This blog has remained inactive for the past three years, having last been used to document in real time my take on news related to the US Presidential Election of 2020.

As 2024 dawns, we once again find ourselves in a situation where the presidential election is incredibly important, feels incredibly uncertain, and is subject to vast amounts of judicial scrutiny. As such, once again I think it will be fruitful to try and document events as they happen over the next several months, although given work pressures these posts may be infrequent over the next few months.

So, where are we, and how did we get there over the past three years?

Although we are weeks away from the Iowa caucuses, there has been virtually no suspense about how either party’s Presidential nomination will proceed. For the Democrats, to my personal disappointment Biden is seeking re-election, and has attracted only token opposition. Meanwhile the Republican party has devolved into a personality cult around Trump, to an even greater extent than was true in 2020. While there are several other candidates running in the Republican primary, Trump’s lead over the field is so large that he has skipped every single debate; nor, with the singular exception of Christie, have any of the other candidates seen fit to criticize Trump, for fear of being cast out of the party as apostates. That’s what happened to Liz Cheney, formerly the third-ranking House Republican, but primaried out of her safe Wyoming seat in 2022 in light of her role as vice-chairperson of the House Committee investigating January 6th.

Trump never accepted his defeat in 2020. His second impeachment trial didn’t take place until February 2021, after he was already out of office. It led to an acquittal, attracting only 57 Senate votes to convict, with many of those who voted to acquit (including McConnell) indicating that their vote reflected the fact that his term was over and therefore impeachment seemed inappropriate and/or unnecessary. After the acquittal, Trump in effect never stopped campaigning, although he didn’t officially declare his 2024 candidacy until days after the 2022 midterms.

Biden’s presidency has by many measures been a success, although public perception has fallen short of the reality, and his approval ratings have generally been in the low 40s. The country made it through the COVID-19 pandemic, although substantial stimulus spending in 2021 was not done in a particularly efficient manner and likely contributed to significant inflation in 2022. However, notwithstanding that fiscal imbalance remains a significant problem and climate change appears to be getting worse, the immediate economy is in the type of shape than an incumbent president running for re-election would want; and yet, Biden is not benefiting from these domestic conditions. Foreign policy issues have been challenging, with the Russia-Ukraine war nearing its 3rd year but with Republican support for Ukraine waning, with the US exit from Afghanistan having gone poorly, and more recently with the Israel-Hamas war creating fissures in the Democratic coalition.

In early 2021, the new Congress was slated to have a 50-50 split in the Senate, and a 222-213 Democratic edge in the House. Coming out of the 2022 midterms the House remained 222-213, but now with the Republicans in control, while the Democrats actually gained a seat in the Senate; this was an unexpectedly good midterm performance for the party occupying the White House. The ideological makeup of the typical Congressional Republican continues to grow more Trumpian, a trend that seems likely to continue in 2024 as many of the remaining ‘mainstream Republicans’, such as Romney, are not running for re-election. House Republicans have had significant difficulty actually governing in 2023. It took days of voting for them to elect Kevin McCarthy as speaker, and then several months later he was pushed out, after which it took Republicans a month to elect a new speaker after rejecting the first several logical replacements. A common prediction is that Congress will remain split after the 2024 election, but with the parties switching sides: the Republicans may retake the Senate thanks to Manchin’s decision to retire and an otherwise favorable set of seats in play, while the Democrats may retake the House as judicial decisions in states like New York, Wisconsin, and Alabama lead to more favorable 2024 maps than those used in 2022.

But the real trauma looming over the country right now involves judicial activity involving Trump. There are civil suits; there are criminal suits, both state and federal; there are suits involving electoral law; and there is appellate activity arising from each of these categories. Two appellate cases are of immediate interest.

The first relates to what I’ll refer to as the “D.C. criminal case,” in which Trump (and, for interests of speed, Trump alone) has been charged with multiple crimes arising out of January 6th. While a trial has been scheduled to start on March 4th, there is substantial doubt as to whether that date will stick. In December, the district court ruled against Trump on two issues where his ability to appeal is interlocutory in nature, meaning the appeal must be resolved before the trial can occur: one issue is whether a former President is immune from criminal prosecution for events occurring during the Presidency; and the other is whether Trump’s impeachment acquittal forestalls a subsequent prosecution on double jeopardy grounds. Trump has raised other defenses that were also rejected by the district court, but those issues do not give rise to interlocutory appeals, just post-conviction appeals.

The special counsel prosecuting Trump in the D.C. criminal case, Jack Smith, had asked the Supreme Court to hear Trump’s interlocutory appeal directly, instead of having it proceed normally in the D.C. Circuit Court. SCOTUS denied that request, but the D.C. Circuit Court is moving with extreme speed, and will hear Trump’s appeal on January 9th. Win or lose, this case will surely reach SCOTUS; but when?

The second relates to a heretofore obscure clause of the US Constitution, Section 3 of the 14th Amendment. Serious arguments have been advanced that, under this clause, Trump is ineligible to hold the Presidency going forward, on the grounds he participated in an insurrection against the US government — to wit, the events of January 6th. The Supreme Court of Colorado very recently ruled that, under Colorado law, Trump is ineligible to appear on the Republican primary ballot. Trump has appealed this ruling to SCOTUS, who just agreed to hear the case – again moving briskly, with oral arguments scheduled for February 8th. The Secretary of State of Maine has also determined that Trump is ineligible to be on the Maine primary ballot, while other states including Michigan and Minnesota have declined to take action with respect to their state’s primary ballot, but holding out the possibility that action could be appropriate under their state’s law with respect to a general election ballot.

Part of what makes this upcoming SCOTUS case very interesting is that a number of conservative legal scholars and jurists have come out in defense of the SCOCO ruling and have said that SCOTUS ought to affirm it. As such, from the standpoint of the six Republican-appointed justices, there may be a very serious conflict between the legal and interpretative principles to which they claim to adhere, and the political interests of the Republican party. On top of that, the case appears to have serious institutional implications for SCOTUS, as whichever side loses is unlikely to accept the decision as being legally legitimate.

It is going to be a long and interesting year: Stand back and stand by. (Too soon?)