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Tomorrow Night Could Determine Who Wins the Presidency

The stakes couldn't be higher. The Siena College/New York Times national poll released Sunday has Donald Trump at 48% and Kamala Harris at 47%—almost an exact tie. Tomorrow's debate could well put one of them ahead for the duration. Both candidates know that, but they are preparing in different ways. Harris and Trump have never met, but they already hate each other, so there could be fireworks. If Harris wants to get under Trump's skin from the get go, she could refuse to shake his hand on stage and say to the moderators: "I never shake hands with rapists; as a prosecutor, I put them in prison." At that point, Trump's head might well explode.

The debate will be held in Philadelphia tomorrow at 9 p.m. ET. It is sponsored by ABC News and will be moderated by David Muir and Linsey Davis. Microphones will be controlled by the moderators and will be turned on only when a candidate has been invited to speak. Harris fought against this. She wanted to make it possible for Trump to interrupt her to get the optics of a big man picking on a small woman, but she lost this battle. There will not be a live audience. Nor will there be opening statements by the candidates. Candidates will not be allowed to bring in notes—tough luck for any candidate who happens to be literate. Trump won the coin flip last week, giving him the choice of going last or picking the podium of his choice. He chose to speak last so Harris got to pick which podium she wanted, and she chose the one that will appear on the right for the viewers (i.e., stage left, house right). This is the power position. Think: Where do all the late-night TV comedians sit? Almost always on the right.

Harris has spent five days locked down in the historic Omni William Penn Hotel in downtown Pittsburgh preparing for the debate before going to Philly. She is studying policy and working out 2-minute answers to expected questions. She is also reviewing past presidential debates, especially the 2016 debates between Trump and Hillary Clinton.

Harris' debate prep is being led by Karen Dunn, who has trained every Democratic presidential candidate since 2008. She also prepped Jeff Bezos for his testimony before Congress. Her superpower is speaking truth to power, but nicely, and getting power to recognize truth. She thinks of it as "tough love."

Dunn understands the nature of punching and counterpunching well. When prepping Hillary Clinton in 2016, Dunn suggested that Clinton bring up the incident in which Trump insulted a contestant in a beauty pageant by first calling her "Miss Piggy" (because she was curvy) and then calling her "Miss Housekeeping" (because she was a Latina). On stage, Clinton said: "Donald, she [the contestant] has a name. Her name is Alicia Machado and she has become a U.S. citizen and you can bet she's going to vote this November." That remark went viral.

When she is not prepping Democrats, Dunn does lawyering. Today, she will defend Google against antitrust charges. In the courtroom, she will be opposite AG Merrick Garland, who is on the other side. She knows Garland well. In fact, he officiated at her marriage in 2009. No hard feelings, though. Dunn has also represented Apple and Uber in court. On the other hand, she also represented the counterprotesters in their lawsuit against the organizers of the Unite the Right rally in Charlottesville in 2017. She won a judgment of $25 million for them. Call us crazy, but she sounds like a possible candidate to replace Garland as AG if the Democrats hold the White House. However, she has never been a prosecutor, which is a minus, but nobody is perfect.

In addition to making sure she knows all the facts on policy, Harris fully understands that at least a third of the voters don't know who she is, so her primary goal is to introduce herself. A key here is looking and sounding presidential. She had some practice in the CNN interview with Dana Bash, but the debate will be much tougher because Trump will be there lying through his teeth at her. A secondary goal is to rattle Trump, to throw him off balance and make him say something that offends groups of voters. She will almost certainly say that he is an old rich guy who is interested only in helping himself and other old rich guys. She might also call him a "Russian puppet" (although the technical term is "useful idiot"). She gets bonus points if she can work E. Jean Carroll and Stormy Daniels into the conversation. If Trump tries to talk over her, the audience won't be able to hear that, but she could say on mic "Trump is talking over me right now. Have you ever had a man talk over you?" That could resonate with women.

Another theme Harris is sure to emphasize is that the race is "prosecutor vs. felon." When the subject of crime comes up, she is going to point out that he is a convicted felon and she spent years putting people like him in prison. She once quipped: "I know his type." She might say that again tomorrow.

Another thing she will harp on over and over is abortion. She will hold him personally responsible for Roe v. Wade being thrown out because he nominated three of the justices who did his dirty work. She will also hold the Republican Party responsible for trying to roll back women's reproductive freedom in other ways. Like a pitbull, she won't let go of this, no matter how evasive he tries to be. She knows that for women under 45, abortion is now their #1 issue. Trump is going to struggle to give a coherent response that doesn't offend his base and also doesn't offend suburban women. Actually, we could probably just simplify that last sentence to "Trump is going to struggle to give a coherent response." Then it applies to pretty much every question he'll get. Say, about, oh.... child care?

Harris is a big believer in mock debates, and is having them on a specially constructed set that mimics the actual debate set and with TV lighting and two moderators who come at her hard. In these mock debates, Trump will be played by long-time Clinton associate Phillippe Reines, who will wear an extra-long tie and boxy suit. He has played Trump in previous mock debates and knows how to hit below the belt, just as Trump will. The mock debates will be recorded so that Dunn and others can review and critique Harris' performance afterwards.

In preparation for the debate, Harris' campaign organized over 2,000 events around the country this past weekend. She hopes to get a million people to participate.

Meanwhile, Trump is mostly doing campaign rallies. He doesn't believe in studying briefing books or doing mock debates. He will sit down with Rep. Matt Gaetz (R-FL) though, and try to answer some questions Gaetz throws at him. Will Gaetz have the nerve to ask him really tough questions, like: A New York State judge said you raped E. Jean Carroll. What kind of role model does that make you for the nation's children?" We don't know, but we kind of doubt it. Answering questions like: "What are three ways that you were the best president in history?" isn't really going to prepare Trump well for the actual questions. In any event, Trump's answer to most questions is likely to be "Harris is a dangerous San Francisco liberal." He will talk to a few policy experts, though, including Tulsi Gabbard, whose primary expertise is on how to make Democrats' blood boil. In short, Trump is doing more debate prep than he wants to let on, but it is of an unconventional nature and not 90 minutes standing on a stage with a Harris stand-in answering likely questions.

Trump's other goal, besides painting Harris as a dangerous liberal, is tying her to the unpopular elements of the Biden administration, especially immigration and crime. He will call her the "border czar" and blame her for illegal immigration. However, that will be an invitation for her to point out that he personally killed the border bill written by the very conservative Sen. James Lankford (R-OK) along with Sen. Chris Murphy (D-CT). Then she will blame Trump for the border crisis. One area he probably won't touch is Gaza, because his Middle Eastern policy is basically "What Bibi wants, Bibi gets." That will be even less popular with the protesters than Biden's policy.

While his advisers are advising him to talk about the issues, what Trump really wants to do is talk about grievances. How he was robbed in the 2020 election and how rural straight white Christians are now oppressed victims in America. His base will eat it up, but his base is not big enough to win an election. But will he be able to resist the siren song of having a grievance festival, especially if Harris provokes him over and over, which she surely will?

His advisers' worst fear is that Trump can't control himself and will mansplain things to Harris, which will tick off women across the country. Even though he knows this, he probably can't stop himself. Fundamentally, in 2016, he knew Hillary Clinton was very smart and a hard worker. However, in 2024, he thinks Kamala Harris is dumb and lazy, even though she has won five elections on her own (and a sixth one as Joe Biden's veep). Why the discrepancy? Well, for one thing, Clinton is white. And for a second, and third, thing as well. In any event, Trump is easily rattled and Harris is going to do her darndest to push his buttons. It will not help his discipline that his nightmares right now are being haunted by Black women—Harris, Tanya Chutkan, Fani Willis, Tish James, etc.

To get Shakespearean, is the debate much ado about nothing—a tale told by two idiots, full of sound and fury, signifying nothing? Historically, what are the greatest hits of debates? Serious discussions of nuclear policy or tax rates? Nah. There was Ronald Reagan saying "There you go again," to Jimmy Carter, Walter Mondale asking Gary Hart "Where's the beef?", George H.W. Bush looking at his watch, Al Gore sighing, Mitt Romney announcing that he had "binders full of women," and Lloyd Bentsen telling Dan Quayle that he was no Jack Kennedy. In other words, if the debate is going to move the needle, the most likely way will be if it produces a really juicy viral moment. (V)

Harris Is on the Air with Three Different Ads on Abortion

Two days before the Great Debate, Kamala Harris went on the air with not one, not two, but three different ads about abortion. Maybe she wants to encourage the moderators to ask Trump point blank: "Will you vote to legalize abortion in Florida by voting for Amendment 4, yes or no?" He has already said he will vote no, but not everyone knows that. What he says on the air Tuesday means a lot. Will he backtrack, and hugely antagonize his base or stick with it and make the election about abortion? Here are Harris' three ads:

       

If you have 2 minutes, watch them. That is better than our one-sentence explanations. The first ad shows Trump saying he is proud that his Supreme Court appointees repealed Roe v. Wade. The second ad is about an Alabama couple that was trying for a child using IVF until the Alabama Supreme Court canceled their child (literally). The third ad is from a then-pregnant woman who had a blood clot in her uterus and almost died because the doctors were afraid of being prosecuted if they treated her. We imagine that with these three ads running, a question or two will come up about abortion tomorrow. (V)

Trump Threatens to Jail His Opponents

Once again, Donald Trump is promising his supporters that as president, he will put his political opponents in prison. It is his 2016 rallying cry of "Lock her up," except on steroids. On Saturday, he posted to his boutique $17.10-per-share social media site this message: "WHEN I WIN, those people that CHEATED will be prosecuted to the fullest extent of the Law, which will include long term prison sentences so that this Depravity of Justice does not happen again. Please beware that this legal exposure extends to Lawyers, Political Operatives, Donors, Illegal Voters, & Corrupt Election Officials. Those involved in unscrupulous behavior will be sought out, caught, and prosecuted at levels, unfortunately, never seen before in our Country."

Not only are these threats real, but probably he could not be prosecuted even if he exacted this retribution illegally. If Trump were to order his AG to arrest prominent Democrats and keep them in prison for a few years without a trial, the Supreme Court would likely say that administering justice was a core responsibility of the president and thus he could not be prosecuted for any crimes he committed while carrying out his core duties.

Of course, there is scant evidence that elections are rigged or that anyone running them is cheating, with the possible exception of some low-level Republican election officials who have said they won't certify elections unless the Republican is the winner. No Democratic election official has said anything like that. (V)

Kennedy's Ballot Status is Still in Flux

We are so accustomed to having everything in the legal system take years and years, that when a decision is made in 2 or 3 days, it is mind-blowing. Last week, a Michigan judge ruled that Robert F. Kennedy Jr. could not pull his name off the ballot for the simple reason that the statutory deadline for ballot changes had already passed. State law trumps Kennedy's political goals, or something like that. Then on Friday, an appeals court overturned that decision. Michigan AG Dana Nessel has already said she will appeal to the state Supreme Court.

In North Carolina, the state Board of Elections refused to remove Kennedy from the ballot—again, due to a pesky state law that said you can't do that after the deadline has passed. A three-judge panel overturned that decision, too. Who cares about state law when there are elections to be won? But this one is definitely not over. The Board of Elections is appealing to the state Supreme Court. It is arguing that the state has 2,350 different ballots statewide, which differ due to races for the state legislature and many local offices. It has already printed 2.9 million ballots and they were supposed to go out last Friday. The Board really doesn't want the expense and confusion of printing another 2.9 million ballots and delaying their mailing way beyond the statutory deadline just because it may benefit Kennedy's master, in violation of state law.

In Wisconsin, a Dane County circuit judge refused to remove Kennedy from the ballot. Junior will surely appeal that decision. Wouldn't it be nice if appeals courts would take this stuff and within one day rule: "What you want clearly violates state law, so no. Case dismissed."

Donald Trump got some more good news on Friday. Cornel West has qualified to be on the Virginia ballot. He claims to be on the ballot in 13 states, including the swing states of Wisconsin and North Carolina. He is also an official write-in candidate in 23 more. Minor candidates rarely get more than 1% even if they have a ballot line, unless they are quite well known. Write-in candidates do even worse, except in very specific circumstances (e.g., Joe Biden in the New Hampshire Democratic primary this year). (V)

Liz and Dick Cheney Will Vote for Harris

On Friday, Liz Cheney unleashed a tirade against Donald Trump, calling him a depraved human being. She also called him and Sen. J.D. Vance (R-OH) "misogynistic pigs." That seems unfair to pigs, though, as there is little evidence they are misogynistic. They like whoever feeds them. Liz said she will vote for Kamala Harris. She also noted that so will her father. Dick. Yup. That Dick. The one Democrats liked to compare to Darth Vader. Dick Cheney.

Just in case anyone thought Liz was making it up, on Friday, Dick himself released a statement stating that he will also vote for Harris. In it, he explained why: "In our nation's 248-year history, there has never been an individual who is a greater threat to our republic than Donald Trump. He tried to steal the last election using lies and violence to keep himself in power after the voters had rejected him. He can never be trusted with power again. As citizens, we each have a duty to put country above partisanship to defend our Constitution. That is why I will be casting my vote for Vice President Kamala Harris."

Now get this. Harris' campaign chair, Jen O'Malley Dillon, was proud to receive Cheney's support. Who knew that having Darth Vader on your team was great? Well, OK, Luke Skywalker figured it out. And now, Kamala Harris has, too. The Force is strong with her.

Trump responded to Dick's endorsement of Harris by calling him a RINO. But he was much worse to Liz. He wrote: "She and her Unselects deleted and destroyed all evidence and information—It's GONE. Must of it proved that [former Speaker] Nancy Pelosi was responsible for J6 — DIDN'T PROVIDE SECURITY." None of this is true, of course. And if this is what he writes when he has plenty of time to think and edit carefully, then tomorrow's debate, where he has to think fast and there is no UNDO button, should be, er, interesting.

On Sunday, Sen. Bernie Sanders (I-VT) praised Dick Cheney. Just in case you think that was a typo, here it is again: On Sunday, Sen. Bernie Sanders (I-VT) praised Dick Cheney. It is not often that Sanders praises any members of the Cheney family. Yes, he did put in a few good words for Liz when she was vice chair of the Jan. 6 committee. But him praising Dick? That is, as we understand it, one of the 15 signs of the apocalypse. Still, he did it on "Meet the Press" yesterday. Talk about strange bedfellows. We can only assume that, sometime later this week, all the sea animals will gather on the surface of the waters and bellow unintelligibly.

Then there is the other Sanders, Sarah Huckabee, governor of Arkansas. Yesterday, on ABC's "This Week" she said "I'm not trying to be rude, but you don't get to call yourself a conservative or Republican when you support the most radical nominee that the Democrats have ever put up." So she thinks Harris is more radical than Franklin Delano Roosevelt, Adlai Stevenson, Hubert Humphrey, George McGovern, and Michael Dukakis? She went to college at Ouachita Baptist University. Guess they don't teach much history there.

Now that we know how Dick Cheney will vote, what about the president he served, George W. Bush? The day after Cheney's announcement, Bush made one, too. He announced that there would be no announcement. He is not going to tell anyone how he will vote. A profile in courage this is not.

Will these two Cheney votes matter? They could. They tell George W. Bush Republicans that Trump is so horrible that voting for a Democrat this one time is justified. After all, Cheney was Bush's veep. It is also possible that having both Cheneys (Chenies?) supporting Harris will help supporters of Nikki Haley to get over the hump to vote for a Democrat this one time. In a close election, even a small number of votes in seven states could matter a lot. (V)

Appeals Court Seems Skeptical of Trump's Position in E. Jean Carroll Case

Earlier this year, a jury awarded E. Jean Carroll $5 million for being defamed by Donald Trump when he claimed she made up the story of his sexually assaulting her (something the judge called "rape.") Then, after the case was over, Trump defamed her again. This time the jury awarded her another $85 million. He appealed both awards, naturally.

On Friday, the appeals court heard the first appeal. Trump was there and so was Carroll. This time, he didn't say or do anything to her. He just ignored her.

The oral arguments were about a claim from Trump's lawyers about one of the witnesses at the original trial, Jessica Leeds, who claimed that Trump groped her on an airplane in 1979. Her testimony may have helped convince the jury that Trump "does it all the time." Trump's lawyers argued that her testimony should have been excluded because at the time, there was no specific law banning sexual assault on airplanes. Roberta Kaplan, Carroll's lawyer, replied that in 1979 it was illegal to grope someone on an airplane and it is still illegal to grope someone on an airplane, even if the name of the offense has changed.

The judges appeared skeptical of Trump's case. When the subject of Trump's remark about how he "grabs them by the pu**y" came up, Trump's lawyer, John Sauer, objected. But Judge Denny Chin said: "Well, it's a confession about a modus operandi." All three judges were appointed by Democratic presidents.

After the hearing, Trump returned to Trump Tower to rail against the judges and possibly defame Carroll a third time. His main arguments were that Carroll fabricated her story, he never met her (despite photos of them together) and Leeds wasn't attractive enough for him to waste time groping her. He insists he could do better than that. Of course, when you are seatbelted into your seat on a plane, if you have an urgent, uncontrollable urge to grope someone, you may have to make do with the people who are available rather than the people who you might want to be available. This is actually a terrible defense because it effectively admits that he does grope women, which strengthens Leeds' testimony.

In addition, Trump attacked the lawyers who had been defending him in court. He said: "I'm disappointed in my legal talent, I'll be honest with you." There is a first time for everything, even being honest. Trump is also appealing the second ($85 million) award separately. (V)

Fox News' Future Could Be Determined in a Reno Courtroom

Reno, NV, likes to bill itself as "the biggest little city in the world." Next week it will be the most watched little city in the world. That will be because the 93-year old billionaire media magnate Rupert Murdoch wants to change the terms of an irrevocable trust he created years ago that gives four of his children equal voting rights in decisions affecting his media properties, especially Fox News and the Wall Street Journal. He now wants the most conservative of the four, Lachlan, to inherit the throne. The other three—James, Elisabeth, and Prudence—have different ideas.

Details are scarce since the case is under seal, but multiple media outlets are trying to convince the judge to unseal the case and hear it in open court since the public has so much at stake. This is not a routine probate court case where someone wants to disinherit one of his kids because he married a woman of the wrong religion.

James, Elisabeth, and Prudence are more politically moderate than both Dad and Lachlan. If the four children get equal voting shares, the three moderates could outvote Lachlan and install a more moderate person to run the media empire. One argument they could make to the judge is that staying the course means that the average Fox viewer, who is a 68-year old white man, will next year be a 69-year-old white man and then a 70-year-old white man. That is not what advertisers are looking for. Also, having to pay companies $787.5 million from time to time for defaming them is not good for business. In other words, having Lachlan run the company into the ground is not good for their financial interests.

There is also a legal issue here. The trust Murdoch created is an irrevocable trust. Irrevocable trusts can't be revoked. That's kind of what "irrevocable" means. In some limited circumstances they can be changed, if all the beneficiaries agree. In this case, they definitely don't agree. In June, the Nevada probate commissioner found that Murdoch could change the terms if he was acting for the "sole benefit of his heirs." Three of the heirs are now disputing that the change benefits them. In fact, they are arguing that it hurts them by allowing Lachlan to wreck the business in the long run.

If the three kids win, that could have a profound effect on Fox and also the Republican Party. They could make Fox less Trumpy and more Bushy, or something else that is still conservative but not culty. There is no indication how long the process will take to play out or when a decision is to be expected. In any event, any decision is certain to be appealed as high as possible. The case is technically about an inheritance dispute between a parent and his children. There aren't really any constitutional issues raised here, so the Supreme Court might not grant cert if anyone asks it. (V)

Democrats and Republicans Agree: We Need More Judges

When we saw that the Senate had unanimously approved a bill to create more federal judgeships, we had to go back and reread it another four times before believing it. Senators from both parties agree with Thomas Jefferson that justice delayed is justice denied, but surely the Senate Republicans aren't going to allow Joe Biden to suddenly appoint a whole boatload of new judges. Turns out, they aren't, but they do realize that cases are taking too long and people are sitting in jail for months waiting for their trial and people who are injured often give up on civil cases because the case never moves forward.

The trick the bill uses to make it palatable to Republicans is that the judgeships would not all be created the day the bill is signed. They will be phased in slowly over 10 years, starting in 2025 and ending in 2035. No one knows now how many of those years will have Democratic presidents and how many will have Republican presidents. So the bill presents both opportunity and danger to the Republicans. Also, all federal judges have to be confirmed by the Senate, and many Republicans believe that their long-term prospects in the Senate look good due to the large number of red states in the South, Midwest, and West.

The bill, known as the JUDGES Act ("Judicial Understaffing Delays Getting Emergencies Solved" Act) would create 66 new federal judge positions, focused on the most overburdened districts. Many judges around the country have complained about the unbearable workload, with the consequence that justice is ill-served. No new judgeships have been created since 1990, while the number of cases has grown by 30% since then.

So, once in a while, Congress can actually do something for the good of the country? Well, no. The House may not even take up the bill even though it is relatively noncontroversial. Why not? Because in September, the House will mostly be occupied with messaging bills that Speaker Mike Johnson (R-LA) wants votes on solely for the purpose of making Democrats take difficult votes the Republicans can campaign against. So there is no time for legislating, even on things all the senators agree is important and urgent. There's also the small matter of the budget, which theoretically needs to be addressed (even if that means kicking the can down the road) by the end of September. In October, everyone in the House will want to go home to campaign.

The chances of the bill passing in the next session of Congress are very low because then it will be known who the president is. Members of the party that does not control the White House will vote against the bill. Right now it could pass because members of each party think there is a 50% chance their president will get to make the nominations. So a perfectly good bill that most members want gets killed by politics. In other words, it is business as usual. (V)

It's Over. Finally.

Believe it or not, the final primaries are tomorrow. Why states hold their primaries in the middle of September is not clear. Maybe they were hoping to have short general-election campaigns. That's true, of course—but it comes at the price of interminable primary campaigns. Is it really a good idea to have 8 months of Democrats attacking Democrats and Republicans attacking Republicans and then 1½ months of the parties going after each other?

In any case, here is a brief rundown of the three primaries that will take place tomorrow:

So, on Wednesday, the general election will have started in every state. Finally. (V)

Today's Presidential Polls

We saw an interesting clip of NBC's Steve Kornacki recently (but can't find the link now—sorry). In it he says that in all presidential elections going back decades, at least one of the candidates had a lead of at least 5% at some point. Only this one is different. Neither candidate has led nationally by 5 points or more at any time this year. The state polls are just as close. Today's batch of polls makes that point even more sharply. Maybe the electorate will end up being very different from what the pollsters think it will be and the election will end up not being close, but right now, all the data say it will come down to a few thousand votes in seven states. (V)

State Kamala Harris Donald Trump Start End Pollster
Michigan 50% 49% Sep 03 Sep 06 YouGov
Pennsylvania 50% 50% Sep 03 Sep 06 YouGov
Wisconsin 51% 49% Sep 03 Sep 06 YouGov

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


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