“You must not weaken in any way in your alert and vigilant frame of mind. Though holiday rejoicing is necessary to the human spirit, yet it must add to the strength and resilience with which every man and woman turns again to the work they have to do, and also to the outlook and watch they have to keep on public affairs. …
[W]e have yet to make sure … that the words, ‘freedom,’ [and] ‘democracy’ … are not distorted from their true meaning as we have understood them. There would be little use in punishing the Hitlerites for their crimes if law and justice did not rule, and if totalitarian or police governments were to take [their] place ….”
British Prime Minister Winston Churchill, May 13, 1945
Before our last 4th of July holiday, I quoted these remarks by Mr. Churchill in these pages – which he delivered to the British people on a date after the fall of Nazi Germany but before the defeat of Imperial Japan, and as the indications of Soviet Russia’s designs for eastward European territorial domination were first appearing – and there’s at least an even chance I’ll cite them at least once more before another of our 2024 national holidays. There has not been a time in over 75 years in which they have been as relevant as they are today, as former President Donald Trump, unabashedly using rhetoric that is often a direct lift from Adolf Hitler, seems poised to win the presidential nomination of a major American political party whose adherents now consist of the fascist, the poisonously tribal, the cowardly, or the blind.
For most of my lifetime, presidential elections have been won by the candidate that was most effective at obtaining the votes of those in the political middle of our electorate. More recently, given a closely-divided, hyper-polarized polity in which virtually all of our citizens have hardened leanings either right or left, winning has involved turnout – i.e., which side is better able to squeeze more votes out of its supporters.
This year, if democracy is to be preserved – assuming that Mr. Trump does win the Republican nomination – the supporters of the Democrat opposing him – overwhelmingly likely to be President Joe Biden – will need to be good at both. Democrats will need to persuade enough of the disaffected and disappointed – particularly among minorities and the young – that it does matter for their futures to go to the polls to vote against Mr. Trump. At the same time, Democrats will need to convince enough older voters who would in normal times lean toward a traditional Republican candidate that what matters in 2024 is preserving democracy — that there will always be another election in 2028 if Mr. Biden is reelected, no matter what he does.
It must be faced: Mr. Trump’s cultish supporters will not leave him, and will show up on Election Day. Mr. Biden’s seemingly increasing physical infirmity and what certainly appears to be a mishandled situation at our southern border clearly hurt his prospects. The animating issue of abortion, together with what increasingly appears will be a soft economic landing and Mr. Trump’s chilling fascist rhetoric, are obviously powerful political assets to help Democrats persuade the open-minded. Foreign policy (our apparently waning willingness to continue to support Ukraine, and our clearly dwindling patience with Israel’s manifestly indiscriminate destruction of Gaza) and the outcomes of Mr. Trump’s criminal and civil court proceedings are political wildcards.
It’s going to be that close.
So as we celebrate the dawn of another year that has been given us, and amid whatever other New Year’s resolutions you may be contemplating, let me offer this: consider how you might, as Mr. Churchill suggested over 75 years ago, apply your strength and resilience in the coming year to the work we have to do to preserve our democratic way of life. Don’t let exhaustion win.
Thank you for the honor of allowing me to share these posts with you again in 2023.
May you, your family and friends have a Happy and Healthy New Year.
[Today, I emailed the following letter to the Wall Street Journal. I have no expectation it will be published; my letters to the Journal never are. 😉 ]
In your editorial, “The Supreme Court Spurns Jack Smith,” and Peggy Noonan’s column, “National Unity and the Colorado Supreme Court,” both published shortly before Christmas, the Editorial Board and Ms. Noonan set forth an approving perspective of the U.S. Supreme Court Justices which I do not share.
In your editorial, you applaud the Court’s recent refusal to provide an expedited ruling sought by Special Counsel Jack Smith on Mr. Trump’s claimed immunity defense, declaring, “[Mr. Smith’s] plea was purely political so he could meet his opening trial date … and get a conviction of Mr. Trump before Election Day in 2024.” To the contrary, I find the Court’s declination to be a despicable dereliction of its duty. The charges against Mr. Trump are credible and of the utmost import. (In her piece, Ms. Noonan observed, “I believe that in the court cases [Mr. Trump] faces he will be found guilty of many charges.” One can infer from the Editorial Board’s criticism of Mr. Smith that it expects that if Mr. Smith does get Mr. Trump to trial, Mr. Trump will be found guilty. It is seemingly fair to assume that if Mr. Trump was himself confident that he would be found innocent, he would be seeking the earliest possible trial date.) It is not “political,” in the partisan sense, for the Special Counsel to seek the earliest possible trial date to enable our citizenry to learn whether a leading candidate for the presidency is guilty of crimes against the country he wishes to lead and the Constitution he had sworn to uphold. Does anyone doubt that the Supreme Court won’t ultimately have to rule on Mr. Trump’s immunity claim – while its unwillingness to proceed at this juncture might well delay the trial to the point that Mr. Trump’s Republican presidential nomination is a fait accompli notwithstanding any guilty verdict?
The Editorial Board’s editorial’s sub-head declared that the Supreme Court Justices “wisely” refused to grant Mr. Smith’s motion for an expedited hearing. In her column, Mr. Noonan stated, “… I respect [the Supreme Court Justices], not only as an institution but individually, as serious human beings.” I would submit that by denying Mr. Smith’s motion, at least six Justices have shown themselves to be neither wise nor serious, but merely political partisans, hiding behind their robes.
[Final note: despite my disdain for the Supreme Court’s refusal to grant Mr. Smith’s motion of an expedited hearing on the presidential immunity issue, I actually agree with the main point Ms. Noonan was making in her column: that the Colorado Supreme Court’s recent holding, barring former President Donald Trump from being on the Colorado presidential ballot under Section Three of the Fourteenth Amendment to the U.S. Constitution, should not stand. No matter how strong the legal reasoning might be, the former president hasn’t yet been convicted of anything; removing him from the ballot by judicial fiat smacks of political persecution and invites civil unrest.]
As all who care are aware, a package to respectively provide billions in aid to Ukraine in its struggle against Russia, to Israel in its struggle against Hamas, and to Taiwan to help shore up its defenses against China is being tied up in a U.S. Senate squabble in which Republicans are insisting upon changes to American border security policy that are apparently an anathema to Democrats. Last week, several outlets reported that a number of Senate Republicans “stormed out” of a meeting with Senate Democrats because they did not consider Democrats to be taking their border security demands seriously.
Although some – including me — might initially dismiss the Republicans’ opposition as pandering to their base, I took particular note that U.S. UT Sen. Mitt Romney – who is not running for re-election, has unassailable credentials as an opponent of Russian aggression, and is almost certainly not beloved by his caucus colleagues after his votes to convict former President Trump in both his impeachment trials and given the revelations in Mr. Romney’s book, Romney: A Reckoning – was among the most incensed by what he viewed as Democrats’ intransigence on border issues. On December 5, he tweeted: “Dems want $106B—GOP wants a closed border. That’s the trade. But clueless Dems want to negotiate the border bill. Not going to happen. Is an open border more important to Dems than Ukraine and Israel?”.
I didn’t see it, but The Hill reported Sunday that on NBC News’ Meet the Press, Mr. Romney stated in part:
“It’s not just Republicans that are holding a hard line. It’s Democrats who are holding a hard line. Either side can move and can get this done. … We have gone from one to 2000 [illegal] encounters at the border a day under … Bush, Obama and Trump [to] … 10 to 12,000 a day. As Pennsylvania Senator John Fetterman said, we’re basically seeing Pittsburgh show up [at] the border every month.”
Mr. Romney is an estimable man. Given his views, I’m willing to assume that Senate Democrats are being too rigid.
Let’s put Taiwan and Israel aside for purposes of this note; at this moment, it appears unlikely that China’s President Xi Jinping is going to risk further hardening American attitude against China by ordering a Chinese invasion of Taiwan and, as I have previously observed here, it’s pretty clear that Israel has shown little need for our military aid to either defeat Hamas or to lay complete waste to the Gaza Strip.
On the other hand, there appears to be consensus that Ukraine is about out of money, and without our military and economic aid, Ukraine will fall under Russian domination within the foreseeable future. I have found the way that at least the electronic news outlets we follow have focused so heavily on the Israel-Hamas conflict since the Hamas attack of October 7, with scant attendant coverage of Ukraine’s defense against Russia’s invasion, to be extremely distressing; such emphasis endangers western democracy by causing us to take our eye off the ball — Ukraine. Business Insider has reported that Kremlin spokesperson Dmitry Peskov told reporters that Russia hoped lawmakers would continue to delay the Ukraine aid; The New Republic has reported that a Russian state television commentator has declared, “Well done, Republicans! They’re standing firm! That’s good for us.”
After all their sacrifices, all of the innocent deaths, all of the displacement, and all of the destruction of their homes and their institutions, and the attempted eradication of their nation and their culture by Vladimir Putin, and notwithstanding their Herculean defense of their homeland, without our continued assistance Ukrainians will lose. Ukraine will disappear – perhaps even in name. And we diddle and bicker.
I don’t know what the Republicans are demanding in the way of different or enhanced border security measures. Even so, I will submit that if President Biden and Congressional Democrats can get Republicans’ agreement to authorize what the Administration deems to be sufficient aid to get Ukraine through to March, 2025, they should agree to all Republican border demands that don’t include shooting illegal immigrants or separating immigrant children from parents (there may be some other similarly egregious exception I’m overlooking, but you get the idea). If advising Mr. Biden, I would recommend that he call his old Senate colleague, Senate Minority Leader U.S. KY Sen. Mitch McConnell – who is currently among those holding up Ukraine aid to obtain additional border security, but does support aid for Ukraine — find out from Mr. McConnell exactly what border measures Senate Republicans are demanding in return for supporting Ukraine aid, and then – assuming that there are no Republican conditions as malign as those I listed above — call Senate Majority Leader U.S. NY Sen. Chuck Schumer and strongly advise Mr. Schumer to … Do. The. Deal.
My rationale is pretty basic: what happens now on the border doesn’t, from a practical standpoint, matter that much. If Mr. Biden wins in November, 2024, Democrats are likely to control both chambers of Congress; they can then attempt to undo whatever measures are enacted now that they consider too onerous. If Donald Trump wins the presidency next November, whatever strictures are put into effect now will be but a prelude to what Mr. Trump (with, if he is elected, will likely be a Republican-controlled Congress) will do anyway in 2025.
Although this is of wildly lesser import, I would agree with those who have opined that signing a law with stringent border measures may actually help Mr. Biden politically. By all accounts, those living near our southern border have reasonable concerns about what appears to be our mishandling of border security (no matter whose fault it actually is, the political reality is that the buck stops at the White House), and even many living in the snowy Midwest find the border an emotive issue. [I was surprised to find how border security resonated with central Wisconsinites at a Republican Town Hall Meeting we attended a couple of years ago. Although one could argue that the mid-state Wisconsin resident is only marginally more likely to be harmed by an illegal immigrant than s/he is to be strangled by a Burmese python (which are now reported to be migrating north in Florida, having wiped out the available prey in the Everglades), it doesn’t matter. Citizens vote on their perceptions.] If Mr. Biden supports stiffer border controls, he will — unlike the many Republicans who are now hypocritically touting the benefits of the Biden Administration’s Infrastructure Law for their districts, despite that fact that they voted against it – be able to correctly declare that he took serious steps to secure our border. The Wall Street Journal noted recently that if he does make major immigration concessions to Republicans, the President risks losing support amongst some segments of Democratic voters; I would counter that if/when these disgruntled Democrats recognize that the alternative to a Biden vote is a Trump Restoration, they’ll come around.
I am sickened by the fact that Ukrainian President Volodymyr Zelenskyy has to come to Washington this week to plead – to beg – for assistance that we have the wherewithal to provide which will continue to defend his nation while at the same time safeguarding ours. The Ukrainians can’t afford to wait 13 months until (under the happiest scenario) Mr. Biden has won reelection and Democrats have regained control of Congress. By then, Russia will have conquered Ukraine and the NATO alliance will, for all intents and purposes, be in shreds. Mr. Biden’s party controls the Senate, albeit narrowly. He needs to do virtually anything within his power to secure aid for the Ukrainians now.
I recognize that this post approaches rant (or perhaps merely exhibits desperation). Is the Congressional compromise I urge here ugly? Without doubt. Essentially acquiescing to blackmail? Unquestionably. Domestic Realpolitik? Certainly. Necessary to help sustain global democracy? Seemingly, Yes.
As all who care are aware, the former Speaker of the U.S. House of Representatives, Republican U.S. CA Rep. Kevin McCarthy, announced Wednesday that he is leaving his seat in the House as of the end of 2023. Although he never seemed to me to present, through his own affirmative behavior, as much danger to democracy as former President Donald Trump and other MAGAS, his acquiescence to their actions unquestionably facilitated their cause. I would submit that his legacy can most fairly be characterized as that of an unprincipled, gutless lickspittle.
It is Mr. McCarthy’s personal irony – not dissimilar to the irony that U.S. Senate Minority Leader Mitch McConnell is likely to never again be Senate Majority Leader because he succeeded so well in orchestrating the elevation of U.S. Supreme Court Justices willing to strike down Roe v. Wade – that in his maneuvering and concessions to gain the necessary votes to become House Speaker at the beginning of this year, he laid the groundwork for his own truly ignominious ouster. If I could ask Mr. McCarthy one question today, it would be this: Given the bootlicking gyrations you had to go through to get the Speakership, and the humiliation you suffered at the hands of MAGA nihilists in being ejected from it – was it worth it?
Unfortunately, a corresponding irony has rebounded upon House Democrats and their leader, U.S. NY Rep. Hakeem Jeffries. They so detested Mr. McCarthy for his duplicity that when he faced the challenge to his Speakership from a pivotal – yet actually quite small – faction within his caucus, they refused to prop him up, although it seemed very possible that if they did so, they could thereafter exploit his ambition and weakness to further some of their agenda. They chose to gamble that they’d get a new Republican Speaker who, from their perspective, would either be better or no worse.
As flawed as Mr. McCarthy is, that has so far looked like a bad bet, for the country and for the world.
As all who care are aware, recently the New York Times and Sienna published results of a poll taken from October 22 to November 3, 2023, of registered voters in the swing states Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin. In a matchup between President Joe Biden and former President Donald Trump, Mr. Biden trailed Mr. Trump by an average of 5 points in Arizona, Georgia, Michigan and Pennsylvania. The outliers were Nevada – where the poll indicated that Mr. Biden trailed Mr. Trump by a whopping 11 points – and Wisconsin, where Mr. Biden was leading Mr. Trump by 2. I actually have less faith in the accuracy of outliers than in the rest; it’s hard to believe that Mr. Biden is trailing by double digits in a state he won in 2020, and speaking as a Wisconsin resident, Mr. Trump fared better in the Badger State on Election Day in both 2016 and 2020 than preliminary polls indicated he would. Averaging the two outliers together, I would venture that Mr. Biden is currently trailing Mr. Trump by about 5 points in all the polled swing states. If one asserts that a majority of citizens will be concerned enough in the ballot box about preserving democracy or the emotive issue of abortion for Mr. Biden to overcome the apparent difference, I would counter: the Times/Sienna poll shows Mr. Trump beating Mr. Biden by double digits on the Economy, the Israeli/Hamas conflict, National Security, and Immigration – the first three findings inexplicable to me, but it is what it is — so Mr. Biden’s relatively lesser overall deficit to Mr. Trump in these states arguably indicates that Mr. Biden’s advantages on democracy and women’s reproductive rights are already baked into the candidates’ top line numbers.
Given Mr. Biden’s effective – I would go so far as to say, save his decision to withdraw from Afghanistan, top-tier — performance in office, a reasonable observer in a vacuum would presumably find the poll results perplexing. Given our real-world hyper-toxic environment and the virulent effectiveness of the alt-right propaganda machine, I confess that I didn’t find them much of a surprise, although — judging by the thinly-veiled hand wringing by liberal talking heads I’ve seen since they were published – they were apparently a shock among some liberal political professionals and pundits.
Hearkening back to President Abraham Lincoln’s 1858 remarks recently quoted in these pages, which he uttered in circumstances in some ways completely different on the surface from, while in other ways strikingly similar at their core to, those we face today: it’s now tenably clear “where we are, and whither we are tending”; it’s time to “judge what to do, and how to do it [Emphasis Mr. Lincoln’s].”
Mr. Biden’s subjective challenge lies in a telling characteristic of the voters he needs to retain the presidency: they are engaging in critical thinking. His doddering bearing and concerns about his continued health for another six years is an aspect that even those favorably disposed toward him are weighing. (I would suggest that those pointing out the relatively small difference in the ages of Messrs. Biden and Trump are missing a key psychological factor: on Election Day 2024, of the two only Mr. Biden will have turned … 80. Then Republican Party Presidential Nominee Ronald Reagan first challenged the 70 barrier 43 years ago, and even in an electorate that had thereafter become conditioned by Mr. Reagan’s age, Mr. Trump and former Secretary of State Hillary Clinton were considered pretty old at 70 when they ran in 2016.) At the same time, the President has apparently lost support among some demographics he will need – minorities and the young – due to their perception that he hasn’t done enough for them (which I would submit is unfair, given the closely divided Congress with which he has had to deal). Open-minded citizens can be justifiably concerned about inflation, the southern border, or what have you, and those focusing on concrete issues rather than preserving democracy are apparently considering whether Mr. Trump might do better than Mr. Biden has done; although one may question their discernment, priorities, or approach, the point here is that they are thinking. Mr. Biden should already have surrogates out to persuade and reassure these critical electoral segments.
Without wishing to be too cavalier, I would suggest that Mr. Trump’s supporters have willingly suspended their capacity for critical thought with regard to his candidacy. Even if one wants to institute an American Apartheid, one might logically conclude that MAGA FL Gov. Ron DeSantis, while boring, has the same instincts as Mr. Trump but stirs less enmity, and thus arguably has a better chance to win swing state swing voters to win the general election. Mr. Trump’s cult nevertheless clings to him.
Irish Poet William Butler Yeats seemingly summed up Messrs. Biden’s and Trump’s current relative positions in verses of “The Second Coming,” published in November, 1920:
“The best lack all conviction, while the worst / Are full of passionate intensity.”
Mr. Biden’s risk is erosion; his support is subject to apathy and doubt. (His turnout will be boosted in Arizona, Nevada, and Pennsylvania if, as I have seen reported, there are abortion rights measures on the 2024 ballot in these states.) Mr. Trump’s challenge is addition; his supporters are an unbreakable bulwark, but those voters who detest him have such antipathy for him that he will never gain their support. The issue is whether Mr. Biden’s support will erode in the swing states to the point that Mr. Trump’s militant support overtakes it.
In a note a while back suggesting what Mr. Biden should do to retain his office, I offered:
“ … [S]tick to the knitting. … Recall that Mr. Biden entered the 2020 race with the avowed strategy of retaining all of the [Electoral College] votes that [Ms.] Clinton had won in 2016, and adding the EC votes of Pennsylvania, Michigan, and Wisconsin … He succeeded in that endeavor, while surprisingly (at least to me) winning Arizona and Georgia as well. These latter two states gave Mr. Biden some breathing room against Mr. Trump’s subsequent seditious lies about election integrity, but weren’t numerically necessary to win the White House. Mr. Biden and his team need to focus their efforts on the swing states they are most likely to win …”
Something I didn’t focus on then, but am now: the effect of the 2020 Census. On net, the states Mr. Biden won in 2020 have lost 3 Electoral College votes, while the states Mr. Trump won have correspondingly gained 3 Electoral College votes. In 2020, it would have made no difference; Mr. Biden would have prevailed 303 – 235 rather than 306 – 232. However, if in 2024 Mr. Biden were to lose Arizona (11) and Georgia (16) – potential outcomes which today, a handicapper has to take seriously – his margin shrinks to 276. If he loses Nevada (6), it shrinks to 270 – literally the minimum. There is no margin for error in a contest that seems destined to be determined by courts or partisan legislatures.
I’ll test neither my arithmetical expertise nor your patience by attempting to scope out all of the potential Electoral College outcomes (if I could do math, I might not have gone into law 😉 ). That said, I suspect that if Archimedes, the “Father of Mathematics,” born in Sicily in 287 B.C., was here today and surveyed Mr. Biden’s challenge, he’d advise: “Winning Pennsylvania, Michigan, and Wisconsin is not enough. Nevada, even if you hold it, is too small to make a difference. You need a bigger buffer.” Recall that of the seven states with the closest margins in 2020, only one was a Trump state: Mr. Trump won North Carolina (15 Electoral College votes) by 1.4%. The Times/Sienna poll did not include the candidates’ current standing in the Tar Heel State. I am encouraged by reports that the Biden Campaign is starting to make significant effort in North Carolina. I think the President needs North Carolina; other 2020 Trump states seem beyond his reach.
Finally, a note of frustration: Mr. Biden and his team seemingly remain focused on trying to win the election by reminding voters about their accomplishments. I’ve seen a recent report indicating that the Biden Team has thus far spent millions on ads touting its achievements, and only about one hundred thousand dollars on negative ads about Mr. Trump. I’m just a retired Midwest blogger and they’re political pros, but if this report was accurate, their current strategy is political malpractice. If they stick to it, Mr. Biden will lose. It is beyond dispute that negative ads work;the Biden Campaign needs to place its overwhelming emphasis on pounding Mr. Trump in the swing states. Its reported “emphasize the positive” strategy has brought to my mind the legendary Hall of Fame Major League Manager Casey Stengel, who, after winning seven World Championships and 10 pennants with the New York Yankees, took over the helm of the expansion New York Mets. If Mr. Stengel was here today and reviewed the state of the Biden Campaign efforts to date, he’d moan as he did in the midst of the Mets’ 42-120 season in 1962: “Can’t anyone here play this game?”
“The House of Representatives shall chuse [sic] their Speaker …”
Article I, Section 2; the Constitution of the United States of America
I had something ready to post yesterday morning, written on Tuesday after former Speaker of the U.S. House of Representatives Kevin McCarthy was removed as Speaker and before I had heard much commentary from media talking heads, in which I queried whether the House Democratic caucus might not have missed an historic opportunity by failing to provide Mr. McCarthy the votes he needed to retain his office.
I am no fan of Mr. McCarthy. I find him gutless and more interested in title and the trappings of power than in real power. I consider him to have abided if not abetted in former President Donald Trump’s seditious attempt to thwart the results of the 2020 presidential election. I have found it unnerving to have him, as Speaker, second in succession to the presidency.
That said, I suggested in the unpublished post that the weak can serve a purpose; that Democrats might have been able to extract concessions from Mr. McCarthy that could have assured the quick passage of a clean aid bill for Ukraine, perhaps led to bipartisan collaboration on other initiatives between the less partisan members of both parties, and would at a minimum have eliminated the possibility that a MAGA would succeed Mr. McCarthy.
Even so, I pulled the post back because of a factor I heard frequently emphasized in media commentary about Mr. McCarthy after I had scheduled it: Democrats didn’t believe that he could be trusted to keep his word.
One can’t do business with somebody who can’t be trusted. If that was indeed the ground upon which Democrats decided to allow Mr. McCarthy’s ouster – rather than pique at Mr. McCarthy’s authorization of an impeachment inquiry against President Joe Biden, or his potshots at them to appease his base, or some other similar grandstanding gesture – I understand why they did what they did.
That said, Pandora’s Box has clearly now been opened. At the time this is typed, U.S. LA Rep. Steve Scalise and U.S. OH Rep. Jim Jordan have announced their candidacies for the Speakership. In a January note in these pages on Mr. McCarthy’s quest for the Speakership, I indicated:
“If … I was a member of the House Republican Caucus, I’d be a hard No on Mr. McCarthy [due to his lack of fortitude] (unless the only alternative was U.S. OH Rep. Jim Jordan, whom I consider at this point to arguably present a greater danger to American democracy than former President Donald Trump). [Emphasis Added]”
I feel no differently about Mr. Jordan’s illiberal inclinations now than I did then [although I concede that given Mr. Trump’s statements and actions over the last nine months and given their respective positions in the MAGA universe, Mr. Jordan may not now present quite as great a danger to American democracy as Mr. Trump (but I am confident that he’ll make up the gap if given the opportunity)].
I fear that we may be descending into a political maelstrom. We’ll soon know whether Democrats’ refusal to prop up Mr. McCarthy was a wise maneuver or regrettable blunder.
[Caution: this Part II has become interminably long, such that it might — like liver, lutefisk, or lima beans — be best digested in small servings 😉 ]
Mr. Biden. In the first part of this note, I suggested the strategies that former President Donald Trump might execute to (legally and validly) recapture the presidency; those that seem to me most suitable for Mr. Biden are many and more varied. What is of great concern to me is that although the President and his team may recognize all of the eight steps set forth below, they don’t appear to be applying what I consider to be the appropriate respective emphasis on each. From least important to most important:
Eighth — solicit the highly confidential agreement of specific prominent Republican surrogates to publicly support Mr. Biden (or, at a minimum, disown Mr. Trump) when the time is right. It would be understood that any such understandings would only apply if Mr. Trump wins the Republican nomination. As in 2020, the presidential election will be won or lost in the Republican suburbs of the major urban centers in the swing states. The most important Republican surrogates to be solicited would be former President George W. Bush and former U.S. WY Rep. Liz Cheney. These two arguably retain credibility with conservative independents and moderate Republicans. (If Mr. Bush is as patriotic as he’s always claimed to be, it’s time for him to come out of his corner.) The message these surrogates might express to this pivotal suburban segment would be simple: “I don’t agree with President Biden on most domestic issues, but Trump is a danger to our republic. I will not vote for Trump. Given our choice in 2024, I’m going to vote for Mr. Biden, and I encourage you to follow me. Now is the time to save our democratic way of life. After this election, we can rebuild the Republican Party and start countering Democratic excesses with the right presidential candidate in 2028.”
Seventh — trumpet the Administration’s accomplishments. They are many, and impressive. It doesn’t matter. Mr. Biden should expend relatively lesser effort in this regard. Those that appreciate what he’s achieved are already going to vote for him. He will never convince brainwashed consumers of alt-right media that he’s done a good job. [An August CBS/YouGov poll indicated that Mr. Trump’s supporters believe Mr. Trump more than their own family members (although, hopefully, not more than their mothers 🙂 )]. This is where the President’s good nature and his faith in the good sense of the vast majority of American electorate is dangerous. I find it disconcerting that this seems to be the strategy that he and his team wish to emphasize.
Sixth – pray that the economy continues on a glide path to a “soft landing” without recession – i.e., that America’s unemployment rate remains low while inflation and interest rates decline. From a political perspective, perception of the economy trumps statistics. (Recall that former President Bill Clinton bested former President George H. W. Bush in 1992 in large part by arguing that he would be better than Mr. Bush at bringing America out of its recession; economists later determined that the recession Mr. Clinton decried concluded before Election Day in 1992.) I’m not sure that a good economy helps Mr. Biden, but a bad economy certainly hurts him. Right now, voters are understandably focusing on inflation, particularly gas and food prices, and interest rates. Mr. Biden might be able to make a wedge issue out of high gas prices if the Saudis and the Russians attempt to jack oil prices in too obvious a bid to help Mr. Trump’s re-election, but speaking for those of us of different faiths who believe in the power of prayer, there may be relatively little Mr. Biden can do with regard to the economy except pray.
Fifth — make Vice President Kamala Harris the on-site leader of FEMA’s effort to rebuild Maui and Puerto Rico (still struggling after Hurricanes Irma and Maria) – and then cut all communications from those islands back to the mainland. This is, of course, facetious, and not intended in any way to make light of the catastrophic loss that our people in these areas are suffering; it is to make the point that the relatively unfavorable public perception of Ms. Harris’ abilities hasn’t improved during the Biden Years (from which one might infer that the President doesn’t think any more highly of her qualifications than the general public; although in fairness, if he does believe she is of presidential timber, he’s given her no real opportunity to prove it). Recently, MSNBC’s Morning Joe host Joe Scarborough dismissed concerns that Ms. Harris might be a drag on Mr. Biden’s re-election prospects by declaring to the effect, “No one votes in a presidential election based upon the vice presidential candidates.” Perhaps true (there have been a few presidential races in this century that might make one wonder); but nobody’s ever been asked to vote for an 82-year-old presidential candidate before, either. Speaking in rankest political terms, the Vice President was an asset in 2020 in the wake of George Floyd’s murder but is now, fairly or unfairly, a political millstone for an aged President that he cannot jettison for fear of offending his constituency of color. He must keep her out of sight except for safe stops in heavily progressive areas.
Fourth – To the extent he can – recognizing that there are significant limits to what he can do in this regard in this media age — Mr. Biden needs to restrict his movement in front of video cameras as zealously and as effectively as he compensates for his stutter. Four score and seven years ago (yes, really; you can do the math 😉 ), Americans first re-elected a president they were completely unaware couldn’t walk; today — in perhaps the most patently obvious statement ever entered in these pages — visuals count. Although one of my dictionaries defines “doddering” as “feeble-minded from age,” the majority define the word entirely in terms of movement, such as: “Moving in a feeble or unsteady way, especially because of old age.” It is obvious that Mr. Biden “dodders” in the physical sense. Recently, he hosted a Camp David summit with the leaders of Japan and South Korea – nations with traditionally deep acrimony toward each other, but brought together by the President’s cajoling about their overriding concerns about China. It was a foreign policy tour de force by Mr. Biden. But what we saw as the President greeted his allies was a man clearly unsteady on his feet between two younger, more physically assured men. That was the visceral impression even I was left with, although because of my interest in foreign policy I probably appreciated more than the average voter the mental dexterity it had required to bring the summit about. I would supplement the conscious effort to limit Mr. Biden’s movement in front of cameras with ads containing video depicting him moving with assurance (he does at times) and flashing still pictures of him doing his job at a pace that leaves the viewer with the impression of movement.
Third – stick to the knitting. Winning the presidency is about winning 270 Electoral College (“EC”) votes. You don’t get to stay if you get less; they don’t let you stay longer if you get more. Recall that Mr. Biden entered the 2020 race with the avowed strategy of retaining all of the EC votes that former U.S. Secretary of State and 2016 Democratic Presidential Nominee Hillary Clinton had won in 2016, and adding the EC votes of Pennsylvania, Michigan, and Wisconsin – states Ms. Clinton had been expected to win, but had lost. He succeeded in that endeavor, while surprisingly (at least to me) winning Arizona and Georgia as well. These latter two states gave Mr. Biden some breathing room against Mr. Trump’s subsequent seditious lies about election integrity, but weren’t numerically necessary to win the White House. Mr. Biden and his team need to focus their efforts on the swing states they are most likely to win, and on the electoral segments within those states from which they need significant margins. Mr. Biden is perhaps our last American politician whom most voters find generally likeable even if they question his vitality, but he doesn’t inspire excitement. I was more than a little unnerved to recently hear a young black woman express disappointment with Mr. Biden’s performance in the PBS NewsHour series, “America at a Crossroads.” If the African American community doesn’t enthusiastically support Mr. Biden in 2024, he will lose. The Biden Campaign needs to employ effective surrogates among its core constituencies to get out the vote. Former President Barack Obama will help with the African American community (although query whether he has as much credibility with younger as he does with older blacks) and U.S. VT Sen. Bernie Sanders will help with progressives, but the Biden team must find surrogates to effectively stoke enthusiasm among pro-choice, various Latino communities (Latinos are not a monolithic whole), Jewish groups, etc., etc.
Second – Let MAGAs be MAGAs. Wisconsin state Republican MAGAs could well seek to impeach a state supreme court justice who was elected by a margin of over 10% to do what they wish to thwart. In Tennessee, MAGAs seemingly continue to try to freeze out certain black legislators for no reason other than that they’re black and they have the temerity to “talk back.” U.S. AL Sen. Tommy Tuberville will seemingly continue in his quest to block military promotions over cultural issues. As this is posted, it appears that Congressional MAGAs will force a government shutdown over the budget. Inevitably, Congressional MAGAs will seek to limit funding to Ukraine. Congressional MAGAs are starting an impeachment inquiry into Mr. Biden seemingly without appreciable evidence although he will never be convicted in the Senate and despite the fact that both Mr. Clinton’s and Mr. Trump’s approval ratings went up after they were impeached. (They say that no president wants to be impeached; while I can see where Mr. Biden would prefer to avoid the distraction such a proceeding would entail, if he indeed did not use his Vice Presidential office to favor his son, he should welcome an impeachment effort from a political standpoint.) I can’t even imagine all the bizarre ways that MAGAs will act over the next 14 months to pander to their base while alienating all rational voters, so the best thing that Mr. Biden and his team can do in this regard is … get out of their way 🙂 .
First and Foremost –Start pounding Mr. Trump with negative ads now, and keep it up until Election Day. Those of us with legal backgrounds are well aware of court decisions in which the judge would comment about a legal point: “It is so well settled that it needs no citation [of supporting authority].” What is so well settled in the political sphere that it needs no explanation: Negative Ads Work. The Biden Campaign should stay away from Mr. Trump’s criminal indictments – such emphasis will backfire if he’s acquitted – because they don’t need them. Show Mr. Trump urging his supporters to go to the Capitol on January 6, 2021, with footage of the ensuing riot. Show Mr. Trump’s Truth Social post in which he called for the termination of the Constitution with regard to the 2020 presidential election. Show his comments about pardoning some of the rioters who have been convicted. Show that he continues to claim that he won in 2020. Show Mr. Trump’s kind words about Russian President Vladimir Putin, accompanied by footage of the destruction Mr. Putin has wreaked upon Ukraine. Show his 2016 campaign pledge to appoint judges that would overturn Roe v. Wade – and what his appointments have brought about. These are simply the first to mind; there is so much material. Mr. Biden and his team seem focused on reminding voters about what they’ve done; they need to place their overwhelming emphasis on reminding voters what Mr. Trump has done.
One might argue that it would be wise for the Biden Campaign to wait until Mr. Trump secures, in fact if not formally, the Republican nomination before it begins such attacks; what if another Republican wins the nomination? While such is an understandable concern, I’d take the risk. The Republican field is too wide, and Mr. Trump’s core support is too strong. It hasn’t withered – has, indeed, strengthened – in the wake of his many indictments. The race is about persuading hesitant Democrats, conservative independents and moderate Republicans that Mr. Trump cannot be allowed back in the White House. Start pounding him now.
Not long ago, I wrote a post in which I stated my strong belief that we need to be alert to and guard against MAGA illiberal machinations related to the 2024 presidential election. I believe just as strongly that if we exert as much effort to protect our democracy as MAGAs will do to destroy it, we will preserve our way of life; that enough of our conservative independents and moderate Republican citizens will place greater store on safeguarding our republic than on their unease about progressive excesses. It’s our game to win – but every bit as crucially, it is Mr. Trump’s and MAGAs’ game to lose. Let them lose it. Hopefully, Mr. Biden and his team will execute the appropriate strategies to both win the necessary votes and safeguard the integrity of our electoral processes.
To conclude with the only pet saying of Mr. Trump that I genuinely appreciate: We’ll see what happens.
[I write more about politics and less about what I consider traditional substantive policy issues than I ever imagined when I began entering these posts. The obviously illiberal aims of former President Donald Trump and MAGAism have made our politics the battleground upon which the life of American democracy – which I would submit surpasses even climate change, artificial intelligence, and Chinese and Russian aggression as the most vital substantive policy challenge of our time – will be won or lost.]
I concluded my 2022 entries in these pages by declaring that I considered President Joe Biden, at the midpoint of his term, the most consequential American president we have had since Franklin Roosevelt. At the same time, I noted the significant unease about his age, even among our friends who were certain to vote for the President if he ran again, and queried how Mr. Biden would electorally fare if he was running against a younger Republican opponent not so overtly autocratically toxic as former President Donald Trump.
I concluded by submitting that the best way for Mr. Biden to secure what he had achieved was by stepping aside for another Democrat better positioned to defend his advances.
Over a year ago, I declared in a different post that the Democrats’ primary challenge to retaining the White House in 2024 was Vice President Kamala Harris; that particularly because of the President’s advanced years, the widespread doubts – even among some progressives – about Ms. Harris’ readiness for the presidency made her “a political liability that could sink Mr. Biden even against Mr. Trump, and an albatross that he cannot afford against any other Republican presidential nominee.”
I concluded that entry by submitting that if the President was serious about running for re-election, I hoped that his closest aide would then soon be advising Ms. Harris that for personal reasons and with great regret, she would be advising Mr. Biden to name someone else to run with him in 2024.
Although I am confident that the President and his team are loyal followers of these pages 😉 , they somehow missed those posts. At present, progressive pundits are wringing their hands about voters’ evident concerns about Mr. Biden’s age, and some clips I’ve seen make it seem as though former SC Gov. Nikki Haley spends more time talking about Ms. Harris than she does Mr. Biden. A recent Wall Street Journal poll has Messrs. Biden and Trump tied at 46%, with 8% remaining undecided.
One can bemoan the fact that 46% of our citizens are open to voting for a man who, although he remains entitled to the presumption of innocence with regard to the 91 felony counts he now faces, has manifested undoubted authoritarian tendencies. One can perhaps rue the fact that Mr. Biden did not choose to step aside when he could have. (Last week a close friend sent me a recent article in which a pundit was still calling for Mr. Biden to step aside. My reaction: while U.S. Sens. Amy Klobuchar and Elizabeth Warren might be able to rapidly pull together enough of their 2020 campaign organizations to make 2024 runs, from a practical standpoint, they’re already far behind where they’d need to be, and the bad feelings that would inevitably erupt during the ensuing internecine free-for-all would probably hand Mr. Trump the White House; it’s too late.) We are where we are. We have no choice but to continue to win presidential elections against the autocratic forces we face until hopefully, at some point, the anarchic spell gripping so many of our citizens breaks.
I would submit that Messrs. Biden’s and Trump’s respective campaign strategies for victory are fairly clear. Mr. Trump is executing upon his; hopefully, Mr. Biden, despite what I consider some early missteps, will do the same. Here we go.
Mr. Trump. In some respects, the former president has the easier go of it. He has to draw to an inside straight as he did in 2016. Putting aside the illiberal machinations that MAGA forces will undoubtedly attempt to execute on his behalf in 2024, to actually legally win he needs but three strategies:
First, Mr. Trump’s trials are his campaign. Immediately below, you find a link to an August 28, 2023, article by New Republic Editor Michael Tomasky, entitled, “Trump’s Trials Don’t Interrupt His Campaign – They Are His Campaign” – one of the hundreds of pieces I’ve read over the years that have made me wish I was bright enough to have written. In it, Mr. Tomasky writes in part:
“Conventional wisdom, again, has held that once Trump, Rudy Giuliani, and others in his crime family have to abandon the theater of the media for the sober confines of the courtroom, they will have to stop spouting these lies, and the facts will swallow them. Again, this is true to some extent … [b]ut it also fails to understand how the fascist bond between leader and people works. … [Mr. Trump’s] campaign will be largely about himself and his martyrdom for his people. … [I]t will be what he and his followers want. Biden and his supporters want an election about empirical facts. Trump and his loyalists want an election about fascist truth.” Mr. Trump has been – there is no other word for it – a genius at making his supporters viscerally feel that an attack on him is an attack on them.
Second, Mr. Trump needs to continue to look vital. No matter how much antipathy his opponents may have for him, his animal charisma is undeniable. At 77, he is probably completely drained after a rally, but while he’s on stage, he’s generally energized, and moves much younger and lighter than he is. We all know his hair is sparser than it appears and that the blond hair color and orange skin tone come out of bottles, but the fact remains that these are what we see – not an old man’s thinning white hair and drawn skin. His impeccable tailoring hides the 50+ pounds he has in excess of the 215 reported at his Fulton County booking. He appears robust – and thus, draws a sharp visual contrast to Mr. Biden.
Finally, Mr. Trump still probably loses to Mr. Biden unless he draws the right card to win over the majority of the Wall Street Journal’s poll’s 8% undecided, who are otherwise presumably more likely to break for Mr. Biden. I can think of several: a third party candidacy that draws from Mr. Biden voters who are leery about the President but cannot countenance voting for Mr. Trump; an obvious physical reversal for Mr. Biden – such as a “freeze” like those unfortunately now afflicting Senate Minority Leader Mitch McConnell; actual evidence that Mr. Biden used his Vice Presidential position to benefit his son, Hunter; or Mr. Trump’s acquittal(s) in whatever criminal trials he faces before Election Day – which Mr. Trump will proclaim as exoneration and proof of Democratic political persecutions.
The strategies that I would suggest that Mr. Biden needs to employ to retain the White House are varied and greater in number; rather than further test your perseverance, these are best left to Part II.
[Note: we’ll leave to a later – and hopefully mercifully shorter 😉 – post commenting on the recently-published 100+ page legal article asserting that former President Donald Trump is barred from running for the presidency under Section 3 of the Fourteenth Amendment.]
“The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
Article II, Section 2; The Constitution of the United States of America
University of California, Los Angeles law professor Richard L. Hasen, a leading expert on election law, has reportedly opined that the Constitution does not bar anyone indicted, or convicted, or even serving jail time, from running for president and winning the presidency. I’ve recently had a couple of close friends ask me if I thought that former President Donald Trump could pardon himself if he is inaugurated president in January, 2025, after having been convicted on any of the multiple federal charges he now faces. I’ve heard a number of media talking heads pointedly note that because the most recent indictment against Mr. Trump in Fulton County, Georgia, involves violation of Georgia state law, he couldn’t pardon himself if convicted in that proceeding – from which I infer that these commentators believe that that Mr. Trump might well have the power to pardon himself of federal convictions if he reassumes the presidency.
While the Constitution’s vesting in the President of a seemingly unqualified pardon power for “Offenses against the United States” arguably provides a prima facie argument that if re-inaugurated president, Mr. Trump will have the power to pardon himself of any federal convictions, I will submit [of course, subject to my customary (and glaringly obvious 🙂 ) disclaimers (1) that I never dealt with Constitutional Law in my legal career and (2) that one of the pairs of sharp legal eyes that sometimes scan these pages with more experience on these issues may completely disagree]:
A president does not have the power to pardon him/herself of federal crimes. If called upon to rule, a significant majority of the Supreme Court will so hold.
Although there are undoubtedly other authorities that have opined on this issue, the opinion rendered by U.S. Acting Assistant Attorney General Mary Lawton on August 5, 1974 – three days before then-President Richard Nixon announced his resignation of the presidency – seems the most pertinent. Ms. Lawton wrote: “[Article II, Section 2 of the Constitution] raises the question whether the President can pardon himself. Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.” Ms. Lawton died at age 58 in 1993 after a distinguished career of public service. A link to her memorandum is immediately below.
Ms. Lawton’s reaction is of course the one we all had before we (cue the voice over of the late Rod Serling) … crossed over into the Trump Zone. That said, no Supreme Court, let alone this one, would be willing to base such a momentous decision upon a half-century old opinion written by an Acting Assistant Attorney General. This is where this note turns particularly geeky 😉 .
A number of the Court’s current conservative Justices are legal disciples of the late Associate Justice Anton Scalia, an adherent of “Originalism,” which Justice Scalia is reported to have described as, “The Constitution … means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”
I would submit that the best authority for what the Constitution meant when it was adopted is The Federalist, a series of eighty-five articles written in support of the adoption of the Constitution by Alexander Hamilton, James Madison, and John Jay under the pen name, “Publius.” Thomas Jefferson, no friend of Mr. Hamilton’s, described The Federalist as “the best commentary on the principles of government which ever was written.”
Links to Federalist Nos. 69 and 74 are provided below; both were written by Mr. Hamilton on the proposed President’s Constitutional powers. Although Mr. Hamilton was a proponent of a strong federal government and an empowered President, he was at pains to reassure Americans – since the United States had only secured its independence from England and King George III a few years before — that the new Constitution would not anoint a new de facto King, but rather that the President’s powers would be more akin to those then possessed by the Governor of the State of New York. In No. 69, he wrote in pertinent part:
“The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is … no punishment to which he can be subjected without involving the crisis of a national revolution. …
The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? [Emphasis Added].”
Language of a quarter of a millennium ago is obviously challenging to parse. Mr. Hamilton was clearly stressing that a President, unlike the King of England, was not “sacred and inviolable,” and that, unlike a king, he could be “subjected” to “punishment” without a national crisis. In Mr. Hamilton’s comparison of the presidency to the New York governorship, he argued that from a practical political standpoint, the Governor had greater power than the President and noted that the Governor, if leading an aborted conspiracy against the government, might pardon his “accomplices and adherents”; there was no indication that the Governor could pardon himself. Furthermore, Mr. Hamilton noted that a conspiratorial President himself might be “incapacitated by his agency” (i.e., impeached and convicted in the Senate for his role in the treasonous plot). Presumably, if a President could pardon himself, he would do so before he was “incapacitated by his agency,” and avoid the “prosecution and punishment in the ordinary course of law” that Mr. Hamilton alluded to earlier in his essay. Mr. Hamilton never indicated such could occur.
In Federalist No. 74, Mr. Hamilton returned to the presidential pardon power, declaring:
“As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law,and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. [Emphasis Added]”
Addressing the issue whether the pardon power should only be vested in the Congress in cases of treason, Mr. Hamilton wrote:
“As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate [i.e., the President] ought not to be entirely excluded. But there are also strong objections to such a plan.It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. … [T]he secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. [Emphasis Added].”
The basis of Mr. Hamilton’s argument in favor of the President’s pardon power is that a single individual “of prudence and good sense” – as contrasted with a legislature, easily moved by the passions of the day — would be able to impartially determine whether a given individual deserved a pardon. (Mr. Hamilton’s position here was arguably colored by his obvious visceral belief that the President would always be of sterling character; he commented in Federalist No. 68, “It will not be too strong to say that there will be a constant probability of seeing the [presidency] filled by characters preeminent for ability and virtue.”) Even so, since no person can be expected to be prudent or sensible with regard to his/her own guilt and punishment, it is not a long conceptual step to infer that Mr. Hamilton never envisioned that a President could pardon him/herself. Although Mr. Hamilton specifically contemplated that a President could be involved in treasonous activity, he provided no mention that the treasonous President could pardon him/herself.
Finally, let’s go to the most compelling authority one can find this side of The Godfather:
“PARDON.An act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed [Citations omitted].
EXECUTIVE PARDON is an executive act of grace exempting an individual from punishment for a crime he has committed [Citations omitted]. [Emphasis Added]”
Black’s Law Dictionary; Revised Fourth Edition
A pardon is an act of grace, which by its very nature must be bestowed by one with power on another deemed worthy of clemency. One cannot bestow an act of grace on oneself.
As Ms. Lawton noted long ago, no one can be a judge in his/her own case. Mr. Hamilton spared no effort to convince skeptical Americans that the President would not have the powers of a King. (What is more Sovereign-like than the power to forgive oneself of one’s own misdeeds?) Finally, no one can perform an act of grace for him/herself.
Are these arguments irrefutable? Of course not. Mr. Hamilton never specifically declared, “The President described in our contemplated Constitution can’t pardon himself.” Justice Scalia was also an adherent of textualism, which interprets the meaning of a legal document by its text, and there’s nothing in Article II, Section 2 that says a President can’t pardon him/herself. That said, it is hard not to anticipate that Justices Gorsuch, Kavanaugh, and Barrett, appointed by Mr. Trump, will look for a justification to enable them to assert their independence from the former president by joining Chief Justice Roberts and Justices Kagan, Sotomayor, and Jackson in rejecting such a broad claim of the presidential pardon power. As U.S. District Judge Tanya Chutkan, the judge now presiding over Mr. Trump’s Washington, D.C. insurrection trial, noted in In November 2021, when rejecting Mr. Trump’s motion to block a congressional committee’s access to his presidential records:
“Presidents are not kings.”
On a final, unfortunately more somber note: if Mr. Trump is elected in 2024, I’m wondering whether he might not be able to achieve a de facto Get Out of Jail Free Card regarding any federal convictions then lodged against him even if he can’t pardon himself. He will certainly appeal any conviction and sentence. Unless his appeal is heard and denied before he is inaugurated, query whether upon taking office he won’t instruct the Justice Department to enter pleadings conceding the merits of any appeal he has pending, perhaps thereby obtaining the reversal of his conviction or remand of his case to the trial court – where it would be suspended during the term of his presidency. Having even less criminal and appellate law background than I have constitutional law knowledge, I leave this concern to those who do possess such expertise to correct me if I’m missing the boat here. I sincerely hope that in this last respect, I am.
Although we don’t have Fox News, I was ultimately able to watch most of the debate on tape delay. By this time, you have either watched the debate and formed your own reactions, or heard others’ assessments, so we’ll just hit a few highlights.
It was a bit strange to see the seven male candidates – as well as the Fox moderator, Bret Baier — all in blue suits, white shirts, and red ties. Presumably, some clothing consultant has told the candidates that Republican voters like candidates that project red, white and blue. Being conditioned to Ronald Reagan’s presidential sartorial style – despite his undisputed patriotism, he managed without flag lapels and wore suits and ties in varying hues — I thought the male candidates looked like Mini-Mes of former President Donald Trump.
I indicated in a pre-debate post that a candidate I wanted to see was Businessman Vivek Ramaswamy. I wouldn’t have thought it possible for any bona fide presidential candidate sharing a stage with seven others to trigger such a strong negative reaction in me within 15 minutes, but Mr. Ramaswamy achieved it. He is an irritating, naïve, superficial, supercilious grandstander. He has learned one valuable lesson about Mr. Trump from Russian President Vladimir Putin, however; by saying nice things about Mr. Trump, it makes it significantly less likely that Mr. Trump will criticize him much (at least as long as Mr. Trump’s lead over him remains significant). One pronouncement, however: Mr. Trump will never pick Mr. Ramawamy for a running mate. Mr. Ramaswamy is too good a showman; Mr. Trump would never risk the possibility that he could be upstaged.
Six of the eight on stage – excluding former NJ Gov. Chris Christie and former AR Gov. Asa Hutchinson – agreed that they’d support former President Donald Trump if he is the Republican presidential nominee, although I believe that most indicated (I’m not sure about Mr. Ramaswamy) that they believe that President Joe Biden defeated Mr. Trump in 2020 and that Mr. Biden is, accordingly, the legal president of this country. Hearkening back to a point I posted recently, this means that those who have declared that they will support Mr. Trump – who continues to maintain that he won in 2020 – if he wins the nomination will do so although, given their conclusion about Mr. Biden’s legitimacy, they must necessarily consider the former president a traitor, a liar, or a lunatic.
Let me join the chorus: I thought former SC Gov. Nikki Haley had the best night. I thought former Vice President Mike Pence had a good night. She was strong on issue specifics; he was strong on duty (although he dated himself at times by parroting Mr. Reagan’s sayings). Putting aside wide differences I have with them on domestic policy, each looked like s/he was actually qualified to be president of the United States.
From a political handicapping standpoint, I thought the panel as a whole dug Republicans deep general election holes on abortion and spending. On the former, only Ms. Haley seemed to give herself some wiggle room to reassure moderate conservatives alarmed by the Republicans’ generally draconian position; on the latter, their mantra about cutting spending will ultimately run into Democrats’ claims that any cuts will impact Social Security and Medicare, programs hugely popular with the Trump populist wing of the party. Less apparent but every bit as irrational as some candidates’ acknowledgement of Mr. Biden’s legitimacy coupled with their pledge to support Mr. Trump if he is the Republican nominee was some candidates’ harrumphing about cutting taxes while simultaneously bemoaning our increasing deficit; anybody with a history book (admittedly, this may put FL Gov. Ron DeSantis at a disadvantage; such a potentially Woke reference may already be banned in Florida 😉 ) is aware that none of the tax cuts respectively wrought over the last 40 years by Mr. Reagan, President George W. Bush, and Mr. Trump “paid for themselves”; each increased our deficit. Finally, although I have seen some commentators disagree on this point since the debate, the strong support of Ukraine voiced by Ms. Haley, Mr. Pence and former NJ Gov. Chris Christie seemed to me to carry significantly more weight than Mr. DeSantis’ waffling or Mr. Ramaswamy’s naïvete.
A few quick snapshots. ND Gov. Doug Burgum didn’t seem to recognize that he’s not in North Dakota any more. Mr. Hutchinson seemed less grandfatherly and more conservative and strident than he’s appeared in some profiles I’ve seen, but his primary challenge seems to be Mr. Pence, arguably a better choice for Republicans seeking an ethical, grandfatherly figure. Mr. Christie pounded Mr. Trump effectively, but seems highly unlikely to win the nomination even if Mr. Trump falters – although if he finishes second to Mr. Trump in the New Hampshire primary, that will indicate notable general election weakness for Mr. Trump and I suspect cause significant pangs of regret for NH Gov. Chris Sununu, who six months ago I felt had the best shot of any potential primary challenger to Mr. Trump.
Again, conceding I’m joining the chorus: U.S. SC Sen. Tim Scott was less impressive than I expected. For a man who’s supposed to have a different and upbeat tone, to me he came across as programmed and grumpy. Watch for him to attack his fellow South Carolinian, Ms. Haley, pretty aggressively in the next debate, because she clearly stole the show from him and at most only one of them will emerge from the South Carolina primary. If she outscores him in Iowa and New Hampshire and rides momentum to beat him in their native Palmetto State, he’s done.
I’ve left the tallest sapling in the room for last. It took me a while, but I was finally able to conceptualize my impression of Mr. DeSantis in the context of the candidates’ discussion as to whether Mr. Pence did the right thing on January 6, 2021. They all, more or less – either definitively or hesitatingly – indicated that they felt that Mr. Pence had done his duty to protect our republic in the face of Mr. Trump’s unremitting hounding. The question I’d pose – not to them, but to you, is this:
If any of the other seven candidates on that stage had been subjected to the extreme pressure Mr. Pence endured, which do you feel would have performed to protect our republic as he did?
My gut says:
Mr. Burgum, Mr. Christie, Ms. Haley, Mr. Hutchinson, and Mr. Scott all would have done their duty.
I’m leaving Mr. Ramaswamy out of it; I’m not sure he’d know what his duty was.
Mr. DeSantis would have known the right path – but he would have caved under the pressure. Once I realized that was my visceral impression of him, I didn’t need to consider him any further.
McCoy's Noise 