Trump Legal News: The Trial (Day 18)

The Trump criminal fraud trial has completed its 18th day and its fourth week; here are the big stories from yesterday:

• Cohen Takes Some Damage: After botching his cross-examination of Michael Cohen on Tuesday, lead defense attorney Todd Blanche was out for blood yesterday, and he drew at least a few drops, here and there. Most notably, he returned to testimony Cohen gave earlier this week about a phone call between him and Trump bodyguard Keith Schiller. Cohen had claimed the call was about the Stormy Daniels situation, but it seems to have actually been about harassing phone calls that were upsetting Trump's then-fixer. This exchange made it appear as if Cohen is less than truthful, or at least that his memory is not great.
  
  Blanche also established that while Cohen had no retainer agreement with Trump at the time of the Stormy Daniels payoff, he (Cohen) often worked without a retainer agreement. That theoretically weakens the argument that the payment to Cohen could not possibly have been for legal work.
  
  
• The End Is Nigh?: The prosecution is done calling witnesses, and thus far the defense says it only plans to call one (an expert in campaign finance). If everyone sticks with that plan, closing statements could begin on Tuesday of next week, and the jury could have the case by Thursday.
  
  
• The House Is in Da House: Since time may be running out to show support for the Dear Leader, a whole bunch of members of the House of Representatives hightailed it to New York yesterday. The list includes Reps. Andy Biggs (AZ), Lauren Boebert (CO), Eli Crane (AZ), Matt Gaetz (FL), Bob Good (VA), Anna Paulina Luna (FL), Ralph Norman (SC), Andy Ogles (TN) and Mike Waltz (FL). After court adjourned, they played their part in the "dodge the gag order" scheme, attacking Judge Juan Merchan's family, while also slurring the witnesses as "a felon" and "a hooker."
  
  But can we be sure this is a gambit to get around the gag order? Yes, we can now. Sen. Tommy Tuberville (R-AL), who really is in the running for the title of "dumbest person in Congress" (especially now that Louie Gohmert is retired), appeared on one of the apparently endless supply of right-wing talk shows on Wednesday, and explained that part of the reason he traveled to New York for the trial was "to overcome this gag order." That is known as saying the quiet part out loud.
  
  
• Presidential Erections: Maybe Emily Litella was on to something, after all. Anyhow, in what is undoubtedly the most important storyline of the day, a Trump supporter released dozens of phallic-shaped mylar balloons outside the courthouse, each of them adorned with the face of one of the key members of the court or the prosecution case. "I'm an artist, so what do I do? Return the humiliation favor by humiliating these dicks," said Scott LoBaido, who staged the display. We have no doubt that Leonardo da Vinci is somewhere right now, wishing he'd thought of that. Curse those Medicis!
  
  
• Damages?: No, not that kind; this isn't a civil trial. Polling is starting to suggest that Trump is losing, narrative-wise, when it comes to the trial. The newest from Yahoo!/YouGov says that roughly half of respondents are following the story, and that people believe the prosecution's version of events over Trump's version of events by roughly a 3-to-1 margin. For example, 45% of respondents believe Trump had relations with Stormy Daniels, 14% do not. More importantly, 40% of respondents thought that an indictment and trial are justified, while only 3% (yes, 3%) thought that course of action was not appropriate.

No trial today, because of Barron Trump's graduation, but they'll be back at it on Monday.

Also, we're at work on the item about the debates, but today's post is already near 5,000 words, and we try not to go over that. Plus, we try (even if we don't always succeed) to be live by 4:00 a.m. PT. So, we'll get to the debate item next week. They're not going anywhere. If you would like to participate in our debate insta-poll, the link is still live. And for those working on the headline theme, the headline of the debate item was going to be: "Trump vs. Biden: Two Months, Two Debates." (Z)

In Congress: This Week in Performative Politics

The members of Congress have done quite a bit in the last few days, when it comes to stunts that are not likely to produce any tangible benefit for the American people. Let's run down the three biggest.

First up, over in the House, Speaker Mike Johnson (R-LA) moved forward with his bill meant to force the White House to give bombs to Israel. It passed, 224-187, with 16 Democrats crossing the aisle to vote with all the Republicans.

That this bill had little to do with helping Israel, and everything to do with being able to smear Democratic House members as anti-Israel/antisemitic, is indicated by the voting pattern on the blue team's side of the aisle. Nearly all the Democrats who voted for the bill, like Mary Peltola (D-AK) and Marie Gluesenkamp Perez (D-WA), are from very swingy districts. Meanwhile, most of the most staunchly pro-Israel Democrats in the House, among them Reps. Kathy Manning (D-NC), Dean Phillips (DFL-MN), Brad Schneider (D-IL) and Debbie Wasserman Schultz (D-FL) not only did not vote for the bill, they issued a statement that reads, in part:

...House Republicans are attempting to weaponize Israel for political gain by bringing partisan bills to the floor in an effort to split Democrats and the American Jewish community. Rather than working with Democrats to develop bipartisan legislation that meets our national security objectives and Israel's security needs, Republicans' latest bill lacks a single Democrat co-sponsor, mischaracterizes President Biden's comments and steadfast support for Israel, removes oversight and accountability for arms sales, and threatens to withhold operating funds and salaries from the Office of the Secretary of Defense, the Office of the Secretary of State, and the National Security Council at a time the United States and our allies face growing threats across the globe.

We reject such shameless and dangerous attempts to use Israel and the American Jewish community as political pawns, while compromising Israel's—and perhaps our own—security in the process.

Senate Majority Leader Chuck Schumer confirmed yesterday that he will not bring the bill up for a vote, so that means this little bit of political theater has reached its conclusion.

Meanwhile, the Jim Jordan-led (R-OH) House Judiciary Committee would very much like to hear the recordings that former special counsel Robert Hur made during his interview with Joe Biden. Does Jordan wish to engage in some sort of legitimate oversight (especially since Hur already declined to bring charges), or does he want to cherry-pick some choice excerpts from the recordings and release them to Fox and Newsmax? Readers can decide for themselves which it might be.

In any event, AG Merrick Garland has refused to turn over the recordings, and the White House has asserted executive privilege over them. With nowhere else left to turn, presumably, the House Oversight Committee voted 24-20 late yesterday to hold Garland in contempt of Congress. The next step is for the entire House to take a vote; a majority would be required to refer the matter to the Department of Justice for potential prosecution. The vote would have happened yesterday, except that too many Republican members were in New York for Donald Trump's trial (see above).

Should the House vote in favor of finding the AG in contempt, a decision on whether or not to prosecute Merrick Garland would be made by... Merrick Garland. Given that Peter Navarro and Steve Bannon have been in the headlines this week, due to their convictions for contempt of Congress, one detects more than a faint whiff of "we'll show the world that Democrats play by a different set of rules for Democrats than for Republicans." In any case, we think it unlikely that the AG will decide to prosecute himself. He could hand the decision off to an underling, but we similarly don't think any second- or third-tier DoJ staffer is going to order that their boss be prosecuted.

Meanwhile, over in the other chamber, the Democrats who run the show there also know a thing or two about political theater. Yesterday, Schumer announced that he would resurrect the bipartisan border bill—the one that was created under the guidance of Sen. James Lankford (R-OK), and then died when Donald Trump said he didn't want Biden to get a win on this issue. Schumer does not expect the bill to secure passage in either chamber, much less both. When it fails, the White House will be able to blame Republicans in Congress, and then will be in a position to take action via executive order.

And that brings us to the end of today's Playbill. (Z)

The Supreme Court: Just a Minute There, Fifth Circuit

Get ready for a sentence you don't see every day: Yesterday, writing for the 7-2 majority, Associate Justice Clarence Thomas (R-SCOTUS) handed a victory to Sen. Elizabeth Warren (D-MA) at the expense of the ultra-conservative Fifth Judicial Circuit. In the ruling, Thomas (and his six colleagues) decreed that the Consumer Financial Protection Bureau's (CFPB) funding structure is entirely legal, despite a Fifth Circuit ruling to the contrary.

The central issue in this case (i.e., CFPB v. Community Financial Services Association) is rather abstruse. For many federal agencies, Congress appropriates a set amount of money each year. For others, including CFPB, Congress sets a cap, and authorizes the agency to draw funds from the Federal Reserve, as needed, up to that cap. Conservatives, many of them in the thrall of corporate interests who don't like oversight, seized on this difference in hopes of having the CFPB, which was the brainchild of Warren before she became a senator, gutted.

Note that when we write "seized on," we don't mean once, or twice, or even three times. On at least half a dozen occasions, anti-CFPB interests tried to make their theory fly in federal court, and each time they were smacked down. Finally, they managed to arrange things to get the case before the Fifth Circuit, and the judges there stood on their heads in order to uphold the plaintiffs' silly argument and (theoretically) slay the CFPB.

Needless to say, the four conservatives who were part of the majority in this decision (Thomas, Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Amy Coney Barrett) are more than willing to engage in some legal gymnastics on occasion. However, the Fifth Circuit has been kinda out of control for the last several years, especially since Donald Trump stocked it with a bunch of fire-breathing right-wingers. This is a circuit that includes James C. Ho, Matthew J. Kacsmaryk AND Drew B. Tipton, which is about as untethered-to-the-law a trio as you can come up with. Anyhow, the Supremes are getting tired of having to clean up Fifth Circuit messes, and are also cognizant that the judicial branch's reputation is already shaky, and the Fifth Circuiters are not helping. Put it this way: If you're a right-wing judge, and you've lost Clarence Thomas, then you've really gone off the deep end.

So, the CFPB is safe. Meanwhile, expect the Supremes to crack back on at least a few more Fifth Circuit rulings in the near future, just to remind everyone who is, and who is not, in charge. (Z)

Abbott: From 25 Years Down to 1

Speaking of lawlessness and the Southern judicial system, Gov. Greg Abbott (R-TX) had a big announcement yesterday: He has issued a pardon for Daniel Perry, the outspoken racist who killed 28-year-old Air Force veteran Garrett Foster (who, note, was white) at a Black Lives Matter protest. That means that instead of serving 25 years to life, Perry will be out after serving just 1 year in prison. And, you'll be relieved to hear, Perry's right to own a gun will be restored.

In his announcement, Abbott explained: "Texas has one of the strongest 'Stand Your Ground' laws of self-defense that cannot be nullified by a jury or a progressive District Attorney." He also noted his opinion that DA José Garza "demonstrated unethical and biased misuse of his office in prosecuting Daniel Scott Perry." We should also add, in interest of providing the full story, that Abbott acted on recommendation of the Texas State Board of Pardons and Paroles. So, it could be that Abbott was in the right here.

On the other hand, every member of the Board of Pardons and Paroles was appointed by... Greg Abbott. Further, while his announcement suggests his decision was governed by what they learned during their investigation, the Governor said over a year ago, before he knew all the facts (or even most of the facts) that he was determined to pardon Perry. It's also the case that the indictment was approved by a grand jury, and the verdict was reached by a unanimous petit jury, after a trial in which numerous witnesses testified that Foster, though armed, did not raise his weapon, while Perry, who was in a vehicle, could have driven away and been out of the way of harm. Oh, and in the weeks before the shooting, Perry took to Facebook to share valuable thoughts like this one: "It is official I am a racist because I do not agree with people acting like animals at the zoo."

In other words, it looks to us like this was about pandering to right-wing Texans much more than it was about justice. And if you lived in Texas right now, or in any other red state, and you were tempted to take a shot at a left-wing protester, wouldn't you feel pretty empowered to do so? It's hardly inconceivable that a gun-wielding individual could, say, show up at one of the pro-Palestine protests on one of the Texas campuses, wade into the middle of everything, and then take down a few "animals." Don't you think such a person would feel pretty good about their chances of either an acquittal or a pardon?

Meanwhile, to add a tinge of irony to the situation, a new poll from progressive advocacy group Unlocking America's Future finds that three-quarters of Texans think that an "extreme conservative agenda" has taken control of the state, while 77% of voters (and 62% of Republicans) think the politicians in Austin are primarily "working for their wealthy campaign donors." Hmmmmm... if only the voters of Texas had some way to do something about politicians who they don't feel represent their interests (and no, we don't mean "shoot them"). (Z)

I Read the News Today, Oh Boy: Heat of the Moment

For last week's headline theme, the Friday hint suggested watching the first 15 seconds of a video we linked to, for the song "Black" by Sons Of Kemet, in which lead singer Joshua Idehen recites a poem. On Saturday, we added: "The most famous example of the theme, in our view, was definitely incorporated into yesterday's headlines, and involves Vincent Price." And now, the answer key, from reader N.S. in Los Angeles, CA:

Ah, thank you for the second hint. In hindsight, I should've gotten it without that. All the songs feature a section of spoken word:

• Trump Legal News: The Trial (Day 14)—Pink Floyd's "The Trial" features vocals delivered as recitative.
  
  
• Trump Environmental Policy: We're Gonna Need a Bigger... Bottle of Sunscreen—In Baz Luhrmann's "Everybody's Free (To Wear Sunscreen)," all the lyrics are spoken.
  
  
• Electoral-Vote Presidential Tracking Poll, May Edition: Are We In For a Thriller—Michael Jackson's classic features a "rap" (that's how it's credited on the album) by Vincent Price.
  
  
• I Read the News Today, Oh Boy: Black Magic—"Black," by the Sons of Kemet, is entirely spoken.
  
  
• This Week in Freudenfreude: Nights in White Satin—A beautiful Moody Blues song that concludes with a spoken poem written by drummer Graham Edge.
  
  
• This Week in Schadenfreude: (You're My) Soul and Inspiration—A Righteous Brothers song with a spoken bridge.

Another fun one. I feel like I should've deduced the theme on the first day with the "Thriller," "Nights in White Satin," and "Sunscreen" clues. Had you used one of the Boyz II Men songs from the early 90s that also used the spoken word bridge device, I think I would've actually gotten it.

Thanks, N.S.! Note that: (1) The Luhrmann song is known under numerous titles, but "Sunscreen" by itself is one of them; (2) the Beyoncé song "Bigger" also has a spoken-word component, and so also works for that one; and (3) the Moody Blues song only has a spoken-word component on the album version.

Here are the first 30 readers to get it right:

1. M.B. in Albany, NY
2. J.F. in Fayetteville, NC
3. E.S. in Cincinnati, OH
4. S.F. in Hutto, TX
5. J.C. in Trenton, NJ
6. J.S. in Germantown, OH
7. D.O. in Brookline, MA
8. E.K. in Arlington, MA
9. N.H. in London, England, UK
10. N.S. in Los Angeles
11. W.S. in Tucson, AZ
12. R.K. in Bel Air, MD
13. D.H. in Portland, OR
14. B.R.M. in Aurora, CO
15. M.T. in Wheat Ridge, CO
16. M.K. in Bothell, WA
17. E.S. in Chesterfield, MO
18. M.Z. in Sharon, MA
19. J.N. in Las Vegas, NV
20. T.D. in Chicago, IL
21. M.H. in Ottawa, ON, Canada
22. D.M. in Oakland, CA
23. B.B. in Avon, CT
24. E.P. in Long Beach, CA
25. D.B. in Farmville, VA
26. O.B. in Santa Monica, CA
27. K.T. in New York City, NY
28. A.J. in Nashville, TN
29. M.C. in Portland, OR
30. L.S. in San Francisco, CA

It was a tough theme, and so it was a good long time before the 30-correct-answer threshold was passed.

For this week's theme, it relies on one word per headline (always to the right of the colon). It's in the Trivial Pursuit category Science and Nature, and we'll give you the hint that you'll need some time to figure it out. If you have a guess, send it to comments@electoral-vote.com, ideally with subject line "May 17 Headlines." (Z)

This Week in Schadenfreude: Giuliani about to Lose a Second Job

In just about 20 years, Rudy Giuliani went from being America's Mayor to being America's A**hole. The litany of sleaziness is long; he's stiffed people out of money, he's ruined the lives of Shaye Moss and Ruby Freeman, he's apparently a serial sexual harasser, he's told lies by the bushel and, oh yeah, he has actively worked to subvert democracy.

In short, there are relatively few Americans alive today who are more worthy of some schadenfreude than he is. And so, we are pleased to announce that his election lies are about to cost him his second job in the span of a week. As we noted earlier this week, WABC has already dumped him and his $400,000/year salary. And now, Newsmax is about to do the same, costing Giuliani another six-figure salary (reported to be between $100,000/year and $150,000/year).

Both employers have warned their former/soon-to-be-former employee over and over that he needs to stop telling lies about the 2020 election, because they don't want to end up on the hook for a seven- or eight- or nine-figure judgment. And Newsmax has gone even further than that. Giuliani's show, America's A**hole Live, errr... we mean America's Mayor Live, isn't actually live. And in postproduction, the channel has been editing out his lies and conspiracy theories, so as to be able to broadcast something that won't get them sued. But apparently, they're tired of it. And since he apparently can't or won't change, this relationship, like so many others in Giuliani's life, is headed for a divorce.

While facing a series of judgments that he is entirely unable to pay, Giuliani has now been deprived of virtually every income stream he had—his various shows, his consulting firm, his legal practice. Soon, he'll have to make do on Social Security and selling Cameo videos for $300 a pop. And to think some people claim karma isn't real. (Z)

This Week in Freudenfreude: Living in the 18th Century

Some readers may be familiar with the books of A.J. Jacobs. His shtick, which we assume was inspired by the old Slate "Human Guinea Pig" column, is to commit some significant amount of time (usually a year) and effort to adhering to a particular way of living, or to performing a particular task. Titles from him include Drop Dead Healthy: One Man's Humble Quest for Bodily Perfection, The Know-It-All: One Man's Humble Quest to Become the Smartest Person in the World and The Year of Living Biblically: One Man's Humble Quest to follow the Bible as Literally as Possible.

His latest experiment has just been published as The Year of Living Constitutionally: One Man's Humble Quest to Follow the Constitution's Original Meaning. As you might infer from his previous titles, he committed to living as much of a 1790s lifestyle as was possible for a resident of modern-day New York City. And yesterday, he posted a brief essay from the book in which he talks about the challenges of exercising his right to carry an 18th-century musket everywhere (turns out it's very heavy, it's hard to get gunpowder that won't cause the gun to explode, and it aggravated his wife Julie).

Since he was armed with a musket in accordance with the Bill of Rights, Jacobs also endeavored to form a militia:

Incidentally, in case the gun control side is correct I figured I should express my Second Amendment right to form my own well-regulated militia.

It didn't go well. The modern version of New York's militia is called the New York Guard and is part of the state government. Apparently they don't want any competition.

Simply asking Julie to start a militia with me might count as a felony crime. The New York State military legal code states that it's a felony to "assemble or conspire to assemble with one or more persons as a paramilitary organization."

I figured I'd better get permission before conspiring to assemble. A friend of a friend is a lawyer for New York State, but she declined to talk to me. I resorted to emailing Governor Kathy Hochul through the New York State web page to ask for permission. Governor Hochul sent a response surprisingly quickly.

"Thank you again for writing and for helping to make New York the beautiful and diverse state that it is. It's my great honor to serve you as we lead the way forward."

So ended my quest to form a militia.

So, both schadenfreude and freudenfreude this week are about New York politicians. That wasn't by design.

Anyhow, the clear subtext here is "Does originalism make any sense at all?" And in case anybody missed it, Jacobs spells it out in the essay:

I've recently become fascinated by the debate over how we should interpret our nation's founding document. How much should the meaning evolve, and how much should it be beholden to the past and tradition? Should we search for the original meaning, or is the Constitution a living document? It's a vastly important question. The Supreme Court's view on this has guided their decisions on women's rights, gun rights, environmental regulations, and religion.

His ultimate conclusion, not surprisingly, is that originalism makes little sense, particularly when it comes to the Second Amendment. Especially since, as Jacobs points out, part of gun ownership in the 1790s not only involved making sure your guns were registered, but making them available for inspection, in your home, by government officials. Presumably, a lot of the "Don't Tread on Me" folks today would not be pleased by that.

We think this is a pretty clever, thoughtful, and not too off-puttingly aggressive way to engage with a very important political and legal question. And that is why we pass it along.

Have a good weekend, all! (Z)

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