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A Busy Day on the Trump Legal Front

Wow. We may get to the point that half the judges in the country are earning their salaries dealing with various Trump-related legal matters. There were a dizzying array of developments on that front yesterday.

To start, it would appear that the Department of Justice is really gearing up when it comes to investigating the events of 1/6. According to sources who spoke to The New York Times, AG Merrick Garland and his band of Merricky Men (and Women) have just sent 40 subpoenas to people in near-Trump orbit. Most of the recipients are not yet known, but social media guru Dan Scavino got one, as did former NYPD police chief/Trump advisor/convicted felon Bernard Kerik. In addition, at least two more Trump insiders—legal advisor Boris Epshteyn and campaign strategist Mike Roman—had their cell phones seized. And, along with trying to get to the bottom of 1/6, the feds are apparently also taking a close look at the Save America PAC, which is the main Trump post-presidential fundraising PAC.

Meanwhile, in the other major DoJ probe, it would appear that Team Trump and Team Garland have reached agreement on who will serve as special master to review the documents seized from Mar-a-Lago. It's Raymond J. Dearie, who is currently Senior Judge of the United States District Court for the Eastern District of New York, and who also served as Judge of the United States Foreign Intelligence Surveillance Court. He is a Ronald Reagan appointee, in case you were wondering. His signature is on the order that allowed surveillance of Trump aide Carter Page as part of the Russiagate investigation. So, while he may be a Republican appointee, Dearie does not appear to be in the bag for Trump.

Interestingly, given Dearie's apparent ability and willingness to call balls and strikes, his name was proposed by the Trump camp, and not by the DoJ. Nobody quite knows why Team Trump settled on Dearie, but it seems unlikely that newly hired million-dollar lawyer Chris Kise has some sort of trick up his sleeve, since the folks at Justice, who certainly know Dearie's track record very well, quickly agreed to the appointment. In any event, concerns about Trump dragging his feet and about finding someone qualified to do the job were apparently overblown. Even if the classified stuff remains among the material that Dearie has to go through, surely a judge who served for 7 years on the Foreign Intelligence Surveillance Court has the security clearances and the discretion needed for the task.

While they have agreed on a special master, however, Trump and his lawyers are still fighting tooth and nail about other aspects of the case. In a 24-page filing yesterday, the former president strongly encouraged Judge Aileen Cannon to stick with her original order, and not to make any of the changes that the DoJ suggested—in particular, exempting the classified materials from the special master process. Kise makes the... interesting argument that "[T]he Government has not proven these records remain classified." This walks a fine line, implying that Trump declassified the materials without outright claiming he did so. Incidentally, the filing also contains Kise's e-mail address; if anyone wants to share their views on the case with him, undoubtedly he'd love to hear them.

And finally, it's small potatoes compared to all the other legal messes that Trump is in, but it was also announced yesterday that the Senate Judiciary Committee is taking a look at alleged Trump administration meddling in the Manhattan U.S. Attorney's office, meddling that was intended to help Trump allies escape the long arm of the law and also to punish Trump adversaries. This is prompted by a new book from Geoffrey Berman, who was appointed U.S. Attorney for the Southern District of New York by The Donald and later was forced to resign when it turned out he wasn't corrupt enough for Trump's tastes. Berman claims that he spent his entire tenure trying to hold the line against Trump White House interference. "Throughout my tenure as U.S. attorney, Trump's Justice Department kept demanding that I use my office to aid them politically, and I kept declining—in ways just tactful enough to keep me from being fired," to use Berman's own words.

So, there you have it. Maybe there won't be a Trump legal news item tomorrow, but we wouldn't bet on it. (Z)

Without the Trump Gravy Train, The Washington Post Is Hurting

We have watched with interest, and written about it numerous times, as Fox has backed away from covering/embracing Donald Trump (as have other Rupert Murdoch-owned properties like The New York Post and The Wall Street Journal). Maybe the ratings just aren't there anymore, particularly since Trump's "the election was stolen" shtick has gotten old and tiresome. Maybe Fox is thinking about which side its bread will be buttered on in 2024, and likes Gov. Ron DeSantis' (R-FL) butter knife better than it likes Trump's. Who knows?

More clear is what is going on at CNN. They took a beating on the failure of CNN+, while ratings for the mothership have been trending downward. Oh, and then there was the sexual misconduct scandal in the upper echelons of management on top of all that. As a result, and as we wrote yesterday, the network appears to be cutting way back on its Trump coverage, which was almost invariably negative. The notion that new president Chris Licht apparently has is that the network can recapture some of the more centrist/center-right viewers that have decamped for the redder, whiter, and bluer pastures of Fox.

And that brings us to The Washington Post which, like CNN, is suffering a post-Trump-presidency malaise. When the paper had wall-to-wall Trump coverage (most of it critical, of course), then "Democracy Dies in Darkness" was a big seller, newspapers were flying off the racks, and digital subscriptions were flying off... well, whatever they fly off of. Now, newsstand sales are down and so are paper and digital subscriptions. The result is that the paper is set to lose tens of millions of dollars this year, its first loss since it became a Jeff Bezos property (which coincided with the rise of Candidate Trump).

It is not entirely clear what the Post plans to do in order to right the ship. One solution, of course, would be for Bezos to get out his checkbook, since $100 million is just a rounding error when it comes to his bank account. However, the Amazonian says that the paper has to be self-sustaining, and that he's not going to get involved. So, publisher Fred Ryan is reportedly planning to can 100 "low-performing" newsroom personnel.

Needless to say, large-scale businesses often trim the fat in lean times, and so maybe that's all that's happening here. That said, CNN also claims that it's just trimming the fat, and yet its axe keeps falling on those who are most outspoken about Donald Trump. So, it's at least possible that the Post is also going to tack to the center in hopes of recapturing lost readership. It definitely bears watching (and see below). (Z)

House Republican Conference Set to Have a Majority... of Election Deniers

Now it's time for a couple of stories courtesy of the polling-guru Nates. The first of those, of course, is Nate Silver of FiveThirtyEight. That site is keeping a very close eye on the race to control the House. Silver & Co. predict that the Republicans will win between 218 and 240 seats in November. And now, they've gone through the potential GOP conference and determined that there will likely be 118 election deniers who win seats this year. So, unless there is a giant red wave, then would-be speaker Kevin McCarthy (R-CA) is going to have more people in his conference who are election deniers than people who are not.

Needless to say, the cat-herding skill that McCarthy would need to control a conference like that is orders of magnitude more substantial than anything that ever confronted Paul Ryan or John Boehner. And yet, both of them got so fed up they quit as Speaker. McCarthy has demonstrated no particular backbone and no particular skill as a leader; certainly Speaker Nancy Pelosi (D-CA) puts him to shame, as do both party leaders in the Senate. If the Republicans retake the House then, in addition to endless investigations into whether Hunter Biden wears boxers or briefs, there will be a dizzying number of investigations into "election fraud." And they will undoubtedly be as compelling and as skillfully managed as the one by Cyber Ninjas.

Meanwhile, partisanship is already bad enough in the House. How can the chamber possibly function if the majority of one caucus is living in an entirely different reality from everyone else? Especially since the other part of the Republican conference, the faction that will presumably be the minority, is very much on notice that if they dare speak up, they'll become a target—in terms of being pushed out of office as a RINO, but also possibly a literal target from some GOP nutter. Given what has happened to folks like Reps. Liz Cheney (R-WY), Adam Kinzinger (R-IL), and John Katko (R-NY), is there really any chance that the sane Republicans speak up and push back against their whackadoodle colleagues? Not bloody likely.

And, dear God, what happens if we get to January 6, 2025, and Joe Biden or some other Democrat has won the White House? Who knows what stunts the election deniers might come up with? Who knows that they won't try to encourage Insurrection v2.0? Certainly, if they've been elected based on the claim that anytime Democrats win the presidency, it's fraudulent, they won't be willing or politically able to sit on their hands and do nothing.

One can only hope that the current Congress gets its act together and reforms the electoral-vote-counting process so as to minimize opportunities for shenanigans. Further, it becomes clearer every day that Joe Biden is right, and that electing Democrats this cycle isn't just about advancing a particular political agenda, it's about saving the democracy. (Z)

Cohn Rains on Democrats' Parade

And now, on to Nate #2, The New York Times' Nate Cohn. He also has a piece up that will put a damper on the spirits of Democrats, though in a manner different from the one by Nate #1.

In short, we all know that the pollsters blew it in some states in 2016. And after the election of 2020, Cohn and his colleagues crunched the numbers and found that in the states where pollsters overrated Hillary Clinton, they also overrated Joe Biden. Right now, Cohn says, the Democrats appear to be exceeding expectations in the very same states where their chances were overrated during the past two presidential cycles. So, the good polling news for Team Blue, particularly on the U.S. Senate front, could possibly be a mirage.

As a case study, Cohn takes a look at Wisconsin, where Clinton was overrated by about 6 points in the polls and Biden was overrated by 8-9 points. At the moment, Democratic U.S. Senate nominee Lt. Gov. Mandela Barnes is up 4-5 points in polls, which is a very big lead when facing an incumbent like Sen. Ron Johnson (R). But if the Wisconsin polls are in error to the same extent as they were in 2020, then in reality Barnes probably isn't leading, and instead is trailing by 3-4 points. Cohn finds the possibility of a blue mirage very plausible since, again, he noted these polling errors for two consecutive cycles, and because, as he writes: "Most pollsters haven't made significant methodological changes since the last election."

And now that Cohn has rained on the Democrats' parade, let us rain on his parade a little bit. He, of course, has to produce copy a certain number of times per week, and he's gotta come up with provocative things to say. But comparing midterm numbers to presidential cycle numbers is more than a bit problematic, keeping in mind that 2018 and 2014 were both actually pretty good polling years while 2016 and 2020 were not. For example, if you look at our final 2018 U.S. Senate map, we had the Democrats finishing with 46 seats, the Republicans finishing with 51, and 3 seats too close to call. The final tally was 47-52, with one seat left vacant (that seat eventually went to the GOP, making it 47-53).

And there is, of course, a very plausible explanation for why 2016 and 2020 were out of whack, while the midterms were not. That explanation is: Trump voters. There is clearly some segment of the electorate that's fanatical about him, and that makes sure to get to their polling places when he's on the ballot, while also lying about their intentions to pollsters (or simply not taking the pollsters' calls). We can't prove that this dynamic is what separates 2016/2020 on one hand, and 2014/2018 on the other. And we can't be certain that, even if that is the pattern, it will continue into 2022. However, again, it's plausible.

Beyond that, it's a little sloppy to suggest that because pollsters didn't reinvent the wheel, they probably can't do better. They don't have to radically reimagine polling if they can just get their models of the electorate correct. And that's where the changes appear to be this year. Emerson and several others appear to be using very tight likely voter models, such that nearly all the swing-state races (except Pennsylvania) appear to be very close. Much closer than we would expect, in many cases.

Anyhow, we pass this item along because it's always good to have some bubble-pricking perspectives. But we obviously don't put a whole lot of stock into Cohn's conclusions, either. (Z)

More Republicans Backtracking on Abortion

Every day, it seems that a Republican candidate for office has read the results of the Kansas referendum... er, we mean "reflected carefully on the matter," and has concluded that perhaps their previous views on abortion require updating.

For example, there is Gov. Greg Abbott (R-TX), who has spent his entire career adopting whatever position on abortion happens to be expedient on that particular day. Responding to criticism that Texas' harsh new abortion policies could force a rape victim to carry an unwanted fetus to term, he has now decreed that, in those cases, the morning after pill is an excellent option. This marks a change from a month or two ago, when he said "no way, no how" to use of such abortifacients.

Left unanswered are questions like: (1) How is a woman supposed to get the morning after pill on short notice if it's generally prohibited in the state?, and (2) How exactly are the Texas authorities going to determine whether those who want the pill "qualify"? Yes, Abbott proposes that the women will have to identify their attackers in order to be accommodated (which certainly puts a lot of onus on women who might not be ready for that just hours after such trauma). However, there are most certainly rapes where the attacker is unidentifiable to the victim. Further, is the state prepared to conduct a full investigation in, what, 48 hours? What if a woman, feeling the need to game the system, claims rape until pills have been dispensed, and then changes her mind? This business of trying to draw a bright, red line between "acceptable abortions" and "not acceptable abortions" seems to have been poorly thought out.

That said, Abbott's flip-floppery on this issue is nothing compared to would-be Minnesota governor Scott Jensen (R), a story that was brought to our attention by reader S.H. in Minneapolis. In March, Jensen declared: "I would try to ban abortion. I think that we're basically in a situation where we should be governed by... there is no reason for us to be having abortions going out." Seems pretty clear, right?

Well, Jensen came under some criticism for not allowing for rape/incest exceptions. And so, in July, he explained: "I never thought it necessary to try and identify what those exceptions might be in regards to legal abortion or not, because I always thought when I uphold the pregnant woman's life, and if her mental and physical health is in danger or jeopardized, that's all that needs to be said." Also pretty clear, even if stated less than artfully. And a fairly significant change from "no abortions ever."

But that's not where Jensen's "evolution" ended. Last week, he released a new campaign ad:

It's only 30 seconds, so you should consider watching it, though you'll want to brace yourself so as to avoid a case of whiplash. In the ad, Jensen cradles a newborn baby, talks about all the babies he's delivered (he's an M.D.), and says that abortion is a protected constitutional right in Minnesota and "no governor can change that." Can you perceive any difference between that and the Democratic position? We can't.

We're not sure if any of this flip-floppery will help. Probably, Abbott is in a strong enough position that it won't matter and Jensen is in a weak enough position that it won't matter. However, they—and others like them—are running the risk of alienating right-wingers who conclude that they are not True Believers, while at the same time failing to win over moderates, independents, women, etc. who find their supposed "come to Jesus" moment on abortion rights to be unpersuasive. (Z)

Not Open to Debate

Political debates may be going the way of the dodo. Certainly, the number of debates in U.S. Senate contests is way down this year as compared to past years.

There are numerous dynamics in place that help explain this. In some cases, a race is very close, and a debate would seem to make good sense. However, a debate is never a good idea if the candidate has a bad habit of saying stupid stuff. The case study here is would-be Georgia senator Herschel Walker (R). Inasmuch as he's not especially well known beyond his football accomplishments, he would benefit from being able to introduce himself to the voters of Georgia on live TV. But his verbal skills are... poor, to say the best, such that there's a new story practically every day about his butchery of the English language. Add into that the fact that he's got many skeletons in his closet that would surely come up, and that he'd be up against a master public speaker in Sen. Raphael Warnock (D), and Walker wants no part of a debate stage.

Then there is the case where the race doesn't appear to be close at all, and agreeing to debate would just be giving a lifeline to one's opponent. This is the Lt. Gov. John Fetterman (D-PA) situation. He's leading in every poll, by a healthy margin. Because of his recent stroke, he might trip over his tongue a bit (and we've seen what the media does with that when it happens to Joe Biden). Further, because Mehmet Oz (R) is desperate, he is likely to pull out all the stops and punch below the belt.

The Washington Post editorial board, possibly presaging a rightward shift (see above), took Fetterman to task yesterday, demanding that he debate Oz multiple times. The board writes:

Mr. Fetterman is asking voters for a six-year contract without giving them enough information to make sound judgments about whether he's up for such a demanding job. We have called for full disclosure of health records from candidates for federal office in both parties, including Donald Trump and Joe Biden, and we believe Mr. Fetterman should release his medical records for independent review.

And he should debate Mr. Oz before voters start casting their ballots. Mr. Oz, for his part, has not exactly conducted himself with glory. The campaign's offer to fund "any additional medical personnel [Mr. Fetterman] might need to have on standby" during a debate and its mocking comment about Mr. Fetterman not eating enough vegetables were sophomoric and unseemly, made worse by the fact that Mr. Oz is a cardiothoracic surgeon. Both candidates have something to prove to voters, and there is no better forum than a debate.

We would actually dispute that debates—a.k.a. political reality TV—are the best way for voters to learn about candidates. In any case, if Fetterman were to bow to the Post's demands, that would be political malpractice. He is absolutely correct to delay, as a tactical matter, particularly given the Oz campaign's debate-related shenanigans.

And then there is the third scenario that's keeping some debates from happening, namely that one of the candidates is a whack job. The example here is Arizona Secretary of State Katie Hobbs (D), who is currently running for governor against Kari Lake (R). Lake is an unhinged Trumper, one who would Gish gallop her way through a debate, making all sorts of claims untethered from reality. This kind of thing is virtually impossible to respond to; as Brandolini's law observes, "The amount of energy needed to refute bulls**t is an order of magnitude bigger than that needed to produce it." There just isn't time to push back against all the nonsense, especially when some of the nonsense has nothing to do with the real world. And the failure to push back is taken, by some, as de facto acknowledgment that the claim is valid. (This, by the way, is how Ben Shapiro "destroys" college students in "debates.) Anyhow, it makes no sense to debate someone under those circumstances, and yesterday Hobbs said she just wouldn't do it.

We shall see if debating remains an element of political campaigns, or if the practice is eventually consigned to the scrap heap. Keeping in mind that politicians rarely debated between the 1860s and the 1960s, clearly they are not essential to a functioning democracy. (Z)

Today's Senate Polls

This is an example of a polling situation that is surprisingly close. Keep in mind that if you're a pollster, it's far less risky to predict a close election than a blowout, since there is less likelihood of being way wrong. So, there's some motivation to be very cautious this year, given that 2020 went poorly for most polling houses. (Z)

State Democrat D % Republican R % Start End Pollster
Ohio Tim Ryan 47% J.D. Vance 46% Sep 05 Sep 07 Suffolk U.

* Denotes incumbent

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