It's Jan. 6—Again

A day that will live in infamy. No, wait, that slot has been taken already. How about: A day that ought to live in infamy but probably won't? Not as catchy, but it's the best we could come up with. We sometimes get questions about who was the smartest president or the richest president or the best president or the worst president, but let us pre-answer the question: "Who was the luckiest president?" Hands down it is Donald Trump. Some presidents are elected in a time of peace and prosperity and they just coast on it, but it doesn't always work due to something over which the president has little or no control (see: Carter, Jimmy). Donald Trump, on the other hand, had complete control over the actions that might have led to consequences which he has so far escaped.

After setting up slates of fake electors to stay in power after losing an election (Plan A) and then egging on a mob to sack the Capitol (Plan B) once Plan A failed, Donald Trump broke a whole bunch of laws. He was duly indicted in multiple jurisdictions (and almost indicted in others) for these crimes and other ones and sued civilly multiple times. Have there been any consequences for him for all his criminal behavior? Yup. He was elected president again, tying Stephen Cleveland's record for most times regaining the presidency after losing it. How did he pull this off? He was extremely lucky.

Here is a brief rundown of some of the criminal and civil cases against Trump and how luck played a role there:

• Federal Insurrection Case: This is the biggest and potentially most problematic case. Trump was indicted for conspiring to defraud the United States (by trying to steal an election he clearly lost). The evidence, both in terms of eyewitness testimony and recordings, was overwhelming. Yet Trump will probably get away with it. How come? He was lucky. First, AG Merrick Garland dawdled much too long in dealing with it, even though he initially said he was appalled by the whole series of events. Then, he finally appointed Jack Smith as a special prosecutor on Nov. 18, 2022, about 22 months after the crimes were committed. Garland could have appointed Smith the day after his own confirmation (March 10, 2021). In a way, Trump was lucky even earlier. If then-Majority Leader Mitch McConnell had allowed Garland's Supreme Court nomination to come up for a vote in 2016 after Antonin Scalia died suddenly on Feb. 13, 2016, Joe Biden would have chosen a different AG who might not have been so scared to move the case along.
  
  Finally, Trump got very lucky when the Supreme Court decided to take up his claim that presidents are like kings and can't be prosecuted, then also dawdled on rendering a decision, and finally ruled that presidents are kind of king-lite, and can't be prosecuted for doing things sorta, kinda, related to being, well, president. The Court could have refused cert with a sharp note: "No one is above the law, not even the president."
  
  
• Georgia Insurrection Case: This case was potentially the most damaging to Trump because presidents can't pardon people for state offenses. If he had been nailed here, it is likely he would have been sentenced to state prison. In what has to be one of the worst unforced errors in all of American jurisprudence, Fulton County D.A. Fani Willis, who had an ironclad case against Trump and 18 co-conspirators, hired her boyfriend as lead prosecutor. This was foolish beyond all belief. Not only was said boyfriend not a prosecutor, but he was a generic lawyer who handled criminal defense and personal injury cases. If Willis had been dating Jack Smith or Andrew Weissmann, she might have been able to say: "I picked the toughest prosecutor in America to lead the case," but then-boyfriend Nathan Wade was the wrong guy for the moment. And even if she had been dating an industrial-strength prosecutor, she should have known that in such a high-profile case, she had to avoid even the appearance of impropriety. To make it worse, she wasn't doing Wade a real favor. He said he was making more money doing criminal defense and personal injury cases than the State of Georgia was paying him. How could she make such a mistake? Apparently, love is not only blind, it is also stupid.
  
  The judge in the case admonished Willis but kept her on the case. Trump appealed that decision and on Dec. 19, 2024, the appeals court sided with Trump and kicked Willis off the case. She has appealed to the Georgia Supreme Court. But even if she wins, there is no way she can prosecute a sitting president. Best-case scenario for her is to drop Trump and prosecute all the others except those that have flipped. So Trump lucked out here.
  
  
• Florida Documents Case: In the case where Trump was caught with his pants down, actually in his bathroom at Mar-a-Lago, where he stored all the secret documents he took with him after leaving the White House, he was again very lucky. By random chance, the judge assigned to the case was Aileen Cannon, an inexperienced, ambitious, and opportunistic judge he appointed himself. She made multiple rulings in his favor that the U.S. Court of Appeals for the Eleventh Circuit batted down. Then she, too, dawdled endlessly. In the end, she ruled that the special prosecutor law, which has been in place since Watergate, was unconstitutional, something no other judge believes. She was obviously making a bet that Trump would win the election and then appoint her to the circuit court at his first opportunity. It could yet happen. It was just dumb luck that Trump got such a Trumpy judge in the first place. There are plenty of other judges in Florida who would have put him on trial with no delay. As an aside, if Pam Bondi is confirmed as AG and appoints a special prosecutor to go after any of Trump's enemies, the judge could throw out the case, citing Cannon's ruling. This will force the Supreme Court to take the case and decide if special prosecutors are legal.
  
  
• New York Documents Case: The hush-money case in New York was about Donald Trump's paying Stormy Daniels $130,000 to keep quiet about their 90-second affair in 2006. If Trump had just paid her out of his own pocket, it would have been a private contract between two consenting adults and perfectly legal. Instead, he got his fixer, Michael Cohen, to pay her off and then used company money to pay Cohen $420,000 as reimbursement for legal services rendered (including paying his taxes on the reimbursement and a small bonus for work well done). Trump tried to cover this all up in the company bookkeeping, and this fake accounting violated New York State commercial law.
  
  Then-Manhattan D.A. Cyrus Vance started to prosecute Trump in 2018 after Cohen went public with the story. Vance had a reputation for being fierce and merciless, but he retired in 2021, which was a lucky break for Trump. The new Manhattan D.A., Alvin Bragg, had no interest in pursuing the case, which so infuriated the two lead attorneys working on it, Mark Pomerantz and Carey Dunne, that they quit. Much later Bragg took up the case again and got 34 convictions. But if Vance had not decided to retire or Bragg had taken over the reins and immediately told Pomerantz and Dunne to go full speed ahead, Trump would have been convicted years earlier and would probably be in prison now. The case is not over yet. See below for more on it, but it is unlikely that Trump will go to prison on any of the 34 charges he was convicted on.
  
  
• Arizona fake electors case: Georgia isn't the only state prosecuting people involved in the attempted coup. Arizona is another one. Arizona AG Kris Mayes has indicted the 11 fake Arizona electors. But she didn't stop there. She also indicted seven of Trump's close associates: Christina Bobb, John Eastman, Jenna Ellis, Boris Epshteyn, Rudy Giuliani, Mark Meadows and Mike Roman. Trump was not indicted but was listed as an unindicted co-conspirator. He lucked out here. Mayes could have indicted him but chose not to.
  
  Trump got a second lucky break here, too, as well. The judge assigned to the case, Bruce Cohen, was moving it along nicely. Jenna Ellis, who was at the center of the case and knows everything, flipped. So did one of the fake electors. Their testimony would surely be enough to convict all the others and show for the historical record that Trump knew about everything. Then Cohen did something stupid. Not Willis-level stupid, but still stupid. He sent an e-mail to other judges urging them to call out the people attacking Kamala Harris on account of her race or sex. Yes, judges have the same right as everyone else to air their political views, but when you are a judge in such a high-profile case, sometimes discretion is the better part of valor. Just keep it to yourself. The other judges are surely capable of making their own decisions on when to speak out. And for heaven's sake, if you can't keep quiet about this, tell the other judges at lunch. Don't put it in written form (email) that can be discovered later. Needless to say, some of the defendants filed a motion claiming Cohen was biased and should recuse himself from the case. In November, he did just that and was replaced by Judge Sam Myers. Myers will have to start all over again, which will delay the trial until 2026. If Cohen hadn't come out defending Harris, the trial would have been in 2025.
  
  
• Michigan fake electors case: Michigan AG Dana Nessel indicted the 16 Michigan fake electors in July 2023. She didn't indict Trump, but she could have, just as Fani Willis did.
  
  
• Bank fraud civil case: The above cases are all criminal. They could result in the defendants going to prison. But there is more. In Sept. 2022, New York AG Letitia James sued Donald Trump for defrauding New York banks. She won the case and Judge Arthur Engoron ordered him to disgorge his ill-gotten gains of $355 million. That hits Trump where it hurts: in his wallet. He appealed, but had to post a bond of $355 million to let the appeal proceed. He sued, saying the bond was too much. Trump got lucky again. The appeals court, in an unusual ruling, lowered the bond to $175 million and Trump found someone else to post it. The appeal on the case is ongoing.
  
  If Trump loses the appeal, he can appeal again to the New York Court of Appeals. If he runs out of appeals, there will be a legal question of whether a state attorney general can seize the property of a sitting president. That could go on for years.
  
  
• Defamation civil case: When E. Jean Carroll said that Trump raped her in the 1990s, he called her a liar. She sued him for defamation. On Nov. 24, 2022, a jury ruled that what Trump did to Carroll was considered sexual assault rather than technically rape under New York's definition of rape, but still awarded her $5 million. After reading the decision, the judge noted that what Trump did is called "rape" by most people and by many states, just not New York State. Trump responded to the jury's decision by continuing to call her a liar. Those comments were added to Carroll's already-pending suit for comments he made while he was president and this time a different jury awarded her $83 million. The case is on appeal. If she wins it, collecting damages against a sitting president could be tricky if Trump fights it all the way, which he is certain to do. His luck here is that his lawyers will surely make a case that presidents are immune to everything always, even things that happened long before they became president. It is important to note that his legal strategy is not to focus on winning, but to focus on delaying the final resolution so long that the other side gives up. It usually worked in the past, so why not now? Still, he has gotten many lucky breaks along the way that have helped him immeasurably.
  
  

And by the way, today Congress will count and certify the electoral votes. It is expected to be somewhat calmer than last time around. (V)

Bad Month Ahead for Rudy Giuliani

Not everyone is as lucky as Trump. In particular, many of the people who worked for Trump ended up in trouble and have not gotten all the lucky breaks he did. One person who comes to mind is Rudy Giuliani. The noose is tightening around his neck and it would take a lot of luck for him to escape.

Specifically, he has defied two federal judges and they are not happy campers. Both are considering sanctioning him for refusal to obey their specific orders. "Sanctioning" might include throwing him in prison for contempt of court.

One of Giuliani's problems is a result of his defaming two Georgia election workers, Ruby Freeman and her daughter Shaye Moss, claiming they helped rig the 2020 Georgia election that Joe Biden won. A jury ruled that his claims were nonsense and awarded the women $148 million in damages, money that Giuliani does not have. In fact, he is broke. He has repeatedly refused to cooperate with the women as they try to seize his property, especially condos in Florida and Manhattan. Judge Lewis Liman has ordered Giuliani to cooperate and he has steadfastly refused. For example, he has refused to turn over information about the Florida condo so that the women can seize it.

On Friday, Liman is holding a hearing in New York on the women's motion to punish Giuliani for not obeying the court orders. Giuliani will find out then if Liman's patience has run out. If so, Liman could arrange for a short stay at Club Fed to focus Giuliani's mind. The women have (wisely) not asked for prison time. That would be telling the judge what to do. Judges tend not to like that. One thing the judge could do is rule that Giuliani does not live in Florida, in which case Florida's Homestead Law would not apply to him. In that case, the judge could seize the property and either turn it over to the women or hire a real estate broker to sell it and give the proceedings of the sale to them.

Earlier in the case, Liman appeared frustrated by Giuliani's stonewalling. That is not a good sign. Also, in an earlier hearing, Giuliani erupted at the judge. In an attempt to avoid appearing in the courtroom—which could result in his going to prison directly—Giuliani proposed a Zoom hearing, claiming he has a cough stemming from the attack on the World Trade Center on Sept. 11, 2001. Nevertheless, subsequent to his asking for the Zoom hearing, Giuliani has spoken at length in public and recorded a 2-hour podcast without coughing. Color the judge skeptical.

A week after being a guest of Liman, Giuliani must report to the courtroom of U.S. District Judge Beryl Howell in D.C. He has repeatedly attacked her and is facing a contempt hearing there. Among other things, he has said she is biased on account of the fact that she has sentenced many of the Jan. 6 rioters to prison. Her displeasure with him has been evident for months. She gives him orders, he refuses to obey, and she doesn't seem to take this well.

Both of these hearings are prelude to a trial in Liman's courtroom on Jan. 16. That will determine officially where Giuliani lives. If Liman rules that he lives in Manhattan, then his Florida condo can be seized. If he lives in Florida, it can't be. Another issue is who owns the (valuable) New York Yankees World Series rings that the club gave Giuliani when he was mayor of New York. He contends that he gave them to his son years ago and so they are no longer property of his that can be seized.

In addition, Giuliani is under indictment in Arizona and Georgia for his role in arranging the fake electors scheme after the 2020 election. Oh, and he is broke and his lawyers have washed their hands of him because he owes them upwards of a million dollars and can't pay.

Just in case you are wondering whether Donald Trump has done anything to help out a loyal supporter who risked everything to help him, the answer is: "No." He could have had one of his lawyers defend Giuliani, after all. That may ultimately prove to be a poor decision. In the Arizona case, or even the Georgia case if it goes forward, since Giuliani can't afford a lawyer, he might flip and say incriminating things about Trump. While Trump can't be prosecuted until Jan. 20, 2029, at the earliest, Giuliani could say things that could badly tarnish Trump's image and legacy, even if they don't land him in prison. Suppose in court under oath Giuliani says that Ken Chesebro dreamed up the fake electors scheme, but once Trump heard the plan, he grabbed it with both hands and orchestrated the whole thing, assigning everyone their parts and carefully managing the whole thing himself. In 100 years, that would probably be the only thing anyone knows about Trump. Quick, name TWO things that occurred in the administration of Warren Harding. Bet you can't without looking it up. (V)

Trump Wants One Huge Reconciliation Bill with Taxes and Immigration

Donald Trump has told newly reinstalled speaker Mike Johnson (R-LA) that he wants one big massive bill that cuts taxes, handles the border and energy, and does more, in one fell swoop. He wants a HUGE major victory early in his term. Trump is not known as a legislative tactician and may learn the hard way that this is a bold move and it might not go well.

After Rep. Elise Stefanik (R-NY) and Michael Waltz (R-FL) resign from the House to take jobs in the administration, there will be 217 Republicans and 215 Democrats. That means that even one defection will lead to defeat until the empty seats (including that of Matt Gaetz) can be filled by special elections, probably in April. The Big Bill will have lots of new spending in it, for a beefed up Border Patrol, a large deportation force, more drilling, and other things. Furthermore, there will be less revenue on account of the tax cuts. This is a formula for greatly increasing the federal deficit. It is also a formula for getting at least one deficit hawk to vote "no" on the bill. Additionally, some of the Republicans from New York and California are going to demand that the limit on the SALT deduction be raised. Putting together a bill that every single Republican can live with will test Johnson's abilities to the hilt.

Also a factor is that Trump made many expensive promises during the campaign. One that may come back to haunt him is exempting tip income from federal income tax. There are a lot of people who depend on tips and some of them may have voted for him specifically for this. If he doesn't deliver, because it is expensive and makes the deficit problem bigger, they will definitely notice. They could express their feelings at the ballot box in 2026 (and beyond).

One way to manage the deficit is to cheat. Current law has many of the 2017 tax cuts expiring soon. Some Republicans don't want to increase the deficit. But how do you measure that? One way is to compare the 2025 deficit to the 2024 deficit. But another way is to compare the 2025 deficit to what it would have been if the new tax law were not passed. Using fuzzy accounting, it is possible to pass a tax cut and not have that count as less revenue for the government even though absent the tax bill the government would have taken in more money due to the expiration of the tax cuts. Senate Finance Committee Chairman Mike Crapo (R-ID) wants to act like extending the tax cuts is not a tax cut, even though it will result in the government getting less revenue than if Congress had done nothing. Other members of Congress want to use "dynamic scoring," which assumes somehow that lower taxes will generate more economic activity and thus generate more revenue so they can even pay for themselves. All past experience shows that this is nonsense and cutting taxes decreases government revenue. It does not increase it. Deficit hawks understand all this gimmickry and many object to it. And all it will take is one defection to sink the bill.

Another problem is Republicans want to use the budget reconciliation procedure to get the bill through the Senate. But that procedure requires that the bill be only about budget items. The more stuff Trump tries to squeeze into the bill, the more likely there will be items that the Senate parliamentarian rules as "non-budget" and must be scrapped. Giving the Border Patrol more money is simply a budget item and is fine, but creating a Deportation Force (or whatever it is called) is not and that has to go through the regular order.

Putting all of Trump's wishes in one giant package and then getting every single Republican on board with it will be quite an achievement for Mike Johnson if he can pull it off. Of course, if this fails, the fall-back strategy is multiple bills, for taxes, immigration, energy, etc. That might be easier in some ways. But not all ways. Keep reading. (V)

Thune Vows to Uphold the Filibuster

There can technically be up to three reconciliation bills each year (one for revenue, one for spending, one for the debt limit). But the reconciliation process still requires every item in each bill to be about the budget, even if each one funds a different part of the government. Things that are not budget related have to go through the regular order, which means they can be filibustered in the Senate.

Could the Republicans abolish the filibuster so they can ram bills through with their 53 votes? Yes, if they decide to do so. It is just a Senate rule and the majority can change the rules. But in his first speech as Majority Leader, John Thune (R-SD) said he will not abolish the filibuster because he believes it preserves the founders' vision for the country, which did not include radical changes to the laws each time a different group of senators had a small majority in the Senate.

Donald Trump is not going to like it if all of his plans that are not part of the budget go down in death by filibuster. He is going to ask—no, make that demand—that Thune abolish the filibuster. Thune is largely an institutionalist and is going to resist. It could be quite a battle. Thune is well aware that during the first half of the Biden administration, many Democrats wanted to abolish the filibuster, but then-senators Joe Manchin and Kyrsten Sinema refused to play ball. So when the Democrats could have done it and didn't, the institutionalist in him wants to play by the same rules. He also well knows that some day, possibly even in 2026 if there is a blue wave, the Democrats may have a small majority in the Senate, and if he gets rid of the rule and the Democrats manage to get 51 seats, they are not going to bring the rule back. Trump doesn't care about that, but Thune does.

If the filibuster stays intact, to pass legislation other than budgetary items will require Democratic support. There won't be any such support on any of the hot-button issues that get Trump's base really excited. The kinds of things that could actually pass are nonideological, like infrastructure, helping veterans, and creating more manufacturing jobs in America. But these are things Trump is not interested in. It will be interesting to see if Thune can stand up to Trump's pressure. (V)

Trump Must Appear in Court on the Hush-Money Case Jan. 10

Donald Trump has been convicted on 34 counts in New York for cooking the books to hide his payoff to Stormy Daniels. On Friday, he has to appear in court for sentencing. Judge Juan Merchan is in a bit of a bind here. Putting a president-elect in prison would probably not fly, for many reasons. Still, he has a number of options.

First, he could sentence Trump to prison but delay the start of the sentence until Feb. 2029. A second option is sentencing Trump to a year or two of unsupervised probation. If he doesn't commit any more crimes during probation, he gets off with no actual punishment. Trump would hate that because it would treat him like a common (but not dangerous) criminal. Third, the judge could fine Trump some amount of money. If it is a relatively small amount, say $10,000 on each charge, it is very likely appeals courts would uphold that as reasonable. But Trump wouldn't want to pay because that would be an admission that he is, in fact, a criminal.

However, maybe Trump will get lucky again and the judge will just close the case with no punishment. This is called an "unconditional discharge." There is no punishment, but the conviction remains on the books and Trump would henceforth go through life as a convicted criminal.

Can Trump appeal? Yes, but not until after sentencing. Can he prevent sentencing in the first place? It's tricky but his lawyers will probably try. They will certainly ask Merchan to just overturn all the convictions and throw the case out. Will he do that? That's up to him. If the convictions stand, Trump would be forced to provide a DNA sample for New York's criminal database. He is not likely to want to do that.(V)

Appeals Court Strikes Down Net Neutrality

Last week, the U.S. Court of Appeals for the Sixth Circuit overruled the FCC and declared that the FCC does not have the authority to impose net neutrality on Internet Service providers. Joe Biden had considered this one of his crowning achievements. It is exceedingly unlikely that Donald Trump will appeal this decision to the Supreme Court since he opposes most government regulations on private companies, especially on big quasi-monopolies.

The ruling said that Internet providers were not just big dumb pipes and thus could be regulated the same way telephone companies can be regulated. By law, telephone companies must produce a menu of services and prices and sell their services to anyone willing to pay their set price for it. Congress could explicitly give the FCC power to regulate Internet providers, but Republicans oppose that, so it is not going to happen anytime soon.

Does this matter? In the immortal words of Sarah Palin: "You betcha." How about a couple of examples? Amazon Prime competes with other streaming services, including Netflix, Disney+, and others. One way for Amazon to compete is to produce better content than the other guys, but that would lead to an ongoing battle that could get expensive. Another way would be for Jeff Bezos to go to AT&T, Verizon, T-Mobile, and the other phone companies and offer a deal: "I will pay you $[X] million a year if you give Amazon Prime super good performance and simultaneously slow down Netflix, Disney+, and other competitors." With net neutrality, it would be illegal for the telcos to do that. Now it is legal, so they would probably respond to Bezos with: "What's X?" They know they would lose customers if they effectively shutdown Netflix and Disney+, but if X is big enough, the bean counters at the telcos might tell the CEOs: "Do it!" Sure, Netflix would sue, but a business decision to favor one company over another is legal, just as they can decide to buy their routers from Juniper rather than Cisco.

The same issue applies to e-commerce. Suppose Walmart offers the telcos $[Y] million to slow down target.com so people get very frustrated with it and stop shopping there online. For the right price, they might be interested. After all, doing that is now legal.

We are a political site, so how about a political example? Many people get their television over the Internet. Satellite dishes and rabbit ears aren't very common. Suppose Rupert Murdoch goes to the telcos and asks: "How much do I have to pay you to reduce MSNBC and CNN to 56 kbps and give all their other bandwidth to Fox?" They might give him a number and he might accept it. Then the pesky MSNBC and CNN go away. Once on a roll, the Murdoch-owned Wall Street Journal might then ask the telcos how much it would cost to throttle The New York Times and the Washington Post into uselessness. Again, they could name a number and the Journal might accept the deal. Until last week, that would be completely illegal. Now it is just companies making business decisions.

These are just a few examples. Due to the enormous impact of the Internet on just about everything, the possibility of deep-pocketed companies blocking their competition by paying the telcos to cut off their Internet access is now simply a business decision. (V)

Washington Post Cartoonist Resigns after Jeff Bezos Censors Her Cartoon

When Jeff Bezos, who owns the Washington Post personally, blocked a Post endorsement of Kamala Harris that the staff had already written, he got a bit of bad press, along with excuses how it was understandable that someone in his position didn't want to anger a possible president. Some people thought this was a one-off decision, and now that the election is over, he'd go back to selling stuff on Amazon and sending rockets into space.

Think again. The Post's Pulitzer-Prize-winning cartoonist, Ann Telnaes, drew a cartoon depicting Bezos, Mark Zuckerberg, and Sam Altman bringing bags of money as offerings to a giant statue of Donald Trump. In addition, Mickey Mouse lay on the ground prostrated before the statue. All fine until editorial page editor David Shipley ordered the cartoon killed. It is not known (yet) if this was "anticipatory obedience" by Shipley or a direct order from Bezos. Either way, it is a not a good sign for independent journalism. Telnaes responded by resigning from the paper.

All autocrats know that one of the first things they have to do is silence the media, so that they can break all the laws they want and not have anyone know about it. When media outlets kowtow in advance, without actually being forced to, it makes the autocrat's life even easier.

After Bezos' decision to kill the Harris endorsement came out, the Post lost 300,000 angry subscribers. Whether that was a smart move is questionable. Bezos bought the Post for $250 million and put untold millions into it to bring it up to speed in a digital world, basically as an act of charity. Sure he can run ads in the Post now, but he can also run ads in the Times by just paying for them. Owning the Post really doesn't help Amazon or Blue Origin very much. This is why he bought it with his own money, not Amazon's—so he wouldn't have to defend his purchase to a board of directors as a good business decision for the company.

There are only four true national newspapers in the U.S.: The Post, The New York Times, The Wall Street Journal and USA Today. Reducing that to three players really doesn't do much for independent investigative journalism, and there is probably going to be a big need for that in the coming 4 years.

If Bezos wants to get off the hook going forward, he could create a foundation and give all his shares in the Post to the foundation. If he threw in a few hundred million as a cushion if times get rough, that would be nice and it wouldn't force him to eat only mac and cheese for a year. (V)

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