Monthly Archives: May 2024

Election 2024: Guilty

About twelve years ago, I was anxiously awaiting the SCOTUS decision in the first major case about the constitutionality of the Affordable Care Act, NFIB v. Sebelius. Too anxiously, to be honest. My anxiety about it was such that, when the appointed hour came, I decided I didn’t want to be in a position to hear the news immediately and thereby find out whether I’d wasted much of the previous two years of my life (working on ACA implementation issues for health insurers). I was visiting my parents at their cottage, with no television, and I decided to leave my cellphone in the cottage and go for a boat ride in the middle of the river. And then I came in from the boat to discover that Roberts had sided with the liberals to save the ACA, and I was emotional for a few moments, and then life went on.

Yesterday afternoon was much the same for me. I was waiting for my daughter’s school bus to arrive when the news came in that the jury in New York v. Trump, after about 9 hours of deliberation, had announced that they had reached a verdict and it would be announced in about half an hour. After fetching my daughter and coming home and turning on the TV, I then decided… to take a shower (having mown the lawn earlier).

And so it was that I was in the shower yesterday when my daughter entered the bathroom, at her mother’s prodding, to share the news: “All 34 counts: guilty.” I was emotional for a few moments, and then life went on.

Sentencing has been set for July 11th, which is mere days before the Republican National Convention. By all appearances, neither this conviction nor the upcoming sentencing will have any impact whatsoever on the outcome of the RNC; one of our two major parties is going to nominate a recently convicted felon for the Presidency. That remains the reality of the politics of 2024, such is Trump’s grip on the GOP.

There appears to be a diversity of views on what the sentencing outcome will be. On the one hand, Trump has no criminal record and these are Class E felonies, facts which would argue in favor of probation rather than jail time. There is also the optical difficulty of jailing someone who is about to be nominated by a major party for president. On the other hand, there are many extenuating circumstances here unrelated to the upcoming election, including not only the defendant’s utter lack of responsibility for his actions (as he continues to exclaim that he is “completely innocent”) and expressions of contempt towards the justice system, but also the seriousness of the uncharged electoral crimes that the jury found merited the elevation of these business record falsification crimes from misdemeanors to felonies. It is also unclear whether any prison sentence would be stayed pending appeal.

In other electoral news, it was recently announced that the UK will have a general election on July 4th. I do admire their electoral efficiency. Meanwhile back in the US, the governor of Ohio called a special legislative session in an attempt to resolve the impasse that might have left Biden off the ballot this fall in the state, due to the fact that the DNC is scheduled to occur less than 90 days before the election. However with legislative solutions remaining stalled, it sounds like the Democratic Party will conduct a virtual nomination of Biden in advance of the DNC itself, in order to qualify him for the Ohio ballot.

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.