Trump Legal News: The Trial, Day 2

When we chose "The Trial" as the headline here, we were even more on point than we realized. Not only does the judge in that song summarily find the defendant guilty, because the evidence is so overwhelming but, at the end, as reader A.M. in Brookhaven, PA, reminded us, an order is given to "tear down the wall." (Z) knows that song well, having heard it hundreds of times (the live version, featuring Tim Curry, Albert Finney and Thomas Dolby, is highly recommended), and can't believe he did not think of it.

In any case, the second day of the trial is in the books. Here are the most interesting storylines:

1. Baby It's You: We apparently now have 7/18ths of the jurors needed for the trial to commence (12 regular jurors and 6 alternates). This does not seem to comport with the process that was described by news media on Monday (that 36 people would make the first cut, and 18 of those would make the second cut), but both sides have used six of their ten challenges and the seven folks chosen yesterday were sworn in and told to be prepared to return Monday, so it would seem the members of this septet are the real McCoy.
   
   
2. Everybody's Got Something To Hide Except Me And My Monkey: The New York Times has laid hands on the questionnaire that is being used to screen the jurors. It's seven pages and 42 questions. Thanks to the lawyers' questioning, which is guided by the would-be jurors' responses, the press has been able to put together semi-bios on the seven jurors who have been impaneled. For example, the first juror:

   A man who is originally from Ireland and now lives in West Harlem. He works in sales and gets his news from The New York Times, the Daily Mail, Fox News and MSNBC. He will serve as the foreperson.

   Hm, an Irish immigrant. Undoubtedly, the part-Scottish xenophobe will be thrilled to be judged by such a person.
   
   
3. I'm So Tired: On the first day of the trial, there was some question as to whether Trump was really falling asleep, partly because the press corps couldn't see him all that well, and partly because most of them weren't looking for it. Yesterday, by contrast, everyone was watching, and there was a consensus that the former president did indeed nod off multiple times. If there ARE presidential debates, and if Trump dares make any reference to Joe Biden being sleepy or low-energy, the President now has a built-in comeback: "Well, at least I never fell asleep while I was on trial."
   
   
4. It Won't Be Long: DA Alvin Bragg filed a motion proposing that if Trump violates his gag order again, he should be warned that he could be jailed for 30 days. That is far from actually happening, but if it did, think of the implications. First, Trump would be completely unable to campaign for a month. Second, if he can't stay awake after a night's rest in his luxurious Trump Tower bed, then what's going to happen when he's sleeping on a prison cot? Third, his beauty routine would be somewhere between difficult and impossible to carry out while jailed. What would his hair and his "tan" look like after 30 days in the clink?
   
   
5. Not A Second Time: At one point, Trump grimaced and gestured in a way that seemed to be directed at one of the would-be jurors. Judge Juan Merchan was having none of that, and told Trump and his lawyers: "I will not have any jurors intimidated in this courtroom. I want to make that crystal clear." Plainly, Merchan runs a tight ship. A Merchan ship, if you will.
   
   
6. I Me Mine: About halfway through the day, New York City Mayor Eric Adams (D) showed up and said a few words about how important the trial is and how tight the security is. And then he... left, because he actually has zero connection to any of this. He was just trying to score some free publicity.
   
   
7. I Forgot To Remember To Forget: It took only until the end of the second day for Trump to remind everyone why he's a nightmare client. As is his custom, once court was dismissed for the day, he held an impromptu press conference where he railed against anything and everything. And during that, he decreed: "I was paying a lawyer and marked it down as a legal expense. Some accountant, I didn't know, marked it down as a legal expense. That's exactly what it was... So check it out. It's called legal expense." The general consensus is that the toughest part of Bragg's case (and we wrote about this last week) is proving that Trump knew the expense had been improperly recorded. Well, he effectively just admitted that element of the case. More than one legal analyst suggested yesterday that footage of the Trump press conference could end up being played for the jury.

That's the news from Day 2. Today is a day off, and then they'll be back at it tomorrow. (Z)

Democrats Reclaim Michigan Trifecta

Yesterday, we wrote that Michigan is a Democratic trifecta. That was not, strictly speaking, true. Thanks to two resignations from the state House, from members who had been elected to mayoralties, the lower chamber was actually tied 54-54.

Fortunately, we were only in error for about 12 hours. There were two special elections to fill the vacant seats yesterday, and the Democrats won both. This was expected, since both districts are very blue. That means it's now 56-54 and the Democrats' trifecta has been restored. There will now be peace and justice throughout the galaxy. (Z)

Democrats Are Winning Senate Money Race

The Q1 numbers are in, and while the Democrats have a tough Senate map (a fact we might have mentioned once or twice), they've got to be happy with their fundraising. Here are the totals for the various races that are at least somewhat competitive:

State	Democratic	Republican	Dem Advantage
Ohio	Sen. Sherrod Brown, $12M	Bernie Moreno, $1.8M	$10.2M
Montana	Sen. Jon Tester, $8M	Tim Sheehy, $2.2M	$5.8M
Wisconsin	Sen. Tammy Baldwin, $5.4M	Eric Hovde, $1.1M	$4.3M
Arizona	Rep. Ruben Gallego, $7.5M	Kari Lake, $3.6M	$3.9M
Nevada	Sen. Jacky Rosen, $5M	Sam Brown, $2.2M	$2.8M
Texas	Rep. Colin Allred, $9.5M	Sen. Ted Cruz, $6.9M	$2.6M
Pennsylvania	Sen. Bob Casey, $4.6M	David McCormick, $3.5M	$1.1M

We often caution against reading too much into fundraising takes, since money translates into votes at a very inefficient rate, and since there are so many places that money might flow to (PACs, national committees, presidential candidates, etc.) that looking at any one candidate or set of candidates might be misleading.

That said, it's better to have more money than less, and the blue team's advantage is both sizable and consistent across races. That probably does mean something. Further, the DSCC has to be thrilled that its most vulnerable candidates (Brown and Tester) are doing the best job of leaving their opponents in the financial dust. In particular, do you know how far an extra $6 million or so goes in Montana? Tester could probably buy every ad spot on every station in the state for the entire month of October, plus a round of Rocky Mountain oysters for everyone, if he wanted. (Z)

And So It Begins?

There's barely enough news here to make it worth writing an item, but the House has finally delivered the Alejandro Mayorkas articles of impeachment to the Senate. So, the clock is now ticking.

The senators spent some time bickering about how they would handle the process. It appears that Senate Majority Leader Chuck Schumer (D-NY) and the Democrats, along with at least one Republican, want to dismiss the articles immediately. At least some Republicans want to have a "trial" that lasts a couple of hours, so they can perform some political theater. Either way, this does not figure to last beyond today.

As a sidebar, this is a pretty good example of a story where being "fair" in covering it actually introduces bias (or, at least, inaccuracy). For example, (Z) rarely listens to NPR, but happened to hear their report on the story, and they told listeners that Mayorkas has been charged with "willful and systemic refusal to comply with the law" and "breach of public trust." While true, they neglected to mention that the charges are lacking in merit, and that he's done nothing different from any other DHS or Cabinet secretary. Certainly nothing criminally different. Just listing the serious-sounding charges gives the impression that they have some meaningful amount of merit.

Similarly, the abcnews.com article has the headline: "Historic impeachment articles against Alejandro Mayorkas sent to Senate, but will there be a full trial?" It's true that this is historic, in that a Cabinet secretary has only been impeached once before. However, "historic" carries broadly positive connotations of "significant," "substantial," and "groundbreaking." None of these things apply here; within 24 hours this story will be well on its way to being the answer to a trivia question for political junkies.

Perhaps we are being nitpicky here, but we were struck by how inaccurate the impression conveyed by these two "fair" stories is. (Z)

Another Republican Wants to Remove Johnson

And then there were two. Yesterday, Rep. Thomas Massie (R-KY) announced that he agrees with Rep. Marjorie Taylor Greene (R-GA) that Speaker Mike Johnson (R-LA) must go. Massie is angry about the pending Ukraine funding bill, the bills that kept the federal government funded for FY 2023-24, and the bill that renewed part of FISA for 2 years.

This means that an inflection point has been reached. If all of the House Democrats, along with Greene and Massie, vote to get rid of the Speaker, that's 215 votes. As of Friday, when the resignation of Rep. Mike Gallagher (R-WI) takes effect, 216 votes are all that will be needed to send Johnson packing. Massie implied yesterday that there are others among his Freedom Caucus colleagues ready to vote for Johnson's ouster, so maybe the Speaker is in deep trouble, despite Donald Trump's support.

That said, the Democrats' support for such a move is not a sure thing. There aren't that many weeks left before the election cycle really gears up, and they're not terribly enthusiastic about wasting 1-2 more weeks on speaker elections. Also, if the bills Johnson puts forward for funding Ukraine and Israel are acceptable, the blue team is inclined to save the Speaker's bacon as a reward.

Massie, incidentally, has his own solution to the problem of the House being speaker-less again. The Representative wants Johnson to resign, with the resignation to take effect as soon as a new speaker is chosen. This is how John Boehner ended his tenure as speaker, so that the office would not be vacant. Johnson described the suggestion as "absurd" and said he will most certainly not be resigning. So, if Greene and Massie are going to give him the boot, they're going to have to do it the hard way. (Z)

So Much for President Sununu

Gov. Chris Sununu (R-NH) is ready to be done with his current job. And yet, he appeared on ABC's This Week over the weekend, where he wilted under questioning from George Stephanopoulos. Specifically, Sununu was asked about the hypocrisy of two publicly stated positions: (1) that Donald Trump is guilty of insurrection against the United States and (2) that he (Sununu) supports Donald Trump for president. The exact question was this: "You believe that a president who contributed to an insurrection should be president again?"

And here is how Sununu answered:

As does 51 percent of America, George. I mean, really, I understand you're part of the media. I understand you're in this New York City bubble or whatever it is. But you've got to look around at what's happening across this country. It's not about just supporting Trump. It's getting rid of what we have today. It's about understanding inflation is crushing families. It's understanding that this border issue is not a Texas issue. It's a 50-state issue, right? That has to be brought under control. It's about that type of elitism that the average American is just sick and tired of. And it's a culture change. That's what I'm supporting.

Stephanopoulos followed up with, and got answers to, several questions about whether Trump should withdraw from the race if he's found guilty of one or more crimes. After that sequence, which lasted several minutes, the host summarized thusly:

So just to sum up, you support him for president even if he's convicted for classified documents. You support him for president even though you believe he contributed to an insurrection. You support him for president even though you believe he's lying about the last election. You support him for president even if he's convicted in the Manhattan case. I just want you to say the answer to that is yes, correct.

"Yeah," responded Sununu. "Me and 51 percent of America."

Who knew Trump had the support of a majority of Americans? Strange that he lost the popular vote by millions of votes in both of his elections if that is the case. In any event, Sununu wouldn't be doing so much press if he was not planning a future run for office. And he wouldn't be threading the MAGA needle if that office wasn't president. So, his intentions are clear here.

The problem is that Sununu is never, ever going to be embraced by the MAGA crowd. He's criticized Trump. He's said there was an insurrection. He's said the 2020 election wasn't stolen. He endorsed Nikki Haley. That ship has sailed. And now, thanks to his performance on Sunday, the "sane Republican" lane is closed to him as well. Does he not know that, when it comes to questions like the ones Stephanopoulos was asking, you have to remember the five D's: dodge, duck, dip, dive and dodge? This interview was so bad, we don't believe the Governor can ever live it down or put it behind him. If he tries to run in 2028 or 2032, this clip is guaranteed to resurface.

As a guy from a small state, and one who is out of step with the national party, Sununu was already a longshot presidential candidate. But now, he's a no shot candidate. He, Mike Pence and Nikki Haley should form a "Republicans without a lane" club. (Z)

Judge Shopping May Still Be a Going Issue

As we have noted, the Judicial Conference of the United States (JCOTUS) adopted a guideline that judicial circuits should assign cases at the district level rather than the division level. This would mean that any given case could land on the docket of any of the 12-20 judges in a district, as opposed to the numerous divisions where a case can only land on the docket of one or two judges. This was an effort to limit judge shopping, which undermines the integrity of the system. And the particular judge that everyone had in mind was Matthew Kacsmaryk, the staunchly conservative only-judge-in-his-Texas-division who is a popular choice for judge-shopping Republicans, particularly Texas AG Ken Paxton.

The United States District Court for the Northern District of Texas took notice of JCOTUS' suggestion, said "Thanks, but no thanks," and indicated that business would continue as usual. However, it appears that may not be the end of it, as there is still relevant movement on two fronts.

The first front is the JCOTUS itself, which may take a second look at the issue, and may decide to make the guideline into a formal rule. The Chair of JCOTUS, Chief Justice John Roberts, would prefer that compliance be voluntary, but he also realizes this practice is seriously weakening the credibility of the judicial branch. So, he might bring the hammer. Well, the gavel. JCOTUS only meets twice a year, though, so it will be a while until we learn what they've decided.

Meanwhile, there are dueling bills in the Senate. Chuck Schumer has put forward a bill that would codify the JCOTUS recommendation. It's attracted 39 co-sponsors, but none from the Republican side of the aisle. So, it's not likely to become law unless the filibuster is abolished. Meanwhile, Senate Minority Leader Mitch McConnell (R-KY) has read the tea leaves and, interestingly, decided that his side of the issue might have a problem here, and could lose a key tool in their toolkit. So, he's offered up a "compromise" bill of sorts that would keep the judge shopping, but would forbid circuit judges from issuing national injunctions. So, for example, Kacsmaryk would be able to ban mifepristone in Texas, but not in Michigan. Thus far, McConnell's bill has attracted very little support, but it is an interesting sign that his spidey-sense (turtley-sense?) is tingling here.

So, this remains a question worth watching. (Z)

Looking Forward to 2024, Part IX: Reader Predictions, Wildcard Edition

Our final set of predictions for 2024; better late than never. Here are the previous entries:

• Looking Forward to 2024, Part I: Pundit Predictions
• Looking Forward to 2024, Part II: Our Predictions
• Looking Forward to 2024, Part III: Reader Predictions, Joe Biden Edition
• Looking Forward to 2024, Part IV: Reader Predictions, Donald Trump Edition
• Looking Forward to 2024, Part V: Reader Predictions, Elections Edition
• Looking Forward to 2024, Part VI: Reader Predictions, Economy and Finance Edition
• Looking Forward to 2024, Part VII: Reader Predictions, Congress Edition
• Looking Forward to 2024, Part VIII: Reader Predictions, Foreign Affairs Edition

And now, 10 wildcard predictions:

1. D.M. in Wimberley, TX: This year will be the hottest year ever. Global warming denial will become even less tenable, but will still have less effect at the polls than consumer prices. (Potential Bonus Points: 21)
   
   
2. K.H. in Albuquerque, NM: A major hurricane (Category 3 or higher) will directly impact the 2024 election by making landfall on the U.S. mainland between Oct. 30 and Election Day. (Potential Bonus Points: 66)
   
   
3. P.L. in Denver, CO: There will be a major breakthrough in cancer treatment. (Potential Bonus Points: 55)
   
   
4. R.B. in Portland, OR: Jimmy Carter will pass away in the first half of the year. All former presidents except Donald Trump will attend his funeral. (Potential Bonus Points: 30)
   
   
5. C.O. in East Lansing, MI: At the end of the current Supreme Court term, Clarence Thomas will resign—not due to wrongdoing, but to escape the microscope on his finances. Instead, he will take a lucrative job as a name on a law firm where he is not even expected to handle cases. (Many lawyers would be happy to pay millions of dollars per year to NOT have him on the Court, but that part wouldn't be public.) (Potential Bonus Points: 79)
   
   
6. G.H. in Reading, MA: There will be a Supreme Court vacancy in 2024. (Potential Bonus Points: 56)
   
   
7. B.C. in Kent, OH: The Supreme Court will sustain Donald Trump's arguments about presidential immunity. (Potential Bonus Points: 82)
   
   
8. R.C. in Des Moines, IA: The Chicago Bears will win 13 games and dislodge the Detroit Lions as the NFL's "Cinderella." (Potential Bonus Points: 74)
   
   
9. K.F.S. in Lorton, VA: A Canadian team will once again lose the Stanley Cup, though it will be close, further delaying their country's plans for world domination. (Potential Bonus Points: 45)
   
   
10. T.J.R. in Metuchen, NJ: The Pittsburgh Pirates will stun the world and win the World Series. (Potential Bonus Points: 92)

If the readers get 'em all right, then they'll earn 1,000 points for 10 correct predictions, along with a nice, round 600 bonus points for degree of difficulty. The Pirates World Series prediction is judged, by the panel, to be the longest shot of all the predictions this year. Should have been the 13-win Bears, unless we're talking about how many games they're going to win this decade.

And there you have it. We'll be revisiting these in December to see how everyone did. (Z)

Today's Presidential Polls

Donald Trump won Texas by 6 points in 2020 and 9 points in 2016. We continue to suspect that current polling is, by at least a bit, understating how much support Joe Biden will have by the time November rolls around. (Z)

State	Joe Biden	Donald Trump	Start	End	Pollster
Texas	36%	48%	Apr 05	Apr 10	Texas Hispanic Policy Foundation

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

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