Is Trump Immune?

Donald Trump had COVID-19, so he is probably immune to that. But is he also immune to being prosecuted for attempting to overturn an election he lost? The Supreme Court will take a look at that today as it holds oral arguments on Trump's claim that when the president does it, it is not illegal (shades of Richard Nixon). If the Court decides that, nope, Trump is not immune, Judge Tanya Chutkan could decide to hold his trial in the summer or fall, despite Trump doing everything he can to prevent that. If the Court decides that Trump IS immune, in a second term, Trump could openly break the law whenever he wanted to knowing that he was immune to prosecution not only during his presidency, but also after it. Theoretically, such a decision could also enable Joe Biden to order SEAL Team Six to assassinate Trump and get away with it, but that is not his style.

In their brief, Trump's attorneys wrote: "The President cannot function, and the Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office." Of course, that applies only to illegal acts. As long as the president does nothing illegal, he's safe. And if he is not sure about the legality, there is the Office of Counsel to the President, whose only purpose is to advise the president about what is legal and what is not. Trump's lawyers also argued that there is a mechanism for taming a rogue president: impeachment. Of course, losing your job is not the same as going to prison. And a rogue president could simply resign before being impeached.

The lower courts have not been impressed by this argument. The district court rejected it and that was upheld unanimously by the U.S. Court of Appeals for the District of Columbia. The appeals court wrote that if Trump's theory is accepted, it would put the president above the law. In his brief, Special Counsel Jack Smith argues that there is no historical precedent for anything like that (and the current Supreme Court sometimes cares about historical precedent) and a ruling in favor of immunity would undermine the founders' vision of a presidency restrained in power. They didn't want a king as they had some experience with one. Smith also noted that Trump's actions to stay in power after losing an election were "a private scheme with private actors to achieve a private end: petitioner's effort to remain in power by fraud." They were not official actions of the president exercising his lawful powers. This argument could allow the Court to rule against Trump for private criminal acts while skirting the question of whether a president is immune to prosecution for official criminal acts.

If the Court wants to protect Trump but also not give future presidents freedom to break the law, it could make some general statement and then send the case back to the lower court for a rehearing on the immunity question. That would solve Trump's problem of being put on trial before the election.

Not that the justices pay a lot of attention to polls, but an Ipsos poll shows that 65% of Americans think the Jan. 6 indictment is serious, including 51% who think it is very serious. About 52% think he should have been charged with a crime vs. 32% who think he should not have been.

One other thing the Supreme Court could do to help Trump is delay the decision, even if it is unfavorable, as long as possible. That could mean a decision in late June or even early July. (V)

Are There Any Limits to Abortion Limits?

Even more action from the Supremes? Yup. The six conservatives who voted to overturn Roe v. Wade seemed to think that, like the wisdom of Solomon, their decision had settled the abortion issue for all time. Feel free to laugh merrily at that presumption, since the Dobbs decision has served to cue up many and varied legal controversies, some of which will, or already have, ended up on the Supreme Court's docket.

Yesterday, the Court heard oral arguments in one of the first of those cases, involving the near-total ban on abortion imposed by the state of Idaho. Speaking narrowly, the question before the Court is whether denying abortion access to women with a medical emergency is a violation of federal law. Speaking broadly, the question is whether the Court is willing to get involved in carving out exceptions to state abortion laws.

Lawyer-reader A.R. in Los Angeles listened to the arguments, and agreed to send in a report:

Under the Emergency Medical Treatment and Labor Act (EMTALA), Medicare participants, such as hospitals, must provide stabilizing treatment to any patient with an emergency condition that seriously threatens the patient's life or health. This law was enacted so that hospitals could not discriminate in the provision of emergency care and "dump" uninsured patients to other ERs or deny care altogether. In some circumstances, pregnant women arrive at the ER with an emergency condition where the only option to provide stabilizing treatment is an abortion. Prior to Dobbs overturning Roe v. Wade, states could not prohibit abortion, so states could not pass laws that conflict with this federal statute. Since Dobbs, however, several states, including Idaho, have passed laws prohibiting abortion even under the circumstances as outlined by EMTALA. Idaho, for example, prohibits doctors from providing abortion care unless the abortion is "necessary to prevent the death of the pregnant woman." As a result, doctors in those states are turning women away or requiring them to be sicker and closer to imminent death before they will provide abortion care in the ER.

The U.S. brought this case alleging that Idaho's law (and by extension, others like it) is preempted by EMTALA to the extent that it prohibits the emergency care that EMTALA requires. The lower court agreed and issued an injunction, which was upheld by the Ninth Circuit sitting en banc, but in January 2024, SCOTUS stayed that injunction and granted cert.

At oral argument, the solicitor general, Elizabeth Prelogar, was careful to note that Idaho's law would remain in full force and effect, except in those narrow circumstances where it conflicts with EMTALA. By contrast, Idaho contended that the U.S.'s reading of EMTALA amounts to an "abortion mandate" and interferes with the states' ability to regulate abortion as set out in Dobbs. Prelogar was trying to give the justices a way to issue a narrow ruling that does not tread too heavily on state law. But it seemed like an uphill climb.

As usual, Associate Justices Clarence Thomas and Samuel Alito demonstrated that they had no interest in hearing about the practical realities of a woman being required to bleed out in a parking lot before she could receive abortion care. Thomas seemed to think that the U.S. could not bring this case against Idaho since the regulated entity was a hospital and the U.S.'s only recourse was against the hospital. Alito agreed, of course, and also latched onto a phrase in EMTALA that recognizes that treatment may be required for a woman's "unborn child," claiming that conflicted with the idea that an abortion can sometimes be required to ensure that the woman's condition does not "materially deteriorate." Prelogar explained that this section means that hospitals are obligated to treat pregnant women even if they themselves are not in danger but the fetus is. None of the other justices picked up either of these lines of questioning. Gorsuch also seemed to side with Idaho but on the basis that there was no actual conflict since the state law left abortion decisions to the "good faith" judgment of the doctors and "imminent" death isn't required.

Associate Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson questioned Idaho's attorney, Joshua Turner, about his evolving argument that there is no actual conflict between the two statutes. Under Kagan's expert questioning, Turner agreed that an abortion is the standard of care for certain conditions. Kagan went on to explain that under EMTALA, those conditions can be related to health, and not just life-threatening conditions as ID law requires.

The wild cards here are Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Amy Coney Barrett. Roberts was trying to convince himself that the doctors are not really risking their license if they provide care consistent with EMTALA's requirements because under ID law it's a subjective standard and ID law does not prohibit compliance with EMTALA. But again, he ignored the realities on the ground in Idaho that just this year, 6 pregnant woman were transferred out of the state because hospitals refused to provide the care needed to stabilize their conditions for fear they would violate Idaho law.

Justice Barrett is a bit of a mystery. As in the mifepristone case, she focused on the conscience objection and whether that applied to EMTALA. Prelogar assured her that it does. She also seemed confused by Turner's argument that there is no conflict since Idaho only allows abortion care when necessary to prevent death, not to prevent material deterioration as required by EMTALA. She also asked about the interaction with the Hyde amendment that prohibits federal funding for abortion. Prelogar explained that ER services are required even if there is no federal funding available. I got the sense that Barrett understood the predicament that doctors are in and was looking for a way to reconcile the serious medical conditions that jeopardize a pregnant woman's health, including her ability to have future children, that may require an abortion but that don't put her life at risk, with a doctor's ability to opt out of that treatment for moral or religious reasons.

Justice Kavanaugh also seemed to struggle with the conflict question. He pointed to the Idaho Supreme Court's decision that clarified the Idaho law to say that "good faith" is a subjective standard and that also set out some specific conditions that would justify an abortion, such as an ectopic pregnancy. He kept asking for examples of the "daylight" between the two statutes. It was unclear if he would find preemption if he found some "daylight."

Based on the argument, it's hard to know which way the fifth vote will go. I could see Barrett agreeing with the other women that the Supremacy Clause applies and preempts Idaho law only to the extent that it conflicts with EMTALA. I can also see Kavanaugh getting there if they can convince him that the conflicts are unavoidable. Roberts seems likely to side with Thomas, Alito and Gorsuch.

Having listened to the oral arguments in each of the abortion cases, it is interesting to see the women echoing each other as they grapple with the real-world effects of their decisions. Sotomayor gave vivid examples of the dire consequences to women of these draconian state laws. Barrett, too, seemed very troubled that women who very much wanted their children could not get the care they needed for pregnancy complications. The men, on the other hand, were completely unmoved and even dismissive of women's experiences, as if they had no relevance to their decision. It was fairly chilling to hear.

Chilling, indeed. Thanks for the report, A.R. (Z)

Arizona Abortion Ruling Is Affecting Races Way Downballot

Speaking of abortion and courts, the decision by the Arizona Supreme Court to uphold a law passed long before Arizona was even a state has roiled the presidential and senatorial election in that crucial swing state. But the effects are even more widespread than that. They go way downballot. Arizona AG Kris Mayes (D) has said that she will not prosecute anyone for violating the law. This is called prosecutorial discretion and is based on the concept that prosecutors do not have the resources to go after every criminal, so they are forced to make choices. If Mayes doesn't want to prosecute patients or doctors for an abortion, that is her call and there is no appeal.

However, local county prosecutors are not bound by her choices. They can prosecute anyone who violates the old law, no matter what Mayes wants or does. So the battle has now moved down to the level of county attorneys. In particular, there is an election for Maricopa County attorney in November and abortion is dominating the campaigns. Maricopa County covers Phoenix and its suburbs and is home to 4.6 million people. If abortion were technically illegal there but the county attorney refused to bring charges against anyone who violated the law, it would de facto be moot in Arizona's most populous county. Anyone elsewhere in the state who needed an abortion could just go to Phoenix for it.

The current Maricopa County attorney is Rachel Mitchell (R), who has said she will not prosecute women who get an abortion but is on the record saying she will follow the law, whatever it is. That means she will presumably prosecute doctors who perform abortions or write prescriptions for abortion pills. The Democratic candidate for her job, Tamika Wooten, has said: "I will not prosecute a woman for her personal health care decisions, nor will I prosecute the medical provider who performs that. That is a very serious and personal decision that a person must have with themselves and with their health care provider, and it's not my business."

Count on the election for county attorney being entirely about abortion. If Wooten wins, for 63% of the residents of Arizona, it will be (legally) safe to get an abortion. For residents of Tucson it will be a 2-hour drive to a safe space. Together, Phoenix and Tucson cover 70% of the population. Even the most distant point in Arizona is only 5 hours from Phoenix. And people who live that far from Phoenix may find it easier to go to New Mexico, Nevada, or California for an abortion.

Maricopa is not the only county with a competitive election for county attorney. There are also competitive elections in Coconino (Flagstaff), Pima (Tucson), Yavapai (Prescott) and Pinal (Casa Grande) counties. Those races could also come to hinge on abortion as well.

And there is more. Two of the Arizona Supreme Court justices who ruled that the 19th century law is still valid, Clint Bolick and Kathryn King, are up for retention elections in November. Progressives are already working on a campaign to have them defeated. If they lose their retention elections, Gov. Katie Hobbs (D-AZ) will appoint their replacements, who themselves will have to undergo a retention election in 2026.

On the whole, judging by both polling and public response, the candidates who are associated with anti-abortion positions are looking at trouble come November. This is especially true if the person supports, or at least tolerates, the 1864 law. There are certainly some people who are OK with the notion of a 15-week ban, but who recoil at a 0-week ban. It would seem that some members of the Arizona state House have taken note of this, as the chamber voted yesterday to repeal the 1864 law. The vote was 32 "yea" (29 D, 3 R) to 28 "nay" (28 R). If the Arizona state Senate passes the bill, Hobbs has already said she will sign it. Passage in the upper chamber would require at least two Republican votes (of 16), assuming all 14 Democrats vote for repeal. Since the Senate was already at work on its own repeal bill, it's very possible the two votes are there. We'll presumably find out sometime this week. (V)

Arizona Indicts Electoral Fraudsters

Things were hopping in Arizona yesterday. While the legislative branch was wrestling with the state's Civil War-era abortion ban, the executive branch was going after some very high profile (alleged) miscreants. After signalling for months that this might be coming down the pike, a grand jury in the Grand Canyon State indicted more than a dozen people for crimes related to the 2020 fake electors scheme.

The complete list of indictees is not yet known, as some names are being kept confidential until all of the soon-to-be defendants are served. Maybe this is a courtesy to them, or maybe it's to keep them from knowing what is coming and evading service. Three names that ARE known, however, are biggies: Trump assistant/confidant Boris Epshteyn, former White House chief of staff Mark Meadows, and America's Former Mayor Rudy Giuliani. The indictment also names all 11 of the fake electors, including former Arizona GOP Chair Kelli Ward. And it has been reported, by people speaking off the record, that former Trump lawyers Jenna Ellis and John Eastman and Trump ally Mike Roman are also among the indictees. So, that means that at least 16 people have been popped.

Because big chunks of the indictment are redacted, it's not entirely clear exactly what charges everyone faces. But fraud, forgery and tampering with a public record are among the alleged crimes, and the indictment also makes liberal use of the word "conspiracy." So, one gets the impression that it's going to be a similar prosecution to the one in Georgia (except not including Donald Trump). And at some point, these folks are going to turn on each other en masse, right? How many of them have the fortitude and the money to fight two and three and four different sets of charges? Meanwhile, how many people in Trump's orbit have to be charged with felony crimes before, say, 55% of the electorate remembers the old adage that a fish rots from the head down? (Z)

Trump Makes Another Billion--on Paper

While grift from his supporters is nice, for Donald Trump, the big money is now in his company, Trump Media and Technology Group, which trades as DJT. Trump owns warrants there and they have just been converted into more common stock. This raises the "value" of Trump's stake in the company by another $1.3 billion to $4.7 billion. However, Trump can't sell any of this stock until September and if he tries to offload too much at once, it will cause the price, which closed yesterday at $35.67, to collapse.

If Trump loses his appeal on the New York fraud civil case, he will have to pay $454 million plus accrued interest. He has already put $175 million in an account with an insurance company, but he will still need to come up with more than $325 million more. If he can drag out the appeals process until September, he could sell some of the stock to come up with that money, even if it causes the stock price to drop.

Of course, the stock could drop on its own if investors looked at TMTG the way they look at any other company. The company's valuation is about 1,220 times last year's revenues. No other publicly traded company has such an incredible multiple. And if Trump loses the election, the stock price will nosedive very quickly, so he needs to get out in the fall without causing a collapse. (V)

Biden Has Found a Secret Weapon to Attract Young Voters

Joe Biden knows he has a problem with the young voters he desperately needs. And he may have found a solution. Her name is Rep. Alexandria Ocasio-Cortez (D-NY). She probably has more street cred with young voters than anyone under 80 (Sen. Bernie Sanders, I-VT, is 82). For someone who has been in Congress for only a bit over 5 years, she has star power and media recognition that dwarfs many 20-year House veterans who chair a major committee.

AOC has also learned to play the game very quickly. Being quirky gets you only so far in politics. But she knows that becoming a key Biden surrogate will do wonders for her career and win her many brownie points within the Democratic Party. Many people expect her to run for the Senate when the 73-year-old Sen. Chuck Schumer (D-NY) retires. AOC is only 34, so she can easily wait 10-15 years if need be.

She is not 100% in alignment with Biden. In particular, she opposes Biden's support for Israel. On the other hand, she is a big supporter of his policies on climate change, abortion, and canceling student loans. On all these issues, she is closely aligned with what many young voters want. She also can make the point that while she doesn't agree with all of Biden's policies, she has his ear and a seat at the table. Not many progressives can claim that, and certainly not many young ones.

The issue where AOC can be most helpful to Biden is on climate change. She is a strong supporter of the Green New Deal and can tout Biden's climate initiatives and funding in the Inflation Reduction Act. While Gaza is the flavor of the month for some young voters, many of them believe that in the long run the biggest problem facing the world is climate change. On that, she is with Biden and has the ability to influence him. That could be enough to get some young voters to the polls, despite their dislike of Biden's policies in the Middle East. (V)

The Brothers Trump Will Be the Gatekeepers for Trump v2.0

One of the biggest mistakes Donald Trump made in his first term was at least paying nominal attention to the ability of appointees to do their jobs. Top officials like Elaine Chao (Transportation), Dan Coats (DNI), Nikki Haley (UN), John Kelly (Homeland Security), Jim Mattis (Defense), Herbert McMaster (NSA), Mike Pompeo (CIA), David Shulkin (VA) and Rex Tillerson (State) were at least somewhat qualified for their jobs and could have been chosen by any Republican president. Many of them ended up opposing him. He is not going to make that mistake in Trump v2.0.

To make sure that doesn't happen again, Trump has appointed his sons, Donald Jr. and Eric, to be gatekeepers. They will vet all future appointees—not for their ability to do the job but for their loyalty to Donald J. Trump. That will come before anything else. In that way, when Trump says "jump" they will all say "how high?"

The brothers would not officially run the transition team, but whoever is picked to officially run it would understand from the get-go that every candidate for every office has to be run by them before getting serious consideration. One insider said the goal "is to keep the John Boltons of the world outside a second Trump administration." And remember, at the time Bolton was picked, many people thought he was batsh*t crazy and hellbent on starting World War III. People who felt this way, incidentally, were entirely correct. But the goalposts have moved so far that now he seems like one of the normal ones.

Trump's problem is that key groups, like the Heritage Foundation, are making lists of people he could appoint based on their ideology, not based on their personal loyalty to Trump. This is what the brothers are supposed to sniff out. People who are ideologically compatible with Trump but who have their own ideas and don't want direction from him are not welcome next time. Campaign aides Susie Wiles and Chris LaCivita made this clear when they put out a statement—aimed directly at the Heritage Foundation—that said "any personnel lists, policy agendas, or government plans published anywhere are merely suggestions. Policy recommendations from external allies are just that—recommendations."

Is the influence of the two brothers better or worse than last time around? It is already clear that Darling Daughter Ivanka and Young Jared are not going to play a role in a second Trump administration. They are too busy playing with the Saudis' money. Given Trump's preference for nepotism as a governing philosophy, Junior and Eric are going to take over their slots. Whether Eric will be as good as Jared at bringing about peace in the Middle East remains to be seen. (V)

New Jersey Congressman Donald Payne Has Died

Rep. Donald Payne (D-NJ), who has represented NJ-10 for more than 10 years, died yesterday. He was only 65. According to his office, he had a "cardiac episode," which is New Jerseyese for "heart attack." He had diabetes and had been hospitalized for 2 weeks.

Payne won his seat in 2012 after the death of the previous office holder, Donald Payne (his father). There will be a special election to fill the seat. Given that the district is D+30, there will be furious competition among local Democrats for the nomination, but the final result is not in doubt.

However, in the short run, it matters since now Speaker Mike Johnson can afford to lose two Republicans and still get bills passed. (V)

Today's Presidential Polls

Wow. Good news for Trump here on the whole. We are suspicious of these results. The swing states aren't swinging enough. But Morning Consult is a legitimate pollster that works for Politico and Bloomberg News so we don't think they are cooking the books. But Trump ahead by 8 points in Nevada? Doesn't smell right.

Even more odd is that Morning Consult ran a national poll and it has Biden ahead 44% to 43%. Marist also conducted a national poll and it has Biden ahead 51% to 48%. Could Trump's trial have helped him in the swing states but not nationally? Seems very unlikely.

State	Joe Biden	Donald Trump	Start	End	Pollster
Arizona	42%	49%	Apr 08	Apr 13	Morning Consult
Georgia	43%	49%	Apr 08	Apr 13	Morning Consult
Idaho	28%	63%	Apr 13	Apr 16	Civiqs
Michigan	47%	45%	Apr 08	Apr 13	Morning Consult
North Carolina	41%	51%	Apr 08	Apr 13	Morning Consult
Nevada	43%	51%	Apr 08	Apr 13	Morning Consult
Oregon	54%	34%	Apr 13	Apr 16	Civiqs
Pennsylvania	46%	47%	Apr 08	Apr 13	Morning Consult
Washington	54%	39%	Apr 13	Apr 16	Civiqs
Wisconsin	44%	48%	Apr 08	Apr 13	Morning Consult

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

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