About Fani Willis...

Yesterday, we got this message about our items on Fulton County DA Fani Willis from reader V.S. in Charlottesville, VA:

I've been surprised by the bias you have shown in your writing on this without consulting other sources. Everyone reading your site is familiar with the bias women face, especially minority women, when it comes to temperament versus men.

Did DA Willis make potentially bad personal mistakes? Yes. However, from what I have viewed of the hearing, and what legal experts have said on this topic, the defense attorneys have not made their case that the relationship somehow tainted/biased the case against the defendants. The last several minutes of the hearing on Thursday that I viewed were quite dull and boring. I didn't see the early parts of the hearing, since I was at work. The discussion I heard was how the personal relationship ended well before the DA filed (not sure if that is the correct term) the charges in late August 2023. The parts I heard made Willis sound quite believable, especially when she couldn't even identify which continent the Bahamas and Belize were even on compared with Nathan Wade claiming he had visited six continents in his life. I even had to think about that, since the Caribbean and Central America are not continents on their own.

Let us start by addressing a couple of things in the first paragraph of that e-mail. First, we do not have any bias here because we don't have any opinion here. Second, we always read a LOT of sources, and we certainly have done so here. That said, it is clear we have not effectively made our point here, so we're going to give it another try. This will also give us an opportunity to run a couple of letters we really wanted to run on Sunday, and then weren't able to because there was no Sunday posting.

There are two potential standards by which Judge Scott McAfee might judge Willis, as he makes his decision (next week) about whether or not she can stay on the case. The first standard is: Did she take actions that harmed the defendants? If the answer is "yes," then her removal from the case is a slam dunk. However, barring any new revelations, the actual answer here is "no." We will now turn it over to two lawyer-readers to explain. First, A.R. in Los Angeles:

In response to your items and the answer to the question on the claimed conflict of interest in the Trump Georgia case, it's important to remember that, under Georgia law, the alleged conflict has to harm the defendant in some way such that their due process rights are affected.

Georgia law very narrowly construes what constitutes a conflict of interest on a motion to disqualify a prosecutor. There has to be an actual conflict that serves to impair the defendant because of a personal stake in the outcome of the prosecution. So, what is a personal stake in the outcome? We already have one example from this case—you may recall that Judge Robert McBurney disqualified Fani Willis from prosecuting now-Lt. Gov. Jones because at the time he was a candidate for that office and Willis had very publicly endorsed his opponent, Charlie Bailey, and donated to his campaign. Prosecuting Jones, then, would benefit Bailey, which presented a conflict of interest given Willis' support for him.

Here, the defense has not alleged any such credible conflict. The logic, such as it is, seems to be this: Willis brought this case against Trump so she could hire her boyfriend, who would then take her to Belize on the taxpayer's dime. That is not a "conflict of interest" under the statute that warrants disqualification. It may be unethical and she may have to answer to her office, but it doesn't impact the defendant or give her any kind of personal stake in the outcome of this case. In fact, arguably, it weakens her case if he's as unqualified as everyone says. By this logic, anytime a prosecutor took a co-worker out to dinner, they could be disqualified. It's too attenuated to qualify as an actual conflict. As Just Security notes, "Wade's hourly compensation as a Special Prosecutor does not give rise to a conflict of interest because that fee arrangement does not create a financial incentive for Wade [or Willis] to seek conviction rather than justice." He's being paid whether Trump is convicted or not.

Moreover, Georgia courts have held that married couples on opposite sides of a prosecution are not disqualified, let alone those on the same side. It's presumed that such intimacy will not interfere with their professional obligations. And their financial arrangements are not a basis of inquiry.

And by the way, I did see Willis' testimony and she was not "unhinged". That term used here is sexist and inaccurate. She was forceful and understandably angry.

What I saw was eerily reminiscent of Judge Lance Ito's courtroom in the O.J. Simpson trial. McAfee let his courtroom be turned into a circus. He should know very well that these allegations, even if they're all true, do not meet the standard for disqualifying anyone. Next thing we know the judge will be giving the jury a tour of Mar-a-Lago.

This article does an excellent job explaining the relevant law, which has been conveniently omitted in most of the reporting.

And now, R.E.M. in Brooklyn, NY (with some bonus commentary about the New York trial):

A few points about the New York and Georgia court cases. I recommend reading the last two pages of Judge Arthur Engoron's opinion, which contain the orders based on the first 90 pages of facts and reasoning. The most striking thing to me is that the verdict reprieves the Trump entities from the corporate "death penalty" the court had imposed in its September 2023 summary judgment decision—their business certificates (i.e., licenses to do business) will not be revoked now, though the court could revisit that penalty if Barbara Jones, the Independent Monitor, recommends it based on further shenanigans, or the Attorney General can provide "substantial evidence" of its necessity.

The ruling also does not deprive the Trump family of their ownership interests. That means that even though they cannot operate their entities, they presumably could still vote for new directors who could appoint new officers, so their hands would still be in the business. That said, I suspect that Monitor Jones would have a say if the Trumps attempted to put strawmen or other stooges in charge.

There is also a prohibition on applying for loans for three years from institutions registered by the New York State Department of Financial Services, but that strikes me as somewhat toothless. Many, many banks are regulated federally, not by the State of New York, including Deutsche Bank's U.S. activities. If the Trump assets aren't already mortgaged to the hilt, Trump should be able to find a lender who would post a bond for him.

Regarding the Georgia hearing, I cannot disagree with you more strongly about the legal effects. Defendants have the burden of proof on a motion to disqualify to show a conflict of interest that prejudices them. Here, the theory of prejudice borders on the absurd: Willis decided to prosecute 19 people (four of whom have pleaded guilty) not because they committed crimes, but because she wanted to put her boyfriend on the payroll so she could receive kickbacks in the form of free vacations. Is there any not MAGA-fanatic who heard the Trump-Raffensperger call and didn't think, "Wow, that's extortion"? Both a special and a regular grand jury found probable cause to believe these crimes occurred. To find prejudice, you would have to conclude that Willis would not have prosecuted these defendants but for the boyfriend-kickback scheme. That's nuts.

Factually, the entirety of the evidence defendants put on to prove a pre-hiring relationship consisted of the impressions of a disgruntled former employee and friend of Willis's. There is no smoking gun—like testimony, a document, or a recording of Willis saying, "Yeah, Nathan and I have been hooking up since 2019." Neither Willis's ex-friend nor Wade's ex-lawyer so testified. If I were a defense lawyer who signed papers alleging things like Willis and Wade cohabitating in 2019 or 2020, I would be worried right now about getting sanctioned for filing frivolous papers.

There is no doubt that Willis should not have taken up with her employee Wade, but that's because it created a needless distraction and looked bad in the court of public opinion. But ultimately, so what? On the facts and arguments presented, it is of no legal significance. And as an aside, I'd point out that people regularly do foolish things in matters of the heart; let they who never have, cast the first stone.

Thank you, A.R. and R.E.M., for the benefit of your expertise.

But that now brings us to the second standard by which Willis might be removed from the case: Are the optics here so bad that it undermines the integrity of the prosecution? Particularly given that we're dealing with a defendant in Donald Trump who is claiming "witch hunt" and who could use any whiff of impropriety to goad his followers into violent action?

Let us be very clear here that Willis clearly has created bad optics, and also that optics are not actually a basis for removing her (if you doubt it, reread the above paragraphs). That said, judges are human too, and, as you may have heard, have been known to rule from the heart as opposed to ruling from the law. When that judge is a registered Republican, and a Federalist Society member, and has allowed his courtroom to be turned into a "circus" (per A.R.), then you have at least some reason to be leery.

And it's not totally crazy to think that Willis has compromised herself to the point that she should step down. See here, here and here for examples of lawyers making that argument. If McAfee concurs, and he's willing to interpret the rules "creatively," then she could well be gone. Even if it's a wrong decision, and even if there's an appeal, and even if that appeal is successful, then it burns through a bunch of time, which is exactly what Donald Trump wants.

We have absolutely no prediction about what will happen. We have absolutely no opinion about what should happen. All we know is that there's enough uncertainty here that readers should not be surprised by whatever decision McAfee hands down. And THAT was our point. (Z)

Enough of the Gospel According to Nate Silver

Let us begin this piece by noting that Nate Silver was once an excellent number-cruncher. That was true even before he began writing about politics, and instead was applying his gifts to baseball analysis. It is entirely plausible that he's still an excellent number-cruncher, though we do not know because we do not pay for his Substack. It's also possible he doesn't do much number crunching anymore because it's hard work, and sometimes people just rest on their laurels (see, for example, Al Pacino).

What Silver is not, however, is a political strategist. Nonetheless, he has gotten into the habit, particularly on Ex-Twitter, of sharing his non-evidence-based opinions on political strategy. And because of his still-sterling (no pun intended) reputation, the media tends to treat his utterances like they come straight from the mouth of Solomon.

So it was yesterday, when Silver offered a fairly damning assessment of Joe Biden, and virtually every outlet ran with it. Here it is (from his Substack, mind you, not Ex-Twitter):

Personally, I crossed the rubicon in November, concluding that Biden should stand down if he wasn't going to be able to run a normal reelection campaign—meaning, things like conduct a Super Bowl interview. Yes, it's a huge risk and, yes, Biden can still win. But he's losing now and there's no plan to fix the problems other than hoping that the polls are wrong or that voters look at the race differently when they have more time to focus on it. Neither is so implausible and it is likely to be a close race. But even the most optimistic Democrats, if you read between the lines, are really arguing that Democrats could win despite Biden and not because of him. Biden is probably a below replacement-level candidate at this point because Americans have a lot of extremely rational concerns about the prospect of a Commander-in-Chief who would be 86 years old by the end of his second term. It is entirely reasonable to see this as disqualifying. The fact that Trump also has a number of disqualifying features is not a good reason to nominate Biden. It is a reason for Democrats to be the adults in the room and acknowledge that someone who can't sit through a Super Bowl interview isn't someone the public can trust to have the physical and mental stamina to handle an international crisis, terrorist attack or some other unforeseen threat when he'll be in his mid-80s.

We also wrote about Biden potentially reconsidering his Super Bowl interview, given the Robert Hur report coming out at the beginning of that week. But otherwise, we find most of this to be pretty objectionable from an analysis standpoint.

Let us focus, in particular, on several key points:

• "But he's losing now and there's no plan to fix the problems...": This sort of thing has come up before, in contexts other than pieces about Nate Silver. We hate, hate, hate political "analysis" that begins with the presumption that [Politician X] or [Campaign Y] is too shortsighted/stupid/lazy/whatever to understand and/or do anything about [obvious problem Z].
  
  Nate Silver is not sitting in on meetings at the White House, or at Biden campaign headquarters, or anywhere else. He has no idea what plans might, or might not, exist. However, we can tell you this: Joe Biden has been a high-level politician for half a century. He is surrounded by political operatives who have reached the pinnacle of their profession, and who among them literally have millennia of experience. Just because Silver does not agree with how the campaign is being run, or just because he doesn't see what the plan is, does not mean there is no plan. To assert otherwise is either dishonest or ignorant.
  
  
• "...if you read between the lines": Also dishonest, to be blunt. "If you read between the lines" literally means "I don't have any hard evidence." Also, we can assure you there are Democrats who really and truly believe that Biden offers the party's best chance at victory, and aren't just saying so because they have no choice. Rep. Jim Clyburn (D-SC) is one. Sen. Bernie Sanders (I-VT), interestingly enough, is another.
  
  
• "Biden is probably a below replacement-level candidate...": We are not sure if non-sabermetric baseball fans get this reference, so we will explain it, just in case. In baseball, a replacement-level player is one whose talent level is matched by hundreds of their peers. In other words, any baseball team can fill their entire roster with replacement-level players without difficulty. The teams who win are those that manage to acquire the players who provide the most value ABOVE replacement-level. If you see, for example, that Shohei Ohtani produced 10 wins above replacement (a.k.a. WAR) in 2023, it means that his team won 10 more games than if his spot on the roster had been filled by a replacement-level player. Not that it did the Angels a fat lot of good last year.
  
  A political way of putting this is like this. Suppose a congressional district has a PVI of D+5. That means the Democratic candidates for president in the past two presidential elections did 5 points better than the national average. Roughly speaking, there are 5% more Democrats in the district than in the country as a whole. So we could expect a random Democrat dumped into the House race there would win by 5 points, simply because there are more Democrats than Republicans in the district (assuming the country is evenly balanced, which it is). If the local Democratic Congresscritter consistently wins by 10 points, then that person is 5 points above replacement level. If he or she consistently wins by 2 points, he or she is below replacement level bcause some other random Democrat would probably do better. So even if that representative wins all the time (by 2 points), the Democrats would actually be better off finding some other Democrat, who would probably do better as the current one seems to be offending 3% of the Democratic voters but due to the lean of the district, can still win.
  
  What Silver is saying about Biden, then, is that any of the other would-be presidential candidates would automatically be an improvement over the President, numbers-wise. The thing is, this is a question that can be answered with... numbers, which is what Silver used to do. So, let's take a look at some recent polling, and how various candidates stacked up vis-à-vis Donald Trump:
  
  

  Pollster	Dates	Joe Biden	Kamala Harris	Gavin Newsom	Gretchen Whitmer
  Emerson	Feb. 13-14	Trump +1	Trump +3	Trump +10	Trump +12
  Glengariff Group	Jan. 8-10	Trump +6	N/A	Trump +6	Whitmer +4
  YouGov	Dec. 16-18	EVEN	N/A	Trump +4	Trump +2
  Beacon Research	Nov. 10-13	Trump +4	Trump +5	Trump +4	Trump +2
  Averages		Trump +3	Trump +4	Trump +6	Trump +3

  
  Pollsters do not often poll for candidates who are not actively running. However, both the most recent data we do have, as well as the overall data we do have, suggest Biden is actually the strongest candidate the Democrats have (with Whitmer a close second), and not "below replacement-level."
  
  
• "...someone who can't sit through a Super Bowl interview": The Biden campaign has explained that they felt a Super Bowl interview would be counterproductive, because of politics intruding on sports (i.e., escapism). Maybe that's their true assessment (though if so, Robert F. Kennedy Jr. did not get the memo) and maybe it's not. But it's certainly a justifiable assessment, and unless Silver has a compelling reason to believe the campaign is lying, then this remark is a cheap shot.

In short, if Silver wants to show his math, we're still interested because of how good his early work was. However, when he just starts pontificating off the top of his head, well, he kinda sounds like the people that his work was once supposed to be the curative for.

And now, we will present our strategic assessment. We do not have Silver's certitude, nor do we plan to lecture the Biden campaign on what it should do, since that is not actually appropriate for psephologists.

To start, it seems very clear to us that when it comes to Biden really hitting the media circuit hard, there is such a thing as "too early." He does not want to cause voters to become burned out on him and on his messaging. Further, when it comes to the specific problem of pushing back against the "He's too old and mentally feeble" narrative, Biden is not going to dispel that right now, no matter how dazzling he might be. On the other hand, he could make a mistake that lingers. Such is the nature of these things.

And again, it is true that we thought Biden might consider doing the Super Bowl interview because of how damaging the Hur Report was. However, the campaign correctly guessed, it appears, that the story didn't really have legs. Again, when it comes to political strategy, they are better at this than we are.

Moving along, it also seems very clear to us that when it comes to Biden hitting the media circuit hard, there is such a thing as "too late." If he doesn't spend a fair bit of time getting his message out there, and also showing that he still has his marbles, he may run out of time to change enough hearts and minds.

If you accept our two propositions, then that leads to just one question: When should Biden '24 flip the switch? When we started laying this piece out, it struck us that there is a pretty obvious answer to that question. And we would have shared it, not as "advice" to the President, but simply as a prediction. As it turns out, however, we already know that the answer we came up with is the same one that Team Biden came up with. They see the real launching point of their campaign as... the State of the Union Address.

So, with Donald Trump already in full campaign mode, March 7 is when the race for the White House begins in earnest. And at that point, we will see what the Biden campaign has up its collective sleeves. (Z)

Biden Impeachment Takes a Big Hit

And now, a story that is getting WAY less attention than we think it should. Is it because the news broke over the weekend? Because the media really does prefer the "more bad news for Biden" narrative? Something else? We don't know.

In any event, recall that the key witness in the "Biden crime family" story is Alexander Smirnov. He is the former FBI informant who reported that Hunter Biden and Joe Biden both received $5 million bribes from the now-defunct Ukrainian company Burisma Holdings Limited. The ostensible purpose of the bribes was to purchase influence in the Obama administration.

The story did not pass the smell test in any way, shape or form. There's no paper trail, first of all. There are no other witnesses who have corroborated the story. It would also be very odd for a VP to take that kind of kickback, since there are so many prying eyes out there, and since a former president or VP can make that kind of scratch with no trouble giving speeches and serving on corporate boards once they are done with public office.

And now, it turns out that Smirnov's contacts with Burisma actually took place in 2017 and afterward. It is pretty stupid to try to purchase influence by compromising a VP, of all people, unless your goal is to influence the precise temperature of that bucket of warm pi**. It is even more stupid to try to purchase influence by compromising someone who is not even in office anymore. It's plausible that the people who ran Burisma are corrupt, but they certainly aren't morons.

The FBI, of course, is paid to notice things like this. They had already rejected Smirnov's story as the fantastical fictions of a hyper-partisan actor. But now, the DoJ has gone further and gotten an indictment of Smirnov. He faces up to 25 years as a special guest of Uncle Sam.

A year ago, Republicans in both the House and the Senate (in particular, Rep. James Comer, R-KY, and Sen. Chuck Grassley, R-IA) were loudly proclaiming that Smirnov's testimony was essential to making the case against the Biden family, and that is why the public needed to know everything. Readers will recall all the hand-wringing about an FD-1023 form; well, the FD-1023 in question was the one produced when Smirnov told his tale to the feds. Now, of course, Comer and Grassley say that Smirnov was only a small piece of the picture, and that what's really important is the "large record of evidence" (Comer's words).

Uh, huh. We suppose it's not impossible that House Republicans will still try to impeach Biden, since they impeached DHS Secretary Alejandro Mayorkas without any evidence. However, the Biden impeachment was already a much harder sell, even within the House Republican Conference. And now that the star witness has gone counterfeit? Hard to see how the GOP members who were already leery do not become more so, especially when they ponder the potential of a Senate trial where the prosecution has nothing but smoke and mirrors. So, we tend to assume that the Biden impeachment is now a dead letter, and that folks like Rep. Marjorie Taylor Greene (R-GA) are going to have to content themselves with going after Mayorkas. (Z)

A Potential Z-Factor in This Year's Elections?

No, not Zenger (though a bit of his snark did make The New York Times this week). We mean Zelenskyy, who did a little trolling of Donald Trump this weekend, inviting the former president to visit Ukraine for a little tour. "If Mr. Trump will come I am ready even to go with him to the front line," said the Ukrainian leader.

Zelenskyy doesn't want to burn too many bridges at this point, since he's not sure who will be in the White House one year from now. That said, note the use of "Mr. Trump" rather than "President Trump," not to mention the offer that Zelenskyy knows full well Trump will never, ever accept. The man doesn't even like to brave the rain, much less the front lines of a war.

We pass this along because if Zelenskyy's situation grows more desperate, and if he is persuaded that there's no possible way to work with a potential Trump administration, this could get interesting. We all know where Vladimir Putin stands, but the Russian president isn't great on TV, doesn't do subtlety well, and is severely limited in terms of his access to the American public.

By contrast, Zelenskyy is very telegenic, which makes sense since he used to be a television star. He's a skilled poker of bears, and he can do interviews with any outlet in America, not to mention appear before Congress. If the Ukrainian plays his cards carefully, he could certainly do things to undermine Trump, specifically The Donald's masculinity/macho image. Imagine, for example, something like this: "President Biden has come to see things for himself, and I am eager to have Mr. Trump do the same. Surely it is not because he is afraid, right? Maybe it is his bone spurs?"

It's a long time until the election, and if Zelenskyy gets his money, he'll probably lie low. But if not, then it will be interesting to see what he does. (Z)

Evers Signs New Legislative Maps Into Law

This November, for the first time since 2011, Wisconsin will hold an election for seats in the state legislature under maps that are not gerrymandered six ways to Sunday in favor of the Republican Party. That is because Gov. Tony Evers (D-WI) just signed into law the maps that he proposed, and that the currently Republican-dominated legislature passed.

At the outset, let us note again that we erred in writing about this story last week. We said that the legislature adjusted the enabling legislation such that it would not kick in until November, thus giving the GOP one more cycle with the gerrymandered districts. In fact, the change will only apply to elections held before November (in other words, special elections). And even that might not hold, since the current maps have already been declared illegal. If there is a special election (no guarantee), then some person or group might well sue to have the new maps used.

The point, then, is that Wisconsin is going to be operating under maps that are much friendlier to the Democrats. How much friendlier is not clear, but what is clear is that, barring retirements, there will be 15 Republican incumbent vs. Republican incumbent races for the state Assembly, along with 6 such races for the state Senate. The Democrats will only have one such Assembly race, and while they also would have had one such Senate race, one of the two Democrats in that one already threw in the towel. We'll see in November if the Democrats can get the trifecta; certainly dumping 21 Republicans from the legislature while sacrificing only one Democrat is a very good start in that direction.

Meanwhile, the Wisconsin Supreme Court hasn't yet taken up the state's Congressional district maps, but that appears to be only a matter of time. If so, it won't take much to turn the current 6R, 2D delegation into, say, 4R, 4D, as befits a state that is so evenly divided. (Z)

Utahns Channel Their Inner Secessionists

The folks running the show in Utah have been watching what other red states have been doing, and apparently are jealous. They want you to remember that the Beehive State has plenty of crazies, too. And to prove it, Gov. Spencer Cox (R-UT) has signed into law the Utah Constitutional Sovereignty Act.

The newly-minted law does exactly what you think it does. It reserves the right for Utah to ignore any federal law or dictate that it does not like. Here is the key portion of the actual bill, in case you are skeptical:

The Legislature may, by concurrent resolution, prohibit a government officer from enforcing or assisting in the enforcement of a federal directive within the state if the Legislature determines the federal directive violates the principles of state sovereignty.

You can read the whole bill here, if you want.

We seem to recall this very issue coming up before. Almost 200 years ago, the people of South Carolina were cranky about tariff rates, and announced that they were entitled to "nullify" any federal directives they did not like. The Palmetto Staters backed down in that particular historical moment, but finally put their ideas to the test a few decades later. As you may have read, they, along with the other 10 Confederate States, lost that little dust-up, thus establishing that the Constitution's supremacy clause really is supreme.

We presume that the Utahns are just making a statement, as they are prone to do with bills of this sort. On the other hand, these days, you can never be sure. Certainly, the red states flirt with the idea of civil war far too often, and with far more seriousness, than is healthy for the country. (Z)

---

If you wish to contact us, please use one of these addresses. For the first two, please include your initials and city.

• questions@electoral-vote.com    For questions about politics, civics, history, etc. to be answered on a Saturday
• comments@electoral-vote.com   For "letters to the editor" for possible publication on a Sunday
• corrections@electoral-vote.com To tell us about typos or factual errors we should fix
• items@electoral-vote.com            For general suggestions, ideas, etc.

To download a poster about the site to hang up in school, at work, etc., please click here.

---

Email a link to a friend or share some other way.

---The Votemaster and Zenger