Senate page     Sep. 08

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New polls: FL WA
Dem pickups: NC PA WI
GOP pickups: GA
Continuing with our rundown of the menu to the left of the map, the All Senate candidates page lists all 35 Senate races, with photos of the candidates, links to their websites, Wikipedia pages, and state parties, and a brief description of the race.

The Control of the Senate page gives you a time series of the (D) and (R) scores from Jan. 1 through today. There are two versions, one including all 35 races and one including only those races where one of the candidates led by at least 5 points. There was a period of serveral months when no poll showed any state flipping, but now that they are starting to come more often, these graphs will show more changes. Below the two graphs are the time series for 2016, the last time the Class 3 senators were up for reelection.

Trump Had Documents Describing Foreign Country's Nuclear Secrets

Cue the leaks. The Washington Post has a scoop on what was in some of the government documents Donald Trump stole and kept in his house in Florida. It's not pretty.

One of the documents detailed the military capabilities of a foreign country, including its nuclear capabilities. The document is so secret that most people with a top-secret security clearance aren't allowed to see it. Only the president, specific members of the cabinet or subcabinet (presumably including the Secretary of Defense but not the Secretary of Agriculture) may see it and then only in a secure facility. Such documents are guarded by a control officer who keeps tabs on them and who has seen them. Even most national defense officials aren't allowed to see documents like this. It is not supposed to be stored in a cardboard box in someone's spare bedroom, where all manner of unauthorized people could wander in.

The country isn't named. It also isn't known if it is a friendly country (say, Israel) or a hostile country (say, Iran). Getting another country's nuclear secrets was probably the work of a very high-level spy. There are only a dozen or so countries the document might relate to and now all of them will be hunting like crazy for the spy, whose life is probably in danger due to the document being taken out of its secure facility.

Judge Aileen Cannon has ordered the DoJ to stop investigation of the theft while a special master (who has not yet been chosen) goes through the 11,000 or so documents to see if any of them are privileged. It is hard to see how a document describing a foreign country's nuclear capabilities could be subject to executive privilege, but the special master will probably have to look at the document to formally determine this. And that means there is a huge problem here. Even if the special master is a retired three-star general with a current top-secret clearance, not every three-star general with a top-secret clearance is allowed to view the document in question and ones like it. In fact, most are not authorized to do so.

So, how is the special master going to do his or her work? Maybe the special master will go to a clean room in a secure facility with the Deputy Secretary of Defense and the latter will take documents out of the cartons one by one, skim them, and decide if the special master can see them, and if not, just give a brief summary to the special master? It won't be an easy or quick process unless the special master has the required clearance. As a thought experiment, imagine that some random private in the Army got access to a box of super secret documents and took them home and stored them in his basement but got caught. Where would he be now? Our guess is in a secure government facility with a door consisting of iron bars.

Actually, we think that the person who should be appointed special master is Chief Justice John Roberts. After all, tight security is essential, and nothing ever leaks out when he's running the show. Right? Oh, wait...

In the end, the ruling will delay matters but it may not help Trump much. If the special master finds a small number of documents that have to be excluded from evidence at a trial (but not the nuclear secrets), then Trump will not be able to say that there were exculpatory documents in the boxes that he wants to introduce as evidence but can't. After all, having the special master was his idea and he will have to live with the consequences of that. (V)

Five Things to Note about the Special Master Ruling

The Hill has an article listing five things to note in regards to the special master:

This win could be short lived, though. A special master could go through all the documents quickly and declare nothing was privileged. Then Trump couldn't argue "the deep state is treating me unfairly." That would have to switch to "the special master I asked for and approved is treating me unfairly."

But first the judge will have to find someone able and willing to take the job. Kenneth Feinberg, who was a special master in compensation cases filed after the 9/11 attacks, the 2008 mortgage crisis, and the 737 Max crashes, said that finding someone suitable won't be easy, especially since that person will need a Top-Secret/SCI security clearance. Not many people have that. Plan A is getting Trump and the DoJ to agree on one or more candidates to submit to the judge. If they fail, then Plan B is that the judge picks someone. But that person might well refuse, as it will be a thankless task, make at least half the country furious, and be poorly paid. And the person needs a very thick skin to ward off all the barbs coming from Trump. Also, the special master will be bucking the DoJ, which is against the whole idea. Many of the potential candidates may find that to be a dealbreaker, as pissing off the country's most powerful law enforcement apparatus is not generally a career-forward move. (V)

Trump's Lawyers Botched the Case

Trump's lawyers may think they "won" by getting the judge to approve a special master. If the goal was merely to stall, maybe they did. But if their goal was to help their client in the best possible way, former U.S. Attorney Renato Mariotti thinks they blew it. Trump has always used unethical lawyers, from Roy Cohn through Michael Cohen to Rudy Giuliani and John Eastman, and it has generally worked for him. Until now. The poor legal advice he has gotten about the stolen documents has gotten him into a fix he may not be able to get out of.

Mariotti says that the whole problem could have easily been avoided with competent legal advice. Bringing 11,000 government documents home was Trump's decision and not any of the lawyers' decisions, but lawyers are constantly approached by people who have made bad decisions. That's why they need lawyers. The job of the lawyers is to get the best result still possible for their clients, not dig the hole deeper. That's what Trump's lawyers did. Mariotti says this case is a study in bad defense.

When the National Archives asked for all the government documents back, Trump's lawyers should have said: "This is a civil matter. The National Archives does not have the power to prosecute you. If you return everything now, that will end the case. You won't even be fined. If you stonewall, it could turn into a criminal case and you could face prison." Maybe the lawyers did and Trump didn't listen, but even then they should have made it abundantly clear that stonewalling could land him in prison. If he still refused to listen, they could have all resigned to make their point.

But even if Trump was adamant, the lawyers should have gone over all the documents with him to pick the ones he wanted to keep. Then they could have negotiated with the Archives and returned most of the documents. If the ones he wanted to keep were not important, the Archives might have relented and let him keep them. Nuclear secrets were clearly not going to make the cut, though. If those were the ones Trump most valued, there was nothing the lawyers could do except go to the FBI and tell them. Maybe this is why this scenario didn't happen.

On Feb. 9, 15 boxes of mixed documents were returned to the Archives. The lawyers did not make an inventory of what was taken. Mariotti says that no competent attorney would have surrendered 15 boxes of stuff without first making a detailed list of what was being turned over and getting a signed receipt for it. If in the process of cataloging the documents, any competent lawyer saw classified ones, he would have told Trump that he was in grave danger and he had to return them immediately in return for the Archives agreeing in writing not to refer the case to the DoJ. The Archives would probably have agreed since the goal was to get the documents, not have Trump prosecuted.

On May 11, the DoJ issued a subpoena for more material still in Trump's house. Mariotti said any halfway decent lawyer would have warned Trump that he was now dealing with the DoJ, which had far more power than the Archives, and could get a search warrant to forcibly search his property. Now he was potentially facing criminal charges and that the only way to (possibly) avoid them was to fully cooperate with the DoJ. If that advice was given, it wasn't forceful enough to impress Trump. The lawyers should have said stealing government documents and refusing to return them under a subpoena was a federal crime, possibly multiple federal crimes, and it was an open-and-shut case and he would go to prison. Maybe they did this, but the evidence suggests they didn't push hard enough.

Then it got worse. One of Trump's lawyers, reportedly Christina Bobb, signed a certificate that all the documents had been turned over. Before signing that, she should have personally searched the house and inspected every box. Or better, hired someone else with a top-secret security clearance to do it. If Trump refused, she should have quit on the spot and told him he was probably going to prison. By signing the certificate, she made herself both a witness and a target. She also opened herself and Trump to charges of obstruction of justice. It was an unbelievably stupid move. No competent attorney would ever have signed a certificate saying everything had been turned over without verifying that herself or hiring a trusted outsider to do it.

In the end, Mariotti says if Trump had been given better legal advice and followed it, he wouldn't be in the deep doodoo he now is in. However, there is at least a chance that Mariotti, who has dealt with criminals his whole life, has a deep suspicion of what is really going on here and doesn't want to put it in writing. It is possible that he suspects that the lawyers did give Trump proper legal advice, albeit not forcefully enough, and Trump categorically refused to follow it because he wanted to have the classified documents to blackmail the U.S. government if the feds came after him, or perhaps sell them to the highest bidder. If so, Trump was incredibly stupid. A halfway competent criminal would have stashed three small batches of the most valuable top-secret documents in safe deposit boxes at three different banks and made sure nothing at Mar-a-Lago was classified. A subsequent FBI search that merely uncovered boxes of Time Magazine covers featuring Trump and hand-written thank you notes from foreign leaders would embarrassed the FBI and made it look like the deep state was after him. (V)

Democrats and the "Meh" Voter

One of the problems with naming your company after yourself is that when you retire, it is stuck with the name. Charlie Cook of the Cook Political Report has been running the show for 35 years and has decided enough is enough and has turned the show over to Amy Walter, who renamed it "The Cook Political Report with Amy Walter." When she retires, it will get even worse. If it had been, say, "The American Political Report," there wouldn't have been a need to patch up the name, sort of.

Anyway, Walter has a very interesting observation this week. She starts out by mentioning that normally, when the incumbent president's approval rating is awful, his party gets whacked in the midterms and the less popular he is, the more the damage. There is fair amount of evidence for this. She also notes that the U.S. behaving more and more like a parliamentary system, with people choosing a party and just voting for that party, irrespective of who the actual candidates are. So if you like the president you vote for his party; otherwise you vote for the other one. Hence presidential approval ratings have some predictive value and are closely followed. Joe Biden's are climbing now (to about 43%) but still deep underwater and this is supposed to mean big trouble for the Democrats in Congress.

What has surprised her (and many other people) is that Democratic Senate candidates are doing well and even the generic House poll is looking better for the Democrats. What's up? Surely this can't be all due to the small rise in Biden's approval in the past month.

Walter talked to a pollster who gave her some interesting information that we haven't seen discussed anywhere. In the poll, the 11% of voters who somewhat disapprove of Biden give the Democrats a 33-point lead in the generic ballot. How can this be? They clearly have swallowed the Kool-Aid that Biden is a horrible socialist and going to turn America into Venezuela. How could they want the Democrats to control Congress—and by a huge margin?

What Walter learned is that a large chunk of the "somewhat disapprovers" aren't Jeb! Republicans. They are young Democrats and they disapprove of Biden not because he is a socialist, but because he is not a socialist. These are Bernie's people and the last thing they are going to do is vote Republican for the House. That explains a lot.

The pollsters really didn't ask the right questions here. Asking: "Please rate Biden from 1 to 5" doesn't really capture what is going on. For people who disapprove, they should have had a follow-up question like: "Do you disapprove because: (1) he is too radical or (2) he is not radical enough?" The result of not asking this question is that a lot of pundits have assumed that disapproval of Biden means the Democrats will be shellacked. They may not be if the reason many people disapprove of Biden is that he is not carrying out Bernie's agenda (although in truth, he half tried, but the votes weren't there). Of course, the danger for the Democrats is that these "meh" voters may turn out to be "meh" nonvoters in November. (V)

Could Keith Ellison Be a Victim of Crime?

Minnesota AG Keith Ellison (DFL) is a progressive who is running for reelection. He is seen by both parties as the single most vulnerable candidate in Minnesota. What gives?

His opponent, Jim Schultz (R), talks about only one thing: crime. And he is blaming Ellison for it. Ellison has compiled a record most Democrats should like, on issues from abortion rights to climate change to opioids. Still he is in trouble, even in a state as blue as Minnesota.

Part of his problem is that he backs a measure to replace the Minneapolis Police Dept. with a Dept. of Public Safety. So does Rep. Omar Ilhan (DFL-MN), and she almost lost her primary to a pro-police Democrat who was not in favor of "defunding the police." This is seen as a warning sign to Ellison. In an ABC/Ipsos poll in August, crime registered as an important issue—although by no means the top one—and Republicans hold an 11-point lead on it. Nevertheless, Gov. Tim Walz (DFL-MN) said that crime could ultimately rival abortion as the top issue in November, which is why Democrats are worried about Ellison. One recent poll had him ahead of Schultz by 1 point. Further, he is Black and a Muslim and won in 2018 by only 4 points.

Ellison has said that the slogan of "defund the police" was a mistake, but to some voters, abolishing the Police Dept. and creating a much broader Dept. of Public Safety sounds a lot like "defund the police," which they oppose.

Things are not hopeless for Ellison, though. No Republican has won any statewide race in Minnesota since 2006 and the Democrat has won the past 12 presidential elections. Despite the close poll, Schultz is not without his own problems that Ellison can exploit. For one, he said he would go on the offense on abortion, even though it is legal in Minnesota. He also won't say who won the 2020 presidential election. Further, he is a lawyer for a hedge fund. Still, Ellison is not running away with it and it could be a close race. (V)

Post-Roe Democrats Are Raking in the Cash in Races for State Attorney General

State attorneys general have a lot of power over abortion in the post-Roe era. They have a lot of influence over who will be charged when abortion laws are violated and can set state policy about priorities. For example, should the state put a lot of money into trying to convict people who performed an abortion if it is illegal or should the focus be on going after millionaires who have committed tax fraud?

Democratic challengers in states with a Republican AG, including Arizona, Georgia, Kansas and even Texas, are much more optimistic now than pre-Roe, as donations have surged. Democratic AG incumbents in Michigan, Minnesota, Nevada, and Wisconsin are also increasingly confident about holding on due to the attention to abortion and the resulting increased donations.

Democrats are slowly being convinced that Dobbs will help them up and down the ballot. Usually, the Democratic Attorneys General Association lags its Republican counterpart in fundraising. But in the second quarter, its donations shot up 70% compared to the first quarter and passed the Republicans' haul, $6.5 million to $6.3 million. Part of that gain may be due to the group's policy of funding only candidates who are pro-choice.

Individual AG candidates are also seeing the effect. Rochelle Garza (D) outraised Texas AG Ken Paxton $520,000 to $340,000 in the second quarter. Democrats Jen Jordan (GA), Josh Kaul (WI), and Kris Mayes (AZ) all doubled online fundraising in the months after Dobbs. Michigan AG Dana Nessel (D), who has made her own abortion the centerpiece of her campaign, now has 20 times the cash on hand of challenger Matt Perno (R).

The Democratic and Republican AG committees have completely different priorities. The Democrats are mostly focused on abortion. The Republicans are focused on crime and the economy because they think people are worried about crime and inflation every day but not about abortion every day. However, they could be completely wrong about that. Or, it could be that voters conclude that the politicians can't really do much about crime and the economy, but they can do a lot when it comes to abortion. (V)

Michigan Judge Voids the State's Abortion Ban

Yesterday, Michigan Judge Elizabeth Gleicher ruled that the state's 1931 law banning all abortions violates the state Constitution. The law had been dormant until the Supreme Court tossed out Roe in June. This decision will bring abortion even more to the forefront than it had already been. It will clearly not only play a role in the AG race (see above), but in practically every other race in the state.

But wait, there is more. A petition by an abortion-advocacy group, Reproductive Freedom For All, would put an initiative on the November ballot to update the state Constitution to make abortion explicitly legal. It collected signatures of 730,000 Michiganders and Michigeese on the petition and presented it to a state board to put it on the ballot. The board deadlocked, so the case moved to the state Supreme Court, which has a deadline of tomorrow to rule. It is not known if the judge's decision yesterday will affect the Supreme Court's thinking, but it would be surprising if the Supreme Court said that because one low-level judge made a ruling, the voters need not chime in. In any event, there is lots of attention to abortion in Michigan and that can only help the Democrats up and down the ballot since abortion news could drown out news about inflation, crime, and other topics the Republicans want to talk about. (V)

Seven Races That Could Determine Control of the House

As we have mentioned many times, the House is a game of numbers. To control it, a party has to win 218 or more separate races. Doing well on the generic poll question, which the Democrats currently are, doesn't do the job if Nancy Pelosi (D-CA) wins by 200,000 votes in San Francisco but dozens of other Democrats lose by 5,000 votes each. The Hill has a rundown of seven races that could determine control of the House. The Democrats really need to win all of then to have a chance to hold the lower chamber. Here is a brief summary.

There are five incumbent Democrats running for reelection here in competitive races. If they can't all win, the Democrats are probably toast. (V)

Today's Senate Polls

We had our doubts about Rep. Val Demings (D-FL) leading Sen. Marco Rubio (R-FL) by 4 points. Now a new poll by Tony Fabrizio and John Anzalone puts Rubio +2. The earlier poll was probably jusy a statisical outlier. As an aside, Fabrizo is a long-time Republican pollster who has worked for many Republicans. Anzalone is a long-time Democratic pollster who has worked for many Democrats. When an Republican and a Democrat are commissioned to work together, we trust that they keep an eye on each other and the results are legitimate.

In Washington, Tiffany Smiley will not be smiley on Nov. 8. No real surprise there.

In the poll tables we will have whenever there are polls, you can click on the state name to get a graph of all polls for that state this year.

State Democrat D % Republican R % Start End Pollster
Florida Val Demings 47% Marco Rubio* 49% Aug 24 Aug 31 Fabrizio + Anzalone
Washington Patty Murray* 48% Tiffany Smiley 39% Sep 06 Sep 07 PPP

* Denotes incumbent


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