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Trump's Likely Legal Strategy: Delay, Delay, and More Delay
There are a number of things that Donald Trump is quite good at, like an ability to make up insulting nicknames for his rivals that many third graders would die for. One of his other specialities is dragging out legal proceedings almost forever. He has perfected this skill in countless civil trials. Now that spring training is over, he is going to try it out in the big leagues—a criminal trial. Whether it will work as well remains to be seen. Endless delays can wear out an opponent in a civil case and can cause them to spend so much money on lawyers that they give up. Can Trump cause Manhattan DA Alvin Bragg to throw in the towel because it is taking too long? We kinda doubt it. Also, in a criminal case, judges have less tolerance for obvious shenanigans than in a civil dispute between two parties.
Catherine Christian, who worked in the Manhattan DA's office for 30 years, predicts that Trump's lawyers will file every motion that is allowed and then some. They will try to move the trial outside New York City. They will try to disqualify the judge and prosecutor. They will try to move the case to federal court. They will try to get felony charges reduced to misdemeanors. They will argue that the grand jury made a mistake and the charges are not valid. They will argue that the statute of limitations has expired. They will argue about that Trump is entitled to a jury of his peers (i.e., former presidents, although on second thought, 75% of the pool consists of Democrats, at least for now). They will argue about security arrangements during the trial. They will lose all of them and them appeal each one up to the New York State Court of Appeals, when possible. And finally, when all of the motions have failed and a year or more has gone by, they will file for dismissal because their client did not get a speedy trial as required by the Constitution.
The judge expected to handle the case is Juan Merchan. He was born in Colombia and moved to the U.S. with his family when he was 6. By 9, he was delivering groceries to earn money for his family. He went to Baruch College and then Hofstra Law School. He worked in a local DA's office for 12 years before Michael Bloomberg appointed him to the Bronx Family Court in 2006. In 2009, he became an acting justice on the state Supreme Court, which in New York is a low-level court. So all in all, he has been a judge for 17 years. He has a reputation as a smart, even-tempered, serious judge with a solid knowledge of the law. If Trump's lawyer's try to stall and stall and stall, he is going to smell a rat and just deny all their motions quickly.
It is impossible to predict how long Trump's lawyers can keep making motions to delay before Merchan says: "Enough." The recent trial of the Trump Organization took 16 months from indictment to the start of the trial. The Iowa caucuses are 10 months away. Will Merchan take that into account? That's up to him, but if he gets the feeling that all the motions are being made in bad faith, he could decide to deny each one very fast.
Another unknown is whether Merchan will issue a gag order and tell both Trump and Bragg not to discuss the case in public in any way. If he does and Bragg obeys the order but Trump keeps sounding off about the case and attacking the judge on his boutique social media site, what happens then? The first time Trump violates the gag order, Merchan will probably haul him into court and tell him that if he does it again, there will be real consequences. Then what happens if Trump keeps violating the order? Will Merchan order Trump to post millions of dollars in bail to be forfeited if he violates the order again? If Trump still keeps at it, will Merchan revoke bail and put Trump in jail on a repeat violation?
What no one really knows is what happens if Trump gets the start of the trial delayed until, say, Jan. 2024, and he is on trial the day of the Iowa caucuses and continues to be on trial during the New Hampshire primary. Will Gov. Ron DeSantis (R-FL) and the other candidates say: "The Republican Party can't take the risk that our nominee is in jail during the campaign, so vote for someone else, for example, me"? If you were hoping for many Trump-free days on our site this year, we're probably going to disappoint you. Sorry in advance. (V)
Some High-Profile Republicans Have Stayed Silent about Trump's Indictment
The day Donald Trump's indictment leaked, many Republicans made a point of attacking the indictment—even though none of them knew what was in it—and calling it political. What's interesting is that very few of them actually claimed that Trump was innocent. After all, it is possible that the prosecutor was politically motivated but that Trump was still guilty of the crimes.
Nevertheless, there were a small but significant number of Republicans who did not attack Alvin Bragg or defend Trump. For example we've heard nary a peep from Senate Minority Leader Mitch McConnell (R-KY). Nor has the #2 Senate Republican, John Thune (R-SD), said a word about the matter. Reporters have asked both for their views and the response has been uniformly: "No comment."
But it is not just Senate Republicans who have been keeping quiet. Gov. Kristi Noem (R-SD) was asked Friday to comment on the case and she refused to do so. This is especially surprising since she is thought to be running for vice president on a Trump ticket. If so, she should have denounced Bragg and called the whole thing the biggest witch hunt in 300 years. She didn't.
Gov. Chris Sununu (R-NH), who is flirting with a presidential run, was also asked to comment. Like Noem, he had nothing to say. Of course, unlike Noem, he is not trying to curry favor with Trump. Still, he is an experienced politician and decided not saying anything was the best move.
Former New Jersey governor Chris Christie appeared on ABC's This Week yesterday. He said that Bragg had a weak case and this was not the best use of the DA's resources. Note that statement is different from "Trump is innocent." Christie also said that all the bravado from the Trump camp is baloney.
Larry Hogan, who was governor of Maryland until January, was thinking about running for president but then decided not to do it. Consequently he doesn't have to worry about what the base thinks. Nevertheless, he refused to comment on the case as well.
What about former First Daughter, Ivanka Trump? Surely she was all "rah, rah, rah" and "Bragg is a rat," right? Well, no. She said: "I love my father and I love my country. Today, I am pained for both. I appreciate the voices across the political spectrum expressing support and concern." Is that all she could muster? Maybe her lawyer told her to keep out of this for fear of being indicted for obstruction of justice. There is some evidence that Trump actually likes (liked?) her. Is she going to be demoted from being First Daughter and Tiffany promoted? Oh, wait. Tiffany didn't say anything at all.
What about the 18 Republican House members in districts Joe Biden won? It was a mixed bag with them. Most of the ones in New York tended to mildly defend Trump and accuse Bragg of playing politics. But most of the five in California were silent. Another Republican in a Biden district, Don Bacon (R-NE), said he will take a "wait and see" approach and didn't lash out at Bragg. He even said that he had faith the criminal justice system will find the truth. The last thing Trump wants is the truth.
Finally, what about Melania? Not a peep. If there is anything she might care about, it is her husband cheating on her with a porn star 3 months after she had a baby and then committing multiple crimes trying to cover it up. But no, she hasn't said a word. On social media, people are already speculating about who she will date after her inevitable divorce. Pete Davidson is the current favorite, but she is certainly not going to divorce Trump until Barron is in college in a year and a half, and most likely not until he has paid Barron's tuition and expenses through his bachelor's degree.
Speaking of money, there is one small noteworthy side effect of the indictment: the grift. Trump's campaign claims that it raised $4 million in the 24 hours after his indictment and another $1 million in the next 24 hours. Whoever said "crime doesn't pay" didn't count on Trump. Once he internalizes this, he may be guessing how much each crime is worth, as in "jaywalking probably won't get me more than $100,000, but a speeding ticket could bring in $500,000." (V)
Trump's Rivals Are in a Bind
Figuring out how the indictment (and, probably soon, indictments) will play out is going to be tough. Nevertheless, the usually astute Ronald Brownstein has taken a stab at it. Brownstein first notes that in recent weeks, Trump has increased his lead in the primary polls over Ron DeSantis. Then he notes that suburban swing voters, who powered the Democrats in 2018, 2020, and 2022, are not going to love The Donald more because he has been indicted. Rather the reverse. Or put differently, the indictments could help Trump in the primaries but hurt him in the general election. That conundrum is not going away any time soon.
And if Georgia and the feds also bring charges, the problem will only get worse. What will the public think if on some Monday in January 2024 he is campaigning in Iowa, on Tuesday he is in court in New York, on Wednesday he is campaigning in New Hampshire, and on Thursday he is in court in Georgia? The side-by-side images probably aren't going to be helpful except maybe with his hard-core base, whose votes are already locked in.
As this all plays out, what are Trump's rivals going to say? So far they are supporting him, but "I support Donald Trump, so please vote for me" doesn't have a great ring about it. At some point, they are all going to have to thread the needle and say that yes, Trump is being unfairly prosecuted, but you shouldn't feel sorry for him and vote for him in order to support him. How does one express this properly? It's going to be extremely difficult. But to get any traction, they are going to have to figure it out.
One possible approach might be just to ignore Trump and campaign on the issues alone. Ron DeSantis could run on how Florida is where woke goes to die (along with half the people). Nikki Haley could run on her foreign policy experience. Then she would be fighting head-on with Mike Pompeo, who could run on exactly the same thing. Mike Pence could run on how he loves Jesus so much, he won't have dinner alone with any woman not his wife. Just ignore Trump and pitch yourself. Could it work? Maybe not, but all of them have to do something. Figuring it out won't be easy. The indictment only made this worse. (V)
Hutchinson Is In
Make that former Arkansas governor Asa Hutchinson, not former assistant to Mark Meadows Cassidy Hutchinson. Pity, because someone famous for telling the truth would be quite a contrast with your generic politician. On the other hand, he is old enough (72) and she is not (25). Anyway, the former governor made his anouncement on ABC's This Week yesterday. Our first reaction was: "Can the former governor of small, backwater Southern state really be elected president?" Then we did some research and concluded: "Yes, it is possible." Hutchinson becomes the first non-Indian American to officially challenge Trump, joining Nikki Haley, and some irrelevant guy whose name we can't remember.
In his interview with ABC's Jonathan Karl, Hutchinson called for Trump to drop out. He said that he had respect for the criminal justice system and wanted to see the process to play out normally. Calling for Trump to drop out makes him stand out among the current and future candidates. That could be worth something if Trump fumbles.
The new candidate said that a large field was good for the party. Like in 2016, right? When a badly fragmented field allowed Trump to win the majority of the delegates with a decidedly minority fraction of the primary votes. We could be headed there again.
Hutchinson has had a long career in government. After getting a law degree from the University of Arkansas Law School, he became a U.S. attorney at 31, then the youngest one at the time. He ran for the U.S. Senate in 1986 and Arkansas attorney general in 1990 and lost both races, so he lowered his sights and got elected to the House in 1996, succeeding his brother Tim in AK-03, after Tim was elected to the Senate. In 1999, he was one of the managers in the impeachment of another fellow from Arkansas, Bill Clinton. In 2003, he served in George W. Bush's administration as head of the Drug Enforcement Administration and later other jobs. In 2006, he ran for governor of Arkansas and lost. Finally, in 2014, Hutchinson was elected governor and served two terms. In short, although he has no foreign policy experience, he does have a lot of government experience in many areas. For better or worse, he is also the least Trumpy of the major Republican candidates. If Trump becomes toxic this year, he stands to benefit the most.
What he also doesn't have is a national profile. And unlike the other governor of Arkansas who made it to the big chair, Hutchinson doesn't have enough charisma to charm the spots off a leopard. But if Trump gets damaged too much by multiple indictments, Ron DeSantis makes Al Gore look like a hail fellow well met, the Mikes opt out, and Republican voters look around for a solid conservative white man who is probably capable of being president, Hutchinson could get the nomination and maybe even win. This requires a lot of stars to align, but it is not impossible. (V)
Former Leaders Have Been Indicted in Many Countries
Donald Trump is acting like the U.S. has become a Third World country because it has indicted a former leader. Well, it is true, that quite a few Third World countries have indicted leaders since Jan. 1, 2000, but that is because many of them had corrupt leaders and have somewhat functional judicial systems. But a number of First World countries have also indicted leaders since 2000. Here is a map of both.
Since 1980, about half the world's countries have indicted at least one leader. How come? Well, power corrupts (and absolute power corrupts absolutely). When people get power, it goes to their heads and they think they can get away with anything. It doesn't always work. Not even in democracies. Former French President Nicolas Sarkozy was convicted in two cases in 2021 and sentenced to prison. Former South Korean President Park Geun-hye was sentenced to 24 years in prison for corruption, served 5 years, and was then pardoned. Prime Minister Benjamin Netanyahu is still on trial in Israel. Former Italian Prime Minister Silvio Berlusconi has been in and out of court for three decades. Former Taiwan President Chen Shui-bian was convicted of bribery in 2009. LULA was convicted of corruption in Brazil, was released after his conviction was thrown out, and won the presidency again. Former President Cristina Fernández Kirchner of Argentina was convicted of fraud. In Peru, every president but one from 1985 to 2018 has been arrested and charged. The list goes on.
So Trump's claim that only in America are former leaders put in trial is completely bogus. It happens all over the world where there are corrupt leaders. What stands out are the countries where this hasn't happened: Russia and China. Right, in dictatorships this doesn't happen. Only in democracies, where it happens quite regularly, because in those countries no one is above the law. (V)
Most Important Election of the Year Is Tomorrow
The most important election of 2023 will be held tomorrow in Wisconsin. It is the race for the state Supreme Court. Currently there are three Democrats and three Republicans on the court. Whoever wins tomorrow will tip the balance in this key swing state. The fate of abortion, gerrymandering, and much more is at stake. The race has already become the most expensive judicial race in U.S. history, with spending way north of $45 million. Much of the spending has come from Republican billionaires partial to Kelly.
The candidates are Democrat Janet Protasiewicz, a Milwaukee judge, and Daniel Kelly, a former state Supreme Court justice who lost an election in 2020 to now-Justice Jill Karofsky and wants his old job back. Each of the candidates has been calling the other one an extremist and a liar. At their debate, they refused to shake hands. It is really nasty. Early voting has been going on for a couple of weeks, but tomorrow the final votes will be cast. Local Democratic and Republican Party workers have been out in the field for weeks knocking on doors, running local and Internet ads, and more. Now it is all about getting out the vote.
With early voting going on for weeks, the indictment of Donald Trump obviously won't play a role with the votes already cast. Will it play a role tomorrow? At least some observers think it will not. The issues are local. Should the 1849 law banning abortions be upheld? Does gerrymandering violate the Wisconsin Constitution? Trump's indictment doesn't really speak to these issues. Charles Franklin, director of the Marquette University Law School poll, thinks the effect of the indictment could get both Trump's supporters and his opponents to the polls but doesn't think this will play a major role.
There has been no public polling of the race and history isn't much of a guide. In 2019, liberal judge Lisa Neubauer lost to now-Justice Brian Hagedorn by fewer than 6,000 votes. In 2020, Karofsky beat Kelly by a solid 55%-45%. In the 2020 presidential race, Joe Biden got 50.3% to Donald Trump's 49.7%. In round one of this year's Supreme Court race, the "Democratic" candidates got 53.8% to the "Republican" candidates' 46.2%. This suggests that Protasiewicz might have a slight edge, but turnout will be crucial and anything is possible. (V)
Chicago Will Pick a New Mayor Tomorrow
Wisconsin isn't the only place there is an election tomorrow. Chicago will pick a new mayor, as well. One thing is certain, though: The winner will be a Democrat—because the election is a runoff and the top two finishers are both Democrats. But they come from very different wings of the Party, so the race matters.
The top primary finisher, with 32.9% of the vote, was Paul Vallas, who is white. He was CEO of the Chicago schools 1995-2001. Second was Brandon Johnson, with 21.6%, who is Black. He is a Cook County commissioner. Neither of us lives in Chicago so we don't know if Johnson's slogan is "Let's Go Brandon." The current, unpopular mayor, Lori Lightfoot, was third with 16.8% and was eliminated.
Johnson is a teacher and member of the Chicago Teachers Union, which has endorsed him. Vallas has been endorsed by the local police union. Johnson, who is progressive, says the race is about Black labor vs. white wealth. Sen. Bernie Sanders (I-VT) has endorsed him and campaigned for him in Chicago. So has Jesse Jackson. Vallas says it is about crime and he can handle it better. The local police apparently agree.
In the past week, race has come up a lot. It has become a Black progressive vs. a white moderate in a gentrifying city, but one still full of white ethnic neighborhoods. Vallas came in first in the initial round, but if the supporters of Lightfoot, who is Black, vote for Johnson, that could get him past 50%.
The most recent poll has each candidate at 44%, with 12% undecided. So it could go either way. Black voters prefer Johnson and white voters prefer Vallas. Latinos have a slight preference for Vallas. (V)
Judge Make Key Rulings in Dominion Defamation Case
On Friday, Fox News got some actual news, but it didn't bother to mention it on its website at all. Odd. The news was that Delaware judge Eric Davis made some rulings in the defamation lawsuit brought by Dominion Voting Systems against Fox. And they were doozies. Davis ruled that from all the depositions, e-mails, and text messages that Dominion provided him, the company had proven beyond any doubt that all the claims Fox made on air about Dominion's machine being rigged were false. He ordered a jury trial, but the jury will be instructed that the judge has already ruled that Fox lied on air many times. In his ruling, Davis literally wrote that the evidence is: "CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true." The capitalization was in the written ruling. That point is no longer in dispute. If the Fox lawyers try to claim that their hosts did not lie or were merely expressing their opinions, the judge will cut them off and order them to drop that discussion. The Fox lawyers will not be allowed to talk about the First Amendment or freedom of speech or anything like that.
The jury will be asked to decide two questions. First, did Fox lie with actual malice? That is, did the hosts know they were lying and do it anyway because management told them to or because it was better for business or because their viewers wanted that? There are large numbers of e-mails and text messages that strongly suggest, and perhaps prove, that the hosts knew they were lying, didn't believe a word of what they were saying, and did it anyway for business reasons, in complete disregard of the truth. The jury will get to see all the messages and will have to decide if there was actual malice. Dominion has a pretty solid case, but it will be up to the jury in the end.
The second question depends on the answer to the first one. If Fox is found guilty of actual malice, then the jury has to determine what the damages are. They can award Dominion actual damages (e.g., compensation for lost sales due to the defamation) and punitive damages (as a punishment for the defamation).
Jury selection will begin on April 13 and the trial will begin on April 17 if all goes well. The voir dire should be lots of fun. Lawyers for both sides will no doubt be curious about the viewing habits of the potential jurors. Will Dominion's lawyers be able to excuse all Fox viewers? Will Fox' lawyers be able to excuse all MSNBC viewers? Each side has only so many peremptory challenges. If they get used up, the lawyers will have to explain to the judge why the potential juror should be rejected and the judge gets to decide.
Many of the Fox hosts will be called as witnesses, very likely Tucker Carlson, Laura Ingraham, and others. Dominion's lawyers will then read text messages and e-mails they sent clearly indicating that they knew Trump was lying and the machines were not rigged. Then the lawyers will ask them—under oath—if they indeed sent those messages. They will almost certainly have to reply: "Yes," as the risk of perjury is enormous. Then the next question will be: "Why did you lie when you knew the machines were not rigged?" The answer is very likely to be something essentially like: "For business reasons." That's the malice part.
Legal experts say that Fox is in a deep hole because the depositions, texts, and e-mails clearly show that the hosts wilfully and knowingly lied repeatedly. Recordings of them on air doing so might be played for the jury to demonstrate this. Fox has plenty of money (for the time being) and can afford to hire the best lawyers around, but there is little they can do about the facts. (V)
If Not a National Divorce, How about a Trial Separation?
Back in February, Rep. Marjorie Taylor Greene (R-GA) called for a "national divorce"—basically, Civil War, Part II. She was born in Georgia and went to high school and college in the state, so she ought to know that when Gen. William Tecumseh Sherman visited the Peach State in 1864, he made a bit of a mess there. But maybe they don't talk about that in Georgia anymore or maybe she wasn't paying attention in class when the subject came up. Still, she was born in Milledgeville, GA, where Sherman and 30,000 of his best friends visited in 1864 on their way to Savannah. We don't know if there is a monument at St. Stephen's Church, where Sherman had molasses and sorghum poured down the pipes of the church organ before he left town. The church's website certainly doesn't mention it.
In any event, Amy Walter of the Cook Political Report notes that we may not be divorced yet, but we are already working on a trial separation. Look at this chart:
In 1988, about 42% of Americans lived in a county that went for one candidate or the other by at least 60%. This means that 58% of Americans lived in a more-or-less swing county and that they regularly encountered people from the opposing party. By 2016, it was completely reversed. Then, 61% of Americans lived in a deep red or deep blue county, an increase of almost 50% over 1988. The trial separation was already under way.
The second column of the chart shows the percentage of Americans living in a 70% county, a really deep red or blue county. It was about 7% in 1988 and jumped to almost 30% by 2016. The third column sets the bar even higher. In 1988, counties that went for either candidate by 80% were practically nonexistent (0.4%), but by 2016 that had grown to almost 9%. In 2020, there was a tad less separation, but that is probably just statistical noise. The long-term trend is very clear.
At the state level, we see the same thing. In the past four elections, 80% of the states voted the same way across all four. That is a greater polarization than even during FDR's four elections, where two-thirds of the states voted for or against him each time.
What happened? For one thing, now everything is polarized and you are expected to accept the entire package. If you own an AR-15, you are expected to oppose abortions and vaccinations, even though these things really aren't related. Also, 30 years ago, there were liberal Republicans and conservative Democrats, including senators. Now there are no liberal Republican senators and only one conservative Democratic senator, Joe Manchin (D-WV). Another factor is cable television, which whips people into a frenzy, and social media, which reinforces the frenzy. When was the last time you met someone who said: "I don't care about party labels, I always vote for the best candidate"?
This geographic sorting, except for about 5-10 states, means that we are already living apart, even if the separation hasn't been formalized. People meet only like-minded people and state legislatures pass laws that fit their states. The county data are more important than the state data, however, because red states do have blue cities and blue states do have red counties. But the people one meets on a daily basis are usually from the same county, not some distant county, and the counties are getting more homogeneous all the time.
The trial separation is only going to get worse. A new survey shows that a quarter of college applicants decided against colleges that were otherwise all right based on the state's politics. Most students attend college in their own state, so this will mostly affect major research universities that draw students from all over the country (and all over the world). That means even fewer conservative students at Stanford (California) and fewer liberal students at Rice (Texas). If liberal students go to college in blue states and conservative students go to college in red states, that simply reinforces the existing trend of geographic separation. (V)
How the Other Half Votes
Kyle Kondik, over at Larry Sabato's Crystall Ball, has a similar story to the previous one up now. His piece focuses on the county-level voting in Midwestern states. For example, he notes that in 2012, only six of Ohio's 88 counties gave Mitt Romney at least 70% of the vote. By 2020, 44 counties went for Trump by at least 70%. That is a similar point to the one Amy Walter made.
One thing that Kondik emphasizes is that half the counties does not mean half the votes. In Ohio, if you start with the least populous counties and work your way up, you would get to 79 counties to collect half the statewide vote. To put that another way, the nine most populous counties have as many votes as the other 79 combined. This got him thinking about other states in the Midwest. What does it look like if you start with the most populous county and keeping adding counties until you have half the vote? How many do you need and what does the map look like? Is it as skewed as Ohio? He called the small number of populous counties the "top half" and the large number of less populous counties the "bottom half." And keep in mind, the total vote of each half is roughly the same. The maps below show the top half counties in orange and the bottom half counties in gray.
In Illinois, the top three counties have as many votes as the bottom 99. In Minnesota, the top five are equal to the bottom 82 in votes. In Michigan, the split is five to 78. The other states are somewhat less skewed, but not that much less.
Now let's look at how the vote went in the top half vs. bottom half, both in 2012 and 2020. Here are the data colored by the 2020 results. The numbers represent the Democratic minus Republican vote share for that year and "half." For example, in the three most populous counties in Illinois in 2012, Barack Obama beat Mitt Romney by 38 points. In the rest of the state, Obama lost by 5 points. In 2020, Joe Biden beat Donald Trump by 41 points in the three big counties but lost the rest of the state by 9 points.
| State | Top half | Bottom half | Top half | Bottom Half | |
| Illinois | 38% | -5% | 41% | -9% | |
| Minnesota | 18% | -4% | 30% | -17% | |
| Michigan | 20% | -2% | 16% | -10% | |
| Wisconsin | 15% | -2% | 17% | -15% | |
| Indiana | 1% | -21% | 3% | -34% | |
| Iowa | 15% | -3% | 12% | -28% | |
| Ohio | 18% | -13% | 16% | -32% | |
What is noticeable is that the top half sort of voted for the Democrat in 2020 by roughly the same margin in 2012 and 2020. However, the bottom half moved to the right in every Midwestern state, and sharply to the right in all but Illinois. This shows how concentrated the Democratic vote is. Each state has a few (urban and suburban) counties that are heavily Democratic with the rest of the state strongly Republican. These data basically reinforce what Amy Walter wrote, that the country is already heavily divided, not only among the states, but also among the counties within each state (at least in the Midwest, but we suspect in almost all states). (V)
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