Trump Legal News: Today's the Day

It's like a new Star Wars movie. People started lining up Monday afternoon in hopes of securing a seat for Tuesday's closing arguments in the Donald Trump criminal fraud case. Do you think Maggie Haberman pays someone to hold a spot for her? Or is she going to be camping out on the sidewalk with all the rest?

The prosecution's closing argument will undoubtedly be the more coherent, since they have the more straightforward narrative to tell: Donald Trump freaked out after the Access Hollywood tape went public, was scared witless that if Stormy Daniels went public it would deal a mortal blow to his campaign, and so paid her off via Michael Cohen, illegally misrepresenting the payments as being for legal services.

The defense's closing argument will be all over the place, in part because they haven't really put forward a competing narrative, and in part because all they really need to do is poke a few holes in the prosecution's case. To that end, the defense will focus on a few things, some of them internally inconsistent. Team Trump will argue that Cohen is not credible, for example, but will also rely on his testimony to argue that he really was doing legal work for Trump, and that he and Trump often had informal retainer agreements that were not committed to paper. The defense will also assert that Trump's involvement in the scheme has not been proven, and that whatever did happen does not rise to the level of being a crime.

By all indications, there is zero chance of a straight acquittal for Trump, so what his attorneys will be shooting for is a hung jury. Hence the everything-but-the-kitchen-sink approach to the defense's closing: It doesn't matter if their arguments are internally inconsistent, or even if they don't really comport with what was said in court, all they need is one thing that persuades one juror.

It's not going to be easy to get a hung jury, since the pressure on a holdout (or on two holdouts, or even three) will be immense. After all, if nine or ten or eleven people were convinced, that probably means something. Further, everyone wants to go home and get back to their daily lives, as opposed to spending endless days cooped up in a jury room in Manhattan. For what it is worth, MSNBC legal analyst Neal Katyal has been following the case closely, and he thinks that a conviction is "all but certain." CNN legal analyst Norman Eisen has been following the case closely, as well, and he puts the odds of a conviction at 80%. In short, it appears more likely than not that Trump is convicted, but don't be too surprised if there's a hung jury. Even if you split the difference between Katyal and Eisen, and say that the odds of a conviction are 90%, well, 1-in-10 chances come to pass all the time.

It is at least possible that there will be a verdict today, if the closings are on the short side, and if the jury moves quickly. But probably not, since they have a bushel of counts to consider. We cannot find confirmation of this, but we assume that deliberations will continue Wednesday, despite the usual day off court, since Judge Juan Merchan will probably prefer the jury continue uninterrupted, and since he can still do his usual other stuff on Wednesday while the jurors chat.

Needless to say, if we get to the end of the week without a verdict, then the odds of a hung jury increase dramatically. So, it's going to be a tense week for all involved. (Z)

Predictable Things Happen In Gaza

There are two things that were a near 100% certainty when it comes to the situation in Gaza. The first is that the Benjamin Netanyahu administration was going to attack Rafah. The external pressure on Netanyahu NOT to do that has been enormous, but the internal pressure on him to move forward was even more enormous. If he did not make a move into Rafah, which is where the remaining leadership of Hamas is holed up, then the far-right elements of his governing coalition would have rebelled against him, and Netanyahu's government would have fallen. Not only would that take the PM out of power, it would move his criminal trials right back to the front burner. To paraphrase Michael Corleone: "I don't care what Netanyahu says about a deal, he's gonna invade Rafah, that's it. That's the key for him. Gotta get Rafah."

Of course, Rafah is chock-full of regular civilian residents, and of refugees. That brings us to the second 100% certainty, and the reason the international community was trying to stop or limit a Rafah invasion: It was unavoidable that, in an attack, innocent people would die.

This weekend, both things came to pass. On Sunday night, Israel launched an attack that was targeted at two senior Hamas leaders, who were indeed killed. However, in the process, the Israeli Defense Forces also "accidentally" landed a few missiles in a refugee camp, killing 45 civilians, many of them women and children. "Despite our utmost efforts not to harm innocent civilians, last night, there was a tragic mistake," Netanyahu explained afterward. "We are investigating the incident and will obtain a conclusion because this is our policy."

We put "accidentally" in quotations there not because we believe that Israel deliberately bombed civilians. However, we do believe that keeping civilians out of harm's way was an impossibility under the circumstances. So, the Netanyahu administration made its choice, and the PM's post hoc protestations ring hollow. Certainly, you should not hold your breath waiting for a "conclusion" other than "Sometimes things like this happen. What're ya gonna do?"

Condemnation from the international community, from the leaders of France and Turkey and Germany, to U.N. Secretary General Antònio Guterres, to activist groups like Doctors Without Borders, was immediate and unsparing. For example, U.N. Under-Secretary-General for Humanitarian Affairs and Emergency Relief Martin Griffiths said: "Whether the attack was a war crime or a 'tragic mistake' for the people of Gaza, there is no debate. What happened last night was the latest—and possibly most cruel—abomination."

That said, our interest is in the response of the Biden administration, which is now officially between a rock and a hard place. On one hand, the White House said that attacking Rafah without taking adequate steps to protect civilians was a "bright-red line," and would result in arms being withheld. On the other hand, even the slightest move in that direction outraged Republicans and some pro-Israel Democrats, and led to withering attacks on the President.

At the moment, Team Biden is reportedly assessing the situation, and whether the "red line" was actually crossed. Better to take a considered position, we suppose, than to issue forth with a knee-jerk response. But the country is going to be watching to see what the White House says, and the President is going to need to use all of his political skills to come up with... something. (Z)

Nate Cohn Finally Adds the Asterisk

Donald Trump is doing pretty well in polls right now. That is particularly true of swing-state polls, and is even truer of Sun Belt swing-state polls. And no poll has more consistently had good news for the former president than The New York Times/Siena. There have been at least two or three occasions where the latest from that partnership became national news, and dominated two or three or four news cycles.

The good news in being the face of "Trump is looking like he could win this thing" is that, if he wins, you get a reputation as a political soothsayer. The bad news in being the face of "Trump is looking like he could win this thing" is that, if he loses, you become the latest case study in "another election, another pollster screw-up."

We have already cautioned readers many times that you cannot put too much faith in polls at this point in the cycle, regardless of what year it is, because there's just too much that can change in 6 months. We have specifically warned that this cycle appears to be particularly tricky because both candidates are so well known, and both are so unpopular. We have also dug specifically into the NYT/Siena numbers, and noted that the cross-tabs have some things that are truly shocking, and very hard to swallow.

It seems to have occurred to the Times' polling guru, Nate Cohn, that he better cover his rear end. After all, he's not just the guy who writes up the NYT/Siena polls, he's also the guy who oversees the whole operation. And so, this weekend, Cohn published a piece that aggressively taps the brakes on the numbers he and his team have been producing. Under the headline "A Polling Risk for Trump," he writes:

The polls have shown Donald Trump with an edge for eight straight months, but there's a sign his advantage might not be quite as stable as it looks: His lead is built on gains among voters who aren't paying close attention to politics, who don't follow traditional news and who don't regularly vote.

Disengaged voters on the periphery of the electorate are driving the polling results—and the storyline—about the election.

President Biden has actually led the last three New York Times/Siena national polls among those who voted in the 2020 election, even as he has trailed among registered voters overall. And looking back over the last few years, almost all of Trump's gains came from these less engaged voters.

Cohn's piece includes a graph that really puts things into black and white (well, blue and red):

That gap is what is known to psephologists as "statistically significant."

So, what is going on here? Well, there are a number of ways one might explain this gap. One possibility is that Trump is going to turn out a lot of voters in 2024 that he did not turn out in 2020. A second is that there are a lot of people out there who have decided that voting doesn't matter, but that complaining to pollsters is a pretty good way to vent one's discontent. A third is that the wobbly Trump voters, who might or might not vote, are nonetheless certain as to their pick if they do get to the polls, while the wobbly Biden voters are still keeping their options open. As Cohn points out, the wobbly Biden voters appear to be more centrist than Democrats on the whole, more concerned about things like the economy and less concerned about things like abortion access.

This is not an exhaustive list, mind you, and it's entirely possible (indeed likely) that all three of these things are true, at least to some extent. In any case, we are now going to repeat something we've already written at least a dozen times: The election projections (including ours) will not begin to attain any semblance of accuracy until September or so, once people begin to figure out answers to these questions: (1) Am I actually going to vote? and (2) If so, which candidate am I actually going to vote for? Right now, there is so much uncertainty on those points that the presidential polling numbers have to be analyzed with care to extract any true meaning.

So can we learn anything from the current state of affairs? We think so. Wisconsin is D+1, Michigan is EVEN, Pennsylvania is R+3. These are all statistical ties. It's a coin flip in all of them. In contrast, Nevada is R+8, Arizona is D+2, Florida is R+9, Georgia is R+5, and North Carolina is R+5. This does suggest that the "northern route" will be easier than the "southern route" for Biden, although Kari Lake and the abortion initiative may save Biden in Arizona. We don't believe Zogby's poll of Maine (R+1) for a second. Maine is a blue state, except maybe ME-02.

Why are we getting this result? Our best guess is that Biden is indeed having trouble with Black and Latino voters, especially men. They admire Trump for being "tough" and may also buy into his complaint: "They" are coming after me, just like they always come after you. The southern states are far more diverse than the northern ones, so in the end, white folks may be the ones to save Biden. (Z)

Electoral-Vote.com Presidential Tracking Poll, May Edition

We decided to table these until things settled down a bit more, but we want to have one per month for the 6 months leading up to the election. So, the presidential tracking poll makes its triumphant return today, and tomorrow the Senate tracking poll will be back.

To start with, here is our baseline, established over the first half of the year: 86.9% of readers think Joe Biden will be elected president, while 8.8% think Donald Trump will be. None of the other candidates we offered as possibilities got more than 0.25% of the vote. We shall see how those numbers change over the next month.

We also asked two other questions. The first was "Who is Donald Trump going to choose as his running mate?" The top 10 finishers:

Candidate	Pct.
Gov. Kristi Noem (R-SD)	27.2%
Rep. Elise Stefanik (R-NY)	20.0%
Kari Lake	10.5%
Other	9.5%
Rep. Nancy Mace (R-SC)	8.0%
Nikki Haley	5.9%
Sen. Joni Ernst (R-IA)	5.5%
Rep. Marjorie Taylor Greene (R-GA)	4.9%
Sen. Tim Scott (R-SC)	3.5%
Vivek Ramaswamy	3.0%

The most popular "other" choice was Tucker Carlson. Others who did not make our list but who were suggested multiple times: Ivanka Trump, Sen. J.D. Vance (R-OH), Rep. Jim Jordan (R-OH), Gov. Sarah Huckabee Sanders (R-AR), Mark Meadows and Sen. Lindsey Graham (R-SC). We are going to run this question again, since it's surely going to generate different results post caninicide. Plus, we can add the suggested candidates who did not make the cut the first time.

For the third, "free response" question, we asked: "What song should Joe Biden choose as his 2024 campaign theme song? (And why?)" Here are some of the more popular (or more interesting) responses:

• "22," by Taylor Swift: "To emphasize that while Biden may be chronologically in his eighties, in terms of vigor, enthusiasm, and optimism about our nation's future, he's 'feelin' 22.'"
  
  
• "Biden and Liberty," by Robert Treat Paine Jr.: "After the campaign song 'Adams and Liberty,' for John Adams, because Biden will remember it fondly from his childhood."
  
  
• "Democracy is Coming to the USA," by Leonard Cohen: "First, it has a military drumbeat. Second, it was written by Leonard Cohen. Third, the aforementioned Leonard Cohen was a Canadian. Fourth, I don't follow current pop music so that was the best I could think of."
  
  
• "Don't Stop Believin'," by Journey: "Because America must not stop believing."
  
  
• "Forever Young," by Alphaville: "Does it really need any explanation?"
  
  
• "Happy Days Are Here Again," by Mitch Miller: "Biden's best bet is to run as the reincarnation of Franklin D. Roosevelt, trying to reassemble FDR's coalition."
  
  
• "I Don't Need Your Rocking Chair," by George Jones: "It's a fun, upbeat song that acknowledges the age question without making it a liability—and it's by a country music legend, so it might just catch a few Southern voters' ears."
  
  
• "I'm Still Standing," by Elton John: "Biden's had a lot of messes to clean up from TFG's time in office and a lot of other messes from the ongoing actions of TFG and the world's authoritarians. But he's dealt with them all and he is indeed still standing!"
  
  
• "Nazi Punks Fu** Off," by Dead Kennedys: "For obvious reasons."
  
  
• "Stuck in the Middle with You," by Stealers Wheel: "Clowns to the left of me, jokers to the right, here I am, stuck in the middle with you."
  
  
• "We Will Rock You," by Queen: "Why? It's the only tape Diamond Joe has in his Trans Am, and the volume is always dialed to 11."
  
  
• "Won't Get Fooled Again," by The Who: "Advice for Republicans."
  
  
• "America the Beautiful," by Ray Charles: "Because an America without Donald Trump as president is a beautiful country and full of promise."
  
  
• "I Won't Back Down," by Tom Petty: "Republicans all over want to use it, but can't get permission. Biden probably can and could mock them with it."
  
  
• "Stayin' Alive," by the Bee Gees: "That is what we're most worried about, right? As a bonus, identifying him as 'a woman's man' would be a reminder of his stance on the abortion issue."
  
  
• "This Land is Your Land," by Woody Guthrie: "It is highly inclusive. Plus, the subtext: 'This machine kills fascists' (written on Woody's guitar)."
  
  
• "You Can't Always Get What You Want," by the Rolling Stones: "I nominate this song because it highlights the fact that, while Biden may not be the ideal choice for many voters, seeing him elected (rather than TFG) is key to preserving our democracy."

This month, the "free response" question is: "What single event or development would be most likely to harm Donald Trump's chances of being re-elected?"

To vote in the new presidential tracking poll, go here. Results to be revealed next month! (Z)

It Was Twenty Years Ago, Part I: The Quiz

As we noted, Friday was our 20th anniversary. We'll have a few items this week in honor of the occasion, starting with this quiz asking you to recall the world as it was on May 24, 2004. There are 12 questions, plus a tiebreaker. In each case (except the tiebreaker), one of the statements is true and one is not. Here they are:

1. Politics:
    •   On May 24, 2004, the Republicans had the federal trifecta
    •   On May 24, 2004, Alberto Gonzales was Attorney General
   
   
2. Supreme Court:
    •   On May 24, 2004, three current justices were already on the Supreme Court (Thomas, Roberts, Alito)
    •   On May 24, 2004, only one current justice was already on the Supreme Court (Thomas)
   
   
3. International Affairs:
    •   On May 24, 2004, Kim Jong-il was still leading North Korea
    •   On May 24, 2004, Kim Jong-il was dead, and had been succeeded by Kim Jong-un
   
   
4. The News:
    •   On May 24, 2004, The Washington Post's 1A headline was "Bush Seeks to Reassure Nation on Iraq"
    •   On May 24, 2004, The Washington Post's 1A headline was "Lehman Brothers File for Bankruptcy"
   
   
5. The Economy:
    •   On May 24, 2004, the average gallon of milk cost $3.16
    •   On May 24, 2004, the average gallon of gas cost $3.16
   
   
6. Tech:
    •   On May 24, 2004, Facebook was just a few months old
    •   On May 24, 2004, the iPhone was just a few months old
   
   
7. Television:
    •   On May 24, 2004, the highest-rated program in the U.S. was American Idol
    •   On May 24, 2004, the highest-rated program in the U.S. was Seinfeld
   
   
8. Film:
    •   On May 24, 2004, The Passion of the Christ crossed the $350 million mark at the box office
    •   On May 24, 2004, Gladiator crossed the $200 million mark at the box office
   
   
9. Music:
    •   On May 24, 2004, Britney Spears, Madonna and Paul McCartney were all on tour
    •   On May 24, 2004, Michael Jackson, The Presidents of the United States of America and Johnny Cash were all on tour
   
   
10. Sports:
     •   On May 24, 2004, Oriole Cal Ripken's consecutive games streak was still underway
     •   On May 24, 2004, Oriole Cal Ripken had concluded his streak at 2,632 games
    
    
11. Books:
     •   On May 24, 2004, the #1 book in the country was The Da Vinci Code
     •   On May 24, 2004, the #1 book in the country was Harry Potter and the Sorcerer's Stone
    
    
12. Electoral-Vote.com:
     •   On May 24, 2004, our map had Michigan going for George W. Bush and Iowa going for John Kerry
     •   On May 24, 2004, our map had Minnesota going for George W. Bush and Missouri going for John Kerry

Tiebreaker Question: How many bills had George W. Bush vetoed as of May 24, 2004?

We will reveal the answers and the top scorers on Friday. If you want to take a shot, click here! (Z)

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