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Trump Legal News, Part I: Take Me Out to the Ballgame
Why "Take Me Out to the Ballgame"? Because it's one, two, three strikes, you're out. And a piece from lawyers Norman L. Eisen and Joshua Kolb yesterday points out that it's possible that strike three might just come this week for Judge Aileen Cannon.
There are two bits of background to note here. The first is that, in handling Donald Trump's Mar-a-Lago documents case, Cannon has already been reversed twice by the 11th Circuit. This despite the fact that the 11th is very conservative, and is more Trump-friendly than any federal circuit, excepting the 5th. Those are strikes one and two.
The second bit of background is that Cannon pretty clearly botched a critical evidentiary ruling. In brief, she found that Special Counsel Jack Smith and his team did not clear the bar necessary for her to grant anonymity to his witnesses, and that the identities of those folks would therefore be revealed. The problem is that the Judge imagines the bar is far, far higher than it really is, per federal law. So, Smith has asked her to reverse the decision, making a strong argument that she made a reversible error.
On Friday of this week, Cannon will issue her response to Smith's filing. And she's got two options. The first is to concede she blew it, and to change course. She might do that, but it's not been her general approach. The second is to tell Smith to pound sand. At that point, he will insta-appeal to the 11th Circuit, and he'll probably toss in a request for her to be removed from the case. Hence strike three.
Eisen and Kolb also point out another lingering, potential strike three, though of necessity this part of the piece is very speculative. There are ongoing hearings about what documents will be used in the case, and to what extent Donald Trump and his counsel will have access to them. These hearings are held behind closed doors, for obvious reasons, so there's no way for anyone who is not a part of the case to know what's going on with them. However, they often involved very technical points, of the sort that are challenging even to veteran judges. Cannon, of course, is not a veteran judge, so the odds of her flubbing one or more decisions is high. And the Classified Information Procedures Act allows any single decision here to be appealed. So, if she blows it on just one document, THAT could be strike three, too.
Please note that the three strikes thing is just a general notion, and is not any sort of formal rule. The point is merely that we could be very close to Smith pursuing the nuclear option, and possibly succeeding. We'll see what Cannon does on Friday. (Z)
Trump Legal News, Part II: It's All About the Benjamins?
There isn't likely to be any news out of Scott McAfee's courtroom this week, since the Judge hasn't yet scheduled the final arguments about Fani Willis' conduct, much less had whatever time he needs to make a decision. Nonetheless, it's such a big story, journalists are looking under rocks for something, anything to report. And CNN correspondent Zachary Cohen came up with something pretty important.
As chance would have it, Cohen did a somewhat recent interview with a man named Stan Brody. Brody, in turn, helps run one of the vineyards that Willis visited with Nathan Wade. And when it came time to settle the bill, the Fulton County DA chose not to use a credit card, and instead peeled off several hundred-dollar bills to cover the nearly $400 tab.
On one hand, the odds of finding anyone to corroborate Willis' claims about paying cash for things were pretty long, because just the right set of circumstances have to fall into place (it's no good, for example, if she gives Wade $1,000 in their hotel room). On the other hand, now that there actually is a witness, he certainly seems to be pretty credible. He has no real reason to lie, and it's plausible that the incident would stand out in his memory, since paying tabs that large in cash is fairly unusual. Nevertheless, there are also people who just don't like being tracked by their bank in everything they do and thus prefer using cash where that is feasible.
On a personal note, (Z) will also add that there really are people who prefer to deal in cash, even in the era of electronic transactions. He knows, because his father was one of them. On the day that (Z) Sr. died, he had $5,000 in hundreds in his pocket, which was not unusual for him at all. (Z) never really learned what the underlying reason was. Part of it was that (Z) Sr. liked to go to casinos and gamble, and you have to have cash for that. But that wasn't the whole reason, since he did it even in years where there were no casinos nearby (e.g., the 1980s, before Indian casinos became a thing in California).
Anyhow, the case against Willis now has three problems. The big one is that she pretty clearly didn't do anything that harmed the defendants. In addition, the only evidence that her relationship with Wade predated their work together comes from someone with a potential agenda. And finally, the hardest-to-corroborate part of Willis' testimony now has some actual corroboration. McAfee is really going to have to stand on his head if he wants to remove her from the case. That said, in a world with judges like Aileen Cannon and Clarence Thomas, who stand on their head so often they could run away and join the circus, you have to be prepared for anything. (Z)
Alabama Supreme Court: Embryos Are People, Too
When it comes to abortion law, every time you think that the red states can't come up with something more extreme, they pull yet another rabbit out of a hat. So it is in Alabama this week.
What did the Alabamians do? Well, there were several Alabama couples who tried to conceive via in-vitro fertilization (IVF). Some of the embryos were destroyed in an accident at the clinic they were using. So, the couples sued under an Alabama law that allows parents to recover damages in the event of a wrongful death of a minor child. And in their ruling, issued earlier this week, the Alabama Supreme Court said that yep, the law applies because embryos are legally children under Alabama law.
We will note here that this is an entirely reasonable conclusion, if you begin from the position that life begins at conception, and that fetal viability does not matter. Should you embrace that line of thinking, there is no substantive difference between a 4-week-old fetus and an embryo sitting in a freezer somewhere. Both are post-fertilization, neither is viable, both are potential human lives.
But if you take this view, then it also means you are brushing aside some rather serious consequences. It will increase the costs of liability insurance for IVF providers, since any mistake could leave them liable for manslaughter. It will cause other IVF providers to decide it's just not worth it, and to close their doors. It could put parents and would-be parents in the position of paying for storage of unwanted embryos forever, since the embryos would not be used and could not be destroyed. The upshot is that many people who want children, and who cannot have them the regular way, will be out of luck because they won't be able to afford the much higher costs of IVF.
And if a fertilized egg cell is a legal person, then obviously a zygote is also a person. If a (recently) pregnant woman travels internationally, then not having a passport for the zygote is human trafficking. Do immigration agents have the obligation to check for this? Presumably zygotes can then also be given or inherit property (which might be an issue when a pregnant woman gets divorced and the father wants to give money to his zygote but not his wife). Can a fertilized egg cell in a lab somewhere be the beneficiary of a trust? Talk about a can of worms.
This decision will be appealed to the U.S. Supreme Court, but who knows what they will do with it. Decline to hear it? Affirm it? Overturn it? Anything is possible. Meanwhile, the more people for whom the Dobbs decision becomes personal, the more salient that abortion rights become as a political issue. (Z)
The Five GOP Factions that Cause Mike Johnson's Headaches
Politico has a piece in which they try to give a more nuanced view of the more troublesome elements of the House GOP Conference, at least from the vantage point of Speaker Mike Johnson (R-LA). Here are the five different groupings, as the authors have it:
- The Threatening Firebrands: These are the folks, like Rep. Marjorie Taylor Greene (R-GA),
for whom politics is basically performance art. They care very little about policy.
- The Critical Conservatives: This group includes Andy Biggs (R-AZ) and Bob Good (R-VA)
among others. They care a lot about policy, but they are unwilling to accept that politics is the art of compromise, and
they are willing to engage in shenanigans to try to force through bills that are entirely unrealistic.
- The Tired Centrists: Here, Don Bacon (R-NE) and Brian Fitzpatrick (R-PA) are included.
They actually want to govern, with an eye toward getting bills that achieve more of what they want than what the other
side wants. The recent immigration bill, which was way more Republican than Democratic, is their dream legislation.
- The McCarthy Allies: These are people like Patrick McHenry (R-NC) who liked the former
speaker, don't like the current speaker, and are not shy about sharing their views. That said, they tend to fall in line
when it comes time to vote on things like stunt impeachments.
- The Rules Committee Rebels: Chip Roy (R-TX) is the poster child here. These members are often quirky in their politics, and they got themselves placed on the Rules Committee because they wanted to have influence over what bills do and do not come to the floor of the House. They are enough of a pain in the rear that Johnson has done an end run around them a couple of times by suspending normal order.
On the whole, we're actually not big fans of these articles that purport to "sort" political factions into nice, neat categories. In the end, there are some people who clearly fit into multiple categories, and there are some who move between categories, depending on the day and the issue.
Nonetheless, we pass this along for a couple of reasons. The first is that it underscores the fact that as Johnson tries to herd the most unruly cats in his caucus, he's really herding multiple mini-herds. It's not so simple as just "keeping the Freedom Caucus happy." No wonder he's had considerably more failures than successes, especially given that he does not appear to be a particularly skilled cat-herder.
The second reason we bring it up is that we had a question this weekend about why so many of the GOP retirements this cycle are senior members from deep-red districts. A new piece from CNN echoes our answer. In short, the people who are throwing in the towel are members who worked their way up the ladder, and landed plum committee assignments, in hopes of doing some actual governance. Now it is clear to them that is not going to happen anytime soon, either due to Republican dysfunction or a Democratic takeover of the House or both. So, they are heading for the hills. Putting it in terms of the list above, folks from groups 3-5 are departing, and there's an excellent chance of their being replaced by more folks who will be in groups 1-2.
And speaking of exits, this isn't worthy of its own item, but we'll note here the photo that Johnson posted to Ex-Twitter on Presidents' Day:
Naturally, it emphasizes the extent to which Johnson has prostrated himself before Trump. After all, it's not like Trump was the one who traveled to take the photo. But what approximately one million Ex-Twitter users noticed was the inadvertent, almost subliminal detail at the top right. That is to say, as Johnson kisses the ring, his eventual exit is always lingering in the background. It's only a question of when he leaves. (Z)
Politics Makes Obnoxious Bedfellows?
It's somewhat hard to imagine a Speaker of the House less suited to Democratic tastes than Mike Johnson. He's an evangelical with some ideas that are fringy even for evangelicals. He's prone to dishonesty and theatrics. He's an insurrection supporter who not only voted against certifying results in Pennsylvania and Arizona, but who took the lead in writing the letter to the Supreme Court asking them to overturn the results of the 2020 election. He's tanked important, bipartisan legislation because Donald Trump ordered him to do so.
In short, the members of the blue team would really prefer not to touch the Speaker with a 10-foot pole. Unfortunately for them, they don't get to choose which Speaker they deal with. It's either him or nobody. And, as the calendar turns to March, there's a looming problem that must be tackled. It's the same looming problem that needed to be tackled back in January, and back in October of last year, namely the budget.
The dynamics here are pretty simple. There are some members of the House Republican Conference who want to shut the government down. There are others who are willing to support funding, but only if they get stuff that is unacceptable to Democrats (and to many Republicans in the Senate). The upshot is that many rank-and-file GOP members in the House are growing resigned to the notion that there will be no more kicking of the can down the road, and there will be no 11th-hour funding bills, and that the government will shut down for some period of time, starting in mid-March.
The members of the blue team could easily sit back and watch this happen, knowing it is likely that the Republicans will get the blame. That said, shutting down the government hurts people, and hurting people tends to make Democratic members queasy, much more so than it does most Republican members. It's also not a slam dunk that Republicans will get the blame, since Joe Biden is unpopular, and many people who are not paying attention might just decide that anything that goes wrong must be the fault of whoever is in the White House.
Meanwhile, if the Democrats play ball with Johnson, they can get bills that are more amenable to their goals, and that include some of their priorities. And so, some centrist Democrats are currently talking about the possibility of promising Johnson the votes to insulate him from a motion to vacate, in exchange for his bringing to the floor of the House funding bills that are acceptable to both Democrats and non-crazy Republicans.
This is just a trial balloon right now, and you can be very certain Democratic leadership is watching to see what the response is. Assuming there isn't too much blowback, then don't be terribly surprised if the Democrats hold their noses and form a temporary alliance with Johnson. Of course, he'll be holding his nose, too. Nobody said sausage-making was pretty. (Z)
Siena Uncorks Another Wild One
Siena College, which partners with The New York Times, was the pollster responsible for the half-dozen swing state polls a couple of months back that showed Donald Trump winning everywhere. This led to an enormous amount of coverage, and much hand-wringing among Democrats. We found these polls hard to swallow, since they were so out of line with what everyone else's data were saying.
Earlier this week, Siena released its latest, and it's another eyebrow raiser. Focusing specifically on New York (where both Siena and the Times are located, of course), the pollster says that Joe Biden's Empire State lead over Donald Trump is just 12 points, 48% to 36%.
As a reminder, in 2020, Biden won the state by 23 points, 61% to 38%. What this means is that at least one of these three things must be true:
- In a world where up-for-grabs voters are nearly an endangered species, the voting public, at least in New York, has
shifted 11 points toward Donald Trump.
- Current polls are not capturing the electorate accurately.
- Something is wrong with Siena's model of the electorate.
Our view is that it's partly #3, but it's mostly #2. As we have written several times, we think that most people who are going to vote for Trump in November have already reconciled themselves to that fact, and so there will be no "coming home" for them, because they're already there.
By contrast, we believe there are future Biden voters who are telling pollsters they are "undecided" or "no opinion" or third-party as a means of protest against the almost-certain Democratic nominee. More specifically, we think there are some voters who want Biden to step aside due to his age and who will move beyond that once the only available options are Biden or Trump. We also think there are some voters who are angry about Biden's handling of the situation in Israel, but who will move beyond that as events in the Middle East unfold (say, a ceasefire takes effect) or as they recognize that installing Trump in the White House will produce an even worse handling of the situation in Israel.
There is at least some evidence in the poll for our point of view. To start, note that Trump's poll result and his actual 2020 result are very nearly the same. And note that he got 37% of the vote in New York in 2016. It is improbable that he is suddenly much more popular with New Yorkers than he was 4 years ago or 8 years ago. And if he's not, then that means the lion's share of those undecided/no opinion voters are likely to end up as Biden voters.
There's also one notable data point in the crosstabs. According to Siena, Trump is leading among Jewish voters by 9 points, 53% to 44%. If that were to hold, it would be a seismic shift. But, boy howdy, that is hard to swallow. We would guess that most politically conservative Jews would be pretty happy to have Trump in the White House, since he would be ultra-pro-Israel and ultra-anti-Palestine, and are therefore telling pollsters they are Trump voters. But we would also guess that moderate and liberal Jews are currently unhappy with both candidates, and are using their poll responses to send a signal to the White House about the course it is currently pursuing in the region. Which, if we are right, would actually be pretty savvy.
In the end, we simply cannot shake a basic fact: Donald Trump has previously shown himself to have a pretty hard ceiling, both nationally and in each individual state. Is it really plausible that, with 91 indictments on his ledger, and vastly more craziness under his belt, Trump has finally broken through that ceiling? It is true that Biden is pretty unpopular right now and has some rather significant flaws. But is he really far more unpopular/flawed than Hillary Clinton? We just can't come up with an explanation that would make possible a major shift in Trump's fundamentals. We think it is more likely that a lot of people—and not just Trump supporters—are playing games with the pollsters, which makes the polls hard to understand. (Z)
Who Knew the Deep State Had Been in Operation for So Long?
The folks at the National Archives were recently poring over some of the documents in their charge, and stumbled on something interesting. It involves a man named Moses J. Robinette, who served as a veterinary surgeon during the Civil War.
Note, first of all, that while "veterinary surgeon" is a job that takes some work to attain in the 21st century, that was not the case in the mid-19th. The Union Army needed people to take care of its horses and mules, and anyone who had farmed before the war—as Robinette did, in what became the state of West Virginia—was deemed qualified to take care of, and operate on, large animals.
As is the case with most Civil War soldiers, not all that much is known about Moses Robinette. What is known, thanks to the newly found information, is that he found himself in a kerfuffle with a fellow member of the Union forces (though note that Robinette was a civilian employee of the army). During this encounter, Robinette pulled a pocket knife on the much larger man. Though no serious damage was done, he was nonetheless charged with and convicted of several crimes and was sentenced to spend 2 years at hard labor in a prison camp.
A Civil War-era prison camp was not a place you wanted to be, to say the least. And the facts of Robinette's case hardly seemed to justify the penalty imposed by the court-martial board. Fortunately for him, he had some well-connected friends. And so, they pled his case to the government, where it eventually made its way to the desk of Abraham Lincoln. Lincoln was very well known for granting pardons and commutations whenever he could plausibly do so, and that is what he did here.
Consequently, Robinette only served a month of his 2-year sentence. He returned home to West Virginia, went back to farming, and led a generally low-key life until passing in the early 20th century. He had some kids, and they had some kids, and they had some kids, and they had some kids. And one of the latter group of kids was Robinette's great-great grandson, Joseph Robinette Biden Jr.
This story is of absolutely no consequence, of course. Biden and his family have been in the U.S. for a long time, and he has eight great-great grandfathers. The odds of one of his forebears crossing paths with Lincoln, in some small way, are not THAT long (they would be much longer with the Trumps, who didn't come to the U.S. until after the Civil War, thus establishing a family tradition of avoiding military drafts). Still, it's a pretty cool little historical vignette, so we thought we would pass it along. (Z)
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