Trump Legal News: Go Away Scary Monster

That's a real song, and since Donald Trump is clearly scared witless of Judge Tanya Chutkan, it fits our purposes. It is, we must note, a children's song, which means... well, it's probably particularly apropos for the former president.

In any event, we give quite a bit of attention to Trump's various legal woes, and his various legal maneuvers. He is undoubtedly on the cusp of unleashing a flurry of grasping-at-straws motions in the next several months, and we wonder if it's worth even taking note of all of them, unless one happens to actually succeed. We're not at the "just ignore it" point yet, however, so we will pass along the news that his legal team has asked Chutkan to remove herself from the case because she's biased against Trump.

The actual motion is here, if you care to read it. Trump's attorneys are clever enough to tread delicately:

Judge Chutkan has, in connection with other cases, suggested that President Trump should be prosecuted and imprisoned. Such statements, made before this case began and without due process, are inherently disqualifying. Although Judge Chutkan may genuinely intend to give President Trump a fair trial—and may believe that she can do so—her public statements unavoidably taint these proceedings, regardless of outcome. The public will reasonably and understandably question whether Judge Chutkan arrived at all of her decisions in this matter impartially, or in fulfillment of her prior negative statements regarding President Trump. Under these circumstances, the law and the overwhelming public interest in the integrity of this historic proceeding require recusal.

That said, "we don't think you can be fair and impartial" is still "we don't think you can be fair and impartial," even if you deliver that assessment with a whole truckload of sugar.

The odds that Chutkan agrees to recuse are very small. It is true that judges are supposed to step aside if "impartiality [can] be reasonably questioned." But in practice, this refers to activities outside the courtroom that speak to biases that might manifest themselves inside the courtroom. Think having a spouse who tries to swing an election for a particular political candidate, or taking luxury vacations from a billionaire benefactor. It is virtually unheard of for a decision in case #1, no matter how strongly worded, to support the conclusion that a judge is simply not capable of being fair in case #2.

Trump is not generally able to get top-flight counsel anymore, but even his second-tier lawyers surely know that their chances of success here are close to zero. Are they using an everything-but-the-kitchen-sink approach, since they might get lucky once or twice, and the hours are just as billable even if the motions fail? Or did Trump, as part of his ongoing carping about Chutkan's biases, insist that the motion be filed? Our guess it that it's option #2. (Z)

Has Trump Cracked the Code on Abortion?

As we have noted many times, 2024 is shaping up to be the "year of abortion" in politics. That means that every candidate is going to need to have an answer to questions about that subject, particularly presidential candidates like... Donald Trump.

There are three assertions that appear unimpeachable to us: (1) In private, Trump is pro-choice (and has probably paid for an abortion or two in his time); (2) to win election, he needs the votes of some meaningful number of people who are pro-choice; and (3) his base includes many staunch anti-abortion partisans. Thus far, in his political career, Trump has managed to largely avoid the issue, but that is not likely to be plausible going forward. So, we've been watching carefully to see what his tack is going to be.

At his rally this weekend, Trump may have given a preview of his plan. Here is what he said:

Last year, those justices bravely and incredibly ruled on something that everybody has wanted for decades, for 51 years. They ruled to end Roe v. Wade. That was a big thing. And it's probably cost us politically because the other side got energized. You know, they're the radicals, not the pro-lifers. But now pro-lifers have a tremendous power to negotiate.

This was well received by the crowd.

Let's review what Trump managed to squeeze into those 60 or so words:

1. He's pleased by the "brave" Dobbs decision. That's the only plausible position for him to take.
   
   
2. He and his base were victimized by those infernal radical liberal commies after the decision came down. This fits in with his general theme of martyrdom.
   
   
3. The disastrous-for-Republicans midterm elections? Not his fault. The fault of those aforementioned liberal commies, and the unfortunate price of the anti-abortionists' big victory.
   
   
4. The path forward? Trump's skills as a negotiator.

This playbook would not work for any other Republican. In particular, no other Republican would be allowed to say that their position on future abortion legislation is "we're going to negotiate (and win)," particularly if they are, in truth, a terrible negotiator. But the base still believes in The Donald (a.k.a. the wildly successful tycoon character created for The Apprentice), so this approach might very well work for him. Undoubtedly, other politicians are jealous that they cannot wave away tricky issues by saying "we'll negotiate," but it's really their fault for never starring on a reality TV program. (Z)

Biden Botches 9/11 Memory

Yesterday, of course, was the anniversary of the September 11 attacks. For the past 20 years, the sitting president has commemorated the occasion by visiting one of the three main 9/11 memorials (Washington, the Pentagon, New York City). But Biden was in Alaska yesterday, and gave a speech commemorating 9/11 there.

On the whole, the speech was actually pretty good. Biden is no Barack Obama or Jack Kennedy, but he's no George W. Bush or Lyndon B. Johnson, either. That said, all the coverage was of the lie/misstatement (depending on who you read) that he uttered during the speech: "Ground Zero in New York, I remember standing there the next day and looking at the building. I felt like I was looking through the gates of Hell, it looked so devastating." In truth, he was not there on September 12, as the Senate was in emergency session. Biden actually first visited Ground Zero on September 19.

We pass this along because it was pretty big news. Those folks who want you to believe that Biden is an inveterate liar pounced, and called it the worst lie he's ever told. Those folks who want you to believe that Biden has dementia said that it's still more proof that the cheese is sliding off the cracker.

If it's a lie, then we are struggling to figure out what purpose it would serve. We suppose being there the day after is a bit more heroic than being there the week after, but only very slightly so, and since Biden knows his every word is put under a microscope, it's unlikely that he would think he could get away with fudging the truth. Alternatively, if this is a sign of dementia, it's certainly not a typical one. Those in neurological decline don't slightly misremember details; they forget whole incidents or think they are in the past instead of the present (for example, thinking that their adult child is actually their high school best friend).

Our sense, then, is that Biden was exhibiting the normal deficiencies of human memory, wherein it's common to recall events slightly inaccurately and yet to be convinced that the memory is correct. This happens because the brain actually re-assembles past memories whenever they are recalled, allowing for errors to creep in. Biden has had several other semi-false memories like this, where the timeline got garbled. We are not neurologists, of course, but one of us is a historian, and can vouch that these kinds of memory errors creep into the historical record all the time. We bet our lawyer readers have plenty of experience with this, too. And someone who is a 50-year senator, VP and president sees and experiences a lot of things in their lifetime. (Z)

North to Alaska

As long as we are on the subject... why, exactly, was Joe Biden in Alaska, of all places? There are actually two answers to that. The first, which isn't that interesting, is that he was on his way back from the G20 summit in Asia, and Alaska was the easiest U.S. state for him to stop in. The second, which is considerably more interesting, is that lavishing attention on The Last Frontier is pretty much the only way to wring even the tiniest bit of bipartisanship out of Washington.

It is not a secret that the Democrats have a majority in the Senate, but one that includes two unreliable votes in Sens. Joe Manchin (D-WV) and Kyrsten Sinema (I-AZ). It's also not a secret that if the White House needs to find one more vote, say because Manchin and Sinema are pouting, the most plausible option is Sen. Lisa Murkowski (R-AK). She's a moderate, is willing to be a maverick sometimes, and comes from a state where that profile is acceptable. Needless to say, one more vote isn't going to overcome a filibuster, but it is enough to get some appointments across the finish line.

The White House isn't going to get every vote from Murkowski, of course, or even most of them, since she's still a Republican. But if Team Biden is to maximize Murkowski's support, well, she wants the White House to understand the "special" issues facing Alaskans. And the White House wants her to understand that they will jump through nearly any hoops she tosses in their way.

In an effort to make nice with the Senator, a veritable parade of White House muckety-mucks has donned their heavy coats and made a trip to Alaska, even if it meant passing through or over Canada. There's Biden, of course, and Secretary of Transportation Pete Buttigieg, who is going to be able to buy his own plane with all the frequent flier miles he's racking up as SoT. Attorney General Merrick Garland has gone, and so have HUD Secretary Marcia Fudge, EPA Administrator Michael Regan, White House senior adviser Mitch Landrieu, Deputy Interior Secretary Tommy Beaudreau, and senior HHS administrator Tom Coderre.

We cannot imagine why the AG, in particular, would need to visit Alaska in person. But we are sure that Murkowski appreciates the effort. And it is indeed an effort, given not only that the state is pretty far from Washington, but also that many parts of the state are not especially accessible, even once you get there. For example, Buttigieg's visit involved a six-hour trip on a boat, in addition to all the flying. You'd think he'd also mix a dog sled in, so he could have the full experience.

This is not that important, of course, but we do like to pass along items about how the sausage is being made. And this is definitely one of those, even if the sausage is made of reindeer meat in this case. (Z)

Alabamians Do Not Seem to Have Read the Eighth Amendment

Alabama, possibly followed by other Southern states, may be about to deliver the Democrats yet another campaign issue to run on, namely the death penalty.

The forms of execution historically used in the U.S.—hanging, firing squad, electric chair—are rather violent. Indeed, the latter method was specifically developed because the former two were viewed as inhumane by many voters. That was over 100 years ago, and given how much tolerance Americans back then had for violence, it says something that nooses and firing squads made them squeamish. Needless to say, the chair was not the panacea that Thomas Edison claimed it was when he developed and marketed it.

In view of the problems with the "classic" forms of execution, the states that still impose capital punishment on a regular basis have substantially moved in the direction of death by lethal injection. Ostensibly, this is more humane. Doesn't always work out that way, but those folks who are in the best position to speak the truth are... well, no longer with us, let's say. Anyhow, since the Supreme Court said, in 1976, that capital punishment was once again legal, 1,392 people have been put to death by lethal injection. By contrast, 163 have been electrocuted, 11 have been gassed, 3 have been hanged and 3 have died by firing squad.

There is one logistical problem with lethal injection, however, that has emerged in the last 10 years or so. The companies that make the necessary chemicals to carry out such executions are not enthused to be de facto merchants of death. And so, they have either stopped making the chemicals, or else have stopped selling them to capital-punishment states. There was some effort to hoard a supply, at least in some states, but those stockpiles are either running out or have passed their expiration date.

One possible way to interpret all of this is that maybe the time for imposing the death penalty has passed, and that the penalty might not have a place in the 21st century. That is not the conclusion that Alabama authorities have reached, however. They want to keep sending people to their deaths, but in a "humane" way that is not likely to raise the ire of the Supreme Court. So, they have decided to experiment with a new method that's never been used anywhere else in the world. Meet nitrogen hypoxia.

The theory here is that an inmate will be masked, and will be given pure nitrogen to breathe. This will "quickly" replace the oxygen in their system (5-10 minutes is the best guess, with the emphasis on "guess"), and death will ensue. If this sounds like suffocating someone to death, then you have the general idea. There is zero research to back up the viability or humaneness of the technique, and even the term "nitrogen hypoxia" is made-up and does not appear in any medical textbook.

If this were not enough, Alabama has chosen, as its guinea pig first subject, a man named Kenneth Smith. When he was convicted, 11 jurors thought a life sentence was called for, but the judge overruled them and imposed death. And Smith has already been "executed" once, but it was a lethal injection that didn't work. In other words, if you're going to find a sympathetic victim among death row inmates, he's that person.

There are still some months before Smith's execution date, and anti-death-penalty lawyers have already filed cases claiming cruel and unusual punishment in violation of the Eighth Amendment. If those cases fail, however, then Alabama will move forward, while Oklahoma and Mississippi—which have also approved the use of this method—will take it as proof of concept and will likely schedule their own nitrogen hypoxia executions. If so, we foresee more than a few Democrats making use of this as they run for Congress, statewide office, local office, etc. (Z)

California Senate Race Is Unfolding as Expected

Polling of the race to replace Sen. Dianne Feinstein (D-CA) has been scarce, and what we did have was mostly from pollsters working for one of the campaigns. But now we have an actual, high-quality poll, from LA Times/Berkeley IGS, and it confirms what everyone already thought.

Here is the rundown of candidates:

• Adam Schiff (D): 20%
• Katie Porter (D): 17%
• Barbara Lee (D): 7%
• James Bradley (R): 7%
• Steve Garvey (R): 7%
• Eric Early (R): 5%
• Lexi Reese (D):1%

The first takeaway here is that Feinstein is going to be succeeded by Rep. Adam Schiff (D-CA) or Rep. Katie Porter (D-CA). No other candidates have the name recognition or the fundraising prowess, and no other candidates are making any meaningful headway as the primaries get closer and closer.

The second takeaway is that Rep. Barbara Lee (D-CA) was, and is, fooling herself. In contrast to Schiff and Porter, she does not have the name recognition or the fundraising prowess. Further, she is 77 years old. Perhaps Lee has not noticed, but voters are not eager to cast their ballots for someone who would serve into their mid-80s, particularly when there are other options. Lee spent yesterday complaining about Gov. Gavin Newsom's (D-CA) twin promises to: (1) appoint a caretaker, and (2) appoint a Black woman, should Feinstein step down. Since Lee is a candidate for the seat, she is not a caretaker, and so she's out of the running. And so, she accused the Governor of tokenism, saying that if he's going to appoint a Black woman, he should appoint someone who might actually hold onto the seat. Someone like, say, Barbara Lee. We doubt that this sort of "I want a personal shortcut" kvetching is going to improve Lee's senatorial prospects. And Newsom could keep his promise in a different way. Rep. Maxine Waters (D-CA) is Black and represents a D+32 district south of Los Angeles. She is 85 and has served in the House for 32 years. Being a senator for a year might be a great way to end her career. That way, for the rest of her life, when she appeared on talk shows, the host would address her as "senator." In addition, Waters is an outspoken progressive and putting a fiery progressive Black woman in the Senate, even for a short time, would please his base immensely.

The third, and final, takeaway is that the relatively meager California Republican vote is in danger of being split. Not all of these candidates are declared, as yet—the pollster was just making its best guess as to who will eventually throw their (ball)cap into the ring. If multiple Republicans do run, they probably won't drop out, since it's just a vanity campaign anyhow. In that event, the general election would probably end up as Schiff and Porter. And since that would leave Republican voters to choose the less objectionable Democrat, it would almost certainly lead to Schiff being elected.

There's still time, of course, but the only plausible change in the dynamics of the race, barring a big surprise, is if the Republican vote coalesces behind one candidate. In that case, a Republican might make the general, and the Schiff-Porter tilt in the primary would decide the identity of California's next U.S. Senator. For reference, the Republicans have only managed to get a candidate into the final round of voting once in the last three U.S. Senate elections, and he (Mark Meuser) got steamrolled by Sen. Alex Padilla (D-CA) by a nearly 2-to-1 margin. (Z)

Who's The Bad Guy Here?

As readers will recall, control of the Virginia Assembly is on the line this November. Both chambers are pretty closely divided, with the state Senate 22 D, 18 R, and the House of Delegates 51 R, 46 D and 3 vacancies (which were occupied by Democrats before becoming vacant). If the Democrats hold at least one chamber, then Gov. Glenn Youngkin (R-VA) will have great difficulty implementing his agenda. If the Republicans take both, then Youngkin will have a glide path to reinventing Virginia as he sees fit, and possibly to a presidential bid in 2028 (or 2024). So, politics-watchers are keeping a close eye on things, and every seat matters.

One of the swingiest seats is SD-57, which is in the suburbs of Richmond. In 2021, the district voted for Youngkin by 3 points, but in the 2022 midterms, it voted for Democratic House candidates by 1 point. So, it can go either way. Running for the Republicans is businessman David Owen, while the Democrat in the race is nurse practitioner Susanna Gibson. And yesterday, The Washington Post broke the news that Gibson and her husband have performed live sex acts (together) on the adult site Chaturbate.

As you can see from the headline, the first question that occurred to us is "Who's the bad guy here?" Let's run down the contenders:

1. Gibson: Actually, we are pretty sure she is NOT the bad guy. She certainly did not do anything illegal. Was her behavior immoral? Undoubtedly, that will be the conclusion of some voters, but we're not even sure that applies here, as her partner was not only a consenting adult, it was her husband. The Bible (in Exodus), for those who consult that particular work on such matters, very clearly instructs that "Thou shalt not commit adultery." It does not, as far as we can tell, command that "Thou shalt not engage in sexy webcamming."
   
   
2. The Republicans: It was Republican operatives who brought the story to the Post's attention. That's pretty clearly slut-shaming, and it might be illegal. Gibson and her counsel are taking the position that, in making the videos into a political weapon, the Republican operatives violated Virginia's revenge porn law. We hardly have the expertise to evaluate the legal merits of that claim. As to the ethics, the whole thing is kind of icky, but politics is often not pretty, and Gibson surely knew those videos would be uncovered eventually.
   
   
3. The Washington Post: Again, we're pretty sure Gibson is not the bad guy here, whereas with the Republicans that question could go either way. As to the Post, we feel quite confident in saying that the staffers involved with this story should be ashamed of themselves. They knew full well they were being tipped off by a Republican operative, and thus were being used as a political weapon. The breathless, salacious tone of the story, accompanied by a fair bit of not-so-subtle moralizing, feels more like something out of the 1950s than the 2020s. Adding to our disdain is the self-congratulatory observation that the paper "typically does not identify victims of alleged sex crimes to protect their privacy," but in this case it was so easy to identify Gibson that they put that policy aside.

Undoubtedly, the people who run the Virginia Democratic Party would prefer not to have a candidate with this particular liability. It's still the South, after all. However, the primaries are over, Gibson is the nominee, and she has made clear that she's not stepping aside. "They are trying to silence me because they want to silence you, and I won't let that happen," she said in a statement. "My opponent and his allies know that the people of this district are on our side on the issues, so they're stooping to the worst gutter politics. There's too much at stake in this election and I'll never stop fighting for our community." She could have noted that the best-known slogan about Virginia is: "Virginia is for Lovers," but she didn't.

It will be interesting to see how the voting turns out. Maybe Gibson will be crushed, as swingy voters decide that she's damaged goods. On the other hand, it's entirely possible that younger and/or women voters will be impressed by her sex-positive views and her unflinchingly taking ownership of the videos. Visits to the site will probably soar, but we don't know if they publish statistics. (Z)

---

If you wish to contact us, please use one of these addresses. For the first two, please include your initials and city.

• questions@electoral-vote.com    For questions about politics, civics, history, etc. to be answered on a Saturday
• comments@electoral-vote.com   For "letters to the editor" for possible publication on a Sunday
• corrections@electoral-vote.com To tell us about typos or factual errors we should fix
• items@electoral-vote.com            For general suggestions, ideas, etc.

To download a poster about the site to hang up, please click here.

---

Email a link to a friend or share:

---The Votemaster and Zenger