Trump Legal: Funky Judge

Yesterday, as is so often the case these days, there was a lot of Donald Trump legal news. Here's the rundown:

• A Tale of Two Judges: There were two fairly major rulings yesterday, one in Georgia and one in Florida, that were both theoretically adverse to Trump. CNN's headline, for example, was: "Trump suffers setbacks in efforts to shut down two of the criminal cases against him." Other outlets had similar headlines.
  
  However, not all "setbacks" are created equal. Here is the relevant passage from the ruling by Judge Scott McAfee, in which he rejects the notion that the Georgia case should be dismissed because Trump was just engaging in "political speech":

  The Defendants seek to dismiss the indictment on as-applied and facial First Amendment grounds. U. S. Const. Amend. I; see also Ga. Const., Art. I, Sec. I, Par. V & IX. They argue this prosecution violates the First Amendment's protections of political speech and activity, freedom of association, and the right to petition Congress as-applied to their alleged conduct, and further contend that the indicted charges are overbroad. After considering the extensive briefing, the argument of counsel, and the indictment, the Court finds these vital constitutional protections do not reach the actions and statements alleged by the State. Nor do the statutes themselves facially violate the First Amendment. The Defendants' motions are therefore denied.

  And here is the relevant passage from the ruling by Judge Aileen Cannon, in which she rejects the notion that the Florida case should be dismissed based on the Presidential Records Act (PRA):

  Fully advised in the premises, the Motion is DENIED [ECF No. 327]. Bound by the four corners of the Superseding Indictment, Counts 1 through 32 track the statutory language and essential elements of the charged portion of 18 U.S.C. § 793(e) [ECF No. 85 p. 32]. See 18 U.S.C. § 793(e) (making it illegal to "hav[e] unauthorized possession of . . . any document . . . relating to the national defense . . . and willfully retain[] the same and fail[] to deliver it to the officer or employee of the United States entitled to receive it"). Those same counts make no reference to the Presidential Records Act, nor do they rely on that statute for purposes of stating an offense. As for the remaining counts against Defendant Trump (Counts 33—38, 40—41), they too track the applicable statutory language and essential elements of the charged crimes [ECF No. 85]; 18 U.S.C. §§ 1001, 1512, 1519. More generally, the Superseding Indictment specifies the nature of the accusations against Defendant Trump in a lengthy speaking indictment with embedded excerpts from investigative interviews, photographs, and other content. For these reasons, accepting the allegations of the Superseding Indictment as true, the Presidential Records Act does not provide a pre-trial basis to dismiss under Rule 12(b)(3)(B)(v)—either as to Counts 1 through 32 or as to the remaining counts, all of which state cognizable offenses.

  Sorry about all the legal language. If you managed to plow through it all, you learned that McAfee's ruling dispenses with the matter once and for all, while Cannon's (once again) only puts the question aside temporarily. That "the Presidential Records Act does not provide a pre-trial basis to dismiss" does not preclude the possibility that the PRA provides a basis for dismissal during the trial itself. In fact, the presence of that clause somewhat implies that this is something that could, and probably should, be brought up during trial. After all, if Trump's PRA argument simply doesn't fly, then there's no reason to say, in effect, "this doesn't fly... right now."
  
  Of course, we are not lawyers; our only claim to expertise here is that we stayed at a Holiday Inn Express last night. Reader A.R. in Los Angeles actually IS a lawyer, and sees things very similarly, sending along some thoughts about Cannon yesterday morning:

  I've dug into Cannon's recent "rulings," which aren't really rulings at all, and the consequences are more severe than is being reported.
  
  First, let's orient everyone as to where we are. What prompted these bizarre orders are several motions to dismiss that Donald Trump's counsel has filed. So far, Cannon has not ruled on most of these. One of those motions to dismiss claims that Trump cannot be prosecuted under the Espionage Act because the Presidential Records Act is a complete defense to that charge as it allows presidents to determine for themselves what records are personal and what are not. The highly classified documents that Trump took and refused to return are, therefore, "personal" records because he wants them for himself. An element of the crime of "willful retention" under the Espionage Act is "unauthorized possession" and Trump claims the PRA nullifies this element of the charge.
  
  As readers may recall, Cannon expressed some skepticism about one motion to dismiss based on claims that the Espionage Act is unconstitutionally "vague" and ultimately denied this motion. But she denied it without prejudice, which means she is explicitly allowing Trump to revisit this claim later. And in that context, she also issued this bizarre order for each side to submit proposed jury instructions by April 2 based on the two scenarios that (V) laid out on Thursday: (1) whether the PRA allows the president to decide what's personal and what's not,or (2) whether the jury should review the records and determine what's personal.
  
  Everyone agrees that either of these scenarios is in direct conflict with the law. But what has not been reported on much are the potential procedural problems with that order, which Special Counsel Jack Smith's team is teeing up in their filing in response to the order. First, jury instructions are typically not decided on by the judge until after the jury has been empaneled and sworn. Once the jury is sworn, jeopardy attaches. You see where I'm going with this. If the judge issues these erroneous instructions to the jury and Trump is acquitted as a result, there's nothing the federal prosecutors can do. He skates. Not only that, but Cannon can issue a directed verdict before the case even goes to the jury acquitting Trump based on those same instructions. Again, there's no appeal from an acquittal and double jeopardy prevents Trump from being tried again on those charges. (Contrast that with a directed verdict after a jury conviction, which CAN be appealed.)
  
  So, here's what Smith and his team are setting up. They are telling Cannon that she must decide these issues now, or they will petition the Eleventh Circuit for a writ of mandamus. Normally, only final rulings are appealable, and this is not one, but a prosecutor can request appellate review using a writ for "extraordinary" relief. And the situation here certainly seems to meet that criteria. The showing required is: (1) clear error; (2) lack of adequate, alternate remedy and (3) irreparable injury. As Roger Parloff points out in this piece written for Lawfare, there are very few examples of this being tried, but most prosecutors who DID try were successful.
  
  There are parallels to the situation Smith is facing—the Third Circuit case Parloff cites is an example where the Court found that "if jury deliberations guided by the erroneous instruction end in an acquittal, the injury to the government will be irremediable." Also: "We find that the adoption of a clearly erroneous jury instruction that entails a high probability of failure of a prosecution—a failure the government could not then seek to remedy by appeal or otherwise—constitutes the kind of extraordinary situation in which we are empowered to issue the writ of mandamus." While those cases aren't from the Eleventh Circuit, the standard is the same. And the Eleventh Circuit has some experience with having to "correct" Cannon for getting the law completely wrong and issuing crazy orders as a result—having done so twice—so they could already be primed to issue this type of extraordinary relief.
  
  It has been clear for a while that not only is Cannon slow-walking this case and indulging every delay tactic that Trump's team brings, but she is also deliberately avoiding making any rulings that Smith can appeal. And now it seems that she is setting up a Trump acquittal through the use of erroneous jury instructions. So, at this point, Smith has no choice but to get the Eleventh Circuit involved and at the same time, to try to get her removed from the case. If Smith is forced to take a writ and the Eleventh Circuit accepts it, I don't see how they leave her on the case. And if they act with some alacrity, I wouldn't be surprised if the new judge appointed to the case fast-tracked this thing since there are really no facts in dispute and the law is very clear and not at all complicated. That could add an entirely new dimension to the upcoming election if this case goes to trial, say, this summer and the Jan. 6 criminal trial begins in the Fall.

  A.R. sent that in before Cannon issued the latest ruling, and followed up with an addendum yesterday afternoon:

  Just now we got a ruling denying Trump's motion to dismiss based on the PRA. But Cannon's order also seemed to confirm Smith's worst fears in that she emphasized that the PRA doesn't justify a "pre-trial" dismissal since Smith has sufficiently alleged an offense under the Espionage Act. But she pointedly left the door open for a defense at trial under the PRA that could be reflected in the jury instructions. She defended her request for competing jury instructions under her misinterpretation of the PRA as an attempt "to better understand the parties' competing positions and the questions to be submitted to the jury in this complex case of first impression."
  
  This won't assuage Smith. She's holding this Sword of Damocles over the government's head that she can deploy at a time most likely to kill the government's case. I'm guessing Smith will still be seriously contemplating taking a writ to the Eleventh Circuit. Her behavior won't get any better.

  Thanks, A.R.! And note that we wrote our assessment of Cannon's new ruling before reading what A.R. sent in. So, our non-expert impression and A.R.'s expert impression were very nearly the same. And speaking of experts, former Trump lawyer Ty Cobb has not yet commented on yesterday's news, as far as we know, but he did appear on CNN earlier this week to share his view that Cannon is not merely incompetent, but that she's in the bag for Trump, and that therefore Jack Smith has no choice but to go to the Eleventh Circuit to try to get her removed from the case.
  
  
• He's an A**hole: Thursday also afforded the latest example of Trump showing what a big man he is by tacitly threatening members of Judge Juan Merchan's family. As part of his ongoing efforts to make a mockery of Merchan's gag order, Trump posted a bunch of nasty articles about the Judge's family to his failing, and yet still multi-billion-dollar, social media site. Since Trump did not write the articles himself, and since he did not comment on them, he might be on the right side of the law, and he might be on the wrong side. Does the former president WANT to be jailed, so he can compare himself to Martin Luther King Jr. and can hawk even more mugshot merch? It sure seems that way.
  
  
• Correction; He's a Corrupt A**hole: Is there really any question that Trump Media & Technology Group (TMTG) is a giant con? Either its purpose is to fleece the rubes, or it's to allow foreign powers to funnel money to Trump, or both. It's clearly not a viable company, any more than Pets.com was, or eToys.com, or FTX. And with surprising speed, two con men have become the first individuals to be popped for their involvement with the scheme.
  
  They are brothers Michael and Gerald Shvartsman, who had inside knowledge, courtesy of then-director of Digital World Acquisition Corporation (DWAC) Bruce Garelick, of the then-upcoming merger between DWAC and Trump Media. Garelick and the Shvartsmans (Shvartsmen?) used that knowledge to fatten their bank accounts to the tune of $22 million. The brothers pleaded guilty to insider trading yesterday, and now face up to 20 years in the pokey. This raises two questions: (1) How could they possibly think they would get away with something so hamfisted, and (2) How is Donald Trump so good at attracting people who are corrupt... and stupid? Garelick, incidentally, is still planning to fight the charges in court. Good luck with that, now that your two co-indictees have already copped a plea.
  
  
• A Peculiar Odor: New York AG Letitia James has taken a look at the $175 million bond that Donald Trump posted to keep his properties from being sold while he appeals the nearly half-billion-dollar civil judgment against him, and she smells a potential rat. So, she has filed an order giving Trump's lawyers and/or Knight Insurance Group 10 days to "justify" the bond. That means that either Trump has to show he actually put up sufficient collateral to secure the bond, or Knight Insurance has to prove they have the funds available to pay off the bond should it become necessary, or both. Incidentally, a New York appeals court has also expressed concerns about the bond, and has also demanded more paperwork.

That's the latest. Who knows what the weekend will bring. (Z)

Mike Johnson: Time as Speaker May Not Last Much Longer

Congress will be in session again next Tuesday, after 2 weeks off. Why not Monday? We don't know. Maybe the members want to watch the eclipse, or maybe they are going to be celebrating National Library Week by banning some books. In any event, once the gang is all back together again, Speaker Mike Johnson (R-LA) will be in a tough spot, and he might very well not make it out on the other side with his current title intact.

What he faces, in effect, are four problems. The most immediate, most likely, is the effort by Rep. Marjorie Taylor Greene (R-GA) to vacate the chair. As multiple politics-watchers have noted, Johnson's best play would probably have been to bring the motion to the floor before the recess. That would have been bold, and would have come at a time when Greene had not yet been able to round up additional votes. But Johnson did not do that, and so he not only lost a chance to make a bold move, he also gave Greene time to rally the anti-Johnson opposition. And if, at any point, she thinks she's got the votes, she's going to convert the motion to a privileged motion, which will force Johnson to bring it to the floor within 48 hours.

While the motion to vacate looms over Johnson's head, he's got a second headache courtesy of his fellow Republicans. There are some very tricky questions that will soon come before the House, including funding for Israel, funding for Ukraine, and a renewal (or not) of some key surveillance laws. No matter how he threads the needle on these issues, he's going to alienate some members of the House Republican Conference (and that's before considering that any bill, if it is going to become law, has to get through the Senate and has to get the signature of a Democratic president).

For example, Johnson understands full well that money for Ukraine is very much in the interest of the United States, and will be far cheaper than the alternative if Ukraine is allowed to fall. Some members of his conference understand this, too. House and Senate Democrats know it, and Joe Biden also knows it. However, other members of the GOP conference strongly disagree, either because they are budget hawks who fail to understand that $1 spent today might produce $10 in savings tomorrow, or they are Trump sycophants who have adopted his pro-Russia/isolationist line. Given the difficulty in herding the GOP cats, Johnson has undertaken what The Bulwark's Will Saletan calls a "pathetic apology tour," laying out the difficulties the (ultra-slim) majority faces, and begging Republican members to be reasonable. Some of them won't be, of course.

And that brings us to the third problem. There are some matters on which Johnson might make up for tepid Republican support by reaching across the aisle for Democratic votes. However, the Democrats are going to want concessions in exchange for their support, probably pretty big ones. The more Democratic-friendly a bill becomes, the more Republicans will jump ship. And even if Johnson pieces together a viable Republican-Democrat coalition, that isn't seen as "governance" by a big chunk of the modern Republican Party. It's seen as "selling out," "surrendering" and "being a cuck." There are some Republicans who are not unfriendly to Johnson, but who say that reaching across the aisle would effectively leave him as a man without a party.

And then, the fourth problem, which is that Johnson apparently dislikes the job. He's exhausted, tired of all the travel, tired of the infighting, and tired of being attacked by members of his own team. So, it may not take much for him to decide to chuck the whole thing, even if he's not removed by Greene & Co. In fact, reading between the lines, if Johnson stays on the job, it will likely be only for the good of the team, to stop the Republicans from having to hold yet another embarrassing series of speaker elections mid-term.

Johnson's demise is not yet a done deal, and it's possible he weathers the storm. If so, he's likely to continue to rely on suspension of normal order, which means that members of the Republican Conference can't block or slow down bills with silly stunts, but that a two-thirds vote is needed for approval of anything. Meanwhile, the question of why anyone would want to be speaker with a Republican majority continues to be a difficult one to answer. Should Johnson head for the hills, he'll be, what, the fourth Republican speaker in a row to run away screaming? (Z)

No Labels: No Candidate Would Carry Our Mantle

It would seem that even the associate dogcatcher of East Cupcake had prior engagements, as No Labels' national director Joe Cunningham announced yesterday that the group will not field a presidential candidate in 2024. Here are his exact words:

The short answer is, that to field this ticket, No Labels was looking for a hero and a hero never emerged. We've been very straightforward and upfront and honest with the American public that we were gonna field this ticket if two conditions were met. Number 1, if Americans wanted another option, which is definitely, box is checked. And number 2, if we're able to find candidates that we believe have a pathway to victory. And that's where we ran into the trouble. At the end of the day, we weren't able to find candidates we felt had a straightforward path of victory in this.

So there you have it, the problem was the lack of "a hero."

We tend to think there were two fundamental problems with the No Labels approach. The first is that they were never going to get a rockstar candidate to defect from one of the two major parties. Many such people are rising stars who don't want to acquire a reputation as traitors—think Rep. Ro Khanna (D-CA), or Rep. Dan Crenshaw (R-TX). Other such people are falling stars who couldn't even sell their wares as a major-party candidate, much less a third-party upstart—think Chris Christie or Tulsi Gabbard.

The second problem is that, despite Cunningham's pretensions to the contrary, all that No Labels could ever be is a spoiler. And the problem there is that it would be nearly impossible to find a candidate of any stature who could make that work out the way that candidate would want to make it work out. For example, let us say that Sen. Tim Scott (R-SC) agreed to run on the No Labels ticket. Scott would very much like to be a spoiler for Joe Biden, but given his politics, he would be much more likely to take votes from Donald Trump. Or, alternatively, Beto O'Rourke would very much like to be a spoiler for Trump, but given his politics, he would be much more likely to take votes from Biden. It's not so easy to find a right-winger who might steal Democratic votes, or a left-winger who might steal Republican votes. And if you cannot find such a person, then their whole campaign ends up hurting the presidential candidate that the No Labels candidate doesn't want to hurt.

Of course, the one ticket that kind of makes sense for No Labels is RFK Jr./Nicole Shanahan. Given that RFK Jr. sounds Trumpier by the day, while Shanahan is a self-described progressive, this would be the sort of "bipartisan" pairing No Labels talked about, and would have given the group some stature, and very possibly access to the presidential debates (if there are any). From the viewpoint of the candidates, No Labels has much-needed money, and claims to have ballot access in 21 states.

So, how come this potential marriage was never consummated? There's no way to know, but we can at least make some guesses. The first possibility that occurs to us is that RFK Jr. has a big ego and doesn't want anyone to have input into his campaign, even if they can help with funding and ballot access. The second possibility that occurs to us is that No Labels was, in the end, a de facto Republican front, and they concluded that Junior was more likely to take votes out of Trump's hide than Biden's.

On that note, RFK Jr. found himself at the center of yet another controversy yesterday when his fundraising operation sent out an e-mail that referred to the 1/6 defendants as "activists" who have been "stripped of their constitutional liberties." After 2 days' worth of blowback (the first e-mails went out Tuesday night), the Kennedy campaign distanced itself from the messages, and blamed them on the vendor that was hired to help with fundraising.

Truth be told, RFK Jr. has already peddled enough lies that we are disinclined to believe that explanation. At very least, whoever wrote the e-mail looked carefully at Junior's campaign and decided that this messaging was in line with what the candidate is all about. And that brings us to an observation that we already made once this week: The more that RFK Jr. looks and sounds like Trump, the more likely he is to take votes from Trump rather than from Biden. (Z)

Nebraska: Republicans Fail to Out-Fox Democrats

As we noted yesterday, there was an effort, led by state Sen. Loren Lippincott (R-NE), to switch Nebraska to a winner-take-all system for awarding the state's electoral votes. The clear purpose here is to keep Joe Biden from potentially winning the single electoral vote from NE-02, which he did in 2020, and which Barack Obama did in 2008.

Lippincott knew full well that the measure would be filibustered if introduced as a regular bill, and that because of Nebraska's short legislative sessions, time was running out. So, he persuaded his colleague, state Sen. Julie Slama (R), to introduce it as an amendment to LB 1300, which has a bunch of bipartisan proposals from the legislature's Government, Military and Veterans Affairs Committee. The thinking here was that passing LB 1300 was important enough that the state's Democrats (and moderate Republicans?) would swallow hard and accept the change to winner-take-all.

What Lippincott and Slama apparently did not notice is that Nebraska law does not allow "unrelated amendments" to bills. And so, the maneuver did not go well. Either out of respect for the "unrelated amendments" law, or because the members don't favor the switch to winner-take-all, Slama's motion failed, with 36 voting "nay" to 8 voting "yea." In theory, Lippincott could try to resurrect his bill, but what path does he have? He can't get it passed through normal order, and he can't get it passed through parliamentary trickery, and he's only got a couple of days left before the session ends.

So, Nebraska will presumably stick with the current system through the 2024 election. And it's worth noting the subtext here. If you look at the map at the top of the screen, you'll see the polls currently predict a Trump electoral win, with 297 EVs for him compared to 241 for Biden. We don't believe things are actually that lopsided, and clearly Republican Party leaders don't think so either. There's no need to fight over one EV if you believe your candidate has a 20- or 30-electoral-vote margin of error. (Z)

Israel's Support Continues to Erode

We really don't like writing about Israel, because it's such a delicate situation, and we are just not versed in all the nuances and subtleties. If you'd told us on Sunday we'd be writing an Israel item every day this week but one, we might well have called in sick for the week and gone fishing. But we didn't, and we go where the news takes us.

Predictably, the killing of seven World Central Kitchen (WCK) workers has been an ongoing PR disaster for Israel. WCK founder José Andrés has joined a chorus of voices claiming that the workers were deliberately targeted. That is hard for us to accept, since the terrible optics of the tragedy were entirely foreseeable, and since it's not clear how killing innocent aid workers would benefit Israel in any way. On the other hand, we find very reasonable the assertion, raised by Slate's Fred Kaplan and others, that the incident speaks to the Israeli Defense Forces' (IDF) general carelessness about deconfliction (which is a fancy word used to describe efforts to avoid accidental conflict and/or killing, primarily through communication). In any event, the incident made Israel look either bad, or really, really bad, depending on which position you take. Further, it has led to a suspension of all humanitarian efforts, heightening the suffering in Gaza. So again, ongoing PR disaster. And, frankly, one that does not figure to abate anytime soon.

It is not getting much attention yet, but the day before the attack, the White House authorized the transfer of 2,000 more bombs to the IDF. Obviously, those weren't the bombs used in the killings of the WCK workers, but it's really unfortunate timing for the Biden administration, nonetheless. Whether it will blow up into a big story is anyone's guess.

In any event, Joe Biden got on the phone with Benjamin Netanyahu yesterday, and read the Israeli PM the riot act. The general point was that the IDF needs to come up with a "clear" and "concrete" approach to protecting humanitarian workers and to ensuring the flow of humanitarian aid, or the U.S. will reevaluate its support. Secretary of State Antony Blinken put it this way: "If we don't see the changes we need to see, there will be a change in our policy." Exactly what that means is not clear. And it doesn't mean anything unless there's some follow-through from Israel, or from the Biden Administration, or both.

That said, strong words from the White House (whether or not they are backed by strong actions, like no more shipments of thousands of bombs) are not the only evidence that Israel's position has grown considerably weaker this week. Here are some other developments worth noting:

• Pro-Israel Democrats: One of the most outspoken supporters of Israel in the U.S. Senate is Sen. Chris Coons (D-DE), who serves on the Senate Committee on Foreign Relations. Yesterday, he said that he is now willing to consider placing conditions on aid to Israel. Here are his exact words:

  I've never said that before! I've never been here before. I've been a strong supporter of Israel the whole time I've served in Congress. We just appropriated another $3.3 billion of support in the last appropriations bill we did. The challenge is to make it clear that we support the Israeli people, that we want to and will continue to have a strong and close relationship with Israel, but that the tactics by which the current prime minister is making these decisions don't reflect the best values of Israel or of the United States.

  Similarly, George Latimer is one of the candidates that AIPAC recruited to try to knock off a member of the Squad (in this case, Rep. Jamaal Bowman, D-NY). Yesterday, he expressed outrage over the WCK deaths, and said "there's no defense for that."
  
  
• Donald Trump: Trump, of course, has always been staunchly pro-Israel. That is not because he cares, one way or another, but because that's what the evangelicals in his base demand. But he's also cognizant of which way the political winds are blowing, and so he's been more critical of Israel in the past couple of weeks. Yesterday, he talked with Hugh Hewitt and said Israel was:

  [R]eleasing the most heinous, most horrible tapes of buildings falling down. And people are imagining there's a lot of people in those buildings, or people in those buildings, and they don't like it I don't know why they released wartime shots like that. I guess it makes them look tough. But to me, it doesn't make them look tough They're losing the PR war. They're losing it big. But they've got to finish what they started, and they've got to finish it fast, and we have to get on with life.

  On two occasions, Hewitt asked Trump if he was "still standing 100 percent with Israel," and both times Trump refused to answer the question.
  
  
• McDonald's: You're probably not surprised to see "Trump" and "McDonald's" appear in close proximity to each other, but you probably are surprised that it comes in the context of U.S.-Israel relations. In any case, as many readers will know, the great majority of McDonald's franchises are independents, with corporate merely providing raw materials, marketing support and, quite often, the premises (the McDonald's Corporation makes the majority of its income charging rent to franchisees). Given the semi-autonomous nature of McDonald's locations, the chain's 225 Israeli franchises have been giving unwavering support to the IDF. This is not great PR for (many of) the 41,000 non-Israeli McDonald's locations. As you may know, 41,000 is considerably more than 225. And so, McDonald's has reached agreement to buy back all of its Israeli locations. This does not mean that the locations will be shut down, but it does mean that they will now operate in a manner that is more politically neutral.

Again, this is far removed from our area of expertise, but even we can read these foreign policy tea leaves. (Z)

British Politics: How Much of a Beating Will the Tory Bench Take?

Earlier this week, we had an item about the Sunday Times poll that predicts the Conservative Party will not only lose their majority (pretty much a given at this point), but that they will drop from their current 348 seats down to fewer than 100, with Labour jumping from their current 200 up to 468.

Though that would be an almost unprecedented result, we thought it was at least credible, given all the headwinds the Tories are facing right now. However, one of our regular British correspondents, S.T. in Worcestershire, England, UK, wrote in to push back on that:

On Tuesday, (Z) wrote about the prospects of the Conservative Party, partly in response to a Survation poll, details which were released in the U.K. over the Easter weekend. This is traditionally a fallow time for political news, so a poll suggesting the Conservatives would get fewer than 100 seats in a general election was bound to get lots of coverage—and duly did. The poll was commissioned by Best for Britain, which generally campaigns on "post-Brexit problems." I struggled to find a full breakdown, but a summary is available here. Whilst the voting share figures seem in line with other recent polls, eyebrows were raised by use of the in-vogue MRP (multi-level regression and post-stratification) technique to arrive at the number of seats each party would win. Given their ongoing problems north of the border (the loss of a once-popular leader in Nicola Sturgeon, and an ongoing police investigation), is the Scottish National Party really going to hold onto 41 seats? And looking at the projections in England, there seem to be a goodly number of seats where Labour are projected to win from a current very distant third place. Salt is a cheap, user friendly commodity and should be used in this instance.

Perhaps the more interesting aspect of this poll is the impact it will have within the governing party. PM Rishi Sunak's next big electorate hurdle is on May 2, when a significant number of local elections in England take place, together with a parliamentary by-election in Blackpool South (yet another contest resulting from misbehavior by a Conservative MP). The results are expected to be bad for the Conservatives; last time these local seats were contested, the Tories were actually ahead in the polls by circa 10%, so lots of their councillors face an uphill task retaining their seats. Almost unbelievably, the Westminster rumor mill is daring to suggest that a really atrocious result could lead in an attempt to remove Sunak as party leader, giving us the sixth Conservative Prime Minister in 8 years! One way Sunak might avoid this ignominy is threatening or calling a snap election for June or July. The alternative appears to be a contest in October or November. U.S. readers may be amused to note that one argument being made against this is that a Trump victory, projected or actual, would cause even more harm to the Conservatives!

To end with a reality check: Since the 1832 Reform Act, the Conservatives have never polled less than 30% of the vote in a U.K. election. If the current opinion polls hold till Election Day, we will be entering unknown territory.

Thereafter, another of our British correspondents, A.B. in Lichfield, England, UK, wrote in to say that maybe the Conservatives really are headed for a disaster of historic proportions:

I accept the poll has some flaws, but I'm increasingly minded of the 1993 Canadian General Election: An unelected PM is leading a deeply unpopular conservative government that's been in power for over 10 years; the government is being flanked to the right by a populist party called "Reform"; there's a strong pro-independence nationalist movement in one part of the country that will likely do well in its home region... those similarities keep nagging at me. The core difference between Canada in 1993 and the U.K. in 2024 is that the Canadian version of Reform had a strong regional base in the western provinces that allowed them to win seats in their home region, while the U.K. version distributes its vote more evenly across England (it's functionally an English nationalist party with very little traction in Scotland and Wales); this will make it much harder for Reform UK to win seats in our election. All the same, I can't help but think that when the Brexit Party officially rebranded itself as "Reform UK" in early 2021, it was deliberately thinking of the Canadian precedent.

I don't think Sunak is facing the same level of catastrophe as Canadian Prime Minister Kim Campbell did in 1993, when the Progressive Conservatives went from winning 169 seats to just 2 (with Campbell losing her seat), but despite my natural caution, I'm increasingly bracing myself for a Conservative Party disaster that could surpass the party's previous historical low marks of 1906 (collapsing from 402 seats won in 1900 to just 156 in 1906) and 1997 (336 seats in 1992 to just 165).

S.T. in Worcestershire replied thusly:

I think I would be much more comfortable if I had found anywhere which gave the projected voting percentages for each seat, but I got no further than the map showing the winner in each. And the more I looked at it, the less happy I became. For example, how can one explain Labour gaining Sutton and Cheam but next door failing to gain Wimbledon? Surely they either gain both or neither.

I strongly think the Conservatives are cruising for a bruising but still struggle with the depth of their projected defeat. Just to play devil's advocate, here are 10 reasons why:

1. The historical base of 30% I mentioned in my last message
2. Opinion polls tending in the past to overstate Labour's voting strength (see 1992, 1997, 2015)
3. Those entering an election campaign as leaders tending to see their lead reduce during the campaign
4. "Shy Tories" possibly not being picked up in the polls
5. Conservative vote being more effectively spread than for several recent decades
6. The Blue Wall proving, when push comes to shove, to be more resilient than expected
7. Some degree of economic improvement in the coming months (albeit from an abysmal base)
8. Reform looking like they will do better than will actually come to pass
9. Incumbency factor saving some of the big first time winners in 2019 (e.g. Marco Longhi, Dudley North)
10. Boundary changes being worth 10-15 seats for the Conservatives

Of course, given my abysmal record at predicting general election results, this could all be hogwash, swept away by a red tsunami. But, particularly if Labour/Liberal Democrat tactical voting fails to take off (i.e., members of one party voting for the other when their own candidate is hopeless), I could see the Conservatives getting closer to their 200-ish seats in 1945, than their results in 1906 or 1997.

Thanks to both of you for your assessments! If we've said it once, we've said it a hundred times: "As goes Wimbledon, so goes Sutton and Cheam."

Since we published the original piece, there's been another major poll; this one is from YouGov, and it has detailed breakdowns for every seat. YouGov does not predict as poor a result for the Tories as the Sunday Times poll, but they do foresee a shellacking, with 403 seats for Labour, 155 for the Conservatives, 49 for the Lib Dems, 19 for the SNP, 4 for Plaid Cymru and 1 for the Greens. So, at least at the moment, Sunak and his colleagues are definitely looking at a tsunami, it's just not clear how large. Our friends in Britain have offered to report on the upcoming elections, so we will see what May brings. That's the month, not the former PM. (Z)

I Read the News Today, Oh Boy: Sticky Fingers

Our hints for last week's theme were "if you can't figure it out, don't beat yourself up" (Friday) and "If you're still working on the headline theme, well, we regret that you're having treble" (Saturday). We think that second one was a pretty big giveaway, but in any case, here is the theme, courtesy of reader E.G. in Carmel, IN:

They're all music terms:

• In Da House: Greene's Machinations Likely to Fall Flat—A symbol, ♭, that lowers the pitch of a note by a semitone
• Southern Politics: Same Old Song and Dance—Singing or vocal music
• Election Crimes Have Consequences: The Jig Is up for Eastman, Pritchard—Any of several lively springy dances in triple rhythm
• Advantage, Republicans: This Time, the GOP Wins the Redistricting Battle—The grouping of the beats of music
• Shanahan: Open Mouth, Insert Foot—A foot is a basic unit of meter in music
• Advantage, Biden: Big Score from New York Fundraiser—The copy of a musical composition in written or printed notation
• The Trump Bible: Preaching to the Choir?—An organized company of singers
• I Read the News Today, Oh Boy: Bitter Sweet Symphony—A usually long and complex sonata for symphony orchestra
• This Week in Schadenfreude: The World's Stupidest Slur—A symbol in Western musical notation, generally a curved line placed over the notes, indicating that the notes it embraces are to be played without separation
• This Week in Freudenfreude: Green Energy on the March—A musical composition that is usually in duple or quadruple time with a strongly accentuated beat

Thanks, E.G.!

Here are the first 30 readers to get it right:

1. J.H. in Sturbridge, MA
2. W.L. in Springfield, MO
3. R.D. in Cheshire, CT
4. D.D. in Carversville, PA
5. A.P. in Kitchener, ON, Canada
6. B.M. in Chico, CA
7. S.K. in Drexel Hill, PA
8. N.S. in Los Angeles, CA
9. N.K. in Cleveland Heights, OH
10. N.H. in London, England, UK
11. M.S. in Canton, NY
12. S.G. in Durham, NC
13. M.B. in Albany, NY
14. K.R. in Austin, TX
15. M.M. in Leonardtown, MD
16. M.Z. in Sharon, MA
17. S.W. in Winter Garden, FL
18. S.L. in Wavre, Belgium
19. J.S. in Columbia, MO
20. J.M. in Eagle Mills, NY
21. M.W. in Newington, CT
22. R.B. in Atlanta, GA
23. N.P. in Santa Rosa, CA
24. H.B. in State College, PA
25. R.G. in Washington, DC
26. E.G. in Carmel
27. B.L. in Mountain View, CA
28. S.S. in Carmel, IN
29. D.M. in Burnsville, MN
30. P.D. in La Mesa, CA

The trickiest words, as it turns out, were "Slur," which we expected, and "Foot," which we did not.

As to this week's theme, it requires only one word to the right of the colon (and the Israel item is NOT part of the game). It's in the Trivial Pursuit category Sports & Leisure, and as to a hint, we will say that we may only have come up with the idea a few hours ago, but we already know it's an award-winning puzzle.

If you have a guess, send it to comments@electoral-vote.com, ideally with the subject "April 5 Headlines." (Z)

This Week in Schadenfreude: It Burns, Oh How It Burns

We never expected to write an item about Kevin O'Leary, much less two of them in the span of a couple of weeks. However, the Shark Tank star (he also appears in the Canadian version of the show, Dragons' Den) has really been showing recently why his nickname "Mr. Wonderful" is meant ironically.

Donald Trump's legal woes, and in particular his conviction for fraud, have really put a bee in O'Leary's bonnet. In the previous item we wrote about him, we noted that it is his view that all real estate developers lie about their assets, and what's a little fraud between friends? This attitude caused O'Leary to be excoriated by, among others, Jon Stewart. It also caused "Mr. Wonderful" to lambaste the state and city of New York, and to promise he'll never do business there again. What a terrible loss for them.

Apparently, O'Leary is not satisfied that his wrath has been properly visited on the Big Apple, and has not completed his temper tantrum. So, he appeared on one of the right-wing media outlets this week to tear into Rep. Alexandria Ocasio-Cortez (D-NY). "I look at AOC, what an incredible, incredibly successful politician she is and what a horrific manager she is. Her jurisdiction looks like a third world country, and yet she's great at social media and making outrageous statements and getting $5 at a time on, you know, every way she can on social," he spat.

There are one, and possibly two, problems here. The obvious one is that O'Leary seems to have very little concept of how the U.S. government (or, really, any government) works. Needless to say, members of the federal legislature are never responsible for municipal management. Maybe if Ocasio-Cortez was mayor, he might have a point. The potential second problem is that, in focusing on a Latina congresswoman (out of all the members who represent New York), and on a district that is nearly 80% non-white (out of all the districts in New York City), O'Leary comes off as a teensy-weensy bit racist.

In any case, for the second time in as many weeks, O'Leary is being shredded to pieces on social media. Which, frankly, is good enough for him. If he's going to open his big mouth, and say stupid things, on the assumption that people really care what some guy from a game show thinks, then he deserves to reap what he sowed. (Z)

This Week in Freudenfreude: Cuban Takes DEI to the Bank(s)

We really didn't plan it this way, but the counterpart to this week's Schadenfreude features someone from the exact same game show. Not Kevin O'Leary this time, but his Shark Tank colleague Mark Cuban. The latter, at least by net wealth, is vastly more successful than the former; $5.4 billion vs. $400 million.

In any case, many conservatives would like you to believe that diversity, equity, and inclusion (DEI) programs are very bad for business. The general notion they put forward is that not only are businesses compelled to spend (waste?) money on such efforts, but by favoring (forcing?) the hiring of women and minority candidates, they saddle companies with inferior employees. Gov. Ron DeSantis (R-FL) is perhaps the most outspoken critic of such programs, and has done what he can to get rid of them, although his power extends more to public institutions rather than private ones.

DeSantis, who has never run a business, is operating in the realm of theory when it comes to DEI and the private sector. Cuban, who has run hundreds of businesses, is operating in the realm of cold, hard fact. Recently, conservative activist Christopher Rufo and podcaster Jordan Peterson both took to Ex-Twitter to collectively rail against DEI and to assert that they are a drag on profits. Cuban was having none of it, responding:

First of all, my arguments are not abstract.

I own or invest in hundreds of companies. I know DEI is a positive because I see its impact on bottom lines. That's been reiterated by many CEOs.

My definitions of D, E and I are not theoretical. They are actually used. Are yours?

You have sides. I don't.

I'm an entrepreneur and capitalist. I look for results. That's what I base my decisions on.

Every single person on Twitter could disagree with me. I would still follow the results I see in my portfolio.

Cuban later suggested that Rufo and Peterson are living in a right-wing bubble, and that "Twitter is not reflective of the real world." That's pretty clearly also a thinly-veiled shot at Elon Musk, with whom Cuban has argued DEI before.

It should be noted that Cuban is no bleeding-heart left-winger. His politics are mixed, but tend to be more Libertarian than anything else. So, when he says that DEI initiatives dovetail nicely with the bottom line, he is surely speaking truth.

In any event, it's good to see blowhards who don't know what they are talking about corrected by people who do know what they are talking about. The affirmation that DEI initiatives do not mean trading [X] for [Y], and that they can be and are "win-win" is also great. (Z)

Today's Presidential Polls

Both of these pollsters polled registered voters, as opposed to likely voters. That's a defensible choice, since many people don't know for sure what they will do 6 months from now. However, it's also a choice that's going to boost Joe Biden's numbers, since there are fewer hyper-devoted, sure-to-vote-no-matter-what Democrats than Republicans.

All of this said, the Pennsylvania poll in particular, supports the observation we made in the Nebraska item above, that this race is far closer than many polls make it seem.

State	Joe Biden	Donald Trump	Start	End	Pollster
Colorado	49%	39%	Mar 15	Mar 19	Colorado Polling Inst.
Pennsylvania	48%	38%	Mar 20	Mar 31	Franklin+Marshall Coll.

Click on a state name for a graph of its polling history.

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