We don't like to be this late. But big teaching day, big news day, and some late developments conspired against us. Hope it is worth the wait!

Title 42 Gets Deep-Sixed... Or Not

In theory, the Trump-era Title 42 border policy was supposed to end last night. Title 42 (somewhat dubiously) used the pandemic as pretext for ejecting would-be asylum seekers from the U.S. with little or nothing in the way of a hearing. Joe Biden condemned the policy while a candidate for president, but kept it in place for quite a while once he actually became president. Still, after a bunch of preparation, the administration readied to drop Title 42, which would have meant a return to the much more liberal Title 8. Thousands, and perhaps tens of thousands, of asylum-seekers gathered at the border last night, hoping to seize the opportunity they hoped would be available. But then... federal judge T. Kent Wetherell, in response to a lawsuit filed by Florida AG Ashley Moody (R), effectively stayed the change in policy. So, the Trump-era status quo holds, at least for now.

There's no way to know what comes next. Wetherell's order came down at 9:30 p.m. ET, so while the White House undoubtedly huddled for some late-night strategy sessions, it has yet to share anything with the outside world. It's possible that the administration has already appealed to a higher court, but if so, that fact is not known, and certainly no order has been issued. Presumably there will be some news today.

One hopes the administration uses whatever extra time they have in order to, well, do better. The demand for entry into the U.S. has surged, and it's a huge mess of a situation that no president really wants to deal with. But Biden has to, and while his ideas may be OK, he and his team have not done a great job of making the legal case for them, which is why he's been stayed by the same judge twice now.

The President and his team have also not done a great job when it comes to implementation; part of his plan involves an app, because that is apparently the first solution everyone has these days when it comes to doing... anything. Why (Z) must use an app to pay for car charging with some networks, as opposed to just using a credit card, he does not know. And how the Santa Monica Blue Bus can insist on an app for payment, when buses are supposed to be a poor person's option, he really does not know. Anyhow, the asylum app that the White House put together is apparently godawful, according to those who are trying to use it. Of course, that may be a feature and not a bug; maybe making it hard to use is meant to discourage people from using it. Wouldn't be the first time something like that happened.

We will certainly be keeping an eye on this story, as it develops. The worse things go at the border, the happier Republicans are, since border policy is one of the few weapons they have that seems to actually work against the President. In contrast to, well, keep reading... (Z)

FBI to Comer: F*** Off

House Republicans want to "get" Joe Biden. We had an item about that yesterday, and we also had one a little over a week ago. In the latter piece, we quoted a letter that Rep. James Comer (R-KY), Chair of the House Committee on Oversight and Accountability, and Sen. Chuck Grassley (R-IA), Ranking Member of the Senate Budget Committee, sent to FBI Director Christopher Wray and AG Merrick Garland:

We have received legally protected and highly credible unclassified whistleblower disclosures. Based on those disclosures, it has come to our attention that the Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) possess an unclassified FD-1023 form that describes an alleged criminal scheme involving then-Vice President Biden and a foreign national relating to the exchange of money for policy decisions. It has been alleged that the document includes a precise description of how the alleged criminal scheme was employed as well as its purpose.

We were extremely skeptical of this claim, to say the least. You can click on the link and read the item if you want a reminder as to our numerous reasons why.

Yesterday, the FBI finally got back to Comer and told him that there would be no documents forthcoming. The Bureau's letter was very polite, but the basic message was the same one as in our headline above. Or, to be a little more precise, the Bureau's point person (lawyer Christopher Dunham, the FBI acting assistant director for congressional affairs) said that he would be happy to meet with Congress to discuss any questions, but that the Bureau basically doesn't trust Comer & Co. to handle sensitive materials. Which is fair enough; you give a classified document to Comer on Thursday, and by Friday it's probably in a desk at Mar-a-Lago.

As with the "news" we wrote about yesterday, the Republican members of Congress have offered no specifics to support their claims against the President. And since signing his name to that letter, Grassley has given a number of interviews in which he was in CYA mode, and said that he and his colleagues aren't really certain how credible the whistleblower report, the one that triggered the letter, actually is.

Meanwhile, Comer's handling of the situation reveals what his real agenda is. If his goal was to root out real or potential malfeasance—a worthy goal!—he would make the FBI his partner. Instead, as soon as he had this whistleblower claim, Comer leapt right to the press release/public letter/Fox interview stage of the process before politely requesting assistance from the FBI. And although Comer has been offered a meeting, he has already declined, and says he's going to go to court to enforce his subpoena. These are the actions of someone who is after headlines, not truth. And it leaves us with the exact same conclusion we reached yesterday: Once you've actually got something, Mr. Comer, then please do share it. Until then, shut the hell up. (Z)

CNN Town Hall: The Day After

By hosting Donald Trump for a town hall, CNN wasn't trying to just report the news, they wanted to make the news. It's an open question whether a serious journalistic organization should have that as a goal, but CNN certainly did, and they succeeded. There was an absolute mountain of coverage yesterday; we're just going to run down the 10 storylines we thought were most interesting:

1. Thumbs Down: We imagined that, once folks had a full evening to ruminate and then a morning in which to write, the savage reviews would be voluminous. We were right. We don't want to inundate you with more nasty quotes, or with nasty headlines, so how about some keywords? "Toe-curlingly bad," "cable carnage," "absolute disaster," "a Trump rally," "a fiasco," "stupid, stupid," "a disservice to democracy," and "propaganda." Note that is eight different commenters, not one commenter with a gift for expressive language.
   
   
2. Good, Not Great Ratings: The Town Hall drew about 3.3 million viewers. That's not bad, but it's not particularly good, either. Especially if you're going to sell your soul and your reputation to make it happen. To put that figure in context, it's about triple what CNN would normally draw at that time, and it's about equal to an average Tucker Carlson broadcast before he was, you know, broomed. Trump is bragging about the ratings, and he claimed yesterday that "many minds were changed." Naturally, he would have bragged about the ratings, whatever they were. As to the minds being changed... yeah, right.
   
   
3. Winning!: Even if the ratings were only OK, there's little question that Trump won the night and CNN lost it. Trump's campaign staff is thrilled about his performance. Meanwhile, countless CNN employees are griping about the event, and the harm it did to the network's reputation.
   
   
4. A House Divided...: During the town hall, the former president encouraged House Republicans to let the U.S. default on its national debt. This suggestion has split even the Freedom Caucus, with some members saying they are ready to commit right now to going over the cliff, while others say that it's not quite time for that kind of talk yet. If we were working in the Biden White House, we would probably take note of the fact that even many of the Freedom Caucusers start to get skittish when the threat of a default gets real.
   
   
5. ...and a Senate, Too: Some Republican members of the Senate (e.g., Josh Hawley, MO) had very flattering things to say about the town hall (of course, the Hawleys and Cruzes and Lees of the world fawn over everything Trump does). Others were not impressed, and took this opportunity to make it clear that they won't be supporting Trump in 2024. That would include Sens. Todd Young (IN), Thom Tillis (NC) and John Cornyn (TX). We shall see if they stick with that if the presidential race ends up as Trump vs. Joe Biden. We don't see these men voting for a Democrat, though they could vote third-party, we suppose.
   
   
6. How to Do Better, Part I: There are a lot of suggestions about how this event could have been handled better, and we saw two of them that we particularly like. The first of those: Don't air the events live and unedited. Or, more accurately, the suggestion is that CNN could have made a livefeed available on their website (for those who really want the unfiltered experience), but that they should have edited the interview for broadcast. If this was the plan, the livefeed would cover CNN against charges of bias/selective editing, but the broadcast version would have put pressure on Trump (or any other candidate) to fly straight. Because they would know that if they lied, went off on tangents, bloviated, etc., that part would end up on the cutting room floor, and would be seen by only the much smaller livestream audience.
   
   
7. How to Do Better, Part II: The other suggestion we liked: Kill the audience. OK, not literally. This isn't the Hunger Games. But what, exactly, does the audience bring to the table? Not much, as far as we can tell, and we've watched hundreds of these things. On the other hand, they are often a distraction, and they can help a candidate take over the room, as happened here.
   
   
8. Digging the Hole Deeper, Part I: Trump loves attention so much, and he so very badly needs to sell the world on his victimhood and his total innocence in all matters, that he regularly says stuff at these things that amounts to shooting himself in the foot. He said several things last night that add to the case that he knowingly and deliberately took classified documents with him when he left the White House. For example: "I took the documents; I'm allowed to." It doesn't get much clearer than that. Undoubtedly, special counsel Jack Smith was taking notes.
   
   
9. Digging the Hole Deeper, Part II: Trump also shared his thoughts on the situation in Georgia, and said things like: "I didn't ask [Secretary of State Brad Raffensperger] to find anything... I said you owed me votes because the election was rigged. That election was rigged. If this call was bad, why didn't him and his lawyers hang up?" What the former president did there, fairly tidily, even if he doesn't know it, is articulate a motive for his behavior. The Atlanta Journal-Constitution talked to several legal experts, and they all agreed that Trump's words are headed straight for Fulton County DA Fani Willis' evidence pile. For example, Michael Kreis, a Georgia State University constitutional law professor" "Subjects of criminal investigation aren't usually reckless enough to go on national television and admit their corrupt intent, but Donald Trump just handed Fani Willis a new piece of evidence and tied a bow on it."
   
   
10. Digging the Hole Deeper, Part III: The Town Hall came roughly 30 hours after Trump was found liable for defaming E. Jean Carroll. And so what did he do with that new information? He spent much of his time on CNN saying things about E. Jean Carroll that are (or at least, may be) defamatory, like calling her a "whack job." More on this below.

In short, while the town hall might be over, the consequences are just beginning. (Z)

Trump and E. Jean Carroll Are Not Finished with Each Other

Speaking of "just beginning," there may be a verdict in the E. Jean Carroll case, but that doesn't mean that she and Donald Trump are done battling in court. Far from it, in fact.

First of all, it's easy to forget, but Carroll and Trump already had a second case wending its way through the judicial system. It's also about defamation, but while the defamatory remarks he got popped for on Tuesday were made while he was a private citizen, these defamatory remarks were made while he was president. And so, the question being worked out is whether or not Trump can be held liable for things said from the bully pulpit. On one hand, defamation is defamation. On the other hand, public officials are given pretty wide latitude in matters of public speech, in deference to the First Amendment. It could go either way, but if the presidency is not a "Get Out of Jail Free" card here, then Trump will probably end up having to add a few million more to that check he will be writing to Carroll.

In addition, Carroll is now pondering a third defamation case against Trump, thanks to the things he said—you guessed it—at the town hall. In addition to slamming Carroll as a "whack job" (see above), the former president also asserted that her story was "made-up" and "fake." Carroll told reporters that the comments were tough to read, and that "I am upset on the behalf of young men in America. They cannot listen to this balderdash and this old-timey view of women, which is a cave-man view." She and her lawyer Roberta Kaplan say they will decide, one way or the other, within a few days.

And finally, as expected, Trump announced yesterday that he's appealing the $5 million verdict handed down this week. We stand by our view here that an appeal is really, really dumb. He's got no leg to stand on here, as indicated by the fact that it only took the jury 2½ hours to find in favor of the plaintiff (and that is only because they spent 1½ hours ordering and eating lunch—really!). All that appealing will do is give this story more oxygen.

And actually, the more attention the case gets, the more likely it will have an additional effect, beyond just (potentially) damaging Trump's image and his political fortunes. As Slate's Ronnell Andersen Jones and Dahlia Lithwick point out, now that one person has won a defamation case against the former president, others he's potentially defamed might be inspired to take their chances as well. Defamation is tough to prove, and for Carroll it came with the added burden of proving a violent act that happened decades ago. And yet, she and her attorney not only pulled it off, but it took the jury a comically short amount of time to find in her favor. Can you imagine what would happen if just 5% of the people Donald Trump has slurred over the past few years decided to roll the dice and sue him?

One other thing Slate pointed out, this time courtesy of Robert Katzberg. One big reason that Trump got crushed here is that he simply couldn't take the stand in his defense. It would be too disastrous to allow him to open his mouth in open court. Well, that's not a problem that's going away, and it's going to haunt him and his lawyers as they plot strategy in future defenses, whether against E. Jean Carroll or against, say, the government of the United States.

Also, since we're on this subject, let's clear up a mystery (or, really, a stupid mistake we made). For some reason we allowed our mental wires to get crossed, and we looked at New York state law while trying to figure out how a federal trial would be conducted. Specifically, we were applying NYS rules for jury verdicts (five-sixths needed for a decision), when of course we should have been looking at federal rules (de facto, unanimity is required). We had several folks write in to clean up our mess; this explanation from reader B.R. in Eatontown, NJ, is very good:

The answer is simple: it was heard in federal court, not state court.

The longer answer: Although the original reason that the first Carroll v. Trump case came to be in federal court is convoluted, by the time these cases came on for trial they were being heard in federal court based on what is commonly known in federal practice as diversity jurisdiction. Diversity jurisdiction is the jurisdiction established by the federal Constitution (Art. III, Sec. 2) and governed by federal statute (28 USC 1332) that allows federal courts to hear cases between citizens of different states (Carroll of New York, Trump of Florida). In diversity cases, at least since the Supreme Court decided Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), whether state or federal law applies to a particular question varies depending on whether the issue is substantive (in essence dealing with the substance of the dispute) or procedural (dealing with the procedures to be used in deciding the litigation). Under the Erie doctrine, where the issue is substantive, then the federal court must apply the laws of the state, both the statutes and the common law. However, where the issue is procedural, then the federal court applies its own procedural rules.

While determining whether an issue is substantive or procedural can sometimes be debatable, the question of how many jurors must vote in favor of a verdict for it to be acceptable is recognized as being procedural. And it is answered by Rule 48 (b) of Federal Rules of Civil Procedure, which reads: "Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members." So that is why the jurors in the Carroll v. Trump case had to be unanimous in their decisions.

The New York statute you cited, CPLR § 4113, is the state analog to Rule 48 (b). (CPLR is the title of the portion of the New York's statutory law that sets out the state's "civil practice law and rules"—hence "CPLR.") That particular provision simply has no application to cases pending in federal court, even those federal courts based in New York.

Thanks to B.R. and all the others who wrote in, for picking us up! Everyone has an off day or two. Of course, some folks of a mathematical bent have even more than that, for... some reason. (Z)

Another Day, Another Poll (or Two)

Earlier this week, we had an item on the WaPo/ABC News poll that everyone's talking about, the one that showed Joe Biden 20 points underwater and had Donald Trump up by 7 points (45% to 38%) in a head to head presidential matchup. The presidency is awarded by electoral votes and not popular votes, of course, but it's nigh-on impossible to win the Electoral College when you lose the popular vote by such a margin.

Since that poll came out, there have been two new national polls that tell a somewhat different tale. The first of those comes from Yahoo/YouGov. According to their numbers, Biden is up on Trump by 2 points among the general electorate, 44% to 42%. That's a swing of 9 points as compared to the WaPo poll. Yahoo/YouGov also have 43% approving of Biden and 48% disapproving. That's just 5 points underwater, and is a 15-point swing from the earlier poll.

And then there is the latest from Morning Consult. They also have Biden up on Trump by 2 points among the general electorate, 44% to 42%. And while this particular poll didn't include approval ratings, the outlet released one later in the week that does have that information, and puts the President at 42% approve, 50% disapprove. That, of course, is 8 points underwater and is a 12-point improvement over the WaPo result.

The upshot here is the same as when we wrote up the earlier poll: You just can't take polls of the presidential race all that seriously at this point. Sure, we write them up, because that's what we do, but it's a marathon that's only at about the 2-mile marker right now. Further, because it's so early, nearly all pollsters (including these three) are sampling voting-age U.S. adults as opposed to registered voters or likely voters. That's probably the best practice at this point, but it's also a practice that is guaranteed to produce some really wonky results from time to time. (Z)

Tuberville Doubles Down

After Sen. Tommy Tuberville (R-AL) made remarks that seemed to suggest he is comfortable having white supremacists in the military, and his office "clarified" that was not his meaning, we wrote that we weren't buying the clarification. Turns out we were right to be skeptical, because the Senator was asked yesterday to "clarify" on his own behalf, and he pretty much doubled down.

Again, we shall allow the Senator to speak for himself; here is the exchange he had with NBC reporter Julie Tsirkin:

TSIRKIN: Do you want to clarify your comments?

TUBERVILLE: The Democrats characterize all MAGA Republicans in the military as white nationalists. Wrong. Okay, we can't get politics in the military. This has nothing to do with extremists and all this, you know, my first day here was January 6, had several senators stand up on the Senate floor saying to me we got too many white nationalists, I mean, what the heck is that? We all got different beliefs. You know I'm a Church of Christ, Catholics, we got different people. And we all have to make one military. We can't start distinguishing different types of people. OK. That's all I say.

The full exchange actually lasted for quite a while; at one point Tuberville also added this: "I look at a white nationalist as a Trump Republican." Undoubtedly, quite a few Democrats could get behind the notion that "Trump Republican" and "white nationalist" are synonyms. But that's not the exact idea the Senator is trying to get across. What he's really trying to say is: (1) there are no white nationalists, and (2) the people who claim there are white nationalists are just using that as a slur to denigrate Trump voters. Both notions are, to be blunt, stupid, and it does not help that Tuberville expresses himself like someone who has a perpetual concussion. Still, he will pay no political price for any of this, of course.

On the other hand, since we're on the subject, there is a politician who may well pay a price for his retrograde views on racism. That would be Tuberville's almost-neighbor, Lt. Gov. Mark Robinson (R-NC), the Black fellow who looks to be the frontrunner for his party's gubernatorial nod next year. As it turns out, Robinson is not much of a fan of the Civil Rights Movement. Or the "so-called Civil Rights Movement," as he describes it. He thinks, for example, that the gentlemen who staged a sit-in at the Woolworth's lunch counter did not do it because they were anti-racism, but because they were anti-capitalism. Specifically, Robinson says they pulled "the rug out from underneath capitalism and free choice and the free market." He is also saddened that "so many freedoms were lost during the Civil Rights Movement."

As we have written many times, many Republicans have this fantasy that if the Party nominates a Black candidate, then Black voters will flock to the GOP banner. This is, on the whole, nonsense. It is true that Black voters, like many other groups of voters, will use group identification to help guide their voting when they don't otherwise know much about a candidate. But even on downballot races, policy (and, thus, the D or R next to the name) matters a lot more to them, just as it does with all other voters. And once we get to the top-of-the-ticket races, the candidates are well known, and things like skin color, religion, gender, etc., matter little, except to the extent that they imply policy positions (e.g., a woman candidate is more likely to attract pro-choice voters).

If Robinson does indeed end up as his party's candidate next year, he's going to get very few Black votes. He's also going to persuade many Black voters to get themselves to the polls to vote against him and his deeply offensive views. And so, while denigrating the Civil Rights Movement might be an excellent primary strategy, it's a disastrous choice for the general election. (Z)

This Week in Schadenfreude: Good Riddance

Like a great many Republican politicians, Texas state Rep. Bryan Slaton spent much of his time in office policing the sexual behavior of others. He worked on bills meant to curb birth control and abortion, to crack down on "groomers," and to limit the options of trans people. Of course, many of the evildoers he was chasing, like the groomers, were phantoms that existed only in his mind.

Slaton spent so much time in his own mind, it would seem he forgot to, you know, look in the mirror. A married man and a father, and someone who described himself as a "bold and brave Christian-Conservative," he was also in the habit of pursuing sexual relationships with his underlings. And he had success with at least one of them, a 19-year-old legislative aide. And by "success," we mean that he apparently persuaded the woman to go home with him voluntarily, then plied her with vast amounts of alcohol, then had unprotected sexual relations with her, then helped her get emergency contraceptives.

The number of offenses here is just staggering. There's grooming, of course. And sexual assault and rape. There's the hypocrisy of opposing birth control, but then acquiring it the moment he has a need for it. Sexual harassment, naturally. Cheating on his wife, and breaking about five other commandments. It was enough stuff that the Texas legislature's report on the matter ran to 16 pages, all but the first two of them single-spaced.

Slaton tried to fight off the inevitable, but he finally resigned on Monday, and then was expelled (a purely symbolic act, at that point) on Tuesday by a vote of his now-former colleagues. We can only hope (though we can't find confirmation) that he will also face criminal charges. We feel badly for his wife and son, who presumably have been hurt terribly by this, but as to Slaton himself, good riddance.

Meanwhile, the lesson here is hardly a profound one, but we'll say it nonetheless: When people are obsessed with policing the behavior of others, particularly the sexual behavior of others, there's often something else going on. And certainly, the morality cops often fail to live up to the "standards" they would set for everyone else. (Z)

This Week in Freudenfreude: Whitecloud Dispels Storm Clouds

This week, the University of Georgia's football team declined the White House's invitation to a ceremony that would have honored the football championship the team won in January. They claimed the selected date (June 12) just didn't work schedule-wise, though they offered no specifics as to why that might be, nor was there any apparent effort invested in trying to find an alternate date. We thought about writing up this news earlier this week, but decided we had very little to say about it, other than: (1) It's a shame that even something that used to bring people together has now become hyper-politicized, and (2) we guess that from now on, white players from baseball teams and Southern football teams will visit when a Republican is in the White House and basketball teams, non-Southern football teams, and Latinos from baseball teams will visit when the president's a Democrat.

That story, at least for us, serves as backdrop for the actual item we want to write about here. ESPN, the undisputed king of sports news, encourages its anchors to be witty and breezy and pop-culture-y as they read the sports news. That's basically been their brand since they first set up shop 40 years ago, something of a blend of sports news and MTV. And so it is that one of the network's more prominent anchors, John Anderson, was doing the highlights on Monday and issued forth with this riff on Las Vegas Golden Knights player Zach Whitecloud: "What kind of name is Whitecloud? A great name if you're a toilet paper."

One has to presume that if Anderson had even a moment to think about it, as opposed to being under the bright lights and on the camera (and thus on the clock), he would have realized that Whitecloud must be a First Nations name. And indeed it is; Zach Whitecloud is, in fact, the first member of the Sioux Valley Dakota Nation to play in the NHL.

At that point, Whitecloud could probably have had Anderson's job. Anderson may be a prominent ESPN anchor, but the network does not love controversy, and does not want to be accused of whitewashing, since it's got a lot of minority viewers. Plenty of sports media personalities have had their careers ended by one slip-up; some of those were entirely justified because they revealed something important about the person who made them, while others were really just about putting out PR fires.

Whitecloud did not go after Anderson, however, or otherwise pitch a fit. Here was his response:

I think it was an attempt at humor that came out as being obviously insensitive, and he acknowledges that. He understands that it was wrong to say. I wanted to make sure he knew that I accepted his apology. People make mistakes, and this is a scenario where not just John but everyone can learn from and move forward in a positive direction and try to be better...

I'm proud of where I come from and where I was raised, who I was raised by. I carry my grandfather's last name, and nothing makes me more proud than to be able to do that. In our culture, we were raised to be the first ones to reach out and offer help, so that's why I reached out to John this morning.

Anderson, for his part, responded: "This is totally on me and I sincerely apologize to Zach, the Golden Knights, their fans and everyone else for what I said. It's my job to be prepared and know the backgrounds of the players and I blew it."

Very, very classy on the part of Whitecloud, and surely more productive than blasting ESPN/Anderson would have been. This is not to say that people are not sometimes justified in taking a strong and/or angry stand on things, especially when their race, religion, culture, gender, etc. have been besmirched. But sometimes understanding and maybe a little compassion are possible, and it's nice to see Whitecloud making that his preferred option, as opposed to taking his ball (or puck) and going home, the way the Georgia football team did. Of course, he's Canadian and they are American, so that may have something to do with which response came to mind first.

Have a good weekend, all. (Z)

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