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Four Defenses Trump May Try

Now that Donald Trump has been indicted for multiple conspiracies, his lawyer, John Lauro is (hopefully for him) trying to think of how to defend him. That won't be easy but plenty of other people are throwing out ideas—but also arguments Special Counsel Jack Smith will use to poke holes in them. Here are four possible approaches Lauro could take.

All four defenses are far-fetched and Trump is not going to have a friendly judge or jury in D.C. Also, Smith may have already lined up witnesses who will counter every claim Trump could make. And this is before the likes of John Eastman, Sidney Powell, and Rudy Giuliani get indicted and have to decide if they want to save their own necks or Trump's. They may not flip, of course, hoping that Trump wins in 2024 and pardons them. But with Trump, loyalty is a one-way street. He is very unlikely to pardon any of them early in a second term because that would cause a firestorm that could lead to a massive blue wave in 2026 and possibly more impeachments. He might issue pardons on the last day of his term, but he would be 82 then, and Eastman, et al. would be taking a chance that someone who lives a lifestyle as unhealthy as Trump will even make it to Jan. 20, 2029. (V)

At a Trial, Trump Insiders Could Be Called to Testify

One thing that Donald Trump hates more than most things (and the list of things he hates is long) is having people close to him not being loyal to him. If they have to lie, cheat, or commit crimes for him, that is expected and without any discussion. When the trials begin, he is likely to be in for some very unpleasant surprises.

Let's start with Mike Pence. Yesterday on Face the Nation, the former VP said: "I have no plans to testify, but people can be confident we'll obey the law." Pence is a lawyer. He knows very well that when Jack Smith wants him to testify at any of Trump's trials, he is not going to invite him by sending him a text message reading: "Hey, Mike, could you please drop by the Prettyman courthouse Friday at 9?" Smith is going to issue a formal subpoena. And Pence just said he will honor it. Pence also said he will tell the truth. Earlier he told Smith that Trump asked (ordered?) him to reject the electoral votes of key states Trump lost. When Smith asks him to tell the jury what Trump asked of him, he will. Trump is not going to like it and won't invite him to future birthday parties.

Another insider who very likely has flipped is Mark Meadows. He was in contact with Trump multiple times on Jan. 6, 2021. He can testify to what Trump wanted and to his state of mind. Trump won't like that either.

There are more. Former senior adviser Jason Miller told Trump that the claim that dead people voted in Georgia was false. In an e-mail he wrote: "It's tough to own any of this when it's all just conspiracy sh** beamed down from the mothership." He will certainly be called as a witness to testify that Trump was warned that there was no fraud. Former AG Bill Barr also told Trump that in no uncertain terms.

In the Mar-a-Lago case, Trump is alleged to have shown classified documents to his close political aide Susie Wiles, who doesn't have a security clearance. She will very likely be called to testify in Florida. Maybe she will perjure herself, but if there are other witnesses to the incident, she probably won't risk it. Bodyman Walt Nauta, who has been indicted himself, may be called as a witness. There are surveillance videos of him moving boxes of classified materials around. He would be foolish to perjure himself when there is video evidence showing what he did.

Even some of Trump's lawyers will be called in one trial or the other. Evan Corcoran told Smith that after Trump was ordered to turn over documents to the National Archives, Trump instructed him to take boxes of documents to a hotel room and remove the damaging ones. If there is any doubt that Trump willfully attempted to hide documents he had no right to have, Corcoran's testimony should settle that.

The list of Trump insiders who are likely to be called as witnesses is substantial. In the Florida case alone, there are 84 potential witnesses. In the conspiracy cases, everyone Trump came in contact with on Jan. 6 is a likely witness. There are dozens of them. Will any of them take a bullet for Trump? Ivanka might, but probably few, if any, of the others will because Smith has so much evidence that they will all be afraid of being charged with perjury if they lie on the stand.

The really big question is how testimony from Trump insiders will sway public opinion—and thus Trump's chances in the Republican primary. Right now, most Republicans think the whole thing is a big witch hunt (see below). But if dozens of Republicans formerly loyal to Trump come out and testify that he committed crimes, some Republican voters might decide that Trump is indeed a criminal. Of course, if the primaries are (effectively) over by the time the trials start, Trump could still end up as the nominee, even if he is then a convicted criminal. (V)

Trump's Finds His Inner Mafia

On Friday, on his boutique social media site, Trump posted this message: "IF YOU GO AFTER ME, I'M COMING AFTER YOU!" That could have been aimed at Jack Smith, Judge Tanya Chutkan, or, more likely, all of the potential witnesses. Unlike real Mafia dons, this Don doesn't employ any hired killers. His are all volunteers. Nevertheless, potential witnesses who don't especially want to go into the witness protection program might decide it is safer not to testify against him in court than take their chances with his supporters, many of whom are heavily armed.

Just before 10 p.m. Friday, two members of Jack Smith's team, Molly Gaston and Thomas Windom, alerted Chutkan of Trump's posting. They are worried about what else he might post, including some of the evidence the prosecutors are about to turn over to his lawyers. That will probably include the names of the sources, who Trump could then attempt to pressure. The legal term for that is "witness tampering" and it is a federal crime, but since when has committing a federal crime deterred Trump?

On Saturday, Chutkan ordered Trump's lawyer to file a response by 5 p.m. today. So far, Smith has not requested a gag order in either the Florida case or the D.C. case. But if Trump posts things that he shouldn't, Smith might ask for one. Under D.C. court rules, Chutkan is allowed to impose one. That could get very messy. Suppose she issues a gag order and Trump defiantly violates it. What then? She could find him in contempt of court, revoke his bail, and put him in jail. But would Chutkan do that? How would that affect the appeal later if he is convicted? She would have to be careful. (V)

Ramaswamy Chickens Out

If debate moderator Sean Hannity wants to make the first Republican debate even a bit interesting, a question he might ask each candidate is: "If you were in Mike Pence's position on Jan. 6, 2021, would you have sent the electoral votes of Arizona and Georgia back to the state legislatures so they could try again?" The fun part would be watching the candidates squirm.

Vivek Ramaswamy gave a preview on Friday when a reporter asked him that. He said: "I would have never let it get to that point. I would have never put myself—or been part of an administration, if I was in a serious position of leadership—to ever have allowed us to have gotten to that doorstep." What the hell does that mean? If he were vice president (and thus president of the Senate), his constitutional duty would have been to preside over the counting of the electoral votes. Would he have done it or not? The President of the Senate doesn't have the option of not showing up. Would he have called in sick on Jan. 6 or what?

We suspect that none of the candidates would like to answer that question. Saying that they would have let the count simply proceed will infuriate all of Trump's supporters. Saying that they would have sent some of the electoral votes back to the states would imply that they were fine with a coup. That might help in the primary but would be absolutely deadly in the general election if they got that far. (V)

Could Trump Be Imprisoned?

By Labor Day, Donald Trump will probably be under indictment and out on bail in four jurisdictions. In three of those (Florida, Georgia, and D.C.) he could be convicted of crimes that have prison as a possible penalty. In the New York case, falsifying business records is normally a misdemeanor but can be bumped up to a felony if the records were falsified to conceal a crime (e.g., violating election finance law). Just suppose Trump's chances of conviction and prison time were 50-50 in all four cases. That means he would have to win all four of them, which would have a probability of about 6%. This means that putting Trump in prison can't be dismissed as highly improbable.

How much time would he get? That is up to the judge, but there are federal and state guidelines as well as minimums and maximums in the laws themselves. There is also jurisprudence about similar cases in the past. We can't imagine him getting much, if any, prison time in New York. The crime isn't serious enough and Trump is a first-time offender. A fine is more likely there.

As to the Mar-a-Lago documents case, there are plenty of recent examples. In 2017, Reality Winner, who was working for a military contractor, leaked secret documents to the media. She was tried, convicted, and sentenced to 5 years in prison for this. In 2019, former contractor Harold Martin got 9 years for taking home classified documents. In June of this year, former analyst Kendra Kinsbury got 4 years for taking home documents about al-Qaeda and Osama bin Laden. Of course, the documents Trump took might have been more highly classified and his extreme sloppiness in handling them could affect a potential sentence.

As to the conspiracy charges, Stewart Rhodes got 18 years for his role in the coup attempt. Trump's role is surely greater than Rhodes', and Tanya Chutkan has a reputation for being a tough judge.

Suppose Trump gets a prison sentence. How would that work? All former presidents since Richard Nixon have been entitled by law to round-the-clock protection by the U.S. Secret Service for life. Could the Secret Service protect Trump if he were in prison? The USSS is beginning to think about it.

Protecting Trump while in prison changes the nature of the problem for the Secret Service. On the one hand, it is easier, since it is very rare for people to break into a prison. On the other hand, Trump would be in close contact with other prisoners, some of whom might not wish him well. He could obviously have a private cell, but what about meals, recreation, health care, and other things that would require him to be moved from his cell? Would prison authorities do that? Would the Secret Service do that? Would he be safe?

Various models are possible. At the low end, the judge might give him probation and tell him not to conspire to defraud the United States again. Next up is house arrest. Mar-a-Lago might be difficult to secure. Trump Tower might be easier if all the elevators but one could be programmed not to stop at Trump's floor ever and that one would require a key to make it stop there. The call button could be disabled. Armed guards could be posted at all the stairs. Alternatively, Trump could be confined to one of his other properties that was easier to secure. Or maybe the federal or state Bureau of Prisons could buy an easy-to-secure house somewhere for him.

Another possibility is a military base. Some of them are generally already fairly secure and if the base were large enough, a special facility with its own security could be built for Trump on base.

Continuing, Trump could be given his own wing of an existing prison, with his own cell, his own dining room, and his own recreation room, with Secret Service agents guarding the entrance to the wing. At the far extreme end is the 37-acre Supermax prison in Florence, CO, in the Rocky Mountains. Both the prison and the site are designed to handle hardened criminals with histories of violence. It could clearly do the job if need be. It would also be difficult for Trump's supporters to get there to riot.

It is also possible that the Secret Service could hand off all security duties to the Bureau of Prisons or some other agency. When Hillary Clinton was secretary of state, the Secret Service handed off her security to the State Dept. It can be done. The judge might even want to wade in on security before issuing the sentence, although that would be unusual. (V)

Poll on Indictments Shows Huge Partisan Split

A new CBS/YouGov poll about the indictments against Donald Trump shows a huge difference between Democrats and Republicans. Democrats see them as upholding the rule of law. Republicans see them as an attempt to stop Trump's campaign. Here are the data:

CBS/YouGov poll on Trump indictments

What stands out, of course, is that 88% of Democrats but only 28% of Republicans think the indictments are about upholding the rule of law. In contrast, 31% of Democrats and 86% of Republicans think it is about stopping Trump. This despite AG Merrick Garland handing the show to a respected independent prosecutor and staying out of the whole thing. Even more disheartening is that one-fith of Democrats and a majority of Republicans think the indictments are an attack on "people like you." This is what Trump says all the time and most Republicans and some Democrats have internalized it. Are they afraid that if they try to overturn an election, the DoJ will come after them? If they did, the DoJ probably would, but they can prevent that by not trying to overturn an election. It's not that hard. Every day millions of people don't try to overturn an election. Given data like these, we don't think convictions in any of the cases will change many Republicans' views or votes. Of course, in a close election, 2-3% of Republicans changing their minds in three or four key states could matter a lot.

Also relevant is what people are concerned about when considering the indictments. Here are those data:

CBS/YouGov poll on Trump indictments

This question shows that almost no Republicans believe that Trump tried to overturn the election despite massive evidence and testimony from numerous Republican officials (e.g., Brad Raffensperger) saying that is exactly what he did. Also, 91% think the indictments are politically motivated, despite Garland trying to put as much distance as he could between himself and the indictments. There is probably nothing he could have done to convince Republicans that the investigation was fair. This does not speak well for the ability of half the country to distinguish truth from lies. (V)

DeSantis' Biggest Donor Pauses Donations

Aerospace and hotel magnate Robert Bigelow gave $20 million to Ron DeSantis' super PAC "Never Back Down" in March. It was the single largest donation the super PAC got. Bigelow's enthusiasm for DeSantis is now on hold. He has said he won't give any more money to DeSantis until more major donors sign up and DeSantis becomes more moderate. Bigelow said: "Extremism isn't going to get you elected." But DeSantis is all-in on extremism. It's what his whole campaign is about. He's not going to change and say: "I like woke after all. Sorry about the confusion." Specifically, Bigelow said that DeSantis' willingness to sign a bill that banned abortion at 6 weeks is a dealbreaker for him.

The second biggest donor to Never Back Down, incidentally, is Douglas Leone, who donated $2 million, 10% of what Bigelow gave.

The problem with Bigelow's announcement is that it feeds into the perception that DeSantis' big donors are jumping ship on him. Since the vast majority of his donations came from big donors, rather than small donors, it could lead to the impression that DeSantis is circling the drain. That's not the image any candidate wants.

"Never back down" isn't only the name of DeSantis' super PAC. It is also a description of the candidate. How did DeSantis react to Bigelow's announcement? A source close to DeSantis said: "Donors don't set policy for the governor and they never will." For other millionaires thinking about giving DeSantis money in return for possible future favors, that sends a message and that message is: "The return on your investment will be 0%."

Bigelow isn't the only big donor who is unhappy with the 6-week abortion ban. Many multimillionaires are libertarians at heart and not religious culture warriors. Another big Republican donor, metals magnate Andy Sabin, also got off the DeSantis bandwagon on account of abortion. DeSantis is going to have a problem threading the needle now. He wants to be to the right of Trump on everything to distinguish himself, but that alienates the people he needs to finance his campaign. (V)

Clarence Thomas Is Living the Good Life

Justice Clarence Thomas' relationship with his "friend," Republican megadonor Harlan Crow, was documented by ProPublica in April. It included luxury vacations and gifts. What is noteworthy is that Thomas and Crow became "friends" only after Thomas was seated on the Supreme Court. Since April, more corruption has come out, including Crow paying the tuition for Thomas' grandnephew at a pricey private school and Crow buying Thomas' mother a house. Thomas' membership in the Horatio Alger Association put him in contact with many rich people who showered other lavish gifts on him.

But it doesn't stop there. Now a new scoop from The New York Times shows that Thomas owns a luxury R.V. worth over a quarter of a million dollars... financed by somebody else. It is not just any R.V. It is a custom Prevost Marathon, the Rolls-Royce of R.V.s, in the frame of a large bus. Thomas has described it as a "condo on wheels."

Thomas has never made his ownership of the Marathon a secret. He is quite proud of it. The secret part was who paid for it. It is not clear from the reporting how much of the financing was a loan (and what the interest rate was, if any) and how much was an outright gift. The mere fact that Thomas got private financing at least suggests he got a better deal than a bank would have offered. In other words, either some of the loan was forgiven or the interest rate was below the market rate. In Thomas' defense, the loan/gift was from Anthony Welters, a genuine (and Black) friend whom Thomas met long before either one held any high position, and who later became a multimillionaire in the health-care industry. On the other hand, while having dinner at a friend's house doesn't have to be reported on Thomas' disclosure forms, gifts and favorable loans of a quarter of a million dollars certainly do. And this one wasn't.

The more reporters dig, the more dirt they find on Thomas. The picture that is emerging is not a pretty one. It is of a man who grew up in poverty, discovered that being a Black conservative made him a valuable property among right-wing white politicians and millionaires, and has decided that he can now cash in and live the good life on someone else's dime. All he has to do in return is vote with the other conservatives on the Supreme Court. That's not hard to do. If he is in doubt, he can just ask his good friend Sam Alito how to vote. They have voted the same way about 90% of the time in the past 6 years. (V)

Neither Trump Nor Biden Can Win

Very few people are excited about a rematch of Joe Biden vs. Donald Trump, but it looks like that is what we may get. Rematches are actually somewhat common. This would be the seventh time it happened. Here are the first six:

Dan McLaughlin over at National Review has a column arguing that neither of them can win. It is an interesting take on the race from a conservative viewpoint.


Of course, if Biden and Trump are the candidates, one of them has to win, despite all his flaws. A recent poll had them tied at 43% apiece. That means 14% of the electorate is still on the fence. The election will be about turnout and getting a bigger slice of that 14%. (V)

Mooney Won't Budge

Republicans know that if they can just knock off Sen. Joe Manchin (D-WV) and Donald Trump wins the election, they will have control of the Senate. Knocking off Sens. Jon Tester (D-MT) or Sherrod Brown (D-OH) would also do the job, but neither state is as red as West Virginia and each of them has been elected to the Senate three times. Manchin is clearly the easiest target.

The NRSC thinks it has an excellent candidate in Gov. Jim Justice (R-WV). Unfortunately, he has a primary opponent, Rep. Alex Mooney (R-WV), who refuses to drop out and who has the backing of the deep-pocketed Club for Growth. Mooney claims he is the only conservative in the race and that Justice, who won his first election as a Democrat, is a turncoat and a RINO. Mooney is a member of the Freedom Caucus and those guys don't give up.

Most Republican senators support Justice, but Sens. Ted Cruz (TX), Mike Lee (UT) and Rand Paul (KY) support Mooney. Donald Trump has quietly told Mooney that he won't support him, which was very disappointing. But since Mooney will not lack for money and won't drop out, the NRSC is going to have to spend big-time just to get Justice nominated. Furthermore, that could fail, since Mooney is going to make a big deal about how Justice was first elected as a Democrat while he, Mooney, is a lifelong conservative Republican.

One thing that Justice is going to talk about a lot is that Mooney is a carpetbagger. He was once a state senator in Maryland and even former chairman of the Maryland Republican Party. He moved to West Virginia in 2014, so he has been there only 9 years. Many West Virginians have been there nine generations, so the carpetbagger attack could work. If Mooney insists on staying in and the Club for Growth keeps the money flowing, the NRSC will have to spend a lot of money on a race that they thought would be easy—and that's before they even get to Manchin (if he runs). (V)

Some Democrats Are Urging Debbie Mucarsel-Powell to Challenge Rick Scott

Democrats are largely playing defense in the Senate this cycle. Nevertheless, it is always good to play offense in at least a few races in case there is a blue wave. They have a strong candidate in Texas running against Sen. Ted Cruz (R-TX) in Rep. Colin Allred (D-TX). The only other state where the Democrats have any chance to knock off an incumbent Republican senator is Florida. There the unpopular Sen. Rick Scott (R-FL) is running for reelection. But you can't beat somebody with nobody, so Democrats are hunting for someone to challenge Scott.

Many think they have found a candidate in former representative Debbie Mucarsel-Powell. About a quarter of all Floridians are Latino and Mucarsel-Powell immigrated to Florida with her family from Ecuador when she was 14. That isn't to say she would have a quarter of the votes locked down. Most Cuban-Americans are Republicans, but there are also many people from South America in Florida and they would be her base.

Although Scott is a multimillionaire and can self-fund his race, he has never run for the Senate in a presidential year. He has also said some things that could prove extremely toxic in Florida, especially that all laws—including Social Security and Medicare—should automatically expire after 5 years unless Congress explicitly votes to renew them. Needless to say, this would be the centerpiece of Mucarsel-Powell's campaign, which could add many seniors to her base as well.

Victoria McGroary, executive director of the BOLD PAC, the campaign arm of the Congressional Hispanic Caucus, sees her as the candidate. McGroary said: "Debbie would be such a fantastic recruit. Rick Scott is one of the most vulnerable Republicans in the Senate. It is really time for Florida to have someone as strong as Debbie, a Latina, at the top of the ballot." Other Latino groups also chimed in their support.

If Mucarsel-Powell were to jump in, she would have company. Navy veteran Phil Ehr is already in. He tried and failed to knock off Rep. Matt Gaetz (R-FL) in 2020. In contrast, Mucarsel-Powell won in 2020 in a swing district in Miami-Dade County. She has talked to Senate Majority Leader Chuck Schumer (D-NY) about the race.

Democrats know that former representative Val Demings lost in 2022 by 16 points. Demings is Black. Maybe the time has come for something else, like a Latina. Florida will be tough for any Democrat, especially against a self-funding incumbent and former governor, but Mucarsel-Powell would probably be able to pull in money from Latino groups all over the country and in a blue wave might just be able to pull it off.

In politics, appearances are important, for better or worse. If she were to jump in, Latinos would be aware of her background. However, people who saw her at rallies or in ads would probably not instantly think: "immigrant from South America." Here is a photo of her:

Debbie Mucarsel-Powell

Also, "Debbie" (her actual name, not "Deborah"), is not a common name for a Latina. (V)

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