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 5th Congressional District seat.  Mr. Good’s transgression?  Early in the Republican presidential nomination contest, he endorsed FL Gov. Ron DeSantis.  Mr. Good has since striven to return to the fold, endorsing Mr. Trump and debasing himself by being one of the lickspittles that spoke on Mr. Trump’s behalf in front of the Manhattan courthouse during Mr. Trump’s felony trial.

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

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

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

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

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

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

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

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.   😉

On Stormy Daniels’ Testimony

We’ve been elsewhere a good bit recently, removed – in some ways, blessedly – from the daily vicissitudes of our time.  We find that – like the first view, 50 years ago, of my sainted mother’s soap opera after a semester away at college — little has changed, with the vital exception of the passage of the Ukraine aid package.  What has prompted this note regarding the May 7 testimony of Adult Film Star Stephanie Clifford (a/k/a “Stormy Daniels”), in the case the New York City Manhattan District Attorney is now prosecuting against former President Donald Trump for falsification of business records, is the debate I heard between a couple of legal commentators as to whether, from the perspective of trial strategy, the prosecution had been wise or foolish to have Ms. Clifford testify regarding her alleged 2006 sexual encounter with Mr. Trump in such detail that even Presiding Judge Juan Merchan observed that her account might have been unnecessarily … informative.  I heard one legal pundit opine that what might be argued to be prosecutorial excess could provide grounds for reversal on appeal if Mr. Trump is ultimately convicted.

In law school, they tell you that they’ll train you to “think like a lawyer.”  The debate about trial strategy is the kind of question that intrigues lawyers.  Although I understand the misgivings of the lawyer concerned about the potential consequences of prosecutorial overreach, I think he is missing the main point.

First, for reasons I find inexplicable considering all of the other boundaries of social decorum that Mr. Trump has flouted over the last decade, the former president continues to deny his tryst with Ms. Daniels.  Of course it occurred.  I suspect that even Mr. Trump’s most fervent admirers believe that it happened.  If it had not occurred, there is no reason why Mr. Trump – notoriously cheap with his own money – would have yielded to Ms. Clifford’s demands for payment in the last days of the 2016 campaign, or that Mr. Trump’s attorney and “fixer,” Michael Cohen, would have engaged in the machinations he did to get Ms. Clifford her money.  The only way the jury might have doubts about whether the episode occurred would be if the prosecution didn’t put Ms. Clifford on the stand.

Second, since Mr. Trump is denying that the episode occurred, having Ms. Clifford provide details of the liaison – among the most benign, that Mr. Trump was then using Old Spice — provided credibility to her account.  Having her simply testify, “We had sex,” would have been insufficient.  Recall that Monica Lewinsky’s descriptions of her encounters with former President Bill Clinton were buttressed by her description of a certain generally hidden part of Mr. Clinton’s anatomy later independently confirmed.  Although some aspects of the tryst Ms. Clifford described have been characterized as “salacious,” I would suggest that no participant in any consensual sexual encounter, required to thereafter describe its particulars in an antiseptic courtroom, could do so without sounding salacious.

An aside:  Ms. Clifford was an acknowledged adult film actress when she was invited to have dinner with Mr. Trump in his suite.  For anyone that knew Mr. Trump at all:  What did she think he intended?

All that said, what I consider the main point:  Since it is widely held by Constitutional scholars that Mr. Trump can serve as president even if he is convicted, it doesn’t substantively matter whether the conviction is ultimately overturned on appeal after the 2024 presidential election.  However, if the titillating details Ms. Clifford placed in the record make it more likely that the prosecution will secure a conviction that adversely affects the former president’s 2024 presidential prospects, such is all that counts.  (There is obviously the concern that if Judge Merchan thought that the prosecution was excessive, perhaps members of the jury think so as well, which could redound to Mr. Trump’s benefit.)

By outward appearances, the trial is wearing Mr. Trump down.  At the same time, I continue to have deep concerns about the boost his campaign will receive from either an acquittal or a hung jury.

We’ll see what happens.

On Truth Social and Campaign Finance

Most pundits currently commenting on President Joe Biden’s and former President Donald Trump’s relative campaign finance war chests are indicating that Mr. Biden had a significant advantage over Mr. Trump.

I hope they’re right.

On April 17, the Wall Street Journal reported that the total market value of Mr. Trump’s social media company, Truth Social, had plummeted from $9 billion when it initially started public trading to $3.1 billion as of the edition’s publication.  Mr. Trump owns 60% of the company, which means his Truth Social shares – on paper – currently have a value approximating $1.8 billion.

It has been widely noted that Mr. Trump’s stock is locked – i.e., he can’t sell shares – during the first six months following the date of Truth Social’s initial public offering in late March; but that means he can sell shares starting around October 1, 2024 – more than a month before Election Day.

A quick internet research recently confirmed my understanding that there are no legal limits on what a candidate can spend of his/her own assets on his/her own campaign.

Mr. Trump is legendarily loath to spend his own money when he can get others to spend money on his behalf, but if he believes that winning the presidential election is the only way for him to stay of jail, I bet he’ll be a little more willing than in the past to expend his own funds.

Let’s consider the current Trump Social value of about $3 billion.  Although the value could easily go up by October 1 if Mr. Trump appears to have a significant chance to return to office, let’s instead assume Truth Social’s total value drops another 50% by October 1, to $1.5 billion.  Under this scenario, Mr. Trump’s stock would be worth a “mere” $900 million.  Although the former president – who is the company’s asset – would undoubtedly be loath to cede control of what will be an extremely valuable asset if he reclaims the presidency, it is tenable that when the lock ends, he will be able to sell a significant percentage of his stake while maintaining either de jure or de facto control of the company.  Even if the “forced sale” nature of his divestiture drives the value of the shares down even further, he will still arguably be able to reap tens of millions in sale proceeds.  Notwithstanding any reduction from the “top line” sale proceeds for capital gains tax, he’d still compile a sizeable campaign war chest to spend between the conversion date and Election Day.

While there are other ways the former president can raise cash, a partial divestiture of Truth Social shares seems the easiest way for Mr. Trump to raise a lot of money in a short amount of time; his current challenge is the lock.  If there is a manner he can circumvent it, he undoubtedly will.

So query:  is President Biden’s campaign funding edge as great as it appears?  On or about October 1, there may be little difference between the candidates’ respective resources.  Mr. Biden’s true advantage here may be his combination of currently-available funds and timing.  He will seemingly have months more than Mr. Trump to use his financial wherewithal to execute his voter turnout initiatives and to pummel Mr. Trump in ads targeted at swing state swing voters.

Let’s hope that the Biden Campaign uses its current apparent financial advantage wisely.

On Mr. Trump’s Trials and Evasions

As New York City’s Manhattan Borough District Attorney Alvin Bragg’s “hush money” case against former President Donald Trump begins this week — alleging state felony crimes for falsification of business records to shield undercover (seemingly a particularly apt adjective here) payments made by Mr. Trump through his attorney, Michael Cohen, to Adult Film Actress Stephanie Clifford (a/k/a Stormy Daniels) to secure Ms. Clifford’s silence about their sexual liaison in aid of Mr. Trump’s 2016 electoral prospects – the former President and I both wish it wasn’t going forward.  Our rationales are, however, quite different.  He is terrified that he will be convicted.  I dread that he won’t be.

Those of us who believe, “No person is above the law,” and “Justice delayed is justice denied,” have been justifiably dismayed with the glacial progress of the various criminal proceedings now pending against Mr. Trump, which include not only the New York matter but the Washington, D.C. insurrection case being prosecuted by Special Counsel Jack Smith, the Georgia election interference case being prosecuted by Fulton District Attorney Fani Willis, and the allegedly felonious mishandling of classified documents charges being prosecuted in South Florida by Mr. Smith.  That said, much of the delay could have been anticipated; any prosecutor would want to be completely prepared before going to trial against the highest-profile defendant in our country’s history, and Mr. Trump has predictably effectively availed himself of every available legal maneuver to prolong each proceeding.

Although I am no longer as incensed at the delays, for the reason stated below, a preliminary vent: 

The U.S. Supreme Court’s election to consider Mr. Trump’s Presidential immunity defense in the insurrection case – after the defense was pretty summarily rejected by the D.C. trial court and the U.S. Court of Appeals – has provided unconscionable support to Mr. Trump’s efforts to evade the charges that, of all those confronting him, should be adjudicated before the election:  whether he, a current candidate for President of the United States, sought to defraud the United States in the last election.

Whether or not the substantive Georgia proceedings have been delayed by the Trump team’s claim that Ms. Willis was conflicted because she engaged in an amorous relationship with a lawyer she added to the prosecution team, I think it irrefutable that Ms. Willis’ behavior – although not legally relevant to the charges — was so egregiously ill-advised so as to take one’s breath away to the point of asphyxiation.

On the Florida case involving felonious mishandling of classified documents, Judge Aileen Cannon, a Trump appointee, has openly abetted Mr. Trump’s efforts to delay the proceedings.  This is a matter that Mr. Trump’s last Attorney General, William Barr, has opined to be almost a sure winner for the prosecution.  Judge Cannon’s actions can no longer be put down to incompetence or insecurity; she is either toxically partisan or cowed by MAGA threats.  Either way, the former president seems on the cusp of ducking an almost-certain federal felony conviction.

But – let’s put aside the rantings of an old curmudgeon.  We are where we are.  While I would have enthusiastically welcomed having all of these cases tried a year ago, and vehemently reject the notion that our criminal justice procedures should be sublimated to our electoral processes (i.e, that, as some commentators have intoned, Mr. Trump’s fate should “be left to the voters”), there is an exception to every rule, even the most hallowed.  It is vital that the outcome of our criminal judicial processes not engender sympathy for Mr. Trump, not skew the upcoming election to his benefit.  At this point, the overarching concern is not about establishing Mr. Trump’s culpability for the last election, but that he lose the next election. 

So I’m going to enter a somewhat lonely view certainly contrary to those bemoaning the effectiveness of the former President’s and his judicial allies’ dilatory legal tactics.  I’m concerned that putting him on trial this close to the election has greater potential to aid than hinder his campaign for the presidency.  My inclination is completely colored by my belief that if we remain on our current electoral arc (admittedly, a HUGE if), President Joe Biden will achieve an Electoral College victory in November even if the criminal charges against Mr. Trump have not yet been adjudicated.  However, the election is going to be that close, so any potential boost Mr. Trump might receive from any result other than a guilty verdict is best avoided if possible.  

I see three outcomes from any criminal trial commenced against Mr. Trump in what is now indisputably “Campaign Season” (including the New York prosecution starting today):

  1. The very fact of the trial:  Initial advantage, Mr. Trump.  It makes him look to some swing voters like he’s being politically persecuted, and will do more to galvanize his supporters than cause swing voters to sour on him.
  • Acquittal:  Could hand Mr. Trump the presidency by seemingly validating his claims of innocence and political persecution.  Even a mistrial will, as was the case with his impeachment acquittals, be wildly touted by him and his acolytes as exoneration and vindication, and boost his campaign.
  • Conviction:  There are polls indicating that some Republicans claim they won’t vote for Mr. Trump if he is convicted, but if these voters are still even considering voting for him, by Election Day a conviction in the New York case will be both old news and entirely discredited by the right-wing media outlets they follow.  I agree that any convictions obtained by Mr. Smith or Ms. Willis between now and the election would seemingly doom Mr. Trump’s candidacy, but getting a conviction of any high-profile defendant is no easy task (recall O. J. Simpson, now deceased).  The risks of an acquittal or a mistrial so close to the election arguably outweigh the benefits of a trial if one believes, as I do, that electoral trends currently favor President Joe Biden.

I may be a solitary voice expressing these reservations – What other than Noise would one expect here? 😉 — but I would submit that Mr. Biden’s electoral prospects with the swing state swing voters who know – who know – that Mr. Trump is guilty of the crimes of which he’s been charged, will be enhanced if he simply argues:  “Trump’s delayed all the trials.  If he is elected, he’s going to get away with it.  Don’t let him get away with it.”  Mr. Biden’s prospects are obviously dimmer if the former president can claim legal exoneration. 

So as Mr. Bragg’s efforts commence today, let us hope he secures a conviction – and if he doesn’t, let us hope that the verdict will be rendered soon enough that it will no longer be top of mind by voters by Election Day.

I still owe these pages the post describing the grounds for my optimism about President Biden’s electoral prospects.

Notes of Realism … and Optimism: Part I

[Note:  I, and probably you, have seen others make the observations set forth below.  I take leave to enter them here because they have occurred to me apart from having seen them voiced elsewhere  🙂 .]

On March 21st, Republican Strategist Karl Rove – whose political acumen one must respect, since he engineered two electoral victories for former President George W. Bush (the second being particularly impressive, since by the time of the 2004 presidential election even Mr. Bush’s own Administration conceded that the purported bases of his order to invade Iraq – weapons of mass destruction – weren’t there) – wrote an opinion piece in the Wall Street Journal entitled, “2024 Comes Down to Only Seven States,” in which he asserted that only the Electoral College votes of Arizona (11), Georgia (16), Michigan (15), Nevada (6), North Carolina (16), Pennsylvania (19), and Wisconsin (10) are truly at issue this November and that the presidency will be decided by how these states’ respective EC votes are allocated between President Joe Biden and former President Donald Trump.

In a post about six months ago, projecting Mr. Biden’s path to victory, I declared that Mr. Biden should “stick to the knitting. … Mr. Biden and his team need to focus their efforts on the swing states they are most likely to win ….”

I consider North Carolina Fool’s Gold for Mr. Biden (remember, as usual, that all spouted here is Noise; I considered Georgia Fool’s Gold for Mr. Biden in 2020 😉 ) because Mr. Trump won the state by 75,000 votes in 2020 despite an attractive Democratic Senatorial candidate (who imploded late in the campaign due to a sexual peccadillo).  Although the state has the fastest-growing population in the nation (400,000 new residents since 2020), a significant segment these new residents reportedly come from Red States, and another significant segment is undoubtedly comprised of children.  Mr. Biden trails Mr. Trump in all recorded state polls. 

Although a recent Wall Street Journal poll recently found Mr. Biden trailing Mr. Trump by only one point in Georgia, and despite my unwarranted 2020 pessimism about the state, I remain leery of it.  Former Gubernatorial candidate Stacey Abrams’ grassroots movement has seemingly lost some of its zeal; Fulton District Attorney Fani Willis’ prosecution of Mr. Trump for election interference, while obviously well-warranted (although her own sexual peccadillo in that matter warrants comment in another post), has undoubtedly enflamed the ire of Mr. Trump’s supporters; despite the fact that state Republicans like GA Gov. Brian Kemp detest Mr. Trump for roiling their state’s affairs, their organization will undoubtedly support him; and in 2020 the state’s Republican hierarchy was perhaps surprised that the presidential race was close.  It won’t be taken by surprise again.

I am intrigued by Arizona, although the same Journal poll found Mr. Biden currently trailing Mr. Trump by 5 points – outside the margin of error — presumably due to its citizens’ displeasure with the still-unsettled situation at the southern border.  The state’s Republican Party is at war with itself.  There is still a significant segment of what might be considered “[John] McCain Republicans” who detest MAGAs.  Despite the fact that former SC Gov. and U.S. U.N. Amb. Nikki Haley had ended her candidacy for the Republican Presidential nomination weeks before the state’s closed Republican primary (i.e., only Republicans could vote in it), she still won 20% of the vote from Mr. Trump.  Very divisive MAGA Keri Lake will be the Republican Senatorial Candidate.  Perhaps most crucially, abortion activists are trying to put a state constitutional amendment securing the right to abortion on the 2024 ballot, which would certainly drive up Democratic turnout.  [In support of women’s abortion rights, Democratic Arizona State Senator Eva Burch recently announced on the floor of the Arizona legislature that she had had to undergo an abortion – for a child she and her husband wanted – because her pregnancy was no longer viable.  (I heard her speech; Mr. Biden’s team should take it and run it nationwide.)]  For Mr. Biden, Arizona’s 11 EC votes could provide insurance to offset any loss of Wisconsin’s 10 EC votes.

As to Nevada, which Mr. Biden won in 2020, it looks to me (conceding my math skills never exceeded the first grade) that its 6 EC votes will primarily be relevant to winning Mr. Biden the presidency if he needs them to pair with Arizona’s 11 EC votes to offset any loss of Michigan’s 15 EC votes (while he wins Pennsylvania and Wisconsin) or with Georgia’s or North Carolina’s 16 EC votes to offset any loss of Pennsylvania’s 19 EC votes (while he wins Michigan and Arizona or Wisconsin) … but we’ve now moved into what I obviously consider perilously-uncertain electoral territory for the President.

All that said:  Mr. Biden needs to maintain focus.  I will always consider a large factor in 2016 Democratic Candidate Hillary Clinton’s defeat to be that she and her team took too much for granted, misallocated resources, took their eyes off the ball.  She courted votes in states like Utah and Georgia – states in which the odds were, put charitably, long that she would carry — while she failed to visit Wisconsin even once.  The President, unlike Ms. Clinton, needs to scan the electoral battlefield to be sure that he doesn’t sustain any losses among what are now considered safe “Blue States.”  Assuming all such “Blue States” are secure, two final points:

  1. The President’s overwhelming electoral focus needs to be on winning Pennsylvania, Michigan, and Wisconsin (the Journal poll shows him trailing in the first two, but within the margin of error for each state).   It is by far his most straightforward path to victory.  If Mr. Biden wins the combined 44 EC votes of Pennsylvania, Michigan, and Wisconsin, he gets the 270 Electoral College votes needed to claim the presidency regardless of what happens in other swing states.  Once he has to move beyond the “Blue Wall,” any other electoral scenario is a crapshoot; his course seems particularly precarious if he does not win Pennsylvania.
  • Anticipating a point very likely to be elaborated upon in a future post:  Rather than seeking to expand his Electoral College margin by winning more states, Mr. Biden should focus on expanding his margin of victory in Pennsylvania, Michigan, and Wisconsin.   

That’s the Realism.  Where’s the Optimism?  Part II.  Enjoy the weekend.