RNC, Day 1: It's J.D. Vance

The Republicans have descended upon Milwaukee, and have commenced their presidential convention. In theory, the theme of Monday's meeting was "Make America Wealthy Once Again," but it was much more a coming-out party for post-assassination-attempt Donald Trump (who is now officially the Republican nominee) and his new running mate.

If you are interested in watching the proceedings, you can view the second, "prime time," session here, courtesy of C-SPAN:

Truth be told, we cannot imagine WHY you would want to watch, unless you're a glutton for punishment. By virtue of our site's focus, we HAVE to watch. And we can affirm what you should already know: Nothing—not candidates' debates, nor State of the Union addresses, nor presidential press conferences—is more boring than modern-day political conventions. The first problem, of course, is that there's no drama because the outcome is already known. The second is that the lists of speakers are grossly overstuffed, because every key ally expects to be given a few minutes' stage time. Yesterday, for example, there were 22 different people who delivered remarks just during the primetime session (and at least a dozen more during the first session). Is there anyone on the planet who actually wants to hear 35-40 speeches, all on the same basic subject, most of them badly delivered, in a single day?

Today, and for the remaining 3 days of the RNC, along with the 4 days of the DNC, we're not going to attempt an exhaustive breakdown. That would be very dry reading. We'll just give remarks on ten people/events/things that stand out to us. We are going to present things in chronological order and, when possible, we've linked to the correct moment in the C-SPAN feed (those are in blue, not red). And with that explanation, away we go:

1. Trump Arrives: Either the biggest, or second-biggest, story of the day was Trump's arrival at the convention. He had a bandage on his ear so large it might well have been able to save the Titanic from sinking. And he did the whole "conquering hero" bit as he entered, backed by his theme song, "God Bless the USA." The crowd ate it up, at least for a few minutes, although the greeting he received was actually shorter and less rapturous than we would have expected (compare, for example, the response that William Jennings Bryan received after delivering the "Cross of Gold" speech at the 1896 DNC—the standing ovation lasted... 48 minutes).
   
   The other problem here, from a PR standpoint, is that Trump's arrival came during the day's first session (which is why we aren't able to link to it). That means that unless a TV viewer is a fanatic, or otherwise viewed highlights after the day's proceedings were over, they didn't actually get to see a fine bit of stagecraft.
   
   One other note. We switched back and forth between several outlets' coverage. And all of them kept their cameras pointed at Trump for an inordinate amount of time, often even while someone was up on stage speaking. And, for people who are ostensibly journalists, they were unbelievably fulsome in their praise of the former president. For example, ABC had an extended discussion (several minutes) of how great Trump looks, and how he must be very tired but he wasn't showing that at all. You could have been persuaded that EVERY station was using Fox personnel for their coverage. Obviously, this is a byproduct of the assassination attempt; we'll see if it continues throughout the convention.
   
   
2. Vance Debuts: We are surprised that the reveal of Trump's running mate waited until the first day of the convention, and we suspect that's the case because Trump was already dominating the weekend news cycle thanks to having been shot at. That said, the GOP still managed to give a bit of a "reality show" feel to the unveiling process. First, at around noon ET, it leaked out that Sen. Marco Rubio (R-FL) was not the pick. Then, around an hour later, it leaked out that Gov. Doug Burgum (R-ND) was not the pick. Then, there was news that when Sen. J.D. Vance (R-OH) left his residence yesterday morning, he was accompanied by a large security contingent. So, it was not a big surprise when, around 3:00 ET, it was announced that Vance had been tapped as the VP pick.
   
   According to various reports, the choice was—characteristically—up in the air until the last minute, and it was a last-minute push from Donald Trump Jr. that sealed the deal for the Senator. Vance was apparently chosen for three reasons:
   
   
   1. Of the finalists, he's the most loyal to Trump.
   2. Because of his hillbilly background, he can bring in blue-collar voters.
   3. Because his wife is Indian, he can bring in minority voters.
   
   Of course loyalty to Trump is #1 on the list. Although, we would not be too surprised to see a Democratic commercial that includes the footage, from 2016, of Vance criticizing Trump, along with a tagline like "And this is his RUNNING MATE who thinks this." Maybe throw in some bonus footage of Mike Pence criticizing Trump, as well.
   
   As to Vance bringing in blue-collar voters, we are skeptical. We very much doubt that those folks were the people buying and reading his book, and we also doubt that they see themselves in a multimillionaire venture capitalist and U.S. senator. As to Vance's wife bringing in minority votes, that's just silly. We doubt there is a single vote in U.S. history that was cast based on approval or disapproval of the vice-president's wife. There's also the small matter that while Trump's running mate might be married to someone of Indian descent, Joe Biden's running mate IS someone of Indian descent. What we are saying here is that while Vance brings "loyalty," we don't actually see how he brings any votes to the GOP ticket.
   
   We also wonder if Vance might end up doing more harm than good. Mike Pence was a shrinking violet, who never did or said anything other than exactly what he was told to do or say. Burgum would have been the same sort of running mate. But Vance is very upwardly aspirational, is far more outspoken than Pence or Burgum, and tends to shoot from the hip. We wouldn't be terribly surprised if he sticks his foot in his mouth more than once over the next few months. And even if he doesn't have any miscues, he's staunchly anti-choice. This appeared on his personal website until yesterday, when the site was replaced by a redirect to WinRed:

   END ABORTION
   
   I am 100 percent pro-life, and believe that abortion has turned our society into a place where we see children as an inconvenience to be thrown away rather than a blessing to be nurtured. Eliminating abortion is first and foremost about protecting the unborn, but it's also about making our society more pro-child and pro-family. The historic Dobbs decision puts this new era of society into motion, one that prioritizes family and the sanctity of all life. The pro-life fight continues by ensuring that every young mother has the resources to bring new life into the world, expanding adoption and promoting pregnancy centers, so that every child grows up in a loving home, as they deserve. We'll expand child tax credits and ensure that young parents don't come home from the hospital with budget-busting surprise bills.

   That is not going to help with those suburban women voters.
   
   Anyhow, this is the other story that is in the running for biggest story of the day. Shortly after Trump arrived at the convention, he and Vance stood face-to-face for the first time as ticket-mates. However, this was also before primetime, so relatively few people saw it.
   
   
3. Sen. Ron Johnson (R-WI): Shortly before the convention began, the word went out that the speakers were to emphasize unity, and not to pander solely to the base. Johnson got the message, and rewrote his planned remarks, but the person running the teleprompter did not. So, "the world's going to hell in a handbasket" version of Johnson's speech is what was loaded, and Johnson just went with it. Apparently, quite a few Republican pooh-bahs were not happy about this
   
   
4. Rep. Marjorie Taylor Greene (R-GA): Still crazy after all these years.
   
   
5. Lt. Gov. Mark Robinson (R-NC): Robinson may be even crazier than Greene, but somebody got to him and persuaded him to tone it down. They also gave him just a couple of minutes' speaking time, presumably to reduce the risk that he might say something really whackadoodle. As such, the only thing he really said is that NAFTA destroyed his life, and it's Joe Biden's fault because Biden voted for it. Someone might want to point out to Robinson that the treaty got more Republican votes (34) than Democratic votes (27). They might also want to tell him what president was in office when the United States-Mexico-Canada Agreement (a.k.a. NAFTA v2.0) was adopted.
   
   
6. Sen. Katie Britt (R-AL): Turns out, the SOTU response wasn't an anomaly. That weird cadence is just how she talks, at least when she's trying to be forceful/dramatic.
   
   
7. Amber Rose: Rose is a D-list celebrity who has appeared in several music videos, has done some modeling, and has hosted a couple of radio/basic cable talk shows. She's also part Black, and has been in romantic relationships with both men and women. A major point of emphasis on Day 1 was that the GOP is welcoming to everyone; at least half a dozen speakers were wholly or partly minority. Rose declared that while she was once anti-Trump, she eventually learned that the Trumpublicans are "her people," and "don't care if you're Black or white, gay or straight." That latter part is news to us, and, we suspect, to many of the people who were in attendance in Milwaukee. Say, the evangelicals.
   
   
8. Linda Fornos: Fornos was one of six "everyday Americans" who was included in the speakers' roster. The Democrats used this same bit in 2020, and undoubtedly will do so again next month. Does letting Joe and/or Joan Sixpack talk for a minute or two make an impression on viewers? We don't know. What we do know is that most of the networks used these speeches as an opportunity to cut away from the stage to focus on Trump and/or the talking heads.
   
   
9. Sean O'Brien: O'Brien is the president of the International Brotherhood of Teamsters. Yesterday, the union issued a statement that said that they may not be making a presidential endorsement in 2024. That may be so, but O'Brien certainly has HIS candidate. He gave a fiery, class-war-type speech, probably the most memorable of the night. He also announced that Republicans are the pro-labor party, while Democrats are anti-union. Again, this is news to us.
   
   
10. Music: The Republicans' stagecraft was rather better than it usually is, and whoever was stage managing the proceedings made sure that music played during any downtime between speeches. The music was almost entirely in three categories: country songs, songs that are 50+ years old, and country songs that are 50+ years old. This may just give a clue as to the demographics of the modern Republican Party.

Again, we are writing this up because it's the biggest political news of the day. However, we cannot see how the day's proceedings did anything to materially affect the presidential race. The event was too long, too repetitive, too full of red meat for the base, and too boring. Sure, political junkies and GOP true believers will tune in, but the 15%-20% of voters who are not yet backing a major-party candidate? We just don't believe they are watching. And if that's so, then the conventions—Republican and Democratic—are not terribly relevant. (Z)

Cannon Dismisses Trump Documents Case

Maybe it was just a coincidence, but Judge Aileen Cannon chose the day that featured the VP announcement AND the first day of the GOP Convention AND Donald Trump's first public appearance after his assassination attempt to rule that she was dismissing the classified documents case against Trump, on the basis that the appointment of Special Counsel Jack Smith was unconstitutional.

We do not have the expertise to properly read and understand Cannon's ruling, which is 90+ pages long and quite abstruse. And even if we had the expertise, we don't have it within us to read that AND watch 4-5 hours of political conventioneering in the same day. Luckily, lawyer reader A.R. in Los Angeles does have the expertise, and was willing to take on the daunting task of reading and commenting on Cannon's ruling:

Judge Aileen Cannon granted Donald Trump's motion to dismiss Special Counsel Jack Smith's superseding indictment against Trump, Walt Nauta and Carlos De Oliveira on the grounds that Smith's appointment violated the appointments clause of the U.S. Constitution.

Over 93 exhaustive (and exhausting) pages, Cannon adopts wholesale the arguments of Steven Calabresi of the Federalist Society, who submitted an amicus brief at Cannon's invitation; it essentially repeats the failed arguments he made to the D.C. Circuit Court of Appeals in a challenge to Robert Mueller's appointment in 2019.

The appointments clause requires the President to appoint, and the Senate to confirm, certain offices, but Congress can vest that authority in "heads of departments" for the appointment of "inferior officers." In the Mueller challenge, the D.C. Circuit examined the statutes governing the Attorney General and the DOJ and concluded that, because the AG is appointed by the president and confirmed by Congress, and the statutes authorize the AG to delegate authority to various officials, a special counsel appointed by the AG is an inferior officer to whom he can assign certain DOJ matters. An inferior officer is "one whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate. "In reaching its holding, the Court also relied on U.S v. Nixon, the Supreme Court's unanimous decision that upheld the appointment of Special Prosecutor Leon Jaworski as part of its decision ordering Nixon to comply with Jaworski's subpoena for the Oval Office tapes.

Cannon, by contrast, did not consider the federal statutes governing DOJ as a whole; instead, she examined each statute separately, looking for specific congressional authorization for a special counsel. She found the statutes cited by Smith, and that were relied on by the D.C. Circuit, among others, to be wanting. For example, 28 USC section 533 authorizes the Attorney General to "appoint officials to detect and prosecute crimes against the U.S... and to conduct investigations regarding official matters under the control of the DOJ..." Cannon concluded that because this section is "housed within a chapter devoted to the FBI" and an "official" is not the same as an "officer," it doesn't authorize Smith's appointment. She found similar defects in the other provisions.

She then purports to analyze U.S. v. Nixon, which upheld Jaworski's appointment as a special prosecutor under those same statutes. She concludes that the paragraph finding a statutory basis for Jaworski's position and, thus, the authority to issue a subpoena for the recordings, to be dicta—in other words, unnecessary to the holding of the case. Yes, she calls that paragraph merely "prefatory" and "stage setting" for the main event of whether Nixon could withhold those infamous tapes. Meanwhile, she finds Clarence Thomas' concurrence in the immunity case, which no other Justice joined and on a subject irrelevant to the Court's holding, to be so persuasive that she cited it four times.

Finally, on page 65 she begins her analysis of whether Smith is a "principal officer" who must be appointed by the President and approved by the Senate, or an "inferior officer" whose appointment can be vested by Congress in the AG. The D.C. Circuit managed to determine in three paragraphs that Mueller was an inferior officer. Cannon takes 20 pages to... not decide.

But first she looked long and hard at those regulations. She decided that the regulations do not allow AG Merrick Garland enough supervisory authority over Smith. Even though Garland can remove Smith, he can only do so with cause. And even though Garland can amend the regulations as he sees fit, that, too, is not sufficient because the current regulations are what they are. Nevertheless, after all that, Cannon writes: "For the above reasons, the Court sees compelling reasons to reach a principal-officer designation. But because the answer under current Supreme Court precedent is not self-evident, and because this Court need not rely on this ground to dispose of the Appointments Clause challenge in the Motion, the Court elects to leave the matter for future review."

At the end of the day (which is how long it took me to decipher this thing), she dismissed the case based on her conclusion that Garland lacked the explicit statutory authority to appoint even an "inferior officer" to the extent Smith is one (and she's not saying he is!). She also concludes that Smith's pay violates the appropriations clause, because if his appointment is invalid, how can his pay be legal?

So, what does that mean for the myriad other special counsels that were appointed during the Trump administration? Don't worry—Cannon strongly hints that because some of those folks, like David Weiss and John Durham, had been U.S. Attorneys at the time of their appointment, they're fine and dandy since they were confirmed by the Senate.

There's no question Smith will appeal this decision to the Eleventh Circuit and while they were quick to reverse Cannon in the special master scenario, there's no telling how a different panel may rule. But Trump's position still seems like a long shot. In addition, at this point, I'd be very surprised if Smith doesn't also ask the Court of Appeals to remove Cannon from the case. This nonsense has gone on long enough.

Of course, if the Eleventh Circuit finds for Smith, then Trump will appeal to the Supreme Court. And if the Supremes grant cert, well, Cannon apparently thinks she has five votes for her position. In her decision, she not only cites Thomas but also a Brett Kavanaugh concurrence and an Amy Coney Barrett law review article that could be read as questioning the special counsel's legitimacy. She also cites Neil Gorsuch.

Thanks, A.R.!

As a result of Cannon's decision, there are two small-to-medium things that changed yesterday, and one big thing that did not.

One of the things that changed is that Donald Trump's lawyers have opened up a new front in their fight to delay and/or kill his Washington trial. They have already filed motions intended to block the hearings that Judge Tanya Chutkan is likely to hold in the next few months, based on the argument that since the case was brought illegally, it does not exist anymore. It is possible that Chutkan might buy this, but doubtful. If Supreme Court precedent says one thing, and a ruling from an inferior judge on a different judicial circuit says another, then it's Chutkan's job to follow the Supreme Court ruling or rulings.

The second thing that has changed is that Cannon has successfully delivered the goods for Trump, while very possibly extracting herself from future involvement in a case that was beyond her capacity to handle, and that was damaging her reputation with her colleagues and with the larger legal community.

The big thing that has NOT changed is this: Trump is still in big trouble on this front, IF he is not able to reclaim the presidency and to use the powers therein to kill the case. The case had already been pushed back enough that there was no real chance it would be heard before the election. Dealing with Cannon's out-of-left-field decision will extend the timeline even further, but either way, the case was only going to live on if the Democrats retain the White House.

And the case itself remains wholly intact, or nearly so. To start, Cannon might THINK this will survive the appeals process, and even a review from the Supreme Court. However, while the Eleventh Circuit is pretty right-wing, it's consistently rejected her jurisprudence in this case. As to SCOTUS, there may be five justices who have expressed sentiments critical of special counsels. However, the justices are already unhappy about lower courts being willing to completely ignore SCOTUS precedent, and may be unwilling to tolerate Cannon's trampling on U.S. v. Nixon and other decisions.

Further, even if Cannon's finding is upheld, there is nothing stopping a U.S. Attorney from picking up the ball and refiling. There is also nothing stopping Joe Biden from formally nominating Jack Smith as special counsel, and getting him confirmed by the Senate. In either case, the charges could be refiled in South Florida. This would start the process over, including judge selection, and would likely result in a different judge being selected (94.2% probability). There are also some legal analysts suggesting the charges could be refiled in Washington, DC.

Throughout this process, Cannon has appeared to either be incompetent, or in the bag for Trump, or both. What happened yesterday certainly did little to disabuse anyone of those notions. (Z)

Biden Speaks, Again

Joe Biden's first post-debate test was the interview with George Stephanopoulos. His second test was the post-NATO-meeting press conference. And last night, NBC aired his third test, an interview with Lester Holt. Here it is, if you want to watch it:

Although the video is half an hour long, Biden's portion is less than 20 minutes.

Relative to the two previous tests, Biden was a little bit stronger. He tripped over his tongue a little, but was largely clear and concise. We'd say he was an 8 out of 10. Unfortunately for him, he's not going to reach too many people with this appearance, we think. The interview aired after the Republican convention, and how many times are non-politics-junkies going to tune in to see if Biden crashes and burns?

Lester Holt asked some good questions, and Biden had some good answers. For example, Holt inquired as to whether Biden regrets talking about "putting a bullseye" on Trump, given what happened over the weekend. Biden conceded that, in retrospect, he would have expressed himself differently. Not every presidential candidate is willing to admit to an ill-considered choice of words.

Holt followed that by asking if Biden felt that his criticism of Trump helped create a climate that made the assassination attempt possible. Biden's answer here was very strong; he asked back: "Look, how do you talk about the threat to democracy, which is real, when a candidate says things like he says? Do you just not say anything because it may incite somebody?" We would say that's the only correct response to Holt's question.

Beyond the assassination attempt, Biden said he still feels safe under Secret Service protection, expressed disappointment with the Aileen Cannon decision (see above), was underwhelmed by Trump's choice of a running mate, and pointedly observed that, in his view, the media is not doing enough to be critical of Trump and Trumpism. Holt was not pleased by that.

Again, we don't think this is going to move the needle much, given that so many people's attention is elsewhere. So maybe the real takeaway is that Biden clearly remains steadfast, and is showing no inclination to leave the Democratic ticket. (Z)

Today's Presidential Polls

If you want Joe Biden to step aside, these numbers aren't going to do much to change your mind. (Z)

State	Joe Biden	Donald Trump	Start	End	Pollster
Arizona	37%	44%	Jul 04	Jul 12	YouGov
Georgia	40%	44%	Jul 04	Jul 12	YouGov
Michigan	36%	39%	Jul 11	Jul 13	Marketing Resource Grp.
Michigan	40%	42%	Jul 04	Jul 12	YouGov
North Carolina	40%	44%	Jul 04	Jul 12	YouGov
Nevada	42%	46%	Jul 04	Jul 12	YouGov
Pennsylvania	40%	43%	Jul 04	Jul 12	YouGov
Pennsylvania	45%	48%	Jul 09	Jul 11	Siena Coll.
Virginia	36%	39%	Jul 03	Jul 03	Virginia Commonwealth U.
Virginia	48%	45%	Jul 09	Jul 12	Siena Coll.
Wisconsin	38%	43%	Jul 04	Jul 12	YouGov

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

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