It turns out the song theme from yesterday was tougher than the previous ones, as we've gotten far fewer correct answers than normally is the case.
Y.K.L. in Dayton, OH, asks: What are the chances of Rudy Giuliani or any of the other defendants in the Georgia case ending up needing a public defender, and if so, to what extent would it affect their case?
(V) & (Z) answer: It is a virtual certainty that some of them will need PDs. Donald Trump has made clear he's not going to be helping any of his co-defendants, and some of them clearly don't have the funds to pay for this kind of defense. Harrison Floyd already spent a week in jail because he couldn't even afford a lawyer for his arraignment. The only way our answer might change is if the co-defendants end up accepting plea deals, en masse. But even then, some of them might still need PDs.
If the co-defendants who have PDs end up as part of a multi-defendant case (in other words, with most or all defendants tried at the same time, the way Fulton County DA Fani Willis wants), then the PDs probably won't matter too much, since they can just ride the coattails of the private lawyers. If a person goes on trial by themselves with a PD, that's not a great situation for that defendant, since the PD would be up against the combined might of the Fulton County DA's office, which has been working on this for years. Anyone in that situation is a virtual lock to take a plea deal.
A.C. in Zenia, CA, asks: You wrote, of Rudy Giuliani: "He should have stopped when he was ahead after 9/11, continued giving speeches to big companies at $100K a pop, and gone out as a hero. He might well end up dying in prison as a pauper. It couldn't have happened to a nicer guy."
I don't have a lot of details on this, so correct me if I'm wrong, but wasn't Guiliani, as mayor, part of the massive incarceration of Black New Yorkers, and author of the "stop and frisk" and the "broken window" policies that ended up criminalizing poverty, especially among people of color? I don't buy that "he used to be such a great guy" story at all.
(V) & (Z) answer: First, you're right about Giuliani's record. Second, it is clear the "nicer guy" remark was sarcastic, right? Third, just because someone has a deeply problematic record, particularly as regards stepping on the most vulnerable members of society, doesn't mean they can't be popular and a hero. There are people who don't know or who don't care about the effects of a leader's policies, as long as they like the person themselves, and there are also people who see those effects as a good thing, and not a problem. If you want someone whose public image and hero status are light years removed from their actual record, see Giuliani's former boss, namely St. Ronnie of Reagan.
B.J. in Arlington, MA, asks: You wrote, "[Mark Meadows] finally admitted under cross examination that there is no role for the federal government in overseeing the integrity of elections. Of the three branches, the Executive Branch is the only one with no role."
I'm confused. Isn't the Voting Rights Act about ensuring the integrity of elections? How can the Justice Department have no role in upholding the integrity of federal elections?
(V) & (Z) answer: The bulk of the Voting Rights Act actually empowers people to go to the courts to seek redress for the wrongs they perceive. It's true that there is a little bit in there about the DoJ, but the DoJ is supposed to be basically independent of the executive branch, and nearly anything it might do in the context of election integrity has to be backed with a court order.
E.R. in Irving, TX, asks: TFG is concerned about court appearances for his current 91 charges across four jurisdictions up and down the eastern U.S. interfering with this ability to grift the rubes run for office. If his alleged co-conspirators have trials separate from him and he is called as a witness, wouldn't that mean more time in courtrooms and away from the campaign trail?
After all, if I were one of the accused's attorneys, I would abso-fricking-lutely be putting the alleged ringleader on the stand to try for a moment akin to Jack Nicholson's courtroom scene in A Few Good Men. In fact, I don't see how any alleged co-conspirator could have a fair trial without TFG being questioned as a witness.
(V) & (Z) answer: He certainly could be called as a witness, and he'd have no choice but to show up. That said, calling him would not be a slam dunk. He's likely to just plead the Fifth over and over, which does little to move the defense case forward, and uses up the jury's limited supply of attentiveness. Failing that, he's likely to try to shift the blame to the defendant. It is certainly possible that a lawyer might trip him up, either because of a mental error by the former president, or because he loses his temper, Col. Nathan Jessup style. But while that is an ideal outcome for the defense, it is not a certain outcome by any means.
P.D.C. in New Salem, MA, asks: On 1/6, the Secret Service prevented Donald Trump from going to Congress. Now people are saying they will prevent Trump from trying to flee the country. Under what authority do they tell a president or former president where he can go? Consider a situation where a president wanted to go to Congress to try to calm a crowd. Preventing him from doing that could make the situation worse.
(V) & (Z) answer: In the end, the U.S.S.S. works for the sitting president. So, if the sitting president decides to ignore their instructions, he has that right. Sitting presidents very, very rarely do that, however, as it undermines the relationship between the president and his protective detail.
As to Trump, he is an ex-president, and so the U.S.S.S. does not work for him. Further, as we noted last week, they are a law enforcement organization and are empowered and required to enforce the law. That's true even with a sitting president, and it's certainly true with an ex-president. If Trump tried to do something illegal, he would have no power to stop the U.S.S.S. from arresting him, and if he tried to do something dangerous or stupid, he would have no power to stop the U.S.S.S. from intervening.
S.E.Z. in New Haven, CT, asks: Suppose Commander-in-Chief Biden were to declare a national emergency and begin appointing nominees to high military positions without Senate approval. The normal recourse to stop this clearly illegal behavior would probably involve court action to cancel these appointments. But would Sen. Tommy Tuberville (R-AL) really sue to continue his attack on the Defense Department? Would Alabama voters re-elect someone so dead-set on leaving the country defenseless? Or would President Biden be setting himself up for an impeachment-and-acquittal extravaganza?
(V) & (Z) answer: Declaring a national emergency and then ignoring the Constitution sets a dangerous precedent. Declaring a national emergency and then ignoring the Constitution to put your preferred people in charge of the military sets a precedent that's many magnitudes of order more dangerous. If Biden tried it, it would not matter what Tuberville thinks, as Democrats and Republicans both would be lining up to impeach and convict.
R.C. in Ellenwood, GA, asks: I saw a recent hypothetical poll from Emerson College showed Joe Biden losing to Donald Trump if Cornel West of the Green Party was in the race. Should we be worried about this, or am I overreacting?
S.B. in Hood River, OR, asks: Was listening on the radio (I think MSNBC), and they were talking about how the polling for 2024 is so much worse for Biden than it was at this point in 2020. What is your take on it?
(V) & (Z) answer: Polls this far out mean relatively little. First, they're almost all national preference polls. The presidency is not decided by national preference polls, but by the Electoral College. As Cornel West is likely to do better in states where the Democrats have a safe lead (like, say, New York), and less well in swingy states like Nevada, his within-the-margins-of-error numbers are not instructive.
As to Biden 2019 vs. Biden 2023, we are skeptical that such a comparison would stand up to scrutiny, since in 2019 there was a divided Democratic field, with votes going to a dozen different candidates, whereas in 2023 there isn't. But even if we assume Biden is weaker right now, polling-wise, than in 2019, it doesn't mean very much.
In nearly all polls right now, something like 15% or 20% of voters say they are "undecided." It's inconceivable that people don't know enough to make a decision, and so that can only be read as 15% or 20% are really, really hoping that some viable alternative comes along. Assuming no alternative does present themselves, then those 15% or 20% will be forced to make a choice. And they largely figure to make the same choice as they did in 2020, when Biden collected 7 million more votes than Trump. In fact, they might break more aggressively for Biden, since he's had 3 years of leadership that is somewhere between "OK" and "exceptional," depending on your perspective, while Trump has had 3 years of getting into deeper and deeper legal trouble.
A.S. in Brooklyn, NY, asks: Ok, so this is hypothetical: From a scale of 1-10, how weird and destabilizing would it be if Bill and Hillary Clinton came out and endorsed (in person) RFK Jr. for president?
(V) & (Z) answer: We will pick "1," since that is the lowest number you made available. The Clintons' influence over the country and over the Democratic Party has waned dramatically since Bill's heyday in the 1990s. If they came out as RFK Jr. supporters, people would largely find reasons to dismiss it, like "They must be losing it as they age" or "They must be friends with RFK Jr." or "They must have a beef with Joe Biden."
Now if Barack Obama—who is younger, more popular, and closer to Biden than the Clintons—was to come out and endorse Kennedy, that would definitely have a palpable impact. Maybe a 4 or 5.
R.W. in Brooklyn, NY, asks: When pollsters like Whit Ayres talk about "Republicans," what group of people are they describing? Only people currently registered Republican? Former Republicans who are still Republicans in their hearts? Something else? It seems to me that if it excludes people who left the party when Trump became the nominee, then the results are inaccurate. Those are people who could eventually return to the fold once Trump (and I suppose Trumpism) are banished, and their opinions matter. In other words, currently registered Republicans are a self-selected group and aren't representative of the greater Republicans constituency.
(V) & (Z) answer: It's a tough problem right now. Since pollsters can't leave room for judgment calls, lest they bias their results, they surely mean "people who are registered as Republicans" or "people who identify as Republicans" when they say "Republicans." You can always look at the crosstabs and the questionnaire to see which standard the pollster used.
Since we are not pollsters, we can be at least a little freer, especially since we know full well that not everyone's registration is perfectly representative of how they vote or how they think. We often draw a distinction between the far right/Trumpers/Trumpublicans on one hand and normal Republicans/sane Republicans/old-style Republicans on the other.
J.L. in Los Angeles, CA, asks: Correct me if I'm wrong, but weren't the House delegations as of January 6, 2021, breaking with 26 majority-GOP and 24 majority-Democratic? And isn't Wyoming a delegation of just one representative? And wasn't that one Liz Cheney? Would Cheney have wanted to be the tie-breaker to put Donald Trump back into the White House? Wouldn't she have been more likely to cast her vote for Joe Biden and, at best/worst, make the House vote into a tie?
(V) & (Z) answer: You're wrong, in that there were some delegations that were evenly divided: Minnesota was 4-4, Pennsylvania was 9-9 and Michigan was 7-7. If we assume that everyone voted the party line, that would have produced a result of 26 states for Trump, 21 for Biden and 3 not voting. So, Cheney would not have been the decider.
That said, we imagine that there are Republicans who would not have been willing to vote for a coup, since there was no actual ambiguity about the election results. But if all of them except Cheney and Adam Kinzinger were indeed willing to participate, then Cheney's vote would not have been decisive, regardless of how she cast it.
D.K. in Iowa City, IA, asks: Donald Trump's handling of coronavirus was clearly incompetent and has been estimated to have cost 500,000 American lives. Has there been any attempt to hold him responsible for this legally? Could there be a criminal or civil lawsuit of any sort? There has been surprisingly little news about this in the last year. This is in some sense more important than the other legal cases; the U.S. could have done far better in terms of saving lives and controlling the virus. The impacts of Trump's errors are still with us.
(V) & (Z) answer: You are never going to see a court case along these lines, for two reasons. First, while Trump might be broadly responsible for many, or even most, of those deaths, it would be nearly impossible to prove beyond a reasonable doubt (or to a preponderance of the evidence, in a civil case), that due to [THING X] that Trump did or didn't do, [PERSON Y] would still be alive. Second, an officeholder is very broadly indemnified for nearly all of their official decisions, even if those decisions were bad/harmful/unethical. For example, escalating the Vietnam War was ultimately a mistake, and Lyndon B. Johnson undoubtedly deserves the blame for some sizable number of the soldiers who died. But because that was a political decision, there was no basis for prosecuting or suing Johnson.
J.W. in Pomona, CA, asks: It is said that Donald Trump would have won if there wasn't COVID in 2020. So you believe that is accurate?
(V) & (Z) answer: This is impossible to prove to a certainty, or anything close to a certainty. The basic logic is that: (1) Trump's handling of the pandemic turned off some number of voters, (2) He lost by narrow margins in several swing states, and so (3) He would have won reelection, but for the COVID.
We'll start by noting that Trump needed to flip four states to win, namely Georgia, Arizona, Wisconsin and Pennsylvania. His margin of defeat in Pennsylvania (1.16%) was nearly double his margin in any of the other three, and we think it's fair to assume that if a non-COVID world flips Pennsylvania to him, then it probably gives him all four states. So, the basic question here is whether the pandemic resulted in a net shift of 1.2% in Pennsylvania.
It's certainly possible. Trump's handling of the pandemic may well have flipped roughly one voter in a hundred in the Keystone State. Further, if Republican voters had not died in disproportionate numbers, that might have helped to make up some of that 1.2%, as well. On the other hand, it's possible that Trump picked up some votes due to COVID, either because he facilitated the rapid creation of a vaccine, or because some voters responded angrily to masking and other Democratic-driven policies. As to the latter point, Trump won North Carolina by just 1.35%, and there was a lot of anti-government anger there. Maybe in a COVID-less world, Trump wins Pennsylvania (and the other three states listed above) but loses North Carolina (and thus the election). It could have happened.
All of this is to say that we just don't know. This is reflected in the various data-driven attempts to answer this question in fine-grained detail. For example, an analysis by three University of Texas political scientists found that the pandemic "did much to ensure his defeat." On the other hand, an analysis from FiveThirtyEight found the effect of the pandemic was "not as much as one might expect." Their argument is that, in the current polarized climate, there just aren't that many voters available to flip, even in the face of an absolutely disastrous mistake.
If you made us pick, we'd probably side with FiveThirtyEight. But it's a close call, and anyone who presents it as a certainty, one way or the other, is off the mark.
M.M. in Potomac, MD, asks: You wrote: "Donald Trump is against voting by mail and is telling his supporters not to do it."
I recall seeing ads during the first Republican primary debate for something called Bank Your Vote, which seemed to be encouraging Republicans to vote early (and by mail?). It included an appearance from Trump encouraging participation, which I found surprising. Cursory Googling leads me to believe this is a legitimate effort on the part of the RNC.
Has Trump changed his tune? And the RNC? Is there possibly some other strategy at play?
(V) & (Z) answer: Trump has always voted by mail. His "opposition" was either because he believes that voting by mail helps Democrats, or because he was laying the groundwork for claims of a stolen election, or both. Only he knows.
The Republicans, with Gov. Glenn Youngkin (R-VA) particularly outspoken among them, know that the fraud claims are nonsense, and that pooh-poohing early voting is a self-inflicted wound, since only Republicans listen to such rhetoric. Trump himself appears to have been won over to this point of view, since it's not like "don't vote by mail!" worked well for him in 2020. So, we think it's a legitimate effort, and not some sort of trickery.
R.T. in Arlington, TX, asks: As I understand it, Trump is not constitutionally ineligible to be on the primary ballot because winning the primary does not put you into office. But a good argument could and probably will be made that he is ineligible to be on the general election ballot. Even if winning the nomination is fait accompli by March, procedurally he is not the nominee until the Republican convention next summer. My question is, is there a scenario where multiple states declare him ineligible for the general election after he becomes the official nominee?
(V) & (Z) answer: First, state law prohibits ineligible candidates from being placed on a ballot. So, the question of Trump's eligibility is absolutely germane to the primaries. Second, waiting until he's the nominee and then trying to boot him would be a pretty sleazy move, and would be very likely to rebound on the Democrats. And even if that was not true, the modern Democratic Party has not generally had the steel for that kind of realpolitik gamesmanship.
T.B. in Leon County, FL, asks: I just read, on Political Wire, an item that says: "A South Florida lawyer has filed a lawsuit against Donald Trump seeking to have the former president declared ineligible to run for another term as president."
It then occurred to me, "Why not go about it the other way 'round?" Someone in the U.S. Senate could, per the Fourteenth Amendment to the Constitution, put up a bill to "restore" Trump's eligibility (per the last sentence of Section 3); if it didn't get a two-thirds affirmative vote, future eligibility would be de facto denied. What's wrong with this approach?
(V) & (Z) answer: First, that is not what the Amendment says. Second, do you really want to establish that someone can only run for president if they can secure a supermajority of votes in the U.S. Senate?
R.H. in Macungie, PA, asks: Now that several suits have been filed to establish that TFG can't be on the ballot, I was wondering why Chris Christie hasn't pursued this. His whole reason for running is to oppose TFG, so why isn't he submitting similar suits in every state? I'd chip in money for that! And he would clearly have standing since having TFG on the ballot clearly hurts Christie's chances of being competitive in the primaries.
(V) & (Z) answer: If we assume that his reason for running is to take Trump down, maybe he's keeping that card in his back pocket to be deployed later. But Christie did not behave at the debate like someone looking to take Trump down, he behaved like someone who thinks he has a chance at this thing. If so, he might have decided that legal maneuvering would be too damaging to his campaign.
In short: We really don't have the faintest idea what Christie's thought process is right now.
R.H. in Anchorage, AK, asks: In several states, Democrats are pushing to peremptorily remove Trump from the ballot based on the Fourteenth Amendment. I'm wondering: Are the Democrats shooting themselves in the foot here? Wouldn't (a presumably by-then convicted) Trump be among the easiest candidates for them to beat? Or do you think Joe Biden would easily beat any of the Republicans who showed up for the first debate?
(V) & (Z) answer: When, and if, Trump will be convicted remain open questions. The impact of a conviction on his political fortunes is even harder to discern. We tend to think that he will be convicted of one or more crimes, it will be before the election, and it will hurt him. But we just don't know.
That means that all we've got, at the moment, is the polling numbers for the race as it stands. And what those polling numbers say is that Trump is between 3 and 10 points stronger against Biden than anyone else in the Republican field.
B.C. in Walpole, ME, asks: The GOP candidates all seem to subscribe to the same idea: Trump must inevitably, one way or another, leave the political scene, and when he does, his bloc of loyal voters will remain, like low hanging fruit; then [CANDIDATE X] will step forward to claim them and they'll all vote for me just as they used to vote for Trump. I don't think this is possible for a variety of reasons that I spared you from having to listen to in order to shorten this. What do you think? Will the loyal bloc of Trump voters happily embrace a new messiah when the time comes and vote reliably for him/her, or will the group erode and disperse?
(V) & (Z) answer: The people "running" for president have to fool themselves into believing they have a chance (unless they have some other agenda, like trying to land the VP slot). However, it appears to us that most other Republican politicians have reached two conclusions: (1) Nobody can replace Trump while he's still active, and (2) Nobody can replace Trump even once he exits the political stage. At least, not as things currently stand.
In short, we think you are right that there's only one Dear Leader for some meaningful segment of Trump's base. And we think that many Republican pooh-bahs think you're right, too. Exactly what happens to the base when he's gone is tough to project, but we'd guess that some of them become non-voters, thus rendering the GOP temporarily neutered at the national level.
L.B. in Savannah, GA, asks: I keep hearing people who ought to know better propose a Trump/DeSantis ticket. The Twelfth Amendment is clear: "The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves..."
I interpret this to mean that in the event of a Republican win in Florida, if both the presidential and vice-presidential nominees are from Florida, the Florida Republican electors could vote for one, but not both, denying the one they don't vote for the benefit of Florida's electoral votes. As far as I can tell, this would only make a difference if the election comes down to Florida again, potentially resulting in a Biden win with a Republican VP or a Trump win with Harris as his VP.
I know this was enough of a threat in 2000 for Dick Cheney to switch his residence from Texas to Wyoming. I can't see Trump changing his residence back to New York or to New Jersey, where Bedminster is located, and Gov. Ron DeSantis (R-FL) is a Florida politician, so he's not going anywhere either. Would this only be significant if the election hinges on Florida, or are there other potential problems I'm missing?
(V) & (Z) answer: We've written about this before. Your understanding of the Twelfth Amendment is correct, and we agree that Trump would never agree to be the one to "change" states. Since the sitting governor of Florida can hardly claim not to be a Floridian, that makes a Trump/DeSantis ticket risky if Florida is the tipping point state.
That's the only potential problem we see, but it's a meaningful one.
R.H.D. in Webster, NY, asks: You noted that Florida politicians haven't succeeded when it comes to running for president. Note, I'm not including TFG here, only those who have held or are currently holding an office from Florida.
I was wondering if part of the reason has to do with the volatile hurricane season every year. Perhaps that alone would prevent them from running successfully for president, due to all the attention needed to address the natural disasters and hamper their campaigning.
(V) & (Z) answer: We don't think the hurricanes are a problem. First, that season lasts for a relatively short time. Second, successfully "handling" a hurricane can certainly be better PR than spending a week visiting state fairs and eating fried Twinkies. Third, there are no examples of someone who was running a viable campaign, right up until a hurricane hit. It's not like hurricanes derailed Jeb!, for example.
We think the obvious explanation is the likely one. There have only been 45 presidents, and with such a small sample size, there are going to be anomalies, such as Vermont (Chester A. Arthur and Calvin Coolidge) having birthed more presidents than California (Richard Nixon). On top of that, Florida only became a Top 10 state in population in the 1970s, and only broke into the Top 5 in the 1990s. There just haven't been that many opportunities for their now-large population size to matter.
J.H. in Boston, MA, asks: Every time I read a piece on E-V.com about how Ron DeSantis is sinking in the polls, how bad he is at various aspects of campaigning, etc., I have to wonder how he managed to win the governorship of Florida. Florida is a big state with multiple big media markets. It's a state that Republicans used to win by a point or two. How did DeSantis win so big there?
(V) & (Z) answer: It's a good question, and we are not dialed in to Florida politics enough to be certain as to the answer. That said, even in the days after the gubernatorial election, we cautioned against reading too much into his easy victory, and in particular against assuming that would translate to the presidential race.
What are the reasons we were skeptical?
- Presidential races get way more media attention than gubernatorial races, and DeSantis isn't a media guy, and had no experience with anything like the presidential microscope.
- DeSantis is great at raising money when he only has to appeal to a few rich people, which you can do in a state with no campaign limits, and not so good when he has to appeal to a lot of not-rich people, which is a problem when you're dealing with the rather stringent federal campaign limits.
- Charlie Crist was clearly a very poor candidate who ran a weak campaign.
- By the time of the 2022 election, the negative effects of DeSantis' policies hadn't been strongly felt. Now, they have been.
We also didn't know it back in November of last year, but DeSantis' going all-in on the anti-woke stuff, in hopes of currying favor with far-right voters, has clearly done him more harm than good.
Anyhow, that's our assessment. If readers who have additional insights care to share them, we're happy to have them.
M.A. in Knoxville, TN, asks: Since Senate Majority Leader Mitch McConnell's (R-KY) health is clearly declining, the end of the time when a turtle leads the Senate GOP is fairly close at hand. Right now, Sen. Rick Scott (R-FL) is in the doghouse for his unsuccessful attempt to overthrow McConnell, something that annoyed quite a few members of his caucus. When the day comes that McConnell is no longer running things, what will happen with Scott? Will he still be shunned and be given lousy committee assignments, or will his past sins be forgiven?
(V) & (Z) answer: Scott will not be forgiven. First, even when McConnell leaves, he'll still have many friends and allies in the Senate Republican Conference. Second, Scott is a self-aggrandizing a**hole who is willing to do anything to help his own prospects, even if it harms his colleagues. Even if Scott hadn't pissed McConnell off, he'd be shunned, in the same way and for the same reasons as Sen. Ted Cruz (R-TX).
J.R. in Lyon, France, asks: We like to say that different groups in the U.S. are not monolithic, but often we see them gravitating toward one party or another. Black people largely vote Democratic, evangelicals are a Republican constituency, et cetera. There has been much talk about whether Latinos are more likely to vote Democratic (minority, immigrant identity) or Republican (family values, machismo), and we see that certain subsets of the Latino vote do go more strongly to one side of the aisle or the other.
But my question is actually about Indians. I had assumed that Indian Americans (not Native Americans, but rather those whose families originated in India) would be more likely to vote Democratic, as I typically assume for all minority voters. But the most prominent Indian Americans in politics in recent memory (Nikki Haley, Vivek Ramaswamy, even Bobby Jindal) all have an (R) after their name. Do Indian Americans more typically vote Republican? If so, why do we think that is?
(V) & (Z) answer: People of Indian descent break about 3-to-1 for the Democrats, a trend that held in the most recent presidential election. As a general rule, Indian Americans tend to like Democrats on kitchen table and social justice issues, while harboring a suspicion that some Republicans are racists. Who knows where THAT comes from. It's also worth noting that Indian Americans tend to be more educated than the general populace, and so are attracted to the Democrats for the same reasons that other educated people are.
As to your list of notable Indian Americans in politics, might there be a little confirmation bias going on there? Among the prominent Indian American Democrats are Reps. Pramila Jayapal (WA), Ro Khanna (CA) and Raja Krishnamoorthi (IL), not to mention... Kamala Harris.
J.K. in Bergen, Norway, asks: Why is it possible to remove cases from state to federal court? I'm assuming that the court will apply the laws of the respective state in any case, so it seems natural that the state courts should handle the job.
(V) & (Z) answer: Because the founders suspected, with good reason, that some defendants would not be able to get a fair trial in state courts. Imagine a Black person accused of a crime in Alabama in 1955, and you get the general idea.
There are also circumstances where federal jurisdiction trumps state jurisdiction, such as when a federal employee was acting as part of their official responsibilities, or when a case involves citizens of multiple states.
R.P. in Northfield, IL, asks: Your item on the lawsuits against Rudy Giuliani got me to thinking. What happens if a person loses a lawsuit and has to pay millions of dollars, but he just doesn't have it? Are the plaintiff, and their lawyers, just out of luck? They get nothing, or pennies on the dollar? Might a high-profile person like Rudy have an umbrella policy that insures him against lawsuits, so the insurance companies pay up?
(V) & (Z) answer: If someone gets a judgment against Giuliani, they can go after any assets he might accrue for the next 10 years. That includes bank accounts, real estate, personal property, etc. It is also possible to get the judgment renewed for another 10 years. Since America's Former Mayor is 79, and does not appear to be the picture of health, he is not likely to be able to accrue any wealth for the rest of his life.
And it is certainly possible to have an insurance policy against some kinds of inadvertent missteps, whether it's driving your car into a telephone pole or legal malpractice. But you can't get an insurance policy that says "If I get sued or prosecuted for knowing, wrongful conduct, the insurance company will pay the judgment." So, Giuliani's on his own when it comes to satisfying the judgments against him.
J.C. in Ulaanbaatar, Mongolia, asks: Would another Quaker President be exempt from the Fourteenth Amendment, if she engaged in insurrection? We've had a couple presidents, one after the Civil War, who did not swear to defend the Constitution, but merely affirmed. Granted, if they broke their word and attacked the Constitution and participated in an insurrection, they would be flying in the face of the entire raison d'etre of refusing to swear. But it seems a plain reading (no pun intended) of the Fourteenth says that they could not be barred from holding office again. Am I all wet?
(V) & (Z) answer: The text of Article II says this:Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
The difference between "swear" or "affirm" may matter to the Quakers, but legally, an oath and an affirmation are synonymous. This is not an end-around that allows Quaker presidents to participate in insurrections any more than Quakers are free to lie on the stand in a court trial.
K.L. in Sterling, VA, asks: Given Donald Trump's current legal predicaments, could Trump be sworn in while in prison on Jan 20, 2025? If Trump elects not to take the oath on that day (for the good of the country—Ha, Ha!) would Trump's vice-presidential running mate be sworn in?
(V) & (Z) answer: There's no limit on where presidents can be sworn in; one of them was sworn in on a plane, another was sworn in at a friend's house, and two others were sworn in at their own house. And the vice president is actually sworn in before the president, so if Trump refused to take the oath, then the VP would automatically assume the powers of the office.
R.C. in Des Moines, IA, asks: In response to a question from M.W. in St. Paul, you wrote: "In Trump's case, however, he would likely be required to sign a document conceding that he had incited insurrection against the United States government, and that he accepts that he is barred from future officeholding by the terms of the Fourteenth Amendment. If he then tried to backtrack, and run for office again, he would have to go to court and convince a judge to throw that document out, which would not be an easy legal hurdle to overcome."
I can imagine if Trump were signing such a document, his mood would be foul and he might not feel like signing his name with his typical flurry and might just scribble some lines that vaguely resemble the letters in his name. And I can also imagine in a Trump attempt to backtrack he would try to claim that he never actually signed such a document and claim as proof that the signature on the document does not match his well-known and totally awesome signature.
Is there any requirement when criminals errr alleged criminals are signing such plea deals for them to sign the document with their actual signature and if they do not can the courts force them to sign with their well-established signature?
(V) & (Z) answer: First, when you sign a legal document of that import, it's formally witnessed. Second, when you reach a plea deal, it's read in open court, and the defendant has to affirm that they understand and agree.
In short, there is no way Trump could claim that such a document was faked, and that wasn't his signature.
F.C. in Sequim, WA, asks: Do you guys know that George Washington had two desks? Per Donald Trump:I tell the story that George Washington actually when he was President had two desks. One for his business—he was actually a very wealthy man—one for his business and one for running the country. I could have had that. If you look at Biden, he certainly does business and politics at the same time. But I felt I wanted to be a legitimate President. I didn't have to be, from the standpoint of even using the word "legitimate." I think it's important that you—if you're running the country, you're not doing business.
(V) & (Z) answer: Another case of Donald Trump not knowing enough to know that he's demonstrating what he doesn't know. Yes, Washington kept an eye on his business interests, to the extent that he read regular reports from his nephew. He most certainly didn't run his businesses while president, and he definitely didn't have two desks. First, what would the point of that be? Second, in that era, it was very hard to keep spaces warm. So, any room used as a workspace tended to be very small, so it could be fully heated by a stove/fireplace. There's no way that Washington's presidential office could hold two desks.
D.C. in Brentwood, CA, asks: I have a counterfactual question, where I know the premise couldn't have happened, but I'm really wondering "what if." Let's proceed with two alternative scenarios: (1) George Washington was relatively healthy well into the 1860s, or (2) He lived merely to 100 or so, and the issue of slavery came to a head a few decades earlier.
He was a slave owner, from Virginia, who made a fortune from working those enslaved people on his lands. I've read that he didn't like the slave trade, but that could be more about regulatory capture (i.e., cutting off his competition), than the cruelty of the trade. I've also read that he freed all his slaves in his will, but that means he was only willing for them to be free when it was no longer a problem for him.
So, which side of the Civil War would he have been on?
(V) & (Z) answer: There are two things to note here, we think. First, the United States was George Washington's life's work. He would not have been eager to see it torn asunder. Second, he was a late convert to the rebel cause in the 1770s, and only after he felt all other avenues for redress had been exhausted. The Confederacy, by contrast, left proactively. They assumed the writing was on the wall (and were probably right about that), but they had not yet exhausted all possible options, since they didn't wait around long enough to do so.
And so, there is no question to us that Washington would have stood with the Union, for both of these reasons.
F.S. in Cologne, Germany, asks: Reader D.F. in Portland wrote: "[In 1860, p]eople on both sides knew that they could vote for Stephen A. Douglas and keep the peace." Does (Z) agree? How would president Douglas have reacted to the situation in Kansas? And when do you think that the Civil War became inevitable? After Dred Scott, after the raid on Harpers Ferry, after the presidential election of 1860 or some other event?
(V) & (Z) answer: It is true that voting for Douglas would have forestalled war for some additional period of time. That said, Americans had just elected two presidents in a row like Douglas; doughfaces who were somewhat pro-South and somewhat pro-North, and the result was that the nation's problems got worse and worse. It's understandable that neither Southerners nor Northerners wanted another Franklin Pierce/James Buchanan-type.
The situation in Kansas unfolded primarily in 1856 and 1857, and so would not have been on President Douglas' watch, per se. However, Senator Douglas tried to walk a middle path between the factions, which was impossible because there was no middle path. There's no reason to believe Douglas would have been anything more than an appeaser as president, and an appeaser was certainly not going to be able to calm sectional tensions. Probably not a strong leader, either, but definitely not an appeaser.
And the Civil War probably became inevitable with Dred Scott. At that point, every solution to the slavery problem had been tried, and had failed. The government ignored it until 1820. Then Congress tried to make the decision as to where slavery would and would not be, with the Missouri Compromise. Around the same time, there were private efforts to purchase the enslaved people from their owners, and send them back to Africa. This effort, colonization, was a bust. Eventually, when the Missouri Compromise failed in 1850, the question of slavery's future was left to individual states, and to the will of the people. Popular Sovereignty—i.e., the signature issue of Stephen Douglas—worked about as well as "let the states decide abortion policy for themselves" is working out. And with Dred Scott, Popular Sovereignty was dead. At that point, what solution remained to be tried? (Z) can't see one, and he's been thinking about this issue for 30 years. The people who lived it couldn't see one either.
R.E.M., Brooklyn, NY, asks: Are there any records of the congressional debate over what became section 3 of the Fourteenth Amendment, like Madison's records of the debates over the Constitution, or any other contemporaneous writings regarding its drafting and meaning, whether formal, like The Federalist Papers or informally, by any of the Amendment's framers?
(V) & (Z) answer: There's some of that, but when it comes to understanding intent, the source that is usually used is the other 70 or so proposals that were put forward for the Amendment's text. That gives us a pretty good view of what the collective was thinking. We'll have more on this on Tuesday, in the next entry in the (three-part) Fourteenth Amendment series.
S.K. in Sunnyvale, CA, asks: (Z) wrote: "To begin note that, bar none, there is no period of American history that is more difficult to teach than the Reconstruction Era (1865-77)."
While I do not wish to accuse (Z) of being intellectually dishonest, I wondered when I read this, is this a broadly agreed-upon assertion? Or do respective experts on the Colonial Era, the Revolutionary Era, the Jacksonian Era, and the Roaring Twenties commonly assert, either out of ego or familiarity bias, that their own era of expertise is the most challenging?
(V) & (Z) answer: First, (Z)'s expertise in the Civil War era goes far, far beyond his expertise in the Reconstruction Era. If you had the dynamic right, then the claim would have been that the Civil War is the most impossible thing to teach.
Further, (Z) has taught many survey and specialty courses. He's talked to many colleagues who have taught survey and specialty courses. And it is universal, or nearly so, that the Reconstruction is damn near impossible, especially given that it's treated as a footnote to the Civil War era, or a mere prelude to the Gilded Age. Eric Foner, who is the leading U.S. historian in the country, who has taught widely, who wrote the foremost survey textbook on the market right now, and who wrote the definitive work on Reconstruction noted in the intro to the latter work that Reconstruction is nearly impossible to grasp, which is why he needed nearly 900 pages to cover a little more than a decade.
D.B. in Mountain View, CA, asks: You wrote that teaching the Roaring Twenties is no walk in the park. When I was in high school, they told us there was jazz and prohibition, and it was a big party until the stock market crashed and then there was the Depression. It took ten minutes, tops. Did they leave something out?
(V) & (Z) answer: That is a remarkably precise summary of the 10 minutes (Z) spends on the twenties before launching into the 2 hours (or so) on the Great Depression and New Deal.
J.D.Z. in St. Paul, MN, asks: In the item about the Fourteenth Amendment, you wrote, "The Colonial Era, the Revolutionary Era, the Jacksonian Era and the Roaring Twenties are no walk in the park." Why? What makes those eras so much more difficult to teach about then, say, the Depression Era, or the Cold War Era?
You also wrote "things changed quickly on the ground, such that something that was definitely true in 1866 might be completely untrue by 1870." This is fascinating. Can you provide an example or two?
(V) & (Z) answer: Each era's a little different, but here a few of the things that make them tough. First, excepting the Revolutionary Era, there's no central event to build the lecture(s) around. There's a little bit of this and a little bit of that, and while things like the Harlem Renaissance and the Palmer Raids are both important, it's hard to connect them (and flappers, and jazz, and prohibition, and the Model T, and famers' troubles) together in a cohesive way. It's easier when there's a tentpole in the form of the stock market crash/election of F.D. Roosevelt or the Cuban Missile Crisis.
Second, the predominant issues of those eras are a little tough to translate to modern students in a way that makes sense to them. It's not so easy to, say, explain why people cared so much about a central bank, or so much about outlawing liquor. It's pretty easy to understand "I'm hungry and can't find a job" or "I'm scared I might get killed by a nuke tomorrow."
Third, and most importantly, is that it's hard to make the cost-benefit analysis work out in terms of time investment. In a college survey course, you have a week or two to devote to each major epoch, at most. It is plausible to do a decent job on World War I in a week (2 lectures), and that war is important enough to justify using 10% or 7.5% of the total course time. On the other hand, it would take 2-3 weeks to do justice to the Roaring Twenties. Hard to justify spending 15-30% of total course time, especially since that means cutting some other, probably more significant, material.
As to things that changed dramatically in 4 years, the Radical Republicans had enormous power in 1866 and virtually none by 1870. There was wide interest in trying to help the freedmen in 1866, which had almost completely faded by 1870. The KKK was at its height in 1866, and on the precipice of destruction by 1870.
E.K. in Brignoles, France, asks: You mentioned "The Tragedy of Richard Nixon," without making a direct reference to Tim Weiner's book. I'm considering buying it.
Is this, in your opinion, the best one written about Nixon's psychological issues and, if not, what book would you recommend in order to understand the 37th president's complicated mind?
(V) & (Z) answer: We weren't actually referencing Weiner's book, we were referring to our account of the Watergate scandal.
In any case, if you want to understand the mind of Tricky Dick, it's between that book and Being Nixon: A Man Divided, both of which came out in 2015. We suggest taking a look at both, and picking the one that sounds most interesting. Either way, they're going to tell you he was brilliant and driven, but also paranoid, lacking in self-esteem and socially stunted.
P.F. in Fairbanks, AK, asks: Given what we know about the efforts to overturn the 2020 presidential election, I'm wondering where you would place 2020 on a list of "most corrupted" elections. Given that the 2020 efforts were unsuccessful, could it be argued that, at the very least, 1876 was "more corrupted?"
(V) & (Z) answer: There is little question that 1876 was the most corrupt presidential election in U.S. history, and it's not particularly close. The silver medal winner is 2000, and the bronze is 1960.
On the other hand, 2020 doesn't even make the top 20. Thanks to Republican talking points, elections officials across the country were dotting every "i" and crossing every "t." Meanwhile, we have much better tools today than they had 50, 100, 150 years ago. The allegations the election was corrupt don't mean anything. In fact, it was one of the cleanest ever conducted.
And while there were attempts to corrupt the certification process on 1/6, those efforts weren't successful, and didn't come particularly close to being successful.
S.B. in West Palm Beach, FL, asks: Do (V) & (Z) agree on everything politically and, well, analytically? If not, how do you work out your differences when you write your pieces?
(V) & (Z) answer: It is rare that areas of disagreement come up, and when they do, they are largely matters of degree. For example, one of us is a bit more confident that Donald Trump will be convicted of crimes than the other one is. One of us thinks Ted Cruz is in a bit more danger in 2024 than the other one does. And so forth. When these things come up, usually the one who is not the writer of an item will adjust the verbiage, while editing, to be a little less committal. So, "Trump is all-but-certain to be convicted of a crime" might become "There is a significant chance that Trump will be convicted of a crime."
Also, one of us thinks Berkeley is the best of the UCs, while the other knows it's actually UCLA.
B.H. in Sherman Oaks, CA, asks: I was alarmed at your response to K.F. in Framingham, who posted an image of the bumper sticker for your 2024 presidential campaign. You wrote: "You know how Ron DeSantis's PAC accidentally leaked his debate notes prematurely? Let's just say that Canadian intelligence services is capable of the same mistake, eh."
Since Ron DeSantis' PAC is allied with DeSantis for the purpose of electing him president, you seem to be implying that Canadian intelligence is correspondingly allied with you in your no-longer-stealth political campaign. This would also imply that all of the anti-Canadian propaganda fomented on E-V.com over the years was nothing more than a smokescreen. The horrible truth is that you've been double-agents all along, secretly in league with the 'Nades.
Time to fess up, guys.
(V) & (Z) answer: Please pay no attention to any evidence that seems to suggest the mighty Canadian government has infiltrated beloved American institutions, eh.
Here is the question we put before readers last week:
B.S. in Huntington Beach, CA, asks: I have been watching and listening to Ron DeSantis's campaign ineptitude for virtually the entirety of this campaign season, and I am at a loss as to how completely incompetent his candidacy seems to be. He is a Harvard graduate, so one assumes some modicum of intelligence. Further, he should be able to attract some of the brightest and best advisors the Republican Party has to offer, and given his political background, he should be a seasoned pol. Yet on an almost daily basis, he or his surrogates commit freshman-level errors related to his campaign. It has been one step forward and two steps backward for his the whole campaign season.
Considering only non-crackpot candidates, has there ever been, in your opinion, a campaign for major political party nomination which started off with such promise and has been subsequently as mismanaged and incompetently executed as that which we are seeing in support of Governor DeSantis? If so, which?
And here some of the answers we got in response:
M.V. in San Francisco, CA: Howard Dean, 2004. While not quite incompetent like Ron DeSantis because he fell quite quickly, he started off very promising—but after coming in third in Iowa and disappointing his supporters, he went on a rally, and while he was energetic, he gave a high-pitched scream that instead of showing optimism, was perceived as weakness. His campaign never quite recovered from that.
I think it was unfair to Dean—anyone can make a "speech" "mistake" once in a while, but at the end of the day he seemed like a very good candidate, one who correctly opposed the Iraq War from the start. Whether it was that scream that did him in, as some pundits think, or whether he made other mistakes—be it being unable to overcome that public perception of weakness, or getting discouraged by polls and not trying hard enough—he could have defeated George W. Bush because by that point the war seemed like a fiasco. An "I told you so" could have worked wonders in a debate, and convinced voters to put him in the White House.
E.L. in Bellingham, WA: John Edwards 2008 and Beto 2020 come to mind. Both seemed very promising candidates (Edwards being the VP nominee in 2004, and Beto nearly unseating Ted Cruz in the prior election). Then both shot themselves in the foot. Edwards couldn't have possibly thought the affair behind the back of his cancer-stricken wife wouldn't be found out and wouldn't immediately destroy him. Beto had a series of missteps and once he got desperate he famously said "Hell yes, we're going to take your AR-15, your AK-47." I don't disagree with Beto's stance, but it ensured he will never win a general election in Texas, or probably the country.
A.L. in New Brunswick, NJ: Any campaign that is loaded with cash and expected to be out front but finds itself way behind does crazy things and draws critical press. Consider John McCain suspending his campaign to "parachute in and solve the financial crisis" and the Sarah Palin train wreck. If you have not seen Tina Fey's word-for-word recital of Palin's speech, it's gold.
D.C. in Portland, OR: It's 2016. In the thin air of 30,000 ft, an unseen improbability bubble bursts into non-existence, and out pops a large, over-confident hot air balloon, emblazoned on one side by a curious logo: Jeb!
Multiple reports describe it as "awkward" and floating about aimlessly for a short while, before commencing its journey in entirely the wrong direction: down. Rapidly.
A cloud of doom forms around the unremarkable balloon as it descends. Onlookers question how such an ill-fitting creation got there in the first place.
Suddenly, an implosion, and the balloon enters free fall, crashing in a terrific puff of insignificance shortly after, obliterating itself into smithereens, leaving no trace but some cheap, plastic, campaign novelties, some of which are oddly now missing the "!".
Fortunately the black box was recovered and the cause of the implosion identified. At that specific point, the recordings reveal the critical impact of just two words...
W.S. in Austin, TX: Kamala Harris. Initially perceived as checking all the right boxes for Democrats (despite her near-total lack of legislative achievement or foreign policy expertise)... yet her campaign didn't even make it to the election year in which she was purportedly running.
S.H. in Hanoi, Vietnam: There have been lots of poorly-managed, high-profile campaigns, arguably at least one for the past several cycles. In 2020, Kamala Harris's campaign was riven with infighting and was generally regarded as out of control by its end; in 2016—assuming we do not include the Trump campaign, which we'll return to shortly—the Jeb! campaign was considered all exclamation points and no substance, and consequently he was among the first to go up in a puff of smoke as Trump vanquished every other claimant to the Republican nomination; 2012 had Republicans who lost but no clear train wreck; 2008 gave us John Edwards and Rudy Giuliani on their respective sides of the aisle; and so on. You can easily track down news stories of candidates who eventually flamed out and were deemed by the commentariat to be fumbling amateurs on the big stage.
But therein lies the rub, for stories about the inept campaigns of also-rans are the fodder of political reporters, and always have the benefit of hindsight. It's pretty easy to make fun of Jeb's exclamation point after the fact because he lost. Had Trump not run and he ended up winning the nomination and the presidency, which isn't an insane supposition, it's fairly easy to imagine commentary on the brilliance of the Bush campaign, which indeed was the case when his younger brother won in 2000, and stories about Karl Rove's evil genius were commonplace. Indeed, without question the most unprofessional, Clown Car campaign was Donald Trump's 2016 run, only he did the unthinkable and managed to win. So was his campaign brilliant, or a joke?
I write all of this because I'd push back against the premise that Ron DeSantis's campaign is being poorly executed. I'd argue the opposite and suggest he ran the best of all possible campaigns given who he is. From all accounts, the Governor is ambitious, calculating, and uncomfortable with other people. Thus a retail campaign was never going to suit him, nor was adopting a Sen. Tim Scott (R-SC)-like optimistic style. He predicted—correctly, in my opinion—that playing to the cultural grievances of voters who considered themselves part of an embattled white minority was the winning play. In effect, he planned to take every possible element of Trumpism and paste a patina of Viktor Orbán-like competence over it. And that's been his campaign in a nutshell ever since.
I think it would have worked, were it not for the simple fact that Trump decided he wasn't finished. However, by late 2022 (when Trump announced), DeSantis was already laden with such expectation from the conservative media that he made the gamble that he'd be seen as Trump v2.0 and capture the base. That turned out to be a mistake, and he's been constantly trying to triangulate since then, largely to no effect. But given who he is and the current mood of the Republican party, if Trump hadn't run, I'm not convinced he wouldn't be the front-runner today in much the same way that Trump himself was in 2016.
And lastly, it's also worth noting that the campaign isn't over, and DeSantis isn't yet finished. There have certainly been other campaigns that had early stumbles and were seen as almost embarrassing by political reporters until suddenly a politician catapulted into front-runner position, and was then hailed for possessing excellent tactics. The two most recent entrants of these would be Biden's 2020 and McCain's 2008 runs. Given that we are months away from the first primary vote, I would not count him completely out. It is hard to know if that is more terrifying than the possibility of a second Trump presidency.
E.L. in Boston, MA: In 1912, William Howard Taft was the sitting president, at least when the chair didn't break, and managed to finish in third place.
D.M. in Burnsville, MN: The 1968 Presidential Campaign of Pat Paulsen was undoubtedly the most poorly planned and executed in history. Mr. Paulsen repeatedly declared his non-candidacy and yet his ratings continued to climb and his ability to hire competent staff continued to dwindle. While all this occurred before the day of Super PACs, he was able to finance his miserable campaign entirely by unsolicited donations earned through his regular appearances on The Smothers Brothers Comedy Hour. Being a non-candidate, he wasn't invited to any formally organized debates and thus his TV exposure as a non-candidate gave him little presence in the mind of the common voter.
I had a beer with Pat Paulsen in a student's tavern in a college town soon after his non-experience and he said that he always felt that he should have actually hired staff instead of keeping the paltry donations to himself. Frankly, I have never seen a better non-candidate for President, and I doubt that I ever will. His campaign varied over the months from negligent to non-existent.
Here is the question for next week:
(V) & (Z) ask: "Moo words" are those that have been distorted by one political party or the other (or both) to the point that they no longer have much meaning. What's the best example of a "moo word" in modern American politics?
Submit your answers here!