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Trump Legal News: Papa's Got a Brand New Bag

When the Supreme Court declared that a president may well be above the law, Jack Smith's Washington, DC, case got more complicated. Yesterday, in an effort to compensate, the Special Counsel filed a new indictment with Judge Tanya Chutkan.

Lawyer-reader A.R. in Los Angeles, CA was willing and able to write up the news:

I am proud to say that I had "superseding indictment" on my bingo card. And that was before Jack Smith asked for more time to supposedly assess how to move forward in the trial court in light of the immunity decision. The indictment came shortly before the parties were to file briefs outlining how the trial court should proceed. And it was filed a few days before the DOJ's self-imposed moratorium on indictments or other actions 60 days before an election that might have an impact on the outcome.

This was a very savvy move, in my view, as it puts the prosecutor back in the driver's seat and allowed him to tailor the indictment to the Supreme Court's immunity decision. The parties must still file proposals to the Court as to how to conduct pre-trial hearings, but the process now will be much more straightforward. It essentially hits the reset button and starts everything over, but given that nothing was going to happen before election day anyway, this positions the Special Counsel to survive the inevitable return to the Supreme Court after Trump brings a motion to dismiss. This was Smith's best play: if Trump wins the election, Smith knows he will get the boot, regardless of how corrupt and lawless that move will be; if Trump loses, Smith can let the case take its course without the same urgency as when it was first filed. I suspect that with Trump out of the picture, the legal landscape and the appetite of SCOTUS to bail out Trump will be much changed.

And now on to the specifics of this new indictment. As readers of this site know, in its immunity ruling, SCOTUS divided presidential acts into 3 buckets: (1) acts within the president's core constitutional functions; (2) other official acts; and (3) unofficial acts. And the Court hinted at what parts of the indictment could potentially survive the decision, such as the fake electors scheme, calls to state officials, and pressuring Vice President Mike Pence to refuse to certify the election. Justice Barrett didn't even hint: In her concurrence, she explicitly said that the efforts to assemble fake electors and pressure state officials into overturning the election results were not official acts.

Turns out there's nothing wrong with Smith's reading ability. The four charges are the same: (1) conspiracy to defraud the U.S, (2) conspiracy to obstruct an official proceeding, (3) obstruction of and attempt to obstruct an official proceeding and (4) conspiracy against rights. But the facts laid out to prove those charges have changed. Gone is any reference to Jeffrey Clark or conversations with members of the Department of Justice regarding peddling false claims of election fraud. The Court held that a president has "exclusive authority over the investigative and prosecutorial functions over the Justice Department and its officials" and, therefore, "Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials." What's interesting is they have simply plucked co-conspirator 4 (Clark) out of the indictment without renumbering the others. So, the remaining co-conspirators are still 1, 2, 3, 5 and 6. They also lifted the sub-paragraph regarding Trump's use of the Justice Department out of the section called "Methods and Means." Finally, the section entitled "The Defendant's Attempt to Leverage the Justice Department to Use Deceit to Get State Officials to Replace Legitimate Electors and Electoral Votes with the Defendant's," paragraphs 70-85, was simply taken out. It's almost as though they anticipated having to excise some of these allegations.

Other paragraphs were slightly re-worked to remove any reference to DoJ attorneys or other government officials, such as the CISA Director. Prosecutors were also careful to allege that Trump was using his eX-Twitter account for "personal purposes" when he spread lies about the election, and noted that the Jan. 6 rally was a "privately funded and privately organized political rally." These allegations are a direct response to the Supreme Court observing that whether Trump's actions and tweets on January 6 were official or unofficial depends on "context," including "who was involved in transmitting the electronic communications and in organizing the rally."

The pressure campaign on state officials is still there, as are the details of the infamous call to Georgia Secretary of State Brad Raffensperger (R). The allegations about the fraudulent electors scheme are the same. The few paragraphs in these sections referencing Trump's conversations with DoJ officials have been removed. Finally, the allegations regarding Trump's efforts to convince Pence to alter the election results at the certification proceeding, including assembling his supporters on Jan. 6 and inciting them to violence, are all still there. All in all, then, there's little of real substance that has changed. It is still a very powerful indictment, especially the recitation of events on Jan. 6. If you read only part of the indictment, I highly recommend reading paragraphs 88-100—it's chilling and infuriating.

The only other question mark is the effect of the Fischer case on the charge of obstructing an official proceeding. In Fischer, SCOTUS held that it wasn't enough to be present or even to have entered the Capitol to be charged with that count. There had to be allegations of tampering or interfering with documents associated with an official proceeding. I'm fairly certain Smith has alleged enough, between the fake electors certificates and the attempts to pressure Pence to not certify the election. Those are significantly more overt actions than breaking into the Capitol on the date of the certification proceeding. But that's probably what's next in Chutkan's courtroom —a hearing to determine if that count can stand. But again, I doubt if any of this gets resolved before the election concludes on Nov. 5.

Thanks, A.R.!

Not long after the superseding indictment was filed, Trump—to nobody's surprise—went ballistic. We've quoted enough of his word-salad rants lately, so how about a visualization instead?

It is an absolute wall of text, made up of four 'truths.'

Perfectly normal, perfectly healthy. Needless to say, the more threatened he feels, the more likely he is to campaign based on pure id—whether that is advisable or not.

Oh, and Smith has definitely been burning the midnight oil recently (or, if not him, the attorneys working under him). Yesterday brought the new indictment in Washington (36 pages) and the day before that was a filing with the United States Court of Appeals For the Eleventh Circuit (81 pages). In the latter document, the Special Counsel painstakingly shreds Aileen Cannon's decision to toss out the documents case. Should you care to read for yourself, pages 8-13 (by numbering; 29-34 of the overall PDF) contain a very clear summary of the government's case.

We don't know what the Eleventh Circuit will do here, of course. However, despite being very conservative, the judges have thus far had little tolerance for Cannon's legal fantasies. Also, Smith did not ask for Cannon to be removed from the case. However, both he and the judges of the Eleventh Circuit know very well that they are entitled to do so without being asked. So, there could be some real fireworks the day their ruling comes down. It will probably be a good day to buy some Truth Social stock. (Z)

Harris, Walz to Chat with CNN

Our long national nightmare is over. Yesterday, both the Harris/Walz campaign and CNN announced that the duo will sit down with the network for the first formal interview conducted with the Democratic candidates since they became their party's nominees for president and vice president.

The lack of interviews has led to much gnashing of teeth and rending of garments on the part of Trumpy politicians and political operatives (see here, here and here for examples). The same is true of the media (see here, here, here, here and here for examples). Also Fox; see here, here and here for examples. We're just not sure if Fox belongs in the "Trumpy political operatives" list or the "media" list.

Needless to say, these various actors have their agendas, which may or may not have to do with keeping the people informed and fostering a healthy democracy. For us this whole "issue" raises at least four questions that we'd like to ask. And since the media outlets aren't going to answer us, we'll just answer them ourselves:

  1. Is Harris Being Unreasonable?: We think the answer here is pretty clearly "no." Her presidential campaign is a bit less than 40 days old, and she's had plenty on her plate. There was the small matter of choosing a running mate, and then the small matter of the Democratic National Convention. There are also many forms of interacting with the general public, and Harris has been heavily engaged with some of those. She's overseeing and participating in a massive social media campaign. She's been doing rallies and speeches. She's been doing debate prep. And so forth.

    Now, that is a "logistics" answer. There's also a "strategy" answer. And the "strategy" answer is once again "no." Harris is riding a wave of enthusiasm right now. She's on the rise in the polls. She's raking in the bucks. When things are going so well, what is the point of reinventing the wheel? Director Quentin Tarantino, who isn't a political operative, but definitely is an expert in effective communication, says Harris should not do any interviews at all during the campaign: "I'm going to vote for her fu**ing anyway no matter what she says in the stupid fu**ing interview, so don't fu** sh** up."

  2. Is Harris in the Wrong?: We mean this to be a somewhat different question. Even if Harris has a full plate, and even if her campaign is going well, maybe she has an obligation to subject herself to the fourth estate, so they can keep her "honest"?

    We're not so sure what our position is here. On one hand, the American people should know what they are buying when they cast their votes for president. On the other hand, this is a format that does not tend to convey much actual insight. Most politicians are pretty good at giving fairly bland politician answers. And even if they go off-script, it's not so easy to communicate meaningful ideas in 30-90 seconds.

    Generally, when these interviews "matter," it's because the candidate screwed something up. Maybe they said something impolitic. Maybe they struggled to answer, and stoked fears about their mental capacity. Maybe both. Some journalists (maybe many) know that THIS is where the big, eyeball-getting headlines are made, and so bring a bunch of "gotcha" questions, in hopes of tripping the candidate up. Does the candidate really have a duty to subject themselves to this?

    We're just musing here; again, we really don't know. If readers have thoughts, we're interested to hear them at comments@electoral-vote.com.

  3. What about Donald Trump?: It is true that Donald Trump does many interviews. It is also true that 99% of them, if not more, are done with ultra-friendly interviewers who toss him softball after softball. Why does he get a pass here (more on this question below)?

  4. Will One Interview Be Enough? Or Five? Or Ten? Or Twenty?: This is surely the easiest question to answer. No. No matter how many interviews Harris and Walz do, jointly or individually, there will be carping that they are not doing enough interviews.

In any case, the interview will air on Thursday at 9:00 p.m. ET. And we will certainly have an item about it on Friday. (Z)

Presidential Debate Is Set, in the Sense that It's Actually Not Set at All

Consider the following headlines from yesterday:

These are just some examples from among the sites we check each morning (and then again later in the day), to get a sense of the lay of the land. And as we read all the debate headlines, we were very confused. The lingering issue, as we noted yesterday, was that the Harris campaign wants the microphones to be on at all times, and some people in the Trump campaign (possibly not including Donald Trump) want the microphones to be muted when the candidates are not speaking. So, the possible outcomes were: (1) the Trump campaign could agree to keep the microphones on, (2) the Harris campaign could agree to mute the microphones, or (3) the debate would be called off because the campaigns could not agree.

The headlines above are not consistent with any of those three outcomes. If the microphones will be muted, then Trump didn't actually agree to anything. No, in that case, he refused to budge. This means these headlines are somewhere between "unclear" and "toting Trump's water." And the stories, particularly the early-in-the-day versions, were generally no better, noting that Trump had accepted the same rules as for the June 27 debate without explaining that the Harris campaign is objecting to those rules. It makes it appear that everything is settled, thanks to Trump's being magnanimous, and that if there are any further issues, then someone else (e.g., Harris) is being unreasonable.

There was another example of this basic dynamic on Monday, one specific to The New York Times. National Review editor Rich Lowry wrote a pro-Trump/anti-Harris op-ed full of generalities that were unsupported, and are almost certainly unprovable, because they are almost certainly untrue. For example: "[Kamala] Harris is weak and a phony and doesn't truly care about the country or the middle class." Or: "She doesn't care if her tax policies will destroy jobs."

Ostensibly, a piece like this is supposed to give a different perspective, and to show a different way of thinking about things. But this piece is nothing other than unfettered propaganda. You could take Lowry's words, typeset them in a pretty font, and make a Trump campaign ad out of it. If you did, it would cost thousands of dollars to place that ad in the pages of the Times. That being the case, why should the Times run his words for free? And note that after we read that op-ed, and choked on it, we learned that Jonathan V. Last of the Bulwark felt the exact same way. Last's headline is "Why Did the New York Times Let Itself Be Used as a Mule?"

We continue to puzzle over the question of why the non-right-wing media treats Trump the way it does. Yes, they do cover his most scandalous moments, it is true. But they also seem to be in partnership with him on regular occasions. Or, if not in partnership, then they are at least fawning. Are they performing "balance"? Are they scared to make an enemy out of Trump? Does telling the story his way attract eyeballs? Are they secretly hoping he'll be reelected, and thus drive traffic to their newspaper/website/TV channel for the next 4 years? We've noted all of these theories before, and we still don't feel we know which explanations are paramount.

Incidentally, as it turns out, when the Harris campaign found out about Trump's so-called "agreeing" to debate terms, it promptly put out a statement that said there was no agreement on the microphones issue, and that negotiations are ongoing. Unfortunately for the Democratic candidate, the media has allowed Trump to seize control of the narrative, at least for now. Plus, because the Harris campaign's statement didn't come until the afternoon, the stories about the statement (which were fairly few in number) didn't come until the evening. So, they're going to get lost, coming at the part of the news cycle that gets the least attention. Thanks, media. (Z)

Trump Finds Yet Another Way to Pi** on Veterans

We don't know if this will go over as badly as the Tim Walz stolen valor stuff, or the remarks about the Medal of Honor. Nonetheless, Donald Trump finds himself enmeshed in another mess involving veterans and their memory. There are actually two problems here; the one that is getting all the attention, and the one that SHOULD be getting all the attention, in our view.

Let's set the stage. Monday was the third anniversary of the Abbey Gate attacks in Afghanistan, which left 13 U.S. soldiers dead. Trump, accompanied by several family members of the victims, visited the Tomb of the Unknowns to lay a wreath there. That does not make a whole lot of sense, since the most recent tomb is for the Vietnam War (and that one is actually empty, meaning the most recent unknown soldier is from the Korean War). Thereafter, Trump headed over to Section 60 of the cemetery, where some of the Afghanistan dead are buried.

Trump, of course, thinks he still retains the powers and privileges of the presidency. He also thinks, more broadly, that rules don't apply to him. Despite what he thinks, there were actually some serious issues with his visit. As a statement from Arlington, issued after the Trump visit, explains: "Federal law prohibits political campaign or election-related activities within Army National Military Cemeteries, to include photographers, content creators or any other persons attending for purposes, or in direct support of a partisan political candidate's campaign."

The former president was allowed to do his thing at the Tomb of the Unknowns, but when he went over to Section 60, cemetery staff tried to stop his team from filming, and there was some sort of dispute. Arlington staff said it was a physical altercation involving two members of Trump's campaign. Trump spokesman Steven Cheung said there was no physical altercation, and that the whole incident was the responsibility of one person who was "clearly suffering from a mental health episode." Readers can decide for themselves which side to believe.

The dustup in Section 60 is what is getting all the attention here. To us, however, the actual story is this: Have you ever read about Trump honoring the victims of Pearl Harbor? World War II veterans in general? Korean War veterans? Vietnam veterans? Victims of the 9/11 attacks? Not very often, if at all, despite the fact that there are easy opportunities to honor any or all of these groups in or near Washington, DC, where Trump lived (and golfed) for 4 years.

The difference between all of those events and Abbey Gate is that Joe Biden was not president, and Kamala Harris was not vice president, for any of the earlier events. And so, what we have here is a man who has made clear he has no use for dead soldiers, except when he can use them as political props (and even then, it can't be raining). In our view, it does not matter one bit that some of these soldiers' relatives are willing to be accessories to Trump's performative "patriotism" (and note, it is the relatives of only two soldiers). In any case, if we were veterans, it is this dimension of the incident that would really get our blood boiling. (Z)

We're Officially in the Messy Part of Ballot-Printing Season

A number of times in the past several months, we've been asked questions about when the "point of no return" arrives in terms of the names that will appear on election ballots. There's no single answer to that, of course, as it depends based on state and on whether the candidate is independent or not.

Robert F. Kennedy Jr., he who recently abandoned his presidential campaign, is an excellent case in point. Here is where things stand with him, in terms of the ballot in the ten swingiest states:

So, that is four of ten swing states where Kennedy will still appear on the ballot. We do not think he will get large numbers of votes from people who support him, and yet somehow don't know he dropped out. However, he was running as a protest candidate. If he's still there on the ballot, then he could certainly get protest votes, the way Nikki Haley did after she dropped out of the Republican primaries.

Incidentally, because Kennedy is still going to make the ballot in some places, even though he's not running for president anymore, there's a ribald joke going around on social media right now:

What do Robert F. Kennedy Sr. and Robert F. Kennedy Jr. have in common?

We will put the punchline below. Please do not scroll down if you do not care for ribaldry.

Also on this subject (ballot access, not ribaldry), Cornel West is back on the ballot in Michigan, having won a lawsuit over the weekend. Exactly what he's trying to accomplish remains unclear to us but, in any case, if he's going to take votes from a major-party candidate, that candidate will likely be Kamala Harris. (Z)

DNC Diary: Postscript

Our readers who served as delegates to the DNC were amenable to our request to submit a final reflection on their experience. First up is A.S. in Fairfax, VA:

I'm finally mostly caught up on sleep. You might expect 4 days running from about 7:00 a.m. to 3:00 a.m. to take a lot out of you, but you couldn't see it in the delegates in the building Thursday night (and at the parties after). The excitement and chatter continued all the way to the airport and throughout Chicago the next day. That excitement is a credit to the DNC planning committee and to the thousands of volunteers, police and security, staff, and others that gave a tremendous effort and made significant sacrifices to ensure the convention ran smoothly, delegates and guests were cared for, and that everyone felt safe throughout the week.

It occurred to me that some people may want to know how one becomes a delegate. In Virginia, we hold local conventions in each Congressional district and a statewide convention in Richmond. Any Democrat can run for election as a delegate at either the district level or state level. I had the honor of being one of four male-identifying delegates elected in my district. It may seem like these delegate slots are reserved for deep party insiders, elected officials, and campaign big-wigs, but the reality is, many of us delegates are party volunteers who simply give their time to expand the party locally, empower our candidates to lead, and do our part to help win elections.

The memories from this convention will fuel me through the next 70 days, and I'll recite some lines from my favorite speeches insufferably among friends, but the part of being a delegate I found most impactful was getting to know better many of my local elected officials and other party leaders. We have some incredibly smart, fun, talented leaders, and it is a privilege to call them friends. Within my delegation and among our elected officials, I was struck by the diversity of skill sets, experiences, and backgrounds represented. From masters of canvassing and voter outreach, prolific fundraisers, recruiters and organizers, pollsters and data analysts, graphic designers, social media influencers, and experts in a variety of policy issues, Virginia's representation at the DNC epitomized the team needed for any successful campaign.

So while I have to catch up on work and everything else I left behind for a week, I am inspired to find more ways to help from now until Election Day and to help our state legislators prepare for their elections next year, and if anyone else was inspired by that fantastic convention, just reach out to your local party—there is plenty of work to do.

Two final observations: (1) Virginia shared a hotel with delegations from many other states, and... be careful around California. They're party animals and they took over the hotel bars every night, and (2) The Toronto Blue Jays were in town to play the Cubs the weekend before, so we may have had some spies infiltrating the convention. Everyone was wearing blue so they would blend right in.

And now, C.L. in Boulder, CO:

This was my first national convention. I had never had a desire to go to the DNC before, for 2 reasons: (1) The nominee is always determined long before the convention, so the convention didn't seem to have much of a purpose, and (2) Conventions seem to be primarily cheerleading fests, and since I got laryngitis in 2015, I avoid yelling.

This year, I thought we might have a brokered convention, so I applied to be a delegate. If you missed Colorado's March 18th application deadline, then you were out of luck. I'm fairly well known in my county party and got elected at the congressional district level. If I hadn't been elected at the CD level, then my name would have been on the state party's ballot 2 days later. I made a short video, sent some e-mails asking CD and state delegates to vote for me and then went into the no-Internet-service mountains for a long-planned hut trip. I only recognized two women's names on the CD candidate list, so I thought that everyone in my county might vote for me. There were 14 candidates vying for 4 of my gender's slots in my CD.

We got a nice printed directory of all the Colorado delegates, both elected and automatic, at our first DNC breakfast. Extra people (e.g., delegation pages and standing committee members) were also included, with everyone's photo and bio. I wish that the directory had included our home county because I happened to meet three delegates from my county during the course of the week who I didn't know before! Evidently, you don't have to attend the monthly party meetings to become a delegate.

The state party estimated the cost of attending the DNC at $3,000. My cost for the convention was a little more than half that, but I had a roommate. I also had a three-leg airplane ticket because I went to New Orleans before heading back to Colorado. A friend in Chicago offered me his apartment free of charge, but the hassle of getting from the apartment to the hotel breakfast where they handed out the day's all-important credential overrode the savings. The state party helped delegates set up GoFundMe sites and provided some funding for those in need. I received a scholarship from the state party's Latino Initiative.

The TV-viewing public only sees the prime-time evening events, but there were plenty of sessions during the day that were open to the public and the delegation heard from prominent speakers at breakfast. I especially enjoyed hearing political strategists Celinda Lake and Frank Luntz. We could also interact with the daytime speakers and/or lobby our elected officials! (The exceptions were Tim and Gwen Walz, who had tight security around them.) For instance, I spoke to DNC Vice Chair Henry Muñoz and told him that I suspected he does most of the vice chair work. His two co-vice chairs are Gov. Gretchen Whitmer (D-MI) and Sen. Tammy Duckworth (D-IL).

The roll call vote and balloon drop were worth attending in person, but otherwise I might have preferred watching the evening events on TV. Lots of noise and commotion in the United arena—for instance, I couldn't really hear the songs with the roll-call vote—and we were discouraged from moving around. The food for sale in the arena was panned. The shuttles to the arena were slow, so I missed the beginning of each day's events, but I enjoyed chatting on the shuttles with delegates in our hotel from New Jersey, Oregon, Washington and Nevada. I happened to throw a deck of cards into my bag and played Spades the first day on the shuttle.

The party platform was approved on a voice vote without any discussion early the first evening (possibly without a quorum of delegates), though pro-Palestinian delegates wanted some recognition of the plight of the Palestinians in the platform. According to Heather Cox Richardson, the platform had not been updated to respond to Harris being the nominee and mentioned Biden multiple times.

I don't think that the automatic (aka super) delegates had to go through the same security lines that we had to go through. At least, I never saw them in our lines or on the shuttle buses.

If my Minnesota grandfather were alive, he would have been very pleased to see that Democrats are again embracing labor unions.

When I spoke to delegates who had attended previous conventions, they said this was the most energizing, joyous convention they've attended. And it was put together in very short order! It was an experience that I'll remember for a very long time.

Thanks to both of you for your reports. Fascinating stuff! And, truth be told, we've always suspected that Blue Jays "fans" are actually sleeper agents. We've also taken note that the former Montreal Expos now play just 3 miles from the White House. Hmmmmm... (Z)

Today's Presidential Polls

Kamala Harris can't like that Arizona poll, but Donald Trump really can't like that Florida poll. (Z)

State Kamala Harris Donald Trump Start End Pollster
Arizona 44% 47% Aug 12 Aug 16 Noble Predictive Insights
Florida 47% 51% Aug 21 Aug 22 PPP
Maryland 64% 32% Aug 14 Aug 20 Fabrizio + Anzalone
Texas 44% 49% Aug 21 Aug 22 PPP

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

The punchline to the joke: Neither one of them pulled out in time.


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