House Votes to Ban TikTok

Who said bipartisanship is dead? Yesterday, Speaker Mike Johnson (R-LA) and Rep. Nancy Pelosi (D-CA) joined hands, sang "Kumbaya," and voted together in a valiant, but likely futile, attempt to ban TikTok unless it is sold to an American company. Those two don't typically vote the same way on bills. The vote was 352-65, reflecting a bipartisan consensus on going after China in an election year. In a rare defeat in the House, Donald Trump urged Republicans to vote "no," but most of them voted "yes," except those running for vice president. Other naysayers included Rep. Ruben Gallego (D-AZ), Katherine Clark (D-MA), and Rep. Alex Mooney (R-WV). In the end, 15 Republicans and 50 Democrats voted to defeat the bill.

Representatives who voted "aye" were largely concerned about giving data on 170 million Americans to China. Representatives who voted "nay" were largely concerned about free-speech issues. As a result, the vote cut across party lines in an unusual way.

The bill will face a tougher fight in the Senate, where it could be filibustered. If the bill passes both chambers, Joe Biden said he will sign it. If the bill becomes law, the owner of the app, ByteDance, will probably sue (on First Amendment grounds) and as usual the Supreme Court will decide. After all, its mandate is to decide everything, all the time.

However, there is at least a small chance that Microsoft, Oracle, and other companies get into a bidding war and one of them makes a bid so attractive that ByteDance decides to take the money and run. After all, with tens of billions of dollars, they can afford to hire a couple of programmers and write a new app. Also, if Donald Trump wins the election, he will rail against China and then probably ask Chinese President Xi Jinping how much he will pay for Trump to refrain from enforcing the law banning the app. (V)

Judge Scott McAfee Throws Out Six Charges in the Georgia RICO Case

Judge Scott McAfee—who is presiding over the sprawling racketeering case in Georgia involving Donald Trump, Rudy Giuliani, and 17 others (four of whom have pled guilty already)—yesterday threw out six of the 41 charges as being overly broad. However, he told the prosecutors they could resubmit with more focused charges if they wished. Three of the charges related to Trump, so now he has to deal with only 10 charges in Georgia and 88 in all, at least for the time being. That's... quite the number for him.

Some of the dropped charges related to the fake-elector scheme in Georgia. Some of the defendants were charged with pressuring the legislature to appoint fake electors. McAfee believes there is little doubt that they did this, but says the indictment is not specific enough about exactly which law that action violates. Also, he wants to know more specifically which statute or constitutional provision Trump violated when he asked Georgia Secretary of State Brad Raffensperger to "find" 11,780 more votes. McAfee ruled that the lack of specific information hinders the defendants in preparing their cases. The judge will allow the prosecution to submit a superseding indictment or appeal his decision, but either action could delay the case significantly, so it probably won't go to trial this year if they do. However, the judge did not throw out the core allegation of conspiracy, so even without these six charges, the case could go forward as is.

Georgia law requires indictments to be very specific, along with dismissal of charges that contain any ambiguity. McAfee is a former federal prosecutor and is not hostile to prosecutors in general. He just said that he is applying Georgia law as it stands now and six of the charges are not specific enough about precisely which statute(s) were violated.

McAfee also said that a ruling on whether Fulton County DA Fani Willis must be removed from the case will be forthcoming later this week. That almost surely means that he has made a decision and is just tinkering with the wording of his ruling. (V)

Impeaching Biden Is Dead, So What Now?

In case you thought the Republicans in the House were busy legislating—writing a bill to ban abortion nationwide, allocating funds to beef up border security, or drawing up a constitutional amendment to cancel Art. I, Sec. 9. Clause 8 of the U.S. Constitution, perhaps—how wrong you were. They have no interest even in show legislation, let alone working with the Senate Democrats to actually pass laws. No, all they care about is grandstanding with their base to show how much they hate Joe Biden. Now that the key witness in the case to impeach Biden turns out to be a Russian stooge, they need a Plan B. Or a Plan C. Or, if they get desperate, maybe a plan X. Of course, that would probably set off the app on Speaker Mike Johnson's (R-LA) phone.

Plan B seems to focus on finding a way to connect Hunter Biden's somewhat iffy business practices and work as a not-quite-top-of-the-line artist to his Dad. The problem is that there isn't any connection. While Hunter's life is clearly not as pure as the driven snow, he doesn't hold public office and he didn't rope Dad into any of his schemes. To the extent that he took a Ukrainian energy company for suckers and extracted a lot of money and gave them nothing in return, that is something Donald Trump should probably cheer about. What a clever businessman!

Plan C seems to be about actually passing laws—laws about tough financial disclosure for presidents and family members and changes to the rules about working for foreign countries. Also laws about handling classified documents. We humbly suggest the former could be entitled the "Jared Kushner Financial Disclosure Act" and the latter could be entitled "The Donald Trump Act for Handling Classified Documents." However, we are not confident either of these bills could get any Republican votes in the House, even though all the Democrats would probably sign on.

Plan D is referring Hunter Biden to the DoJ because, well, the base would like that even though the DoJ has no obligation to act on such referrals and surely would not in this case because the Republicans can't supply a whit of evidence that Hunter committed any crimes, beyond those he's already charged with (and will face trial for starting on June 3).

But doing nothing could be painful. The angry base is demanding someone's head on a pike and impeaching DHS Secretary Alejandro Mayorkas isn't going to do the job because the base can't pronounce his name and doesn't know who he is.

Some House members want a vote on impeaching Biden to soothe the mob, even if they know it will fail. Rep. Andy Biggs (R-AZ) said: "Instead of losing every time by surrender, I would rather try, fight and if you lose some you lose some, but you have a chance to win." However, in this case, the chance of winning (by which he means a mere impeachment, since conviction is out of the question) is basically zero because the Biden 17 aren't going to commit political hara-kiri to please the base. (V)

Progressives Are Angry with Biden over... Abortion!

For many Democrats, abortion is an easy issue. It is between a woman and her doctor. It is not between a woman and her congressman. But Joe Biden has been somewhat hesitant to come out and say that point blank, and progressives are starting to feel that he is going to make a distinction between "good" abortions (because the woman was raped) and "bad" abortions (because the couple didn't bother to use contraception). They are very unhappy with this backsliding and feel that the government should not play any role in deciding when a woman gets an abortion. It's up to the woman and her doctor and no one else.

Also, when Biden talks about reproductive health care, he often talks about IVF rather than abortion on demand. While progressives have no problem with any of the IVF procedures, Biden's talk about it seems to muddy the waters for them. It is making them nervous. Jamila Perritt, president of Physicians for Reproductive Health, said: "The president is part and parcel of the culture of stigma and shame that surrounds abortion care." Some progressives have noted that he skipped the word "abortion" during his SOTU speech, even though it was in the prepared text.

Biden has been around the track a couple of times and knows exactly what he is doing. He realizes that the electorate is more conservative than progressives would like it to be and he needs a lot of votes from people who are not progressive, especially Black and Latino voters, many of whom are fairly conservative, actually. Biden is also a practicing Catholic and he has never been at ease discussing abortion at any time during his long career. As a young senator, he said that Roe v. Wade went too far, for one example. To take another, as a member of the Senate Judiciary Committee, he focused his questions to Supreme Court nominee Robert Bork on contraception, not abortion. Biden only became fully pro-choice during the 2020 campaign.

Biden's campaign staff is pushing the idea of "actions speak louder than words." As president, he has worked to expand access to abortion and his recent budget has language to repeal the Hyde Amendment, which would allow federal funds to be used for abortion. Biden also knows that progressives have nowhere else to go. Sure, they could vote for Jill Stein or Cornel West, elect Donald Trump, and then cry in their wine when he signed a bill to ban all abortions nationwide. Biden knows that very few of them will take the risk.

One problem the Democrats have that the Republicans don't is that a lot of Democrats want it all. If Biden does something on abortion or Israel or something else they don't like, they start threatening to stay home or vote third party. Sometimes they actually even do it. This has been true for years, going back to the 92,000 people who voted for Ralph Nader in Florida in 2000, thus allowing George W. Bush to win the state by 537 votes and giving him the presidency.

All Republicans know that Donald Trump is a racist and sexist, has committed sexual assault multiple times (and has even admitted it on tape), has invited Russian President Vladimir Putin to invade any country he would like to add to the Russian Empire, changes his fundamental views as often as some people change their underpants, has been married and divorced more times than their pastor approves of, and has many other flaws. But he gave them three conservative Supreme Court justices, so they overlook his many, many character and policy failings. Many Democrats don't do that. It's one strike and you're out. You're bad on Israel? I'm not voting. (V)

Trump Is Not the Only Meanie Who Punishes His Opponents

Anyone who crosses Donald Trump in any way can expect a swift punishment, often a career-ending punishment. Just ask former representatives Liz Cheney and Adam Kinzinger. But Trump isn't the only politician who could be mistaken for a mafia boss. When Gov. Ron DeSantis (R-FL) ran for president, he was a small fish in a big pond. Now back in Florida, he is a big fish in a much smaller (alligator-infested) pond. And he hasn't forgotten which Florida politicians have endorsed Donald Trump. In fact he has a list of them and is about to act on it.

State senators and state representatives are especially vulnerable if they have endorsed Trump. Many of them have pet projects in their districts that they care about deeply and want funded. DeSantis knows this and he is not a man who lets bygones be bygones. He is planning to cut hostile legislators' projects out of the state budget. Florida has a line-item veto, so DeSantis can punish legislators who didn't support him with surgical precision. Probably they didn't think about that when they supported Trump. Or maybe they did, but felt they were caught in a vise and supporting Trump meant losing their pet projects but supporting DeSantis meant facing a Trump-endorsed primary opponent. It's a tough call.

The 14 lawmakers who supported Trump have good reason to fear DeSantis. They have seen him in action for 5 years now. In 2022, he made the president of the state Senate, Wilton Simpson, stand on stage with him while he cut $3.1 billion out of the state budget, including $50 million to widen a road in the Senator's district. Later, when Simpson became commissioner of agriculture, he hacked at Simpson's priorities. State Sen. Joe Gruters (R), a long-time Trump ally, said that DeSantis cut millions of dollars of funding for his district on account of his support for Trump. DeSantis denies this and merely says he supports fiscal responsibility. Absolutely no one is saying that DeSantis is suffering from memory loss.

Once in a while, politics trumps revenge, though. State Rep. Randy Fine (R), the only Jewish Republican in the state legislature, flipped from DeSantis to Trump during the campaign. He asked for $20 million for security at Jewish day schools after the Hamas attack on Israel. Even though Fine wrote a scathing op-ed in The Washington Times attacking DeSantis for not doing enough to combat antisemitism in Florida, DeSantis, who is extremely pro-Israel, will probably grant his request as politically expedient.

Nevertheless, the majority of state legislators endorsed DeSantis and are probably now breathing a sigh of relief as DeSantis won't go after their projects and districts. Some of them even flew to Iowa to campaign for him. With Trump, loyalty goes only one way. With DeSantis, that is not necessarily the case and he could reward people who were with him when he needed it. (V)

Democrats Win One in North Carolina

North Carolina is going to be one of the top battlegrounds in 2024. Democrats are hoping that with the help of Lt. Gov. Mark Robinson (R), an all-around bigot, sexist, antisemite, and fire-breathing Trumper who is running for governor, they can put the state in Joe Biden's column. The Republican-controlled state legislature is definitely worried about that and has been for a while. Consequently, it seized control of state and local election boards. These could make decisions on absentee ballots, ballot harvesting, and many other election issues to help one party or the other. Democrats sued.

A bipartisan panel of state judges has now ruled that the legislature has no power to seize the election boards as they are part of the executive branch and not the legislative branch. Having the legislature run the election boards would be a violation of the separation of powers. The judges ruled that the plan represented "the most stark and blatant removal of appointment power from the governor." In other words, the state Constitution gives the power to appoint officials to various offices to the governor, not to the legislature. Its job is to pass laws, not make appointments.

This is a victory for the Democrats, as the new law would give the boards an even number of members, half Republicans and half Democrats, which could leave them paralyzed on all major decisions, such as certifying an election. The current boards have five members, all gubernatorial appointees with staggered terms. With an odd number of members, it is usually possible to make decisions, albeit sometimes 3-2.

However, this ruling is not the last word on the matter. The case will probably be appealed to the state Supreme Court, where Republicans have a majority. They could easily reverse the lower court's decision. (V)

A New Litmus Test of Trump's Veep: Will You Refuse to Certify a Democratic Win?

Now that the current Supreme Court has ruled that Sec. 3 of the Fourteenth Amendment doesn't count because Congress has not passed enabling legislation, Trump might be thinking that the Twenty-Second Amendment might also be invalid for the same reason, so if he wins a second term, there is nothing stopping him from running and winning a third term in 2028. Then, when the electoral votes are counted on Jan. 6, 2029, the president of the Senate could create a constitutional crisis and a friendly Supreme Court could say that the Twenty-Second Amendment is not self-executing.

As candidates for vice president on the Republican ticket jockey for position, a new litmus test has arisen: Candidates are now having to answer the question of whether they would have certified the electoral votes on Jan. 6, 2021, had they been President of the Senate then. This is a proxy question for: "If Donald Trump does not like the results of the 2028 election, will you certify the electoral votes as they are counted on Jan. 6, 2029?" Hint: The correct answer is: "No."

The 2029 situation won't be exactly the same as the 2021 situation because in 2022, Congress passed the Electoral Count Reform Act (ECRA). The new law specifies in more detail what happens after the states send their electoral votes to Congress. Among other things, even to raise an objection to any state's electoral votes, one-fifth of each chamber must lodge an objection, up from one member in each chamber in the original 1887 law. It also specifies that the role of the president of the Senate is "ministerial," although it doesn't define what powers, if any, go with that. It also says Congress must defer to the states. In addition, the law says that the slate of electors submitted by each state must be signed by the executive authority of that state. The legislature of the state can determine who has that authority, typically the governor or the secretary of state, and it can't change the rules after the election. Finally, the ECRA requires (unspecified) security features to be built into the actual document (the certificate of ascertainment) that is sent to Congress to prevent forgeries. This link gives more detail on the whole process, especially on the state's end of it.

As a consequence of the ECRA, on Jan. 6, 2025, President of the Senate Kamala Harris and whoever may be president of the Senate on Jan. 6, 2029, will have a lot less freedom in rejecting electoral votes, unless they don't mind breaking the law and seeing what happens next. Trump's litmus test is effectively asking the candidates if they would be willing to break the law if he asked them to, which would create a constitutional crisis in the process. Maybe he is thinking that with a friendly Supreme Court to make the final decision, he would be willing to create a constitutional crisis in 2029 and wants a veep who would be willing to go down that road. (V)

Trump's Effort to Recall Top Wisconsin Republican May Have Failed

Donald Trump hates Wisconsin Assembly Speaker Robin Vos (R) because in 2020, Vos refused to take any action to decertify the presidential electors or appoint a fake slate. Trump asked his supporters to organize a recall petition to force a vote on recalling Vos. It now appears after an initial count that the petition fell 945 signatures short of the required number of valid signatures, even though the organizers submitted 4,000 signatures more than the number required.

But the situation is actually quite complicated. The signatures have to be from registered voters in Vos' district. But what is Vos' district? In December, the state Supreme Court ruled that the maps for the state legislature were gerrymandered in violation of the state Constitution and ordered the legislature to draw new maps, which it did, but they don't take effect until Nov. 2024 (i.e., the upcoming election). Now the question comes up: Do the requisite number of signatures have to come from voters in Vos' old district or his new one, which is somewhat different? Also, if the final count says there is a recall election, which boundaries should be used?

The six-member Wisconsin Election Commission voted on Tuesday to kick the ball upstairs and ask the state Supreme Court to sort this out. However last week Gov. Tony Evers (D-WI) asked the Court the same thing and it said "nah, we don't want to do that." Who knows what happens next? For the time being, Vos continues to be speaker, though. (V)

Mike DeWine Backs Dolan in Ohio Senate Primary

One of the most contested Senate races in the country is in Ohio, where Republicans would love to knock off Sen. Sherrod Brown (D-OH). But first they need to pick a nominee. There are three serious candidates:

• Frank LaRose, the sitting secretary of state
• Bernie Moreno, a wealthy Mercedes-Benz car dealer who has been endorsed by Donald Trump
• Matt Dolan, a not-so-Trumpy wealthy state senator whose family owns the Cleveland Guardians baseball team

Gov. Mike DeWine (R-OH) has now jumped in and endorsed Dolan on account of that good old "candidate quality" thingie. He wants a Republican who can beat the popular Brown and doesn't think the Trumpy Moreno, who has lots of money but no experience in elected office, can do the job. He has seen enough Trump-endorsed Senate candidates lose winnable elections to know how this movie could end if Moreno gets the nomination. Needless to say, this puts DeWine and Trump at odds, with each of them potentially campaigning for opposing candidates. Former Ohio senator Rob Portman has also endorsed Dolan.

Are the Democrats ratf*cking here? In the immortal words of Sarah Palin: "You betcha." They are running ads telling voters not to vote for Moreno because he is a true conservative and is backed by Donald Trump. Will child psychology work with Republican voters once again? It worked just great in California, so why not Ohio?

All recent polling shows Dolan and Moreno close, with LaRose far behind. As of Dec. 31, 2023, Dolan had raised $9.1 million, Moreno had raised $7.3 million, and LaRose had raised $1.9 million. It could go either way, with DeWine now trying to get Dolan over the finish line because he would be a far stronger candidate in the general election than Moreno. The primary is next Tuesday. (V)

Boebert Is Bucked

The decision by Rep. Ken Buck (R-CO) to leave Congress next week—instead of Jan. 3, 2025, as he originally planned—is a kick in the teeth to Rep. Lauren Boebert (R-CO). Boebert was already planning to run for Buck's seat in November, but now she has a new choice. Buck's decision triggered a special election, which Gov. Jared Polis (D-CO) has scheduled for June 25, the same day as the Colorado congressional primaries.

This means that Boebert had to decide whether to be a candidate to finish Buck's term at the same time she is already running in the GOP June 25 primary for the 2-year term beginning Jan. 3, 2025.

Running in the special election isn't so easy, as there is no primary election. The 2022 state conventions pick the Democratic and Republican nominees, respectively and they have to do it by April 1. She is not that well known in CO-04 because her current district, CO-03, is in Western Colorado and Buck's district, CO-04, is in Eastern Colorado. The districts are very different. CO-03 is in the Rocky Mountains; CO-04 is flat farmland, so the local issues are very different. Here is the map of the Colorado districts.

If Boebert announced for the special election and got the nomination, she would probably win because CO-04 is R+13. But then she would have to resign from her CO-03 seat, causing Mike Johnson to tear out his beautiful hair because his already thin margin would become one seat smaller. This would make her even less popular in her caucus than she already is.

Boebert has already made her decision, though. She will not run in June in the special election for the 6-month term. Johnson's barber issued a sigh of relief when he got the word.

As an aside, look at all those straight lines outside Colorado. Maybe Piet Mondrian was a consultant when the map was drawn. Another thing to note is that Colorado has borders with five states that greatly restrict abortions and is only 35 miles from a sixth one (Texas). Colorado law allows abortions up to 26 weeks of pregnancy in all cases and up to 34 weeks when there is a medical reason for one. If you are looking for a good business opportunity, setting up an abortion clinic in Colorado is something you might want to consider. (V)

Note: As a reward for reading the entire posting, we'll tell you what Art. 1, Sec. 9, Clause 8 is. It is the one that says the federal government can't issue titles of nobility, so the Republicans can't make Donald Trump King of the United States unless a constitutional amendment repeals that clause. Of course, that is a secular matter, which means he is still eligible to be promoted to Donald Christ. Or St. Donald of Mar-a-Lago. Or the Donny Lama.

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