Election 2024: The Long Pause

Yesterday Michael Cohen took the stand in New York v. Trump for a small amount of additional cross-examination, followed by a small amount of redirect, after which as expected the prosecution rested. In total the prosecution’s case took 15 days of trial time, spread over several weeks.

Thereafter the defense put on two witnesses, neither of whom are household names, and rested its case this morning without putting Trump on the stand. At that point, with the Memorial Day weekend looming Judge Merchan dismissed the jury for the week. At this point all 12 original jurors remain intact, interestingly.

As such, further activity in the trial this week will be limited to bickering around jury instructions; and then a week from today, May 28th, we will have closing arguments followed by jury instructions, after which things will be in the jury’s hands.

In other news, last Friday Trump made an effort to play offense on the electoral map by leaving Florida after Barron’s high school graduation to give a speech a few miles from my house, at the Minnesota GOP’s annual Lincoln-Reagan Dinner in St. Paul. I am skeptical that Minnesota is really in play this year, but it probably is a reasonable ‘aspirational’ state for the Republicans, not unlike North Carolina or Florida for the Democrats. I was somewhat surprised to learn, from the news coverage of Trump’s visit, that Minnesota last voted for a Republican for President way back in 1972; thank you, Walter Mondale.

I should also mention a second N.Y.C. trial of political interest that got underway last week: N.J. Senator Menendez is on trial for federal bribery charges. He is up for re-election this fall, and while he declined to participate in the Democratic primary after his indictment, he has left open the possibility that if acquitted he could run in the general as an independent against the Democratic candidate, expected to be Representative Andrew Kim.

Election 2024: Debates!?

Some shocking political news on Wednesday, as the Biden and Trump campaigns announced that they have agreed to forsake the Commission on Presidential Debates (which has sponsored all presidential debates from the 1988 election forward) and instead will have two privately arranged presidential debates, one on CNN on June 27th and another on ABC on September 10th. Unlike recent presidential debates, the CNN debate will reportedly take place in a studio with no audience present.

It’s crazy to think of a presidential debate taking place weeks in advance of either major party’s nominating convention, but such is the nature of our times I suppose.

Mine appears to be a minority view, but I’m of the belief that Biden should have refused to debate Trump on principle, arguing that the President of the United States should not engage with an individual that a state court concluded was an oath-breaking insurrectionist. I am holding out some hope that the reason Biden agreed to the debates now, before New York v. Trump reaches a jury, was so that if the jury convicts Trump, Biden could then say something like this: “Prior to his conviction Trump was innocent until proven guilty, and it was under that presumption of innocence that I had announced my willingness to debate him; but now that he is a convicted felon, it would be unbecoming of the President of the United States to share a stage with Trump. I’ll happily debate any other non-felon Republican who comes forward in Trump’s stead.”

One potential advantage of the two campaigns’ having reached their own deal on debates is that it takes potential third-party debate participants out of the picture. I haven’t previously talked about it in this series of blog posts, but there is a third-party candidate that is frequently polling at or above the 10% mark in polls that are not restricted to the two major-party candidates: Robert F. Kennedy Jr. RFK Jr is a very unorthodox candidate: historically a Democrat (and originally a potential primary opponent to Biden before he announced he would instead go the independent route), but with a diverse set of political views, and perhaps best known for his strong anti-vaccine positions. Both major party candidates are accusing him of being a stalking horse designed to draw support from their opponent. As such, both candidates had an incentive to deny his candidacy the oxygen that participating in official CPD debates, were his polling numbers to remain strong, could provide.

Election 2024: Cohen Week

Today the trial in New York v. Trump takes its usual Wednesday day off. Michael Cohen took the stand first thing Monday morning, and gave a day-and-a-half of direct testimony, followed by half-a-day so far of cross-examination.

Judge Merchan had previously allowed Trump’s request to attend his son Barron’s high school graduation on Friday, so tomorrow will be the only remaining day of trial this week. The expectation is that Cohen’s cross-examination will wrap up tomorrow, after which the prosecution is expected to rest its case. It is unclear whether the defense will call any witnesses, but if they do that will likely commence on Monday. After that, we’ll be down to closing arguments and jury instructions. It is not impossible to imagine that we’ll have a verdict before Memorial Day.

In other news, yesterday there were primary elections in Nebraska and West Virginia. As expected, WV Governor Justice – yet another controversial billionaire (or, perhaps, ex-billionaire) – won the Republican Senate primary and becomes the prohibitive favorite to flip the open Senate seat being vacated by Manchin.

Over in Nebraska, all 5 incumbent Republican congresspersons faced primary opponents (including 2 Senators, there being a special election this fall for appointed Senator Ricketts’ seat to fill out the remainder of Sasse’s term). Interestingly, the MAGAified Nebraska state GOP had endorsed all of the non-incumbents. However incumbency proved to be more powerful than the endorsement, as all 5 incumbents won handily. The closest race as expected involved Congressman Bacon, a comparatively moderate Republican in a district that Biden won 52-46 in 2020; as of midnight Bacon was ahead 62-38.

In the presidential primaries, Trump’s margin over Haley in Nebraska was only 80-18, two months after she’d dropped out; the remaining 2% went to businessman and bridge player Perry Johnson, whose self-financed 2024 campaign never quite got off the ground as he failed to qualify for any of the GOP debates in 2023. By comparison, Biden won 90-10 in Nebraska, with Rep. Phillips the other candidate on the ballot. As one might expect, Trump did better – and Biden worse – in West Virginia. Here Haley won less than 10% of the vote, while Biden was held to just above 70% by Phillips and three extremely obscure candidates, only one of which I’d heard of previously.

Finally, the New York Times released a series of swing state polls earlier this week that look very bad for President Biden, but at the same time decent for Democratic chances of retaining the Senate:

  • In Arizona, Biden trails Trump 42-49, but Gallego leads Lake 45-41 for Sen. Sinema’s open seat;
  • In Nevada, Biden trails Trump 39-50, but Sen. Rosen leads Sam Brown (presumably not the British singer of “Stop” fame) 40-38;
  • In Pennsylvania, Biden trails Trump 44-47, but Sen. Casey leads David McCormick 46-41;
  • In Wisconsin, Biden leads Trump 47-45 but is out-performed by Sen. Baldwin, who leads Eric Hovde 49-40;
  • Biden trails Trump badly in two important swing states that do not have a Senate race this fall, Michigan (42-49) and Georgia (39-49).

I honestly do not know what to make of any of this data.

Election 2024: Cohen Eve

As I write this, it is the evening of Mother’s Day. New York v. Trump will enter its 5th week tomorrow, and it has been widely reported that Trump’s former attorney, Michael Cohen, will take the stand in the morning.

Cohen, of course, had already pled guilty in 2018 to two federal criminal charges arising out of the very conduct that is at issue in this trial: one count of causing an unlawful corporate campaign contribution, namely the $150,000 catch-and-kill payment made by the National Enquirer to McDougal; and one count of making an excessive campaign contribution, namely the $130,000 hush money payment that he made to Daniels. As such, it has always been clear that Cohen would be a central witness in this trial.

Which is problematic, since Cohen had also pled guilty in 2018 to perjury charges relating to testimony he had given to Congress in 2017, plus more recently there have been allegations that he perjured himself last fall during the Trump Org civil fraud trial. However it is interesting to note what Judge Engoron had to say about Cohen’s testimony in that trial:

Although the animosity between [Cohen] and [Trump] is palpable, providing Cohen with an incentive to lie, the Court found his testimony credible, based on the relaxed manner in which he testified, the general plausibility of his statements, and, most importantly, the way his testimony was corroborated by other trial evidence. A less-forgiving factfinder might have concluded differently, might not have believed a single word of a convicted perjurer. This factfinder does not believe that pleading guilty to perjury means that you can never tell the truth. Michael Cohen told the truth.

Pundits have credited the prosecution with laying the groundwork carefully over the past weeks of testimony for Cohen’s anticipated testimony, so that as much as possible of what he has to say will have been pre-corroborated by other items already in evidence. Even so, this will surely be the most critical week of the trial.

In other news, Representative Marjorie Taylor-Greene’s attempt to do to Speaker Johnson what Rep. Gaetz had done to Speaker McCarthy failed this past week. While she did attract a total of 11 Republicans to her motion to vacate the Speakership, this time the Democrats did not remain united in their opposition to Speaker Johnson; instead, all but 32 Democrats voted with the Republican majority to kill MTG’s effort.

And while I’ve not yet read it carefully, there was an intriguing article in today’s New York Times about an issue I had previously noted, namely the possibility that Trump has taken overly aggressive tax positions in relation to the Trump Tower Chicago real estate project.

Election 2024: Contempt, III

Yesterday Trump was once again held in contempt of court by Judge Merchan for violating the gag order, making 10 such violations. Merchan once again declined to play the jail card, but he more firmly put Trump on notice that further violations of the gag order may leave Merchan with little choice but to do that. Later in the day, in a sidebar conversation Merchan referred to Trump’s behavior during the testimony of the day’s main witness as “contemptuous.”

That main witness was Stormy Daniels (the stage name of Stephanie Clifford) herself, which made for a very interesting day of testimony.

It had been unclear whether the prosecution would call even Daniels as a witness, since the underlying allegation that she had a tryst with Trump — while the predicate that ultimately led to the alleged hush-money payment — isn’t directly pertinent to the charges of falsification of business records. I’d heard one pundit suggest that they may have put Daniels on the stand in order to make it less attractive for Trump to testify himself, because he wouldn’t want to be subject to cross-examination about Daniels’ testimony. Another suggestion is that they wanted Daniels to be able to testify that, at the time the alleged tryst occurred in 2006, Trump hadn’t suggested to her that things needed to be kept secret; that in turn strengthens the prosecution’s argument that the motive behind the alleged hush-money payment in 2016 was purely political, and not to prevent Trump’s family from embarrassment, as had been suggested in opening arguments.

I had not really previously paid any attention to the details of the alleged Trump-Daniels tryst, and as such I found much of what Daniels had to say in testimony really disturbing. Per Daniels, here is what happened: A 60-year-old celebrity, whose wife is at home with their 4-month-old son, meets a 27-year-old porn actress while playing at a celebrity golf tournament; he asks his bodyguard to ask her to have dinner with him; after she initially says no in emphatic terms, she changes her mind on the advice of her publicist; she arrives at his room for dinner to find him in silk pajamas, and asks him to get dressed; at dinner they discuss the potential that she could appear on his hit TV show; after dinner, she uses the bathroom and emerges to discover that he has stripped down to his underclothes; she acquiesces to his advances, in “lie back and think of England” fashion, and then leaves; and while they did encounter each other again, that was the extent of their alleged tryst.

This is not a good look for Trump. His lawyer requested a mistrial based on Daniels’ testimony having gone too far in terms of irrelevant detail, which was denied. Maybe there’s a potential issue here on appeal (see Weinstein, Harvey), and maybe not; but in the post-MeToo world, having these details come out under oath in court ought to be damaging to Trump with undecided voters, regardless of the outcome of the trial.

In other news, to nobody’s surprise Judge Cannon announced that the Mar-a-Lago documents trial will not in fact be starting May 20th, but it was mildly surprising that she put the trial on indefinite hold instead of announcing a new date. And, in news that broke as I was writing this post, the Georgia Court of Appeals announced that it will hear an interlocutory appeal of Judge McAfee’s March decision to allow D.A. Willis to remain on the case; this makes it unlikely the Georgia trial can commence before the election.

Election 2024: Contempt, II

As I write this, the SCOTUS oral arguments in Trump v. U.S. are now a week-and-a-half in the rear-view mirror; and “contempt” is a pretty fair word for how many on the left are feeling about the Court right now, for deigning to engage seriously with Trump’s arguments around presidential immunity. Most of the articles I read about the oral arguments in their immediate wake, including those by veteran (albeit left-leaning) courtwatchers like Dahlia Lithwick, accused the Court’s conservative justices of being partisan hacks.

In hindsight, I think the tenor of the oral arguments was more or less what we ought to have expected, given the Court’s action in framing the Question Presented as follows: “WHETHER AND IF SO TO WHAT EXTENT DOES A FORMER PRESIDENT ENJOY PRESIDENTIAL IMMUNITY FROM CRIMINAL PROSECUTION FOR CONDUCT ALLEGED TO INVOLVE OFFICIAL ACTS DURING HIS TENURE IN OFFICE.” That phrasing of the QP signalled that the Court saw its role here as being much broader than resolving the issue of whether Judge Chutkan’s trial can proceed.

And, honestly, that’s probably appropriate. The Supreme Court views its main role as being to provide clarity on what the law is, so that future lower courts can apply that law consistently across a wide array of potential cases. If you read the transcripts of SCOTUS oral arguments, as I’m fond of doing for some strange reason, they are replete with situations where a justice’s questioning of an advocate is focused on the question of how to craft a legal rule that not only resolves the present case but does so in a way that articulates appropriate principles to be applied in the future. Jack Goldsmith’s post-arguments article for Lawfare is well worth reading.

Viewed through that lens, the Justices’ unwillingness in the Trump v. U.S. oral arguments to narrow their focus to the underlying facts of the January 6th case is understandable. As Justice Gorsuch famously said during the arguments, “we are writing a rule for the ages” – probing a heretofore murky area of the law and outlining how future prosecutors and judges need to apply it, whether to the past actions of President Trump, or to the future actions that a vengeful President Trump may seek to take against Biden, or to the actions of Presidents not yet born. If one thing was clear after 2.5 hours of oral argument, it was that SCOTUS embraced neither the maximalist immunity positions advocated by Trump, nor the per curiam opinion of the D.C. Circuit below, which Chief Justice Roberts criticized as tautological.

Understandable, but unfortunate. With this having been the final oral argument of the SCOTUS Term, and with the oral argument contra-indicating the hopes of many that SCOTUS would find it easy to dispose of this case, it seems unlikely that a decision will be forthcoming before the last week of June. Moreover, it seems very likely that the decision will preserve some form of immunity for an ex-president’s “official acts,” which would seem to imply that additional work needs to be done at the district court level before the Jan 6th trial could commence. Some have suggested that Judge Chutkan may need to hold pre-trial hearings in the summer, in order to determine how to apply the principles articulated by SCOTUS to this case. And as such, it would seem impossible for the trial itself to start before the election.

In other news, DJT stock has performed strongly during the first two weeks of the hush money trial, closing Friday at $48, having almost doubled from its April 16th low. And in a very odd sense the stock received some good news on Friday: its audit firm, BF Borgers, was permanently banned by the SEC. That means that TMTG and other BF Borgers clients will be unable to file their first quarter 10-Q with the SEC, until such time as TMTG hires a replacement accounting firm and that firm completes its review of TMTG’s first quarter financial statements. As such, it may be an unusually long time before the market is reminded of how poor TMTG’s underlying financial performance actually is.

Election 2024: Contempt, I

I started drafting this post five days ago and am finally coming back to finish it…

The second week of testimony in the hush money trial, Trump v. New York, started Tuesday after a three-day weekend break. Before that began, Judge Merchan issued his ruling on the previous week’s hearing about Trump’s non-compliance with the gag order. Trump was found to have violated the gag order nine times, and hence was found in contempt of court.

The only levers available to Judge Merchan with respect to punishment for contempt of court are to fine Trump up to $1,000 per violation, or jail him. This time he went the fine route, but he noted that for this defendant the fine was clearly going to be ineffectual in terms of providing motivation to change behavior, and as such he left the door open for jail time if further violations occur.

And two days later, there would be a second hearing about four additional purported violations of the gag order. No ruling yet, but it will be interesting to see if Merchan plays the incarceration card this time or not.

The prosecution’s focus in the early days of the trial has been on telling a story about how Trump, his then-attorney Michael Cohen, and Trump’s good friend David Pecker formed a ‘conspiracy’ in 2015 to use Pecker’s publication, the National Enquirer, in a manner intended to influence the 2016 election in Trump’s favor. This led to the National Enquirer having paid $150,000 to Karen McDougal in August 2016 to obtain and then suppress her story about having had an affair with Trump. Pecker testified that he declined to have the National Enquirer purchase Stormy Daniels’ story in October 2016, and that refusal allegedly set off the chain of events whereby Cohen borrowed money from his HELOC to pay Daniels and then received repayment after the fact from Trump, disguised as payments for legal services.

The key question remains whether the prosecution can convince the jury that this “conspiracy to influence the election” was criminal. Quinta Jurecic wrote an article recently for Lawfare attempting to unpack the legal theory here. A key linchpin in the prosecution’s argument appears to be that both the National Enquirer’s payment to McDougal and Cohen’s payment to Daniels violated federal election law. Cohen has already pled guilty to the latter, and the National Enquirer had previously acknowledged the former in a non-prosecution agreement.

Important witnesses in the first two weeks of testimony have been Pecker, attorney Keith Davidson (who had represented both McDougal and Daniels), and – starting on Friday afternoon – former White House communications director Hope Hicks, who in her role as a campaign staffer had publicly denied the McDougal story when the Wall Street Journal broke it four days before the election. In order to forestall potential witness intimidation efforts by Trump, the order of prosecution witnesses has not been publicly disclosed, which has added a level of suspense to the trial coverage.

A second theme of “contempt” describes the attitude that many left-leaning pundits have towards SCOTUS in light of the oral argument in Trump vs. U.S. nine days ago; but at this point I’ll leave that for a follow-up post.

Election 2024: Two Fronts

Tomorrow should be an interesting day for Trump, on two fronts.

In New York, it will be the third day of testimony in New York v. Trump; the trial will in general be running only four days a week with no activity on Wednesdays, so nothing happened today. The day will start with David Pecker, former publisher of the National Enquirer, still on the stand. His testimony on Tuesday was delayed by a hearing regarding whether Trump has violated Judge Merchan’s gag order relating to the trial; no ruling has been issued yet.

In D.C., it will be oral arguments at SCOTUS in Trump v. U.S., regarding presidential immunity. Today would ordinarily have been the final day of oral arguments in this SCOTUS term, and today’s case was a blockbuster involving the conflict between the federal EMTALA statute and a recent Idaho law restricting abortions except when the life of the mother is at risk. However, after the D.C. Circuit’s per curiam decision on the presidential immunity issue, SCOTUS scheduled one additional day of oral argument for this term rather than delay oral argument until the Court returns in October.

I never did get around to writing a blog post summarizing the arguments made in the parties’ briefs. However, as is typically true of SCOTUS cases, my expectation is that much of the discussion tomorrow will be focused on broader issues about the concept of presidential immunity that go beyond what would be needed to decide the more limited issue of whether Judge Chutkan’s trial may resume. Harvard law professor Jack Goldsmith summed things up this week in an article for Lawfare:

“The Trump indictment alleges grotesque abuses of presidential power. But the Court cannot say “Yeah, that’s really bad, no immunity” and let the case go forward on that simple basis. It has to consider how allowing a former president to be prosecuted and possibly convicted for Trump’s bad acts might impact a whole range of less bad acts by the current and future presidents. Figuring out that impact, and how to craft the opinion so as not to unduly hamstring other presidents, is one of the Court’s central tasks in Trump v. United States.”

In other news, there were two interesting developments in Arizona today. First, the Arizona House finally voted 32-28 to repeal the 1864 abortion ban that was recently reinstated by SCOAZ, after having failed to do on multiple occasions over the past two weeks; it is expected the Arizona Senate will follow suit next week, and the Governor will sign the repeal. Second, Arizona A.G. Mayes announced that 18 Republicans had been indicted in a new case involving efforts to overturn the results of the 2020 presidential election, including Mark Meadows and Rudy Guliani; Trump is “unindicted co-conspirator #1”.

Finally, yesterday was the primary election in Pennsylvania. In a closed Republican primary, six weeks after Nikki Haley dropped out, Trump only managed to beat Haley 83-17. Haley got 25% of the vote in two key suburban Philadelphia counties: Chester, which went 58-41 for Biden in 2020; and Montgomery, which Biden won 62-36. On the Democratic side Biden got 88% of the vote, versus 6% for the only other candidate on the ballot (Representative Phillips) and 6% for write-ins.

Election 2024: Trial of the Century?

Twenty-five years ago this month, in the heyday of the satirical newspaper/website The Onion, their editorial team published a masterful book called Our Dumb Century. The book’s conceit was that it consisted of reproductions of page 1 of The Onion, purportedly a major long-standing American newspaper, from various dates spread from 1900 to 1999. In reality, the book parodied the tendency of other news organizations to issue compilations like that, and provided witty satire of a whole century’s worth of news and trends.

One of the great running gags embedded throughout Our Dumb Century was the repeated use of the phrase “trial of the century” to describe various trials, from Fatty Arbuckle through O.J. Simpson. Which brings us to today, and the latest “trial of the century” – a former U.S. President, and currently a presumptive major-party nominee for President election, standing trial on state felony charges six months before the election.

The trial in New York v. Trump, expected to last six weeks, is not being televised. Opening arguments started this morning, followed by the prosecution calling its first witness, David Pecker, former publisher of the National Enquirer.

The theory of the prosecution’s case goes something like this.

In the waning days of 2016 election, Trump’s candidacy was under threat from accusations of sexual misconduct, including the infamous tape recording of comments he made to the hosts of TV show Access Hollywood. In this context, a woman with whom Trump had allegedly had an affair several years earlier — pornographic actress Stormy Daniels — sought a payment of $130,000 to avoid going to the press before election day about their alleged dalliance. In past circumstances Trump had allegedly convinced his publisher friend, Pecker, to insulate Trump from similar unwelcome news via something called a “catch-and-kill” — making a payment to a news source to purchase someone’s story, with the intention of burying the story rather than using it. For whatever reason, here Pecker was unable or unwilling to make a $130,000 catch-and-kill payment to Daniels.

So instead, Trump allegedly asked his counsel, Michael Cohen, to make the $130,000 payment to Daniels prior to the election, which Cohen did out of funds drawn on his home equity line of credit. Trump then, allegedly, made a series of payments out of Trump Org to Cohen to reimburse him for the payment to Daniels, disguising those payments as retainer payments for legal services provided by Cohen. Trump is being charged with multiple counts of falsification of business records in connection with his payments to Cohen, which would ordinarily be a misdemeanor. However under New York law, if that falsification is taking place in furtherance of another crime, it becomes a felony rather than a misdemeanor. And the prosecution’s apparent theory is that the uncharged other crime at hand here relates in some fashion to election finance rules.

My expectation is that this latter point will be the more interesting part of the trial: How, exactly, do the prosecutors intend to make the case that the payments made from Trump to Daniels through Cohen were in furtherance of an electoral finance crime? If Trump is acquitted of the felony charges, I suspect it will be because of an inability to prove this point.

In other news, Judge Engoron today has accepted the KSIC $175 million appeal bond in the Trump Org fraud case, with additional limitations placed on the nature of the collateral posted by Trump with KSIC and with KSIC assuming full control over the collateral.

Election 2024: Anticipation

Work has continued to be very busy this month, so I have fallen behind again on blogging. This should be a very eventful week, however, and as such I wanted to start a Monday morning off with some context.

Today opening arguments are expected to start in the “hush money” criminal case, New York v. Trump. Four days of court time last week was enough to impanel 12 jurors and 6 alternates.

This morning there will also be a hearing before Judge Engoron regarding whether or not the $175 million appeal bond in the Trump Org civil fraud case, New York v. Trump et al, is legally adequate. District Attorney James’ filing suggests three independent reasons why it is not: first, that Knight Specialty Insurance Company (KSIC) does not have adequate control over the collateral initially posted by Trump; second, that KSIC does not have sufficient financial resources to write the bond, given its level of statutory surplus plus the fact that it has taken large amounts of reserve credit for reinsurance ceded to its Cayman-domiciled parent; and third, that KSIC’s ultimate owner, billionaire Don Hankey, does not meet the statutory “trustworthy and competent management” standard that is relevant here, in light of his having previously run afoul of the federal CFPB in his core business, subprime auto loans.

On Thursday, SCOTUS will hear oral arguments in the presidential immunity case, Trump v. U.S.

Last week, the Senate took only a few hours to summarily dispose of the House’s impeachment of DHS Secretary Mayorkas, dismissing both articles of impeachment on a party-line vote on the grounds that the charges did not represent “high crimes or misdemeanors”.

DJT stock reached a new post-merger low below $23 on Tuesday, but after that had a strong recovery, closing Friday above $36 for the first time in 10 days.

Finally, over the weekend the House finally enacted foreign aid legislation that had been languishing for months, enabling defensive aid to Ukraine, Israel, and Taiwan. Cleverly, Speaker Johnson structured matters into four discrete votes – one for each of those three nations, and a fourth vote that covered other provisions, including one aimed at forcing the divestiture of TikTok by the Chinese government. However, even getting the package to the House floor required cooperation from the Democrats on the House Rules Committee, which is extremely unusual; and then for the Ukraine vote itself, while Democratic support was unanimous, Republicans voted 112-101 against the bill. Turning his back on the Hastert Rule may yet cost Johnson his speakership, with MTG poised to play the role that Gaetz played to McCarthy last fall.