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Filegate: The Sequel?

The year is just over a week old, and we already have our first major "unknown unknown." It would seem that Donald Trump isn't the only member of the executive branch who took his classified work home with him. Yesterday, the news broke that several classified documents, including some with the "sensitive compartmented information" designation, were discovered in the University of Pennsylvania office used by Joe Biden in the interregnum between his vice presidency and his presidency.

Inasmuch as this is a developing story, there is much that is still not clear, most obviously the exact contents of the documents. Still, the broad outlines have already taken shape. The number of documents was small—less than a dozen—and they were discovered by Biden's attorneys as they cleaned out the President's now-former office. They were found on Nov. 2, the National Archives was notified that day, and the documents were returned to the government the next morning. The Department of Justice has launched an investigation, with the U.S. Attorney in Chicago, John Lausch Jr., taking the lead. However, the DoJ has said that it believes this was accidental, and no crime was committed.

At this point, it is probably useful to review 18 U.S. Code 2071, which reads:

(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.

(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term "office" does not include the office held by any person as a retired officer of the Armed Forces of the United States.

If you take only the shallowest of glances, it appears that the Biden and Donald Trump classified document situations are similar. However, assuming that the basic facts that have been reported about the Biden case are correct, then the two situations aren't really the same at all. A lot of people have access to classified information, and people, as you may have heard, make mistakes. The government can't be putting staffers in prison if they leave a laptop with classified information in their cars and their car gets stolen, or if they are careless when putting file folders in their briefcase at the end of the day, or if a USB stick falls out of their pocket in the bathroom. And so, while such carelessness might get someone a stern talking to, and might even lead to some sort of administrative sanctions, the statutes are written such that mishandling of classified documents is only a crime if it's willful or if there is gross negligence involved.

Put another way, Joe Biden and his team did exactly what they were supposed to do once the problem was discovered. If Donald Trump, who took something like thirty times as many classified documents with him, had surrendered them as soon as they were found at Mar-a-Lago, then there would be no real issue. Certainly nothing criminal. Even if he'd surrendered the documents once the government demanded them, Trump would be in the clear. His problem was that even once the National Archives told him to pony up, Trump kept many documents, and continued to obfuscate, such that it's still not clear the government got everything back.

That said, the fact that the Biden situation and the Trump situation pretty clearly appear to be on different sides of the fence when it comes to the law isn't going to stop partisans on the right from having a field day with this. Tucker Carlson and the MAGA media are going to squeeze this for all it's worth. Presumably, there will be half a dozen congressional investigations into Biden, and into the DoJ "sitting" on the story for 2 months. Never mind that department policy is very clear on this point, and that it could not have shared this news in early November, so close to an election.

We haven't the faintest idea exactly how long the flames of this particularly controversy will burn. Will it be like Hillary Clinton's e-mails, a story that is still smoldering, 7 years later? Or will it be more like Afghanistan, a great inferno that rose rapidly and then dropped off the radar fairly quickly? We tend to assume the former, since this story will allow the MAGA types to muddy the waters when it comes to Trump's own legal problems. But that's just a guess.

And that brings us to, perhaps, the most important dynamic in play here. It is inconceivable, barring new revelations, that Biden or anyone in his orbit will be indicted for this. They all appear to have followed the law to the letter, and of course DoJ policy forbids filing charges against a sitting president. However, when it comes time for AG Merrick Garland to make a call on indicting Trump, might this incident influence his thinking? It really shouldn't; justice is blind, and the DoJ is not supposed to concern itself with politics. However, if it's a very close call on whether or not to indict Trump for mishandling documents, it is at least possible that this situation will be the tiebreaker, and that Garland could decide that the potential hit to his department's reputation (How come Trump and not Biden?) isn't worth it. (Z)

Trump Grand Jury in Georgia Has Finished Its Work

Originally, that headline was "Trump Grand Jury Has Finished Its Work." Then we realized that was not entirely clear, because there are multiple Trump grand juries. We would suggest that a person has played their cards very badly when you have to specify which grand jury dedicated to them you are talking about.

In any event, the special grand jury convened by Fulton County DA Fani Willis was officially dissolved yesterday. They have finished investigating whatever needed to be investigated, and examining whatever needed to be examined, and hearing whatever needed to be heard, and have submitted their final report to Superior Court of Fulton County Judge Robert McBurney. So, that phase of the process is complete.

Needless to say, we have no idea what happens next. First, because do not have inside information about the grand jury's work, or about Willis' thinking on the matter. Second, because we do not have general familiarity with exactly how fast the wheels of justice turn in Georgia. However, what we do know is this: In Georgia, a special grand jury cannot issue indictments. Instead, it produces a report of the sort that has just been filed, and then a DA can choose to go to a regular grand jury if she wishes to indict.

What it boils down to is that, up until yesterday, a Georgia indictment of Donald Trump and/or anyone who might have conspired with him, was not going to happen because the necessary point in the process had not been reached. Now, it has been. So, if Willis is going to try for indictments, that decision could now come at any time. Theoretically, she could go in front of a regular grand jury today and start sending out indictments by the end of the week. She is unlikely to move quite so rapidly, but if she is going to go after Trump or anyone in his orbit, she's also not likely to wait terribly long, given that things get more and more complicated as the 2024 election draws closer and closer. (Z)

Judge Not Lest Ye Be Judged?

Joe Biden and the Democratic-controlled Senate have been seating judges at a record pace. They were actually shooting for 100 in the first 2 years, and came up just short, at 97. There are another 31 nominees waiting in the pipeline and about a dozen seats that are vacant and don't even have a nominee yet. Why? Well, in part, the problem with those folks is that the Senate has to find the time to review their cases. There should be plenty of time for that now, though, since the Senate does not figure to be doing a lot of work on legislation, given the circus at the other end of the Capitol.

That said, the issue is not solely a lack of time. An even bigger problem, now that the "easy" seats have been filled, is the red states, particularly in the South. Readers are familiar with the tradition of "blue slips." Initially, the slips were used solely to document that the president had gotten the "advice and consent" of the appropriate senators, but over time they evolved into senatorial vetoes of judicial nominees. In effect, either senator from the state in which a judge would serve could torpedo that judge's nomination for any reason, or for no reason at all.

It has been reported that the blue slips were done away with by Senate Minority Leader Mitch McConnell (R-KY), the last time he was the majority leader. This is only partly correct. First, it wasn't actually McConnell who made the decision (though he certainly approved). It was then-Senate Judiciary Committee chair Chuck Grassley (R-IA). Second, the blue slips were only eliminated for appellate judges, with the reasoning being that they may serve in one state but they oversee multiple states. The blue slips remain in place for district judges, whose authority is much more delimited by the state in which they serve.

So, Biden's eight pending appellate nominations will probably get confirmed in short order. On the other hand, there are a few district-level nominees who could soon learn what it feels like to be Merrick Garland. There are also a bunch of vacant district-court seats in red states (especially Louisiana and Texas) where the President has not yet bothered to make a nomination, knowing that his picks will face a brick wall. Republicans have grown to rely on the redness of certain judicial circuits, especially the Fifth Circuit (Texas, Mississippi and Louisiana), as they do their venue shopping. So, Republican senators from those places are not going to be eager to approve any Biden district-level nominees, even reasonable ones.

Of course, now that they are in firm control of the Senate Judiciary Committee, the Democrats could get rid of all blue slips, and then could fill all those seats in Texas (and elsewhere) while the Ted Cruzes of the world fumed. But the problem there is that eventually the shoe will be on the other foot, and Republicans would start stuffing blue-state district-court seats with fire-breathing conservatives. After all, Democrats do their own fair share of venue shopping.

There are also a couple of other factors in this chess game. First, while venue shopping works for some cases, there generally has to be a somewhat reasonable basis for it. You can't get a case about drilling on Native Alaskan lands moved to Arkansas just 'cause. And what that means is that as the Biden administration wrestles with immigration policy over the next 2 years, the vast number of legal challenges will be heard in Southern courts. So, he could really use a few more non-conservative nominees.

The other factor in the chess game is that a dozen or so red-state judges will likely retire this year, and another dozen or so will likely retire next year. However, virtually all judges these days retire strategically. If an appointee of Ronald Reagan, or one of the Bushes, or Donald Trump thinks their seat will remain open until the next Republican administration, they are vastly more likely to stop down than if they think they'll be replaced by a Biden-nominated judge. So, if the Democrats do indeed decide to kill the blue slips for district-level judges, they might be well served to hold off until, say, early 2024. In effect, they would be tricking Republican judges into retiring. Seating a whole bunch of judges that year might also be useful to the blue team for campaign purposes.

This is a subject that will presumably get a lot of attention this year since, again, the Senate's to-do list is going to be a lot shorter with very little serious legislation for them to consider. (Z)

House Gets to Work

After last week's fiasco, the House of Representatives yesterday managed a smooth launch for its 118th sitting. The first item of business was adopting the rules package for the next 2 years and that went off without a hitch, with the vote breaking entirely along party lines, except that Rep. Tony Gonzales (R-TX) crossed the aisle to vote "nay" with the Democrats.

So, does this mean that Speaker Kevin McCarthy (R-CA) has heretofore hidden cat-herding skills, and that we're seeing the second coming of Nancy Pelosi (D-CA)? Very doubtful. The Republicans are very embarrassed by what happened last week, and know that if ever there was a time to appear unified, this is it. Plus, whatever issues any members were going to have with the rules package should have been, and presumably were, hashed out during the negotiations for the speakership. We are a little surprised that the sane Republicans agreed to the "only one person is needed for a motion to vacate" rule, but there it is.

Note also that it had been reported that the Republicans were going to write the rules so that only Republicans could offer a motion to vacate. We weren't too sure how that might be done, but that was the reporting. The new rules have not yet been posted online, but the resolution amending the previous rules has been. All that the resolution says, in its list of changes, is: "RESOLUTION DECLARING THE OFFICE OF 8 SPEAKER VACANT.—In clause 2(a) of rule IX, strike sub-paragraph (3)." And here is the now-stricken sub-paragraph: "(3) A resolution causing a vacancy in the Office of Speaker shall not be privileged except if offered by direction of a party caucus or conference." In other words, McCarthy & Co. changed the number of people required for consideration of a motion to vacate, but they did not attempt to limit it to Republicans. It is unlikely that the Democrats will take advantage of this opportunity, since the blue team doesn't generally go in for that particular type of grandstanding, but they theoretically could.

And speaking of grandstanding, the Republicans yesterday also found time to pass their first just-for-show bill, with the House voting 221-210 to claw back $70 billion in new IRS funding passed by Congress last year. Senate Majority Leader Chuck Schumer (D-NY) will make sure the bill is promptly filed away in his circular file, so nothing is going to come of it. However, the Republicans think that the IRS funding is an excellent cudgel for them to wield in the 2024 elections. We'll see about that; it didn't exactly work for them in 2022, and after voters have had 2 years to see that they are not being chased and that their taxes are not zooming up, such attacks may have very limited efficacy, indeed. (Z)

Winners of the 2022 Election Cycle

We've been trying to get to this for weeks, and now the day has finally arrived. Better late than never, as we often say. And so, with the benefit of a bit of time to reflect, here are our 10 biggest winners of the latest election cycle (in no particular order):

  1. Democracy: OK, we just said this list isn't ranked, but this is clearly the most important item. So, consider this to be the gold medal winner, with the other items in a nine-way tie for silver. While the 2020 election was pretty grim for democracy, the 2022 election spoke to democracy's resiliency. UCLA's Rick Hasen, who has been loudly sounding the alarm via his blog and any media outlet that will print his op-eds, wrote this after the ballots had been counted:
    For the last two years, I have been writing about my grave concerns over the future of American democracy. With developments over the last week, culminating on Monday night with the loss of election denier Kari Lake for governor in the key swing state of Arizona, I'm a little less worried. If we were two minutes to midnight on the Doomsday Clock before last week's midterm elections, we are now back to 10 minutes to midnight.
    The good news comes in at least three flavors. First, the election itself was conducted successfully without violence, intimidation, or other such shenanigans. Second, as Hasen notes, voters rejected election deniers like Kari Lake. Yes, a few got elected to the House in ruby-red districts, but most of the high-profile ones—Lake, Doug Mastriano, Don Bolduc, Tim Michaels, etc.—were sent packing. That includes, importantly, all the election-denying would-be secretaries of state. Third, outside of the nutters in Arizona, the defeated candidates accepted their losses gracefully, and went gentle into that good night.

    On the ballot-initiative front, the news was largely, though not uniformly, good. Michigan voters approved a constitutional amendment requiring 9 days of early voting, prepaid envelopes for absentee ballots, and a ballot-tracking system, while Connecticut approved in-person early voting, something it didn't have before. Two other states decided whether or not to have voter ID laws; Nebraskans said "yes" and Arizonans said "no." Ohio backed a constitutional amendment prohibiting noncitizens from voting in local elections.

  2. Ranked-Choice Voting: Ranked-choice voting serves to counter the intense polarization of politics in two ways. The first is the obvious one: It favors candidates who have consensus support over extreme candidates. With the eyes of the nation upon the state, Alaskans chose for their congressional delegation a moderate Republican and a moderate Democrat, while rejecting MAGA Republicans in both races.

    The less obvious, though still foreseeable, effect, is on the conduct of the campaigns. Reader S.C. in Mountain View, CA, is an expert in RCV and explains:
    RCV discourages negative campaigning because in order to win, a candidate might need to be ranked second or third by supporters of their opponents. (It doesn't eliminate such campaigning entirely because, first of all, old habits die hard and, second, if you're behind a clear front-runner who will make it to the last round, their supporters' votes will never go to their second choices so you can get away with attacking them because it doesn't matter if they rank you or not.)

    This positive effect was observed by The New York Times during San Francisco's first election using RCV in 2004. Three hopefuls for a single seat campaigned cooperatively, in the hopes that one of them would win.

    While it didn't result in one of them winning in that case, in a more recent example three candidates for an Oakland City Council seat in 2018 put out a joint video where they each praised the attributes of another. In this case, it was successful, and one of them did win the seat. (An examination of the transfers showed that the winner was definitely helped by being ranked second or third by supporters of her two cooperating opponents.)

    This effect is not unexpected; it is an acknowledged feature of RCV.
    Thanks for the insight, S.C.!

    In addition to the successful use of RCV in Alaska, November's balloting saw Nevada adopt RCV. The Silver State will use a system very much like Alaska's, except with the top five candidates advancing to the final round of voting, rather than the top four.

  3. Abortion Rights: Three states had an up-or-down vote on whether the right to an abortion should be added to the state Constitution, thus putting it outside the reach of any future state legislature that might frown on the procedure. It passed in all three—California, Michigan, and Vermont. Kentucky, meanwhile, had a reverse initiative, one that would have banned abortion in the state. It was defeated. Montana had a screwball measure on the ballot that would have required health workers to provide medical care for an infant born in the state, even after an abortion. The local medical association was wildly against it. It went down 52% to 48%.

    Put briefly, it was a clean sweep for abortion rights, in both red states and blue. And don't forget that the number of states jumps to six if you include the ballot initiative that Kansans voted on in the primaries. Exactly what Republicans will do with this information... well, it will be interesting to see. On one hand, the base wants things restricted even more, and will surely expect some bills in that direction from the current House. On the other hand, abortion restrictions are a loser with just about everyone else. This will not be easy for Republicans in swingy places to navigate.

  4. Abolitionists: William Lloyd Garrison died in 1879, Frederick Douglass in 1895. They would probably be surprised to learn that the fight against slavery is still ongoing more than 150 years after the Civil War, but it is. As we have pointed out numerous times, the Thirteenth Amendment says: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Put another way, you can't enslave someone... unless they are convicted of a crime. And thanks to that, prison systems across the country often work their inmates very hard while paying them a pittance, or else rent them out to private companies, who... wait for it... pay the inmates a pittance for their labor. We're talking wages—5, 10, 15 cents an hour—that would have been pretty meager even in Garrison's and Douglass' time.

    Citizens of several states decided, in past elections, that they did not care for that arrangement, and so barred the treatment of convicts as slaves. This cycle, five states voted whether or not to join the list, and four of them—Alabama, Oregon, Tennessee and Vermont—did so. The only state to retain slavery was Louisiana, and that was partly because the ballot proposition was poorly written and was denounced by... the guy who wrote it. So, the Pelican State is expected to have another go at the question in 2024.

  5. Marijuana: Marijuana didn't do quite as well as abortion rights or abolitionism; Maryland and Missouri legalized it, while Arkansas, South Dakota, and North Dakota refused to do so. Still, the latter three states just maintained the status quo. Meanwhile, the former two decided that their millions of adult citizens can make their own choices about the wacky tobaccy without interference from state authorities. More than half the states have now dropped all prohibitions on marijuana use, or have at least decriminalized the drug. Meanwhile, there are only four states left where the use of marijuana and/or its derivatives (e.g., CBD) is illegal in all circumstances: Idaho, Wyoming, Kansas and South Carolina. The day is not far off when ganja will be legal nationwide.

  6. Joe Biden: Biden's big win was limiting defeat. Many people were predicting a bloodbath on Nov. 8. It didn't happen. Democrats picked up a seat in the Senate and almost held the House. It was a result that went completely against historical trends—and in a terrible environment for the Democrats, to boot. Legislatively, he also had a surprisingly good year, with an infrastructure bill, the CHIPS Act, the Infrastructure Reduction Act, same-sex marriage, and more. On foreign policy, he has held together a coalition to fight Russia to a standstill in Ukraine, despite Russia having a vastly bigger and more powerful army. Had the election been a red wave, Biden would have looked more and more like a one-term-and-out kind of president. Now, the decks are clear for him to run again in 2024.

  7. Gretchen Whitmer: Gov. Gretchen Whitmer (D-MI) was one of the Republicans' top targets. Yet, she crushed Trump-endorsed Tudor Dixon (R) by over 10 points. If Biden does decline to run in 2024, she could be one of the top contenders for the Democratic nomination. It is her bad luck that if Biden runs, he is stuck with Kamala Harris as his #2. Black women, the Democrats' most loyal constituency, would be furious if he dumped Harris for a white woman, even though Harris ran a terrible campaign in 2020 and hasn't done a lot to improve her standing since then. Whitmer is only 51, though, and has a bright future in Democratic politics, even if 2024 is not when her number gets called.

  8. Ron DeSantis: As 2022 started, Gov. Ron DeSantis (R-FL) was a rising star in the Republican Party. Now, some polls show him the favorite to be the GOP presidential nominee in 2024. How's that for a good year? His election victory by a landslide margin was practically unheard of in the mother of all swing states. He was in the news all the time in 2022. But now comes the hard part: hanging onto his new status as a Republican superstar.

  9. Wes Moore: Most election cycles propel one or two previously little-known politicians to national prominence, as happened with Barack Obama in 2004, John Kasich in 2010, Gov. Greg Abbott (R-TX) in 2014, Reps. Alexandria Ocasio-Cortez (D-NY) and Dan Crenshaw (R-TX) in 2018, etc. At the moment, Gov.-elect Wes Moore (D-MD) appears to be the shooting star of this cycle. He's young, charismatic and Black, and he should have no problem getting reelected if he wants to spend 8 years building his power base. We would be surprised if a presidential run isn't in Moore's future, though he might plausibly decide to take a shot for the Senate first.

  10. Pollsters: Given that the pollsters dropped the ball on Donald Trump in 2016, and then blew it in a number of high-profile races in 2018, the industry was on the ropes entering 2020. If they had stepped in it again, that might have been a near-fatal blow for many/most polling houses. And unfortunately for them, the modern political landscape presents very tricky challenges, like what to do about Trump voters who won't answer their phones, or what to do about millennials who won't answer their phones, or what to do about suburban women who won't answer their phones.

    However, despite the possibility of pollster armageddon, they overall did very well in 2022, as we discussed in great detail here. Yes, there were a bunch of junk polls from a bunch of junk pollsters, but those are easy to ignore. Certainly, we did.

Tomorrow, we'll look at the 10 biggest losers in the 2022 election cycle. (Z & V)

Looking Backward: The Experts' Predictions for 2022

We're a little behind schedule, but it's time to get down to the predictions. As with last year, we'll look back to see how the predictions for the past year turned out, and then the next day we'll look ahead to the upcoming year.

We commence with the experts' predictions for 2022. Recall that we award up to five points for accuracy and another five for boldness. The boldness points don't count, though, unless the accuracy is at least a 3/5. Recall also that it was decided last year to rate the boldness in advance, so that score is not colored by hindsight.

By our count, that's 57 points out of a possible 180, for a very solid batting average of .372.

As noted, we'll have experts' 2023 predictions tomorrow. And we'll start collecting readers' predictions later in the week. (Z)


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