2024 Presidential Electoral Maxims and Realities

I have been somewhat taken aback by Democrats’ hemming and hawing about whether President Joe Biden should continue his candidacy against former President Donald Trump in the wake of what, by all accounts, was a disastrous debate performance on June 27. For those who believe both that the President’s campaign has sprung a fatal leak and that the fate of our democracy depends upon defeating Mr. Trump, such dilly-dallying is inexplicable. I’ve been considering a number of maxims I accept in reflecting whether I was too hasty when I declared in these pages after the debate that he should step aside. Let’s review them.

If they’re talking about Biden, Trump is winning. If they’re talking about Trump, Biden is winning. Right now, they’re talking about Mr. Biden’s age, frailty, and acuity. They’re not talking about Mr. Trump. Progressive pundits keep declaring that attention should not be centered on Mr. Biden but instead upon Mr. Trump’s evident authoritarian and aberrant inclinations. Such assertions ignore reality. Mr. Trump has said and done so many outrageous things over the last nine years that the public is inured to them. To think that the former president will say something between now and Election Day that will materially affect the trajectory of the race is simply Woke naiveté.

The first party to break out of the “Double Hater” (a media description for the majority of Americans who polls indicate don’t want either man for the next four years) Paradigm will win the White House. By rejecting former SC Gov. and U.N. U.S. Amb. Nikki Haley, the Republicans have already blundered away (or were bullied out of) their opportunity to present voters a fresh face. Now, it’s the Democrats’ turn – one way or the other. We’re conditioned by our commercial culture to be attracted to the new. The public interest and excitement that would be generated by a different Democratic nominee cannot be overstated. The day before he went to prison 🙂 , the Washington Post quoted Trump advisor Steve Bannon: “Trump’s [presidential debate victory] was a Pyrrhic victory. … [If Mr. Biden withdraws] [y]ou’re going to take out a guy [we] know [we] can beat … and we’re going to have a wild card.”

A vote for anyone except Biden is a vote for Trump. The election will not be decided by the bases of either party. It will be determined by the votes of swing state undecideds. If those who detest Mr. Trump but consider Mr. Biden physically unable to serve another four years decide to either vote for a third party candidate or stay home, Mr. Trump wins.

Democrats have the more popular side in most of the substantive issues now facing the country. Apparently true; in the abortion issue, Mr. Trump’s offhand comments about revising Social Security and Medicare, his obvious past kowtowing to Russian President Vladimir Putin, and his obvious incitement of the January 6^th insurrection seem to provide Democrats an extremely strong hand to persuade decisive swing state swing voters that the former president is morally, substantively, and intellectually unfit to serve another term. (Democrats arguably even have the means to blunt Republicans’ potent immigration thrusts by noting that Mr. Trump publicly took credit for scuttling a bipartisan immigration bill.) But this only underscores the President’s weakness as a standard bearer because polls uniformly indicate that he is losing.

The most important last: former President Bill Clinton’s oft-stated observation: Elections are about the future. Mr. Biden keeps talking about what a good job he has done. Even so, those who appreciate what he’s done are understandably focused on where we go from here. (Recall that less than three months after the Allies defeated the Nazis, the British people voted out Prime Minister Winston Churchill and his Conservative Party, believing the Labor Party could better lead the United Kingdom in the postwar era.) Even before the debate, virtually all Biden supporters whom I spoke to expressed severe reservations about his age. (“He’s so old,” with a shrug or shudder.) They truly doubt his ability to effectively conduct the presidency until he’s 86. This is unlike the misgivings spawned by former President Ronald Reagan’s feeble first debate performance in 1984; in that contest, the majority of public didn’t tune in with the preconceived notion that Mr. Reagan was too old to serve another term. Mr. Biden’s performance merely confirmed and reinforced doubts that were already there; his ability to reassure the public through subsequent appearances is accordingly significantly less than Mr. Reagan had. I’m personally appalled by Mr. Biden’s excuses that on the most important night of the 2024 presidential campaign, he maybe had a cold, or was exhausted, or had jet lag (a week after his last trip), or didn’t follow his instincts, or whatever. I don’t think his performance can be dismissed as one bad night – as one might a poorly-delivered stump speech among dozens of others. The Debate was the night. And he bombed. It is not unreasonable for voters to want a leader who’s able to respond best when most challenged. While Mr. Trump is also obviously slipping physically and mentally, his animated manner makes his decline less apparent to the casual observer.

Sports presents trite (in this context) yet perhaps apt allegories. Jackie Smith is enshrined in the Pro Football Hall of Fame for his performance as a tight end over the 1960s and 1970s; yet all the casual football fan remembers of Mr. Smith is that he dropped an easy pass that cost the Dallas Cowboys Super Bowl XIII. Bill Buckner had an outstanding career, with over 2,700 career hits and records for most assists by a first baseman in a season; yet all the casual fan recalls is that he let a ball roll through his legs that cost the Boston Red Sox the 1986 World Series. Sometimes, one big event outweighs all else. Cruel? Certainly. Reality? Without doubt.

The upcoming presidential election will be decided not by diehards but by casual fans.

Now, to the realities.

Mr. Biden has a hammerlock on the Democratic Party’s presidential nomination. While I put little credence in the President’s claims to Congressional Democrats that during the primaries, Democratic voters spoke “clearly and decisively” on his behalf – in the wake of his debate performance, I’d like to see how the President would now fare against a credible Democratic opponent – it cannot be denied, as the President also noted in his communication, that he is the Democratic Party’s presumptive nominee. He will be the nominee unless he voluntarily chooses to withdraw.

You can’t replace somebody with nobody. The best argument I have heard for the President continuing in the race is that Democrats are most likely to turn to Vice President Harris if he withdraws. While I’m ready to be convinced otherwise, I’ve heard of no polls indicating that Ms. Harris would fare better against Mr. Trump than Mr. Biden in the swing states (her ability to run up bigger totals than Mr. Biden in deep blue states – which will show up in national polling numbers – is irrelevant.) While I understand that any attempt to bypass Ms. Harris might trigger a revolt by the Democratic Party’s powerful constituency of color, if former President Barack Obama shares my concerns about Ms. Harris’ electability, Mr. Obama is going to have to take a hand here. (This note is long enough without my spouting about the pros and cons of other potential Democratic nominees. I can name at least two that I think could beat Mr. Trump in Wisconsin; for each of them, MD Gov. Wes Moore would be an excellent running mate.)

Mr. Biden is apparently choosing to pass the buck to the Lord Almighty. During an interview with George Stephanopoulos following the debate, Mr. Biden declared, “I mean, if the Lord Almighty came down and said, ‘Joe, get out of the race,’ I’d get out of the race. The Lord Almighty’s not coming down.” While the President is by all accounts a man of deep faith, the rather flip nature of his comment invites a response which I – and I suspect he – heard in our youth: “The Lord helps those who help themselves” – which I would suggest that in this context, means He expects the President to use his power of discernment to determine and take the steps which will best enable America to preserve its democracy. In retrospect, the Biden Team’s decision to hold a debate before the Democratic Convention has unwittingly provided Democrats the opportunity to change course that would not have been evident or available otherwise.

I prefer to post on either Friday or Monday, and targeted this note for today for much of the week; I concede that I now feel a bit caddish about its timing, like I’m piling on when it is reported that quite a number of Democrats are going to call for the Mr. Biden to step aside in the near future. That’s as may be. I continue to believe that the President should end his candidacy.

If Mr. Biden persists, the fate of our democracy will rest on his ability to fulfill his now-shaky pledge to defeat Donald Trump this November. In the end, he might be right; recall that the specter of Donald Trump stilled what all forecast to be a “Red Wave” in the 2022 federal election cycle. Although I believe that the President is a genuinely good man who means well, if he loses, the consequences of his decision to stay in the race – a decision that a close friend described to me as “pure hubris” last weekend – will fall upon all of us; but among those opposing the authoritarian impulses of Mr. Trump and his MAGA cultists, the responsibility for the destruction of our democracy will ultimately rest with Joseph R. Biden, Jr., and with him alone.

We’ll see what happens.

What Makes America Beautiful?

[Marking a national holiday usually prompts me to enter an optimistic note born of the festive nature of the occasion. Given former President Donald Trump’s lead over President Joe Biden in most polls – despite Mr. Trump’s adjudicated criminality and abhorrent conduct of the presidency, which culminated in the storming of our nation’s Capitol on January 6, 2021 – this anniversary of the founding of our nation seems to me instead the right time for each of us to ponder what sort of America we want. A close friend of ours – an ardent Trump supporter, who vehemently maintains that the 2020 election was stolen from Mr. Trump — recently said to one of us, “Democrats are destroying this beautiful country of ours.” No matter what else I have ever said or will ever say about Mr. Trump in these pages, there is one area in which I have absolute faith in him: If he is elected in November, he will do what he says he will do. What follows is a post published on September 30, 2021; since it seems even more relevant today than it was then, I am taking the liberty of reentering it here.]

On the Quest for an American Apartheid

Earlier this week, I entered a link in these pages to Robert Kagan’s September 23, 2021, Washington Post essay, “Our Constitutional Crisis Is Already Here.” There, Mr. Kagan wrote in part:

“Trump is different, which is one reason the political system has struggled to understand, much less contain, him. The American liberal worldview tends to search for material and economic explanations for everything, and no doubt a good number of Trump supporters have grounds to complain about their lot in life. But their bond with Trump has little to do with economics or other material concerns. They believe the U.S. government and society have been captured by socialists, minority groups and sexual deviants. They see the Republican Party establishment as corrupt and weak — ‘losers,’ to use Trump’s word, unable to challenge the reigning liberal hegemony. They view Trump as strong and defiant, willing to take on the establishment, Democrats, RINOs, liberal media, antifa, the Squad, Big Tech and the ‘Mitch McConnell Republicans.’ His charismatic leadership has given millions of Americans a feeling of purpose and empowerment, a new sense of identity.”

While Mr. Kagan spent much of his piece focusing on the dangers to our system of government presented by former President Donald Trump and his nationwide network of Republican acolytes, in the passage above he referenced what I consider to be the primary source of our danger: us. We are no longer, as we were taught in the Pledge of Allegiance, “One nation … indivisible.” United States citizens have two wildly divergent and deeply engrained inclinations as to what makes America. Speaking in generalizations, one segment — demographically older, white, professed Christian, sexually straight, English-speaking, and more rural in outlook — views America to be the product of traditional American ethnicities, customs, cultural experience, and memory; the other segment — younger, multi-complexioned, multi-theistic/atheistic, multi-lingual, multi-sexual and -gender, and more urban, with relatively lesser regard for traditional American experience and memory – views America as a system of government providing each individual the freedom, within the purview of the safety of the body politic, to not conform to traditional American customs and values.

What makes America … America?

If any reader of these pages is willing to review a volume s/he may well find abhorrent, I would recommend State of Emergency, written by former Republican Presidential Candidate Patrick Buchanan in 2006. Mr. Buchanan, who worked in the Nixon, Ford, and Reagan White Houses, is – although reportedly called out for bigotry during his career by conservative commentators William F. Buckley, Jr. and Charles Krauthammer – both fluent and unquestionably knowledgeable about American history and policy. State of Emergency is primarily an assault on what Mr. Buchanan perceived as an unhealthy influx of Mexicans into American society. It is a book that Mr. Trump, if he knew history, would have conceived; if he could write, would have written. My familiarity with alt-right theorists isn’t that wide, but Mr. Buchanan’s candidacies were in retrospect clearly forerunners of Mr. Trump’s, and in State of Emergency he set forth what may be among the most articulate expression of the theories underlying what has become Trumpism:

“[Patriotism] is a passionate attachment to one’s own country – its land, its people, its past, its heroes, literature, language, traditions, culture, and customs. … There is a rival view … that America is a different kind of nation. Unlike Ireland, Italy, or Israel, the United States is not held together by the bonds of history and memory, tradition and custom, language and literature, birth and faith, blood and soil [Note: “Blood and Soil” was a Nazi slogan]. Rather, America is a creedal nation, united by a common commitment of all her citizens to a set of ideas and ideals. … Demonstrably, this is false. Human beings are not blank slates. Nor can they be easily separated from the abiding attachments of the tribe, race, nation, culture, community whence they came. Any man or any woman, of any color or creed, can be a good American. We know that from our history. But when it comes to the ability to assimilate into a nation like the United States, all nationalities, creeds, and cultures are not equal. To say that they are is ideology speaking, not judgment born of experience. … Should America lose her ethnic-cultural core and become a nation of nations, America will not survive.”

There are, ironically, corresponding echoes of Mr. Buchanan’s comments in Mr. Kagan’s essay:

“Most Trump supporters are good parents, good neighbors and solid members of their communities. Their bigotry, for the most part, is typical white American bigotry, perhaps with an added measure of resentment and a less filtered mode of expression since Trump arrived on the scene. But these are normal people in the sense that they think and act as people have for centuries. They put their trust in family, tribe, religion and race. Although jealous in defense of their own rights and freedoms, they are less concerned about the rights and freedoms of those who are not like them. That, too, is not unusual. What is unnatural is to value the rights of others who are unlike you as much as you value your own.

…

The events of Jan. 6 … proved that Trump and his most die-hard supporters are prepared to defy constitutional and democratic norms, just as revolutionary movements have in the past. While it might be shocking to learn that normal, decent Americans can support a violent assault on the Capitol, it shows that Americans as a people are not as exceptional as their founding principles and institutions. Europeans who joined fascist movements in the 1920s and 1930s were also from the middle classes. No doubt many of them were good parents and neighbors, too. People do things as part of a mass movement that they would not do as individuals, especially if they are convinced that others are out to destroy their way of life [Emphasis Added].”

I infer from some passages in Mr. Kagan’s column that he considers regular Trump supporters — if not the arguably more sophisticated and partisan Republican Party officialdom — credulous, and to actually believe Mr. Trump’s claims of fraud; he left at least me with the impression that he thinks that if regular Trump supporters understood the truth, they’d begrudgingly accept the will of the majority even if they disagreed with it. If that is indeed his view, I am less sanguine. I would suggest that the majority of regular Trump supporters are simply choosing to indulge in the self-delusion of a fraudulent electoral process because it enables them to rationalize the anti-democratic steps they are either taking or condoning; that in their deepest recesses, the majority do know that Mr. Trump lost, and – much more importantly – have come to viscerally grasp that if our nation’s current demographic and political trends continue unchecked, what they consider America to be (in Mr. Buchanan’s phrase, “bonds of history and memory, tradition and custom, language and literature, birth and faith, blood and soil”) will fade away.

To Mr. Kagan, “… the American experiment in republican democracy requires … what the Framers meant by ‘republican virtue,’ a love of freedom not only for oneself but also as an abstract, universal good; a love of self-government as an ideal; a commitment to abide by the laws passed by legitimate democratic processes … ”

To Mr. Buchanan, America is as he quoted Framer John Jay from Federalist No. 2: “Providence has been pleased to give this one connected country to one united people – a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs …”

I’ve previously noted in these pages that William Galston reported in Anti-Pluralism that Mr. Trump himself indicated in a speech in May, 2016, that “The only important thing is the unification of the people. [T]he other people don’t mean anything [Emphasis Added].”

It has become cliché that the voter suppression measures being enacted by cooperative Republican-controlled state legislatures and the current dust-ups in various states about alleged 2020 election fraud aren’t, despite Mr. Trump’s protestations, about the 2020 outcome, but rather to limit opposition voter turnout, lay a foundation of doubt about the veracity of our electoral processes, and have in place the mechanisms (state legislative overrides; friendly election officials; sympathetic judges) to avert any 2022 and 2024 electoral outcomes that Mr. Trump and his followers don’t like. (They must have realized the need for these latter official safeguards given the determinative number of Independents and traditional Republicans that voted against Mr. Trump in 2020.) Trumplicans have come to recognize that if all legally authorized voters cast ballots, they will lose significantly more than they win – either now, or in the foreseeable future. They don’t believe that “constitutional and democratic norms,” to use Mr. Kagan’s phrase, constitute America. Their measures are intended to save their America of (paraphrasing Mr. Jay) ancestry, language, religion, manner and custom.

Most of us have some background regarding South African Apartheid, which prevailed in some form from about 1910 until the early 1990s, most virulently starting in the late 1940s. My own information was limited to an understanding that it was legalized subjugation by a small white minority (about 15% of the population) over the significant black majority (85%). One of the theories for the institution of Apartheid, according to “The Origins of Apartheid” by the Apartheid Museum in Johannesburg, South Africa, is that white Afrikaner Nationalists “feared that the Afrikaner’s very existence was threatened by the mass of Africans that confronted them in South Africa;” and that this fear resulted in “a range of laws that were passed … to preserve this ‘God-given Afrikaner identity [Emphasis Added].” In “The Evolution and Fall of the South African Apartheid State: A Political Economy Perspective,” John M. Luiz wrote, “[In 1948 the manifesto of the National Party (NP)] was that of apartheid and Afrikaner empowerment … [S]oon after coming into power, the government put into operation a three-pronged strategy designed to further the interests of Afrikaner nationalism. … The government set about Afrikanerising [sic] every state institution by appointing Afrikaners to every level of the civil service, state corporations, and security forces.”

No one that reads these pages will be a bit surprised that I am most comfortable with traditional norms. Although I’ve been told by someone very close to me that I am privileged, I feel no guilt about being who I am. In my estimation, the so-called “Woke” frequently overreact, sometimes grossly so. That said, I subscribe to the view that America is a creedal nation; that it should be governed through a system that pursues the will of a majority of its citizens who are all able to vote under an impartially-administered set of fair rules, while at the same time furnishing sufficient safeguards for the civic and human rights of the minority. I fear that those sympathetic to Mr. Trump and the actions of his acolytes think otherwise. While I concede that many Trump supporters are seeking to protect what they view as America, a significant number seem unfazed by the prospect that preserving their America may involve the suppression of the will of a peaceful, multi-complexioned and -faceted majority of U.S. citizens. Although I suspect that most would recoil if confronted with the notion, they are either actively or passively on a quest to establish an American Apartheid.

[Our friend’s vision of American beauty is clearly akin to that of Messrs. Buchanan and Trump. As we enjoy pleasant gatherings in the coming days, and inevitably hear the singing of “America the Beautiful,” it seems fitting to consider: What makes America beautiful to you?]

Mr. Biden Must Step Aside

We didn’t watch the debate. We had an important conflict, so we recorded it, and I could have watched it by now; but the unanimous assessments of pundits across the political spectrum has made it unnecessary. I see no need to watch a guy for whom I have genuine respect, who I think has done a really good job as president, embarrass himself. Over the last several days, these pages joined hundred of pundits in suggesting what strategies President Joe Biden might use to debate former President Donald Trump. He apparently didn’t effectively execute in any manner. It doesn’t matter why it happened – I understand that the President’s apologists are claiming he had a cold – it happened.

Describing the first – and ultimately, pivotal – 1960 debate between John Kennedy and Richard Nixon, Theodore White wrote over sixty years ago in The Making of the President 1960:

“There was, first and above all, the crude, overwhelming impression that side by side the two seemed evenly matched – and this even matching in the popular imagination was for Kennedy a major victory. [Emphasis Added]”

By all accounts, the “crude, overwhelming impression” left with voters last night was that the 81-year-old President is not up to another four years. It doesn’t matter if, as a number of commentators have indicated, that former President Donald Trump repeatedly lied (since I didn’t see the debate, I need to take that one on faith, but it doesn’t take a lot of faith 😉 ). Mr. Trump will undoubtedly gain some percentage of the heretofore undecided voters dismayed by Mr. Biden’s seeming infirmity, but I am going to guess that Mr. Biden’s greater political wound will be the irretrievable loss of those swing voters who can’t stomach Mr. Trump and were as of last night’s debate willing to be convinced that Mr. Biden could serve another four years – but will now stay home or vote for a third-party candidate. Mr. Biden needed those voters to overcome Mr. Trump’s rock-solid cultish support. I don’t think even a bravura performance by Mr. Biden in the men’s second debate can overcome the disastrous impression left by his first performance (most commentators at the time considered the last three Kennedy-Nixon debates a draw); even if Mr. Biden does well, there will undoubtedly be the lingering suspicion in the minds of some moderate voters that maybe the President is on uppers, as the Trump Camp claims.

Democrats now face two obvious challenges:

First, to convince a sitting President who has already secured sufficient committed delegates to secure the Democratic Party’s presidential nomination to release his delegates, and withdraw from the race.

I am confident that it would be hard for anyone who has experienced the power of the presidency of the United States to accept the notion that s/he needs to voluntarily step aside (particularly if one believes, as I understand the President does, that his beloved son would never have been prosecuted had he chosen to forego a second presidential campaign). However, given the vehement and unanimous view among his supporters about the probable impact of his debate performance, the President needs to do what he’s always done – put the country first.

Second: Whom to nominate in the President’s place: a candidate who can hit the ground running – i.e., who already has some national presence — and defeat Mr. Trump.

It’s clearly way too early to speculate widely on potential replacement Democratic presidential nominees. That said, if one believes, as I do, that in the current environment no Democrat can win the White House unless s/he wins Wisconsin, it cannot be Vice President Kamala Harris. I suspect that in the coming days, Democratic WI Gov. Tony Evers will be telling major national Democratic politicos a version of what I consider the most vital fact about Ms. Harris: not even one of our most progressive friends living in Madison, Wisconsin – perhaps the most progressive enclave between the coasts — thinks that Ms. Harris can beat Mr. Trump in Wisconsin.

At the same time, to win 270 Electoral College votes, Democrats must find a candidate who will secure the enthusiastic support of the African-American voters and other voters of color, whom they cannot afford to alienate through any seeming slight to Ms. Harris.

While this note seems an extremely abrupt, heartless about-face about the President, a cold-blooded dismissal of a good man who has served the American people well for over half a century, what has persuaded me without even watching the debate of Democrats’ need to seek a different nominee was the reaction this morning of MSNBC’s Morning Joe’s decidedly-liberal panel. It was apparent that they had genuine sorrow for a fine gentleman whom they know personally and have real affection for – but now no longer believe can defeat Mr. Trump.

Mr. Trump is still Mr. Trump. He must be defeated.

The only good news for Democrats – a point that I’ve seen made elsewhere – is that because this debate was so early, it’s not too late to make a course correction. Mr. Trump remains beatable in at least the northern swing states – if the Democrats are able to unite – quickly — behind the right candidate. They’d best get to it.

We’ll see what happens.

A Final Thought

I virtually never write and publish a post on the same day; throughout the day I’ll almost certainly think of notions or phrases that I would have added or subtracted if they had occurred to me now; but I woke up thinking what follows, and you’ll get the gist: a recommendation for a debate closing for President Joe Biden that you almost certainly won’t see tonight, but which if counseling the President I would advise him to offer:

“To all Americans, no matter which one of us – or another – you favor, thank you for tuning in tonight. The differences between us are stark. This may be the most important election in our nation’s history. But our polling tells us – I bet theirs does too – that the majority of you don’t want either of us for the next four years. You’d prefer someone new, to lead us through the challenges that face us now and into the next generation. Donald Trump and I are both here tonight because of his lie. If he had admitted he lost the 2020 election, he would have faded away, and the Republicans would be nominating somebody new this year. If he had faded away, I wouldn’t have run again, and Democrats would be offering a new candidate for our future. You’d be deciding which new leader you preferred. But that didn’t happen. Donald Trump lied to save himself, to keep himself relevant, and he tricked a large share of our people into believing it. So here we are.

I ran in 2020 to defend against the threat I saw that Donald Trump presents to democracy, and since he hasn’t faded away, my job isn’t done. So we’re both here. If re-elected, I pledge to you tonight to maintain a steady course for our democracy, to steward our ship for the next four years until we have new people standing before us, offering their visions for our future, for you to decide our course. I am proud of my record – proud of our jobs growth, proud of our infrastructure package, proud of the way we have defended democracy against Putin. We certainly have a lot of challenges in front of us, but America is the envy of the world. We are the strongest blend of strength, freedom, and stability that the world has ever seen, and I pledge to keep it that way for the next four years. If I didn’t think I was up to the job, my love for this country would make me step aside. But I want my main legacy to be that I preserved our democracy so that when this second term is done, we will be able to do what America has always been able to do – safely turn the page and follow our next generation of leadership. Then, it will be up to you.

God bless America and God bless our troops.”

Three Postscripts

Recent events warranted postscripts to earlier posts:

First: In “As Mr. Trump Faces a Jury of His Peers,” I referred to a study I heard of while in law school — about which I observed that I had no idea whether it was thereafter “debunked or confirmed” — that indicated that jurors actually make up their minds about a case based upon opposing counsels’ respective opening statements. One of the most scholarly readers of these pages soon commented:

“I found a 2022 study that debunks the notion that jurors’ minds are already made up after opening statements.” She provided the following link:

https://imslegal.com/articles/do-jurors-decide-after-opening-statements

So now I know.

Second: This serves as a postscript for any of several posts I have entered in these pages over the years in which I expressed my admiration for the political athleticism of former U.S. U.N. Amb. and SC Gov. Nikki Haley. As all who care are aware, Ms. Haley, having suspended her campaign in the face of the reality that Mr. Trump had secured the nomination, recently announced that she would support Mr. Trump this November. Although a number of pundits lamented Ms. Haley’s capitulation, expressing the notion that she might have been well positioned for the 2028 Republican nomination if Mr. Trump lost this fall, I would suggest that Ms. Haley’s declaration of support for Mr. Trump constituted an acknowledgement that her relationship with a significant-enough segment of the Republican (MAGA) hierarchy is so tattered that her political career is over, so she chose to pull a (former Speaker of the U.S. House of Representatives Paul) Ryan – nestle back into that part of Republican cultural cocoon where she was still welcome while she still could. (If her husband, Mr. Haley, is still in the armed services, I would recommend that if Mr. Trump wins this November, he get OUT of the service as soon thereafter as he can, lest he find himself suddenly stationed in the least secure foreign base we have.)

Finally: in “Republicans and the Lesson of Ernst and Leon” last March, I commented, “[Mr. Trump] does not consider himself a Republican; he considers himself a MAGA. The distinction is crucial. Those who have shown evident distaste for Mr. Trump but have nonetheless pledged to support him out of Republican loyalty … are fools. … [They] are choosing to ignore the glaringly obvious fact that Mr. Trump … accords no value to anyone being a loyal Republican; he’s dedicated only to himself. [Emphasis in Original]”

On May 28, Mr. Trump endorsed a Republican challenging U.S. VA Rep. Bob Good — the Chairman of the U.S. House of Representatives Freedom Caucus, for pity’s sake – for the Republican nomination for Virginia’s 5^th Congressional District seat. Mr. Good’s transgression? Early in the Republican presidential nomination contest, he endorsed FL Gov. Ron DeSantis. Mr. Good has since striven to return to the fold, endorsing Mr. Trump and debasing himself by being one of the lickspittles that spoke on Mr. Trump’s behalf in front of the Manhattan courthouse during Mr. Trump’s felony trial.

Wasn’t enough. Let’s let Mr. Trump speak for himself, in excerpts from the Truth Social post in which he endorsed Mr. Good’s Republican challenger:

“Bob Good is BAD FOR VIRGINIA, AND BAD FOR THE USA. He turned his back on our incredible movement, and was constantly attacking and fighting me until recently, when he gave a warm and ‘loving’ Endorsement – But really, it was too late. The damage had been done! I just want to MAKEAMERICA GREAT AGAIN …. John McGuire has my Complete and Total Endorsement! MAGA2024.” [Capitalization and spacing errors Mr. Trump’s]

The contest between Messrs. Good and McGuire will be decided today by voters of Virginia’s 5^th Congressional District.

Note that there was no indication in Mr. Trump’s post that Messrs. Good and McGuire are actually vying for the Republican nomination, but there were two references to the MAGA movement. I would suggest that the political futures of many of the Republicans who have shown themselves to be less than cultishly loyal to Mr. Trump will truly be brighter if President Biden is reelected. Take Mr. DeSantis. Despite the fact that the Florida Governor endorsed Mr. Trump for president – after disparaging those that “kiss the ring” before he himself kissed the ring — can Mr. DeSantis doubt that if Mr. Trump is re-elected, the then-president will endorse a challenger to Mr. DeSantis if the Florida Governor seeks reelection in 2026? Mr. Trump does not forgive or forget. Those Republicans across the country who have exhibited less than complete affinity for Mr. Trump but will nonetheless genuinely aid his reelection effort out of party loyalty are ignoring the handwriting on the wall. They lack the sense God gave a goose.

On Judicial Propriety

I suspect that given the insult to judicial ethics personified by U.S. Supreme Court Clarence Thomas, some who follow these pages have been surprised that I have never expounded on Justice Thomas’ various peccadillos and the untoward partisan machinations of Justice Thomas’ wife, Ginni. Frankly, I felt that dealing with the Thomases would be an unfair imposition on your time and eyesight; they are who they are, and you know it. That said, the undisputed reports that U.S. Supreme Court Justice Samuel Alito’s wife, Martha-Ann Alito, hung an upside-down flag – a symbol of the Trump Cult’s entirely baseless “Stop the Steal” movement – at the Alitos’ residence just days after the January 6, 2021, insurrection, brings Justices Thomas’ and Alito’s trampling of judicial propriety back to the fore.

As all who care are aware, Justice Alito, following the publication of reports of the flag waving incident, in May rejected Congressional Democrats’ demands that he recuse himself from a case now pending before the Supreme Court in which the Court will decide whether former President Donald Trump enjoys immunity from prosecution for any or all of his activities in the attempt to overturn the result of the 2020 presidential election. In his response to Congressional Democrats, Mr. Alito declared that he and his wife jointly own their home, stated that her actions arose from a heated neighborhood dispute, and asserted that Ms. Alito was flying the flag against his wishes – indeed, that “[A]s soon as [he] saw [the flag, he] asked [his] wife to take it down, but for several days, she refused.” The Justice actually cited as part of his rationale for not recusing – this is enough to make one blink — the Court’s Code of Conduct section which provides, “A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” A link to Mr. Alito’s response to U.S. Democratic Senators is set forth herein (his response to House Democrats closely mirrored his response to the Senators).

Click to access Letter%20from%20Justice%20Alito%20to%20Senators%20Durbin%20and%20Whitehouse.pdf

Clearly, the Alitos maintain dual citizenship; they are both Americans and citizens of the Land of Oz, where one does not look behind the curtain.

To state the obvious: Justice Alito’s response managed to make him look both caddish – blame the wife – and wussy – that it took him several days to persuade her to take the flag down. [I know; every married person reading these pages can recall arguments with his/her spouse that continued unresolved for several days. That said, Mr. Alito is a U.S. Supreme Court Justice; it is dumbfounding that it took him that long to get Ms. Alito to see that her actions (assuming that they were indeed her actions) were making him look both traitorous and incompetent (since of all people, a U.S. Supreme Court Justice had to understand that inasmuch as Mr. Trump had lost 60 or more lawsuits challenging the legitimacy of vote counts favoring President Joe Biden in pivotal Electoral College states, there was no “Steal”; Mr. Biden had won, and Mr. Trump had lost)].

Except for the very rare couple that maintain a loving relationship despite the fact that it is clear that one of the two is markedly liberal and the other is decidedly conservative, I reject the notion that the political activity of a judge’s spouse should not be imputed to the judge. Who did or said what in the neighborhood dustup that allegedly so exercised Ms. Alito is irrelevant (although I understand that the neighbor is claiming that the disagreement that Mr. Alito described in his response didn’t occur in January, 2021 – i.e., at or about the time Ms. Alito flew the flag — but in February, which, if true, completely undercuts any suggestion that Ms. Alito was simply overreacting to previous unpleasantness). In the federal system – where judges are appointed, rather than elected — one should not be a judge if one’s spouse cannot refrain from political activity; one whose spouse is a judge should refrain from political activity. The Alitos’ behavior is an execrable betrayal of what those of us who embrace the law consider the secular calling closest to the sacred.

But don’t take my word for it.

“Supreme Court Justice John Harlan, a conservative Eisenhower appointee …. was the quintessential patrician, generally unflappable and unfailingly courteous. … Harlan viewed the law as almost a religious calling. … Harlan had been the ‘conservative conscience’ of the Warren Court, a frequent dissenter. He advocated restraint rather than activism. … Always concerned that the slightest gesture or contact with the executive [branch] might be thought to imply endorsement, Harlan declined to vote in presidential elections (or any others) and never applauded at the President’s State of the Union address. In 1967, Harlan refused to continue a tradition in which the Justices in top hats and tails annually paid their respects to the President at the White House at the opening of the Court’s term. … Harlan persuaded the others to abandon the practice of calling on the President, lest [President Lyndon] Johnson try to use them to legitimize his [Vietnam] war effort ….”

Bob Woodward and Scott Armstrong; The Brethren

“It is difficult to speak about the judges, for it behooves us all to treat with the utmost respect the high office of judge; and our judges as a whole are brave and upright men. But there is a need that those that go wrong should not be allowed to feel that there is no condemnation for their wrongdoing. … [S]uch a man performs an even worse service to the body politic than the Legislator or the Executive who goes wrong. In no way can respect for the courts be so quickly undermined as by teaching the public through the action of a judge himself that there is reason for the loss of such respect.”

Theodore Roosevelt; The Autobiography of Theodore Roosevelt

“There is a vague popular belief that lawyers are necessarily dishonest. … Let no young man, choosing the law for a calling, for a moment yield to this popular belief. Resolve to be honest at all events; and if, in your own judgment, you cannot be an honest lawyer … [c]hoose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.”

Abraham Lincoln; Notes on the Practice of Law

It Is Now We Who Are On Trial

“[The] process of election affords a moral certainty that the office of President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. … [I]t will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. [Emphasis Added]”

Alexander Hamilton, under the pseudonym, “Publius”; Federalist No. 68

Put aside the ten percent of our (or any nation’s) population who are either crazy or will, tacitly if not explicitly, acknowledge that they are governed by the base instincts to which former President Donald Trump appeals. Everyone that reads these pages is old enough to remember that before Mr. Trump rode down his escalator – less than ten years ago – it was unthinkable – unthinkable! – that a convicted felon would remain a serious candidate for any high federal office. Given Mr. Trump’s conviction yesterday on all 34 felony counts brought against him by the New York City Manhattan District Attorney, and notwithstanding the incessant attempt to delegitimize the verdict that has commenced in the alt-right propaganda silo and will continue through Election Day, it is now up to us as Americans – primarily up to the approximately 35% of our citizens, neither crazy nor consciously willing to succumb to their baser impulses, who up to now have indicated a willingness to vote for the former president this November — to decide:

Do I believe in our judicial system, that any outcome arising from the orderly administration of justice is paramount to any respective substantive policy preferences I may have, and its result should be heeded and respected?

Do I believe that my fellow American citizens – although they may reside in a very different environment from mine, and have markedly different perspectives on most issues facing our nation than I do – are capable of understanding their solemn responsibility, soberly weighing the evidence placed before them, and rendering an impartial verdict in a criminal trial?

For those of us who have family and friends who support Mr. Trump and hereafter question the impartiality of the New York City jury in our presence, I offer this as a possible response (an obvious trap, but I would submit nonetheless an above-the-belt way to make an important point): “If Joe Biden was being criminally tried in [your home town], and you were on the jury, would you be able to put aside your dislike of him and impartially look at the evidence?” If predictably your relative or friend replies in the affirmative — and I believe that the vast majority of our citizens of all political stripes would indeed take their duty seriously — the conclusion is easy: “If you think you could, why don’t you think those New Yorkers did?”

Whether a convicted felon wins the presidency of the United States this fall will say more about us as a people than it will about Mr. Trump. It is we, not Mr. Trump, who will determine whether, in President Abraham Lincoln’s words at Gettysburg, our “government of the people, by the people, for the people, shall not perish from the earth.”

As Mr. Trump Faces a Jury of His Peers

Today prosecution and defense counsel will make their respective closing arguments to the jury in former President Donald Trump’s “hush money” trial. Judge Juan Merchan will then instruct the jurors on the law applicable to the charges that have been levied against Mr. Trump and then dismiss the panel to deliberate and reach a verdict.

In every jury trial, among the instructions that the Judge includes is the admonition that the jurors must render their verdict based upon the evidence admitted into the trial record and not upon the competing attorneys’ opening statements and closing arguments, which are not evidence. Yet, as various legal media pundits following the trial have numbingly obsessed over the last several weeks about the potential impact of each piece of evidence upon the jury, I’ve been reminded of a study released at about the time I attended law school in the 1970s – I have no idea whether it was thereafter debunked or confirmed – that indicated that jurors actually make up their minds about a case based upon opposing counsels’ respective opening statements.

Since Jurors are also admonished by the Court not to speak about a case, even among themselves, until all the evidence is in, they themselves probably have no idea what their verdict will be. Even so, I wouldn’t be a bit surprised – although we’ll never know – if Mr. Trump’s fate hasn’t already been determined.

That said, I was intrigued by an observation made by Attorney Ethan Greenberg in a May 20^th Wall Street Journal essay regarding whether the Court would include a jury instruction about “Lesser Included Offenses” (“LIOs”) in Mr. Trump’s case. As all who care are aware, the charges brought against Mr. Trump for falsification of business records are classified as misdemeanors under New York state law. Such offenses are only deemed felonies if the jury determines not only that Mr. Trump knowingly falsified his business records, but did so to hide another offense – in this case, a violation of campaign finance laws. Mr. Greenberg noted in his piece that if no LIO instruction is given, it will be all or nothing for the prosecution and the defense – Mr. Trump will (unless there is a hung jury) either be acquitted or convicted of a felony. However, if either side requests (or the Court itself elects to include) an LIO instruction, the jury will have an “off ramp” – it will have the ability to find Mr. Trump guilty of the misdemeanor of business record falsification without finding him guilty of the attendant felony of violating campaign finance law [i.e., if it chooses to conclude, for example, that Mr. Trump falsified his business records to hide his payment to Adult Film Actress Stephanie Clifford (a/k/a “Stormy Daniels”) for a non-criminal reason, such as avoiding embarrassment to Ms. Melania Trump]. It takes little discernment to surmise that an LIO instruction increases the odds that the prosecution will secure at least a misdemeanor conviction and avoid an outright acquittal – the latter which Mr. Greenberg called “a prosecutorial disaster” — but likewise increases the odds that the defense will avoid a felony conviction, thus enabling Mr. Trump to proclaim in the court of public opinion – as he did after he avoided being convicted in his second Senate impeachment trial despite the fact that a majority of the Senators had indeed voted to convict him — that the charges against him were a lot of hullaballoo about nothing. A misdemeanor conviction would still potentially involve a prison sentence, but given the certainty that Mr. Trump will appeal any conviction, the prospect of jail time is probably something that the former president will be willing to worry about later. As this is typed, at least I am not aware whether Mr. Trump’s jury will be given an LIO instruction or not.

(To state the obvious: all of these Trump Toadies who were brought down to sit in the courtroom and then spew toxic waste outside afterward weren’t there to intimidate the jury – it takes a lot more than that bunch to intimidate a New Yorker – but to start the delegitimization of any ultimate guilty verdict in the alt-right media silo.)

As to how it will go: I have had a number of friends express concern to me that although they believe that Mr. Trump is clearly guilty, the trial is so fraught with competing emotions that he will – as some believe was the case when O.J. Simpson was tried for the murder of his wife – ultimately be acquitted. The requirement that a jury find evidence of guilt “beyond a reasonable doubt” in order to convict a criminal defendant is, and should be, a very high standard of proof; but prosecutors regularly achieve it. On more than one occasion, I heard the senior partner in the firm I joined after law school – a renowned trial lawyer, son of a Wisconsin Supreme Court Justice, Fellow of the American College of Trial Lawyers, then a past president of the Wisconsin Bar Association, now decades-deceased — observe, “Every experienced trial lawyer will tell you that he’s had a case that he won that he should have lost, and a case that he lost that he should have won.”

No one can tell what a jury will do.

Reflections on Memorial Day

We will celebrate eleven Federal Holidays during 2024. As we are on the cusp of the Memorial Day Weekend – the unofficial start of summer for at least those of us who live in the northern reaches of the country – ponder whether, of the eleven, Memorial Day is not the most significant.

All of our Holidays have some enduring significance (or, at least virtually all; I suspect that we might take Columbus Day back if we could 😉 ); some are obviously vested with deep meaning.

We observe the birthdays of three great Americans: those of Presidents George Washington and Abraham Lincoln on the same day in February and that of Rev. Martin Luther King, Jr., in January; we recognize service on Labor Day and Veterans’ Day; and we acknowledge the nation’s tragic legacy of slavery and racism on Juneteenth National Independence Day.

New Year’s Day and Christmas Day each fit in their own conceptual categories. New Year’s seems a required bookkeeping entry; not unimportant as such, but each new year is going to come around whether our nation continues or not. As for Christmas – one of the holiest days of the year for Christians like me – one might nonetheless question its inclusion as a national holiday in a land with citizens of many faiths and no faith, governed by a Constitution that provides that its legislature shall make no law respecting an establishment of religion.

Thanksgiving Day is probably my favorite national holiday, and celebrates one of the most worthy of human emotions: gratitude for the gifts one and one’s family and friends have received in this life. That said, the gift of freedom that we enjoy and for which we give thanks every November had to be earned.

Finally, what about the Fourth of July? The date of our nation’s founding is an understandably hallowed day for all Americans. Had the Founding Fathers not declared our independence, we’d have no country; the principle of equality upon which our nation is based would never have come into being. But I would suggest that there are 20 guys in some corner of the world declaring independence from something or other as you read this who, like thousands before them, will never be heard of or from again. The literal establishment of a nation is, of course, essential to its being; but I would submit that it is the subsequent offering of those who sacrifice to sustain and replenish it that is most worthy of our honor, tribute, and recognition.

Whether or not you agree with my characterization of the relative importance of our Federal Holidays, as we celebrate this Memorial Day, may we each give a moment to remember the sacrifices of the men and women we have marked this day to honor: those who throughout our history have sacrificed to preserve and protect our freedom – both those who have given, in the words of Mr. Lincoln at Gettysburg, “the last full measure of devotion,” and also those who have ever after borne the physical and emotional scars of their sacrifice.

Enjoy the Holiday.

A Civics Lesson for Mr. McCarthy; On Saving Mr. Johnson

“The House of Representatives shall chuse [sic] their [sic] Speaker ….”

Article I, Section 2; The Constitution of the United States of America

“I couldn’t live with myself if I did a deal with the Democrats. … If you can’t sustain being Speaker by your own majority, should you sustain it? In my question, no. So, either I’m going to win Speaker and be the leader with the majority. Otherwise, it’s not right to be Speaker.” [Emphasis Added]

Former Republican Speaker of the U.S. House of Representatives Kevin McCarthy, referring to the fact that MAGA U.S. Speaker of the House Mike Johnson sought and required votes of Democratic representatives to maintain his Speakership following a Motion to Vacate the Chair by MAGA U.S. GA Rep. Marjorie Taylor Greene; Politico’s Power Play Podcast, May 9, 2024.

I know: you thought we were done with Mr. McCarthy, who resigned from the House of Representatives after being deposed as Speaker by a MAGA cabal nominally calling themselves Republicans. Mr. McCarthy has been previously dismissed in these pages as an unprincipled, gutless lickspittle. However, on the off chance that any of the relatively younger readers of these pages might be misled by a point inherent in Mr. McCarthy’s above-quoted remarks, this is to point out that even aside from his lack of principles and courage – and in addition to his evident hypocrisy, since it has been widely reported that he solicited Democratic House support in his unsuccessful bid to save his Speakership — Mr. McCarthy, despite the hallowed office he once held, lacks a fundamental understanding of our Constitution and the sentiments of those who developed it.

The word, “party,” never appears in the Constitution as a description of an organization of persons with like-minded policy and political goals. While the architects of our Constitution obviously understood that persons of like political philosophies would tend to congregate, they detested political parties per se. A number of the essays in The Federalist – commonly respectively referred to as the “Papers,” written by Alexander Hamilton, James Madison, and John Jay under the pen name, “Publius” – excoriate political parties. Mr. Hamilton wrote in Federalist No. 1, “… nothing could be more ill-judged than the intolerant spirit which has at all times characterized political parties.” The notion that a potential Speaker of the House of Representatives was only fit to serve if he (in those days, there were only “hes” 😉 ) could garner enough votes of those members who entirely shared his philosophies was a foreign, and I’m pretty confident abhorrent, concept to the drafters.

Although Mr. McCarthy apparently doesn’t know the Constitution, I will concede that in many respects his comments simply reflect the toxic partisan reality into which we have devolved. I myself would favor a constitutional change effecting an approach diametrically opposite of that which he suggested: that Article I be amended to make it a condition of becoming Speaker than a candidate receive the votes of at least 10% of the representatives who are not members of his/her own party. (Such a change, which would introduce the concept of political party into the Constitution and the practical logistics of which are clearly beyond the purview of this note, is obviously but one of Constitutional changes that readily come to mind.) But as our constitutional structure stands today, a Speaker should be proud rather than ashamed if s/he gathers votes from those of other political philosophies; it’s what the drafters intended.

On to Mr. Johnson. Do I trust him? (Note: this paragraph was written before Mr. Johnson showed up at former President Donald Trump’s “hush money” trial earlier this week. I almost cut it because the observation it contained had become so blatantly obvious, but on final reflection decided to leave it in. 🙂 )

Not at all. Although he is apparently more conciliatory in personal style than your average MAGA, I think it is undisputed that he was one of those very involved in trying to overturn what was a narrow but clear victory by President Joe Biden in 2020, and he maintains a close relationship with former President Donald Trump. Further, if the Republicans achieve a larger majority in the next House, Democrats should have no illusions that he will be sympathetic to their concerns.

On political strategy: Do I agree with House Democrats’ decision to prop up Mr. Johnson’s Speakership, rather than let it dissolve in the House MAGA maelstrom?

Unclear. While keeping the country running requires a functioning Speaker of the House – imagine the chaos if the House of Representatives couldn’t effectively function and Russia invaded a NATO country, China invaded Taiwan, or a Katrina-like hurricane hit our coast this fall – I have considered Republican Congressional dysfunction a political asset for Mr. Biden in the upcoming election. The Democrats’ support of Mr. Johnson has made the Republicans look more normal. Perhaps Democrats feared that if they allowed the failure of a Republican Speaker who is clearly more palatable to them than Mr. McCarthy, they would squander any impression they now hold with voters as being the more responsible of the two parties.

So substantively, was it the right thing to do? Yes. Do I think it was wise politically? Not so much.

Was the first half of this note incredibly geeky? No doubt. Was I pleased that it afforded one more opportunity to express some Noise about Mr. McCarthy? You bet. 😉