Trump Legal News: The Trial (Day 9)

The courts in New York do seem to take a lot of half-days and days off. However, Judge Juan Merchan was back at it yesterday and he and his staff worked a full 9-5. Here are the big storylines:

• That Will Be $9,000; Please Pay the Cashier as You Leave: Merchan finally issued a ruling on the first 10 violations of the Trump gag order alleged by DA Alvin Bragg. The Judge overlooked one of the 10, but found Trump in criminal contempt (another presidential first!) on the other nine, and ordered him to pay $1,000/each, which is the maximum financial penalty allowed by New York law. Merchan also said that Trump was required to take the offending posts down from his boutique social media site (which he did), that the other four violations of the gag order would be considered on Thursday, and that Trump better start honoring the order or he'll be jailed.
  
  The various legal pundits agree that even if Trump is found to have violated the gag order four more times, it will only result in another $4,000 in fees, because the former president was not in contempt of court when those violations took place. However, if he moves on to (alleged) violation #15, then all bets are off, because Trump has been formally warned he's in criminal contempt. Quite a few legal pundits, like CNN's Norm Eisen, believe that Merchan will have no choice but to order Trump to spend a night in the slammer.
  
  We are not legal experts, but we are inclined to agree that $1,000 slaps on the wrist are not going to get it done from here on out, and that if the gag order is to mean anything, Merchan has to be willing to impose the more serious penalty. The problem here is that Trump wants to be jailed for a night, so he can play martyr. Heck, he hasn't even spent time behind bars yet, and he's already fundraising off the contempt ruling. Our view is that it's going to take a more serious bit of jail time to actually make an impression on Trump. If he has to spend a week in the hoosegow, eating their (non-McDonald's) food, using their showers and toilets, sleeping on their beds, then that's going to get to him much, much more than an overnight stay.
  
  
• Bluff Called: Trump has claimed throughout the trial that his fondest desire is to attend the graduation of Barron Trump on May 17, but that the mean old judge won't let him. Yesterday, however, Merchan said that the trial is moving along rapidly enough that the former president is free to join Barron on graduation day. Now Trump can't complain about the matter anymore and he's going to have to actually show up to the graduation. If he doesn't it will be front-page news across the country, and will not please Merchan.
  
  
• We Are Family?: Yesterday's session marked the first time a Trump family member has shown up to support their patriarch. It was Eric Trump, who isn't even among The Donald's three favorite children. But the defendant will have to take what he can get.
  
  
• Same Old Song and Dance: Trump is reportedly very angry with lead attorney Todd Blanche, blaming Blanche for his various setbacks, due to the lawyer not being aggressive enough. Trump has also refused to pay some of Blanche's bills. Hmmmm... where have we heard this story before? And how could Blanche be so foolish as to not demand a retainer for, say, $1 million before the trial started?
  
  
• Rock-a-Bye: Trump keeps falling asleep in court, and his defense lawyers have reportedly tried "several devices" meant to keep him awake. Nobody seems to know exactly what devices are being referred to, however, which certainly invites people to use their imaginations.
  
  
• One-Two Punch: There were two witnesses who testified yesterday. One of them was Gary Farro, a banker who used to handle Michael Cohen's money. The other was Keith Davidson, who represented both Karen McDougal and Stormy Daniels, and who negotiated the fees they were paid. In other words, it's the link in the chain right before Cohen and the link in the chain right after him. It's not too hard to guess what link might be coming next.

That's the latest. They'll be back at it tomorrow; today is yet another day off. (Z)

Kennedy Wins

No, not that Kennedy. We'll get to that Kennedy in the next item. The one in this item is state Sen. Tim Kennedy (D-NY), who is now Rep.-elect Tim Kennedy (D-NY). Yesterday, he won the special election to replace Democrat Brian Higgins in NY-26.

The district is D+9, and so Kennedy's win was expected, but the result was actually a laugher, as he crushed Republican candidate Gary Dickson 68.2% to 31.8%. We don't know why Dickson did so badly; chalk it up to the wonkiness of special elections, perhaps. In any event, the House is now 217 R, 213 D, with five vacancies. Three of those vacancies will likely be filled with Republicans between May 21 and June 25, one vacancy (WI-08, left open by the resignation of Republican Mike Gallagher) will remain unfilled until the next Congress, and the disposition of the last vacancy (NJ-10, left open by the death of Democrat Donald Payne Jr.) is still to be determined. (Z)

New Poll Says Kennedy Is Helping Trump in Swing States

Yesterday saw the release of the latest The Hill/Emerson poll, and if you accept their numbers, the message is clear: Robert F. Kennedy Jr. is an asset to the Trump campaign in key swing states.

Here's a rundown of the numbers; the first column is the result when respondents could only choose Donald Trump, Joe Biden or "undecided"; the second column is the result when respondents could choose from those three options, along with Kennedy and other independent and third-party candidates:

State	No Third Parties	With Third Parties
Arizona	Trump +4	Trump +4
Georgia	Trump +3	Trump +6
Michigan	Trump +1	Trump +1
Nevada	Trump +1	Trump +5
North Carolina	Trump +5	Trump +9
Pennsylvania	Trump +2	Trump +4
Wisconsin	Trump +2	Trump +5

As you can see, with Kennedy and the other non-major-party candidates added in, Trump holds steady in two swing states and picks up ground in five.

This said, let's look at the numbers a different way, taking the "third-parties included" numbers from the new poll, since the actual election will include third parties, and comparing them to the 2020 actual results:

State	DT Poll	JB Poll	Net		DT 2020	JB 2020	Net
Arizona	44%	40%	Trump +4		49.1%	49.4%	Biden +0.3
Georgia	45%	39%	Trump +6		49.2%	49.4%	Biden +0.2
Michigan	43%	41%	Trump +1		47.9%	50.6%	Biden +2.7
Nevada	42%	37%	Trump +5		47.7%	50.1%	Biden +2.4
North Carolina	46%	37%	Trump +9		49.9%	48.6%	Trump +1.3
Pennsylvania	45%	41%	Trump +4		48.7%	50%	Biden +1.3
Wisconsin	45%	40%	Trump +5		48.8%	49.5%	Biden +0.7

In 2020, and in 2016 for that matter, Trump had a pretty hard ceiling of around 49% in the swing states. In this poll, and in others, he is approaching that cap, checking in around 45% or so. Is he likely to improve on this ceiling, in his third election, with his various looming criminal matters, and with the clear existence of a disaffected Republican minority, as reflected in the 15-20% of the vote that Nikki Haley keeps getting? Readers may reach a different conclusion, but we think 49% (or so) is not only his ceiling, but that he might even struggle to climb back to that particular plateau. A ceiling of 47% or so would not surprise us one bit.

If you accept that supposition, then the primary question is how many of the third-party/independent/undecided voters will stay that course when it comes time to cast their ballots. Maybe the great majority of them will. Maybe 2024 will be like 1992, and the winning candidate will only collect a share of the popular vote in the low-to-mid-40s. Certainly, there are plenty of people who think Trump is a sleazeball, and who are also loath to vote for Biden because of his age, or because of the economy, or because of what's going on in the Middle East.

That said, elections don't usually follow the 1992 pattern. Usually, the people who say they are going to vote third-party/independent think better of that once it comes time to cast their ballots, and decide to support the lesser of two evils. As you can see above, in 2020, the actual percentage of voters who stuck to their non-major-party guns was around 2%, and not the 15-20% that the polls currently predict. And not the 15-20% that polls predicted at this point in the 2020 cycle, incidentally.

So, we think that's the real question this year: Is this going to be a black-swan election or a white-swan election? In general, voters start to achieve firmness on their plans after the conventions, so the polling should be much more instructive once we hit mid-September. Until then, however, the future is hazy. And since Donald Trump continues to bash Kennedy, you know that the Republicans' in-house number-crunching is telling them that RFK is not going to help Trump, once all the dust has settled.

Oh, and one other thing, while we are at it. On or around August 1, we will reach a point where Kennedy literally cannot win the election because he won't be on 270 EVs' worth of state ballots. Will he keep going? And how will he answer the obvious question: What is your goal here, since you cannot be elected president? (Z)

Trump Continues to Remind Everyone of Who He Is

How many times are we going to have to utilize the Maya Angelou quote this cycle: "When someone shows you who they are, believe them the first time"? We probably should make a macro of that, or something.

In any event, as he campaigns around his court schedule, Donald Trump gave two good reminders as to the kind of person he is, and the kind of president he would be, if elevated to the White House a second time. Both were in a pair of interviews he did with Time's Eric Cortellessa.

First up, and getting much more attention, was Trump's claim/promise that, if it came down to it, he would be willing to deploy the U.S. military to evict undocumented immigrants from the United States. The former president has suggested his openness to doing this before, but never has he promised it so clearly and directly. Trump said that it is necessary to be more extreme, because the immigration situation is so much worse than it was when he was president.

There is the small problem of the Posse Comitatus Act, however, which makes it illegal to use the U.S. army against civilians. Cortellessa pointed this out, and apparently Trump has been fed an answer by the Federalist Society, or the Heritage Foundation, or one of the other right-wing groups that seeks to turn the U.S. into a military theocracy. His justification is that if people are not citizens, they do not count as civilians, and so it's open season upon them. This is a very dubious interpretation of the word "civilian," and it is not likely that most military commanders would obey Trump's orders. That said, it only takes one Michael Flynn type. And is there really any doubt that, if Trump is able to use the army against immigrants, he would then move on to using it against, say, college protesters?

Cortellessa also held Trump's feet to the fire on abortion, pressing for an answer on whether or not Trump would veto a national abortion ban, should one cross his desk. The once-and-would-be-future president hemmed and hawed, and said there was no reason to worry about that question, since there is no way an abortion ban would get through Congress. That was as much as the reporter could get out of Trump, despite repeating the question several times. Obviously, if Trump won't even commit to vetoing an abortion ban, then he certainly isn't going to do anything if members of his administration use various non-legislative tools to effectively ban the procedure. It's hardly a secret that he doesn't care one way or the other, and that he'll do whatever best serves his political needs, but the interview served to underscore that with bright red lines. (Z)

Biden's Interview with Stern Was Smart Politics

Donald Trump wasn't the only 2024 presidential candidate to sit for a high-profile interview in the last week. As we've already noted, Joe Biden did one too, with radio talker Howard Stern. The biggest story to come out of the interview, and the reason we already wrote about it, was that Biden said he's game for a presidential debate.

Beyond the debate angle, however, Mediaite's Sarah Rumpf had a piece yesterday pointing out that the interview was very smart politics. Her main argument is that "he's too old" is one of Biden's biggest liabilities this campaign cycle (it was probably THE biggest, until the Israel mess came along), and the more that people see and hear him speaking normally on radio and TV, the more it will blunt that line of attack.

We think Rumpf has the right of it, although to her assessment we would add two additional observations. The first is that the Stern interview was a steady supply of softballs. And that's optimal for Biden, because if he just wants people to see him talking and behaving like a normal fellow without dementia, there's no need for him to deal with tough questions of the sort that are most likely to trigger his stutter. He should be going on any show that will tee it up for him, which means sports programming (say, dropping in on the booth for Monday Night Football), or late night/daytime talk shows, or maybe Sesame Street.

Our second observation is that the Stern show, in particular, was ideal, because it reaches a bipartisan audience of mostly younger men, the sort who don't always vote. That kind of audience is gold; the people who compile political e-mail lists would give their firstborn to be able to reach that demographic. Biden can't always hit that particular sweet spot, but he can sometimes (again, something like dropping in on the booth for Monday Night Football).

Incidentally, while we are on the subject of debates, both sides are already setting conditions for their participation. The President's campaign has made clear that steps must be taken to prevent the candidates from shouting over each other (i.e., a kill switch on each candidate's microphone). Meanwhile, the former president's campaign is complaining that the debates are scheduled too late in the year, since they will theoretically take place after early voting has begun. Of course, the whole point of the schedule is to give voters information relatively close to the election, while the timing of the conventions makes it difficult to have the debates much earlier than they already are.

In any case, readers can decide for themselves whether these concerns are reasonable or not, and whether they are "problems that need to be fixed" or if they're really just "excuses so I can avoid the debate without looking like I'm avoiding the debate." (Z)

A Bad Day for Obnoxious Republican Representatives

Who are the two most offensive members of the House Republican Conference? We can see a case being made for Reps. Lauren Boebert (R-CO), Paul Gosar (R-AZ) and Jim Jordan (R-OH), but we think that if a vote were held, Reps. Marjorie Taylor Greene (R-GA) and Matt Gaetz (R-FL) would come out on top. Really, the Conference is an embarrassment of riches, when it comes to obnoxious people. Or maybe we should just write "Really, the Conference is an embarrassment." We are confident that even some Republican members would admit, with sadness and off the record, that is true these days.

Anyhow, the dynamic duo each suffered setbacks yesterday. Starting with Greene, the cat is now officially out of the bag: House Democrats say they will save Speaker Mike Johnson (R-LA) if a motion to vacate is called. Undoubtedly, the blue team is not thrilled to be sorta partners with a guy who supported Donald Trump's efforts to steal the election, but you have to work with the people you've got, not the people you wish you had. And, as they say, "my enemy's enemy is my friend."

It's not exactly clear how many Democrats would vote in support of Johnson. Presumably just enough, and only members from purple or reddish districts, like Rep. Marie Gluesenkamp Perez (D-WA). Still, with Greene struggling to scrape together even a handful of Republican votes, the fact that the Democrats won't vote against Johnson unanimously is fatal to the motion-to-vacate plans. Clearly, this arrangement was put in place during the negotiations over the Ukraine/Israel funding, and clearly Greene completely missed that fact. She told reporters yesterday that she's holding off on the MTV for now. Maybe she'll eventually move forward, just for show purposes, but either way, Greene just became a lot less important. Not less obnoxious mind you, just less important.

Meanwhile, just before the Florida filing deadline, Gaetz drew a primary opponent: Navy pilot Aaron Dimmock, who was recruited by, and has the financial backing of, former speaker Kevin McCarthy's political network. The far-right Daily Caller reported the news with the headline "Matt Gaetz Gets Primary Challenge From McCarthy-Aligned BLM Supporter," while Gaetz himself got on eX-Twitter and decreed: "I'm excited to welcome Missouri-based DEI instructor Aaron Dimmock to the campaign. Aaron is not in Kansas City anymore. This is Trump Country. Our pronouns are USA and MAGA." C'mon, folks, you forgot "pedophile," "trans," "communist" and "Antifa." Let's keep our eye on the ball here.

We haven't the faintest idea what Dimmock's chances are. Sometimes, these far-right show horses aggravate their constituents to the point that they're thrown overboard in favor of a more normal conservative politician (See: Cawthorn: A Tragicomedy in Three Acts). That said, Gaetz comes from a deep-red district (R+19), and districts like that tend to have a lot of voters who enjoy owning the libs. So, maybe they are thrilled to have the biggest show horse since Mr. Ed as their representative. (Z)

Judges Strike Down New Louisiana Map

You win some, you lose some, apparently. Just when you thought the Louisiana congressional map was settled, and that there would be two majority-Black districts, think again. Yesterday, a three-judge panel tossed the new map, deciding by a vote of 2-1 that it was an impermissible racial gerrymander that discriminates against white people. Surely, you cannot possibly guess which way the two Trump-appointed judges on the panel voted, and which way the Clinton-appointed judge voted.

It is not clear what happens next, since in theory, there currently is no legal district map for Louisiana. The district court is going to hold another hearing to ponder that question. Meanwhile, there is likely to be an emergency appeal to the U.S. Supreme Court, which may or may not take the case. Thanks to Louisiana's jungle primary, there are still a few months left until there absolutely must be a resolution. That said, pro-Republican/pro-white forces managed to do enough dickering around in 2022 that the 5 R, 1 D map was used, despite it already having been declared an illegal racial gerrymander. It's very likely that we'll see the same outcome in 2024, meaning Louisiana will probably have to wait until 2026 for a 100% legitimate, court-certified district map. Or maybe 2028. 2030? (Z)

Today's Presidential Polls

These are the very polls we address in the item above. We'll add two more things here: (1) the gap between the two candidates is within the margin of error, and (2) if the pollster's model of the electorate is off, that's going to affect all the polls. (Z)

State	Joe Biden	Donald Trump	Start	End	Pollster
Arizona	48%	52%	Apr 25	Apr 29	Emerson Coll.
Georgia	49%	51%	Apr 25	Apr 29	Emerson Coll.
Michigan	48%	52%	Apr 25	Apr 29	Emerson Coll.
North Carolina	48%	52%	Apr 25	Apr 29	Emerson Coll.
Nevada	49%	51%	Apr 25	Apr 29	Emerson Coll.
Pennsylvania	49%	51%	Apr 25	Apr 29	Emerson Coll.
Wisconsin	48%	52%	Apr 25	Apr 29	Emerson Coll.

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

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