Month: April 2024

From a legal perspective, the odd thing about the Trump case is that the most egregious and practically significant conduct–the alleged hush money payment–is only essential background information; the actual misconduct revolves around business records. The prosecution will be required to prove: that Michael Cohen made a payment to Stormy Daniels; that the payment is intended to buy her silence for political reasons; that Cohen was reimbursed by the Trump Organization at Trump’s direction; that the reimbursement was falsely identified as a legal expense on the TO’s books at Trump’s direction; and that the false statement in the business records constituted a felony–either a campaign finance or a state tax violation. The last of these elements is the one that is the most legally questionable.

You will have noticed that whether Trump actually had an affair with Daniels is not one of the elements of the case. As a result, I strongly suspect that the prosecution will not call her in its case-in-chief. If Trump orders his team to let him testify, and he insists that there was no affair or hush money, however, the prosecution will have to put her on the stand in its rebuttal case. That could be a legal and political disaster for the man on golf cart.

Trump doesn’t just want a hung jury, or a finding of guilt on a misdemeanor charge; he wants vindication. I think he will overrule his attorneys and testify. If my reading of his character and motives is right, that’s when the fun will begin.

While America’s attention was focused on courtrooms last week, labor won two major victories that went almost unnoticed. The first was a vote to unionize an auto plant in Tennessee; the second was a federal decision to prohibit most noncompete clauses.

The decision on noncompete clauses in particular is an effort by the federal government to change the balance of power between ordinary workers and employers. The right, which claims to be pro-worker, is appalled. It promotes “freedom”–but not the kind that permits workers to move from one job to another in times of labor scarcity. For the GOP, “freedom” means the right of the powerful to oppress the less powerful without government interference.

Someone should ask Trump where he stands on these decisions. My guess is that he would refuse to answer.

I’ve got those dirty, lowdown, post-invasion blues.

You have to be aware of it; it’s all over the news.

There’s no point in negotiating; Putin would refuse.

He thinks he has us on the run and that we’re going to lose.

______________

I have to thank Mike Johnson for providing us with aid.

We can’t rely on getting more; of Trump’s wrath I’m afraid.

We have to hope Americans will vote for Joe to stay.

But if they don’t, we’ll soldier on; we have to find a way.

______________

I’ve got the blues.

The trench warfare blues.

The West just needs to give us more

For them, there’s no excuse.

We do the best with what we have;

We need those weapons now.

If they don’t come, we’ll find a way

But please, don’t ask me how.

From the perspective of a member of the blue team, nothing makes Trump look more ridiculous than his argument that climate change is a Chinese hoax. It would be both truthful and emotionally satisfying, therefore, to run commercials juxtaposing natural disasters with Trump throwing paper towels and making absurd statements about the weather. But is that an effective campaign strategy?

As a device to motivate wavering members of Gen Z to go to the polls, maybe. Most swing voters, however, are going to make their November decision based on self-interest. If you want to reach them, you have to explain concisely how climate change drives up their costs and risks, and how fighting it is consequently in their best short-term financial interests, not just an act of altruism for future generations.

If you don’t like the tenor of the demonstrations, the best way to deal with them, in my opinion, is to force the students to stare directly at the long term implications of their position, not to make them shut up. Here are some questions that should be asked of them:

1. Do you realize that a cease-fire, without more, only leaves Hamas in charge of Gaza? If that happens, what makes you think we won’t be doing this all over again a few years from now? And what makes you think Hamas, by engaging in terrorist activities and then hiding behind the populace, has any interest in the well-being of the residents of Gaza?
2. What is the kind of state you envision for the Palestinians? Is it a secular liberal democracy in which Jews and Arabs have equal rights? If so, how does supporting a group that supports a Muslim theocracy get you to Point B? And what examples can you provide of secular liberal democracies in Arab states anywhere in the Middle East? If you were an Israeli Jew, would you feel comfortable in such a state?
3. If you don’t support a secular liberal democracy in which Jews have equal rights, what are you proposing for the Jews? Are you saying that Jews should be killed or forced to leave Israel, and that a rancid, reactionary theocracy should replace Israel? How is that opinion progressive, and why isn’t it antisemitic?

If you don’t look too hard, 2024 can appear to be a rerun of 1968: the president is an old, unpopular Democrat; RFK is running against him; students opposing an ongoing war are demonstrating on campuses all over the country; the convention is in Chicago; and a veteran culture warrior will be the GOP nominee in November. Sounds familiar, right?

But 2024 is not 1968. The war in question is not being fought by Americans. Our cities are not burning. There have been no assassinations. RFK is an independent with a very limited following. There will be no police riot in Chicago this time around. Finally, while Trump has some clear Nixon associations (Roger Stone is hardly the least of them), he has very different strengths and weaknesses than Nixon.

History will not repeat itself. Whether that is a good or a bad thing remains to be seen.

After 19 long, long months, the reconstruction of our Florida home is finally done. It will never be “normal” again; the inevitable changes were too significant for that. But it is a new normal, and it isn’t bad.

Naturally, the end of the process came the same week we were planning to leave for the mountains, so we won’t have much of an opportunity to enjoy the fruits of our labors. It’s time to leave, however. It’s getting way too hot, and I can’t wait to get out of DeSantistan. North Carolina has its own issues, but at least the Democrat running for governor has a big lead in the polls.

Can we have a quiet hurricane season this once? Cross your fingers.

Like many people, I suspect, I was toggling between the New York trial and the oral argument on Trump’s immunity defense this morning. As to the former, the prosecution did a good job, through David Pecker, of showing the jury how catch and kill worked and how Trump was personally involved. I will admit, however, that even I couldn’t imagine that Trump would congratulate Pecker for the success of the scheme in front of James Comey. That tells you everything you need to know about how Trump thinks the federal government works.

The oral argument, on the other hand, was awful. First of all, the Supreme Court should never have heard this case, as the D.C. Circuit wrote a perfectly good opinion. Second, the argument should have focused on whether the specific immunity claim raised by Trump was supported by text in the Constitution, legislative history, or case law (spoiler alert–it isn’t). I didn’t see any of that in the discussion. Instead, the reactionaries on the Court seem to be determined to write some sort of new broad immunity rule into the Constitution based on nothing except their individual views about how American liberal democracy should work; in other words, they want to be the Founding Fathers, not the interpreters of text, even though they claim to be textualists.

In addition, the coming decision is more likely than not to delay the Trump trial to the point that it cannot happen before the election. This is the judicial equivalent of catch and kill.

American foreign policy under Trump was unpredictable, due to the man on golf cart’s capriciousness and his ongoing conflicts with his own administration. Some of Trump’s admirers have identified this in retrospect as an asset. If you’re Putin or Xi, they say, you don’t dare do anything that would trigger the crazy cop. The invasion of Ukraine is just one example of something that wouldn’t have happened if Trump had been in charge, according to them.

In reality, the crazy cop approach to foreign policy is likely to result in allies who choose to go their own way. The EU, for example, is not a larger version of Lindsey Graham; it isn’t going to change positions on a dime just to stay in line with Trump. More of our friends will seek nuclear weapons in lieu of counting on a thoroughly unreliable and self-absorbed ally. The result will be far more instability in the world, not less.

Mike Johnson is running the House the same way McCarthy did; he’s using a coalition of moderates to get essential legislation through the system, while giving the extremists the opportunity to do whatever they want on other issues. But McCarthy was defenestrated, while Johnson clearly won’t be, as he has support from the Democrats. What accounts for the difference?

Three things: experience; personality; and circumstances. The Democrats have learned that most of the alternatives are worse; Johnson doesn’t lie to them, as McCarthy did; and there is little benefit to either side (other than the extremists) to having another round of chaos with the election looming in about six months. Even Trump clearly thinks so.

The Biden victory in November came as a huge shock to GOP voters who had been assured by Fox News that a Trump triumph was a sure thing. In red areas in many parts of the country, local officials, supported by law enforcement and backed by militias, announced that they would only cooperate with and take direction from Trump and his agents. One of these states in which this occurred was Florida.

DeSantis was put in a difficult position. On the one hand, he had ambitions to run for president in 2028; maintaining good relations with the base was of extreme importance to him. On the other hand, he knew he would lose all credibility with the respectable elements of the GOP if he sided openly with the insurrectionists against the legitimate government. What was he to do?

Predictably, he stalled and temporized. He talked somewhat equivocally about the legitimate grievances of the insurrectionists and called for a negotiated solution. In the end, the federal government took charge and put an end to the insurrection without his help. He naturally portrayed himself as a martyr in the battle against the deep state. The base lapped it up.

I don’t know if you’ve noticed it, but Trump has been sounding a bit, well, normal on the trail recently. He took a relatively moderate stance on abortion regulations, he’s not saying much about Gaza, and he’s standing behind Mike Johnson in spite of the Ukraine aid bill. Trump always feeds red meat to the base and never moves to the center, so what’s going on here? Is he actually becoming a more conventional GOP candidate?

I think the polls have convinced him that he blundered into a successful strategy by refusing to participate in the debates. The less he speaks about issues in public, and the more moderate he sounds when he does, the better he comes across to swing voters who are unhappy with the status quo.

Of course, his legal problems may blow this strategy to smithereens. So might his lack of oral discipline. And don’t expect the moderate version of Trump to remain in place if he actually wins the election. Once given the opportunity to exercise absolute power, he will use it, because if there is one thing we know for sure about the man on golf cart, it is that he considers himself to be above the law.

Based on what I have read in the NYT, here are my reactions:

1. As expected, the prosecution is emphasizing the big picture–a fraud on the American people prior to the 2016 election. The case wouldn’t be worth the effort if it didn’t stand for something more than putting false information in business records.
2. Pecker is a logical choice for the first witness.
3. While I am not completely sure of this, because the NYT postings were not altogether clear on the matter, it appears that the Trump team is using a mud on the wall approach rather than creating a consistent narrative on their own. That’s a fairly normal approach to the average criminal trial, but will it work here with either the jury or the court of public opinion? I have my doubts.

The movie “Civil War” is getting a lot of attention from pundits and moviegoers alike. I haven’t seen it, and don’t really intend to, but it is clear from the reviews that it is intended to remind us of the real life consequences of a civil war. There is no attempt made to describe its causes.

I have written extensively about the difficulties involved in secession in the 21st century. I don’t believe a civil war on the scale of the first one is plausible. There are two scenarios, however, in which I can imagine a degree of political violence in this country that would have been unthinkable until recently:

1. Trump loses the popular vote but wins in the Electoral College. Demonstrations that include some property damage and a few personal injuries break out in blue state cities. Trump invokes the Insurrection Act and sends troops to shoot down the demonstrators. The left doesn’t have guns, and it continues to believe in liberal democracy, so it does not unite to fight back. The response is limited to targeted killings of reactionary officials by a handful of militants. It achieves little.
2. Trump loses both the popular vote and in the Electoral College. He, of course, refuses to accept the outcome. In rural areas, particularly in red states, some local and state officials, backed by law enforcement and militias, announce they do not recognize Biden as their president and will no longer cooperate with or take direction from any federal officials except those working for Trump. In the end, after unsuccessful attempts at negotiation, Biden is compelled to invoke the Insurrection Act to arrest the rebels. This cannot be done without some violence, assassination attempts ensue, and militia activity increases dramatically. The reactionary right as a whole does not rise, however, and the attempts at insurrection ultimately fail.

The jury selection process was a bit faster than I anticipated. The evidentiary rulings have been unexceptional. In short, nothing extraordinary, from a legal perspective, has happened yet.

The three things that I will be looking for in the following weeks are:

1. WHEN WILL COHEN TESTIFY? Cohen is the principal witness in this case because he has personal knowledge of what Trump said, meant, and did. He is, on its face, also the least credible witness against the man on golf cart. When will the prosecution put him on? Personally, I would call him around the middle of the case in order to bolster his credibility both before and after he testifies, but we’ll see.
2. HOW WILL TRUMP’S ATTORNEYS IMPEACH COHEN? Many–maybe most–of Cohen’s notable lies were told to advance Trump’s interests. Asking him about them probably isn’t going to bolster Trump’s case. The lawyers will have to look for something else.
3. WILL TRUMP TESTIFY? He will make a dreadful witness, because he will be both aggressive and evasive. Defense counsel will be praying they don’t have to put him on the stand. Will they succeed? TBD.