Afghanispin

The situation in Afghanistan continues to be the big news story, and presumably will be for several more news cycles. From where we sit, there are really three stories unfolding here: the reality, the spin battle, and the political implications. So, that's how we're going to divide this up.

The Reality

The one thing that everyone can agree on is that the current situation is a mess. In the short term, a great many people who are in mortal danger from the Taliban are trying desperately to get out of the country. The U.S. Embassy has been evacuated, leaving an $800 million building vacant, but there are still non-diplomat U.S. citizens trying to get out. The fate of folks who helped the U.S. during its 20-year occupation, who could well be executed as traitors, is unclear. The Biden administration has pledged special visas for 80,000 Afghans, but critics say that getting those into the right hands in a timely manner is unlikely, given the chaos. The country's main airport, in Kabul, is a disaster area. As with the helicopters in Saigon 46 years ago, desperate would-be refugees clung to airplanes as they lifted off, with some falling to their deaths.

In the long term, the picture remains bleak. The Taliban is going to oppress the Afghan population so aggressively it will make North Korea look like Disneyland. A Taliban-led Afghanistan is effectively a client state of Pakistan, and will soon fall under Russian influence, Chinese influence, or both. The drug trade will thrive, and the country is likely to become a breeding ground for terrorism once again. That is not what we guessed this weekend, but we're happy to defer to the experts on this. We did not account for the extent to which the Taliban will look the other way, and then claim they had no idea what their more radical citizens were up to.

One important question is: How could this have gone better? There is no shortage of Biden-critical folks, both politicians and pundits, across the spectrum (see here, here, here, here, here, and here if you would like some examples). However, while many are willing to describe what happened as "bad," nobody seems to have a clear explanation of how "good" could have been achieved. Some write/say that the President should have left several thousand troops in Afghanistan. If they mean that as a short-term plan, then he's already doing that; there are already 2,500 U.S. soldiers in the country, and roughly 6,000 more are on the way. If they mean that as a long-term plan, then that is not a withdrawal. And Biden was committed to a withdrawal, both by the treaty that Donald Trump negotiated with the Taliban, and by the public's weariness with endless wars in the Middle East.

Meanwhile, people keep mentioning Saigon, usually to make a political point. We keep thinking about Saigon, too. However, what we are focused on is the circumstances under which the disaster in Saigon took place. American combat operations in Vietnam were dramatically reduced in 1972, a peace agreement was negotiated and signed in 1973, and Nobel Peace Prizes were even awarded for those negotiations shortly before the start of 1974. And yet, despite all kinds of time being spent on planning and negotiating and maneuvering, the final evacuation in 1975 was still a disaster. And that's with a foe that, while not friendly to the U.S., at least wasn't a bunch of religious fanatics.

The point is that if they couldn't get it right back then, with 3 years to figure things out, then maybe it's not possible to do it right. And even if there is a "right" way to do it, one that foreign policy experts like Henry Kissinger and Richard Nixon did not discover, it seems very implausible that an additional month or two or three is enough time to make a difference. Also, keep in mind that the agreed-upon deadline for withdrawal (May 1) had already passed. What if the Taliban decided that the U.S. was backtracking on its agreements and suicide bombed a U.S. military base, killing 20 soldiers? They are exactly the sort of people to do that sort of thing. In fact, it's possible that Biden even had intelligence that a plan like that was in the works. If so, he obviously couldn't share that information in order to reduce the heat he's receiving right now.

Another important question is: Who's to blame? It may sound like we're defending the President in the previous paragraphs, and we kinda are, because we've read and thought a lot about this situation, and we think he only deserves a small share of the blame. In fact, just to communicate our sense of things, here's a list of some of the parties that erred here, in rough chronological order, along with the percentage of blame we would assign to each:

• George W. Bush (20%): After the 9/11 attacks, someone had to pay. Plus, Bush's administration was full of neocons who wanted to bomb the Middle East. Afghanistan seemed a reasonable target, since Osama bin Laden had been in residence there (though he was ultimately shot and killed in Pakistan). Anyhow, Bush used the post-9/11 wave of patriotism and/or desire for revenge to go charging into Afghanistan, apparently without much thought as to exactly what the endgame was, or exactly how viable it might be to get there. The U.S. has occasionally had luck with nation-building, but that was generally in places like Japan or Germany. In the case of Afghanistan, as many have observed, you're never going to build a modern, industrial democracy on a medieval foundation.
  
  
• Congress (15%): The United States has not formally declared war against a country since World War II. And a major reason for that is that the members of Congress don't want to be held accountable for a war that becomes messy and unpopular. So, in the last 80 years, they have almost completely ceded their constitutionally delegated power to make war to the executive branch, and have rarely exercised any meaningful oversight even after presidents went charging into Korea, or Vietnam, or Iraq, or Afghanistan.
  
  
• The American People (10%): When the U.S. invaded Afghanistan, there were plenty of people who pointed out that (1) this seemed an awful lot like the mess in Vietnam and/or (2) the Russians (and many others) were not able to achieve anything in Afghanistan, so why should the U.S. expect to do any better? On two occasions, the voting public had a chance to push back on Bush's hawkish agenda: the 2002 midterms and the 2004 presidential elections. In the midterms, Bush's party gained seats and in the presidential election he was returned to the White House. Any politician who was paying attention could only conclude that while Americans might gripe about Vietnam, Part II, it didn't bother them enough to hold a president accountable. Bush finally got some pushback in the 2006 election, when Democrats gained 5 seats in the Senate and 31 in the House, but that was mostly about domestic issues, including perceived corruption in the administration. To the extent that the Democrats ran on foreign policy that year (remember their Six for '06?), it was on getting out of Iraq.
  
  
• U.S. Military Leadership (20%): The U.S. military hates to lose, and they love to have funding lavished upon them. Both of those imperatives pointed in the direction of fighting on in Afghanistan. There is zero question that the top brass not only pushed for continued funding, new offensives/initiatives, etc., but that they also gave multiple presidents very bad advice about what was going on, and what was possible. Consistent until the end, it's clear that the military pooh-bahs had no idea how weak the Afghan government and army really were, and how very fast they would give up.
  
  
• Barack Obama (15%): By the time of Obama's presidency, it was clear that Afghanistan had become a quagmire, and that the U.S. was spinning its wheels there. Obama was also presented with an "out," in the form of Osama bin Laden's death on May 2, 2011. If the president had announced the next week that the United States' primary goal in Afghanistan had been achieved, and that withdrawal of American troops would be completed within the year, the American people would probably have accepted that. But "No Drama Obama" tended to prefer the least contentious course of action, and the least contentious option here was to leave an American presence in place and to continue to lavish money on Afghanistan.
  
  
• Donald Trump (15%): By the time of Trump's presidency, the wheel-spinning had been going on for the better part of the decade. And he also had cover for withdrawal. In general, he could have withdrawn anytime, since neither his party nor his base ever held him accountable for anything. Or, more specifically, he could have used the death of Abu Bakr al-Baghdadi in October 2019 as pretext for withdrawal. It is true that al-Baghdadi had nothing to do with Afghanistan or al-Qaeda, but those sorts of details are pretty easy to gloss over.
  
  Of course, instead of actually withdrawing, and accepting the consequences of that decision, Trump instead negotiated a hasty withdrawal agreement with the Taliban. The former president's main agenda in those discussions was (1) to give himself something to run on last year, and (2) to take another shot at winning a Nobel Peace Prize. The Taliban may be many things, but they are not stupid, and so they took Mr. Art of the Deal to the cleaners, reaching an agreement that substantially tied the United States' hands, and yet required virtually nothing concrete from the Taliban.
  
  
• Biden (5%): It is clear that, for all his foreign policy expertise, Biden did not foresee how very quickly the Afghans would yield. He should have realized that was a possibility, and he certainly shouldn't have been on vacation this weekend (even if that "vacation" was at Camp David, which isn't really a vacation, and puts him only 20 minutes or so from the White House). All of this said, assuming someone could go back in time and give him a copy of today's edition of The New York Times, what might he have done differently? Not much, we think. The 20 years, 80+ billion dollars, and 2,218 dead Americans clearly produced very little return on investment. Someone had to pull the band-aid off, and Biden did it.

In case you are skeptical of our assessment, here is what Lt. Gen. Daniel Bolger (ret.), who commanded troops in Afghanistan, had to say: "There's more than enough blame to go around. All four presidential administrations (Bush, Obama, Trump and Biden) and the Congresses of 2001-2021 own a share. Generals and admirals—and I include myself—senior diplomats, and top intelligence leaders got it wrong over and over from start to finish... Finally, the American people got it wrong. Our government, elected and appointed, works for us. We wanted a response to 9/11. We got that. Then we lost interest. The Taliban did not."

The Spin Battle

Of course, most Americans don't study these things very closely, and tend to reflexively go with their "team" (i.e., Team Red or Team Blue). So, regardless of where the fault actually lies, the politicians' primary activity right now is spin doctoring and finger pointing.

To start, Joe Biden both misunderstood and misrepresented the situation in past weeks, even going so far as to say there was "zero" chance the Taliban would overrun Afghanistan once U.S. forces left. Oops.

That said, Biden knows that sometimes a president has to take his medicine (even if certain predecessors of his refused to do so). And so, he cut short his visit to Camp David and returned to the White House yesterday to deliver remarks on the Afghanistan situation. The President conceded that he misread the situation, but also said he's content with the choices he's made: "I stand squarely behind my decision. After 20 years, I've learned the hard way that there was never a good time to withdraw U.S. forces. That's why we're still there. We were clear-eyed about the risks. We planned for every contingency. But I always promised the American people I would be straight with you. The truth is, this did unfold more quickly than we had anticipated." It's not quite Jack Kennedy taking his lumps for the Bay of Pigs, but it's not bad. Biden also took time to remind reporters and viewers that the withdrawal agreement was not negotiated by him, but by his predecessor.

And speaking of Biden's predecessor, he is of course leading the parade of absurd rhetoric from the right. Note, incidentally, that we are not saying that all rhetoric coming from the right, at the moment, is absurd. Many Republicans, in Congress and out, have slammed Biden's handling of this situation (see the links above for remarks from Sen. Lindsey Graham, R-SC, and Rep. Dan Crenshaw, R-TX, to take just two examples). That's fair enough, though we suspect they would be taking a very different tack if Trump was still president.

Anyhow, it's the fanatical Trumpers, including the former president, where the really nutty stuff is coming from. On Monday, The Donald called for Biden to "resign in disgrace." We wonder if the former president understands that a Biden resignation would not return Trump to the White House, and would only serve to elevate Kamala Harris. In any event, even if Biden made a poor decision, it's neither corrupt nor criminal, and so is clearly no basis for resignation. Sen. Rick Scott (R-FL), for his part, asserted that the time has come to invoke the Twenty-Fifth Amendment, and to remove Biden from office on the basis of incapacity to perform the duties of the office. We assume that the Senator is just performing for the base, and that he does not actually think that two-thirds of Biden's cabinet is ready to mutiny against him. Trumpy radio host Dan Bongino, meanwhile, declared that "If this was Donald Trump in office right now, as Afghanistan falls in a matter of days after spending twenty years, thousands of lives, limbs, bodies, and treasure, 20 years...You know damn well, Donald Trump would be forced into resignation right now, and Republicans would be leading the way." We'll pause for a moment while you regain your breath after your bout of uncontrollable laughter.

We doubt that many of these kvetching Republicans actually care about Afghanistan. Crenshaw's anger is likely legitimate, since he served and lost an eye there, but the rest seem to sense that this is an anchor they might just hang around Biden's neck, and so are swooping in, like vultures seizing upon carrion. There is the small problem, however, that Donald Trump not only negotiated the withdrawal, but also ran in 2020 on his "historic peace agreement with the Taliban." But that problem is easily solved; the RNC just scrubbed that portion of their website. After all, what's a little revisionist history among friends?

Incidentally, while the right-wing commentariat is unanimous (or nearly so) in following the party line, the centrists and the lefties have a more diverse range of opinions. Even on the left, the anti-Biden sentiment is running pretty strong right now—roughly 60% of the editorials/op-eds we saw. Another 15% runs pro-Biden, and the remaining 25% take the basic approach that we're trying to take, namely "it's not that simple." If you want to read a piece from a moderate source that tries to look at both sides, Foreign Policy magazine has one under the headline How Biden Was Right About Afghanistan--and Disastrously Wrong that's pretty good.

The Political Implications

If we assume that the die is cast in Afghanistan itself, then the big question remaining is: What will the political fallout be? Certainly, that is the primary question that most of the spin doctors discussed above are concerned with.

At the moment, things are not looking good for Biden. Polls reveal that the American public, which consistently backed withdrawal from Afghanistan, is now having second thoughts. For example, in the latest from Politico/Morning Consult, 49% of respondents believe the U.S. should be getting out. That's still the largest group of respondents (37% say "stay," and 14% don't know or have no opinion). However, it's down 20 points from April, when 69% of Politico/Morning Consult respondents said the U.S. should pull out of Afghanistan. The President's approval rating has also slipped a bit in the last week, and that trend figures to continue.

There are also plenty of "bad news for Biden" pieces that are declaring this to be the President's first real setback, or the first dent in the Biden armor. For example, this one from Politico begins:

Joe Biden's approval numbers are slipping. The majority of surveys show Americans believe the nation is on the wrong track. Democrats fear the White House has faltered in getting out its message on core agenda items.

And that was before the horrific scenes began to unfold in Afghanistan.

The cataclysmic series of events over the last several days marked the most devastating period of the Biden presidency, and it comes at the precise moment when a growing number of Americans were already fearful of inflation and doubting Biden's handling of the COVID-19 pandemic and the economy. Now, Biden's credibility on the world stage is on the line.

It all adds up to a troubling political scenario for Democrats, who had held up their president as a seasoned international statesman, the "adult in the room" who promised to reverse what they viewed as the reckless policies of former President Donald Trump.

Republicans are moving quickly to try and ensure the foreign policy blunder sticks, in an attempt to undermine one of Biden's core political selling points—his steady hand—and to bludgeon down-ballot candidates in tough districts who believe the best way for their party to hold power is to pitch themselves as "Biden Democrats."

Note that it's already being taken for granted that a "blunder" has taken place.

In any case, we don't put all that much stock in these "what a setback for Biden!" pieces. The news media has a bias towards short-term thinking, because they need eyeballs every day, and so they need BIG NEWS every day. How many times has the punditry proclaimed the infrastructure bills to be in deep trouble? And yet, those bills keep on keepin' on. Similarly, and perhaps more apples to apples, how many times was some setback "the one" that would finally dent Donald Trump's support with his base? We were guilty of that too, for a while, before settling on a view that if his support was going to die, it would be by a thousand cuts, and not by one swing of the ax.

We also continue to find it hard to accept that events unfolding right now will influence voter behavior more than a year from now. Most folks tend to have pretty short memories, particularly when something doesn't affect them directly. And to return to the Politico/Morning Consult poll for a moment, it is 58% of Republicans who are angry about the withdrawal versus only 19% of Democrats. In other words, as we note above, much of this seems reflexive, and much of the "opposition" is coming from people who weren't going to vote for Biden and other Democrats anyhow. We would also suggest that while the stunning rapidity with which the Taliban has taken over is a real black eye for the White House right now, it will also cause the story to fade from the headlines more quickly, and will tacitly make the case that Biden was merely extracting the U.S. from a hopeless situation. If the process had taken a few months, it would be much easier to imagine a different outcome. But when it only takes a few days?

Obviously, this is the way the Biden administration is thinking about things. Faced with a lot of bad options, the President chose the one that extracts its toll now, as opposed to next year, so the political wounds have time to heal. If another 6 or 9 months would have made a real difference, then that would be a pretty sleazy calculation. However, if he really believed that every option before him was just as dangerous and just as ugly—and, as we say above, we don't think that's an unreasonable assessment—then it's better to take the hit now.

So, there you have it: another 5,000 words on the Afghanistan situation. That's on top of the 1,000 words we wrote yesterday, the 1,500 words' worth of letters we published on Sunday, the 1,000 words worth of questions we answered on Saturday, and the 1,000 words we wrote on Friday. Hopefully that will be the bulk of our coverage; if there's anything that triggers another (nearly) 10,000 words from us, it probably means something else really bad happened. (Z)

Send in the Clowns

Might as well, since the California recall election is turning into an absolute circus.

Let's start with the latest poll, courtesy of CBS News/YouGov. To recall or not to recall—that is the question. It looks like it is definitely going to be a nail-biter, as the poll has 52% of likely voters opposing the recall and 48% supporting it. And this is before the school year starts, with the tensions (and possible deleterious effects) that will come with that.

Perhaps even more significant, however, is CBS News/YouGov's rundown of the leading candidates to replace Gov. Gavin Newsom (D) if he is indeed recalled:

Candidate	Percentage
Larry Elder	23%
Kevin Paffrath	13%
Kevin Kiley	3%
John Cox	3%
Kevin Faulconer	3%
Caitlyn Jenner	2%
Ted Gaines	2%
Doug Ose	2%
Jeff Hewitt	1%
Someone else	5%
No one	20%
Not sure/undecided	25%

It is clear that the Democrats made a foolish error in not putting a viable alternative to Newsom on the ballot (something we wrote multiple times, months ago). They are making another foolish error in playing along with Newsom's "don't vote for anyone on the second part of the ballot" bit. As we noted this weekend, that allows him to avoid giving attention to a potential replacement but, if he is indeed recalled, it will not help him at all. On the other hand, it may very well hurt the Democrats. One has to presume that most of those 20% who say "no one" are Democrats, and if you add—say—80% of those to the tally of leading Democrat Kevin Paffrath, he easily leads the field. The Party will soon have no choice but to either come out in favor of one of the alternate candidates or, at very least, to push back against the "vote for no one" bit.

Meanwhile, it wouldn't be an election these days without a lawsuit. Erwin Chemerinsky, dean of the UC Berkeley Law School (formerly known as Boalt Law School) wrote an op-ed last week arguing that the recall is unconstitutional. And yesterday, two California voters—Rex Julian Beaber and A.W. Clark—filed a lawsuit that appears to be inspired by Chemerinsky's piece. The basic contention is that the California recall law is likely to produce a result where Newsom gets more votes than any other candidate (i.e., to be retained in office) and yet is replaced by someone that got fewer votes than he (i.e., the winner of the replacement candidate vote). The op-ed and the lawsuit point out, quite reasonably, that this violates the basic constitutional principle that one person's vote cannot be more valuable than another person's vote (or, put another way, something like 28% of the vote should not override something like 48% of the vote).

There are some arguments that are compelling to the general public (or, at least, some of the general public) but that do not impress judges at all. Donald Trump's "stolen election" cases would be in this category. There are also some arguments that are not likely to impress the general public, but that judges will sit up and listen to. This recall suit appears to be in the latter category. The plaintiffs are California voters, so it is hard to argue they don't have standing to bring suit. And while courts are loath to get involved in elections, particularly at the last minute, there's a real constitutional issue here, so there may be no choice.

For his part, Chemerinsky proposes two possible solutions to this problem. The first is to allow Newsom's name to appear on the second part of the ballot, so that if he outpolls the other candidates, he will be his own replacement if he is recalled. The second is for the court to invalidate California's recall law. That first solution may seem less disruptive, but it's probably not, since the ballots have already been sent out, and since current law actually prohibits a candidate from serving in office during a term in which they have been successfully recalled. In other words, either solution effectively invalidates current state law. Anyhow, since the suit was just filed, it appears that no judge has been assigned. For what it's worth, the United States District Court for the Central District of California, which has the case, has 13 Republican appointees and 9 Democratic appointees (or 17 and 13, if you count judges who have assumed senior status). It will bear watching to see which judge gets the case, and what they do with it.

Moving on, Democrats are worried about the election. After all, that's what Democrats do (it's a cousin of being "concerned," which is what Maine Republicans do). Their worry extends to the actual gubernatorial election, of course, but the blue team has also found something else to fixate upon: Sen. Dianne Feinstein (D-CA). She's 88 years old, and if her seat was to become vacant for any reason, it would be filled until November of next year by the governor. Obviously, if that is Larry Elder or some other Republican, then Sen. Devin Nunes (R-CA) or maybe Sen. Darrell Issa (R-CA) would be on their way to Washington, and the Democrats' control of the upper chamber—and thus, their ability to pass the reconciliation bill, or pretty much any other legislation—would evaporate.

In any event, it's 4 weeks until Election Day. Unless, of course, the courts step in and say it's not. (Z)

You Win Some, and You Lose Some

A couple of significant COVID-19 related decisions came down over the last few days, though they kinda got buried by all the coverage of Afghanistan. Whatever a person's political loyalties are, the odds are decent that they'll be happy about one of them and not so happy about the other.

We'll start with the first ruling to be handed down, by Judge Dabney Friedrich, in response to a request that she block the recently extended CDC moratorium on evictions. She declined, saying that her hands are tied by existing Supreme Court precedent. The Supremes—and, in particular, Associate Justice Brett Kavanaugh—have suggested that if and when they get another crack, they will strike the moratorium down. But they haven't done so yet, and Friedrich (a Donald Trump appointee) says she can't do it on their behalf.

Meanwhile, if it is possible to describe a court as "gerrymandered," the Texas Supreme Court would earn the label, because it's been stacked with 100% conservative Republicans by voters (and by occasional gubernatorial appointments). And so, it's not much of a surprise that they stepped in this weekend and declared that if Gov. Greg Abbott (R-TX) wants to forbid mask mandates in public schools, then he is perfectly entitled to do so.

It's not clear that the plaintiffs will try to appeal this in federal court, especially since the start of the school year is right around the corner. However, it is likely that some districts, and possibly many, will defy the governor and dare him to send in the Texas Rangers to start arresting superintendents, principals, and teachers who are just trying to keep kids safe. Meanwhile, if the Governor was hoping the court would rule against him, so that he could have the public-health benefits of mask mandates, but the political benefits of standing up to the libs/socialism/communism/critical race theory/the deep state/whatever, he was disappointed. Whatever happens, he's going to own it. (Z)

Toobin Advocates No Federal Prosecutions for Trump

CNN legal analyst Jeffrey Toobin, recently restored to his post after serving a lengthy suspension, managed to keep his hands on his keyboard long enough to write an op-ed arguing that Donald Trump will not be, and should not be, prosecuted for federal crimes.

Part of Toobin's op-ed is a general "for the good of the country" argument. In fact, here is the conclusion:

One mark of modern despotism is the legal pursuit of former leaders by current office-holders, and the United States has wisely avoided this cycle throughout its history. To be sure, this practice has its limits, and pervasive and obvious criminality by a President should be prosecuted regardless of this tradition. But if there's a close call, restraint is the better course.

Investigations of presidential wrongdoing, by Congress and others, are wise and even necessary. But actual prosecutions are not, and Donald Trump should be the beneficiary of this tradition, even if he himself would surely not offer such grace to others.

We are, to be blunt, unimpressed by this line of thinking. It's basically a slippery slope argument, and just because banana republics put former leaders on trial is not, prima facie, an argument against the practice. Sometimes high-ranking politicians do illegal things, and need to be held to account. The United States' habit of not doing so has, in our view, enabled an attitude among some presidents that they are above the law.

On the other hand, Toobin is a lawyer and we are not, and he runs through some of the possible crimes Trump might be charged with and why it could be hard to make them stick. That part of the piece, we are interested in, and it's why we're doing this write-up. Here's the executive summary:

• Insurrection: Insurrection Act violations have rarely been prosecuted, first of all. Further, Trump might plausibly claim that he discouraged violence (true, at least eventually) or that he was not trying to overthrow the government, but instead to make sure the election results were properly counted.
  
  
• Election Fraud: This would mean going after Trump for trying to lean on Georgia officials to "find" votes for him. However, he might be able to make the case that, once again, he wasn't trying to corrupt the election, but instead to make sure the results were fair.
  
  
• Obstruction of Justice: As with the two previous crimes, the key to making an obstruction case is intent. In this instance, intent to impede Congress as it completed the election process. However, he could claim here, as with election fraud, that his intent was fairness and accuracy and not obstruction.
  
  
• Hatch Act: The Hatch Act prevents federal employees from electioneering while acting in their official capacity. That prohibition does not apply to the president (or the VP), but even they are forbidden from ordering others to engage in political activity on their behalves. It is possible Trump crossed a line when he ordered then-acting AG Jeffrey Rosen to launch an investigation of "fraud" in Georgia and other states. On the other hand, the president could just claim that he was trying to make sure the law was enforced.
  
  
• Conspiracy to Defraud the United States: To get popped for fraud, the government has to prove that you said one or more things that you knew to be untrue. Toobin says that...wait for it...Trump could claim he wasn't lying when he declared, for example, that the Georgia election results were not legitimate.

This is not the best legal analysis we've ever read. Truth be told, it's much closer to the other end of the spectrum. The comments on each crime are short, and are generally predicated on the notion that if the defendant has a remotely plausible alternate explanation for behavior that could get them into hot water, there's really nothing a judge or jury can do. ("We find the defendant not guilty, your honor, because he swears, cross his heart, hope to die, that he wasn't lying!") Further, the piece is limited to the events surrounding Jan. 6, which means that things like interference with the Russia investigation are ignored. It seems very much like Toobin had a broad conclusion he wanted to reach ("Don't prosecute presidents!") and built the piece around that.

That said, even if the op-ed isn't great, it still serves to reiterate two important points. The first is that most of these statutes are a bit on the flabby side, and so are fairly rarely invoked. The second is that Trump is pretty good at approaching the line without crossing it.

For what it's worth, we (as non-lawyers, remember) think Trump is unlikely to be prosecuted for federal crimes. By all indications, AG Merrick Garland is an institutionalist who prefers to keep a low profile, and taking on a hot potato like this is not his style (nor is it likely to thrill Joe Biden). Better to let New York and Georgia have their bites at the apple; if they can't pop him, then the DoJ probably can't pull it off, either. (Z)

Fox Definitely Has Its Candidate

The relationship between Donald Trump and Fox is (sometimes) rocky now, but in the early days of his political career, the cable channel was key to his rise. They had him on the air all the time, and when they didn't have him on the air, they were talking about him (almost invariably in flattering terms). Since Fox has the ear of far more Republicans than any other outlet, and since those folks tend to be quite persuadable (about almost anything), gaining the network's support is very important to an aspiring Republican politician, particularly if that politician would like to be president.

The midterms are still more than a year away, and the presidential election more than 3 years away, but the network has already identified a favorite son. It is, of course, Gov. Ron DeSantis (R-FL). He's popular with the Trump base, he's telegenic, and he's delighted to hop in bed with Fox. The Tampa Bay Times filed a public records request for e-mails between the governor's office and the cable channel's producers, and learned that over the course of just 4 months, a staggering 1,250 pages of messages were exchanged, as Fox attempted to book the governor 113 times. He didn't accept them all but it doesn't take a staff mathematician to realize that if Fox had its way, he would have been on the air almost daily during that 120-day window.

As you might imagine, DeSantis has certain favored programs, with the ideal situation being (1) lots of viewers and (2) a host that will toss off a steady stream of softball questions. Over the 4-month period, he was on Sean Hannity's show eight times, Laura Ingraham's seven times, and Tucker Carlson's six times. For comparison purposes, DeSantis met with Florida lieutenant governor Jeanette Nuñez (R) seven times over the same timeframe.

Clearly, the channel and its marquee stars think DeSantis is a budding superstar—"the future of the party," as one Fox producer put it. Often, the Foxers and the governor plot his appearances in advance, so that he's ready for the softball questions, and so that they get exclusive coverage on the days that he announces the latest anti-mask or anti-vaccine mandate order. The channel's big bet on DeSantis also suggests that they think Trump is done running for office—and indeed, the former president appears much less frequently on Fox's airwaves these days.

If Trump and DeSantis both end up running in 2024, then Fox is going to have quite a choice to make, since their viewers like Trump better, but they like DeSantis better (he's more predictable, more coachable, and he doesn't tend to get them sued). The cable outlet will presumably cross that bridge when and if they come to it. (Z)

---

If you wish to contact us, please use one of these addresses. For the first two, please include your initials and city.

• questions@electoral-vote.com    For questions about politics, civics, history, etc. to be answered on a Saturday
• comments@electoral-vote.com   For "letters to the editor" for possible publication on a Sunday
• corrections@electoral-vote.com To tell us about typos or factual errors we should fix
• items@electoral-vote.com            For general suggestions, ideas, etc.

To download a poster about the site to hang up, please click here.

---

Email a link to a friend or share:

---The Votemaster and Zenger