We're going to take a relatively rare weekend off this weekend. Grading, lecture prep, and other professional and personal obligations have piled up to the point that we need to empty our plates a bit. We will have a write-up of Donald Trump's trial tomorrow, but beyond that, we'll be back on Monday.

Trump Legal News, Part I: Trump Bought Himself Some Time, Courtesy of SCOTUS

Yesterday, of course, the Supreme Court heard oral arguments on the question of whether the law does, or does not, apply to the President of the United States. One would think that this would be an easy question, at least in the context of non-official acts undertaken in the president's capacity as a private citizen. And if one did think that, one would be wrong, if yesterday's questioning from the justices is any indication.

Lawyer-reader A.R. in Los Angeles watched the proceedings, and was once again kind enough to send a report:

Ouch. This is going to leave a mark.

Depending on your views of presidential authority, you may have been encouraged by today's arguments. For those of us who don't believe in absolute immunity or a unitary executive, however, there were some ominous signs on Thursday.

At the very least, it's clear that the presidential immunity case is going to be remanded to the district court to do... something. This will accomplish Donald Trump's main goal of delaying any trial on the merits until after the election, if the trials happen at all.

The possible outcomes seem to be the following, from most likely to least:

1. Reverse the D.C. Circuit Court of Appeals and remand to the District Court to determine which of the alleged acts are "official acts" and which involve acts as a candidate.
   
   
2. Reverse the D.C. Circuit Court and hold that Article II requires presidential immunity for certain core functions and remand to the district court to determine whether the allegations involve any "core" functions.
   
   
3. Reverse the D.C. Circuit Court and hold that a president is immune from criminal prosecution for all acts except those that have no plausible connection to any official duty.

There were also indications that some of the justices are receptive to the claim in the classified documents case that the Special Counsel appointment was unlawful. And they also invited arguments that any decision on immunity should also cover state prosecutions. So, they could wipe out not only the federal 1/6 case but the Georgia case as well, in one fell swoop. This is not a Court that feels burdened by quaint notions of judicial restraint.

The Court framed the issue before them as follows: Whether and to what extent does "a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office"? This seems to suggest that the justices agree that presidents do not enjoy any immunity for unofficial acts. But a majority agreed that a president should be treated differently from other officials and not be subject to criminal prosecution for acts involving his official duties—the question, then, is how far that immunity extends.

As they grappled with this question, they also struggled with where they were starting from. Is the status quo an understanding that a president is subject to the criminal laws and can be prosecuted for violating upon leaving office (hence, Gerald Ford's preemptive pardon of Nixon), so that affirming the D.C. Court would not be a sea change? Or is the status quo an understanding that a former president cannot be prosecuted, at least for so-called official acts undertaken while in office, at all? Both sides used the fact that no president has been prosecuted up to now as evidence to support their framing of the current state of things. Not surprisingly, those justices who favored affirming took the former position, while those wanting to cloak the president in some form of immunity took the latter.

As a reminder, the D.C. Circuit Court of Appeals held that a president is subject to general criminal laws in the same way that judges and other federal officials are, and the distinction between official and unofficial acts is immaterial. A majority of the Supremes were clearly uncomfortable with this decision. As has become predictable, Associate Justices Clarence Thomas and Samuel Alito expressed their preference for blanket immunity for all presidential acts, including using the military to assassinate political rivals. Whatever dystopian hellscape exists in their minds as the societal ideal, I truly hope we never have to live there.

Associate Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson ran through all the ways in which presidents already behave as though they are bound by criminal statutes, and the potential abuse that could result if they were freed of any constraints on their conduct. Kagan pointed out that the founders didn't include an immunity clause for presidents in the Constitution, despite knowing full well how to do it.

By contrast, the main concern of Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Neil Gorsuch was an endless cycle of political recriminations, because of course the obvious outcome of subjecting a president to the criminal laws would be future presidents ginning up fake charges for his predecessor. They treated that as a given, without any evidence to support that result.

The question then became where to draw the line. Gorsuch and Kavanaugh favored the test in Blassingame, which is that a president enjoys immunity for all official acts (even though that was in the civil context). In Blassingame, the Court held that any acts within the "outer perimeter" of a president's official responsibility is protected and that it's an "objective" test where motives are irrelevant.

Michael Dreeben, who argued for the Special Counsel, conceded that a president already enjoys immunity for "exclusive Article II powers." And unfortunately, he characterized the D.C. Circuit Court's holding as "tautological," which Roberts kept returning to. I have never argued before the Supreme Court and it must be a pressure cooker, especially in this case on which our democracy may depend, but that was an own-goal that may find its way into the Court's opinion. And honestly, I couldn't really tell what Dreeben was arguing for—it seemed to be some kind of balancing test that would allow some immunity depending on the function being carried out.

In the end, the Justices seemed to be trying to do some line-drawing. Do they look at official acts v. unofficial acts? Do they look at the core duties of Article II and provide blanket immunity in the exercise of those duties? Does Blassingame provide the correct analysis? Does the "public authority" exception offer a framework for their analysis?

At one point, Jackson tried to rein everyone in to say that on the facts of the case before them, there is no need to issue this broad decision. Right now, all that is before them is conduct that is clearly unofficial and unrelated to any presidential duties. She was definitely in the minority in taking this view.

In the end, I counted six justices who favored some kind of immunity for official acts of the president and some justices who wanted to go even further and constrain the Special Counsel altogether, including what evidence he could introduce at trial if some of these acts were found to be excluded. This could go sideways in any number of ways. But we won't know until the very end of the term.

Thanks, A.R.!

And A.R. was hardly the only one who was disheartened by yesterday's hearing. There were bitterly critical pieces from, among other outlets, The Bulwark, Slate, Politico, Above the Law and TPM. This passage, from the TPM piece, is illustrative:

We are where we should know we are. The Roberts Court is a corrupt institution which operates in concert with and on behalf of the Republican Party and to an ambiguous degree right-wing anti-regulatory ideology. If we believe in a different set of policies or even democratic self-governance we will have to succeed at that with the Supreme Court acting as a consistent adversary.

Given how long it will take for the Supremes to make a decision, and then how long it will take for the district court to implement that decision, and then the possibility of another appeal, and then the time involved in conducting a trial, it's hard to see how any of Trump's trials, other than the one already underway, and maybe the one in Georgia, can possibly happen in 2024. And if he wins, of course, he's going to pardon himself. That will end up in court, but maybe what he can do is announce that any judge who rules against him will be executed by firing squad. Could be legal for a sitting president to do, by then. (Z)

Trump Legal News, Part II: The Trial (Day 7)

There isn't quite as much news out of Manhattan, as the Trump criminal fraud trial settles into the normal rhythms of a court proceeding. Here are the big storylines from Day 7:

• Pecker in Bragg's Pocket: The ever-earthy Lyndon B. Johnson was fond of noting that "I never trust a man unless I've got his pecker in my pocket." While this isn't quite what he was talking about, the fact is that former National Enquirer publisher David Pecker is giving Manhattan DA Alvin Bragg and his team exactly what they need. Yesterday, he spoke extensively about Stormy Daniels and his efforts to keep that story out of the news, so as to protect the Trump campaign. He also revealed that he continued to do this sort of work, with Sarah Huckabee Sanders and Hope Hicks acting as liaisons, after Trump took over the White House. One cannot seriously doubt, at this point, that the whole point of this scheming was political, with an eye toward protecting Trump's electoral fortunes, as opposed to personal, with an eye toward protecting Trump's marriage. Undoubtedly, when Hicks takes the stand, she will confirm Pecker's version of events.
  
  
• How the Sausage Is Made: This has relatively little to do with the trial, but in the process of explaining how "catch and kill" is just a part of the gossip business, Pecker gave details about other celebrities who had deals of various sorts with his tabloid, including Arnold Schwarzenegger, Tiger Woods and Mark Wahlberg.
  
  
• Double Gag: The DA's office thinks that, since court was dismissed on Tuesday, Trump has violated his gag order four more times. Merchan hasn't ruled on the original 10 violations yet; he said he will listen to arguments on the four new violations on Wednesday of next week. Whether he will rule on the first set, or wait until he's considered the second set, is not clear. At some point, he's gotta pull the trigger, one way or the other. By the time we get to next Wednesday, Trump will undoubtedly have at least a half-dozen more violations. Maybe more, at the rate he's going, since he clearly wants to go to jail and play martyr for his followers.

Reportedly, Pecker will return to the stand today and will bring a conclusion to his testimony. It is not clear if a second witness will be called to begin their testimony; the Court and the DA's office are keeping that sort of information close to the vest, so as to avoid threats to witnesses from Trump. (Z)

Trump Legal News, Part III: Green Is the Colour

Of money, that is. And E. Jean Carroll just got one step closer to raking in $80 million worth of it, courtesy of Donald Trump. That is because Judge Lewis Kaplan rejected the former president's request to set aside his defamation verdicts and hold a new trial. And it was not a close call, apparently; in his ruling, Kaplan declared: "Mr. Trump's argument is entirely without merit both as a matter of law and as a matter of fact."

Presumably, Trump and his lawyers will appeal Kaplan's ruling. That said, his position is sufficiently weak enough at this point that he might want to think about entering into settlement discussions with Carroll. A figure of, say, $60 million might be satisfactory to her, as it's still more than enough to buy the fancy pet food for her dog. And it would save Trump $25 million or so off what he'll pay once he loses all of his appeals. (Z)

Campus Protests Getting Uglier

Graduation and the end of the school year are around the corner. From the perspective of student protesters, at those universities where things have gotten unpleasant, time may be running short. After all, many of them will be returning home, starting internships, commencing their careers, etc., depriving the protests of significant manpower. From the perspective of administration, time is also running short. They don't want graduation ceremonies to become PR disasters, right at the time that parents are in town, donors are watching, etc. In short, the climax is probably imminent, whatever it might look like.

Unfortunately, in many places, what it looks like is... a police state. Mass arrests have taken place at numerous universities, including USC, the University of Texas at Austin, Columbia and Emerson College. Columbia president Minouche Shafik is in deep trouble at this point, while Gov, Greg Abbott (R-TX) is also getting a lot of blowback. Apparently there ARE limits to what he can get away with.

In total, there are at least 40 universities that have protest encampments. Not all have been targeted by armed force, and in some cases, the administration is actually talking to the protesters and trying to address their concerns. However, in most cases, things are tense, and could certainly go south. Meanwhile, yesterday, USC became the first school to throw in the towel and to cancel its main commencement ceremony. All those baskets woven underwater, and no graduation photos to show for it.

One hopes that, whatever happens between now and the end of the school year, there's no Kent State v2.0. And perhaps, between several months of cooling down and/or positive developments in the Middle East, the campus unrest will fade. But we will see, once regular instruction resumes in August and September. If the campuses once again turn into war zones, just months or weeks before the election, that will not be helpful for Joe Biden's reelection prospects. Lyndon B. Johnson, were he still alive, might have a few insights about that particular problem.

One thing Johnson would also have been aware of had he been around now is the potential parallels with 1968. In that year, campuses were exploding with protests about a war—in that case the one in Vietnam. Many protesters showed up at the Democratic National Convention in 1968 to demonstrate against the war and against the Democratic candidate, Johnson's veep Hubert Humphrey. The police reacted very aggressively to the demonstrations outside the convention center, so much so that some people later described the event as a "police riot." Nevertheless, many people watching at home blamed the Democrats for the rioting and this certainly contributed to Humphrey's defeat. Now there is talk of more demonstrations—again at the Chicago convention. If they get out of hand, history could repeat itself and many people could blame the Democrats and decide to hold their noses and vote for Donald Trump, despite their misgivings about him.

The irony, of course, would be if the demonstrations again led to the election of a president the demonstrators totally despised and who would then do things they considered despicable. Need proof? Jared Kushner has praised the "very valuable" potential of Gaza's "waterfront property" and suggested that Israel remove the civilians while it "cleans up" the strip (i.e., removes the Palestinians). If creating Miami Beach on the Mediterranean requires some war crimes and a true genocide, well, business is business for the Trump family. George Santayana put it more concisely: "Those who cannot remember the past are condemned to repeat it." (Z)

Angry Republicans: No More Money for Ukraine

The far-right/Trump-kowtowing faction of the Republican Conference in Congress—including the Freedom Caucus, of course, but also people like Sens. J.D. Vance (R-OH) and Ted Cruz (R-TX)—is hopping mad. After all, they did not want to send money to Ukraine, and yet Ukraine is getting a bunch of money. And so, having lost that battle, they are vowing not to lose the next one, decreeing that the Ukraine money spigot is now closed.

This is an... interesting threat. The votes in both the House and the Senate were lopsided, speaking to the broad support that Ukraine has among members of both parties. It's hard to see how the anti-Ukraine members can double the size of their ranks. And, more broadly, have you noticed how very bad these people are at politics? They've lost on the debt ceiling, on the budget, on Ukraine, and on pretty much every issue where they drew a line in the sand. And, in the process of losing, they managed to extract... nothing. No meaningful funding cuts, no tax cuts, no new border funding. It's not easy to give the other side what they want, while getting nothing you want, but the FCers and their ilk have managed to do it. So, we are somewhat unimpressed by their posturing right now.

No, there is only one plausible way that Ukraine gets cut off, and that is if friend-of-Russia Donald Trump is in office the next time Ukraine needs funding. He presumably would not sign a bill providing for additional funding, and there may not be votes to override a veto (based on the votes this week, it would be close). That means that the Biden-Trump presidential tilt, in addition to all the other things it represents, is likely to be a choice between "save Ukraine" versus "let Russia take 'em over." As far as foreign policy issues go, the Israel situation is clearly more salient right now. But if there are breakthroughs in the Middle East, then Ukraine could take on substantial significance by September or so. (Z)

I Read the News Today, Oh Boy: The Dogs of War

Last week's theme was definitely the hardest we've ever put together. As hints, we linked to a famous clip from Forrest Gump, and then on Saturday we added "We'll tell you that other words we considered for headlines include 'saw,' 'mark' and 'jockey.' We also considered 'Johnny,' but decided that was not fair because the pattern is, for lack of a better description, X-Y, not Y-X."

And now, the solution, courtesy of reader S.K. in Drexel Hill, PA:

Even after your second hint, I still had to think a lot about the puzzle before I got it. Part of the problem is that I focused on the wrong things in the Forrest Gump clip (feather, chocolates, shoes, bus stop, Curious George) before I realized it was the bench you were thinking of.

So all of the headlines contain a word that can follow "bench" to make another word or phrase.

• Trump Legal News: The Trial (Day 3)—Bench trial
• RFK Jr.: Feud With Family Is Getting Warmer—Benchwarmer
• In the House: Republican Conference Puts Johnson through the Grinder—Bench grinder
• I Read the News Today, Oh Boy: Blood Work—Bench work
• This Week in Schadenfreude: Trump Does Warrant This Space Sometimes—Bench warrant
• This Week in Freudenfreude: Drew Carey Is a Team Player—Bench player

And of course you also considered bench saw, benchmark, and bench jockey. But Johnny Bench was excluded, because that reverses the pattern.

Bulls-eye! And from the headline for this item, bench dogs are a kind of clamp.

Here is the complete list of every reader who got it right:

1. M.B. in Albany, NY
2. R.S. in Milan, OH
3. L.D. in Bedford, MA
4. S.K. in Drexel Hill
5. B.M. in Chico, CA
6. E.P. in Long Beach, CA
7. B.B. in Avon, CT
8. M.H. in Ottawa, ON, Canada
9. K.R. in Austin, TX
10. D.M. in Oakland, CA
11. D.L. in Springfield, IL
12. D.D. in Carversville, PA
13. O.B. in Los Angeles, CA
14. A.R. in Miami, FL
15. J.C. in Peoria, IL

As noted, it was a toughie.

This week's theme should be easier. It's in the Trivial Pursuit category Arts & Entertainment, and it relies on some, but not all, of the words to the right of the colon. The campus protests story is not part of the contest; beyond the fact that we don't make a game of violence and strife, this particular theme would be very inappropriate for that particular item. That's actually something of a clue, though not a very helpful one; we'll explain the problem next week. As to a real clue, how about this: The answer is very colorful.

If you have a guess, send it to comments@electoral-vote.com with the subject "April 26 Headlines." (Z)

This Week in Schadenfreude: Goodbye Cruel World

There are few politics-centered media outlets that are more obnoxious than The Gateway Pundit (TGP), which suffers from two problems. The first is that it was literally founded to own the libs. Its creator, Jim Hoft, said at the outset (in 2004) that the site's mission was "expose the wickedness of the left." If a site is defined by its enemies, and by doing as much harm to them as is possible, there's a good chance it's not a nice site.

The second problem is that the site's relationship to facts and evidence is very similar to, well, Donald Trump's relationship to facts and evidence. TGP indulges in various conspiracy theories, of course, from Pizzagate to Obama birtherism, to the whole suite of COVID-19 whackadoodlery. On top of that, the site's writers have no compunctions about making stuff up out of whole cloth. And often, it's not just fake news, it's maliciously fake news, like falsely identifying mass shooters as liberals, or Muslims, or both. It is not a surprise that TGP is one of Trump's very favorite sites.

That said, there are a couple of problems with this business model. The first is that TGP was so fully off the rails so many times that Google finally demonetized the site. That means, to a large extent, no ad revenue. Second, it turns out—and who knew?—that the U.S. has laws about knowingly printing falsehoods. And so, the site has faced an avalanche of lawsuits over the past few years.

It would appear that actual reality trumps faux reality, because TGP was forced to file for bankruptcy this week. Hoft placed the blame on "progressive liberal lawfare attacks against our media outlet." You forgot "communist" and "pedophile" there, Jimbo. Anyhow, it's a Chapter 11 bankruptcy, so the site could possibly survive. But let's hope it doesn't; a little less poison out there is a good thing for everyone. (Z)

This Week in Freudenfreude: It's Never Too Late

We've heard a lot this year about potential abuses of the presidential pardon power, courtesy of the fellow who is almost single-handedly keeping the U.S. legal system in business. So, how about we pay some attention to a more appropriate use of that power? Yesterday, Joe Biden issued pardons for 11 people, and commutations for five others, all of them convicted of non-violent drug-related offenses.

Here's the backstory for some of the folks who will be given a second chance, courtesy of the President:

• Jason Hernandez: Convicted when he was still a juvenile, he went back to the store he used to sell drugs in front of, bought it, and now sells affordable, healthy food to locals in the working-class community where the store is located. Which, incidentally, is pretty much also the plot of the movie Clerks 2.
  
  
• Jesse Mosley: Sentenced 23 years ago, at the age of 19, he has built a successful business and gotten involved in fundraising for various charitable causes since getting out of the clink.
  
  
• Alexis Sutton: She got out of prison shortly after turning 30, just a few years ago, and is now working towards a career as a nurse.
  
  
• Katrina Polk: Incarcerated at age 18, she's now 54, has a Ph.D. in public policy, and has a national reputation as an advocate for the elderly.
  
  
• Daequon Charles Davis: He is one of the commutees. Like all five of them, he was busted for possession of cocaine with intent to distribute, is going to have his sentence roughly halved, and will still spend the next decade on supervised release.

For the 11 pardonees, of course, their sentence was already completed. Nonetheless, a criminal conviction is the 21st-century version of the scarlet letter, and can be a real drag on a person's life, even after they have paid their debt to society. Meanwhile, the five commutees all paid a pretty stiff price for their crimes (4+ years in the hoosegow), and now will be able to get a start on rebuilding their lives.

This story isn't getting much attention, as is common for presidential pardon news, unless there happens to be something scandalous. That's too bad, because it's useful to keep in mind that most presidents do a lot of fundamentally decent, but relatively low profile, things during their time in office.

Anyhow, congratulations to the 16 people who got good news yesterday, and have a good weekend, all! (Z)

Today's Presidential Polls

Why would anyone poll Massachusetts? Because they are located in Boston, and have lots of cheap student labor available. But one in four Massachusites is either undecided or voting third-party? Really? (Z)

State	Joe Biden	Donald Trump	Start	End	Pollster
Massachusetts	52%	22%	Apr 16	Apr 20	Suffolk U.

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

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