We got a surprisingly large number of Trump questions this week, so we'll start with some of those. This week's installment also includes the longest (and arguably grimmest) answer we've ever written. In short, you might want to make sure you have a strong cup of coffee before you start reading.
Q: If Trump secretly pardoned Trump Organization CFO Allen Weisselberg so he wouldn't be subject to pressure to testify against Trump in any future lawsuits, at what point does the pardon become known to the public? J.M., Lexington, KY
A: Customarily, pardons are registered with the Department of Justice when they are issued. If Trump quietly did that and told then-AG Bill Barr or then-acting AG Jeffrey Rosen to keep it quiet, then AG Merrick Garland would have that information, and would presumably release it, either through some sort of official announcement or through a leak.
It is possible Trump might have declined to do that, so as to enjoy greater secrecy. If so, then it would not be absolutely necessary to reveal the pardons until a federal crime was charged. However, there are risks to this. Secret pardons have never been tested in court, and could be subject to a legal challenge. Further, the pardonee would need ironclad proof that the pardon was issued while Trump was still president, and proving that is not so easy.
In any event, this is moot in Weisselberg's case. He's being investigated for, and looks like he's going to charged with, state-level crimes. Those cannot be pardoned by a president.
Q: Like most liberals, I am excited anytime something bad happens to Donald Trump, and I cringe at the consequence-avoiding teflon he seems to have. Could you get out the crystal ball, give some probabilities for the following, and explain your reasoning: (1) Donald Trump spends time in jail, (2) Rudy Giuliani spends time in jail, (3) one of the Trump children spends time in jail, and (4) Rep. Matt Gaetz (R-FL) spends time in jail? M.F., Calgary, Alberta
A: First, we assume that jail (short-term incarceration for lower-level crimes) and prison (longer-term incarceration for more serious crimes) are being used interchangeably here, and that you're really asking which of these folks is likely to do some sort of serious time, as opposed to spending a night in a holding cell before making bail. Second, we're not confident enough to assign specific probabilities, but we'll try to give you as satisfactory an answer as we can.
Anyhow, we would guess the most likely future inmate is Gaetz. His alleged crimes are so serious that he would absolutely have to do some time if convicted. The evidence against him appears pretty damning. And that's just the evidence that is publicly known; who knows what else prosecutors might have on him? Gaetz is also young and healthy, so he's not likely to escape imprisonment by dying, or in response to a request for compassionate, non-prison sentencing.
Next most likely is Trump. He's left himself exposed in too many ways to wriggle out of them all. Further, there is massive benefit to being the DA who brings him down, and there will be huge blowback against any DA (or AG) who tries and fails. So there will be much motivation to pull out all the stops when it comes to him.
Third in line—and we'd say we're roughly in coin flip territory now—is Giuliani. On one hand, he's clearly been very careless in his dealings in the past few years, and that is likely to come back to bite him. On the other hand, most of his trouble is either professional (disbarment) or civil (Smartmatic suit). The only criminal issue that is clearly hanging over his head is his interactions with Ukraine, and we just don't know enough about that to feel confident he's going up the river for it. Also, he's the oldest and apparently unhealthiest person on this list, so he might beat the rap by expiring. And we really do think that his fleeing the U.S. is possible, so he might beat the rap by escaping.
However, does he really want to live in Angola, Cameroon, or Niger? He would have to find a country that is livable and which is not subject to U.S. pressure. Sure, he could try to move to Saudi Arabia, but MBS has enough trouble with the U.S. already and doesn't want more. If Rudy showed up and the U.S. asked for him back, MBS might just arrest him and send him to Egypt (which does have an extradition treaty). Would this be legal? Wrong question. Right question: Do you think MBS gives a hoot about what is legal?
Last in line is Trump's children. Nearly all of the reporting on them, their possible legal exposure, the extent to which they are being investigated, etc. is speculative. The logic is that (1) the Trump Organization was up to no good, (2) The kids were intimately involved in the Trump Organization, and therefore (3) the kids were up to no good and so are in deep trouble. However, that's not evidence, it's just a bunch of (admittedly reasonable) assumptions. The kids might have been insulated from any shady dealings. Or they may flip on their father/their colleagues to save themselves.
Q: Why does it take so long to even charge Donald Trump with a crime when he's clearly broken many laws? I "get" that you have to get it right and I also "get" that someone with lots of money can drag things out, but heck, even Harvey Weinstein has been charged, tried and jailed, and all in the last few years. D.D., Hollywood, FL
A: The case against Harvey Weinstein was pretty simple. A number of women said he committed acts of sexual assault, and he said that he didn't. It wasn't all that hard to get the victims and Weinstein into a courtroom, to have them each tell their side of the story, and to let a jury decide.
The most significant case against Trump, which is the one in New York, is vastly more complex. It appears to involve many different sorts of illegal acts, and it definitely involves financial records, which take time to acquire and unravel. And a DA has to have basically the whole case in place before charging, because the ball will get rolling pretty quickly thereafter. It's also the case that DA Cyrus Vance Jr. got key documents he needed, namely Trump's tax returns, fairly recently. Others who might be investigating, say Merrick Garland and his team, got an even later start.
Q: Last week, Bill Maher brought up the question of what would our country be like now if the insurrectionists had gotten to Mike Pence and succeeded in killing/hanging him? What alternative political landscape would we have now? B.P., Mill Creek, WA
A: We will start by noting that, should that have come to pass, it would have fundamentally altered the character of that day. In that event, you would have a near-total breach of security, along with a crowd that was out of control and had made clear its violent intent. This would have left the police, or the National Guard, with little choice but to open fire on the crowd. So, things would have been much, much bloodier.
Once order was restored, then, with a dead VP (and probably other dead officials), as well as a bloodbath on the steps of the Capitol, Americans would be angry and would demand answers and punishments. Donald Trump would likely be arrested, and Sens. Ted Cruz (R-TX) and Josh Hawley (R-MO) would be tossed out of office by their peers, while some representatives would be similarly cashiered. The Republican brand would be terribly damaged, perhaps fatally, while the Democrats would have political cover to do almost anything they saw fit in order to "fix" the country.
In short, we think things would have been very different if Pence had been assassinated.
Q: You added a trademark symbol to "True Believers" in a post about Republican activists. I know there's a True Believers comic series based on Marvel characters—just safeguarding against Disney's long legal reach? M.M., San Diego, CA
A: No, we're not concerned about Disney. Their legal department is a real Mickey Mouse operation.
The trademark symbol implies a manufactured group identity, either by the members of the group themselves in an effort to feel special, or by those in power who wish to manipulate the group for their own purposes. It's a rather subtle bit of snark.
Q: We live in a fairly red area, to the east of blue Los Angeles, and many of our neighbors have American flags conspicuously displayed in their front yards. I have no way to verify this but have my suspicions that this is an indication of one's Trumpiness or at least one's Republican-ness. I have never felt the need to publicly display my patriotism (I'm plenty patriotic!) but now I fear that flying the stars and stripes on a very tall pole in my yard would give the neighbors a misleading message about my political views. I'm trying to keep current with the subtle dog-whistle-type messaging these days and would be interested in your take on this. Am I just being paranoid or has my country's icon been co-opted and sullied by those I consider the enemy? Case in point—the shocking use of flagpoles in the Jan. 6 attack. K.A., Upland, CA
A: It's true that a lot of phony patriots parade the American flag around, although that's always been true. The real dog-whistle flags, at least at the moment, are the Confederate battle flag and the Blue Lives Matter flag.
We don't think that the Trumpers or the right-wing have a monopoly on the flag. (Z)'s grandmother was a die-hard liberal, and she regularly flew the flag from her house until her passing in 2003 (before Trumpism, true, but not much before). Military families and veterans often fly the flag, and they are not all Republicans or Trumpers. That said, if a person is really concerned, they could add a second flag to the mix. A pride flag, or a Black Lives Matter flag, or AFL-CIO, or possibly even a state flag.
Q: Now that the USPS Board of Governors has been fully approved, why haven't they gotten rid of Postmaster General Louis DeJoy? R.P., Redmond, WA
A: We have no insider information, all we can do is point out three things:
All of this assumes, of course, that the Democratic majority thinks he needs to go. Maybe they do, maybe they don't.
Q: You wrote that the "invisible hand" might be accomplishing what Sen. Bernie Sanders (I-VT) could not, in raising the minimum wage to $15/hour. That same day, a Houston hospital fired 150 employees for refusing to get the COVID-19 vaccine, and the CDC director noted that now, nearly all COVID deaths are among the unvaccinated and are preventable. This raises the question: How much longer will big insurance companies continue to foot the bill for weeks in the ICU because their policy holder refused to take basic precautions? Will the free market dictate policy cancellations for the unvaccinated, and would that finally force the hands of the reluctant? C.R., Kansas City, MO
A: It would be hard to make this work. If the insurance companies tried to cancel policies in advance of hospitalization, they'd have to have a way to identify the un-vaccinated, which would be a huge logistical and legal hill to climb. If they tried to cancel policies following hospitalization, that wouldn't save money (since the money would already be owed under the terms of the policy), and would be somewhat pointless since the person is unlikely to be hospitalized again. And this is before we consider that many people are covered by group policies and can't be canceled or booted.
The companies could change the terms of some insurance policies, either requiring proof of vaccination, or putting COVID-19 on the list of un-covered liabilities. However, they can only do that on the next policy, and not the current one, so this would be a long-term response, not an immediate one.
Q: To my mind, there is an obvious argument against D.C. Statehood that I don't recall having heard expressed anywhere. Washington is the 20th largest city in the United States by population. If it is going to become and therefore get two senators to represent its interests, why should New York City, Los Angeles, Chicago, Houston, Philadelphia and the other dozen or so cities that are larger than Washington not also become separate states and enjoy comparative representation in the Senate? J.B., Hutto, TX
A: You're comparing apples and oranges. The argument for D.C. isn't really based on population, excepting that they have easily cleared the minimum population required by the Northwest Ordinance of 1787 (and 1789). It's based on the fact that the people there are American citizens/residents, are not fully represented in the government, and statehood is the established means for resolving that. A constitutional amendment granting the District one representative and two senators would also solve the problem, but the Republicans aren't going to go for that, either.
Q: Whenever the Senate goes on a major break, one order of business on the final in Senate workday is usually a large number of military type promotions. Why do all these military promotions have to go thru the Senate? Thankfully, these are always done with unanimous consent; imagine the time this would take if one party forced roll call votes on military promotions. R.V., Pittsburgh, PA
A: Shhh. Don't give Sen. Ron Johnson (R-WI) any ideas.
Anyhow, as we have discussed before, military officers are considered Officers of the United States. In broad terms, that means they are vested with some portion of the sovereign power of the United States. In specific terms, that means that they are empowered to either commit the U.S. to some obligation (financial, diplomatic, etc.) or to command troops.
The Constitution implies that all Officers of the United States (a group that includes many civilian officials, and not just military personnel) should be approved by the Senate. This is impractical, and so when it comes to military folks, the compromise is that Senate only approves people above the rank of major. This has been deemed enough to satisfy the constitutional requirements (which would otherwise have to be changed by amendment). It also serves to reiterate (1) the Congress' oversight of the executive branch, of which the military is a part, and (2) civilian control of the military.
Q: Reading your recent items on Supreme Court rulings, I was wondering how involved the original plaintiffs/defendants in a case remain involved when the case gets to the Supreme Court level? I recall reading that the original plaintiff in Roe v. Wade had little to do with the case beyond the initial court session—it was taken up by activists. So, in Lange v. California, for example, would the officer/police department directly be involved by the time it reaches the nine justices' desks? P.S., Brooklyn, NY
A: You have the right of it. Generally speaking, the facts of these cases are pretty simple or, at very least, have been clearly established by the time the case has worked its way up the legal ladder. The Supreme Court basically doesn't do witness testimony; by the time they get involved, the debate is not over what happened, but instead which legal theories/precedents are most applicable. In Lange, attorneys working for the state of California presented the state's case, and the police officer, his department, and the arrestee (Lange) all remained on the sidelines.
Q: I always assumed that the Chief Justice would be chosen based on time in the Supreme Court, and not just given to the nominee who replaces the departing Chief Justice, but that's clearly not the case. Why isn't it seniority-based, when the Chief has (slightly?) more power than the others? T.B., Santa Clara, CA
A: Sometimes, the senior member (or, at least, one of the most senior members) has indeed been promoted. However, if a president wants to maximize their influence on the Court, then it makes the most sense for them to put their guy or gal into the most powerful position, as opposed to elevating some other president's guy/gal. There are also cases where the president had a political need to place a specific and prominent person on the Court as soon as a seat opened, the first seat that happened to open up was the chief justiceship, and making that prominent person an associate while promoting someone else to chief would have been politically thorny. Such was the case with Salmon P. Chase (Abe Lincoln needed to get him out of the Cabinet and out of his hair), William Howard Taft (Warren Harding needed to unify the GOP), and Earl Warren (Dwight D. Eisenhower had to pay off a promise to appoint Warren to the Court in exchange for withdrawing from the election of 1952).
Q: Since President Biden became the first president to acknowledge the Tulsa massacre, are there other infamous attacks on black communities that white history has conveniently forgotten? I know the Black town of Rosewood, FL, was burned to the ground in 1923 and the survivors had to hide in the Florida swamps until they could be rescued (not by the state or federal government, incidentally). My Google search must have been flawed because it returned with articles about Tulsa only—Rosewood didn't come up, but I remember it from a news report and a film with Don Cheadle. Speaking of film, recently I serendipitously watched "Judas and the Black Messiah." I remember the news reporting of this incident as a child because I couldn't understand why people who supported one of my favorite comic book characters, the Black Panther, deserved to be shot in such a violent raid—ah, the naiveté of youth! Maybe this subject—the whitewashing of Black history—deserves its own survey piece from your perspective. D.E., Lancaster, PA
A: This is, of course, a very, very big question. So, our answer will necessarily just scratch the surface. Before we start, here are the ground rules that govern our response:
And with that out of the way, here we go:
And there you have what is, almost certainly, the heaviest answer we've ever written for the Q&A. We should also make clear that some of these incidents included the open participation of government authorities, and they pretty much all involved the tacit approval of those same authorities, who regularly chose to look the other way. Anyhow, we hope it was instructive, even if it was about as bleak a narrative as is possible.
Q: Why on Earth would you run the letter from N.M. in Phoenix without comment or fact checking? Their (possibly false) assertions of their personal voting patterns for moderate Democrats notwithstanding, the entire letter was nothing but distorted, evidence-free hyperbole straight from Breitbart or OAN. It was all ridiculous right-wing conspiracy theories about some non-existent Antifa "organization" backed by shadowy (I'm assuming Jewish) billionaires and some patently ridiculous, predictable blather about how MLK would reject the "economic violence" of BLM. Considering how much you guys don't hesitate to critique or fact-check far left comments, it seems pretty weird you would give this fact-free agitprop a platform without comment. J.M., El Sobrante, CA
A: Sometimes, including with that letter, we are asked if we deliberately run provocative letters in order to get angry people to write in. We never, ever do that. First, doing that is icky and would make our skin crawl. Second, we have plenty of material for the mailbag and no need to manufacture more. Third, if we wanted or needed more material, we would rather ask for it, and direct people toward something more interesting, like suggesting good books about famous scientists, or giving us other possibilities for a Top 10 list that we wrote, or making predictions for the upcoming year (and get ready for some good stuff on that front in a week or so).
Part of the purpose of the mailbag is to push back against the possibility of a political bubble. And when we select letters on a subject, particularly if there was a lot of feedback on that particular subject, we try to capture the spectrum of opinions we got. That section, for example, began with letters that reacted positively/constructively to our piece, and then progressed to letters that reacted more negatively/critically. It is possible the message was not genuine, but we generally have pretty good instincts for that. Further, there are usually a couple of others like it that we did not run.
When we comment on letters, we try to limit our responses to a few things: (1) clarifying or correcting something that we know to be inaccurate, (2) responding to specific claims about us/our work that nobody else is really in a position to address, and (3) adding a little levity. The N.M. letter was, in our view, a collection of strong opinions and not really a statement of facts. And if we deem something to be opinion, we rarely respond, since that is not our place; it's the province and the privilege of the readership.
Q: Maybe I just didn't notice it before, but lately your items sometimes seem to be urging lawmakers to take certain steps (like in "Manchin Plays Ball"), rather than just reporting on what's going on. Am I imagining this or is that actually the case? I hope it is, as you certainly seem to make a lot of sense (which is one of the main reasons I have been reading you every morning since 2014), and you likely have a good number of readers that are actually in a position to get these things done. I'd probably not be the only one to be very excited to have politicians get their ideas from fair-minded academics on EV rather than from extremist loons like Tucker on Fox or Q on 8kun. Anyway, if it is indeed the case, can you maybe share some instances where it was your intention to stir things a certain way, and you felt it actually happened or at least made a difference? A.D., Las Vegas, NV
A: We are definitely not in the business of advocacy. Nor are we reporters, though. What we are is academics who like to analyze politics: why something happened, what it means, what might come next, etc. That often includes discussions of the options available to a politician, a group, a party, an administration and so forth. But this is us talking about what that entity could do, not what they should do. We might even go so far as to point out which path seems to make the most sense to us, but that's an assessment of strategy, and not an attempt to influence anyone.
In terms of our influence, that's largely unknowable. A politician, or a staffer, or someone else who was affected by our words might not even be consciously aware of it or, if they are, they might not let us know. That said, we do get a little information of this sort on occasion. See tomorrow's mailbag for an example.
Q: (About) what percentage of questions you receive are you able to answer in your Saturday Q&As? And what are the top three things you wish people would keep in mind when submitting questions? T.G., College Place, WA
A: From the day that we began this feature through 1:00 a.m. PT Saturday, we have received roughly 27,295 questions. And, including today's entry, we have written 1,565 answers. That's an answer rate of about 6%.
As to three things we wish people would keep in mind, the most important is remembering to include your initials and city. If we have to try to track it down, it sucks up time that could otherwise be used for writing answers. Second, the shorter and more concise the question is, the more likely it gets an answer. Third, we don't object to people re-submitting questions. Some good questions don't fit well in a particular week, but might fit in a different week. Fourth, questions we can't possibly know the answer to ("Will the Democratic and Republican Parties exist in 2100?") are generally not high priority.
Q: In the course of writing your items, you perforce make many predictions ("...is [un]likely"). What's your track record? What proportion of these implicit predictions in fact turn out to be correct, as far as we know? Similarly, you make many declarations of so-called fact ("...the law/Constitution says"). On reflection, what proportion must be corrected or walked back? In your answer, be careful of self-serving memory biases. S.B., Tucson, AZ
A: As to predictions, we usually choose our words carefully. If we say something is "unlikely" and it happens, it doesn't really mean we were wrong, since unlikely things do sometimes happen. Given that wiggle room, there aren't too many cases where we are objectively in error. That said, we did blow at least one biggie, when we wrote a little over a year ago that if the AIDS crisis did not hurt Ronald Reagan politically, then Donald Trump surely would not be hurt by a disease, either. Oops.
As to factual errors, that depends on your exact standard. Quite often, we know the right thing, but we type the wrong thing because we are writing quickly. This happens most often with politicians' party identifiers (e.g., D-WV), with Majority/Minority leaders, and with people who have similar names (e.g., football players Jerry Kramer and Jerry Smith). That probably happens 3-5 times per week.
Sometimes, we make a factual error because our source is incorrect, or because we misread our source. For example, we screwed up the geography of Rep. Lauren Boebert's (R-CO) district a couple of weeks ago because we misunderstood a key passage in the linked article. This happens once or twice a week.
Occasionally, we write something that is wrong, and that we should have realized was wrong, or that we should have checked. Usually, these are relatively minor; this week, for example, we gave a judge with an ambiguous name the wrong gender (Dabney Friedrich turns out to be a woman, not a man). Occasionally, they are really glaring, like writing that Joe Biden is the first non white/Protestant president since John F. Kennedy (a true statement, if not for a fellow named Barack Obama). We probably make one or two minor errors of this sort in the average week, and one glaring error per month. People on the West Coast may not see these errors though because we have some very helpful proofreaders who catch many of them by the time folks on the West Coast get up and have consumed enough coffee to deal with politics.
Q: Which technology is superior: Dilithium crystals or the Flux Capacitor? Asking for a friend. J.M., Norco, CA
A: Well, dilithium crystals aren't really a technology; they are a natural resource required for the proper operation of a Cochrane-style warp engine. And if that is what we are comparing to the Flux Capacitor, then the warp engine clearly wins. It lets you travel at a rate far beyond the speed of light and it facilitates time travel, if you play your cards right (slingshotting yourself around the sun, or getting chroniton particles involved, or using the Orb of Time, etc.). The Flux Capacitor only allows for time travel.