Jul. 11

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Trump Goes 1-1 in Court on Wednesday

This site is supposed to be about politics. However, there are now so many ongoing court cases involving Donald Trump and his administration, it's in danger of turning into a law blog, like Above the Law or SCOTUS Blog or Lawyerist. We covered three different cases in yesterday's posting; today we have two more.

The big result of the day was the one that went in Donald Trump's favor, as a three-member panel of judges from the United States Court of Appeals for the Fourth Circuit (Maryland, North Carolina, Virginia, West Virginia, and MAryland) dismissed one of the emoluments cases filed against the president, declaring that the plaintiffs (the attorneys general of Maryland and the District of Columbia) did not have standing to sue. The decision was the work of three Republican appointees: Paul V. Niemeyer and Dennis W. Shedd (George H. W. Bush), and A. Marvin Quattlebaum Jr. (Trump). Naturally, as a result of this, some folks suspect the fix was in.

Trump promptly took to Twitter to celebrate his victory:

Word just out that I won a big part of the Deep State and Democrat induced Witch Hunt. Unanimous decision in my favor from The United States Court of Appeals For The Fourth Circuit on the ridiculous Emoluments Case. I don’t make money, but lose a fortune for the honor of.....

— Donald J. Trump (@realDonaldTrump) July 10, 2019

....serving and doing a great job as your President (including accepting Zero salary!).

— Donald J. Trump (@realDonaldTrump) July 10, 2019

The President absolutely had reason to celebrate, as the ruling delays any emoluments-related action for now, including any discovery, which could be very bad for him. That said, he won the battle, and not the war. The plaintiffs are going to request a hearing from the whole Fourth Circuit. If that is granted, and if we assume that partisan loyalties matter a lot, well, the case would be heard by eight Democratic appointees, seven Republican appointees, and one who was appointed by Bill Clinton and confirmed under George W. Bush. That means it could get interesting. And regardless of what happens with the Fourth Circuit, the plaintiffs also expect the matter to ultimately reach the Supreme Court. So, this particular case isn't over yet. Meanwhile, two other emoluments cases are still chugging along. CREW v. Trump, filed by the watchdog group Citizens for Responsibility and Ethics in Washington, is hanging by a thread, once again because of questions about the plaintiffs' standing to sue. However, Blumenthal v. Trump, filed by over 100 Democratic members of Congress, has already won one ruling on standing, and of the three emoluments cases, is the one that probably has the best chance at succeeding.

Meanwhile, the other legal news of the day also came from Maryland, specifically from the court of George Hazel (a Barack Obama appointee). Hazel concurred with Jesse Furman (another Obama appointee, though one who sits in New York), and said that the Justice Dept. cannot switch the legal team assigned to the census citizenship question case without a very good reason. This means that the administration's options are running out; the general consensus is that the President is just going to try to ram it through with an executive order. Which, in turn, will lead to a bunch more lawsuits. And so the transformation of this site into a legal blog will continue unabated. (Z)

Epstein Story Isn't Going Away

Secretary of Labor Alex Acosta is trying very hard to save his job, given the many critical eyes that are being cast in the direction of his now-infamous plea deal with sex offender Jeffrey Epstein. He held a press conference on Wednesday in which he reiterated his position that he got the best deal he could out of the billionaire, and that he takes sex trafficking very seriously. Many folks are finding those assertions a bit hard to swallow, especially since Acosta has tried to slash his department's budget for combating trafficking by 80%.

And Acosta is not the only one caught in the harsh glare of the Epstein spotlight. The New York Times took a look at the new indictment against Epstein, and at other sources, and wrote a story about his one-time friendship with Donald Trump. The part of the story that everyone is talking about is the revelation that Epstein once arranged for more than two dozen women to be flown to Trump's Mar-a-Lago club for a "calendar competition." These women were told that they would be attending a party with many people, but in the end, the only non-calendar-girl attendees were Epstein and Trump.

Those are the facts. Now, the speculation. It is somewhat improbable that Epstein and Trump arranged to be alone in the company of more than 20 attractive young women so that they could all hold a tiddlywinks tournament. Given that (1) the President has bragged about his penchant for pu**y grabbing, and (2) the women were lured to Mar-a-Lago under false pretenses, and (3) at least one woman whom Epstein connected with Trump has accused the President of raping her, and (4) Epstein himself has a predilection for underage women, it is well within the realm of possibility that something quite unsavory or illegal happened that weekend.

At the moment, nothing damning about Trump is known (at least, not publicly). Of course, it is possible that prosecutors know more than they are letting on. It is also possible the Epstein has dirt on Trump, and may use it to try to save himself. We noted previously that Trump might dangle a pardon, but that would come with a sizable political cost, and might only save the President temporarily, until New York State authorities picked up the ball. Yet another issue for Trump is that if something problematic happened, one or more women (i.e., the victims) are presumably aware of it. There's certainly a chance they could make themselves known. Remember that Christine Blasey Ford did not reveal herself until the Kavanaugh situation reached critical mass. She, of course, was recalling events roughly 30 years in the past; the "calendar girl" party was in 1992, or just a little less than 30 years ago.

When it comes to next year's presidential election, if the current status quo holds, then it's likely to be close, and will turn on a handful of states. As we have pointed out many times, Trump's Achilles heel is the economy; if it tanks, he's in deep trouble. But credible charges of sexual misconduct, backed by a federal (or state) prosecution, could also torpedo him. Politico's Tim Alberta has a book coming out on the rise of Trump, and he says that of all the scandalous things that happened during the presidential campaign (e.g., attacking a Gold Star family, snotty remarks about John McCain and Megyn Kelly, mocking a handicapped reporter, etc.) the only one that seriously threatened his candidacy was the pu**y grabbing tape. On Wednesday, Alberta published an excerpt from the book covering the critical 48 hours after the tape was released (accompanied by godawful illustrations of the key players, including one of Kellyanne Conway that makes her look like a character from "The Walking Dead.") He documents how very close the GOP came to tossing the Donald overboard in favor of Mike Pence.

So, this is a story worth keeping an eye on. There's nothing concrete that implicates Trump, as yet, but as more details come out, it looks worse and worse for him. And if something does come to light, it will almost certainly be more damaging to him (by a long shot) than horrific immigrant detention camps, or his Iran non-strategy, or his bromance with Vlad Putin, or any of the other things that drive Democrats nuts, but that his base doesn't much seem to care about. (Z)

What's an Ambassador to Do?

The story broke just minutes after we put up Wednesday's post, so we were only able to add a brief note and a link. However, Trump-criticizing British ambassador Kim Darroch resigned very early Wednesday morning. His official reason was that being frozen out by the White House made it impossible to do his job. His real reason, however, was that Boris Johnson, who is likely to be the next PM, refused to say that the Ambassador's job was safe. Reading the writing on the wall, Darroch preferred to lop his own head off, rather than to have it done for him.

One wonders exactly what Trump's thought process is here. Is it pure id—someone insulted me, and they must be punished? Or, is it about posturing for the base—taking this opportunity to look strong, and to turn a negative (a damning assessment of the President) into a positive ("I showed him!")? Or does he honestly believe that Darroch was an anomaly, and that every other diplomat in Washington wasn't communicating the same basic things to their superiors back home? It is not like Trump's insecurity, to take one example, was a state secret.

In any event, the non-Darroch diplomats in Washington are at a bit of a loss as to how to proceed. It's part of their job to provide honest assessments of what they are seeing; they can't pull punches because of the risk their confidential reports might leak and hurt Trump's feelings. On the other hand, if they do provide the unvarnished truth, and it gets out, then their career is ruined, and their nation's relationship with the United States is harmed. They may have to start using forms of communication that leave no leak-able remnants. Using a Navajo code talker won't work, because no one outside the U.S. speaks the language, which is why it totally baffled the Japanese during WW II. It may be time to bring back homing pigeons. Or maybe smoke signals. Wonder what the smoke signal is for "insecure"?

Of course, Trump doesn't care that he's made foreign ambassadors' jobs harder. However, he should care that he just did the same for U.S. ambassadors. Inasmuch as he's sent the message that it is ok for a president (or a prime minister, or a premier, or a prince) to openly lambaste other countries' diplomats, and to demand the recall of anyone that is not liked, he's effectively declared open season on America's diplomatic corps. That said, the President doesn't have much use for diplomats (or for the State Department, for that matter), so perhaps this new reality is a feature, and not a bug, for him. (Z)

Megan Rapinoe Would Beat Trump

A new PPP national poll shows that, if she ran for president, women's soccer star Megan Rapinoe (who would be constitutionally eligible as of July 15 of next year) would beat Donald Trump 42% to 41%. This is not terribly surprising since, with the exception of Joe Biden, most polls have the main Democratic contenders, as well as "generic Democrat," tying him or beating him by a small margin. In a sense, Rapinoe is a generic Democrat.

When we look at the crosstabs, we see Rapinoe crushes Trump among Latino (+21) and black voters (+66) but loses among whites (-17). Similarly, she wins among young voters up to 29 (+11) and loses among voters older than 65 (-15). Interestingly enough, Trump has a slight edge among women (42% to 40%) but Rapinoe wins among men (44% to 40%). This might be a statistical fluke, though, as generally women are more Democratic than men.

In short, the election may end up something like this, with the Democrat winning among the young people and minorities and Trump winning among old people and whites, and the Democratic candidate not mattering so much. On the other hand, Trump may be more effective at taking down some Democrats than others. (V)

NeverTrump Republicans Want to Play a Role in the Democratic Primary

What's a serious conservative pundit to do these days? Most of them hate Donald Trump, but also strongly dislike Democrats. The new strategy: try to convince the Democrats to run someone who is Republican-lite. Washington Post columnist Megan McArdle, for example, has written a column entitled: "Dear Democrats: I'll vote for any of you. But please nominate someone who can actually win." In it, she says she will hold her nose and vote for any Democrat, but to make it easier for her, she would appreciate it if they would drop this love affair with leftist candidates like Sens. Bernie Sanders (I-VT) and Elizabeth Warren (D-MA) and pick a moderate who can actually beat Trump so that the Republican Party can get back on track. Although McArdle concedes that if it is Trump vs. Sanders, she will reluctantly vote for Sanders.

Another conservative pundit who hates Trump is Mona Charen. Her piece in Politico is entitled: "How a Democrat Can Win Over a Never-Trumper." In it, she points out that she dislikes everything the Democrats stand for, but nevertheless makes the case that they should run the most conservative candidate they can find in order to win over the NeverTrump crowd. Among other things, she points out that the 40 House seats the Democrats flipped in 2018 were largely moderate Democrats who won in suburban areas by convincing Republican women that they would not support the pie-in-the-sky proposals like abolishing ICE and the Electoral College, packing the Supreme Court, and passing a Green New Deal. It wasn't exactly an endorsement of Joe Biden, since she would probably be happy with John Delaney and maybe even John Hickenlooper, but just a warning to Democrats not to nominate a lefty.

In our view, the views of conservative Republican pundits are probably not going to sway a lot of Democrats in the primary, but they could sway some Republicans in the general election. That said, there are probably not enough NeverTrumpers out there to make running the risk of alienating the Democrats' actual base worthwhile, so Charen and McArdle and the others like them may need to get used to the idea that they don't have much voice in a party that they don't actually belong to. (V)

Steyer Starts Million-Dollar Ad Campaign

Most of the Democratic presidential candidates haven't started running TV ads yet, certainly not big time. However, the newest candidate, billionaire Tom Steyer, has decided he has to play catch-up, so he is dumping $1.4 million in a quickie ad buy on CNN and MSNBC nationally, and on local stations in the four small states that vote first in 2020. The ads will run for two weeks, starting today.

One ad introduces him to the voters, few of whom have ever even heard of him. Another pledges to limit the influence of corporations on politics. Steyer has pretty close to zero chance of getting the nomination, but he could raise the profile of some of his pet issues, especially impeaching Donald Trump. If you want to see the ads, you can view them in Steyer's Twitter feed. (V)

Ranked-Choice Voting Is Starting to Catch On

Many Democrats blame those Democrats who voted for Jill Stein or Gary Johnson for electing Donald Trump. The people who voted for the minor candidates reply that Hillary Clinton was a deeply flawed candidate and that they wanted to show everyone that they couldn't stomach her. It seems like an impossible dilemma, but there is a way out, and it's starting to catch on. Ranked-choice voting (RCV), also called instant-runoff voting (IRV), allows voters to pick their first, second, third, and subsequent choices. In fact, every name on the ballot can get a rank. If no candidate gets 50%, then the people whose candidate came in last get a mulligan. They can effectively vote again, but with their vote now counting for their second choice. This process is repeated until some candidate passes 50%.

Maine adopted this system in 2017 and it came into play in the 2018 ME-02 House race. Bruce Poliqin (R) had the most votes in round one, but not 50%. The votes for a third-party candidate were redistributed and now-Rep. Jared Golden (D) was elected.

Six states were impressed and have adopted some form of this system for the Democratic primaries. These include early voters in the Iowa and Nevada caucuses and all voters in Alaska, Hawaii, Kansas, and Wyoming. The rules have been modified to deal with the Democrats' long-standing rule of not awarding delegates to candidates who poll under 15%. So, first the votes will be counted. Then, the votes of any candidates polling under 15% will be redistributed to the second choice on those ballots. The process will be repeated until everyone has at least 15%. At that point, the delegates will be allocated in proportion to the vote.

If states adopt a law like Maine's for the general election, it could remove a lot of acrimony. In that way, if, say, Joe Biden is the Democratic nominee, then a voter who hates Biden but hates Trump more could vote for the Green Party candidate as #1 and Biden as #2. That way, large vote totals for the Green Party would show the strength of the Green Party without reelecting Trump. Similarly, if Bernie Sanders is the nominee, a voter who hated him but hated Trump more could vote for the Libertarian Party candidate as #1 and Sanders as #2. In this way, the Democrats who don't like their nominee but want to prevent Trump from winning could blow off steam without endangering their party. Obviously, the same applies to Republicans who dislike Trump and want to show it, but don't want a Democrat under any conditions. Using IRV, they could vote for the Libertarian as #1 and Trump as #2. It will be interesting to see if any more states pick up the ball and run with it. (V)

Programming Note: We're going to move the usual Thursday Q&A to Friday.

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