Monthly Archives: April 2024

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.

Election 2024: Spring Training

As a lifelong baseball fan, when I hear the phrase “Florida and Arizona” my thoughts naturally turn to baseball’s spring training season, where all 30 MLB clubs spend several weeks in one of those two states preparing for the season, in either Florida’s so-called “Grapefruit League” or Arizona’s “Cactus League”.

While spring training is over by April, recent news has linked these two states in a different manner that could have a significant impact on the 2024 election.

In my last post I mentioned two recent SCOFL decisions, one reversing previous precedent to rule that laws banning abortion do not violate the Florida Constitution’s explicit right to privacy, and another allowing a proposed abortion rights amendment to the Florida Constitution to be on the ballot in Florida. This week, it was SCOAZ who joined the fray with its ruling in Planned Parenthood v. Mayes, the upshot of which is that an 1864 territorial statute criminalizing the performance of abortions remains valid law in Arizona.

Reading the opinion, I was struck by the following phrase: “When this litigation was initiated in 1971…” How many lawsuits span over a half-century?!? Forgive me while I go on a tangent to try and explain what happened here…

Way back in 1971, Planned Parenthood had sued the Arizona Attorney General, arguing that the 1864 statute violated both the U.S. and Arizona Constitutions. Planned Parenthood won at the trial court level, but in 1973 lost at the appellate court level. However at that point, SCOTUS issued its decision in Roe v. Wade, which then led the Arizona appellate court to reverse itself, holding the 1864 statute unconstitutional and enjoining its enforcement against healthcare providers.

The 1864 statute remained on the books, however. As a result, after Roe was overturned in 2022 by Dobbs the then-AG of Arizona, a Republican named Brnovich, sought to set aside the injunction against enforcing the 1864 statute. This was successful at the trial court level.

However to complicate matters somewhat, shortly before the 2022 election Arizona had adopted another statute, creating a ban on abortions after 15 weeks (now that Roe was no longer an impediment to such a law). As such at the appellate court level, the question turned to whether/how to harmonize the 2022 statute with the 1864 statute. And to that end, the Arizona Court of Appeals ruled that a provider performing services that were permissible under the 2022 statute was not in violation of the 1864 statute.

What SCOAZ did this week, on a 4-2 vote, was overturn that appellate court decision, ruling that a service that is not illegal under the 2022 statute viewed in isolation could nonetheless be illegal under the 1864 statute. As such, although SCOAZ has stayed its decision for 14 days, we are currently on a glidepath for Arizona to become a state where the only permissible abortions are those necessary to save the life of the mother (an exception provided in the 1864 statute).

At least, on paper. The “Mayes” in Planned Parenthood v. Mayes is current Arizona AG Kristin Mayes, a Democrat who won an open seat (Brnovich having been term-limited out) in 2022 by the incredibly narrow margin of 49.94%-49.93%, or 280 votes out of 2.5 million. She told NPR that her office will not be enforcing this law, drawing analogies to other ancient laws on the books banning adultery and bigamy that are not being enforced.

Additionally, there was already a group called Arizona for Abortion Access that was organizing to get an abortion rights amendment to the Arizona Constitution on the ballot for this November. Days before the SCOAZ decision came out, the group had announced that they had obtained the requisite number of signatures to get the measure on the ballot.

So, to sum up: It is now looking like the November ballot in both Florida and Arizona will contain abortion rights amendments, in the wake of recent State Supreme Court decisions that restricted abortion rights in those states. Given that Arizona was one of the most closely fought states in the 2020 election, this appears to be good news for not only President Biden but also for the Democrats’ chances to retain Senator Sinema’s seat. The Republican candidate in that election, Kari Lake, is now trying to get Arizona Republicans to repeal the 1864 statute even though in her 2022 gubernatorial race she had expressed support for that statute.

In other news, DJT stock continues to slide, briefly dropping below $30 today before recovering to close around $32.50. That means the price has now halved since it closed above $66 sixteen days ago, on March 27th.

Former Trump Org CFO Allen Weisselberg pled guilty this week to having committed perjury in the New York v. Trump et al civil trial, and will spend another five months in jail for his troubles.

And, despite multiple unsuccessful legal actions filed by his attorneys this week, Trump’s criminal trial in New York remains on schedule to commence on Monday. Today Judge Merchan denied Trump’s motion to indefinitely adjourn proceedings on the grounds that Trump is prejudiced by the volume of pre-trial publicity, noting that “the situation Defendant finds himself in is not new to him and at least in part of his own doing.” Big trial in N.Y.C. on April 15th. Be there, will be wild!

Election 2024: Eclipse 2024

Today was the second of the two Great American Eclipses of the first quarter of the 21st century.

Back in 2017, when I still used this blog for occasional posts unrelated to politics (or genealogy), I had written about the previous eclipse. As was true 7 years ago, I spent today working in cloudy Minnesota, outside the path of totality, while other members of my family managed to partake in the full experience. In particular my eldest son will have the distinction of being the only member of the family to have seen both total eclipses, having gone road-tripping today with some of his University of Illinois frat brothers to Washington, Indiana.

As I was watching the TV coverage early this afternoon, I was suddenly overcome with remorse for not having made an effort to see the eclipse — particularly since today’s path of totality included Kingston, Ontario where my parents live. Adult life gets complicated. Still, it was wonderful to watch the TV coverage, and see glimpses on social media of friends’ eclipse experiences.

And now we return to our irregularly programmed schedule

Today is the deadline for submission of the government’s reply brief to SCOTUS, and amicus briefs aligned with the government, in Trump v. U.S. Just checked and I do not see the reply brief yet, but many amicus briefs have trickled in. I will write more about that case in a couple days once the government’s brief is out.

Trump has continued to make various last-ditch efforts to avoid the trial in New York v. Trump from starting as scheduled a week from today, including apparently filing a lawsuit against Judge Merchan yesterday, although as of this point those proceedings are sealed.

As previously reported, Trump obtained an appeal bond in the amount of $175 million from Knight Security Insurance Company in connection with the New York v. Trump et al judgment. However, a number of questions have arisen about the legitimacy of that bond, including but not limited to the fact that KSIC is not an admitted insurer in New York and that KSIC’s statutory surplus appears to be less than the face amount of the bond. There will be a court hearing related to the appeal bond two weeks from today.

Turning from law to politics:

Trump was apparently pressuring Republican politicians in Nebraska to end that state’s practice, shared only with Maine, of awarding 1 electoral vote for each congressional district won. This is salient because the Nebraska 2nd (Omaha) voted 52-45 for Biden in 2020, even though Republican Representative Don Bacon managed to hold onto his seat, 51-46. However it is now looking unlikely that such a change will get enacted before the April 18th end to the Nebraska legislative season.

In Ohio, the Democrats may have boxed themselves into a corner that could result in Biden being excluded from the presidential ballot. Ohio has an unusual law requiring that presidential candidates be named by their parties more than 90 days before election day. The 2024 DNC is scheduled less than 90 days before election day, while the 2024 RNC is scheduled more than 90 days before. As such, without state legislative action–which had occurred in a previous cycle when both parties’ conventions were within the 90 days, but may not be forthcoming this year in a state whose state-level politics have turned bright red in recent years–is it possible Biden will not appear on the ballot in Ohio? If somehow he didn’t, the resulting expected depression of Democratic turnout would perhaps be fatal to Senator Sherrod Brown’s effort to hold his seat for the Democrats.

In Florida the State Supreme Court recently overruled precedent that the State Constitution’s 1980 amendment to create a “right to privacy” protected abortion rights in Florida, thus allowing Governor DeSantis’ vaunted 6-week abortion ban to take effect. However, at the same time SCOFL allowed a proposed constitutional amendment protecting abortion rights to be placed on this fall’s ballot. It will be interesting to see if having abortion explicitly on the ballot in Florida is enough to bring this state, once the purplest of purple states but more recently solidly red, back into play in 2024.

Finally, speaking of abortion Trump made an announcement this morning that while he remains proud of his role in enabling the SCOTUS decision to overturn Roe v. Wade, he believes that abortion rights should be a state issue. This immediately attracted criticism from all sides. Quoting from the AP: “Religious conservatives said they were deeply disappointed. Progressives said he was lying.” It is unclear if, politically, he is better off trying to walk a fine line on abortion to attract independents, at the risk of demotivating his base who would like to see something like a 15-week federal ban.

Election 2024: $100.7 Million

That’s the calendar year 2023 net after-tax loss reported yesterday by TMTG, on an unaudited pro forma basis, as if the pre-merger TMTG and DWAC had been combined for the entire year. $100.7 million of after-tax losses, on $4.0 million of revenue. (Much of the reporting on this has focused on a different number, $58.2 million of after tax losses; that number reflects TMTG on a standalone basis, without DWAC and without intercompany eliminations.)

The market did not take kindly to this news, as DJT stock went down from $62 to $48 during the day, bringing its market cap down to $6.5 billion and costing Trump himself $1 billion of paper wealth in a day. The stock price is now considerably off its post-merger peak of $75.

In other Trump financial news, yesterday he did manage to post a $175 million bond as he appeals the $454 million judgment in New York v. Trump et al. The bond was written by an insurer with which I am unfamiliar, Knight Specialty Insurance Company; it is a private company owned by 80-year-old billionaire Don Hankey, who started by inheriting his father’s car dealership and made his fortune primarily from subprime car loans.

Things are relatively quiet on other fronts, with Congress out on break after avoiding a government shutdown, two hours after the midnight deadline. Judicially, the New York v. Trump trial starts in 13 days, and the SCOTUS hearing in Trump v. U.S. is in 22 days. After Trump recently attacked Judge Merchan’s daughter on social media, yesterday the judge extended the scope of an existing gag order relating to the upcoming trial to cover family members of the court and district attorney, but leaving Trump free to criticize Merchan and Bragg themselves.

There are other stories that have wafted in and out of the news, such as Ronna McDaniel’s very brief tenure as a paid NBC contributor before a mutiny by the network’s news talent led to her termination, and Trump’s decision to start hawking $60 “God Bless the USA” bibles during Holy Week.