I virtually never write and publish a post on the same day; throughout the day I’ll almost certainly think of notions or phrases that I would have added or subtracted if they had occurred to me now; but I woke up thinking what follows, and you’ll get the gist: a recommendation for a debate closing for President Joe Biden that you almost certainly won’t see tonight, but which if counseling the President I would advise him to offer:
“To all Americans, no matter which one of us – or another – you favor, thank you for tuning in tonight. The differences between us are stark. This may be the most important election in our nation’s history. But our polling tells us – I bet theirs does too – that the majority of you don’t want either of us for the next four years. You’d prefer someone new, to lead us through the challenges that face us now and into the next generation. Donald Trump and I are both here tonight because of his lie. If he had admitted he lost the 2020 election, he would have faded away, and the Republicans would be nominating somebody new this year. If he had faded away, I wouldn’t have run again, and Democrats would be offering a new candidate for our future. You’d be deciding which new leader you preferred. But that didn’t happen. Donald Trump lied to save himself, to keep himself relevant, and he tricked a large share of our people into believing it. So here we are.
I ran in 2020 to defend against the threat I saw that Donald Trump presents to democracy, and since he hasn’t faded away, my job isn’t done. So we’re both here. If re-elected, I pledge to you tonight to maintain a steady course for our democracy, to steward our ship for the next four years until we have new people standing before us, offering their visions for our future, for you to decide our course. I am proud of my record – proud of our jobs growth, proud of our infrastructure package, proud of the way we have defended democracy against Putin. We certainly have a lot of challenges in front of us, but America is the envy of the world. We are the strongest blend of strength, freedom, and stability that the world has ever seen, and I pledge to keep it that way for the next four years. If I didn’t think I was up to the job, my love for this country would make me step aside. But I want my main legacy to be that I preserved our democracy so that when this second term is done, we will be able to do what America has always been able to do – safely turn the page and follow our next generation of leadership. Then, it will be up to you.
As all are aware, President Joe Biden and former President Donald Trump hold the first of their two scheduled debates this Thursday. The Biden Team orchestrated the early date for the first debate – neither man has been formally nominated for president by his party – apparently to combat the notion ceaselessly propagated by the alt-right that 81-year old Mr. Biden lacks the mental acuity and/or stamina to serve a second term. It may be betting Mr. Biden’s electoral prospects on the expectation that Mr. Biden will reassure the public as President Ronald Reagan did in his debate with former Vice President Walter Mondale in 1984 [Mr. Mondale stated after the election that even as he laughed at Mr. Reagan’s (obviously planned) quip, he knew he was going to lose], and not blunder as President Gerald Ford did in his debate against former GA Gov. Jimmy Carter in 1976 (a gaffe that seemed to confirm the wildly incorrect impression that Mr. Ford was dumb, that may have been the difference with undecided voters in what was a very close 1976 result).
While I didn’t necessarily fault the Biden Campaign’s choice to use an early debate to arrest voter concerns about Mr. Biden’s readiness for a second term at the time the decision was made, I wonder whether the Biden Team would make the same call today, since recent polls seem to be trending in Mr. Biden’s behalf. That said, ever since they were announced I have had deep misgivings about some of the debate rules that the Biden Camp demanded and the Trump Team has agreed to: primarily, that there will be no audience and each candidate’s microphone will be off when it is not his turn to speak. In my view, these rules – which are designed to prevent Mr. Trump from overwhelming the proceeding with bombast (he gets revved up by a crowd, and always attempts to shout down/over anyone who disagrees with him) — are counterproductive to what I believe should be a Biden Team goal on a par with proving the President’s readiness: show that Mr. Trump is crazy and dangerous. Remember that the key audience here is not policy-wonk Democrats or die-hard MAGAs; it is that slim slice of the electorate in the swing states who may have genuine concerns about Mr. Biden’s continued readiness and may have forgotten how truly outrageous and nutty – as well as authoritarian – Mr. Trump was while in office. In one-on-one interviews, even when spouting falsehood after falsehood – lies which are not always apparent to those who are not immersed in the nuances of public affairs – the former president can come across as moderate – normal. Mr. Trump says crazy and dangerous things – i.e., shows his true colors — when he gets revved up (as at his rallies). I would submit that Biden Team should have had confidence that its man could execute under the barrage – he is, after all, the President of the United States – while giving Mr. Trump every chance to go off the rails. Recall that Mr. Trump’s performance at one of the men’s 2020 debates was so excessive that afterward, CNN Commentator Dana Bash – who will be one of the moderators of this week’s debate – actually described Mr. Trump’s performance, on-air, as a “shit show.” (I feel that if she could say it there, I can repeat it here. 😉 .)
When I expressed these reservations to two close friends a couple of weeks ago, they dismissed my concerns and voiced strong agreement with the course the Biden Team has taken. You may agree with them. If so – and even if not – the die is cast, so let’s hope they’re right.
To me, equally unnerving were the sentiments I understand were recently expressed by Biden Campaign Chief Jen O’Malley Dillon:
“Joe Biden is … focused on delivering for the American people and him standing on the stage next to Donald Trump is the best way to show that. Do I think rules are going to protect the American people from whatever Donald Trump might say? Of course not. But I do think, you know, having this be serious is what the American people want. … This is a great opportunity earlier in the cycle than ever before for the two of them to stand together and for [Mr. Biden] to talk about what he’s done and what he’s fighting for. And you know not having an audience,not having distractions, not having to worry about COVID,I think all these things are better for the American people and Joe Biden is going to have a great debate. [Emphasis Added]”
Pardon me while I rant, talk in this paragraph as I would if you and I were enjoying refreshers in a local pub. This is so much clueless drivel that it makes me want to go to the nearest restroom and throw up. I seriously wonder whether Ms. O’Malley Dillon hasn’t wandered in from Hillary Clinton’s campaign debacle. Mr. Biden didn’t win in 2020 because he was Joe Biden; he won – barely — because he wasn’t Donald Trump. Democrats seem to continue to think that one wins by explaining the good things one has done. All the people who think Mr. Biden is doing a good job – of which I am one – are already going to vote for him, and he’s only managing a dead heat. If Mr. Biden was running against Nikki Haley, he’d be doing the same job he’s doing and his poll numbers would have to look up to see the Titanic. One wins – a concept that Republicans not only grasp, but excel at – by scaring voters about the other guy. Certainly, when Mr. Biden is responding to a direct question from a moderator, he should, as Ms. O’Malley Dillon suggested, “talk about what he’s done and what he’s fighting for.” At the same time, when responding to some false or absurd declaration by Mr. Trump, I’d advise the President to … stick and move.
A very brief clip from one of America’s great film series 😉 :
How does this apply to a political debate? Never forgetting that the fight judges are that narrow sliver of undecided voters in swing states, it means: Don’t use your whole response time. Quick salvos – you stick him — and move (i.e., shut up). You make your point and look sharp at the same time. Don’t rely on the moderators to fact check. Mr. Trump is predictable – you know exactly how he’s going to come at you – just like Joe Frazier in his epic bouts with Muhammad Ali (I feel a little bad about this analogy; by all accounts, Mr. Frazier was a good guy 🙂 ).
That he won the last election.
“He’s a whiner. When he loses, he lies. He lost over 60 election court challenges, many decided by Republican judges. He has actually said we should terminate the Constitution because of his lie. Think about that – someone who swore to protect and defend the Constitution who puts himself above the Constitution. Do you want a president who’s either lying or delusional?”
That he didn’t instigate the insurrection.
“He calls those that stormed the Capitol ‘hostages,’ and promises to pardon them. [X#] of those now in jail said during their sentencing hearings that they only went to the Capitol because he told them to go.”
My felony conviction was a miscarriage of justice – the Biden Justice Department was out to get me, and the New York jury was biased.
“My son was just convicted on charges brought by the same Justice Department. Does it break my heart? You bet. Do I support my son? You bet. But we live under a system of laws. I believe that our people who sit on juries – just ordinary citizens – take their responsibility seriously no matter where they live, and do their best to do their duty.”
Any reference that the President lacks either the mental or physical stamina to do the job.
If mental: “Let our staffs agree on a mental acuity test, and let’s both take it, and as long as you agree that the results will be published, let’s see who does better.”
If physical: “Let’s go for a jog, and see who jogs further. Or let’s hike a hill, and see who goes higher. Or let’s ride bikes together, and see who goes further. Let’s do it tomorrow. I’m ready.”
Things were so good during my years as president.
“40 of the 44 Cabinet officials are refusing to support him for President. [I’ve seen this number bandied about; it would obviously have to be confirmed before the President could use it.] Does that sound like they think he did a good job?”
Immigration is a mess.
“We had a bipartisan immigration bill in the Senate that I would have signed that was negotiated by a very conservative Republican Senator. The two sides tried to work together – which is what our people want us to do. It died because he killed it, wanted the campaign issue. ‘Blame me,’ he said. Well, blame him. It’s his fault.”
I’ll end the Ukraine war in one day.
“His idea of ending the Ukraine war is to give Putin what he wants, cut off our aid to Ukraine. He always kowtows to Putin. He has said he trusts Putin more than our intelligence services. Think about that. He’s said that he won’t necessarily defend a NATO nation if it’s attacked. Think about that. Freedom is about more than money.”
Abortion: Leave it to the states.
“This isn’t about states’ rights, this is about women’s reproductive rights. In 2016, he said he’d appoint Supreme Court Justices that would overturn Roe v. Wade, and he did. The rollback of women’s rights is in full swing. Some state are even tampering with IVF. If he returns to office, he’ll appoint even more judges that will destroy personal rights. You know it and I know it.”
Biden is weak on Israel – delaying arms shipments.
“I was in the Senate supporting Israel when Donald was facing his first prosecutions in New York for refusing to rent to African Americans. We will always defend Israel’s right to exist. We have sent them literally tons of munitions. But we have to be aware of civilian casualties. Thousands of innocents on both sides – Jewish and Palestinian – have lost their lives. The bombs that Israel is complaining about each weigh 2,000 pounds – a ton. Weapons like that kill indiscriminately. We are not prepared to go there.”
Medicare and Social Security
[No matter what Mr. Trump says – either that he’ll protect them or – as he has said in the past – the programs need to be modified]: “He has said in the past that he intends to cut Social Security and Medicare. You know the Republicans want to cut them – they’ve been after these programs ever since they were enacted. We need to continue to negotiate for lower drug prices – which Republicans oppose — but I will not support any cuts to Social Security and Medicare benefits, and veto any that reach my desk. We need to work on the deficit – but it’s only been made worse by the Republican tax cuts that have overwhelmingly favored rich Republican donors.”
You get the idea. Mr. Trump has said and done so many hateful or outright dumb things over so many years, it’s easy to come up with short, punchy answers on Mr. Trump’s mishandling of COVID, his attempt to repeal the Affordable Care Act, and a myriad of other issues. I think the toughest challenge for Mr. Biden will be his response to criticisms of his handling of the economy; all that read these pages are well aware that I’m not an economist, but the nagging inflation we feel is seemingly part hangover from the last COVID relief package that ensured that the U.S. did not drop into recession, and the fact that wages have risen, providing Americans more spending money. It is human nature for voters to not appreciate what didn’t happen and to take their higher wages for granted while focusing on what they see every day — higher prices. Even so, the Biden Team has had a month to think about what the President will say, and with all the favorable statistics at its disposal – great jobs numbers, indisputably dropping inflation — presumably will craft a response.
I have the lingering concern that, as former Obama Campaign Manager Jim Messina stated on MSNBC’s Morning Joe on June 25, Mr. Trump will have the easier time of it – he just has to look sane. Even so, unless Mr. Biden makes a Ford-like gaffe (and again, I feel sorry making this analogy, since Mr. Ford was indeed a bright and good guy), there is at least a significant possibility that the state of the contest is likely to be in the same place tomorrow morning as it is today.
[Since both President Joe Biden and his son, Hunter, will be referred to in this note, to keep the references as straightforward as possible – and since I cling to honorifics; my soul won’t let me resort to “Joe” and “Hunter” 🙂 – the President will be referred to as “Pr. Biden” and Hunter Biden will be referred to as, “Mr. Biden.”]
As all are aware, Hunter Biden was convicted on June 11 of felonies for indicating on a mandatory gun-purchase form that he was not illegally using or addicted to drugs.
Mr. Biden has been demonized by MAGAs and the alt-right media pretty much ever since his father entered the 2020 presidential campaign, while progressives and the liberal media have attempted to paint him as the victim of addiction to drugs like millions of other Americans — an addiction which may have been spawned by a series of circumstances including surviving an automobile accident that killed his mother and sister, and having grown up in the shadow of his father and his extremely-accomplished (and now deceased) older brother. It is apparently undisputed that Mr. Biden is now “clean.”
Those of us of Christian faith have been admonished not to judge, lest we be judged (Matthew 7:1), but while Mr. Biden isn’t the black hat painted by the alt-right, I think it’s fair to say that his behavior throughout much of his life might be considered less than saintly. One is still responsible for one’s own life choices and mistakes. I commented in a post some time ago that if the then-current Wikipedia account of Mr. Biden was at all accurate, his primary profession for most of his adult life had arguably been exploiting (albeit legally) his father’s name and position. It is hard not to consider a Ukrainian company’s selection of Mr. Biden as a board member while his father was Vice President of the United States not only a blatant attempt by Ukrainian interests to curry favor with the United States but a shameless (although legal) willingness by Mr. Biden to leverage his father’s standing for his own benefit. As for Mr. Biden’s guilt on the felony gun-related charges themselves: I’ve seen no reports questioning the jury’s diligence or impartiality. Further, I was struck by one pundit’s comment that if Mr. Biden truly accepted that he was an addict at the time he completed the form, he was indeed lying because he would have understood that, even if then “clean,” he was addicted – he could be a recovering addict, but he would never not be addicted to drugs. The observation resonated with me because of my own father’s struggles with alcohol. During the last years of his life, after achieving sobriety, he was a passionate, fervent, emphatic, vehement, vociferous – you pick the adjective, but you get the idea 😉 – member of Alcoholics Anonymous and mentor for other alcoholics within our community; during those years, he always and only considered himself a “recovering alcoholic,” and would regularly say, “A drunk needs to understand he’s a drunk whether he’s drinking or not.”
No matter how one looks at Mr. Biden’s situation from a human standpoint, I would suggest – and early returns indicate that MAGAs and the alt-right media recognize – that as emotionally difficult as Mr. Biden’s conviction is for the Biden family, the conviction is a political plus for his father with the jury that counts – swing voters in swing states:
It neutralizes the argument that juries can’t be impartial. While former President Donald Trump continues to bemoan the fact that his trial took place in New York City, a jurisdiction where he has few supporters, Mr. Biden’s trial took place in Delaware, a jurisdiction strongly supportive of Pr. Biden; Mr. Biden was nonetheless convicted.
It obviously raises doubt in any reasonable mind about Mr. Trump’s assertion that Pr. Biden has “weaponized” the U.S. Department of Justice.
It cannot be gainsaid that of these two men recently found guilty of felonies, only one is seeking political office. There is nothing about Mr. Biden’s conviction that will limit Democrats’ opportunity to cite Mr. Trump’s conviction as a reason (among many) why he is unfit for the presidency.
It perhaps lays a trap for Mr. Trump in the upcoming presidential debate. If Mr. Trump is called upon to confirm his oft-repeated promise to pardon the January 6th rioters if he wins in November, while Pr. Biden repeats his pledge to NOT pardon his son no matter the outcome of the election, Mr. Trump is going to look bad. Really bad. (Since this is such a likely trap for the former president, I’m sure his debate advisors are working on it.)
Having seen what addiction can do to a person and his/her family, I have sympathy for Mr. Biden. While he has unquestionably benefited in some ways from being a member of the President’s family, he has clearly faced unusual challenges because of it as well. To MAGAs, he has all along simply been a pawn, a manner to get at Pr. Biden. But I would submit – although as a father, I would understand why Pr. Biden might angrily reject this notion – that Mr. Biden’s plight has now turned him into a chip for the Democrats. If Mr. Biden’s ordeal – it’s hard to believe that he will not be incarcerated for his conviction – persuades even a small segment of voters in pivotal states to vote for Pr. Biden because they either feel sympathy for an anguished father or view Pr. Biden’s refusal to meddle in his son’s criminal trials as proof of the President’s allegiance to the rule of law, then I would submit that Mr. Biden’s hardship might well be viewed as a helpful if unintended sacrifice in the political war being waged to save our democracy.
Recent events warranted postscripts to earlier posts:
First: In “As Mr. Trump Faces a Jury of His Peers,” I referred to a study I heard of while in law school — about which I observed that I had no idea whether it was thereafter “debunked or confirmed” — that indicated that jurors actually make up their minds about a case based upon opposing counsels’ respective opening statements. One of the most scholarly readers of these pages soon commented:
“I found a 2022 study that debunks the notion that jurors’ minds are already made up after opening statements.” She provided the following link:
Second: This serves as a postscript for any of several posts I have entered in these pages over the years in which I expressed my admiration for the political athleticism of former U.S. U.N. Amb. and SC Gov. Nikki Haley. As all who care are aware, Ms. Haley, having suspended her campaign in the face of the reality that Mr. Trump had secured the nomination, recently announced that she would support Mr. Trump this November. Although a number of pundits lamented Ms. Haley’s capitulation, expressing the notion that she might have been well positioned for the 2028 Republican nomination if Mr. Trump lost this fall, I would suggest that Ms. Haley’s declaration of support for Mr. Trump constituted an acknowledgement that her relationship with a significant-enough segment of the Republican (MAGA) hierarchy is so tattered that her political career is over, so she chose to pull a (former Speaker of the U.S. House of Representatives Paul) Ryan – nestle back into that part of Republican cultural cocoon where she was still welcome while she still could. (If her husband, Mr. Haley, is still in the armed services, I would recommend that if Mr. Trump wins this November, he get OUT of the service as soon thereafter as he can, lest he find himself suddenly stationed in the least secure foreign base we have.)
Finally: in “Republicans and the Lesson of Ernst and Leon” last March, I commented, “[Mr. Trump] does not consider himself a Republican; he considers himself a MAGA. The distinction is crucial. Those who have shown evident distaste for Mr. Trump but have nonetheless pledged to support him out of Republican loyalty … are fools. … [They] are choosing to ignore the glaringly obvious fact that Mr. Trump … accords no value to anyone being a loyal Republican; he’s dedicated only to himself. [Emphasis in Original]”
On May 28, Mr. Trump endorsed a Republican challenging U.S. VA Rep. Bob Good — the Chairman of the U.S. House of Representatives Freedom Caucus, for pity’s sake – for the Republican nomination for Virginia’s 5th Congressional District seat. Mr. Good’s transgression? Early in the Republican presidential nomination contest, he endorsed FL Gov. Ron DeSantis. Mr. Good has since striven to return to the fold, endorsing Mr. Trump and debasing himself by being one of the lickspittles that spoke on Mr. Trump’s behalf in front of the Manhattan courthouse during Mr. Trump’s felony trial.
Wasn’t enough. Let’s let Mr. Trump speak for himself, in excerpts from the Truth Social post in which he endorsed Mr. Good’s Republican challenger:
“Bob Good is BAD FOR VIRGINIA, AND BAD FOR THE USA. He turned his back on our incredible movement, and was constantly attacking and fighting me until recently, when he gave a warm and ‘loving’ Endorsement – But really, it was too late. The damage had been done! I just want to MAKEAMERICA GREAT AGAIN …. John McGuire has my Complete and Total Endorsement! MAGA2024.” [Capitalization and spacing errors Mr. Trump’s]
The contest between Messrs. Good and McGuire will be decided today by voters of Virginia’s 5th Congressional District.
Note that there was no indication in Mr. Trump’s post that Messrs. Good and McGuire are actually vying for the Republican nomination, but there were two references to the MAGA movement. I would suggest that the political futures of many of the Republicans who have shown themselves to be less than cultishly loyal to Mr. Trump will truly be brighter if President Biden is reelected. Take Mr. DeSantis. Despite the fact that the Florida Governor endorsed Mr. Trump for president – after disparaging those that “kiss the ring” before he himself kissed the ring — can Mr. DeSantis doubt that if Mr. Trump is re-elected, the then-president will endorse a challenger to Mr. DeSantis if the Florida Governor seeks reelection in 2026? Mr. Trump does not forgive or forget. Those Republicans across the country who have exhibited less than complete affinity for Mr. Trump but will nonetheless genuinely aid his reelection effort out of party loyalty are ignoring the handwriting on the wall. They lack the sense God gave a goose.
I suspect that given the insult to judicial ethics personified by U.S. Supreme Court Clarence Thomas, some who follow these pages have been surprised that I have never expounded on Justice Thomas’ various peccadillos and the untoward partisan machinations of Justice Thomas’ wife, Ginni. Frankly, I felt that dealing with the Thomases would be an unfair imposition on your time and eyesight; they are who they are, and you know it. That said, the undisputed reports that U.S. Supreme Court Justice Samuel Alito’s wife, Martha-Ann Alito, hung an upside-down flag – a symbol of the Trump Cult’s entirely baseless “Stop the Steal” movement – at the Alitos’ residence just days after the January 6, 2021, insurrection, brings Justices Thomas’ and Alito’s trampling of judicial propriety back to the fore.
As all who care are aware, Justice Alito, following the publication of reports of the flag waving incident, in May rejected Congressional Democrats’ demands that he recuse himself from a case now pending before the Supreme Court in which the Court will decide whether former President Donald Trump enjoys immunity from prosecution for any or all of his activities in the attempt to overturn the result of the 2020 presidential election. In his response to Congressional Democrats, Mr. Alito declared that he and his wife jointly own their home, stated that her actions arose from a heated neighborhood dispute, and asserted that Ms. Alito was flying the flag against his wishes – indeed, that “[A]s soon as [he] saw [the flag, he] asked [his] wife to take it down, but for several days, she refused.” The Justice actually cited as part of his rationale for not recusing – this is enough to make one blink — the Court’s Code of Conduct section which provides, “A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” A link to Mr. Alito’s response to U.S. Democratic Senators is set forth herein (his response to House Democrats closely mirrored his response to the Senators).
Clearly, the Alitos maintain dual citizenship; they are both Americans and citizens of the Land of Oz, where one does not look behind the curtain.
To state the obvious: Justice Alito’s response managed to make him look both caddish – blame the wife – and wussy – that it took him several days to persuade her to take the flag down. [I know; every married person reading these pages can recall arguments with his/her spouse that continued unresolved for several days. That said, Mr. Alito is a U.S. Supreme Court Justice; it is dumbfounding that it took him that long to get Ms. Alito to see that her actions (assuming that they were indeed her actions) were making him look both traitorous and incompetent (since of all people, a U.S. Supreme Court Justice had to understand that inasmuch as Mr. Trump had lost 60 or more lawsuits challenging the legitimacy of vote counts favoring President Joe Biden in pivotal Electoral College states, there was no “Steal”; Mr. Biden had won, and Mr. Trump had lost)].
Except for the very rare couple that maintain a loving relationship despite the fact that it is clear that one of the two is markedly liberal and the other is decidedly conservative, I reject the notion that the political activity of a judge’s spouse should not be imputed to the judge. Who did or said what in the neighborhood dustup that allegedly so exercised Ms. Alito is irrelevant (although I understand that the neighbor is claiming that the disagreement that Mr. Alito described in his response didn’t occur in January, 2021 – i.e., at or about the time Ms. Alito flew the flag — but in February, which, if true, completely undercuts any suggestion that Ms. Alito was simply overreacting to previous unpleasantness). In the federal system – where judges are appointed, rather than elected — one should not be a judge if one’s spouse cannot refrain from political activity; one whose spouse is a judge should refrain from political activity. The Alitos’ behavior is an execrable betrayal of what those of us who embrace the law consider the secular calling closest to the sacred.
But don’t take my word for it.
“Supreme Court Justice John Harlan, a conservative Eisenhower appointee …. was the quintessential patrician, generally unflappable and unfailingly courteous. … Harlan viewed the law as almost a religious calling. … Harlan had been the ‘conservative conscience’ of the Warren Court, a frequent dissenter. He advocated restraint rather than activism. … Always concerned that the slightest gesture or contact with the executive [branch] might be thought to imply endorsement, Harlan declined to vote in presidential elections (or any others) and never applauded at the President’s State of the Union address. In 1967, Harlan refused to continue a tradition in which the Justices in top hats and tails annually paid their respects to the President at the White House at the opening of the Court’s term. … Harlan persuaded the others to abandon the practice of calling on the President, lest [President Lyndon] Johnson try to use them to legitimize his [Vietnam] war effort ….”
Bob Woodward and Scott Armstrong; The Brethren
“It is difficult to speak about the judges, for it behooves us all to treat with the utmost respect the high office of judge; and our judges as a whole are brave and upright men. But there is a need that those that go wrong should not be allowed to feel that there is no condemnation for their wrongdoing. … [S]uch a man performs an even worse service to the body politic than the Legislator or the Executive who goes wrong. In no way can respect for the courts be so quickly undermined as by teaching the public through the action of a judge himself that there is reason for the loss of such respect.”
Theodore Roosevelt; The Autobiography of Theodore Roosevelt
“There is a vague popular belief that lawyers are necessarily dishonest. … Let no young man, choosing the law for a calling, for a moment yield to this popular belief. Resolve to be honest at all events; and if, in your own judgment, you cannot be an honest lawyer … [c]hoose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.”
“[The] process of election affords a moral certainty that the office of President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. … [I]t will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. [Emphasis Added]”
Alexander Hamilton, under the pseudonym, “Publius”; Federalist No. 68
Put aside the ten percent of our (or any nation’s) population who are either crazy or will, tacitly if not explicitly, acknowledge that they are governed by the base instincts to which former President Donald Trump appeals. Everyone that reads these pages is old enough to remember that before Mr. Trump rode down his escalator – less than ten years ago – it was unthinkable – unthinkable! – that a convicted felon would remain a serious candidate for any high federal office. Given Mr. Trump’s conviction yesterday on all 34 felony counts brought against him by the New York City Manhattan District Attorney, and notwithstanding the incessant attempt to delegitimize the verdict that has commenced in the alt-right propaganda silo and will continue through Election Day, it is now up to us as Americans – primarily up to the approximately 35% of our citizens, neither crazy nor consciously willing to succumb to their baser impulses, who up to now have indicated a willingness to vote for the former president this November — to decide:
Do I believe in our judicial system, that any outcome arising from the orderly administration of justice is paramount to any respective substantive policy preferences I may have, and its result should be heeded and respected?
Do I believe that my fellow American citizens – although they may reside in a very different environment from mine, and have markedly different perspectives on most issues facing our nation than I do – are capable of understanding their solemn responsibility, soberly weighing the evidence placed before them, and rendering an impartial verdict in a criminal trial?
For those of us who have family and friends who support Mr. Trump and hereafter question the impartiality of the New York City jury in our presence, I offer this as a possible response (an obvious trap, but I would submit nonetheless an above-the-belt way to make an important point): “If Joe Biden was being criminally tried in [your home town], and you were on the jury, would you be able to put aside your dislike of him and impartially look at the evidence?” If predictably your relative or friend replies in the affirmative — and I believe that the vast majority of our citizens of all political stripes would indeed take their duty seriously — the conclusion is easy: “If you think you could, why don’t you think those New Yorkers did?”
Whether a convicted felon wins the presidency of the United States this fall will say more about us as a people than it will about Mr. Trump. It is we, not Mr. Trump, who will determine whether, in President Abraham Lincoln’s words at Gettysburg, our “government of the people, by the people, for the people, shall not perish from the earth.”
Today prosecution and defense counsel will make their respective closing arguments to the jury in former President Donald Trump’s “hush money” trial. Judge Juan Merchan will then instruct the jurors on the law applicable to the charges that have been levied against Mr. Trump and then dismiss the panel to deliberate and reach a verdict.
In every jury trial, among the instructions that the Judge includes is the admonition that the jurors must render their verdict based upon the evidence admitted into the trial record and not upon the competing attorneys’ opening statements and closing arguments, which are not evidence. Yet, as various legal media pundits following the trial have numbingly obsessed over the last several weeks about the potential impact of each piece of evidence upon the jury, I’ve been reminded of a study released at about the time I attended law school in the 1970s – I have no idea whether it was thereafter debunked or confirmed – that indicated that jurors actually make up their minds about a case based upon opposing counsels’ respective opening statements.
Since Jurors are also admonished by the Court not to speak about a case, even among themselves, until all the evidence is in, they themselves probably have no idea what their verdict will be. Even so, I wouldn’t be a bit surprised – although we’ll never know – if Mr. Trump’s fate hasn’t already been determined.
That said, I was intrigued by an observation made by Attorney Ethan Greenberg in a May 20th Wall Street Journal essay regarding whether the Court would include a jury instruction about “Lesser Included Offenses” (“LIOs”) in Mr. Trump’s case. As all who care are aware, the charges brought against Mr. Trump for falsification of business records are classified as misdemeanors under New York state law. Such offenses are only deemed felonies if the jury determines not only that Mr. Trump knowingly falsified his business records, but did so to hide another offense – in this case, a violation of campaign finance laws. Mr. Greenberg noted in his piece that if no LIO instruction is given, it will be all or nothing for the prosecution and the defense – Mr. Trump will (unless there is a hung jury) either be acquitted or convicted of a felony. However, if either side requests (or the Court itself elects to include) an LIO instruction, the jury will have an “off ramp” – it will have the ability to find Mr. Trump guilty of the misdemeanor of business record falsification without finding him guilty of the attendant felony of violating campaign finance law [i.e., if it chooses to conclude, for example, that Mr. Trump falsified his business records to hide his payment to Adult Film Actress Stephanie Clifford (a/k/a “Stormy Daniels”) for a non-criminal reason, such as avoiding embarrassment to Ms. Melania Trump]. It takes little discernment to surmise that an LIO instruction increases the odds that the prosecution will secure at least a misdemeanor conviction and avoid an outright acquittal – the latter which Mr. Greenberg called “a prosecutorial disaster” — but likewise increases the odds that the defense will avoid a felony conviction, thus enabling Mr. Trump to proclaim in the court of public opinion – as he did after he avoided being convicted in his second Senate impeachment trial despite the fact that a majority of the Senators had indeed voted to convict him — that the charges against him were a lot of hullaballoo about nothing. A misdemeanor conviction would still potentially involve a prison sentence, but given the certainty that Mr. Trump will appeal any conviction, the prospect of jail time is probably something that the former president will be willing to worry about later. As this is typed, at least I am not aware whether Mr. Trump’s jury will be given an LIO instruction or not.
(To state the obvious: all of these Trump Toadies who were brought down to sit in the courtroom and then spew toxic waste outside afterward weren’t there to intimidate the jury – it takes a lot more than that bunch to intimidate a New Yorker – but to start the delegitimization of any ultimate guilty verdict in the alt-right media silo.)
As to how it will go: I have had a number of friends express concern to me that although they believe that Mr. Trump is clearly guilty, the trial is so fraught with competing emotions that he will – as some believe was the case when O.J. Simpson was tried for the murder of his wife – ultimately be acquitted. The requirement that a jury find evidence of guilt “beyond a reasonable doubt” in order to convict a criminal defendant is, and should be, a very high standard of proof; but prosecutors regularly achieve it. On more than one occasion, I heard the senior partner in the firm I joined after law school – a renowned trial lawyer, son of a Wisconsin Supreme Court Justice, Fellow of the American College of Trial Lawyers, then a past president of the Wisconsin Bar Association, now decades-deceased — observe, “Every experienced trial lawyer will tell you that he’s had a case that he won that he should have lost, and a case that he lost that he should have won.”
We will celebrate eleven Federal Holidays during 2024. As we are on the cusp of the Memorial Day Weekend – the unofficial start of summer for at least those of us who live in the northern reaches of the country – ponder whether, of the eleven, Memorial Day is not the most significant.
All of our Holidays have some enduring significance (or, at least virtually all; I suspect that we might take Columbus Day back if we could 😉 ); some are obviously vested with deep meaning.
We observe the birthdays of three great Americans: those of Presidents George Washington and Abraham Lincoln on the same day in February and that of Rev. Martin Luther King, Jr., in January; we recognize service on Labor Day and Veterans’ Day; and we acknowledge the nation’s tragic legacy of slavery and racism on Juneteenth National Independence Day.
New Year’s Day and Christmas Day each fit in their own conceptual categories. New Year’s seems a required bookkeeping entry; not unimportant as such, but each new year is going to come around whether our nation continues or not. As for Christmas – one of the holiest days of the year for Christians like me – one might nonetheless question its inclusion as a national holiday in a land with citizens of many faiths and no faith, governed by a Constitution that provides that its legislature shall make no law respecting an establishment of religion.
Thanksgiving Day is probably my favorite national holiday, and celebrates one of the most worthy of human emotions: gratitude for the gifts one and one’s family and friends have received in this life. That said, the gift of freedom that we enjoy and for which we give thanks every November had to be earned.
Finally, what about the Fourth of July? The date of our nation’s founding is an understandably hallowed day for all Americans. Had the Founding Fathers not declared our independence, we’d have no country; the principle of equality upon which our nation is based would never have come into being. But I would suggest that there are 20 guys in some corner of the world declaring independence from something or other as you read this who, like thousands before them, will never be heard of or from again. The literal establishment of a nation is, of course, essential to its being; but I would submit that it is the subsequent offering of those who sacrifice to sustain and replenish it that is most worthy of our honor, tribute, and recognition.
Whether or not you agree with my characterization of the relative importance of our Federal Holidays, as we celebrate this Memorial Day, may we each give a moment to remember the sacrifices of the men and women we have marked this day to honor: those who throughout our history have sacrificed to preserve and protect our freedom – both those who have given, in the words of Mr. Lincoln at Gettysburg, “the last full measure of devotion,” and also those who have ever after borne the physical and emotional scars of their sacrifice.
“The House of Representatives shall chuse [sic] their [sic] Speaker ….”
Article I, Section 2; The Constitution of the United States of America
“I couldn’t live with myself if I did a deal with the Democrats. … If you can’t sustain being Speaker by your own majority, should you sustain it? In my question, no. So, either I’m going to win Speaker and be the leader with the majority. Otherwise, it’s not right to be Speaker.” [Emphasis Added]
Former Republican Speaker of the U.S. House of Representatives Kevin McCarthy, referring to the fact that MAGA U.S. Speaker of the House Mike Johnson sought and required votes of Democratic representatives to maintain his Speakership following a Motion to Vacate the Chair by MAGA U.S. GA Rep. Marjorie Taylor Greene; Politico’s Power Play Podcast, May 9, 2024.
I know: you thought we were done with Mr. McCarthy, who resigned from the House of Representatives after being deposed as Speaker by a MAGA cabal nominally calling themselves Republicans. Mr. McCarthy has been previously dismissed in these pages as an unprincipled, gutless lickspittle. However, on the off chance that any of the relatively younger readers of these pages might be misled by a point inherent in Mr. McCarthy’s above-quoted remarks, this is to point out that even aside from his lack of principles and courage – and in addition to his evident hypocrisy, since it has been widely reported that he solicited Democratic House support in his unsuccessful bid to save his Speakership — Mr. McCarthy, despite the hallowed office he once held, lacks a fundamental understanding of our Constitution and the sentiments of those who developed it.
The word, “party,” never appears in the Constitution as a description of an organization of persons with like-minded policy and political goals. While the architects of our Constitution obviously understood that persons of like political philosophies would tend to congregate, they detested political parties per se. A number of the essays in The Federalist – commonly respectively referred to as the “Papers,” written by Alexander Hamilton, James Madison, and John Jay under the pen name, “Publius” – excoriate political parties. Mr. Hamilton wrote in Federalist No. 1, “… nothing could be more ill-judged than the intolerant spirit which has at all times characterized political parties.” The notion that a potential Speaker of the House of Representatives was only fit to serve if he (in those days, there were only “hes” 😉 ) could garner enough votes of those members who entirely shared his philosophies was a foreign, and I’m pretty confident abhorrent, concept to the drafters.
Although Mr. McCarthy apparently doesn’t know the Constitution, I will concede that in many respects his comments simply reflect the toxic partisan reality into which we have devolved. I myself would favor a constitutional change effecting an approach diametrically opposite of that which he suggested: that Article I be amended to make it a condition of becoming Speaker than a candidate receive the votes of at least 10% of the representatives who are not members of his/her own party. (Such a change, which would introduce the concept of political party into the Constitution and the practical logistics of which are clearly beyond the purview of this note, is obviously but one of Constitutional changes that readily come to mind.) But as our constitutional structure stands today, a Speaker should be proud rather than ashamed if s/he gathers votes from those of other political philosophies; it’s what the drafters intended.
On to Mr. Johnson. Do I trust him? (Note: this paragraph was written before Mr. Johnson showed up at former President Donald Trump’s “hush money” trial earlier this week. I almost cut it because the observation it contained had become so blatantly obvious, but on final reflection decided to leave it in. 🙂 )
Not at all. Although he is apparently more conciliatory in personal style than your average MAGA, I think it is undisputed that he was one of those very involved in trying to overturn what was a narrow but clear victory by President Joe Biden in 2020, and he maintains a close relationship with former President Donald Trump. Further, if the Republicans achieve a larger majority in the next House, Democrats should have no illusions that he will be sympathetic to their concerns.
On political strategy: Do I agree with House Democrats’ decision to prop up Mr. Johnson’s Speakership, rather than let it dissolve in the House MAGA maelstrom?
Unclear. While keeping the country running requires a functioning Speaker of the House – imagine the chaos if the House of Representatives couldn’t effectively function and Russia invaded a NATO country, China invaded Taiwan, or a Katrina-like hurricane hit our coast this fall – I have considered Republican Congressional dysfunction a political asset for Mr. Biden in the upcoming election. The Democrats’ support of Mr. Johnson has made the Republicans look more normal. Perhaps Democrats feared that if they allowed the failure of a Republican Speaker who is clearly more palatable to them than Mr. McCarthy, they would squander any impression they now hold with voters as being the more responsible of the two parties.
So substantively, was it the right thing to do? Yes. Do I think it was wise politically? Not so much.
Was the first half of this note incredibly geeky? No doubt. Was I pleased that it afforded one more opportunity to express some Noise about Mr. McCarthy? You bet. 😉
We’ve been elsewhere a good bit recently, removed – in some ways, blessedly – from the daily vicissitudes of our time. We find that – like the first view, 50 years ago, of my sainted mother’s soap opera after a semester away at college — little has changed, with the vital exception of the passage of the Ukraine aid package. What has prompted this note regarding the May 7 testimony of Adult Film Star Stephanie Clifford (a/k/a “Stormy Daniels”), in the case the New York City Manhattan District Attorney is now prosecuting against former President Donald Trump for falsification of business records, is the debate I heard between a couple of legal commentators as to whether, from the perspective of trial strategy, the prosecution had been wise or foolish to have Ms. Clifford testify regarding her alleged 2006 sexual encounter with Mr. Trump in such detail that even Presiding Judge Juan Merchan observed that her account might have been unnecessarily … informative. I heard one legal pundit opine that what might be argued to be prosecutorial excess could provide grounds for reversal on appeal if Mr. Trump is ultimately convicted.
In law school, they tell you that they’ll train you to “think like a lawyer.” The debate about trial strategy is the kind of question that intrigues lawyers. Although I understand the misgivings of the lawyer concerned about the potential consequences of prosecutorial overreach, I think he is missing the main point.
First, for reasons I find inexplicable considering all of the other boundaries of social decorum that Mr. Trump has flouted over the last decade, the former president continues to deny his tryst with Ms. Daniels. Of course it occurred. I suspect that even Mr. Trump’s most fervent admirers believe that it happened. If it had not occurred, there is no reason why Mr. Trump – notoriously cheap with his own money – would have yielded to Ms. Clifford’s demands for payment in the last days of the 2016 campaign, or that Mr. Trump’s attorney and “fixer,” Michael Cohen, would have engaged in the machinations he did to get Ms. Clifford her money. The only way the jury might have doubts about whether the episode occurred would be if the prosecution didn’t put Ms. Clifford on the stand.
Second, since Mr. Trump is denying that the episode occurred, having Ms. Clifford provide details of the liaison – among the most benign, that Mr. Trump was then using Old Spice — provided credibility to her account. Having her simply testify, “We had sex,” would have been insufficient. Recall that Monica Lewinsky’s descriptions of her encounters with former President Bill Clinton were buttressed by her description of a certain generally hidden part of Mr. Clinton’s anatomy later independently confirmed. Although some aspects of the tryst Ms. Clifford described have been characterized as “salacious,” I would suggest that no participant in any consensual sexual encounter, required to thereafter describe its particulars in an antiseptic courtroom, could do so without sounding salacious.
An aside: Ms. Clifford was an acknowledged adult film actress when she was invited to have dinner with Mr. Trump in his suite. For anyone that knew Mr. Trump at all: What did she think he intended?
All that said, what I consider the main point: Since it is widely held by Constitutional scholars that Mr. Trump can serve as president even if he is convicted, it doesn’t substantively matter whether the conviction is ultimately overturned on appeal after the 2024 presidential election. However, if the titillating details Ms. Clifford placed in the record make it more likely that the prosecution will secure a conviction that adversely affects the former president’s 2024 presidential prospects, such is all that counts. (There is obviously the concern that if Judge Merchan thought that the prosecution was excessive, perhaps members of the jury think so as well, which could redound to Mr. Trump’s benefit.)
By outward appearances, the trial is wearing Mr. Trump down. At the same time, I continue to have deep concerns about the boost his campaign will receive from either an acquittal or a hung jury.
McCoy's Noise 