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Ivanka Speaks

Ivanka Trump appeared before the 1/6 Committee yesterday, and spoke to them (remotely) for 8 hours. This follows on the heels of her husband's testimony, which took place last week, and lasted 6 hours. We would suggest that anyone who sits and listens to Mr. and Mrs. Kushner speak for 14 hours is really earning their paycheck.

Trump's testimony was closed-door, and so will remain a mystery to most of us until the Committee releases its report, or until someone leaks the transcript to Maggie Haberman. We'll have to see which it is. Chair Bennie Thompson (D-MS) spoke to reporters afterward and said: "She's answering questions. I mean, you know, not in broad, chatty terms, but she's answering questions." In other words, she didn't pull a John Eastman and plead the Fifth over and over. But beyond that, who knows?

So, there's not much to be said about this story, even if it is today's 1A headline. However, there's also one other bit of news from the 1/6 Committee this week, and that is that the members are wrestling with the question of whether or not to recommend criminal charges against Donald Trump.

Now, it would be easy to hear that news and to say "Oh, great! He's going to get away with a crime yet again!" However, that is not the correct way to understand this story. The decision of whether or not to conduct a criminal investigation of Trump, and whether or not to charge him, is entirely at the discretion of the Department of Justice (and, by the way, there are now some indications that an investigation is underway). The 1/6 Committee's recommendation, while it may look significant to outsiders, will have no impact on the decision made by AG Merrick Garland & Co. Meanwhile, such a recommendation runs the risk of making a DoJ investigation look political, and plays into claims that it's all a witch hunt. So, the Committee appears to be leaning toward releasing its report, handing the information it collected over to Garland, and letting the chips fall where they may.

This also lets us segue into a question that was raised several times in the Q&A mailbox, enough that we decided to address it during the week. In the last month, there have been a number of "Trump is going to get away with everything" articles, like these two in The Atlantic: "Democrats Are Still Delusional About Trump" and "Stop Waiting for Trump to Get Convicted," which argue, respectively, that Trump is not going to be removed from the political arena due to his legal problems, and that Trump is unlikely to be convicted of any crimes.

At this point, let us now indulge in an apparent non sequitur. George McClellan, the second overall commander of the Union Armies in the Civil War (after Winfield Scott), proved to be ill-suited to the task. And one of the reasons that he was ill-suited is that while he knew more about military matters than Abraham Lincoln ever could, the general was wholly ignorant—to the point of being in denial—that modern war is, as Clausewitz observed, "politics by other means." McClellan could not, or would not, understand the political dimensions of the conflict. Lincoln did, and so too did Ulysses S. Grant. That is why Grant was a much more successful general, and a much better partner for Lincoln.

And now, back to our regularly scheduled programming. The second item linked above is written by Paul Rosenzweig, who is a lawyer, and who was a senior counsel in the investigation of President Bill Clinton. Undoubtedly, he knows the law here far better than we do. However, it is possible that we grasp the politics better than he does. And so, we will point out the following things for your consideration:

  1. Risk: As a general rule, the people who make prosecutorial decisions are very conservative. Not politically, necessarily, but methodologically. They are either elected officials, or are answerable to elected officials, or both. And they tend to be judged on conviction rate. So, they tend to be very very cautious, and to make sure every single i is dotted and t is crossed before filing charges. Indeed, in many cases, they are bound by law or by policy to only pursue prosecutions that have an overwhelming chance of success.

    And note that all of this holds true even if the person being prosecuted is Joe Palooka. Donald Trump is the former president of the United States. Arresting him and putting him on trial would result in massive publicity. It would probably also result in riots. So, any DA or AG is going to double- and triple- and quadruple-check to make sure all the stones have been turned over and all the leads have been followed. It could be that the downsides to charging Trump are so great that these various prosecutors decide it's just not worth it. That appears to be the thinking of newly installed Manhattan DA Alvin Bragg, for example, though time will well.

    The one thing you can be certain of, however, is that none of this is going to happen quickly. The fact that the DoJ, the state of Georgia, the state of New York, the borough of Manhattan, etc. have not moved forward tells us nothing at this point. It took nearly 3 years for the Watergate defendants to be dealt with, and that was considerably clearer cut and did not involve putting a former president on trial. This is, by its nature, going to be a very slow-moving story.

  2. Cost: The state and city of New York have already invested vast resources into investigating Trump. So has the 1/6 Committee, and possibly also the state of Georgia. There are many, many voters out there who will not be pleased if those resources were wasted, particularly if that also means that Donald Trump escaped punishment. Put another way, there is going to be enormous political pressure on someone like AG Tish James of New York, not to mention the other people in the state government hierarchy, like Gov. Kathy Hochul (D), to pursue some sort of case against Trump.

  3. Ambition: Some of the folks who are going after Trump appear to have their eye on a promotion. James is one of those and Fulton County DA Fani Willis looks to be another. This is far from an exhaustive list. And that promotion is in the bag if they can say "I'm the one who got Donald Trump." So, they have a little extra motivation, beyond just justifying their expenditures of time and money.

  4. Fish out of Water: Finally, a lot of "Trump is going to get away with it" arguments are based on the fact that he has spent his whole adult life "getting away with it." Indeed, that's a core element of the Rosenzweig article. It's a fair point, but keep in mind that there are several differences between the current situation and his long career of chicanery.

    To start, Trump has historically been really good at skirting the line between "legal" and "illegal" in his business transactions. He does not appear to be quite as good at doing that when we're talking about political misdeeds, with which he had very limited experience prior to 2015 or so. Second, Trump is now approaching 80 years of age, and appears to be less sharp than he once was. Perhaps a lot less sharp, and thus a lot more prone to mistakes. Third, Trump did not always escape the consequences of his actions in the past. However, because he usually faced civil claims, he could "resolve" the losses by writing a check (see Trump University, for example). Some of the trouble he's in now is potentially criminal in nature, and can't be resolved by getting out the checkbook. Fourth, and finally, Trump also "won" a lot of his past cases by virtue of having more money, lawyers, and other resources than the other party did, and either burying them in paperwork or otherwise dragging things out so long that the plaintiff dropped the matter. However, Trump cannot out-resource the federal government, or the governments of Georgia, New York State, or New York City.

    The upshot: Don't draw too many firm conclusions about what might happen to Trump the politician based on what happened in the past to Trump the real estate developer.

Obviously, we have no inside information about the ongoing Trump investigations. However, he's exposed so many ways, and is at the mercy of so many people who have enormous motivation to go after him, that we continue to believe that it's much more likely than not that he gets popped by someone. And probably several someones. (Z)

White House Playing Its Aces in the Hole?

A couple of weeks ago, we ran some reader-suggested headlines for the Democratic Party. This weekend, we'll run some more, so if you have ideas, send them in. One idea that could work for them, if we may be so bold, is "All Hands on Deck!" That would make every Democratic voter feel like part of Team Blue, while also emphasizing that the Party needs every vote it can get.

One gets the sense that, even if the White House isn't verbalizing it in that way, they are definitely thinking in that way. On Tuesday, the Obamas made their first return to the White House since leaving it on Jan. 20, 2017. The ostensible purpose was to celebrate the anniversary of the Affordable Care Act, and for Biden to sign an executive order expanding the Act's reach. That said, it is not customary to make a big deal out of 12th anniversaries (the ACA was signed in 2010), which may be why the traditional gift for that milestone is just linen (as opposed to diamonds, or gold, or platinum, or Ethereum).

It is not a secret that the Obamas are the most popular Democrats in the land, particularly with Democratic voters. And so, one has to imagine that the real purpose of Tuesday's event was to remind everyone about Team Blue's two true superstars, and to allow the 44th president a little bit of spring training, so that he can knock the rust off in anticipation of campaign season. Although, not terribly surprisingly, he is already in midseason form. He jokingly called Biden "the vice president," and commented on "rumors" that all Secret Service officers are now required to wear aviator sunglasses, and that the White House's Navy Mess has been replaced by a Baskin-Robbins. The crowd was eating out of the former president's hand.

The next 6 months will tell exactly how heavily the Obamas involve themselves in the midterms, and exactly how useful they are. Still, an Obama appearance or two in a swing district could prove to be decisive. One thing you won't see the Obamas doing is endorsing candidates, and then rescinding those endorsements if they don't seem to be working out. They know how to play the game correctly, even if not all former presidents do. (Z)

Oklahoma Passes Extremely Harsh Abortion Bill

And now we move from aces in holes to, well... something spelled very similarly. The various red states are in a race to make abortion as onerous and as illegal as is possible, despite the fact that the law of the land says the procedure is legal. And it appears that Oklahoma is about to take the lead in this particular race, as the state legislature has passed a bill that would ban all abortions in the state, except in case of emergency, and would punish those who perform an abortion, or try to perform an abortion, with a fine of up to $100,000 and a sentence of up to 10 years in state prison. Gov. Kevin Stitt (R-OK) promised during his campaign to sign any abortion restrictions that came across his desk, so he's expected to sign this one.

We have three observations about this law. Let's start with the aces in holes remark above. Reasonable people can, and do, disagree on abortion. However, this is the umpteenth consecutive red-state abortion law that somehow finds the money and other resources to punish those who would get/perform abortions, but that includes no funding or other support for contraception, sex education, or for assistance to women who are compelled to bear children they might not otherwise wish to bear. Sending someone to prison for multiple years, for example, is really expensive. Certainly more expensive than daycare, school lunches, etc. Consequently, it is very hard to take seriously the argument that these laws are pro-family, or that they are doing what Jesus would have wanted. That, incidentally, would be the same Jesus who said, among other similar things: "If anyone has material possessions and sees a brother or sister in need but has no pity on them, how can the love of God be in that person? Dear children, let us not love with words or speech but with actions and in truth" (1 John 3:17-18). What can we say? The Bible has a liberal bias. Or the New Testament does, at least.

Our second observation is that we really wonder if these politicians are thinking things through. Forgive us if this is trite, but any reader who lives, or who has lived, in Southern California is probably aware of a fellow named Larry Miller, who owns a chain of mattress stores called Sit 'n Sleep. And the slogan of this chain of mattress stores is: "We'll beat anyone's advertised price, or your mattress is free!" Needless to say, nobody has ever gone into one of these stores with an ad and had the staff say: "Well, we just can't sell a mattress at a price that low. We'll have to give it to you for free."

The relevance here is that the only person who is really in a position to know if an abortion was a medical emergency was the physician who performed it. And if a doctor gets popped under this new law, they're not going to say: "You got me. Guess you get a free mattress!" No, wait. What they're not going to say is: "You got me. Guess I'll get out my checkbook, and make arrangements for a long stay in the pokey." No, they're all going to say the abortion was medically necessary. Indeed, that might actually be true 100% of the time, given the emotional and physiological stakes involved in birthing and raising an unwanted child. But even if it's not true, can it be proven beyond all reasonable doubt that the physician is lying? That seems a tall order. And it may be worth noting that Florida is already running into a similar sort of problem with its clearly not well thought out "Don't Say Gay" bill. Watch for an item about that on Friday.

Our third observation, and the most significant one, is this: Chief Justice John Roberts, among others, is concerned that the reputation of the Supreme Court is going to be harmed by excessive partisanship, and that its rulings will not have the force that they should. We have news for the Chief Justice (and for others who may feel similarly): That ship has clearly already sailed.

As we have written many times before, the Supreme Court has no ability to enforce its decisions. It is dependent, in part, on the executive and legislative branches to do so (as well as state- and municipal-level authorities). SCOTUS also depends on governments and people, not to mention the lower levels of the court system, to consider the spirit of their rulings, in addition to the letter, and to proceed accordingly. The Court generally tries to give clear, but broad, guidelines for future jurisprudence, and expects those guidelines to be honored.

However, if an entity—like a state legislature—decides they want to push back against the Court, there are all kinds of ways for them to do so. Consider a silly hypothetical example: SCOTUS rules that cars can no longer be painted black (this was an actual urban legend about California some years back). If that is the rule, then a state can follow along and ban any automobiles that might reasonably be deemed to be black. However, they can also decide that 99% black and 1% white paint is gray, and therefore not covered. They can decide that black cars are forbidden, but that black trucks and SUVs are OK. Heck, they can just allow black cars, and hope for the best. Even if the law is struck down, it could take years or more, particularly if a friendly judge or several friendly judges can be found.

What Oklahoma, and all the other red states, have figured out is that this Court is not terribly invested in stare decisis, and that "settled" law isn't so settled. These red states are now outright defying SCOTUS rulings on abortion, and they are violating the spirit of SCOTUS rulings on a whole bunch of other matters. And the blue states aren't above this sort of behavior, they're just a little late to the party. But it's only a matter of time until the first "inventive" anti-Second Amendment law gets passed by California or New York, or the first "inventive" anti-Citizens United law gets passed by Massachusetts or Washington. And does anyone really believe that, at such point that the liberals regain a majority on the Court, that abortion won't be revisited yet again, with the rulings going in the other direction?

There's also the lower levels of the federal court system, where SCOTUS rulings are increasingly seen as suggestions rather than as binding precedent. This sort of question is the bread and butter of the blog Above the Law, which has just published an item titled "District Courts Telling Supreme Court To Buzz Off Right And Left," with the subhead: "This is what a judicial crisis looks like." Author Joe Patrice looks at both conservative (Reed O'Connor) and liberal (Mark Walker) judges, and concludes that these days, they're doing pretty much whatever they want.

Patrice lays the blame for this turn of events at the feet of Roberts and the other conservatives on the Supreme Court, due to their now-common habit of standing on their heads to get the result they want, precedent be damned. He also points the finger at Senate Majority Leader Mitch McConnell (R-KY), who advanced the politicization of the court by light years with his Merrick Garland-related shenanigans. The author's conclusion:

This is the real cost of hijacking the Court for base politics. The cynicism of tanking Merrick Garland in contravention of the constitutional command to provide advice and consent—a phrase that at the very least means "have hearings and a vote"—only to follow it up with a beer-soaked meathead facing attempted rape allegations and mountains of mysterious debt and a slapdash rubber stamping of Amy COVID Barrett and her failure to clear the barest constitutional law hurdle managed to convince both sides of the proverbial aisle that the Court is little more than a life-tenured political proxy war. Throw in [Samuel] Alito and [Clarence] Thomas airing open contempt for established precedent and there's little incentive to treat the rule of law as much more than vote-counting at this point.

Congratulations Chief Justice Roberts... this is your legacy!

Obviously, Patrice's political leanings aren't a secret. Still, even if you disagree with his assignation of blame, he's got the goods when it comes to evidence of the Court's current reputation. And "where the Court is at right now" is a considerably more important issue than "here's who got it there."

Those are our thoughts on the new Oklahoma abortion bill. At the moment, it surely must seem like conservatives are "winning" when it comes to the judiciary. But that's just the battle. We'll see how the war turns out, once the unexpected consequences of these bills show themselves, once the blue states get enthusiastic about manipulating the system, and as the Supreme Court's developing reputation for capriciousness and partisanship continues to take hold. (Z)

Another Republican Politician Is Caught Committing (Potential) Voter Fraud

Republicans want you to know that voter fraud is a real thing. And to make sure you know, they keep getting caught doing it. At first, it was just private citizens, like the people in The Villages, and the guy in Nevada. Then, it was actual politicians getting caught, including Edward Snodgrass, who holds local office in Ohio, and then former representative and White House chief of staff Mark Meadows, who appears to have falsified his home address.

On Tuesday, another former Trump White House staffer joined the list, namely Matt Mowers, who was a senior adviser to the 45th president, and is now running for Congress in NH-01. In 2016, while a staffer of Chris Christie's presidential campaign, Mowers voted for his boss in New Hampshire. Then, after the Christie campaign did its best impersonation of the RMS Titanic, Mowers re-registered at his parents' house in New Jersey, and cast a second presidential primary ballot. It's not known what candidate got Mowers' second vote of the primary season, but we're guessing it wasn't Hillary Clinton.

Mowers is very unlikely to face any punishment, in part because the statute of limitations has run out on most of the laws he might have violated, and in part because New Hampshire law makes passing reference to the possibility that someone might legitimately change domiciles during election season, and so might legitimately be entitled to reregister. It's pretty clear that the intent there was so that people could vote for local representatives (e.g., members of Congress), not so they could vote for president twice in the same election. It's also pretty clear that Mowers did not actually change domiciles, since he lived in New Hampshire when he voted the first time, and he lived in New Hampshire after he left the Trump White House, and he lives in New Hampshire now. Still, there's enough gray area here that a prosecution just isn't worth it.

Despite the fact that this story isn't going anywhere, it does raise the question: Why do most of the people committing voter fraud seem to be Republicans? Here are five theories:

  1. Paging Mr. Machiavelli: There is little doubt that the Republican Party has embraced the philosophy that "the ends justifies the means." This usually happens with the minority party in American politics, but even by historical standards, the present-day GOP is quite aggressive about it. So, perhaps some Republicans feel entitled to cheat in a way that most Democrats (and, to be fair, most Republicans) do not.

  2. Drinking the Kool-Aid: If a person really believes the rhetoric that the Democrats are cheating left, right, and sideways (rhetoric that pre-dated Donald Trump, by the way), then they may feel they have no choice but to cheat in response.

  3. Disdain for Government: One of the main themes of the Ronald Reagan presidency was that government is basically incompetent. The Republicans have taken this notion to heart ever since. So, it may well be that someone like Mark Meadows did what he did because he thought the government would be too stupid to catch on. If so, well, who's the stupid one now?

  4. Desperation: It was no secret that Donald Trump needed every vote he could get, both in the 2016 primaries and election, and in the 2020 election. It's possible that desperate times called for desperate measures.

  5. Media Bias: When Republicans get caught with their hands in the cookie jar like this, it's not just a story about voter fraud, it's a story about gross hypocrisy. And hypocrisy, since it makes people angry, tends to attract eyeballs and clicks. Maybe there are a number of Democrats who committed voter fraud, in one form or another, but it's just not that great a story so it doesn't get as much attention. Although we should note that some of these stories, like the guy in Nevada, got attention before the party affiliation of the guilty party was known. So that argues against this theory.

Maybe there are other possibilities we've missed. In any case, a handful of Republicans committing voter fraud is an important story, not because of what it says about the Party (although it's probably instructive on that front, too), but because it proves that the basic argument is nonsense. Voter fraud is not common, not at all, and when it does happen, it generally gets detected. Mark Meadows got popped, and he's just one guy. If he couldn't get away with it, then there can be no question that these alleged thousands (or tens of thousands, or hundreds of thousands) of phony votes just don't exist. (Z)

Trump Claims Another Victim

When it comes to building candidates up, and getting them elected to office, Donald Trump's record is mixed, at best. When it comes to tearing them down, and getting them out of office, he's rather more effective. And so it is that on Tuesday, Rep. Fred Upton (R-MI) announced that he won't run for another term. In a statement, the Congressman said:

Even the best stories have a last chapter. This is it for me. I've done the zillions of airline miles back and forth. I've signed over a million letters, cast more votes while in the chamber here and accomplished what I set out to do with more unfinished work still yet to come.

So, has he accomplished what he set out to do? Or is his work unfinished? We are unclear.

Upton was one of the ten Republicans who voted to impeach Trump the second time, in response to the events of January 6. Of those ten, four have now called it a career—in addition to Upton, Anthony Gonzalez (OH), Adam Kinzinger (IL), and John Katko (NY) already fell on their swords. The remaining six are standing for reelection, barring further developments, but several of them have a tough hill to climb, particularly Liz Cheney (WY), Peter Meijer (MI), and David Valadao (CA). So, there's a good chance that Trump will manage to sweep away a majority of his enemies in just one cycle.

It should be noted that the former president can't claim all the credit in this particular case; because of redistricting, Upton was forced into a district with another incumbent, namely Bill Huizenga (R). However, when there's one Republican Trump hates and is willing to do anything to destroy, and a second Republican who is not on The Donald's radar, the latter has a huge advantage. It is probably not a coincidence that Trump, who rose to power based primarily on telling voters who they should hate—immigrants, Hillary Clinton, Muslims, Washington politicians (such as Hillary Clinton), the deep state, Democrats (like Hillary Clinton)—is more efficacious when it comes to telling Republican voters which office-seekers they should dislike, as opposed to which ones they should like. (Z)

California Special Election Headed to a Runoff

Speaking of Republican politicians whose career Donald Trump has ruined, Devin Nunes has surely got to be regretting that he gave up a reasonably safe seat in Congress to run TRUTH Social, right? He better have gotten himself a guaranteed contract, with the funds held in escrow, because unemployment must surely be in his near future, either due to TRUTH shutting down, or due to Trump scapegoating Nunes for the platform's failures and firing him. Either way, dead cow walking.

Anyhow, the special election for Nunes' now-vacant seat (CA-22) was held yesterday. Those crazy Californians use a jungle-style primary, such that if no candidate collects 50.01% of the vote, the top two finishers advance to a runoff, regardless of party. CA-22 is R+6, so it is to be expected that a Republican would lead the pack. However, enough Republicans jumped into the race that they split the vote. And so, while former state Assemblywoman Connie Conway (R) is way ahead, she's got no hope of clearing 50.01%. Specifically, she's at 34.8% of the vote, with 65% reporting. The identity of her runoff opponent remains in doubt; it will probably be Democrat Lourin Hubbard (19.7%), but it could also be Republican Matt Stoll (15.1%) or Democrat Eric Garcia (15.0%). Republicans Michael Maher (8.9%) and Elizabeth Heng (6.5%) are out of luck.

Assuming Hubbard does hang on, then Conway will certainly win in the runoff. Hubbard is an outspoken lefty, which would work just fine about 250 miles northwest of CA-22, but isn't gonna get it done in Tulare County. If Stoll, a former Navy pilot, claims the second spot, then he might make a race of it. That said, the "prize" here is just a few months in the House. If you're a Roland Burris-type, and you want to put "U.S. Representative" on your tomb, then OK. But other than that, the winner here is barely going to get to Washington before it's time to go home, particularly given the summer and winter recesses. You don't even get a pension, unless you serve at least 5 years.

"But the winner could run for reelection!" you might say. Not so much. Because of redistricting, CA-22 is going to be very different next cycle. Neither Conway nor Hubbard has any intention of running for another term; it's a few months and done if either one of them wins. And Stoll, Garcia, and Maher are all going to run in the new CA-21, which will also have Rep. Jim Costa (D-CA) on the ballot, and which is going to end up about D+10. So, they don't have much more of a future in the House than the winner of the special election does. (Z)

March... Sadness, Part VIII (Judges and Governors, Round 3)

The next quadrant for the round of 16:

The Judges and Governors bracket now looks like this:

#9 Associate Justice Brett Kavanaugh vs. #5 Gov. Ron DeSantis (R-FL);
#6 Gov. Greg Abbott (R-TX) vs. #7 Associate Justice Clarence Thomas

Here are the ballots for this round of voting:

The voting runs until Monday, April 11, at noon. Of course, comments on the matchups are appreciated. (Z & V).

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