L'Etat, Ce N'est Pas Moi

Many wondered why it was taking the D.C. Court of Appeals so long to answer a seemingly easy question: Is the president above the law? As it turns out, the judges were just making sure to dot every "i" and cross every "t" in their unanimous, strongly worded 57-page ruling that Donald Trump is not immune from prosecution solely by virtue of his having been president when the indictable acts took place.

Since we are not lawyers, and since we want to make sure to get this right, we asked one of our regular lawyer-correspondents, A.R. in Los Angeles, to write up an analysis:

The decision is in: Trump is not a king. The decision was unanimous and it's a "per curiam" decision, meaning that the opinion is a group effort. But given the questions at oral argument, it's clear that Judge Karen L. Henderson (a George H.W. Bush appointee) wrote most of part III (A and B), the critical analysis on executive immunity. These sections engage with the conservative case for denying Trump's claim of immunity from criminal prosecution, and it is clearly written with the current Supreme Court in mind. It's a very deft handling of some potentially sticky implications of denying immunity while outlining why legal precedent, including the seminal case of Marbury v. Madison, separation of powers principles, and the Republic's history all require that presidents be held to account for violations of criminal laws. It's a very thoughtful and legally sound approach that could convince SCOTUS to deny Trump's inevitable petition for cert (after he asks for a rehearing en banc in the D.C. Circuit, since it's all about delay).

After agreeing with the parties that the Court has jurisdiction to hear the appeal before trial, the Court first explains why Trump "misreads" Marbury. It allows that some discretionary acts of presidents could be immune from criminal prosecution but then goes on to explain how Marbury doesn't immunize presidents from all official acts. The opinion then returns to the distinction drawn in Marbury between "discretionary" acts and "ministerial" acts. The Marshall Court defined discretionary acts as political in nature and those that are accountable only in the political process. But in a president's acts that are directed by Congress, or are prohibited by law, "he is the officer of the law and is amenable to the law for his conduct." So, Marbury allows the courts to review official acts that are "legal in nature." The Court then goes on to examine 19th century cases where the courts constrained presidential acts that violated federal law. In these cases, the Courts were unwilling to "clothe... the president with a power entirely to control the legislation of Congress, and paralyze the administration of justice." Similarly, the opinion examines the Youngstown case, where the Supreme Court invalidated Harry S. Truman's executive order to seize the steel mills. The Court had the power to determine whether Truman exceeded his statutory or constitutional authority. Here it is alleged that Trump violated generally applicable laws, so such acts were not properly within his discretion. (And remember, at this stage, the Court accepts all the allegations in the indictment as true.)

While Trump argued that subjecting a president to criminal prosecution violates separation of powers principles, the Court instead holds that it's a president's criminal conduct left unchecked that would violate the separation of powers doctrine. The Court notes that legislators and judges are also subject to criminal prosecution for official acts that violate generally applicable laws. While judges and presidents are immune from civil liability for official acts, they can still be prosecuted criminally for those same acts.

In comparing judicial immunity to presidential immunity, the Court wisely cites multiple other circuit courts, presumably to show SCOTUS that there is no disagreement among the appellate courts as to the scope of immunity. The Court holds that "Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable to the Court for his conduct."

The Court then supports its analysis with policy considerations. It observes that separation of powers is best served if a president must act in accordance with the laws passed by Congress and is accountable in the courts when he does not. Checks and balances do not allow one person in one branch to usurp the functions of the other two branches, which is what Trump is arguing he has immunity to do. According to the Court, immunity would "collapse our system of separated powers by putting the president beyond the reach of all three branches." The Court also noted the broad public interest that is served in the enforcement of criminal laws.

Indeed, as president, Trump is required to "take care that the laws be faithfully executed." One of the main functions of the Executive Branch is to investigate and prosecute crimes. "It would be a striking paradox if the President, who alone is vested with the constitutional duty to 'take care that the laws be faithfully executed,' were the sole officer capable of defying those laws with impunity."

One of those laws is the Constitutional dictate that there is only one president at a time, who serves a 4-year term and whose term ends "at noon on the 20th day of January... and the terms of their successors shall then begin." The Court notes that the president is the only official elected "by the entire Nation." There is a particular solemnity in the quadrennial election, and it serves as a critical check on executive power because of the people's ability to vote him out of office. "We cannot accept former President Trump's claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power—the recognition and implementation of election results."

The Court also easily swatted down Trump's claims of a nebulous "chilling" effect on a president's actions if he is subject to criminal prosecution. "Every president will face difficult decisions; whether to intentionally commit a federal crime should not be one of them." And according to the Court, presidents have always understood they could be criminally prosecuted (see Nixon, Richard M., who was pardoned on his way out the door to avoid prosecution). The Court also noted all the safeguards to prevent Trump's harbingers of "politically-motivated" prosecutions, including a prosecutor's ethical obligations and the constraints on grand juries. Plus, the Court found that there is no historical support for such claims. According to the Court, any such risks are small and are significantly outweighed by the "interest to be served by allowing the prosecution of a former president to proceed."

The Court also easily dispensed with the claims that some penumbra of double-jeopardy principles precluded Trump's prosecution. The impeachment judgment clause states only that if an official is impeached and convicted, he can still be prosecuted criminally. There is no support for the claim that an official must first be impeached and convicted before he can be criminally indicted. Similarly, double jeopardy operates to preclude two criminal prosecutions for the same offense; the Court could not square Trump's argument that the absence of a conviction somehow implicates double jeopardy (hint: because it's nonsense).

Trump presumably thinks he will appeal for an en banc hearing by the full DC Circuit and, once that is denied, petition for cert to the Supreme Court. However, the court has reportedly only given Trump until Feb. 12 to appeal to the Supremes, which does not leave time for an en banc hearing. So, if the reports are correct, that will speed things up. It would speed things up even more if SCOTUS decides that yesterday's opinion is definitive, and therefore there is no need for them to hear the case. But will that happen? Remember that it only takes four justices to take up a case; Samuel Alito and Clarence Thomas will, of course, vote to grant cert. The only question is whether there are two more votes to take up the case, which, even if SCOTUS ultimately upholds the appellate court's decision, will nonetheless give Trump the real prize of delaying the trial even further. And if the Court grants cert, but then does not expedite the process (in other words, puts the case on their regular calendar), then the delay will last until after the election, which is the former president's dream outcome.

Thanks, A.R.!

So, the ball is apparently now in the Supremes' court. Keeping in mind that they already have another tough Trump case on the docket (whether the Fourteenth Amendment disqualifies him from the ballot), Chief Justice John Roberts and his more moderate brethren might not want to take on hot potato #2. We'll presumably learn sometime later this month. Meanwhile, Trump should get used to the idea that he is not Louis XIV, and that "L'État, ce n'est pas moi": I am NOT the state (and note that we checked that with a native French speaker; thanks E.K. in Brignoles, France!). (Z)

A Failure at Both Ends, Part I: The Impeachment of Alejandro Mayorkas

When it comes to the current situation at the border, Speaker Mike Johnson (R-LA) and his conference decided on a highly "partisan" solution, namely impeaching DHS Secretary Alejandro Mayorkas. Yesterday, the House voted on the articles of impeachment and, at least for now, they went down in flames.

The final vote was 214 for, 216 against. However, that is because Rep. Blake Moore (R-UT) switched to "nay" at the last moment, to preserve his right to bring up the articles again. In other words, the real vote was 215-215. All of the Democrats voted against, as did three Republican members: Ken Buck (CO), Mike Gallagher (WI) and Tom McClintock (CA). Unlike Moore, those three meant their "nay" votes. Republican members surrounded Gallagher on the floor and tried to harass him into changing his mind, but they were obviously not successful.

There was much drama, as both parties dragged nearly every member into the House chamber, whether or not they were really fit to be there. In particular, Rep. Al Green (D-TX), who is recovering from cancer surgery, was wheeled onto the floor of the House, shoeless. He did not sing "Here I Am," but he did vote against impeachment. There was some Republican whining about Green's last-minute arrival, in particular from Rep. Marjorie Taylor Greene (R-GA). However, there were also some Republicans who made surprise appearances, notably Hal Rogers (R-KY), who is recovering from a car wreck and who was wearing a large neck brace when he cast his vote.

The only member who was not present was House Majority Leader Steve Scalise (R-LA), who is receiving treatment for cancer. At the moment, Johnson and others are vowing that a second vote will be held once he's back in town. Maybe so, but it's no certainty. First, it was pretty embarrassing for the vote to fail one time; once heads have cooled, they might decide a second, larger embarrassment is not wise. Second, all it takes is for one more Republican to get skittish in order for Scalise's vote to be irrelevant. Third, the House is not scheduled to be in session again until the middle of next week. By then, the special election for "George Santos'" seat will have been held, and Democrat Tom Suozzi might well be seated as the replacement. If so, that would also moot Scalise's vote.

There was also another bill that came up yesterday as part of all of this maneuvering. That was Johnson's Israel-only funding bill, which was designed to undermine the Senate's border/Israel/Ukraine/Taiwan megabill. The bill failed; while it attracted more "yeas" than "nays" (250 to 180), it was considered under suspension of regular order. So, to pass, it would have needed 284 votes.

In short, Johnson suffered two high-profile failures yesterday, adding to the evidence that he is no Nancy Pelosi. In fact, he may be no Kevin McCarthy. (Z)

A Failure at Both Ends, Part II: The Border Act

Whereas the House is pursuing partisan "solutions" to the border mess, the Senate decided to try a bipartisan solution. This is not working, either.

As we noted yesterday, the Senate bill was in deep trouble as soon as Donald Trump came out against it, and started threatening vengeance against any Republican who votes for it. Two additional developments since then have left the bill with one foot in the grave and the other on a banana peel.

First, a group of Republican senators announced that they will block the procedural motion that Senate Majority Leader Chuck Schumer (D-NY) is supposed to bring up for a vote today. That means the bill cannot advance, at least not until the blocking senators change their minds.

But that brings us to the second development: They are not going to change their minds, and the person in the best position to know that is sure of it. We refer, of course, to Senate Minority Leader Mitch McConnell (R-KY), who has spent considerable political capital on this bill. During his weekly press conference, he admitted that the bill "will not become law."

Tuesday's developments have all sorts of implications. To start, the modern-day Republican Party has left itself unable to get anything done. If a Republican tries to work out something bipartisan, as Sens. James Lankford (R-OK) and Chris Murphy (D-CT) did, it not only goes down in flames, but then the member ends up with Republicans loudly calling for their head. Lankford is going to spend months or years trying to make up for the damage done to himself here, just as Sen. Marco Rubio (R-FL) did when HE tried to work out a bipartisan immigration bill a few years ago.

Meanwhile, Republican members of both chambers are free to pursue highly partisan legislation, like the articles of impeachment against Alejandro Mayorkas, but such legislation has no chance of going anywhere, and often it can't even get the full support of the Republican conference. If a party can't achieve anything with bipartisan legislation, and it can't achieve anything with partisan legislation, then what else is there?

Another implication of all these legislative failures is that Ukraine, Israel and Taiwan continue to twist in the wind. Will they eventually get some money from the U.S.? It's hard for us to imagine that the members of Congress will allow them to go without, particularly in an election year. However, it's also hard for us to imagine what approach can get a majority of votes in both the House and the Senate, along with Joe Biden's signature.

And finally, yesterday's events have potentially given Joe Biden a political cudgel, if he chooses to use it. Democratic insiders believe that if the President hits the Republicans, over and over, for their failures on immigration, and reminds people, over and over, that Donald Trump is behind it all, that some serious political points can be scored. That said, Biden is surely worried about alienating some of his Latino/progressive voters. Further, every bit of breath spent on border stuff is not being spent on, say, abortion or threats to democracy. So, it is unclear exactly how frequently and with what amount of force Biden will choose to wield this cudgel. (Z)

Gaetz, Stefanik Propose Resolution Declaring Trump Did Not Engage in Insurrection

Reps. Matt Gaetz (R-FL) and Elise Stefanik (R-NY) will seize any opportunity at all to genuflect before the Dear Leader. And so, with an eye towards solving Donald Trump's little Fourteenth Amendment problem, they and 60 Republican co-sponsors have put forth a resolution asserting that whatever Donald Trump did on 1/6, he was not engaging in an insurrection.

It's no secret that Gaetz is a nitwit; Stefanik, a Harvard graduate, isn't, but she seems to have checked her brain when she joined the House Republican leadership. In any case, this is, if we may be blunt, a colossally stupid maneuver. It may not even come up for a vote in the House, and if it does it may not pass. And even if it does pass, it's dead on arrival in the Senate.

It is not the surefire failure that makes this colossally stupid, however. There are lots of "for show" bills that never go anywhere. No, the stupid part is that Gaetz and Stefanik (and 60 of their closest friends) are taking a very strong stand on the question of whether or not it is up to Congress to decide if a candidate (including a president) is subject to the terms of the Fourteenth Amendment. Clearly, they think it is indeed Congress' decision.

And now the problem. If you would like, you can review the article of impeachment filed against Trump prior to his second impeachment. Whether you take the opportunity to click on the link or not, we will note that the title of the article is "ARTICLE I: INCITEMENT OF INSURRECTION" and the entire text lays out the argument that Trump engaged in insurrection against the United States. That resolution was approved by a margin of 232-197 (with four not voting) in the House. And then, 57 senators (i.e., a clear majority) voted to convict. In other words, you now have a resolution saying that Trump DID NOT engage in insurrection that is not going to get backed by the Senate, and may not get backed by the House. And you have a resolution saying that Trump DID engage in insurrection that has already been backed by a clear majority of both chambers.

This is what the kiddies call a "self own." Those who favor Trump's removal from the ballot now have another excellent argument they can make, something along the lines of: "Both parties clearly agree that, if an alleged insurrectionist does not have the decency to remove themselves from the ballot, then it's up to Congress to decide. And, in the case of Trump, Congress has already made that determination. So, off he goes."

In other words, Gaetz and Stefanik aren't going to help Trump win his case, but they might just have helped him lose it. Like we said, colossally stupid. (Z)

Nevadans Head to the Polls

The Nevada primary is over, and while the delegate allocation was known before it ever started, the results were at least a little bit interesting.

First, on the Republican side, Nikki Haley had a night that can only be described as grim. With 30.8% of the vote, she did outpace the two prominent Republicans no longer in the race—Mike Pence (4.2%) and Sen. Tim Scott (R-SC; 1.4%). However, Haley's share of the total was doubled by the 62.9% of people who voted for "none of these candidates."

Haley's campaign, as we have already noted, is downplaying this result because she didn't visit Nevada or spend any money there. But that is also going to be true, or largely so, of most of the Super Tuesday states. If she can't win primarily on the strength of her name and her national campaign, then she can't win. Republican voters clearly aren't interested in what she's selling, and even if Donald Trump has to be replaced by the RNC for some reason, there's no way the RNC members can look at Tuesday's result and conclude that Haley is the second-best standard-bearer the party has. Similarly, it's hard to see how Haley can plausibly catch fire in 2028, when she expects to be the frontrunner. She's just too far out of step with the Republican Party as it is currently constituted.

Meanwhile, on the Democratic side, Joe Biden didn't do as well as he did in South Carolina, but he did claim just shy of 90% of the vote (and all the delegates, of course). In second place was "none of these candidates" with 5.8%, followed by Marianne Williamson at 2.8%. All the other candidates got less than 1%. As we noted yesterday, Rep. Dean Phillips (DFL-MN) botched his paperwork, so he wasn't on the ballot. However, it is hard to imagine he would have collected more than 1-2% of the vote if he had been on the ballot.

Biden has now won one unofficial primary and two official primaries, and in all cases his margin was enormous. There is no question that many Democratic and independent voters are not enthusiastic about him as the nominee. But it appears that they are not especially enthusiastic about their lack of enthusiasm. That is to say, they may pooh-pooh the President to pollsters (say that five times fast), but they don't feel strongly enough to get to the polls to register their disdain. That suggests to us that they're probably open to holding their noses and voting Biden, once it's clear the choice is him or Donald Trump.

Next up is the Nevada Republican caucus, where the only candidates on the ballot are Trump and Ryan Binkley. Trump is going to crush Binkley, although it would be a little embarrassing for the former president if he doesn't break 90%. After all, there's no "none of these candidates" alternative available to caucus voters. (Z)

Bye, Ronna

When it comes to Ronna Romney McDaniel, the writing is on the wall in big, red letters, and it says "REDRUM." Wait, no, that's a different message written on the wall in big, red letters. The message for McDaniel is, for all intents and purposes, "You're Fired."

As we wrote yesterday, Donald Trump has not been shy in the past couple of weeks about suggesting that it's time for a change in leadership at the RNC. Since our post went live yesterday, there were three additional developments:

1. RNC chief of staff Mike Reed announced that he would step down at the end of the month to "focus on his family."
   
   
2. Trump met with McDaniel for 2 hours at Mar-a-Lago, and then said he would make recommendations for changes to the RNC's leadership after the South Carolina primary.
   
   
3. McDaniel issued a statement in which she said she is willing to step down from her post after the South Carolina primary.

You never know with Trump, of course, and there are Republican insiders who insist that this situation is still "fluid." But McDaniel's continued employment as chair of the RNC certainly appears to be a longshot.

The apparent favorite to replace McDaniel is South Carolina Republican Party chairman Drew McKissick, which would explain why all this has to wait until after South Carolina's GOP primary is over. McKissick isn't going to be any more successful than McDaniel, or McCartney, or McDuck, or Dr. McCoy or MC Hammer, because the RNC's problem is Trump. However, a change in leadership will make things very interesting indeed if the Committee somehow ends up in the position of choosing a new nominee, should Trump become unavailable. (Z)

After ActBlue, This Was the Next Obvious Step

One of the questions we get most often during election season is: "How can I make sure my political donations do as much good as is possible?" This is not surprising; if someone is going to donate $20 or $50 or $100, they'd rather it go to a candidate or organization who can really use it, as opposed to a candidate who is just running up the score.

This is such an obvious problem, and one that so clearly lends itself to the use of "big data" tools, that it's hard to believe neither political party has tried to tackle it. After all, ActBlue went online 20 years ago. But now, Democratic activist Brian Derrick has created Oath, a website and app that pairs donors with those campaigns that need the money the most.

Oath, apparently built with the recognition that people have short attention spans, asks users three questions: (1) what issues they care most about, whether it's defeating Donald Trump or climate change or about a dozen others; (2) how much they plan to give each month; and (3) how often they would like e-mails with suggestions for donations. Then, the site matches the user with a bunch of potential donation options, along with a score of 0-10. For example, if you tell the site you care only about defeating Donald Trump, it will tell you your best option right now is to donate money to voter registration efforts in Arizona. Or, if you tell it you just want your money to go where it will have the most impact, it suggests donating to state Rep. Matt McLaughlin (D-NH).

Oath is getting a lot of attention, and if and when it becomes established as a key part of the Democratic arsenal, we predict two things will happen. First, there will be carping from Democratic candidates who don't think they are being prioritized properly by the site's algorithm. Second, the Republicans will create their own version ("Prayer"?), just as they did after ActBlue became successful.

While Oath is getting a lot of attention now because it is the new kid on the block, it is the new kid, not the first kid. In 2020, a Website www.bluetent.us went online to give advice on how to donate for maximum progressive impact. Its recommendations were very granular. For example, it recommended donating to three Democratic challengers running for the Arizona state Senate. Giving $100 to a presidential or Senate candidate means nothing, but in a state Senate race in a medium-size state, that is significant. If all three of the recommendees had won, that would have flipped the Arizona Senate. If a thousand small donors each gave $100 to any of those candidates, they could seriously impact a state chamber. Right now, the Arizona Senate is 14D, 16R and the state House is 29D, 31R, so some of those races are still actually very high priority. Since the federal government is totally paralyzed and can't do anything (see above), the states are increasingly important, and getting trifectas there is of crucial importance. The Democrats have a good shot at getting one in Arizona and the Republicans have a good shot at breaking one in Michigan. At the moment, Blue Tent is not recommending specific races, as it did in 2020, but specific organizations to donate to. Perhaps later in the year it will go back to a granular level of recommendation. All dollars are equal but some dollars are more equal. If you are interested in which ones are more equal, this is also a site to check from time to time.

In any event, this could be a big deal if it works out, since Democratic voters make more small donations than Republican voters do, but also waste more donations on candidates who aren't going to win. The blue team would certainly benefit from more efficiency. (Z)

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