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Congressional Drama, Part I: Gaetz Pulls the Trigger

Rep. Matt Gaetz (R-FL) badly wants to stick it to Speaker Kevin McCarthy (R-CA), in part because the two men loathe each other, and in part because Gaetz has decided that "more extreme than Ron DeSantis" is a good strategy for getting elected governor of Florida in 2026. However, there clearly isn't much enthusiasm for jettisoning the Speaker right now, even among the Freedom Caucusers, who would prefer to reserve the maneuver for a more appropriate time. In a development that should surprise nobody, Gaetz weighed his own personal interests versus what his colleagues want, and decided his own needs are paramount. So, he filed the motion to vacate yesterday afternoon.

At the moment, Gaetz has two problems to worry about. The first is that if he is actually going to send McCarthy packing, he needs to round up the 218 votes to do it. If the Representative is going to succeed, he'll need big-time buy-in from the Democrats, along with some buy-in from the FCers. Neither is a sure thing. House Minority Leader Hakeem Jeffries (D-NY) is playing his cards close to the vest, but there is some upside in rallying his caucus behind either course of action. The Democrats could support a motion to vacate, thus creating chaos on the other side of the aisle. Then the blue team would stock up on popcorn, enjoy the show, and do media hit after media hit talking about what happens when you let the Republicans/the Trumpers have actual power.

The blue team's alternative is to work with McCarthy to save his speakership in exchange for concessions. There's been no indication that such discussions have taken place, or that McCarthy would be open to cooperating with the enemy. That said, there's no viable long-term plan for McCarthy that doesn't involve working with the Democrats sometimes. And let's be honest, the Democrats are more inclined to play nice than to go full Machiavelli. So, the odds of a meeting of the minds have to be somewhat meaningful.

Meanwhile, the votes of the FCers would seem to be the easier part of the equation but... maybe not so much, as it turns out. Rep. Marjorie Taylor Greene (R-GA) is not a formal member of the FC anymore, but she still shares their mindset. She warned yesterday that Gaetz' maneuver "will not be tolerated" by Republican voters. Rep. Jason Smith (R-MO), unlike Greene, is still a member of the FC and is not a sometime-ally of McCarthy. He blasted the motion to vacate as "a waste of time" driven by Gaetz' "personal grudge" with the Speaker. The entertainers on Fox are also pooh-poohing the move. It is hard to imagine that Gaetz would have moved forward without having at least some FC support, but thus far none of his far-right colleagues have publicly committed to supporting the move.

In short, Gaetz' maneuver could very well be in trouble. Since this is the first time in more than a century that there has been an attempt to vacate the chair, and since the chair has never actually been successfully vacated, the Representative should have foreseen that this was going to be a tough hill to climb. The fact that McCarthy's "crime" is merely maintaining the status quo makes that doubly true; there would undoubtedly be more FC sentiment for vacating once McCarthy grants some actual, significant concessions to the Democrats.

And if Gaetz fails, and ends up with egg on his face, that's not the end of it. He's threatening to bring motions to vacate daily, just to make his point... or something. But this brings us to the second problem he needs to worry about. Most of his colleagues loathe him; they dislike his political grandstanding, and they also dislike him personally. Meanwhile, the Representative's track record is not exactly as pure as the driven snow. And so there is some scuttlebutt that House Republicans might vote to expel Gaetz. They would be down a member for a while, but eventually the ruby-red FL-01 (R+19) would elect another Republican to replace him. That would eliminate this particular headache, unless the person elected to replace Gaetz is... Matt Gaetz (very much like what happened with the two state House members in Tennessee).

In short, there's a lot of 3-D chess to be played in a short time. A motion to vacate is privileged, so it won't be long until we see how things play out. (Z)

Congressional Drama, Part II: Other Storylines

Matt Gaetz may be the prima donna of the current Congress, but he's not the only donna. There's a lot of other stuff going on in the legislature right now:

• Ukraine Aid: There is majority support for Ukraine aid in the Senate. There is probably majority support for Ukraine aid in the House. However, enthusiasm is not as great as it once was in either chamber. It is also clear that attaching Ukraine aid to the broader budget just makes things more complicated and more difficult to manage. So, the odds are that there will be a Ukraine aid-only bill sometime very soon, and that there will be much effort put into getting it through both chambers before the Budgetary Royal Rumble.
  
  
• Madame Senator?: If everything goes according to plan, VP Kamala Harris will swear Laphonza Butler in today as the replacement for Dianne Feinstein. However, there is an opportunity for Republicans to object to Butler, and they might take it.
  
  The problem here is that the Constitution lays out these qualifications for a Senator:

  No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

  Meanwhile, the Seventeenth Amendment added this:

  When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

  The basis for objecting to Butler is that she is not currently a resident of California (she currently lives in Maryland). She is also not registered to vote in California, as previously reported, though she plans to change her registration today.
  
  So, there is an argument that the Senator-designate is not actually qualified. That said, California law actually has several different standards for residency, and while we previously noted the most stringent of them (366 days for people who want to pay resident tuition at the state's universities), there are other standards laid out in California state law that are less exacting. Furthermore, James Madison himself (i.e., the primary author of the Constitution) noted that he and the other framers chose "inhabitant" instead of "resident" to leave room for people who may leave their home state "for a considerable time on public or private business." And finally, note that the requirements for a senator laid out in both Article I and the Seventeenth Amendment speak to an elected senator. Butler, of course, is not elected, and the Seventeenth Amendment, in particular, could be read as saying anyone can be appointed until a replacement senator is duly elected.
  
  We doubt that Senate Republicans will actually try to block Butler, since the best-case scenario for them would be to muddy the waters a bit until the Democratic majority voted to approve the Senator-designate anyhow, or until the courts stepped in, or until Gov. Gavin Newsom (D-CA) made a new pick. The real lesson here, as Slate's Mark Joseph Stern points out in the linked article: "The Constitution does not have all the answers. And when we pretend it does, we empower unelected judges to make up the answers and attribute them to the infinite wisdom of long-dead Framers."
  
  
• Look at Me, Part I: Rep. Victoria Spartz (R-IN) issued a statement yesterday that reads:

  I've done many very difficult things being one woman standing many times with many very long hours and personal sacrifices, but there is a limitation to human capacity. If Congress does not pass a debt commission this year to move the needle on the crushing national debt and inflation, at least at the next debt ceiling increase at the end of 2024, I will not continue sacrificing my children for this circus with a complete absence of leadership, vision, and spine. I cannot save this Republic alone.

  That sounds pretty definitive, but: (1) the headline on the statement is "Spartz Will Consider Resigning Congress if No Debt Commission Passed this Year," and (2) in our experience, creating a commission is a pretty empty gesture that rarely leads to anything substantive. So, our guess is that this is just posturing. Alternatively, Spartz may already have a new gig lined up, and may just want to give herself cover when she goes to work for the Indiana Hog Castraters' Association or whomever. Obviously, if she does leave, the Republicans' margin for error gets even more paper-thin.
  
  
• Look at Me, Part II: Spartz is not the only member looking to make a statement right now. Dean Phillips (DFL-MN) yesterday quit his leadership post in protest of the Democrats' support of Joe Biden's reelection bid. "My convictions relative to the 2024 presidential race are incongruent with the majority of my caucus, and I felt it appropriate to step aside from elected leadership," Phillips said in a statement.
  
  Phillips is one of the most centrist Democrats in the House, so this might reflect genuine sentiments on his part. On the other hand, he's teased a presidential bid of his own, so this might be laying the groundwork for that. In any event, his leadership position was pretty low (co-chair of the House Democratic Policy and Communications Committee, which is roughly #9 on the totem pole). And, as you may have noticed, centrists don't get picked to lead the Democratic caucus these days. So, Phillips didn't give up much to make whatever statement he's making.

Congress is in session right now, and is going to have the pedal to the metal leading up to the winter break. Meanwhile, this is the best opportunity to score some headlines before the presidential race drowns most everything else out. Oh, and there's also the small matter of the budget that still needs to be worked out. Add it up, and there should be a lot of news from Capitol Hill in the next several weeks. (Z)

Trump Legal News: 99 Luftballoons

Three songs predominantly in German have made the Top 10 of the Billboard Hot 100 singles chart in the United States. One of those is "99 Luftballons" by Nena. If you'd care to see if you can guess at least one of the other two, we'll put the titles below. One of the answers is doable, while the other is... tough. In any event, the 99 balloons in the Nena song float away, so you know they're full of hot air. And they're German, of course. Also of German heritage and full of hot air? Donald Trump. Particularly on Sunday night, which is why we chose that song.

It was not 100% clear that Trump would appear in person for the first day of his New York civil fraud trial, but he did. And he decided to get things going early by hopping on his social media platform for some ranting and raving. We're talking 1:00 a.m. here, so clearly it was a sleepless night. Here's a sample:

Judge Engoron’s Valuation of Mar-a-Lago, the most spectacular property in Palm Beach, Florida, IS FRAUDULENT! He states a value of 18 Million Dollars, knowing full well that it is worth, perhaps, 50 to 100 times that amount. Engoron is working diligently to misrepresent me, and my net worth, which is substantially MORE than is shown on my fully “disclaimed” Financial Statements. I have not even included my most valuable asset – BRAND! He should resign from the “Bench” and be sanctioned by the Courts for his abuse of power, and his intentional and criminal interference with the Presidential Election of 2024, of which I am leading all candidates, both Republican & Democrat, by significant margins. Likewise, Letitia James should resign for purposeful and criminal Election Interference. She is fully aware that Mar-a-Lago, and other assets, are worth much more than what she is claiming. Both of these Democrat Operatives are a disgrace to New York, and to the United States of America!

It's gotta be a Trump original, as opposed to the work of a staffer, given the run-on, nearly incoherent style of the thing.

Trump also blasted the judge multiple times, in person, while talking to reporters yesterday. Generally speaking, it's not wise to badmouth a judge before a jury trial, since the judge makes so many important decisions affecting the defense. An even worse idea, however, is to badmouth a judge before a bench trial, which is what this one will be. That's right. As Judge Arthur Engoron announced at the start of the proceedings yesterday, there will be no jury because neither side asked for one.

This is a correct statement, of course, but it comes with a caveat. There is a form that is filed at the start of a New York trial, which you can see here:

As you can see, New York AG Letitia James and her team did not see a need for a jury trial. The form filed by Team Trump didn't ask for a jury trial, either. So, no jury!

But that brings us to the caveat. Quite a few outlets are reporting this news along the lines of "Trump hires crappy lawyers, and now he's paying for it, because they made a bush-league mistake." Not so fast. Quite a few legal experts think that Trump couldn't have had a jury trial even if he asked for one. Here's our New York lawyer-reader R.E.M. in Brooklyn:

I've read various commentary about how Trump's lawyers erred by failing to file a timely jury demand, but because section 63(12) and its remedies were unknown at common law, and because the AG is asking only for equitable relief (orders of dissolution, receivership and disgorgement) instead of legal damage relief, no jury trial is available under the New York Constitution.

Second, even if Trump's team believed he was entitled to a jury trial, they might have determined that a bench trial was the better play (say, because the New York City jury pool is very un-Trumpy). Add it up, and what Engoron was effectively announcing was: "Well, nobody asked for a jury trial, so we don't have to waste time arguing about whether one is even available."

Trump does have some legal legs that he will try to stand on, as indicated by the opening statements. His counsel made the classic "everyone does it this way" argument, which seems unlikely to fly, but you never know. Engoron, for his part, noted that the trial could run into some statute of limitations problems in terms of some of the testimony. If the judge himself is bringing it up, that seems a more likely argument to succeed, even if it's not enough to torpedo the whole case.

But even if there's a very slight potential silver lining here and there for Trump, he still looks to be in a world of hurt, especially considering he's already lost on one of the counts against him. Back to R.E.M.:

This is deep in the legal weeds, but sometimes you and the readers seem to appreciate this kind of crawling around. Last week's order from Judge Engoron found that there is no dispute of fact, even considering the heightened civil fraud standard of proof in New York of "clear and convincing evidence." It is very rare to win a fraud claim on summary judgment since "fraudulent intent" is an element.

The order is devastating—a corporate death penalty for Trump's entities. And it's not just property located in New York that is affected. It is "ORDERED that any certificates filed under and by virtue of GBL § 130 (which allow them to do business as New York entities) by any of the entity defendants or by any other entity controlled or beneficially owned by Donald J. Trump, Donald Trump, Jr., Eric Trump, Allen Weisselberg, and Jeffrey McConney are canceled" (emphasis added). That means Trump cannot do business with any existing entity he controls.

In the next paragraph, the order directs the appointment of a Receiver "to manage the dissolution of the canceled LLCs," that is, an independent person/entity is going to liquidate all of the Trump entities' property, not just Trump Tower, 40 Wall Street, and other New York real estate, but everything: Mar-a-Lago, the Scottish golf course, Bedminster. Early on in the case, Trump tried to transfer some of his assets to a non-New York entity, but was prevented from doing so by the judge.

Now, that said, Justice Engoron was pressed by Chris Kise (a now-sanctioned Trump lawyer) whether the order meant sale of the properties, or if the Receiver could manage them. Kise also asked about entities allegedly not connected to the Attorney General's suit, such as those that own Junior's and Eric's apartments. Justice Engoron said he wasn't prepared to rule, so he could modify the order to let some of the entities live and maybe even operate under the Receiver (and the Appellate Division and Court of Appeals also have a free hand to modify the findings and the remedies). But Kise is right about the broad scope of the order on its face.

What it amounts to is that Trump either needs to do very well in this trial, or he needs to have success on appeal, or (more probably) he needs both, or he's likely going to be left in ruins, financially.

Given how much is at stake here, why would Trump behave so foolishly, and do everything possible to aggravate the judge? We've thought about it, and here are our three theories:

1. The former president is so far gone, in terms of his rage and paranoia and his constant need to rail against his "enemies," that he can no longer act in a rational manner when he's upset, and his only working gear is "pure id."
   
   
2. He's trying to give himself basis for an appeal.
   
   
3. He knows he's going to lose bigly, and he wants to at least get some political mileage out of it.

Who knows if it's one or more of these things, or if it's something else we did not think of. This trial's going to take a while, because it's going to get weedy, so we'll have to be patient while we wait to see how it turns out. (Z)

John Kelly: It's All True

Back in September 2020, there was a much-discussed article in The Atlantic in which an "anonymous" but high-ranking member of the Trump administration relayed some very unpleasant things that then-president Donald Trump said about veterans. When we wrote about it at the time, we summarized it thusly:

The Atlantic has a new story that, if true, would be very damning. According to numerous inside sources, the President has regularly demeaned veterans who paid the ultimate price. For example, during the now-infamous trip to France, during which Trump declined to participate in rain-soaked 100th anniversary ceremonies at Aisne-Marne American Cemetery, he reportedly told one aide "Why should I go to that cemetery? It's filled with losers," and said to another that 1,800 Marines who lost their lives at Belleau Wood were "suckers" for getting killed. When John McCain died, Trump reportedly remarked "We're not going to support that loser's funeral," and objected to flying flags at half-staff in the Senator's honor, asking "What the fu** are we doing that for? Guy was a fu**ing loser." George H.W. Bush got similar treatment, apparently, with Trump describing his predecessor as a "loser" for having been shot down. And when the President was dreaming of a North Korean-style military parade, he supposedly did not want any amputee veterans invited, observing "Nobody wants to see that."

We believed the allegations to be true (and we explained why in the linked item). Meanwhile, pretty much everyone at the time suspected that former White House Chief of Staff Gen. John Kelly (ret.), who was dismissed as Chief of Staff well over a year before the story went to print, was The Atlantic's primary source. Yesterday, in a statement released to CNN, Kelly finally confirmed that he was indeed the source, and reiterated that everything he told the magazine was the truth.

We pass this along primarily because of the item we had yesterday about how to damage Trump. What that piece said, in essence, is that attacking Trump the politician is worthless. His voters don't really care that he doesn't deliver on policy, or that his policies are often incomprehensible or contradictory. On the other hand, it does work to attack Trump the person. One can imagine a few ads next year featuring Kelly—a wildly popular, very successful, highly decorated Marine Corps general—talking about how he just can't vote Trump because Trump doesn't respect the troops. Think something along the lines of the famous "Confessions of a Republican" ad from 1964. Could be powerful stuff. (Z)

Suarez In Hot Water

We tend to assume this is the last item we will ever write about "presidential candidate" and Miami mayor Francis Suarez (R), but you never know, since we also assumed the last one we wrote would be the end of our Suarez coverage.

The Miami mayoralty, like so many prominent political posts in the South (and some elsewhere), is a part-time job. That means that Suarez also has "alternate" employment. Do you know how many different side gigs he's had since Jan. 1, 2022? How about: 13. Undoubtedly, those were all on the up-and-up, right? In addition, although Suarez draws a salary of $150,000/year, plus another $60,000 for various expenses, he likes to live a seven- or eight-figure lifestyle. So, he's apparently accepted lots of perks from private benefactors, like tickets to the World Cup and an invite to the annual Formula 1 viewing party held at the Paddock Club. Footing the bill for much of his hospitality was billionaire hedge fund manager Ken Griffin, who became "friends" with Suarez after the latter was elected mayor, and who surely has no ulterior motives.

As it turns out, Florida law covers these sorts of gifts. Unless the fancy-pants perks are paid for by the city or an immediate family member, Suarez has to file disclosure paperwork. He did not do so. The city most definitely did not pay, for example, for $12,000 in viewing-party admissions, so either the Mayor needs to find a close, wealthy relative who will cop to making the purchases, or he's in deep doo-doo. Since Suarez has already claimed (incorrectly) that he was on government business, and that is all that matters, he presumably will not be producing a close, wealthy relative. Unless Rep. Alex Mooney (R-WV), who is Suarez' cousin, wants to get a divorce from his wife and then marry Griffin.

The Florida Commission on Ethics has formally launched an investigation; it's not clear how long it will take, or what sanctions Suarez might face. We pass this story along for two reasons, however: (1) having these political jobs be part-time really seems like it creates more problems than it solves, and (2) it's a shame that the mayor of the 44th largest city in America (in other words, a relatively small fish) can be held accountable for this sort of behavior, but a Supreme Court justice (a much larger and more impactful fish) cannot. (Z)

RFK Plotting Independent Bid

Speaking of quixotic presidential campaigns we were not sure we'd be writing about again, there is some news worth mentioning out of the RFK Jr. camp: He is laying the groundwork for an independent bid.

If one's goal is to get attention and/or sell books about quackery, this makes all the sense in the world. If Kennedy were to stick with being a Democrat, then sore-loser laws would end his candidacy in most states once the primary is held. As an independent, he can be a "presidential candidate" until Election Day of next year. That's more than enough to get him an endless supply of interview opportunities with fringe/kooky media outlets.

The question, of course, is whose hide RFK Jr. votes would come out of: Donald Trump's or Joe Biden's (assuming they are the candidates). We do not know that at this point, since polling of third-party candidates is even less meaningful a year out than polling of major-party candidates. We can say this, however:

Reasons Democrats might vote RFK Jr.: He says he is a Democrat, he is a Kennedy

Reasons Trumpers might vote RFK Jr.: Everything that comes out of his mouth

For what it is worth, an RFK campaign insider decreed: "This is going to f**k Trump." Certain Trumpy commenters on the right, like Charlie Kirk, agree. And virtually all of Kennedy's money is coming from right-wingers.

Whatever the polls show, when and if things start to take shape, just keep in mind that some sizable portion of people who say they are going to vote third-party do not ultimately do so. It's easier to say you're going to spend your vote on a sure loser than it is to actually do it. That said, if polls begin to show that RFK Jr. is drawing twice as much support from Trumpers than from people who would otherwise vote Biden, that's probably meaningful. We hope that pollsters make a point of asking this question: "If you had to vote for a major-party candidate, which would you vote for?" (Z)

Sinema Has Her Game Plan

And speaking of faux Democrats turned independents, Sen. Kyrsten Sinema (I-AZ) has been talking to her donors about her plans for reelection. It is not clear from the reporting if she talked to her donors individually, or if she chatted with both of them at the same time.

Whatever the case may be, the Senator's plan—which has been titled "Kyrsten's Path to Victory"—is to get the votes of 10% to 20% of Democrats, 60% to 70% of independents and 25% to 35% of Republicans in Arizona. In a three-way race, Sinema's team thinks that will be enough to eke out a victory. The Senator apparently plans to highlight all the legislation passed in the past 18 months, like the infrastructure bill and the gun control legislation, assuming the lion's share of the credit for those bills.

Officially, Sinema still hasn't declared a reelection bid, and her people are insisting that this game plan is not an indication that she's made a decision. OK, maybe not, but it's rather far removed from the Full Sherman. Further, candidates do not generally develop detailed prospectuses of their campaign strategy, much less raise $10 million, if they plan to go gentle into that good... well, lucrative career as a lobbyist or member of corporate boards.

This said, we think there are some pretty big flaws in Sinema's strategic thinking. The first is that the majority of independents, regardless of the state, are not really independent—they are Republicans or Democrats in all but name. Nobody gets elected on the strength, primarily, of independent votes. Sens. Angus King (I-ME) and Bernie Sanders (I-VT) win elections because they are the de facto Democratic candidates and they get the lion's share of the Democratic vote. And the first time Sinema ran (as a Democrat, of course), she got 97% of the Democratic vote and 50% of the independents.

Second, it's pretty clear that Arizona isn't really Republican vs. Democrat right now; it's MAGA vs. anti-MAGA. The anti-MAGA voters may be of very different political stripes, but they share a view that people like Kari Lake should not be allowed within a country mile of actual political power. We are skeptical that the anti-MAGA voters are going to split the vote and risk letting Lake win. Instead, they will line up behind whichever candidate, between Sinema and Rep. Ruben Gallego (D-AZ), seems to be leading in the polls. And thus far, that's Gallego, comfortably.

It is certainly possible that if the polls say Sinema's a surefire loser, she'll drop out and conserve her campaign money and her energy. That said, if she was playing the game by the normal rules, and if she really wanted to keep her job, she wouldn't have become a Democratic apostate. No, she would have kept her head low and (largely) voted the party line, like a good soldier (see: the voting record of Kelly, Mark, D-AZ). So, we can't really claim to understand or to be able to predict Sinema's thought process. (Z)

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Besides "99 Luftballons," which went to #2 in 1984, there was also "Sailor (Your Home Is the Sea)" by Lolita, which went to #5 in 1960, and "Rock Me Amadeus" by Falco, which went to #1 in 1986.
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