Republicans React to Trump's Imminent Arrest

We still don't know if Donald Trump will be arrested tomorrow, as he claims. We think that is unlikely because his television lawyer, Joseph Tacopina, has said that if Trump is indicted, he will surrender without resistance, and there isn't much time for that to happen by Tuesday. Still, the fact that the police are making plans for dealing with a potential riot suggests that an indictment is likely this week. In fact, Bragg sent a memo to his staff Saturday assuring them that their safety was his top priority. In any event, the spin has already begun.

Speaker Kevin McCarthy (R-CA) bravely announced that he would direct relevant committees to investigate if any federal funding is being used to "subvert our democracy." Note to Kevin if you are reading this: Bragg is the New York County D.A. He works for the State of New York. He is not funded by the federal government. You are better off holding your fire until special prosecutor Jack Smith reports back. He is a supported by federal funding. (Though, so what?)

Rep. Elise Stefanik (R-NY), the #3 Republican in the House, said that the "Radical Left" will have Trump arrested because they know they cannot defeat him in an election." She also said this is un-American and reaching a dangerous new low of Third World countries.

Rep. Marjorie Taylor Greene (R-GA) sensed a chance to be in the news, so she tweeted: "If the Manhattan DA indicts President Trump, he will ultimately win even bigger than he is already going to win. And those Republicans that stand by and cheer for his persecution or do nothing to stop it will be exposed to the people and will be remembered, scorned, and punished by the base. President Trump did nothing wrong and has always fought for the American people, and we all know it, which is why we love him."

Sen. J.D. Vance was asked if he would withdraw his endorsement of Trump for the 2024 GOP nomination if he were indicted. He said: "The answer is: 'hell, no.'"

Sen. Lindsey Graham (R-SC) said: "They're making stuff up that they never used against anybody because they hate Trump." A few other of the Trumpier Republicans also piped up. The real party heavyweights, by contrast, were conspiculously silent, although in fairness, Senate Minority Leader Mitch McConnell is recovering at home from a concussion. However, Minority Whip John Thune (R-SD) could have said something and he hasn't.

Not every Republican defended Trump though. Chris Christie went on ABC's The Week yesterday and said: "But the vision of a former president of the United States being processed, fingerprinted, mugshot-ed—you know, what else do we expect Trump to say than to say it helps his campaign? But being indicted, I don't think it ever helps anybody."

It will be interesting (and crucial) to see what the actual charges are. If Trump is indicted for failing to report an election expense (the payment to Stormy Daniels), it is indeed a weak case. Trump's lawyers will argue that he made the payment, but to avoid personal embarrassment and/or to keep Melania from finding out. Convincing a jury beyond a reasonable doubt could be tough, even in Manhattan.

But Bragg might indict Trump for falsifying business records and tax evasion. That could be a stronger case. Trump apparently did deduct the $420,000 reimbursement to former fixer Michael Cohen from his company's income as a business deduction for legal fees. Then the case would hinge on whether Cohen did $420,000 worth of legal work for that money. If Cohen was an actual paid employee of the Trump Organization, he wouldn't be submitting bills for legal work. Doing legal work was his job. If he wasn't an actual employee, then Trump will be asked to show Cohen's invoice for services rendered worth $420,000. How much work that represents depends on Cohen's hourly rate. Bragg could have other Manhattan lawyers testify about how much a lawyer with Cohen's skills and abilities could charge. He's not David Boies. And he's certainly not Gloria Allred. Suppose he charges $400/hour (just a guess), but probably on the high side for a fairly mediocre lawyer like Cohen. The $420,000 would represent 1050 hours of work. That's 131 days' or 4 months' work. Can Trump explain what legal work Cohen did for him full time for 4 months? Was there any work product delivered or report he wrote giving his findings? When a lawyer works for 4 months full time, the report can't just be an oral statement: "Yes, what you want is legal" or "No, what you want is illegal." A few footnotes are needed. The New York Times has a story on the possible charges Trump might face.

Although we don't know how the coming indictment(s) will play out politically, some people have started to speculate. In the short run, they could work in Trump's favor. He is great at playing the victim and the people in his base see themselves as victims, in complete contrast to the historical view that Americans are winners and can achieve anything. He is very lucky that the New York case is the weakest and hardest to understand of all the pending cases, but unlucky in that the probable second one (threatening an election official in Georgia) is very easy to understand). Trump will likely get small-dollar donors to pony up and he will raise a lot of money. Having lots of peaceful protests will probably help him, but if they turn violent, it will remind everyone of Jan. 6 and that won't help at all with independents and Democrats.

For the Republican Party as a whole, indictments will cause trouble. Every candidate for every office from president to deputy assistant dogcatcher is going to be asked if Trump is guilty. This forces them to take positions that might help in the primaries but probably won't help in the general election. Or positions that will be deadly in the primaries, and... well, forget about the general, RINO. Also, some people are going to be thinking: "What if Trump wins the election but is sentenced to prison in Georgia?" The Republicans among them might think that someone else would make a better nominee. Mike Madrid, one of the founders of the Lincoln Project, summed up the situation by saying: "The intensity of a shrinking base is not the sign of a growing movement. It's the sign of a dwarf star imploding." (V)

Facebook and YouTube Let Trump Return

Donald Trump did get some good news this weekend. Both YouTube and Facebook are letting him back on their platforms. He grabbed the opportunity and made posts to both saying: "I'm back." What he will do with the boutique social network he owns remains to be seen. He could keep it and post to all three, of course. Given that he is likely to be indicted in Manhattan this week, he will need all the publicity he can get to rile up his base, so the timing here is good for him. His Twitter account was reinstated in November by Twitter's new owner, Elon Musk, but he hasn't used that one yet. Still, he now is back where he was before being banned, with the addition of his own social media network

YouTube defended allowing Trump back in by stating: "We carefully evaluated the continued risk of real-world violence, while balancing the chance for voters to hear equally from major national candidates in the run-up to an election." How YouTube (which is owned by Google) could estimate the chance of a Trump video on the platform leading to violence is beyond us. Has Google written a simulator for Trump's base and tested it by feeding it various videos calling for violence? Or maybe Google just asked ChatGPT for advice.

In case you have forgotten the history, YouTube suspended Trump's account a few days after the Jan. 6, 2021, coup attempt. It also blocked comments on Trump's videos. Commenting has also been restored. With everything now back to pre-coup status, Trump will now be able to post videos and also buy ads on YouTube. The same is true on Facebook. These are his main tools for reaching his base and he will no doubt use them heavily during his campaign. Undoubtedly, the fact that they will reap millions in revenue by bringing Trump back never even crossed the minds of the deciders at Facebook and YouTube. Nope, not for a moment. (V)

DeSantis Has Some Foreign Policy Experience

As a former ambassador to the U.N., Nikki Haley has a fair bit of foreign policy experience. As vice president, Mike Pence attended some funerals and met some foreign leaders. But what about Gov. Ron DeSantis (R-FL)? It turns out he does have some, but it is kind of specialized. His foreign policy experience definitely does not involve going to lovely cocktail parties with other ambassadors, as Haley's does. Very little has been written about it but we suspect it will become a big issue before too long, certainly if he makes it to the general election. The Washington Post had a long article about the subject yesterday. It is worth reading since this period of DeSantis' life hasn't been put under the Big Microscope—yet.

When DeSantis graduated from Harvard law School cum laude in 2005, he could have joined a white shoe law firm, worked hard, something he is very good at, made partner in due course, and become very rich. Instead he joined the Navy as an officer in the Judge Advocate General Corps. Then he volunteered to go to a place rather different from the offices of a top law firm: the military prison at Guantánamo Bay. Around March 2006, he traveled frequently between Florida and Gitmo. His commanding officer, Capt. Patrick McCarthy, quickly realized that the young lieutenant jg was extremely sharp and not only knew military law, but could give good legal advice on many matters, so he frequently asked DeSantis for legal advice.

One issue that came up fairly quickly was what to do with the prisoners who hadn't even been charged with anything. DeSantis believed that the government had every right to imprison suspected terrorists without charges or trials. He advised his superiors accordingly. Another issue that came up quickly was what to do about hundreds of prisoners who had gone on a hunger strike. If many of them had died in U.S. custody, that could have been a PR nightmare. When higher-ups asked DeSantis what they could legally do, he said: "Hey, you can actually force-feed." Force-feeding is not pulling the prisoner's mouth open and stuffing in military rations. It is strapping the prisoner to a chair so he can't move, then shoving a big rubber tube far up his nose until it reaches his esophagus. It is tremendously painful procedure. Then a military nurse pours two cans on liquid protein through the tube, which keeps the prisoner alive until the next force-feeding. The U.N. Commission on Human Rights calls the procedure torture and says it is banned in international law. DeSantis clearly didn't agree.

In June 2006, DeSantis was thrust into a crisis. Three prisoners were found dead on the same night. The Bush White House wanted a resolution—and fast. DeSantis was part of the team that investigated the deaths. The final report said that all three hanged themselves, a conclusion that is still disputed by human rights groups and a former guard. DeSantis' role in the investigation is vague and he has never discussed it in public. He probably doesn't want the first time to be in a televised debate, but it could happen. Desantis service at Guantánamo Bay ended on Jan. 31, 2007.

The prison commander, Col. Michael Bumgarner, noted that coming from the cloistered worlds of Yale and Harvard Law School to Gitmo would have shocked DeSantis. He said if anyone goes there, "You've seen the really bad side of human beings, of human nature. You know what bad can be and you dealt with it. And so I'm sure it hardened him [DeSantis]."

In 2014, Fox host Greta Van Susteren pressed DeSantis on why it cost $2.7 million a year to keep a prisoner at Gitmo when it costs $78,000 a year to keep a prisoner at the supermax prison in Colorado. DeSantis said: "They get three special halal meals a day. The get round-the-clock medical care. They get Qurans when they want it." A spokesman for the Federal Bureau of Prisons shot this down immediately. He provided documentation that showed that all federal prisoners, even at supermax, are entitled to a religious diet, religious books, and medical care.

In May 2016, DeSantis was chairman of a House national security subcommittee. In that post, he opposed closing Gitmo and transferring the prisoners to other prisons. He also opposed giving them the rights all other prisoners have, such as the right to know the charges against them and a trial. This gives a preview of how he might treat civil liberties as president. When he ran for governor, he ran ads showing him in his Navy uniform and said that he had dealt with terrorists.

All of this history is certain to come out during a presidential campaign. The question is whether it will hurt or help DeSantis. No doubt Democrats will be appalled by it. They will say that the prisoners should have been charged and given a trial. Only if they were found guilty should they have been kept in prison. However, many Republicans may approve of Gitmo and DeSantis' role there including the torture and violation of international law part, saying: "He kept us safe." We shall see. (V)

The Trumpire Strikes Back?

Republican politicians are worried that some of the ultra-Trumpy candidates who ran in 2022 and were crushed are coming back for more punishment in 2024. The politicians know that the electorate is probably going to be even less favorable to them in 2024 than it was in 2022 and are fearing the worst.

Their biggest worry is that Kari Lake, who still thinks she is governor of Arizona, will run for the GOP nomination to challenge Sen. Kyrsten Sinema (I-AZ), who is probably going to face Rep. Ruben Gallego (D-AZ). In a three-way race, Lake might well cause enough Republicans to vote for Sinema, thus pulling her total below Gallego's. Since Arizona doesn't have run-offs, this could elect Gallego. With a less controversial candidate, the Republicans have a much better chance of flipping the seat.

Another Senate race Republicans are worried about is that of Sen. Bob Casey (D-PA). Doug Mastriano, a super Trumper who was crushed by now-Gov. Josh Shapiro (D-PA), is consulting God and his wife and, if they approve, is likely to challenge Casey. If he does, he is very likely to get the GOP nomination. If Mastriano couldn't win an open seat election, he is almost certainly going to be crushed by the three-term incumbent senator. This race is less devastating than the Arizona one because Arizona is potentially winnable with the right candidate. Pennsylvania will be a steep climb even with an ideal candidate. Popular incumbent Democrats are tough to beat in presidential election years no matter who their opponents are.

But wait, there is more. Joe Kent is going to run again against Rep. Marie Gluesenkamp Perez (D-WA), who beat him in November for an open seat. Now that she is an incumbent, she is in a stronger position than she was last year. In Ohio, J.R. Majewski is likely to challenge Rep. Marcy Kaptur (D-OH) again. He was felled in 2022 by his pulling a nano-Santos and lying about his military service. We doubt that Kaptur has thrown out all the ads she used against him last time. Reusing them will just save her some money. In North Carolina, Bo Hines, a former football player, ran in NC-13 last year and was beaten solidly by Rep, Wiley Nickel (D-NC). If the map stays the same as it was—and it might not because the current state Supreme Court might reinstate a gerrymandered map that the previous state Supreme Court threw out—he will probably lose again. But if the map makes NC-13 redder, he might have a chance. These are only a few of the defeated Trumpists who are champing at the bit to run again. There are others as well. If Trump supports them in the primaries, they are likely to become the nominees again, and in most cases go down again.

One difference with last year is how the Republican election committees will proceed. The NRCC will not interfere in primaries, so wacko House candidates may well be able to win again. However, the NRSC will put its thumb on the scale in an attempt to prevent candidates like Herschel Walker, Blake Masters, and Mehmet Oz from getting Senate nominations. Of course, if Trump actively supports them on all of the social media networks he now has access to, the NRSC's efforts may come to naught. (V)

New Chief Judge on D.C. District Court Will Oversee Trump Cases

We hate to write items like this, but you gotta do what you gotta do. In theory, it shouldn't matter which judge handles which case. After all, all judges are supposed to simply apply the law, so the judge shouldn't matter. But as Yogi Berra once helpfully pointed out: "In theory, theory and practice are the same. In practice, they are not." For the past 7 years, Beryl Howell has been the chief judge of the D.C. district court. Her term is now up. On Friday she was replaced by James Boasberg, the one-time roommate of Brett Kavanaugh during law school at Yale. Boasberg will now oversee any sealed cases involving Donald Trump that come before the court. However, although Boasberg and Kavanaugh were roomies, Boasberg was appointed to the district court by Barack Obama, so they are not exactly clones.

Howell went out with a bang, not a whimper. Late Friday she took the unusual step of handing over notes she got from Donald Trump's current actual (as opposed to television) attorney, Evan Corcoran, to special prosecutor Jack Smith. Usually a judge stays his or her opinion to let the relevant party appeal. Howell didn't do that and Smith now has the notes. No doubt his secretary worked overtime Friday to scan them all into Smith's document database.

Boasberg is no green newbie. He presided over the secret Foreign Intelligence Surveillance Court in 2020 and 2021. If the DoJ were to indict Trump, the trial would be in the D.C. district court, but Boasberg would not necessarily get the case, although as chief judge, he could probably take it if he wanted it. That aside, the chief judge has a lot of authority in DoJ cases relating to subpoenas, warrants, executive privilege, evidence, and more. He will be a serious player for the next 7 years.

Boasberg's initials are JEB and he is known as "Jeb," without the exclamation mark some other Jebs use. He was born in San Francisco but grew up in D.C. when his father got a job in Lyndon Johnson's administration working on the war on poverty. His B.A. and J.D. are both from Yale. In between the two, he picked up a masters from Oxford. After getting his law degree, he clerked on the U.S. Court of Appeals for the Ninth Circuit in San Francisco. Later, he was briefly in private practice, and then worked in the office of the U.S. Attorney for D.C. for 5½ years. In Sept. 2002, George W. Bush appointed him to the Superior Court of D.C. In 2010, Obama promoted him to the District Court. In 2014, Chief Justice John Roberts appointed him to the Foreign Intelligence Surveillance Court. As we noted above, a newbie he is not. Nevertheless, this will be his toughest job ever. (V)

Many State Supreme Court Seats Will Be on the Ballot in 2024

State Supreme Courts are potentially just as subject to partisan politics as the U.S. Supreme Court. We have discussed the North Carolina Supreme Court and the Wisconsin Supreme Court recently. In both states, partisan politics has infiltrated the Courts. But as the country gets more and more polarized, politics is entering the mix in other states as well. This movement is encouraged by the fact that in many states, Supreme Court justices are elected and in others they have to undergo a retention election periodically. This means that justices have to campaign. Ultimately that means getting questions like: "Does our state Constitution protect a woman's right to an abortion?" "Beats me" is probably not a good answer. Of course, an alternative way of populating the state Supreme Courts—having the governor appoint justices—doesn't really get the politics out of appointments. Maybe some other way is needed, such as having a judicial commission made up of half Democrats and half Republicans and requiring a two-thirds majority for an appointment.

Currently, quite a few different methods are used to populate the state Supreme Courts. Here is a state-by-state breakdown:

Of the states that have elections for justices, 32 states will have them next year, with 73 seats at stake. Some of these elections don't matter, but in some the balance of power on the court is at stake. Larry Sabato's Crystal Ball has taken a first look at these elections. Here is a table showing who's up where.

Here is a brief rundown of the 32 states:

PARTISAN ELECTIONS

In these states, there is a (D) or (R) after the candidate's name, so the partisanship is out in the open.

• Alabama: The Alabama Supreme Court has nine justices. All of them are Republicans. This is unlikely to change even though five seats are up in 2024. The chief justice spot is open due to the current chief aging out when he hit 70. Associate Justice Sarah Stewart is running unopposed for the top job.
  
  
• Illinois: The current balance is 5 Democrats and 2 Republicans. The 2024 election won't change control. However, not all votes are along party lines in Illinois. The two seats up in 2024 are both occupied by Black women, one Democrat and one Republican.
  
  
• Louisiana: The Louisiana Supreme Court has seven justices, each one elected from a separate district for a 10-year term. Currently five are Republicans, one is a Democrat, and the chief is an independent. One of the Republicans is up in 2024, but he was unopposed in 2014.
  
  
• North Carolina: Did you think that the principle of judicial review began with Marbury v. Madison? Wrong. It began in North Carolina with Bayard v. Singleton and was later adopted by the U.S. Supreme Court. The Court currently has five Republicans and two Democrats as a result of Republicans flipping two seats in 2022. The balance won't change in 2024 as the only justice up in 2024 is one of the Democrats.
  
  
• Ohio: Until June 2021, judicial elections were nonpartisan. Then the state legislature made them partisan. The Court is currently 4-3 Republican, but two Democrats and a Republican are up in 2024. If the Democrats sweep all three seats, they will take control, otherwise not. Since a Democratic-held Senate seat is up (Sherrod Brown), it's not impossible. But since Ohio is pretty red and Brown tends to outrun other Democrats, it's not too likely either.
  
  
• Texas: The Texas Supreme Court consists of nine justices, all of whom are Republicans. Three of them are up in 2024. Even in the unlikely event of a Democratic sweep, Republicans will keep the majority.
  

OSTENSIBLY NONPARTISAN ELECTIONS

These states have nominally nonpartisan elections, but in practice people generally know which party a candidate belongs to. In some cases, candidates previously held a partisan elected office (e.g., attorney general), so there is no question about it. In many states, vacancies are filled by the governor, so the partisanship of these justices is also clear.

• Arkansas: There are seven justices, nominally nonpartisan, but this is Arkansas. Two of them are up in 2024.
  
  
• Georgia: Eight of the nine justices were originally appointed by a Republican governor, four by Nathan Deal and four by Brian Kemp. Count them as Republicans. The ninth one, John Ellington, won a nonpartisan election. Two of the Republicans, including the chief, are up in 2024.
  
  
• Idaho: While most states have seven or nine justices, Idaho has only five, Four are Republicans appointed by former governor Butch Otter. The other, Robyn Brody, won a nonpartisan election in 2017. One of the Republicans is up in 2024.
  
  
• Kentucky: Six of the seven justices were elected by district in nonpartisan elections. One was appointed by former governor Steve Beshear, father of the current governor. The chief is up next year. Republicans in the state legislature don't like the Court, as it is too independent for their taste. They may try to change it, although since the current governor is a Democrat, they are unlikely to give the governor the power to appoint all justices.
  
  
• Michigan: Now we come to a swing court consisting of four Democrats and three Republicans. Michigan's system is unusual. Candidates nominated by the parties all run on the same ballot but without party labels. The top two finishers are elected. One Democratic woman and one Republican man are up in 2024, so a lot of money will be spent on these races as the balance is, well, in the balance.
  
  
• Minnesota: Another swing court here, currently with five Democrats and two Republicans, even though the elections are technically nonpartisan. Two Democrats and both Republicans are up next year. In theory, Republicans could flip the Court if they win all the marbles. Good luck in a presidential year in pretty blue Minnesota, though.
  
  
• Mississippi: The Court consists of nine justices elected by district for 8-year terms. However, if a seat becomes vacant, the governor fills it. Currently six seats were filled by Republican governors and three were filled by nonpartisan election. One Republican appointee is up in 2024.
  
  
• Montana: Each of the seven justices is elected to an 8-year term in a statewide nonpartisan election. If a vacancy occurs, the governor appoints a new justice. Currently there are two Democratic and one Republican appointee on the Court. Two of the nonpartisan justices are up in 2024, including the chief. Both are actually Democrats, though. Republicans want to shrink the Court to get rid of a justice they don't like. No one knows if that is constitutional.
  
  
• Nevada: Three of the seven justices are up in 2024, including the chief, who was appointed by a Republican governor. One of the others is a Democratic appointee and one was elected in a statewide nonpartisan election. All three are women.
  
  
• North Dakota: This is another minicourt, like Idaho's, with five justices. Four are Republican appointees and one won a nonpartisan election. One of the Republican appointees has to stand for election to fill out the rest of his term.
  
  
• Oregon: All seven of the justices were appointed by former Democratic governor Kate Brown. Four of them are up in 2024. In addition, Gov. Tina Kotek (D-OR) will soon appoint a replacement for Adrienne Nelson, who was recently confirmed as a federal judge.
  
  
• Washington: Washington also has an unusual system for electing justices. In every even-numbered year, three justices are elected to a 6-year term in a nonpartisan top-two primary. Currently five of the nine are Democratic appointees who filled vacancies. One of these and two elected justices are up in 2024.
  
  
• West Virginia: Another five-justice state here. The terms are long (12 years) so midterm appointments are common. Currently three of the five justices are Democrats. One Democrat and one Republican are up in 2024, so either party could end up controlling the Court in 2025.
  

RETENTION ELECTIONS

In many states, especially in the middle of the country (see map above), the governor appoints justices but they have to stand for election at the next general election. This means they are all running as incumbents and have a record to defend. Unlike a regular election, they don't have an opponent. It is just a straight "yes" or "no" on retaining the justice.

• Alaska: Another five-seater here. Currently there are three Republicans, one independent, and one vacancy on the Court. Two of the Republicans are up for retention in 2024.
  
  
• Arizona: When there is a vacancy, a bipartisan commission makes a list for the governor to choose from. Every six years, each justice must face the voters statewide for a retention election. The retirement age is 70. Currently all seven justices are Republicans, two of whom are women. One of the women and one of the men are up for retention in 2024. No justice has ever lost a retention election in Arizona.
  
  
• Colorado: When there is a vacancy on the seven-member court, a commission submits three names to the governor, who picks one. Then the justice faces a retention election before serving a 10-year term. The justices themselves elect their chief. All seven of the current justices are Democratic appointees. Three of them have retention elections in 2024. No justice has ever lost a retention election in Colorado.
  
  
• Florida: All seven of the justices are Republican appointees, four from Ron DeSantis and three from Charlie Crist back when he was a Republican. One of the two women is up in 2024.
  
  
• Indiana: Yet another five-seater here. All the justices were appointed by Republican governors. Two women, including the chief, and one man are up for retention in 2024.
  
  
• Iowa: All seven justices were appointed by Republicans. One of them faces a retention election next year. Whether the state Constitution protects abortion is an ongoing issue here.
  
  
• Maryland: Although Maryland is a very blue state, six of the seven justices were appointed by former governor Larry Hogan (R). Two of them (including the chief) plus the one Democratic appointee are up for retention next year. Unlike on the other state Supreme Courts, the Maryland justices wear red robes. If the voters want to shift the Court to the left, they can reject the two Republican appointees and let Gov. Wes Moore (D-MD) replace them.
  
  
• Missouri: The Missouri Court is split with four Republicans and three Democrats. One of the Democrats is up in 2024, so the Republicans will retain control, no matter what happens. The Missouri Supreme Court has handled some important cases in the past, including Dred Scott, which was later appealed to the U.S. Supreme Court.
  
  
• Nebraska: Nebraska does things differently from the other states. When there is a vacancy, a nominating commission gives the governor two names to choose from. After 3 years, the appointee has to run for retention. All six associate justices are retained by district. The chief is retained statewide. There is no mandatory retirement age. One interesting fact is that to declare a law unconstitutional, at least five justices must agree. Currently six of the seven are Republicans. The only female Republican appointee is up in 2024.
  
  
• Oklahoma: The Oklahoma Supreme Court handles only civil cases. The Court of Appeals handles criminal cases. The nine-member Court is split with five Republicans and four Democrats, three of whom are up for retention next year. Oklahoma law prohibits justices from campaigning for retention unless there is an active campaign to oppose retention. There is no mandatory retirement age in Oklahoma.
  
  
• South Dakota: The five justices are appointed by district and run for retention in their district. All are Republicans. One of them has a retention election next year.
  
  
• Utah: When a vacancy occurs, a judicial commission makes a list for the governor. After three years, there is a statewide retention election, and after that every 10 years. All the current justices were appointed by Republicans. The chief is up next year.
  
  
• Wyoming: The five justices are appointed by the governor for 8-year terms and are subject to statewide retention elections Currently all are Republicans and three of them are up next year. Chief Kate Fox will hit the mandatory retirement age of 70 in 2025, so she won't stay on the Court long, even if she is retained. The state Constitution says that every adult may make his or her own healthcare decisions. Soon the Court will have to decide whether abortion is healthcare.
  

If you made it all the way through, congratulations. Extra credit if you are not a lawyer. One thing you surely noticed is the enormous variation in how the states work. The courts vary from five to nine members, some justices run in partisan elections, some in nonpartisan elections, and some in retention elections. Some states have districts and some don't. Some states have nominating commissions that produce lists of candidates with the governor required to pick someone on the list and some don't. Some have mandatory retirement ages and some don't. In some states, justices may campaign and in some they may not.

Given the diversity of rules for the state Supreme Courts, that certainly raises the question of why the rules for the U.S. Supreme Court haven't changed since the Constitution was adopted. One can easily imagine an amendment instituting term limits, a mandatory retirement age, or even a periodic retention election in the circuit the justice is in charge of. The states largely didn't buy the idea that once appointed, justices were home free and could do whatever they wanted except commit really serious crimes that might get them impeached. Maybe the states know something the founding parents didn't. (V)

Corporations Are Being Dragged into the Culture Wars

Big national corporations normally strive mightily to stay out of politics for fear of offending many customers. Those days are over as shareholders and employees often push corporate officials to take sides on controversial matters now. For example, employees of the Walt Disney Corporation pushed management to oppose Florida's "Don't say gay" law, which resulted in Ron DeSantis deciding to punish the Mouse. More recently, Walgreens caved to pressure from 21 Republican AGs and decided not to sell mifepristone in its stores in their states. This resulted in Gov. Gavin Newsom (D-VA) announcing that he would not renew Walgreen's $60 million contract with California. Staying neutral is nearly impossible now.

A related problem is that younger workers and consumers want corporations to take sides on issues. In many cases, young people prefer working for, or buying from, corporations whose publicly stated views align with theirs. They also are willing to boycott firms whose view they oppose. CEOs now have to navigate this minefield.

In 2015, over 350 companies signed on as friends of the court in support of same-sex marriage. After the murder of George Floyd, the nation's 50 largest corporations committed $50 billion to addressing racial inequality. These actions has made them targets for right-wing Republicans, starting with DeSantis.

It has only gotten worse. After the Dobbs decision, dozens of corporations said that they would reimburse travel expenses for employees who needed an abortion and had to travel to another state to obtain one. Corporations headquartered in blue states but which have some employees in red states took the lead here. A reaction was inevitable. Texas Republicans want to criminalize this. They also want to force Internet providers to block websites that provide information about how to get abortions out-of-state or how to order abortion pills out-of-state. Sen. Marco Rubio (R-FL) has written a bill denying tax breaks to corporations that pay for interstate abortions. The corporations most caught in the crossfire are ones that are directly involved in abortions, like Walgreens. Either they sell the pills nationally or they don't. But for many others, avoiding taking sides on controversial issues is increasingly difficult. (V)

Wyoming Has Banned the Abortion Pill...

On Friday, Gov. Mark Gordon (R-WY) signed a bill making it illegal to prescribe, dispense, or sell mifepristone or other abortion pills. He said that he prayed for advice before signing the bill. Apparently he saw a green light in the sky. It's kind of like a burning bush for the 21st century. The penalty is 6 months in jail and a fine of up to $9,000.

Wyoming beat all the other states to the punch and is the first to adopt a law specifically banning medical abortions, but it won't be the last one. Other states ban abortions in general terms, but don't have laws precisely targeted at the use of abortion pills. The legislature wasn't willing to go whole hog and prosecute women for having an abortion, so they are exempt from criminal prosecution. Only doctors, pharmacists, etc. are potentially criminally liable. Wyoming has only one abortion clinic, in Jackson, and it provides only medical abortions, not surgical ones. It's not going to be around for long.

Needless to say, pro-choice groups have already filed suit. One complication here is that one of the abortion pills, misoprostol, has legitimate medical uses other than inducing abortions. By banning it, the state is prohibiting the treatment of conditions other than pregnancy. That could play a role in the eventual court decisions.

One problem with enforcing the law is that some of the providers of abortion pills are outside the reach of Wyoming law enforcement. For example, AidAccess is run out of the Netherlands by Dr. Rebecca Gomperts, who prescribes abortion pills by video consultation and has them shipped directly to the patient from a pharmacy in India. Also, the biggest city in Wyoming, Cheyenne, is only 45 miles from Fort Collins, CO, where abortion is legal. Conveniently the I-25 runs between the two cities. The second biggest city, Casper, WY, is farther north and a 3-hour drive from Fort Collins. (V)

...But Blue States Are Fighting Back

Not all the legal activity concerning abortion is going on in the red states. The blue states are fighting back. A new bill introduced into the California legislature would prohibit California from extraditing doctors who mail abortion pills to other states. If it passes, the first time Mark Gordon sends a friendly text message to Gov. Gavin Newsom (D-CA), asking him to deliver up some California doctor who is in the habit of mailing abortion pills to Wyoming, Newsom will say: "No can do. That would violate California law. So sorry." The nominal reason for the bill is to make sure California college students studying in other states will be able to get access to the medication, but the bill does not distinguish between California residents temporarily out of state and others.

California isn't the first state to consider a bill like this. Some smaller states have already passed similar bills or are working on them, but California adds a lot of doctors to the mix and it is the only state in the West so far. The others are all in the Northeast.

The California bill goes beyond abortion pills. It also covers contraceptives and medicines used by transgendered people.

Opponents of the law say that it violates the U.S. Constitution, which says states must give "full faith and credit" to the laws of other states. But if this means California must honor Wyoming laws, doesn't it also mean that Wyoming must honor California's laws? When states have contradictory laws, it gets complicated. A while back, some states had laws allowing slavery and other states had laws prohibiting it. Sorting that out was messy.

California is not the only state working on new laws. Last week, Gov. Michelle Lujan Grisham (D-NM) signed a law prohibiting any state or local agencies from interfering with anyone's right to receive reproductive or gender-affirming care. Earlier this year, Minnesota passed a similar law. Other blue states are working on similar laws as well. (V)

Gifts and Grifts

The Constitution mentions only two crimes by name: treason and bribery. They come up in the clause about grounds for impeaching a president. Apparently the founding folks were especially worried about these because they might induce the president to take actions bad for the country. Federal law codifies the criminality of the latter in the Foreign Gifts and Decorations Act, which states that any gift to a federal official, including the president, worth more than $415 is the property of the United States and not of the recipient. If a foreign leader gives the president a soccer ball autographed by his country's best player, that's probably all right—unless the player is really famous and the ball is worth over $415, in which case it goes to the National Archives.

Donald Trump had a lot of trouble with the concept that expensive gifts from foreign leaders—for example, a $7,000 set of golf clubs from the Japanese Prime Minister—unfortunately weren't his to keep and had to be turned over to the Archives. It has now come out that while president, Trump and his family accepted (and failed to report and turn over) many gifts from foreign leaders. As another example, Saudi Arabia gave Trump 17 unreported gifts valued at $48,000, including a $24,000 dagger from Mohammed bin Salman, just in case Trump needed to kill a pesky reporter and cut him up (sometimes the snark gets very dark around here). Some recent detective work shows that while president Trump and his family received 117 foreign gifts that he did not report and that they were worth roughly $291,000. As usual, it is all about the grift.

Rep. Jamie Raskin (D-MD), the ranking member of the House Oversight Committee, suggested that these gifts violate the Constitution's Emoluments Clause. He urged Congress to pass a law that would define foreign emoluments more precisely and make receiving them a federal felony as well as an impeachable offense. House Republicans know that such a law would first hit Joe Biden and thus they should be for it, but they also know that if they eliminated the opportunities for grift, Donald Trump might drop out of the presidential race and they certainly don't want that. (V)

Hunter Biden Sues Computer Repairman Who Gave His Data to Giuliani

So far, the House Republicans haven't hauled Hunter Biden before Congress and interrogated him, but that hasn't stopped him from acting preemptively. He has now sued the computer repairman who fixed his laptop and then gave the data on it to Rudy Giuliani. In the suit, Biden says that the repairman, John Paul Mac Isaac, invaded his privacy by doing so and that the standard practice for handling an abandoned computer is to first wipe the disk clean before disposing of it. Biden's lawyers are seeking to depose Giuliani and Steve Bannon.

In the suit, Biden does not admit that the laptop is even his. He says he does not have sufficient information to determine that. But apparently he does have sufficient information to know that the information Mac Isaac gave Giuliani was his. It's a bit awkward here.

Although the House hasn't come after Biden yet, potentially he has other problems. The DoJ is in the process of deciding whether to bring criminal charges against him for alleged tax offenses and his failure to disclose his drug use when he applied to buy a handgun in 2018. If the DoJ proceeds with charges, that will instantly become very big news. If it decides it doesn't have a case, Republicans will try to turn that into even bigger news. (V)

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