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Trump Legal News: Walking on Thin Ice

There are many people who will be very unhappy with another Donald Trump presidency, but it's likely to be a godsend to the nation's legal professionals (well, assuming the courts aren't outlawed). At the moment, the former president must be directly or indirectly responsible for the paychecks of more people in that line of work than any other American. And there was a lot of news on that front yesterday, most (but not all) of it bad for Trump.

We begin in New York, because that's where things are hottest and heaviest right now. Donald Trump Jr. finished his testimony, at least for now, and then his brother Eric took the stand (and got testy). The plaintiff (i.e., the State of New York) is making the case that the brothers Trump both signed off on documents that contained financial falsehoods. The brothers are both arguing that they didn't really pay any attention to the documents they were signing, and that responsibility for any misrepresentations lies with the accountants. The problem here is that the statements, which are called "management representation letters," are instructions from the management to the accountants as to the company's financial position. In other words, the Trumps are either lying or they were careless at a level roughly equivalent to signing blank checks and then handing them out to passersby on the sidewalk.

Following the not-so-believable testimony from Beavis and... er, from Donald Jr. and Eric, Trump family attorneys Chris Kise and Alina Habba decided that their best course of action was to... piss off the judge. Are they just not able to control themselves after a bad day in court? Are they trying to curry favor with the boss? Are they trying to create a basis for an appeal? Who knows, but in true Trump style, they decided to heap some abuse on Arthur Engoron's (female) court clerk. Only Engoron heard exactly what was said; whatever it was, he grew very angry, slammed his hand down on the desk, and accused the counselors of misogyny. Kise responded to that by saying: "I'm not a misogynist. I'm very happily married, and I have a 17-year-old daughter." Actually, Chris, that just means you're not an incel. There are plenty of married men with daughters who are misogynists; certain defendants in certain ongoing trials in New York leap to mind. In any event, Engoron was so aggravated that he ended the day early.

And speaking of daughters, Ivanka Trump is theoretically up next. In a desperation move, she filed a motion that she should not be compelled to testify during the school week, since she has school-age kids. Since courts aren't generally open on the weekends, that would have bought her quite a bit of time (presumably until winter break, or maybe next summer). However, Engoron rejected that argument and yesterday, Ivanka's appeal of Engoron's decision was rejected. She desperately does not want to be put on the stand; either she really does not want to perjure herself or she really does not want to betray Dad. For what it's worth, Mary Trump predicts that the former president's favorite child is going to throw her father "under the bus."

Moving west to Minnesota, the state Supreme Court there has inadvertently entered into something of a race with Colorado to see which will be first to decide Trump's eligibility to be on the ballot. The matter is soon to be heard by the Colorado supremes, but yesterday, the Minnesota supremes actually heard a case. The justices were persuaded that Trump's activities were at least in the ballpark of violating the Fourteenth Amendment, but were so uncertain as to whether or not they should even be hearing the case that literally any outcome is possible; they could dismiss, they could disqualify or they could say he's in the clear. In the end, Chief Justice Natalie Hudson almost certainly predicted where this is eventually headed: "[This is] why we have a U.S. Supreme Court, which is where this probably should be decided."

And finally, the good news for Trump, at least for now. Down in Florida, Judge Aileen Cannon has done much to drag things out while trying to make it look like she's not trying to drag things out. And earlier this week, she announced that she's just not sure it will be possible to squeeze in a trial next May, and that she may have to postpone until after the election.

Judges have enormous latitude over their calendars, such that it would be pretty tough for Special Counsel Jack Smith to push back against Cannon's decision. However, Trump was not willing to leave well enough alone, and managed to throw a potential wrench into the works. The defense argument in Florida is that Trump will be too busy with his D.C. trial to prepare for the Florida trial. However, shortly after making that argument, Trump's lawyers filed a motion asking that the D.C. trial be postponed indefinitely. It's pretty obvious that his "not enough time" complaints are not in good faith, and it will be hard for Cannon to pretend otherwise. And in case she missed the news from D.C., Smith has already filed a notice bringing Trump's duplicity to her attention.

Incidentally, there is a "truth" floating around that purports to be from Trump, and that says that Cannon is doing such a good job, he will put her on the Supreme Court if he gets a chance. It's a fake; of course, that kind of quid pro quo would instantly force Cannon off the case and would also add another charge or two to Trump's list (bringing us closer and closer to 100). But even he isn't that stupid. We think. However, it is instructive that of all the judges handling his cases right now, Cannon is the only one he doesn't criticize. That surely tells us which judge he thinks is in the bag for him. (Z)

Mike Johnson: Louder Than Words

Speaker of the House Mike Johnson (R-LA) promised that he was going to be a good soldier, and that he would be up to the challenge of leading the House of Representatives. However, actions are more important than words, and his actions so far have made clear he's got no real interest in governance.

As we have already noted, Johnson decided to bring a bill to the floor of the House providing $14.3 billion in aid for Israel. Yesterday, it passed 226-196, with a dozen Democrats joining 214 Republicans in voting for it and two Republicans joining 194 Democrats in voting against.

Let's now review why this is nothing more than political theater. First, nobody really believes Johnson's promise that he'll bring a Ukraine funding bill to the floor next. Second, it was not enough for him to bring an Israel-only bill, one that will never pass the Senate; he also jammed in a provision cutting funding for the IRS. That makes it doubly unacceptable for Democrats, including Joe Biden. Third, Johnson's stated reason for cutting the IRS funding is to "balance" things out (i.e., spending $14 billion on Israel is offset by cutting $14 billion from the budget). In truth, cutting the IRS funding will actually increase the deficit, as the CBO confirmed yesterday, depriving the government of more than $25 billion in revenue. Johnson knew this even before the CBO weighed in; what he was really doing was using Israel as cover for giving a giant gift to the donor class (who will be the subject of fewer audits, and will be able to get away with more tax cheating, if funding is cut).

The item we wrote earlier this week, about Johnson being duplicitous, comes to mind. That said, while we believe he is dishonest, even by politicians' standards, we don't think he's stupid. He has no expectation that the bill passed yesterday will ever become law. So, what's he trying to achieve here? We see three possibilities:

  1. He thinks the donor class will be pleased, at least for now, with empty gestures. It's possible they might be, but even if so, empty gestures won't get it done for long.

  2. He thinks that the base is stupid, and won't grasp what's going on here. This is very plausible, although every time Johnson or another Republican goes on TV to say "Hey! We tried to give money to Israel!" a Democrat or a more moderate Republican is going to go on TV and say "We're not going to throw Ukraine under the bus" or "We're not interested in helping the Speaker fatten the wallets of the rich, and we're bothered that he used the tragedy in Israel to try to do so."

  3. He thinks this will give him leverage. If he thinks this, however, he's naive. Joe Biden and Senate Minority Leader Mitch McConnell (R-KY) have already said it's a no-go. If Johnson was interested in leverage, he would have included one thing the Senate and the President want, one thing the Republicans really want, and one thing the Republicans want but are willing to let go. With this bill, there's one thing everyone already agrees on (the Israel money) and one thing the Democrats will never go for (the IRS cuts). There aren't any actual bargaining chips. Sure, Johnson might be able to demand less money for Ukraine than Biden wants, but that possibility was already on the table, without this silly political theater.

And therein lies the rub. If Johnson had pushed a bill with the Israel money, plus 60% of what Biden wants for Ukraine (about $50 billion), plus $20 billion for border enforcement, that bill might well have a presidential signature already. Certainly, it would be very hard for the Senate or the White House to say "no." And then Johnson could have claimed a relatively easy victory, crowing about money for Israel/the border while also bragging that he slashed the Ukraine ask. This would have been a good start to his speakership.

Instead, Johnson chose the "show horse" route, putting the rest of Washington on notice as to what kind of leader he is. So, the Senate is just going to amend his bill and send it back to the House, where he'll either have to swallow hard and take his medicine, or else be the guy who blocked funding for Israel. Meanwhile, the senators also passed three bills yesterday to fund the federal government next year; the ones that cover military construction and veterans affairs, agriculture, and transportation and housing. Put another way, the more experienced politicians are seizing the initiative while hemming Johnson in.

In short, the Speaker is setting himself up to get an education, and one that will be conveyed much more quickly than when he got his two degrees at Louisiana State University. (Z)

Senators to Tuberville: Do You Want to Rock?

Remember those McDonalds signs that listed how many hamburgers the chain had sold? We may need to start up something like that for stories about how angry the other senators are over Sen. Tommy Tuberville's (R-AL) hold on military promotions. Certainly, the number of items that we've seen on that subject numbers in the hundreds, and maybe in the thousands. That said, there is growing evidence that his colleagues, Democratic and Republican, are almost out of patience with "Coach."

As we have noted several times, there are multiple hundreds of promotions being held up by Tuberville, and dealing with them through normal order would take hundreds of days' worth of Senate time. Dealing with a few of the really big ones through normal order is doable, but sends a message to more junior officers ("You're not as important!") while also sending a message to a future obstructionist ("Go ahead and do it! You'll get some PR, and the rest of the Senate will bail you out of any really serious consequences").

That said, the situation in Israel, along with the heart attack suffered by Marine Corps commandant Eric Smith, means that waiting Tuberville out is a luxury that the nation cannot afford. And so yesterday, the Senate confirmed Adm. Lisa Franchetti as chief of naval operations and Gen. David Allvin as Air Force chief of staff. The vote, conducted via normal order, was 95-1 in both cases (with Roger Marshall, R-KS, the holdout; Tuberville voted in favor). This means that all seats among the Joint Chiefs are now filled. Our congratulations, in particular, to Adm. Franchetti, who becomes the first woman to lead the U.S. Navy, a bit more than a century after Loretta Perfectus Walsh became the first woman to serve in the Navy.

So, where do we go from here? Well, to start, let us note that Tuberville's position—that he won't lift the hold until the Pentagon stops paying for women service members to travel for abortion services—has no real foundation. Lawyers from both the Dept. of Defense and Dept. of Justice have ruled that the allowance is legal, and no one, not even the activist groups, has filed a lawsuit to challenge it. The Senate Armed Services Committee has also voted down a motion to suspend the policy.

Still, Tuberville has dug his heels in, as his constituents like what he's doing, and backing down now would cause him to lose face. So, what can his 99 colleagues do? Here are the options:

There's no way to say how long this game of "look at me" will continue. However, it's going to be very difficult for the Senate to leave for its holiday break with the armed forces still twisting in the wind. Meanwhile, the budget fight will afford an opportunity to send some pork Tuberville's way. So maybe the light at the end of the tunnel is about to come into view. (Z)

Santos and Tlaib: Riders on the Storm

Reps. "George Santos" (R-NY) and Rashida Tlaib (D-MI) were both put under a very uncomfortable magnifying glass by their colleagues this week. However, they both rode out the storm.

We'll start with "Santos," because his turn came first, and because he was in considerably more peril. On Wednesday, the House voted on the resolution to expel him from Congress. Showing that it's not so easy to whip votes, even when the subject of the vote played Indiana Jones in the hit movie series, the New York Republicans leading the charge didn't even come close to shedding the anchor around their necks. Here's a screen capture of the vote, courtesy of C-SPAN:

24 Republicans and 155 Democrats voted 'yes,' 182 Republicans
and 31 Democrats voted 'no,' 4 Republicans and 15 Democrats voted 'present,' and 22 members didn't vote.

Given all the members who did not vote, it would have taken 262 votes to expel, so it really wasn't close.

The subject of most interest, at least to most commentators, was the 31 Democrats who voted in "Santos'" favor. Many of them are from swing districts, but some progressives also voted to sustain the Congressman, including Katie Porter (CA), Rashida Tlaib (MI) and Jamie Raskin (MD). It is also the case that House leadership declined to whip votes, leaving members to vote as they saw fit.

So, what's going on here? It's certainly possible that there was some political gamesmanship going on, and that some or all of the 31 Democrats wanted to leave the New York GOP tethered to this particular black sheep. However, we doubt it. "Santos" was going to survive regardless of how the Democrats voted, and so the 31 could have voted the less controversial position (i.e., "toss him out") and he would still have remained in the House, a drag on the Republican Party.

No, we think that the 31 had real, legitimate reservations about the expulsion. Just as a general rule, members have spent the last 200 years being leery of expulsions, except in the very most extreme cases. It's the same thing with Academic Senate faculties that are loath to revoke tenure; they don't want to eat away at the foundations of their own job security.

More specific to this case, if "Santos" had been expelled, the people who run the Republican Party have shown they are very willing to play tit-for-tat, and to abuse various processes to do so (see Joe Biden, impeachment of). If "Santos" was expelled for merely being charged with a crime (even if the evidence is overwhelming), without the House Ethics Committee signing off (and it hasn't done so, as yet), then it is very plausible that a red-state AG, or a Republican-appointed U.S. Attorney General, might charge Adam Schiff (D-CA) or Nancy Pelosi (D-CA) or Alexandria Ocasio-Cortez (D-NY) with some offense, and that a Republican-controlled House might try to expel that person. It wouldn't work, but the impeachment of Biden won't work, either. And it would allow those Republicans to muddy the waters.

Now if Republicans try that stunt (and they might), then the Democrats in general, and the 31 "nays" in particular, will be able to push back with credibility. "First," they will say, "it was Republican members who tried to boot 'Santos,' not us." "Second," they will point out, "the House Democratic Caucus did not support the move, and many Democrats voted against it. So, we are equally against expulsion without trial for a Republican OR a Democrat." Note that some of the "nay" voters (like Porter) have hinted that this was their thinking, but they can't come out and say this whole thing without de facto throwing a grenade into the middle of the House Republican Conference. So, the Democratic "nays" have to keep it mostly on the down-low, particularly given the tense issues that are on the horizon, like Israel and the budget.

And speaking of Israel, Tlaib faced a motion of censure in response to her comments on the subject. Many members on both sides of the aisle are not happy with the Representative's staunchly pro-Palestine (and anti-Israel) remarks, but motions of censure are supposed to be reserved for very serious misconduct, such that it's only happened 26 times. The procedure was already cheapened by the "let's kowtow to Donald Trump" censure of Schiff, and a majority of House members clearly weren't willing to cheapen it any further, as all the Democrats and 23 Republicans voted to table the Tlaib censure. So, it's dead.

A pretty good sign the censure was not worthy of consideration is that it was sponsored by Rep. Marjorie Taylor Greene (R-GA), who is probably the biggest show horse in Congress (though Matt Gaetz, R-FL, is not far behind, while Nancy Mace, R-SC, is making a move—see below). As you can imagine, Greene blew a gasket on the platform formerly known as Twitter, posting the names of all the Republicans who cast "nay" votes, and decreeing that: "This is why Republicans NEVER do anything to stop the communists [sic] Democrats or ever hold anyone accountable!!" Yep, blasting anyone who opposes her as a "communist(s)." Is there anything at all in her worldview that doesn't come from the year 1950? (Z)

Nancy Mace: Now and Then

Do you remember a time—say, 4 weeks ago—when Nancy Mace seemed to be a basically normal member of Congress? And do you sense she's rapidly turned into a very different person since then, like she's been replaced by a fire-breathing look-alike? If you feel that way, you're not alone. And yesterday, The Daily Beast shed a fair bit of light on the situation.

Specifically, someone who serves (or served) in Mace's office leaked a copy of a 2021 strategy memo written by Mace, and a current internal handbook for the Representative's office, also written by Mace. From these two documents, as well as interviews with former staffers, come the following bits of information:

That explains why, whenever Mace has a thought—any thought, really—we all hear about it. But what's with the extremist turn in the past month or so? Why did she go from voting like a disciple of then-speaker Kevin McCarthy (R-CA) to voting like a Freedom Caucuser?

The answer to that question is pretty obvious: Mace is angling for the #2 slot on the Trump ticket. She knows he's leaning toward a female running mate, and she also knows that the other contenders have liabilities, so she's making a move to cozy up to the former president. Quite a few folks who know her say that her votes against McCarthy and Rep. Tom Emmer (R-MN), in particular, were cast with an eye toward getting TV appearances that would be seen by Trump, and not out of any particular convictions.

In case there were any doubts about this theory, Mace was on The Daily Show this week (which, as a Comedy Central program, is therefore not broadcast on CNN, MSNBC, CBS and ABC). And when guest host Charlamagne tha God asked her about the possibility of being Trump's running mate, she described the notion as "intriguing." That is not only far removed from the Full Sherman, it's also exactly what you would say if you were interested, but you also knew that the fellow making the decision does not like people who are over eager (see Lake, Kari).

And so we have another entrant into the GOP VP sweepstakes. And that person could turn out to be very important if they're the only person on the ticket who can campaign because they're the only person on the ticket who is not in prison. (Z)

I Read The News Today, Oh Boy: The Art of the Fugue

The songs are back this week! And inasmuch as Bach's "Toccata and Fugue in D Minor" has been the unofficial theme song of haunted houses and horror films for generations, we feel comfortable in saying that "The Art of the Fugue" fits last week's theme. Whether it fits this week's theme, well, we have to admit that depends on which scholar you ask.

So, what was last week's theme? Here are last Friday's headlines, not including the one that we did not make part of the game:

We included several clues, including one that was very subtle, but that makes sense once you know the answer: "Third, and this is the hint, even if you figure out the general idea, it's very, very hard to figure out how one of the six non-Maine headlines fits with the theme (but It does!)." Note that "It" is capitalized, implying a proper name rather than a pronoun.

Anyhow, the answer is that each headline included one of the most popular Halloween costumes of 2023. Here's the top 50, per Google trends:

  1. Barbie
  2. Princess
  3. Spider-Man
  4. Witch
  5. Fairy
  6. Wednesday Addams    
  7. Dinosaur
  8. Cowboy
  9. Ninja
  10. Bunny
  11. Rabbit
  12. Pirate
  13. Princess Peach
  14. Clown
  15. Pumpkin
  16. Batman
  17. Mermaid
  18. Cheerleader
  19. Ghost
  20. Bear
  21. Vampire
  22. Taylor Swift
  23. Harley Quinn
  24. Doll
  25. 1980s
  1. Cowgirl
  2. Toy Story
  3. Bluey
  4. Star Wars
  5. Chucky
  6. Angel
  7. Skeleton
  8. Superhero
  9. Monsters Inc
  10. Tinker Bell
  11. Alien
  12. Pokemon
  13. Zombie
  14. Devil
  15. Joker
  16. Beetlejuice
  17. Bowser
  18. Catwoman
  19. Dragon
  20. Chicken
  21. Renaissance
  22. Shark
  23. Teacher
  24. Powerpuff Girls           
  25. It

Needless to say, we accepted any answer that involved Halloween. Here are the first 10 readers to get it right:

  1. L.A.J. in Bourbonnais, IL
  2. S.S. in West Hollywood, CA
  3. M.H.S. in Louisville, KY
  4. Z.K. in Albany, NY
  5. H.P. in Tulsa, OK
  6. E.W. in Skaneateles, NY
  7. K.R. in Austin, TX
  8. B.W. in Easton, PA
  9. M.S. in Sharon, MA
  10. D.F. in Vancouver, BC, Canada

As to this week's theme, you already know it's songs, which means it's in the category of Entertainment. For a hint, we'll say that today's posting is the first one where these particular answers would all be correct. If we'd done this last Friday, one of them would not have belonged. This fact just might have something to do with why we chose this particular theme today.

Anyhow, if you have a guess, send it here. (Z)

This Week in Schadenfreude: Milkcow's Calf Blues

"Milkcow's Calf Blues" tells the story of a cow who neglects her calf, causing the calf to become sad and angry. We'll leave it to you to figure out how that might apply to this item.

Truth be told, this could have been included in the Trump legal news above, except that item is already plenty long, and besides, Trump is only indirectly involved in the Supreme Court case we're discussing here. At issue is this shirt:

It says 'Trump too small'
on the front accompanied by an image of a hand making the 'just a little bit' gesture; on the back it has a list of 
ways in which Trump's 'package' is too small, listing things like voting rights and civil rights.

Harkening back to the 2016 debate with Sen. Marco Rubio (R-FL), activist Steve Elster wants to sell the shirts to make a point about the former president's various inadequacies.

There are at least a couple of questions in play here. The first is whether Elster has a distinct enough idea to warrant trademark rights. The second is whether he can have that trademark without permission from the person being named. Needless to say, Trump has not given, and will not be giving, permission for the shirts to be manufactured.

The dynamics of the case are somewhat interesting. The Biden administration, in the person of Solicitor General Elizabeth Prelogar, is defending Trump, at least indirectly. The real defendant is the USPTO's Trademark Trial and Appeal Board, which rejected Elster's request, and which says that his First Amendment rights are not being infringed upon. Meanwhile, the current Supreme Court, especially the right wingers, now has a long track record of paring back the limits on trademarks. So, they may well rule for Elster (and thus, against Trump).

So why did we choose this for schadenfreude of the week? It is because we have a case where at least part of the question is whether the small size of Trump's manhood is a legally protectable idea, or if it's a broader truth that really belongs to all of us. If there's no schadenfreude in that, particularly given Trump's constant peacocking about his masculinity, then we don't even know why we have this feature. (Z)

This Week in Freudenfreude: You Know You're Right

When we read this story, sent in by R.E.M. in Brooklyn, NY, we couldn't help but think of the old line attributed to Winston Churchill: "Americans can always be trusted to do the right thing, once all other possibilities have been exhausted."

We say that because the voters of Tennessee have been pretty willing to embrace racists and fascists in recent years, up to and including giving two big victories to Donald Trump in 2016 (60% to 34%) and 2020 (61% to 37%). But, just maybe, some Tennessee voters are growing weary of such behavior. We refer specifically to the citizens of Franklin, who just held a mayoral election, and decided that Gabrielle Hanson was not their cup of tea.

What was the problem with Hanson, exactly? Well, she's got quite a few skeletons in the closet. Back in the 1990s, she was convicted of promoting prostitution. Last year, her husband ran for Congress, and his candidate paperwork described the family as being residents of Chicago. Reporters looked into it, and it turns out Chicago is not in Tennessee. Gabrielle Hanson also told numerous outright falsehoods during the campaign, most obviously posting a photo of "supporters" to her website. When the women in the photo were tracked down, they said they had no idea who Hanson is.

The thing that really got a lot of attention, however, was Hanson's choice of bodyguards. She hired from the Tennessee Active Club (TAC), which just so happens to be overtly antisemitic and white supremacist. When Hanson was asked if she was aware of her bodyguards' leanings, as well as the fact that many of the attendees at her events were white supremacists, she said she had no control over such things, that she was not interested in denouncing anyone, and that she just asked such individuals to avoid being disruptive. They apparently did not get the message, as members of TAC vandalized the offices of reporters who were covering the campaign. Hanson refused to condemn this behavior as well.

When Election Day came, Hanson was absolutely obliterated, with Mayor Ken Moore claiming 80% of the vote to Hanson's 20%. It is true that Moore is an incumbent, and that both candidates in the "nonpartisan" election are known to be Republicans. So, Moore probably would have won even if Hanson wasn't a nutter, and having his name on the ballot allowed Republican voters to avoid having to swallow hard and vote Democratic. That said, normal turnout in mayoral elections in Franklin is about 3,500, and this election drew almost five times that.

In short, it's a clear rejection of the sorts of extremism represented by the far right of the modern-day GOP. And the result gives some small glimmer of hope that the voters are out there to maybe one day return the Republican Party to a normal, center-right organization, as opposed to what it's become.

Have a good weekend, all! (Z)

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