024 second-place finisher, then all the better.

Normally, the vice presidential candidate is the attack dog, but having a Black woman who is not naturally an attacker try to do that probably won't work well. Just having a Black woman be aggressive, even if she is good at it (as is Rep. Maxine Waters, D-CA), would be problematic for some voters. But having a very high-profile young governor take the role of attack dog would be fine. And as a side effect, this will get Newsom a reputation among Democrats as a team player and win him some support for 2028 while helping Biden right now. By letting the California Governor do the heavy hitting, Biden can act presidential, a role he greatly prefers anyway. It's a win-win situation for everyone except Harris, who may be facing Newsom in 2028 and probably doesn't like being overshadowed by him now, but Newsom is certainly not going to defer to her. (V)

Smith Is Hot

Democrats can't get enough of Jack Smith. He's an even bigger hero to them than Robert Mueller or Anthony Fauci were. The online store Etsy has more than 50 Smith-themed products, including "Mr. Smith Goes to Washington" T-shirts, mugs, water bottles, and thermos bottles. Zazzle has Smith-themed hats, pillows, tote bags, aprons, and even baby blankets for prosecutorial-minded babies. Redbubble has Smith stickers and iPhone cases. Classifiedshirts has sold 1,600 Smith-themed items so far. Smith was asked what he thinks about all these companies selling Smith-themed swag. As usual, he declined to comment.

Smith is getting his 15 minutes of fame but it won't last. If Fulton County DA Fani Willis indicts Trump in August, as she has strongly hinted she will do, that will inevitably be followed by Willis hats, mugs, water bottles, thermos bottles, pillows, tote bags, aprons, and probably baby blankets. After all, she's a lot smoother than the bearded Smith. (V)

Mike Gallagher Won't Challenge Tammy Baldwin for Wisconsin Senate Seat

It is recruitment season and you win some and you lose some. The NRSC won a big one in West Virginia when Gov. Jim Justice (R-WV) announced that he will challenge Sen. Joe Manchin (D-WV)—assuming Manchin runs, which is not certain. Now the NRSC lost a medium-sized one. Rep. Mike Gallagher (R-WI) has decided not to challenge Sen. Tammy Baldwin (D-WI) in 2024. This is a big disappointment for the NRSC. They were really hoping he would get in. He is probably the strongest candidate they have against Baldwin. But Gallagher clearly knew that beating a sitting senator who has won the seat twice is very difficult. He also knows that his district, WI-08, in the northeast part of the state, is R+10, so given a choice of an easy reelection to the House or a long-shot bid for a Senate seat that he would probably lose, he played it safe and will stay in the House.

One Republican strategist was dour and said that no other Wisconsin Republican could plausibly beat Baldwin. The bench is simply too thin and there are no other top-shelf Republicans available. Most likely what will happen now is that a couple of self-made millionaires or billionaires, who think they are definitely Senate material, will decide to drop $10 million or more in a primary. Then the winner will go on to spend another $30 million or more on the general election and still lose. You can buy a lot of name recognition if you are rich enough, but you can't make Democrats vote for Republicans by yelling SOCIALIST SOCIALIST SOCIALIST very loudly. Once in a while it works (see: Johnson, Ron) but it's rare and works best in an open seat against a weak opponent.

The thing about Wisconsin that makes it very special is that it is one of the top three battleground states, along with Georgia and Arizona. Both parties can and do win there, but they need strong candidates and weak opponents. The Democrats have a strong candidate in Baldwin and she is likely to face a weak opponent.

One possible Republican candidate is former Lt. Gov. Rebecca Kleefisch, who served two terms with Scott Walker way back when. She ran for governor in 2022 and lost the primary to a rich businessman, Tim Michels, who went on to be wiped out by Gov. Tony Evers (D-WI). However, Kleefisch may be waiting for Evers' current term to end in 2026 and try for a move to Madison rather than to D.C. That would be understandable; after all, Madison is much closer to Lambeau Field than Washington is. (V)

The South Carolina Republican Primary Will be Feb. 24

The dates and order of the 2024 primaries are very contentious since the Democrats and Republicans have different ideas on the subject. The DNC wants South Carolina to go first. That immediately runs into a couple of problems. First, New Hampshire has a law saying its primary must go first. Second, South Carolina doesn't want to go first. In fact, it wants to go last among the early states. The residents of the Palmetto State have taken notice of what happened in 2020 (and other years) and noted that they are in an excellent position to play kingmaker. Any questions on that subject can be addressed to President Buttigieg (winner of the 2020 Iowa caucus, probably) or President Sanders (winner of the 2020 New Hampshire primary). Joe Biden, incidentally, finished fourth and fifth, respectively, in those two contests before winning South Carolina and then promptly clearing out the competition thereafter.

On Saturday, the South Carolina Republican Party voted unanimously to have its primary take place on Feb. 24, 2024. The RNC has to approve this decision. The expected date for the Iowa caucuses is Jan. 22. The New Hampshire Republican primary will probably be Feb. 13. Nevada is tentatively set for Feb. 6, but if it really sticks with that, New Hampshire will probably move its primary to Jan. 30. New Hampshire law gives the secretary of state the authority to set the primary date to whatever is necessary to be first. It's kind of like a political version of musical chairs. And that is just the Republican side.

The only date that is set in stone is March 5, Super Tuesday. The others could change. States don't like to have the Democratic and Republican primaries on different dates because it is more complicated and costs more. States set the dates for primaries and Republicans hold the trifecta in Iowa, New Hampshire, and South Carolina, so they may just do what the RNC wants and ignore the DNC. Nevada has split control. Republicans have no problem with New Hampshire holding the first primary, but Democrats don't want that.

In 2016, South Carolina's primary came three days before Nevada's caucuses. Candidates were pinballing across the country to campaign in both. Nobody really wants that again, but each state wants to optimize its situation and neither the RNC nor the DNC can force any state to use its schedule.

Another thing the South Carolina Republican Party did on Saturday was set the primary filing fee at $50,000. That won't be a problem for the well-known candidates or the millionaires in the race, but it could be a barrier for some of the minor and unknown candidates like Asa Hutchinson and Francis Suarez. (V)

Twenty-nine States Are Super

In the modern era of highly partisan politics, it is not surprising that 29 states have legislatures with supermajorities. What constitutes a supermajority varies from state to state. The usual definition is whatever it takes to override the governor's veto. It is commonly two-thirds or three-fifths, but in Alabama, Arkansas, Indiana, Kentucky, Tennessee, and West Virginia it is a simple majority. Here is the map showing the states with supermajorities, 20 for the Republicans and 9 for the Democrats:

When either party has a supermajority in both chambers, it can do whatever it wants to, without regard to anyone or anything. This allows them to ram through controversial legislation that is often quite unpopular in the state. For example, Republicans in Kansas and Kentucky recently overrode gubernatorial vetoes on bills relating to transgender issues, abortion, and work requirements for food assistance. In many cases, the governor is from the same party as the legislative majority, so there may not be a conflict. However, in some cases, firebrands in the legislature may be able to pass laws that even their own governor considers too extreme.

Most of the action, however, is in states where the governor and legislative majority are from different parties. There are four states with a Republican supermajority and a Democratic governor: Kansas, Louisiana, Kentucky, and North Carolina. In these states, the Republicans can just run roughshod over the governor. There is only one state, Vermont, where the Democrats have a supermajority but the governor is a Republican. In the other 24 superstates, the governor and legislature belong to the same party, but that does not always prevent conflicts as legislators come from very small, very gerrymandered, very partisan districts, and governors are elected statewide. (V)

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