We didn’t watch the debate. We had an important conflict, so we recorded it, and I could have watched it by now; but the unanimous assessments of pundits across the political spectrum has made it unnecessary. I see no need to watch a guy for whom I have genuine respect, who I think has done a really good job as president, embarrass himself. Over the last several days, these pages joined hundred of pundits in suggesting what strategies President Joe Biden might use to debate former President Donald Trump. He apparently didn’t effectively execute in any manner. It doesn’t matter why it happened – I understand that the President’s apologists are claiming he had a cold – it happened.
Describing the first – and ultimately, pivotal – 1960 debate between John Kennedy and Richard Nixon, Theodore White wrote over sixty years ago in The Making of the President 1960:
“There was, first and above all, the crude, overwhelming impression that side by side the two seemed evenly matched – and this even matching in the popular imagination was for Kennedy a major victory. [Emphasis Added]”
By all accounts, the “crude, overwhelming impression” left with voters last night was that the 81-year-old President is not up to another four years. It doesn’t matter if, as a number of commentators have indicated, that former President Donald Trump repeatedly lied (since I didn’t see the debate, I need to take that one on faith, but it doesn’t take a lot of faith 😉 ). Mr. Trump will undoubtedly gain some percentage of the heretofore undecided voters dismayed by Mr. Biden’s seeming infirmity, but I am going to guess that Mr. Biden’s greater political wound will be the irretrievable loss of those swing voters who can’t stomach Mr. Trump and were as of last night’s debate willing to be convinced that Mr. Biden could serve another four years – but will now stay home or vote for a third-party candidate. Mr. Biden needed those voters to overcome Mr. Trump’s rock-solid cultish support. I don’t think even a bravura performance by Mr. Biden in the men’s second debate can overcome the disastrous impression left by his first performance (most commentators at the time considered the last three Kennedy-Nixon debates a draw); even if Mr. Biden does well, there will undoubtedly be the lingering suspicion in the minds of some moderate voters that maybe the President is on uppers, as the Trump Camp claims.
Democrats now face two obvious challenges:
First, to convince a sitting President who has already secured sufficient committed delegates to secure the Democratic Party’s presidential nomination to release his delegates, and withdraw from the race.
I am confident that it would be hard for anyone who has experienced the power of the presidency of the United States to accept the notion that s/he needs to voluntarily step aside (particularly if one believes, as I understand the President does, that his beloved son would never have been prosecuted had he chosen to forego a second presidential campaign). However, given the vehement and unanimous view among his supporters about the probable impact of his debate performance, the President needs to do what he’s always done – put the country first.
Second: Whom to nominate in the President’s place: a candidate who can hit the ground running – i.e., who already has some national presence — and defeat Mr. Trump.
It’s clearly way too early to speculate widely on potential replacement Democratic presidential nominees. That said, if one believes, as I do, that in the current environment no Democrat can win the White House unless s/he wins Wisconsin, it cannot be Vice President Kamala Harris. I suspect that in the coming days, Democratic WI Gov. Tony Evers will be telling major national Democratic politicos a version of what I consider the most vital fact about Ms. Harris: not even one of our most progressive friends living in Madison, Wisconsin – perhaps the most progressive enclave between the coasts — thinks that Ms. Harris can beat Mr. Trump in Wisconsin.
At the same time, to win 270 Electoral College votes, Democrats must find a candidate who will secure the enthusiastic support of the African-American voters and other voters of color, whom they cannot afford to alienate through any seeming slight to Ms. Harris.
While this note seems an extremely abrupt, heartless about-face about the President, a cold-blooded dismissal of a good man who has served the American people well for over half a century, what has persuaded me without even watching the debate of Democrats’ need to seek a different nominee was the reaction this morning of MSNBC’s Morning Joe’s decidedly-liberal panel. It was apparent that they had genuine sorrow for a fine gentleman whom they know personally and have real affection for – but now no longer believe can defeat Mr. Trump.
Mr. Trump is still Mr. Trump. He must be defeated.
The only good news for Democrats – a point that I’ve seen made elsewhere – is that because this debate was so early, it’s not too late to make a course correction. Mr. Trump remains beatable in at least the northern swing states – if the Democrats are able to unite – quickly — behind the right candidate. They’d best get to it.
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.
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.”
“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. 😉
Most pundits currently commenting on President Joe Biden’s and former President Donald Trump’s relative campaign finance war chests are indicating that Mr. Biden had a significant advantage over Mr. Trump.
I hope they’re right.
On April 17, the Wall Street Journal reported that the total market value of Mr. Trump’s social media company, Truth Social, had plummeted from $9 billion when it initially started public trading to $3.1 billion as of the edition’s publication. Mr. Trump owns 60% of the company, which means his Truth Social shares – on paper – currently have a value approximating $1.8 billion.
It has been widely noted that Mr. Trump’s stock is locked – i.e., he can’t sell shares – during the first six months following the date of Truth Social’s initial public offering in late March; but that means he can sell shares starting around October 1, 2024 – more than a month before Election Day.
A quick internet research recently confirmed my understanding that there are no legal limits on what a candidate can spend of his/her own assets on his/her own campaign.
Mr. Trump is legendarily loath to spend his own money when he can get others to spend money on his behalf, but if he believes that winning the presidential election is the only way for him to stay of jail, I bet he’ll be a little more willing than in the past to expend his own funds.
Let’s consider the current Trump Social value of about $3 billion. Although the value could easily go up by October 1 if Mr. Trump appears to have a significant chance to return to office, let’s instead assume Truth Social’s total value drops another 50% by October 1, to $1.5 billion. Under this scenario, Mr. Trump’s stock would be worth a “mere” $900 million. Although the former president – who is the company’s asset – would undoubtedly be loath to cede control of what will be an extremely valuable asset if he reclaims the presidency, it is tenable that when the lock ends, he will be able to sell a significant percentage of his stake while maintaining either de jure or de facto control of the company. Even if the “forced sale” nature of his divestiture drives the value of the shares down even further, he will still arguably be able to reap tens of millions in sale proceeds. Notwithstanding any reduction from the “top line” sale proceeds for capital gains tax, he’d still compile a sizeable campaign war chest to spend between the conversion date and Election Day.
While there are other ways the former president can raise cash, a partial divestiture of Truth Social shares seems the easiest way for Mr. Trump to raise a lot of money in a short amount of time; his current challenge is the lock. If there is a manner he can circumvent it, he undoubtedly will.
So query: is President Biden’s campaign funding edge as great as it appears? On or about October 1, there may be little difference between the candidates’ respective resources. Mr. Biden’s true advantage here may be his combination of currently-available funds and timing. He will seemingly have months more than Mr. Trump to use his financial wherewithal to execute his voter turnout initiatives and to pummel Mr. Trump in ads targeted at swing state swing voters.
Let’s hope that the Biden Campaign uses its current apparent financial advantage wisely.
As New York City’s Manhattan Borough District Attorney Alvin Bragg’s “hush money” case against former President Donald Trump begins this week — alleging state felony crimes for falsification of business records to shield undercover (seemingly a particularly apt adjective here) payments made by Mr. Trump through his attorney, Michael Cohen, to Adult Film Actress Stephanie Clifford (a/k/a Stormy Daniels) to secure Ms. Clifford’s silence about their sexual liaison in aid of Mr. Trump’s 2016 electoral prospects – the former President and I both wish it wasn’t going forward. Our rationales are, however, quite different. He is terrified that he will be convicted. I dread that he won’t be.
Those of us who believe, “No person is above the law,” and “Justice delayed is justice denied,” have been justifiably dismayed with the glacial progress of the various criminal proceedings now pending against Mr. Trump, which include not only the New York matter but the Washington, D.C. insurrection case being prosecuted by Special Counsel Jack Smith, the Georgia election interference case being prosecuted by Fulton District Attorney Fani Willis, and the allegedly felonious mishandling of classified documents charges being prosecuted in South Florida by Mr. Smith. That said, much of the delay could have been anticipated; any prosecutor would want to be completely prepared before going to trial against the highest-profile defendant in our country’s history, and Mr. Trump has predictably effectively availed himself of every available legal maneuver to prolong each proceeding.
Although I am no longer as incensed at the delays, for the reason stated below, a preliminary vent:
The U.S. Supreme Court’s election to consider Mr. Trump’s Presidential immunity defense in the insurrection case – after the defense was pretty summarily rejected by the D.C. trial court and the U.S. Court of Appeals – has provided unconscionable support to Mr. Trump’s efforts to evade the charges that, of all those confronting him, should be adjudicated before the election: whether he, a current candidate for President of the United States, sought to defraud the United States in the last election.
Whether or not the substantive Georgia proceedings have been delayed by the Trump team’s claim that Ms. Willis was conflicted because she engaged in an amorous relationship with a lawyer she added to the prosecution team, I think it irrefutable that Ms. Willis’ behavior – although not legally relevant to the charges — was so egregiously ill-advised so as to take one’s breath away to the point of asphyxiation.
On the Florida case involving felonious mishandling of classified documents, Judge Aileen Cannon, a Trump appointee, has openly abetted Mr. Trump’s efforts to delay the proceedings. This is a matter that Mr. Trump’s last Attorney General, William Barr, has opined to be almost a sure winner for the prosecution. Judge Cannon’s actions can no longer be put down to incompetence or insecurity; she is either toxically partisan or cowed by MAGA threats. Either way, the former president seems on the cusp of ducking an almost-certain federal felony conviction.
But – let’s put aside the rantings of an old curmudgeon. We are where we are. While I would have enthusiastically welcomed having all of these cases tried a year ago, and vehemently reject the notion that our criminal justice procedures should be sublimated to our electoral processes (i.e, that, as some commentators have intoned, Mr. Trump’s fate should “be left to the voters”), there is an exception to every rule, even the most hallowed. It is vital that the outcome of our criminal judicial processes not engender sympathy for Mr. Trump, not skew the upcoming election to his benefit. At this point, the overarching concern is not about establishing Mr. Trump’s culpability for the last election, but that he lose the next election.
So I’m going to enter a somewhat lonely view certainly contrary to those bemoaning the effectiveness of the former President’s and his judicial allies’ dilatory legal tactics. I’m concerned that putting him on trial this close to the election has greater potential to aid than hinder his campaign for the presidency. My inclination is completely colored by my belief that if we remain on our current electoral arc (admittedly, a HUGE if), President Joe Biden will achieve an Electoral College victory in November even if the criminal charges against Mr. Trump have not yet been adjudicated. However, the election is going to be that close, so any potential boost Mr. Trump might receive from any result other than a guilty verdict is best avoided if possible.
I see three outcomes from any criminal trial commenced against Mr. Trump in what is now indisputably “Campaign Season” (including the New York prosecution starting today):
The very fact of the trial: Initial advantage, Mr. Trump. It makes him look to some swing voters like he’s being politically persecuted, and will do more to galvanize his supporters than cause swing voters to sour on him.
Acquittal: Could hand Mr. Trump the presidency by seemingly validating his claims of innocence and political persecution. Even a mistrial will, as was the case with his impeachment acquittals, be wildly touted by him and his acolytes as exoneration and vindication, and boost his campaign.
Conviction: There are polls indicating that some Republicans claim they won’t vote for Mr. Trump if he is convicted, but if these voters are still even considering voting for him, by Election Day a conviction in the New York case will be both old news and entirely discredited by the right-wing media outlets they follow. I agree that any convictions obtained by Mr. Smith or Ms. Willis between now and the election would seemingly doom Mr. Trump’s candidacy, but getting a conviction of any high-profile defendant is no easy task (recall O. J. Simpson, now deceased). The risks of an acquittal or a mistrial so close to the election arguably outweigh the benefits of a trial if one believes, as I do, that electoral trends currently favor President Joe Biden.
I may be a solitary voice expressing these reservations – What other than Noise would one expect here? 😉 — but I would submit that Mr. Biden’s electoral prospects with the swing state swing voters who know – who know – that Mr. Trump is guilty of the crimes of which he’s been charged, will be enhanced if he simply argues: “Trump’s delayed all the trials. If he is elected, he’s going to get away with it. Don’t let him get away with it.” Mr. Biden’s prospects are obviously dimmer if the former president can claim legal exoneration.
So as Mr. Bragg’s efforts commence today, let us hope he secures a conviction – and if he doesn’t, let us hope that the verdict will be rendered soon enough that it will no longer be top of mind by voters by Election Day.
I still owe these pages the post describing the grounds for my optimism about President Biden’s electoral prospects.
[Note: I, and probably you, have seen others make the observations set forth below. I take leave to enter them here because they have occurred to me apart from having seen them voiced elsewhere 🙂 .]
On March 21st, Republican Strategist Karl Rove – whose political acumen one must respect, since he engineered two electoral victories for former President George W. Bush (the second being particularly impressive, since by the time of the 2004 presidential election even Mr. Bush’s own Administration conceded that the purported bases of his order to invade Iraq – weapons of mass destruction – weren’t there) – wrote an opinion piece in the Wall Street Journal entitled, “2024 Comes Down to Only Seven States,” in which he asserted that only the Electoral College votes of Arizona (11), Georgia (16), Michigan (15), Nevada (6), North Carolina (16), Pennsylvania (19), and Wisconsin (10) are truly at issue this November and that the presidency will be decided by how these states’ respective EC votes are allocated between President Joe Biden and former President Donald Trump.
In a post about six months ago, projecting Mr. Biden’s path to victory, I declared that Mr. Biden should “stick to the knitting. … Mr. Biden and his team need to focus their efforts on the swing states they are most likely to win ….”
I consider North Carolina Fool’s Gold for Mr. Biden (remember, as usual, that all spouted here is Noise; I considered Georgia Fool’s Gold for Mr. Biden in 2020 😉 ) because Mr. Trump won the state by 75,000 votes in 2020 despite an attractive Democratic Senatorial candidate (who imploded late in the campaign due to a sexual peccadillo). Although the state has the fastest-growing population in the nation (400,000 new residents since 2020), a significant segment these new residents reportedly come from Red States, and another significant segment is undoubtedly comprised of children. Mr. Biden trails Mr. Trump in all recorded state polls.
Although a recent Wall Street Journal poll recently found Mr. Biden trailing Mr. Trump by only one point in Georgia, and despite my unwarranted 2020 pessimism about the state, I remain leery of it. Former Gubernatorial candidate Stacey Abrams’ grassroots movement has seemingly lost some of its zeal; Fulton District Attorney Fani Willis’ prosecution of Mr. Trump for election interference, while obviously well-warranted (although her own sexual peccadillo in that matter warrants comment in another post), has undoubtedly enflamed the ire of Mr. Trump’s supporters; despite the fact that state Republicans like GA Gov. Brian Kemp detest Mr. Trump for roiling their state’s affairs, their organization will undoubtedly support him; and in 2020 the state’s Republican hierarchy was perhaps surprised that the presidential race was close. It won’t be taken by surprise again.
I am intrigued by Arizona, although the same Journal poll found Mr. Biden currently trailing Mr. Trump by 5 points – outside the margin of error — presumably due to its citizens’ displeasure with the still-unsettled situation at the southern border. The state’s Republican Party is at war with itself. There is still a significant segment of what might be considered “[John] McCain Republicans” who detest MAGAs. Despite the fact that former SC Gov. and U.S. U.N. Amb. Nikki Haley had ended her candidacy for the Republican Presidential nomination weeks before the state’s closed Republican primary (i.e., only Republicans could vote in it), she still won 20% of the vote from Mr. Trump. Very divisive MAGA Keri Lake will be the Republican Senatorial Candidate. Perhaps most crucially, abortion activists are trying to put a state constitutional amendment securing the right to abortion on the 2024 ballot, which would certainly drive up Democratic turnout. [In support of women’s abortion rights, Democratic Arizona State Senator Eva Burch recently announced on the floor of the Arizona legislature that she had had to undergo an abortion – for a child she and her husband wanted – because her pregnancy was no longer viable. (I heard her speech; Mr. Biden’s team should take it and run it nationwide.)] For Mr. Biden, Arizona’s 11 EC votes could provide insurance to offset any loss of Wisconsin’s 10 EC votes.
As to Nevada, which Mr. Biden won in 2020, it looks to me (conceding my math skills never exceeded the first grade) that its 6 EC votes will primarily be relevant to winning Mr. Biden the presidency if he needs them to pair with Arizona’s 11 EC votes to offset any loss of Michigan’s 15 EC votes (while he wins Pennsylvania and Wisconsin) or with Georgia’s or North Carolina’s 16 EC votes to offset any loss of Pennsylvania’s 19 EC votes (while he wins Michigan and Arizona or Wisconsin) … but we’ve now moved into what I obviously consider perilously-uncertain electoral territory for the President.
All that said: Mr. Biden needs to maintain focus. I will always consider a large factor in 2016 Democratic Candidate Hillary Clinton’s defeat to be that she and her team took too much for granted, misallocated resources, took their eyes off the ball. She courted votes in states like Utah and Georgia – states in which the odds were, put charitably, long that she would carry — while she failed to visit Wisconsin even once. The President, unlike Ms. Clinton, needs to scan the electoral battlefield to be sure that he doesn’t sustain any losses among what are now considered safe “Blue States.” Assuming all such “Blue States” are secure, two final points:
The President’s overwhelming electoral focus needs to be on winning Pennsylvania, Michigan, and Wisconsin (the Journal poll shows him trailing in the first two, but within the margin of error for each state). It is by far his most straightforward path to victory. If Mr. Biden wins the combined 44 EC votes of Pennsylvania, Michigan, and Wisconsin, he gets the 270 Electoral College votes needed to claim the presidency regardless of what happens in other swing states. Once he has to move beyond the “Blue Wall,” any other electoral scenario is a crapshoot; his course seems particularly precarious if he does not win Pennsylvania.
Anticipating a point very likely to be elaborated upon in a future post: Rather than seeking to expand his Electoral College margin by winning more states, Mr. Biden should focus on expanding his margin of victory in Pennsylvania, Michigan, and Wisconsin.
That’s the Realism. Where’s the Optimism? Part II. Enjoy the weekend.
McCoy's Noise 