Let the Monday Morning Quarterbacking Begin

Did Todd Blanche do a good job of trying to defend Donald Trump? He didn't get the result he wanted, but at least he gave it his best shot, right? Well, a substantial number of lawyers think he blew it. See, for example, here, here, here, here, here and here. Each author has his own ideas about what Trump and Blanche should have done better. Note that in some cases, Blanche probably told Trump what he wanted to do and Trump (stupidly) vetoed it. Basically, Trump forced his lawyers to take a page out of his own playbook: Deny everything and attack everyone. That doesn't work in court. Here are some of the highlights of the critical pieces:

• Stormy Daniels: This is a biggie. Trump insisted that he never had sex with Stormy Daniels. He made Blanche also insist on this, even though just about everyone on the planet who consumes news in any form knows this is a lie. The consequence of this insistence is that the prosecution put Daniels on the witness stand to say that she did have sex with him for 45 seconds. They needed this to establish a motive for Trump's cooking the books. Without this motive, nothing makes sense. Trump could have instructed Blanche to say: "Stormy met Donald at a celebrity golf tournament. She was instantly struck by how handsome and charming he is, and said she wanted to have sex with him. Since he is a kind person, he agreed, just to please her." Then the prosecution would not have had to call Daniels and she wouldn't have said all the damaging things she said. This boo-boo is on Trump, not Blanche.
  
  
• Lawyers on the jury: The defense was all about trying to bamboozle the jury. Unfortunately, there were two lawyers on the jury. They don't bamboozle easily and undoubtedly patiently explained to the other jurors that the case is very simple: Trump recorded reimbursements to Michael Cohen as legal expenses, which they were not. New York State law states that recording a business expense falsely is a crime. Nothing else is relevant here. Blanche should have used his peremptory challenges to prevent the lawyers from being on the jury. No defense lawyer wants a lawyer on the panel unless he is absolutely sure the lawyer is on his side (e.g., another criminal defense lawyer).
  
  
• No defense narrative: The prosecution had an easily understandable story: Trump had sex with Daniels and after the "Grab 'em by the p**sy" headlines, he didn't want this story to come out. Especially since Daniels said she felt cornered, so it was only marginally consensual. He wanted to keep her quiet so he told Cohen to pay her off and then wanted to hide the payoffs on the company books, so he claimed the payments were for legal fees. The defense had no comparable narrative, just a bunch of random attacks on some of the witnesses. Trump could have made up a story like this: "Daniels is a gold digger. We had dinner, after which she went back to her hotel room. Next day she told me I had to pay her $130,000 or she would hold a press conference saying I had raped her. I didn't want this, so I paid her. Michael is a lawyer and he arranged it all, so it was a service provided by my lawyer, hence its being recorded as legal fees." Of course, it is a total lie and Daniels would have denied it under oath, but then there would have been two competing narratives and some jurors might not have been sure which one was true beyond a reasonable doubt. Instead, there was only one narrative, the prosecution's.
  
  
• The cross-examination of Cohen: The cross went on for days. Blanche attacked Cohen for dozens of things that had no bearing on the case. Some of the things Cohen said were corroborated by David Pecker. That was pointless, because although Pecker's business was a bit sleazy, he was otherwise a knowledgeable witness. Blanche should have focused entirely on the things Cohen said for which there were no corroborating witnesses.
  
  
• The cross on the other witnesses: Trump's "attack everyone" strategy came through clearly when Blanche cross-examined each witness. For example, the prosecution put Keith Davidson, Daniels' lawyer, on the stand. Blanche could have asked him: "Have you ever seen any of the Trump Organization's records?" He would have said: "No." Then Blanche could have said: "So you don't know anything about the alleged crimes?" Davidson would have said: "No, I don't." Having a sequence of witnesses who said they knew nothing about the alleged crimes would have sowed doubt in the jurors' minds, like "Why is the prosecution putting all these irrelevant people on the stand?" Sowing doubt is what Blanche needed.
  
  
• Only one (terrible) defense witness: Since so much of the case depended on Cohen, the defense should have found witnesses who could say: "Cohen lied to me" or "Cohen cheated me" or something. Cohen was Trump's fixer. He interacted with many people on behalf of Trump. Surely many of them blame him for what Trump did. For example, Trump often stiffed vendors. He would order pianos for his hotels or hire painters, or whatever, and then refuse to pay the full bill and insist on a discount from the amount in the contract. No doubt Cohen was involved in at least some of these transactions. The defense could have gotten some of them to testify that Cohen is a double-dealing, lying, cheating scoundrel or worse and you can't believe a word he says. If the defense had paraded a dozen such people before the jurors, some of them might have begun to have doubts about Cohen's testimony, especially since Cohen's current occupation is basically making money by attacking Trump. Instead, the only substantive defense witness was Robert Costello, who was a total disaster and was read the riot act by the judge. In short, the defense completely blew it on their own witnesses.
  
  
• The summation was much too long: Blanche went on for over 2 hours. By the 30-minute mark, probably none of the jurors were really paying attention. He should have been much shorter and focused on a few items, like Michael Cohen is a convicted liar (the G.L.O.A.T. defense) and not rambled on and on.
  
  
• I didn't know about it: The approach here is to admit to Trump's approving the hush money, but claim that CFO Allen Weisselberg, a convicted felon, is the one who thought up the idea of recording the payments as legal fees. Trump could claim that Weisselberg had worked for him for decades, was a financial whiz, and he let Weisselberg handle all the financial aspects of the business. He had no idea that Weisselberg was recording the payments in the computer as legal fees. Trump could have argued that he doesn't even know how a computer works, so he couldn't even have checked on how the payments were recorded, even if he suspected Weisselberg of doing something fishy, which he didn't. After all, the crime was not paying off Daniels. That was legal. The crime was recording the payments falsely and if that was Weisselberg's doing, Trump can't be convicted for it.
  
  
• Misdemeanor vs. Felony: Blanche could have admitted right off the bat that Trump ordered the records falsified, but just to protect Melania. Mere falsification is only a misdemeanor. Only when it is done to conceal another crime is it a felony. The defense case could have been that there was no underlying crime. After all, neither Manhattan D.A. Alvin Bragg nor the feds charged Trump with any underlying crime, so with no underlying crime, it is just a misdemeanor, like a traffic ticket.
  

In short, there were a number of ways the defense could have done a much better job. Would it have mattered? Maybe. And again, it was not necessary to convince 12 people that Trump is a saint. All that was needed was to get one juror to say: "I think Trump is probably guilty, but I have some doubts and I am not going to vote to convict on account of my doubts." (V)

Opinions from Various Experts

So much for looking backwards at what might have been. Now let's look forward to see what could yet be. Politico interviewed 22 people in politics as well as some historians to get a sample of what keen observers think will happen next. Here is a brief summary of some of the more interesting views.

• Timothy Naftali (professor of history at Columbia): The guilty verdict cuts two ways. First, it shows that the rule of law prevailed, even against a rich and powerful defendant. Second, that defendant is now going to attack the rule of law and the courts in a more ferocious way than they have ever been attacked before. Most Republicans will agree (in public) that the courts are corrupt and the only way to fix them is to replace all the judges with Trump appointees. It will be a very toxic campaign and divide the country even more than it is already divided.
  
  
• Curt Mills (executive director of The American Conservative): The trial was a farce because it did not relate to anything Trump did as president. There will be recriminations forever. The genie is now out of the bottle and Americans of all stripes will later regret letting it out.
  
  
• Mike Madrid (GOP strategist): What will happen to the 20% of Republicans who have voted for Nikki Haley even after she dropped out? If the verdict locks down even half of them, Trump is in trouble. Tomorrow's primaries (see below) may give us a clue.
  
  
• Andra Gillespie (poli sci professor at Emory): The election is not about convincing anyone. It is about getting your side to turn out on Nov. 5. Trump will rally his supporters with his new martyrdom. This will give them a strong reason to turn out to protect him. Biden will talk about more abstract things, like protecting democracy. Will that be enough for the voters who dislike him on account of other issues, like Gaza and student loans? It could matter hugely.
  
  
• Catherine Ross (professor emerita at George Washington Law School): During the trial, Trump smeared the judge and everyone associated with the justice system. Some MAGA true believers might now take action against judges, FBI agents, and court personnel. Even worse, this might cause the conservatives on the Supreme Court to justify ruling in favor of Trump's immunity claims.
  
  
• Jeff Greenfield (television analyst): Each time Trump did something outrageous, like insulting war hero John McCain, insulting a Gold Star family, talking about grabbing women by the you-know-what, firing the director of the FBI, etc., he gained support. Maybe this time will be different, but 9 years of experience suggests it won't.
  
  
• Mona Charen (editor at The Bulwark): If Trump had gotten a hung jury, he would have crowed to the moon that even liberal New Yorkers couldn't convict him. That pitfall has been avoided. Also, some others—No Labels folded its tent and Robert F. Kennedy Jr. didn't get the Libertarian Party nomination, but there are so many more unknowns. The risks of things going wrong are greater than the risks of them going right.
  
  
• Liam Donovan (former NRSC aide): Now the country has one more thing to be divided about: Can you trust institutions, like the courts? For some Americans, the system worked. For others, the system is crooked and the fix was in from the start. The main fallout is that Americans will hate other Americans even more than they already do.
  
  
• Allan Lichtman (professor of history at American University): Trump's grip on his base will tighten, but his base is not big enough to win the presidency. He needs moderates and independents. This could cost him some votes among them.
  
  
• Ruy Teixeira (senior fellow at AEI): It probably won't matter. Maybe the only consequence is to force Democrats to chuck the idea that there will be some game-changing event and to get to work to beat Trump by conventional means (registering voters and getting them to the polls). There is no silver bullet.
  
  
• Charlie Sykes (former right-wing talk show host): Trump will now be nominated as a convicted felon, will campaign as a convicted felon, and will go into Election Day as a convicted felon. This tends to focus the mind. In many cases, convicted felons cannot vote, cannot serve on a jury, may not own a gun, cannot serve on the board of a publicly traded company, cannot get a security clearance, and cannot get a license to be a liquor dealer, realtor, bondsman and many other things. Some voters may come to think of convicted felons as less than full citizens. That could influence their vote.
  
  
• Leah Wright Riguer (professor of history at Johns Hopkins): Democracy is very fragile and in crisis. This verdict could be tinder for more political violence. Trump will undoubtedly stoke the flames. Nevertheless, the verdict showed that even the wealthiest and most powerful people in the country can be held accountable.
  
  
• Sarah Longwell (publisher of The Bulwark): Trump's conviction is one of the few bright spots for accountability and the rule of law lately. Even though no other trials are likely before the election, we can be grateful that the system still works. Republicans aren't going to abandon Trump en masse, but a few thousand former Trump voters might stay home, vote third party, or even vote for Biden. In half a dozen swing states, that could matter.
  

In other words, some people think the rule of law held and others think the whole thing was rigged from the start. Our biggest takeaway is that the culture wars just added a new front: Are the courts rigged? (V)

Let the Grandstanding Also Begin

To get even with the Democrats for convicting Dear Leader (at least in their view), eight Republican senators have vowed to oppose all of Joe Biden's nominees and all of his legislation. If they are serious, they could completely clog up the Senate so it can't do anything. A lot of routine stuff is done by unanimous consent. But if even one senator objects, everything has to go through regular order, which has many opportunities for slowing things down or blocking them altogether. The blockade can affect appointments in many departments, some of them not really controversial (like U.S. Marshals).

The eight Republican senators are Marsha Blackburn (TN), Mike Lee (UT), Roger Marshall (KS), Marco Rubio (FL), Eric Schmitt (MO), Rick Scott (FL), Tommy Tuberville (AL) and J.D. Vance (OH). Rubio and Vance are believed to be on Trump's short list of possible veeps, although Rubio is problematic because he lives in Florida and so does Trump. One of them would have to move to make that work.

Typical of what these senators are saying is what Roger Marshall said: "Joe Biden and his army of partisan hack judges have weaponized our judicial system against his political opponent. Words are not enough. Call on your Senator to join our fight. We will block every single Biden judicial nomination until America votes on November 5th." Does he mean it? Maybe someone should point out that if he does this, there will be nothing to stop the Democrats from blocking everything a President Trump will want to do. The only difference is that Trump will then appoint acting nominees, bypassing the Senate, let them take action, and hope the Supreme Court will uphold this arrangement.

This new stance is a reversal of what some of the recalcitrant senators have just done. Rubio and Scott, for example, recently returned the "blue slips," approving Biden's picks for U.S. District judges in Florida. (V)

It's Not about Addition, It's about Subtraction

John Harris, a founding editor of Politico, wrote a long piece in the magazine on the likely political fallout of Donald Trump's conviction. He starts with two truths. First, for any other politician, a criminal conviction would be the end of the line. Full stop. Second, Trump's supporters will cling more tightly to Trump than before, in part because they see him as a victim just like they see themselves.

But Harris' next observation is that Trump's base is large enough to win a Republican nomination but not large enough alone to win a general election, no matter how enthusiastic it is. Trump needs to win over moderate Republicans and independents who think that HE is the deplorable (Hillary didn't get it exactly right), but who also hate Joe Biden. The verdict won't transform the race and doesn't mean that suddenly huge numbers of voters will start caring about democracy. But it does mean that many voters who already disliked Trump but disliked Biden more will get a reminder of why they don't like Trump.

In this context, one line Biden has flogged mercilessly can come into play now: "Don't compare me to the Almighty. Compare me to the alternative." Biden may now add: "It is always chaos with Trump, chaos and putting himself first. How can he do what is best for the country and do what is best for you when he will spend his entire 4 years obsessed with his legal issues, trying to settle scores, trying to stay out of prison?"

There are two demographics Biden will now focus on. One is highly educated, highly informed, traditional Republicans, most of whom can be counted on to vote. They like people such as Sens. Susan Collins (R-ME), Lisa Murkowski (R-AK) and Mitt Romney (R-UT). They don't like Biden because he is too old or too anti-business or too pro-tax. The conviction could change the balance about who is the lesser of two evils. Some of these people may abandon Trump as a result of the conviction and Biden can focus on trying to help them to do that.

The other is low-information, less reliable voters. They don't read newspapers, watch TV news, or get political information from any other source. They are not interested in politics and frequently don't vote. But news as big as Trump's conviction will filter through to some of them via friends, social media, and other indirect sources. If all they know about Trump is: (1) he used to be president and (2) he is now a convicted criminal, that could motivate them to vote this time. Reaching the first group is easy: Advertise in the Wall Street Journal, CNN, and other reputable media outlets. Reaching the second group requires some creativity (Instagram? TikTok? Other?). In any event, Biden's first goal has to be getting some educated Republicans to abandon Trump, even if they decide not to vote at all (which helps Democrats downballot). (V)

Republicans Have an Election Strategy: Try to Win after Election Day

Donald Trump's campaign and the RNC seem to be more focused on hiring "election integrity" lawyers and poll watchers than on knocking on doors. The RNC will hire more people for challenging the election results than for any other department it has. The lawyers will gather evidence for the lawsuits that will inevitably follow a Trump loss. They will try to get the courts to invalidate the election results in any states Trump loses.

That may not be so easy, though. The Electoral Count Reform Act states that the certificate of ascertainment, which lists the legal electors, must be signed by the governor or some other official (invariably the secretary of state) if state law requires that. The problem for Trump is that most of the key officials in the swing states are Democrats. Here is the list:

State	Governor	Secretary of State
Arizona	Katie Hobbs (D)	Adrian Fontes (D)
Georgia	Brian Kemp (R)	Brad Raffensperger (R)
Michigan	Gretchen Whitmer (D)	Jocelyn Benson (D)
Minnesota	Tim Walz (D)	Steve Simon (D)
Nevada	Joe Lombardo (R)	Francisco Aguilar (D)
New Hampshire	Chris Sununu (R)	David Scanlan (R)
North Carolina	Roy Cooper (D)	Elaine Marshall (D)
Pennsylvania	Josh Shapiro (D)	Al Schmidt (R)
Wisconsin	Tony Evers (D)	Sarah Godlewski (D)

Gov. Brian Kemp (R-GA) and Georgia Secretary of State Brad Raffensperger (R) have already proved they are straight shooters. New Hampshire could be problematical, but it has only 4 EVs . Nevada has 6 EVs, but if Gov. Joe Lombardo (R-NV) tries to play games, in the resulting lawsuit, the Democratic secretary of state will be on the other side. He could say: I am the person who counted the votes and Biden won.

The RNC strategy is not only post-election, but also pre-election. For example, it has filed lawsuits to prevent ballots that are postmarked before Election Day but arrive afterwards from being counted. Many states have specific laws allowing ballots that arrive within a certain window after Election Day to be counted. Would the Supreme Court dare tell the states these laws are somehow unconstitutional, when the Constitution says nothing about the matter other than the state legislatures shall determine how the electoral votes are cast? Another possible issue is counting or not counting ballots where the voter has failed to write the date on the envelope.

The DNC is also building a legal team and filing lawsuits already. For example, it is challenging a 2023 law in North Carolina that makes it harder to register on Election Day, something traditionally allowed in North Carolina.

The RNC, in particular, is making a bigger effort to win on legal grounds than the DNC. But the downside of this is that the DNC has more money to go out and get voters to cast ballots for Joe Biden. In the long run, trying to get more votes may be a better strategy than trying to get the courts to reverse an election after you have lost it. (V)

We Might Learn Something Tomorrow

There will be lots of new polls this week trying to assess the effect of Donald Trump's conviction. But tomorrow, we could get a very different view on the matter. Three states will hold Republican primaries tomorrow: Montana, New Jersey, and New Mexico. Montana is a deep red state, but unfortunately (for us) it has open primaries so Democrats can vote there. New Jersey and New Mexico have closed primaries: Only Republicans can vote there. A question to which we will have an answer on Wednesday is: Will the vote for Nikki Haley and other non-Trump Republicans go up (or down) compared to primaries before the conviction? That could be interesting information if the results are different from the last few (closed) primaries. (V)

Manchin Has Registered as an Independent

Sen. Joe Manchin (I-WV) is confounding the Democrats once again. He blocked much of Joe Biden's legislative agenda, presumably to make him more palatable to the West Virginia voters, so he could get re-elected. Then he announced that he is not running for re-election. If he planned to retire from the beginning, he could have demanded 100 tons of pork for his state, gotten it, and then retired in a blaze of glory. He could have ensured that every town of over 10,000 people in West Virginia had a Joe Manchin sports center, a Joe Manchin senior center, a Joe Manchin post office, a Joe Manchin junior high school, and a Joe Manchin veterans clinic. He would be the most famous person in West Virginia history since the guy who discovered that coal burns. All he had to do was ask, but he didn't.

Now he has left the Democratic Party and registered as an independent. This could allow him to run for the Senate or governor as an independent. The filing deadlines are in a few weeks. He could go for either office—or simply retire from politics at 76. He likes to keep people guessing, but beating Gov. Jim Justice (R-WV) for the Senate would be very tough. On the other hand, no unbeatable candidate has filed for governor, so Manchin could win that job, which he once held. The Republican gubernatorial nomination went to AG Patrick Morrisey, but he is no electoral powerhouse. Manchin beat him for the Senate in the 2018 general election and could presumably beat him again for governor. But will he even run? Manchin is a bit of an enigma. What does he actually want? (V)

Poll on Verdict Shows Country is Still Badly Split

A quickie Ipsos/ABC poll conducted after the verdict came down in the hush-money case shows that 50% think the verdict was correct and 49% want to see Trump end his campaign. However, 47% think the charges were politically motivated. Additionally, 51% of respondents think that Trump did something wrong intentionally, 12% think he did something wrong, but not intentionally, and 19% think he did nothing wrong.

On the favorability question, Trump's favorability rating stands at 31%. Joe Biden, at 32%, edges him out. Clearly, a lot of people do not have positive feelings about the candidates. Consequently, the election could come down to who the double-haters hate more. An ominous sign for Trump is that among the double-haters, 65% think the verdict was correct. Among independents, 52% think the verdict was correct.

CBS also sponsored a poll conducted by YouGov. It asked if Trump got a fair trial. Nationally, 56% said yes and 44% said no. But the breakdown was exceedingly partisan. A full 96% of Democrats said it was fair vs. 54% of independents, and only 14% of Republicans. On the question of whether Trump is fit to be president, 40% said yes, 51% said no, and 8% were not sure. On the question of whether Trump should go to prison, 45% said no, 38% said yes, and 17% were not sure. (V)

Polling Is Tough

The professional association for pollsters, the American Association for Public Opinion Research, held its 79th annual conference recently in Atlanta, with dozens of sessions, workshops, panels, short courses, and idea groups on many topics related to public opinion research. Many of the sessions were on specific topics, such as "Integrating Text-to-Web into Election and Political Surveys," "Issues that Divide: Attitudes Toward Policing and Immigration," "Messaging That Matters, Contact Strategies and Materials," "Gender and Sexual Identities: Trends and Measurement," "Innovations in Question and Scale Development," and "We Can Do It: Sampling Rare and Unique Populations." Sessions ran 90 minutes and had 4 papers. Hundreds of papers were presented. The president of AAPOR is Jennifer Agiesta, who runs polling for CNN. We don't have the attendance figures for 2024, but in 2023, 1,411 people attended.

One of the topics that came up over and over was how to increase response rates. Also, how to make sure all subpopulations are adequately sampled, especially those whose views may differ from the majority's. The conclusion is that no one contact mode works anymore. In the old days, say 30 years ago, random-digit dialing worked because everyone had one phone at home and most people answered it when it rang. Those days are not coming back.

SSRS discussed an experiment that recruited respondents different ways, including phone, SMS text message, and postcard. Potential respondents were given six ways to respond: webpage URL, QR code to scan, text message, e-mail, a phone number to call (inbound dialing) and SSRS calling them (outbound dialing). Text messaging is becoming increasingly popular, especially text messages that contain a link to a web page where the questions are. There is also an economic benefit to this mode: Sending a text message is cheaper for the pollster than calling the respondent and talking to him or her for 15 minutes. One problem with text-to-web, though, is that many people have been told by multiple sources never to click on links in text messages.

One result presented is that younger respondents liked interactive voice response calls while older ones preferred talking to human beings rather than to a computer.

Another finding is that sending people postcards increased participation by Republicans. Apparently, postcards are a medium they understand and trust. Web responders tended to be Democrats. Several papers noted that reaching voters of color and people with lower educational attainment worked best when an actual human being called them on the phone.

One problem that has plagued pollsters is the shy-Trump voter effect. Ipsos reported that by adding a sentence to the pitch saying that they were especially interested in hearing from people from underrepresented groups boosted the number of Republicans who took the survey. The University of Pennsylvania tried putting an American flag in the invitations to try to get patriotic Americans to sign up. It did give a more balanced sample—but it also reduced the total number of responses.

Given that the pollsters know that using multimode methods to contact respondents is not going to give a representative sample at all, weighting becomes extremely important—in fact, critical. SSRS found that rather than asking people for their partisanship, asking them specifically who they voted for in the past gave a better result, even though some people don't remember who they voted for in the past. These are typically the swing voters who decided at the last minute and who are crucial. Another problem is that each presidential cycle, about a quarter of the voters didn't vote last time, either due to aging in or being a marginal voter who votes only when the spirit moves him or her.

Will any of these new strategies help? We don't know and they don't know. (V)

Mexico Elects a Woman as President

Mexico holds its elections on Sundays, which makes it easier for many people to vote. Makes sense to us. Yesterday the presidential election resulted in a landslide victory for Claudia Sheinbaum, the first woman to lead the country in its more than 200 years of independence.

Sheinbaum is a leftist, like her mentor and the current president, Andrés Manuel López Obrador. Sheinbaum stuck closely to his popular program. Among other things, she supports programs that help the elderly and the poor. She also wants the Supreme Court justices to be elected by popular vote. Sheinbaum was formerly mayor of Mexico City. She's clearly got something that eluded Rudy Giuliani in 2008. Mexican presidents serve a single 6-year term. They cannot be reelected.

Sheinbaum is not your standard garden-variety politician. She has a Ph.D. in energy engineering from the National Autonomous University of Mexico but her doctoral research was largely done at the Lawrence Berkeley National Lab in California. She has written over 100 published papers and two books on the environment and sustainable development, mostly in English. She is strongly in favor of policies to remediate climate change. Given the issues on the border between the U.S. and Mexico, we would not be surprised if Joe Biden invited her to the White House fairly soon. Being on good terms with the U.S. president is generally a plus for Mexican politicians. It is not hard to envision a deal between the two countries. The U.S. could provide funds and equipment to beef up border security between Mexico and Guatemala. After all, Mexico doesn't want Central Americans pouring into their country, either. (V)

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