My apologies for disturbing you on consecutive days, but … I can’t resist. In the last few days much has been made in the mainstream media as well as in yesterday’s post linking former President Donald Trump’s use of words and phrases describing Mr. Trump’s opponents – principally among them, the word, “vermin” — to the words and phrases used by Fascist Nazi Fuhrer Adolf Hitler during the 1930s to depersonalize Hitler’s opponents. On his social media platform, Mr. Trump referred to his opponents (whom he clearly sees as enemies) as “Communists, Marxists, Fascists, and Radical Left Thugs that live like vermin within the confines of our country.”
During the day’s endeavors following yesterday’s post, I happened to see a report of a Trump Spokesman’s response to the outcry about Mr. Trump’s use of frankly fascist language, but I dismissed and ignored it because I really thought it was a spoof like many others one sees in liberal quarters to mock the former President. Particularly given the substance of the sharp criticism being leveled against Mr. Trump, I didn’t think anyone on the Trump team would actually be dumb enough to say what was being reported as its response — the irony would be too think, even for MAGAs.
I was wrong. It was real. For those who missed it:
“Those who try to make that ridiculous assertion [comparing Mr. Trump’s rhetoric to that of Hitler] are clearly snowflakes grasping for anything because they are suffering from Trump Derangement Syndrome and their entire existence will be crushed when President Trump returns to the White House [Emphasis Added].”
We’ll come back to the breadth of Mr. Trump’s characterization of his opponents as a component of a future post. Noting the blindingly oblivious fascist irony is sufficient for today.
This recently passed through my Twitter feed. It is perhaps the ugliest, most upsetting, and yet most apt entry I have ever published in these pages. I have never heard of Mr. Parkhomenko, but feel that this is worthy of your attention.
It was only after a recent note published in these pages regarding U.S. LA Rep. Mike Johnson’s election as Speaker of the House of Representatives that the significance of one aspect of former President Donald Trump’s triumphant social media declaration about Mr. Johnson’s selection occurred to me: in referring to Mr. Johnson as, “MAGA MIKE JOHNSON [my italics],” Mr. Trump made no reference to Mr. Johnson being a Republican. I would venture that this omission was understandable and perhaps intentional. Mr. Trump has an acute understanding of branding, and MAGA has become the brand for Mr. Trump’s political organization. MAGAs are now so far from the principles of the Republican Party of Presidents Lincoln, Theodore Roosevelt, Eisenhower, Nixon (recall that Mr. Nixon arguably had grounds to contest the 1960 presidential election outcome, and chose not to do so in order to maintain national stability), Ford, Reagan and Bushes that it is no longer accurate to refer to Mr. Trump’s supporters as “Republicans.” Members of the Trump Sect shall hereafter be referred to in these pages strictly as “MAGAs.” What this political transition augurs for those that are, indeed, still Republicans is likely to be the stuff of a future post.
On a personal note: I have posted less over the last six months than in previous years; one major factor has been a desire to be respectful of your time. It is obvious to anyone reading the majority of these notes in recent months that I have become fixed – perhaps fixated 😉 — on the rising authoritarian shift in our country brought about by the MAGA movement. It is the most perilous threat to the existence of democracy on our planet since the rise of Adolf Hitler. Even so, how many times can one impose on those who have done a blog the honor of following it by repeating in different ways the same message: that while Mr. Trump and elected MAGAs are the venomous tip of the spear, the truly dangerous poison in our national psyche is that so many of our citizens either embrace it or abide it?
Given my level of alarm at the current sentiment within our polity and given the cathartic benefit these pages provide me, I am very likely to continue with the same theme at regular intervals between now and Election Day in November, 2024. Your time is valuable; these notes many not warrant your attention.
Post by former President Donald Trump on his social media website, Truth Social.
Credible polling data indicates that over 40% of our citizens – not a fringe minority that can be comfortably ignored — have expressed a willingness to vote for Mr. Trump if he is the Republican Party’s 2024 presidential nominee. Republicans in the United States House of Representatives have elected U.S. LA Rep. Mike Johnson, whom I have seen described as, “[MAGA U.S. OH Rep.] Jim Jordan wearing a coat” and “a primary architect of the attempt to overturn the results of the 2020 election,” as the Speaker of the House of Representatives. Mr. Johnson’s selection makes him, by law, second in succession to the presidency of the United States.
Long time readers of these pages may recall that way back, when Mr. Trump nominated William Barr to be his Attorney General, I indicated that we needed to give Mr. Barr a chance to see how he performed in office before declaring him Mr. Trump’s lackey.
We saw how that turned out. I don’t care if Mr. Johnson is milder in manner than Messrs. Trump and Jordan or many in their cohort. We no longer have the luxury of giving MAGAs the benefit of the doubt. Say whatever else you will about them: they make their intentions plain. They intend to institute an American Apartheid.
What is set forth below is the renowned part of one of Abraham Lincoln’s most renowned addresses, delivered on June 16, 1858, in Springfield, Illinois, over two years before he assumed the presidency. Several preliminary notes:
The italics in the passage are as they appear in the text of Mr. Lincoln’s address in the volume from which it is drawn; presumably, he had underscored them to be sure that he emphasized them as he spoke.
In his speech, Mr. Lincoln provided no attribution for the quote, “A house divided,” presumably expecting that his listeners would understand his allusion to the Gospel of Matthew, 12:25.
I have substituted for only three words Mr. Lincoln declared 165 years ago. As you read the speech, I expect that you’ll readily discern what three words I inserted – one of which is italicized, since it replaces a word Mr. Lincoln underscored in his remarks — and what three words my substitutions replaced.
“Mr. PRESIDENT and Gentlemen of the Convention.
If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it.
We are now far into the fifth year, since a policy was initiated, with the avowed object, and confident promise, of putting an end to fascism agitation.
Under the operation of that policy, that agitation has not only, not ceased, but has constantly augmented.
In my opinion, it will not cease, until a crisis shall have been reached, and passed.
‘A house divided against itself cannot stand.’
I believe this government cannot endure, permanently half fascist and half free.
I do not expect the Union to be dissolved – I do not expect the house to fall – but I do expect that it will cease to be divided.
It will become all one thing, or all the other.
Either the opponents of fascism, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new – North as well as South.
Have we no tendency to the latter condition?”
You get it. One could argue that Mr. Lincoln’s words (as modified herein) have chillingly broader implications for our entire democracy today than they did even in the toxic circumstances in which they were uttered. (Despite the South’s outrage at Mr. Lincoln’s election to the presidency in 1860 and its consequent attempt to secede from the Union, nobody claimed that the election outcome was “rigged,” or stormed the Capitol.)
Since we are able, in Mr. Lincoln’s words, to determine “where we are, and whither we are tending,” I would submit that we must, as he suggested, “judge what to do, and how to do it.”
All that read these pages are well aware of the deep misgivings I have about Vice President Kamala Harris’ substantive readiness to assume the presidency. That said, I am tired of democrats’ (small “d”) lack of imagination about the forces they face. As long as Mr. Johnson holds the House Speakership, President Joe Biden and Ms. Harris should never – never – allow themselves be in the same place at the same time.
As to our future: Are enough of our people sufficiently motivated to exert all legal (this qualification is vital; otherwise, neither side is better than the other) measures to protect our democracy?
“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.
Yesterday, U.S. UT Sen. Mitt Romney announced that he would not seek reelection in 2024, noting in a deft and apt slap at both President Joe Biden and former President Donald Trump, “Frankly, it’s time for a new generation of leaders.” As all who care are aware, Sen. Romney has consistently stood, at times virtually alone in his party, against the malign behavior wrought upon our nation by Mr. Trump and his sect. Throughout his life, Mr. Romney has been an active member of his church; however, unlike large segments of Christian Evangelicals, he has not found his opposition to abortion incompatible with a repugnance at Mr. Trump’s abhorrent behavior. As long ago as a March, 2016, speech, Mr. Romney called Mr. Trump “a phony, a fraud … He’s playing members of the American public for suckers.” Mr. Romney was the only Republican Senator to vote to remove Mr. Trump following the former president’s first impeachment in the House of Representatives for seeking to pressure Ukrainian President Volodymyr Zelenskyy to assist him politically against Mr. Biden, and the Senator voted to remove Mr. Trump following the former president’s second House impeachment for inciting the attack on the Capitol on January 6, 2021.
The Republican Party’s 2012 presidential nominee, Mr. Romney was handily defeated by then-President Barack Obama. I think highly of Mr. Obama personally; I voted for him in 2008 and 2012. I think he did a good job in his first term. That said, a case can certainly be made that Mr. Romney would have been the better choice in 2012. In a March, 2012, CNN interview, Mr. Romney called Russia, “Our number one geopolitical foe,” and was widely derided by Mr. Obama and his surrogates for his “dated” views. At the time, I agreed with Mr. Obama and his team. We were wrong. Mr. Obama was, in my view, a poor foreign policy president in his second term. The strong impression remains that Mr. Romney would have done better.
In the 1970s Mr. Romney joined Bain & Company, ultimately became its Chief Executive Officer, and helped lead the company through a financial crisis. In 1984, he led a spin-off, Bain Capital, which became a highly successful private equity investment firm. He later successfully led the Salt Lake Organizing Committee for the 2002 Winter Olympics.
The Senator’s announcement made me reflect upon his impressive career in both the public and private sectors and to contrast it with the behavior of so many of our officeholders of both parties; Speaker of the U.S. House of Representatives Kevin McCarthy, currently groveling before the House MAGA Freedom Caucus by instituting an impeachment inquiry against Mr. Biden despite a seeming lack of evidence of wrongdoing on Mr. Biden’s part, comes most immediately to mind. It reminded me of comments by another storied Republican:
“Almost immediately after leaving Harvard in 1880 I began to take an interest in politics. I did not then believe, and I do not now believe, that any man should ever attempt to make politics his only career. It is a dreadful misfortune for a man to grow to feel that his whole livelihood and his whole happiness depend upon his staying in office. Such a feeling prevents him from being of real service to the people while in office, and always puts him under the heaviest strain of pressure to barter his convictions for the sake of holding office. A man should have some other occupation – I had several other occupations – to which he can resort if at any time he is thrown out of office, or if at any time he finds it necessary to choose a course which will probably result in his being thrown out, unless he is willing to stay in at cost to his conscience.”
The Autobiography of Theodore Roosevelt; Theodore Roosevelt, Sagamore Hill, October 1, 1913
Whether or not one agrees with Mr. Romney on every substantive issue, he has repeatedly shown himself a man of honor and conscience, unwilling, in Mr. Roosevelt’s words, “to barter his convictions” to appease his party’s prevailing sentiment. He will remain as estimable upon leaving office as he was in office. His departure will not be his loss; it will be ours.
[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.
Much of my career involved negotiation. There was one negotiating principle that I found by far the most valuable in representing our organization (please excuse the male gender reference):
Assume that the other guy is brighter than you are, and knows at least as much as you do. He knows his weaknesses that you intend to take advantage of. How will he try to counter and overcome them?
On MSNBC’s Morning Joe of August 25, amid coverage focusing on former President Donald Trump’s August 24th booking in the Fulton County Jail (complete with mug shot) for the charges that he conspired in violation of Georgia state law to unlawfully overturn his Georgia 2020 presidential election loss, former Republican National Committee Chairman Michael Steele cogently (and chillingly) articulated my deepest fear for our republic since it became clear, despite Mr. Trump’s obvious incitement of the January 6th insurrection and President Joe Biden’s inauguration, that Mr. Trump wasn’t going to fade away and that the spell he has cast over a large segment of our electorate wasn’t going to dissipate:
“[With the Georgia booking now completed] [w]e are where we knew we’d be. … I think we need to contextualize all of this. … We already know what the politics is. We’re seeing it play out. [U.S. OH Rep.] Jim Jordan and his ilk are all on defense, to block and tackle for Donald Trump to slow this process because in their warped mind, Donald Trump wins next year, come hell or high water. The fix is in in Election Boards and in processes around the country. They’re already setting it up, so let’s not act surprised and act like, ‘Oh my God – we didn’t see this coming!’ They’ve been telegraphing and preparing for it for over two years now. So we know what they’re doing on the ground in a lot of states, particularly key states like Wisconsin, Michigan, Pennsylvania – shall I go on? We’ve heard these places before, right? So let us stop being surprised by stuff, and get in the game. And understand exactly what Jim Jordan and all the others are doing to set up 2024. And when that happens, we’ll know how to deal with it because we will have dealt with it before that moment. … So let’s understand the moment beyond the shock and awe of [Mr. Trump’s indictments and the mug shot] and recognize that the politics is in play, the legal system is doing what it should do, and the American people now need to decide whether they want to put [Donald Trump] back in the White House.”
Morning Joe host Joe Scarborough actually seemed a bit nonplussed by Mr. Steele’s comments, and immediately pivoted to the safer (and for the show’s panel) happier reveling in Mr. Trump’s legal misfortunes. Mr. Scarborough didn’t want to go into the dark; he preferred to stay with the theme that the law was going to do its job with the attendant implication that Mr. Trump would consequently be disqualified from regaining the presidency.
I mentally stuck with Mr. Steele. His comments have prompted me to pester you with this note.
MAGAs around the country are – to use Mr. Steele’s word – warped, but it is an extremely dangerous misconception – and perhaps fatal for our democracy – to underestimate them, to think they are stupid. Assume that they have decided what many, including me, calculate: Mr. Trump has too much baggage to defeat Mr. Biden in an above-board, fairly determined election; that he is too distasteful to too large a segment of our electorate and that even on substantive policy, the Republican position on the emotive issue of abortion – a challenge for any Republican — will be an additional millstone around his neck. If Mr. Trump is the Republican presidential nominee, their only real hope to win by the rules is if a third party candidate draws support from Mr. Biden, or if the President suffers a serious health incident between now and Election Day, 2024, leaving voters with a choice between Mr. Trump and Vice President Kamala Harris (I haven’t heard evenone of our progressive friends in very progressive Madison, WI, suggest that Ms. Harris could beat Mr. Trump in Wisconsin.)
So if you’re MAGA, what do you do? As Mr. Steele pointed out, you do your best to rig state election boards and election processes. You continue to sow distrust in the willingly gullible about the integrity of our election processes. You fund allegedly “centrist” third party candidacies. Perhaps you realize that President Biden’s ability to use the U.S. Armed Forces to quell localized armed rebellions against his declared re-election will be hampered if the authority of the military’s chain of command is subject to question. (At this time, responsibilities of three members of the Joint Chiefs of Staff are being performed by acting commanders, and hundreds of military promotions and reassignments are on hold, due to a Senatorial stop by U.S. AL Sen. Tommy Tuberville; the disruption Mr. Tuberville has caused will reportedly take months to unravel).
In the entire saga around Mr. Trump’s various indictments, the only time I’ve felt the “shock and awe” to which Mr. Steele referred was not with regard to the Georgia mug shot, or with regard to the various revelations regarding Mr. Trump’s alleged mishandling of classified documents; it was reading the indictment brought by Special Counsel Jack Smith describing the conception, the planning, the audacity, and the malign disregard for liberal democracy that was involved in the execution of the Fake Electors scheme. I assume most of us – certainly including me – thought that the 2020 election was effectively over in December, 2020, when the states certified their respective slates of electors.
We didn’t think big enough. We had too much trust and too little imagination.
2024 will be a two-front struggle. First, Mr. Trump or any other Republican candidate exhibiting MAGA tendencies needs to be actually fairly outvoted in enough states to give Mr. Biden a valid Electoral College victory. There is a second front, every bit as important: safeguarding the victory through legal processes, keeping in mind that MAGAs – to be sharply and completely differentiated from moderate conservatives, rank and file traditional Republicans, and those prominent GOP members such as former Vice President Mike Pence, U.S. UT Sen. Mitt Romney, and former U.S. WY Rep. Liz Cheney, all of whom respect our democratic processes – won’t stop if they lose on the merits, and that there is nothing they won’t dare. They seek an American Apartheid.
But for Mr. Pence, our lack of imagination might have been fatal to our republic in 2020. We can’t risk another such lapse. If we don’t think in these terms, we will deserve the autocracy that will descend upon us.
These pages will almost certainly spout a lot of Noise in the coming months about the innards of our electoral contests, assessments of the political strength of different candidates and the sentiments of various segments of our electorate. These aspects of our electoral process remain, of course, vital; if Mr. Biden doesn’t win fairly and justly in 2024, there will be no need for MAGA machinations. That said, we need to think like MAGAs, and then figure how to counter the illiberal measures they have proven themselves willing to undertake if Mr. Biden wins.
Too Armageddon, too apocalyptic for you? I hope you’re right; but after what we’ve seen over the last six years, are you sure?
In Mr. Steele’s words: We need to get in the game.
As virtually all are aware, Fulton County (GA) District Attorney Fani Willis has announced an indictment issued by a Fulton County Grand Jury against former President Donald Trump and 18 other named co-conspirators under Georgia’s state Racketeer Influenced and Corrupt Organization Act (“RICO”), alleging they conspired to unlawfully overturn Mr. Trump’s Georgia 2020 presidential election loss.
The indictment reportedly runs to 100 pages. I haven’t read it. Although one can never be sure, it appears to be the last major shoe to drop of the criminal hazards that legal commentators have been indicating for months might well be brought against Mr. Trump and one or more of his cohort arising from their alleged insurrectionist activities following the 2020 presidential election.
One doesn’t need a legal background to surmise that any case with so many charges against so many defendants (and thus, involving so many, many defense lawyers 😉 ) is not going to trial any time soon.
The hallmark of our criminal justice system is that all defendants are presumed innocent until found guilty beyond a reasonable doubt by the unanimous verdict of 12 citizen jurors. As those of us who fear for our democracy if Mr. Trump returns to the White House are acutely aware, prosecutors’ daunting challenge in each of the two federal cases now pending against Mr. Trump respectively for attempting to defraud the United States and for mishandling of classified documents, in the New York case alleging his falsification of business records in violation of NY state law, and in the Georgia RICO case, is to get all 12 jurors to find him guilty. Mr. Trump will be free if — in a polarized, hyper-toxic political environment rife with propaganda in which he will be supported by a rabid cult already shown to be willing to use intimidation and violence on his behalf — he can persuade just one juror in each case that he is not guilty beyond a reasonable doubt.
That said: one set of charges in the Georgia case stands out to me: three counts against Mr. Trump for “Solicitation of Violation of Oath by a Public Official.” All of us have heard the recording of Mr. Trump’s phone call with Republican GA Secretary of State Brad Raffensperger, in which Mr. Trump – despite Mr. Raffensperger’s assurances that there was no evidence that Georgia’s presidential vote tallies were materially inaccurate — asked Mr. Raffensperger to “… find 11,780 votes” after Georgia state officials had officially reported that President Joe Biden’s margin of victory in the state was 11,779. As far as I know, Mr. Trump has never denied that the call occurred nor claimed that the tape is doctored.
The evidence seems damning. It has brought home to me the magnitude of the challenge facing Mr. Trump. The former president is facing four sets of able prosecutors (although Special Counsel Jack Smith leads both federal prosecutions, presumably he has two able lieutenants respectively leading separate teams dedicated to each of the federal cases) asserting tens of felony counts against him in four forums (at least three presumably hostile, whose jurisdiction is nonetheless legally unassailable). To retain his liberty, he has to run the table – get a Not Guilty verdict on them all. If Mr. Trump is found guilty on just one of these many felony counts he faces (let’s save perhaps for another day the scope of the Constitutional power of Pardon he might have regarding his own federal felony convictions if inaugurated president in 2025), he is seemingly done for.
So from either side of the table: It takes just one.
McCoy's Noise 