Tag Archives: Donald Trump

The Republican Campaign & the Fear of Attacking Trump

By tmess2 | Published August 20, 2023

Barring some major unexpected change, President Biden will not face any major opposition for the nomination next year.  At the present time, his opposition is composed of fringe candiates who reject most of the Democratic platforms of the past thirty-five years.

On the Republican side, there is supposedly a nomination contest.  But in many ways, we are seeing a repeat of the 2016 campaign with Donald Trump starting from a stronger position than he did in 2015.  Back then, Trump was an unknown quantity as a politician and Republican voters were simply playing with the possibility of supporting Trump.  Now, he is a known and the “maybe” 25% is something like a 40% certain and a 30% maybe.  But the constant is that most of the top contenders are unwilling to attack Trump.

Part of the reason why Trump has emerged with only a handful willing to attack him is a general perception about negative campaigning.  The problem with negative campaigning is that it has a cost.  Negative campaigning is aimed at “persuadable” voters.  At best, it persuades the voter leaning to the opponent to vote for you (a gain of one vote for you and a loss of one vote for your opponent or a swing of two), but it is acceptable if it merely results in the voter deciding to sit the race out (a loss of one vote for your opponent).  People do not like negative campaigns and such campaigns drive up the negatives of both the candidate doing the attack and the candidate being attacked.  If successful, the negative campaign drives up the negatives of the candidate being attacked more than it does the candidate doing the attacking.  In the general, negative campaigning works because you tend to have two candidates with enough “certain” voters that even if all persuadable voters flipped to a third candidate that third candidate would still finish third. Continue Reading...

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The Independent State Legislature Theory, Election Law, and the Trump Crimes

By tmess2 | Published August 13, 2023

Recently, a federal grand jury in the District of Columbia returned an indictment charging the Orange Menance with crimes related to his attempted coup after the 2020 election.  It is expected that within a week or two a state grand jury in Fulton County, Georgia will add state charges related to the efforts of dictator-wannabe Donald Trump to convince Georgia election authorities to alter the results of the election in that state.

Much of the crimes committed by Donald Trump and his band of incompetent coconspirators were based on a flawed version of the independent state legislature theory and a misunderstanding of election mechanics.

First, the independent state legislature theory.  The independent state legislature theory is based on two clauses in the U.S. Constitution.  One of the clauses is found in Article I and applies to the election of members of Congress.  The other clauses is found in Article II and deals with the selection of presidential electors. Continue Reading...

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What the Indictment Might Mean for 2024

By tmess2 | Published April 1, 2023

To begin with the obvious, an indictment is a document used to formally bring criminal charges against an individual (here the Orange Menace).  Under the law, all criminal defendants are presumed to be innocent of the charged offense, and the prosecution has the burden to present sufficient evidence to convince twelve jurors to unanimously agree that the evidence proves that defendant guilty beyond a reasonable doubt.

There is no precise timetable for when a case must go to trial.  The U.S. Supreme Court has held that, as a matter of federal constitutional law, a trial begun within eight months of charges being filed is sufficiently speedy to satisfy the speedy trial clause of the U.S. Constitution.  If, as often happens, it takes more than eight months to bring a case to trial, the courts then use a balancing test to decide how long is too long.  In theory, Trump might be able to delay the trial until after the 2024 election.  If he succeeds in this goal, the problems for him will be mostly how much of a distraction the pending case(s) will be (both in terms of time and money) and how voters react to the charges.  While it’s too early to tell for sure, the initial reaction of voters seems to be that the true believers will see any accusation against their god as persecution and an attempt to block them from electing him.  This groups might be just enough to get him the Republican nomination, but this group is not large enough to get him elected.  On the other hand, a significant group of swing voters seem to be tired of the chaos and criminality associated with Trump, and these charges (unless something else comes out to undermine them) seem likely to make it harder for Trump to win the general election.

The “interesting” questions come when Trump is convicted.  (Most defendants are convicted.  While there is an old saying that a grand jury would indict a ham sandwich, that saying is only half true.  Yes, the prosecution controls what a grand jury hears, but they still need some credible evidence that the defendant committed a crime.  And, after you get the indictment, you still need to win a trial.  While some prosecutors might put the hand slightly on the scale to get an indictment in a case that is a close call, it does little good to bring charges when your evidence is so weak that you have no chance at getting a conviction.)  And this is a question of ballot laws in the fifty states (plus D.C.) and the rules of the Republican Party. Continue Reading...

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The Fall Campaign

By tmess2 | Published September 4, 2022

Traditionally, Labor Day Weekend was seen as the start of the Fall campaign (at least by the media).  If that was ever true, it no longer is.  With cable and websites like Facebook and Youtube, there are a lot of relatively inexpensive way to get advertisements out during July and August.  If a campaign waits unti September to begin its ad campaign, the other side has already defined the race.

But, by this point in the cycle, we are down to the last handful of primaries, and the national committees and big PACS are already looking to decide where they are going to be spending the big bucks in late September and early October.  (As the change in the mechanism for advertising has obliterated Labor Day as the start of the fall campaign, the change in voting habits (with a significant percentage casting early votes or mail-in ballots) has also altered when the big final push begins.  While, in a close race, last minute news and ads can make a difference, it is just as important to get as many votes locked in as early as possible so that the last-minute spending can be focused on a tiny number of votes.

But that is the inside baseball stuff of campaigns.  The purpose of this post is to set the stage for the next eight weeks.  For the past two years, Democrats have had the frustration of a very narrow margin in the House of Representatives and a dead-even Senate.  Because Nancy Pelosi may be one of the all-time great Speakers, Democrats have been mostly able to pass things in the House.  The Senate, however, has been very, very difficult.  The filibuster rules has limited the Democrats to passing anything significant via the reconciliation process.  Even the reconciliation process requires keeping the entire Democratic caucus together which has proven difficult as a single member can insist on changes to any proposal.  And the  lack of a majority has also prevented any changes to the filibuster rule (again due to the ability a single Democrat to veto any proposed change). Continue Reading...

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Impeachment vs. 14th Amendment vs. 25th Amendment

By tmess2 | Published January 16, 2021

Up until his very last minute in office (and beyond it), Donald Trump is making history in ways that his descendants will not like.  In fifty years, instead of saying that a person’s name is Mud(d), we might be saying that his name is Trump.

Right now, there are three possibilities being discussed in D.C. and on op-ed pages.  Each have some legal questions associated with it.

The first option — which seems dead in the water as the Cabinet and Vice-Coward Mike Pence seem to be reluctant to take responsibility for suspending Trump’s presidency is the Twenty-Fifth Amendment.  Many constitutional amendments are simple establishing one basic rule.  E.g.  authorizing or repealing prohibition, giving women the right to vote).  Others, like about half of the bill of rights, have multiple related but separate concepts (e.g. First Amendment covering freedom of speech, freedom of religion, and freedom of assembly).  The Twenty-fifth Amendment is one of those multi-part amendments addressing several aspects of presidential succession. Continue Reading...

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Census Watch 2021

By tmess2 | Published December 18, 2020

As folks who have followed this website for a long time know, the decennial census is something that I consider to be a very big deal.  And, while perhaps not as detailed as we did it back in 2011, I am hoping that we will do something as the numbers come out in the spring about what the numbers might mean for our chances at keeping and increasing the Democratic majority in the House.

Redistricting involves two action at the federal level and at the state level.  At the federal level, the results of the census are use to determine how many representatives each state gets (often referred to as apportionment).  At the state level, assuming that a state has more than one representatives, redistricting involves drawing the lines so that each district has roughly the same population (no more than a 5% gap between the largest and smallest district and preferably smaller).   At the current time, of course, we are dealing with actions at the federal level.  The ball only shifts to the state level once apportionment has occurred and the Census Bureau has released the detailed count (breaking population down to census blocks) to each individual state on a rolling basis.

The federal part of the process comes first and involves two steps:  one involving raw data and the other involving the application of a formula to that data.    The first step is the census finalizing its state level population numbers. According to federal law, by January 1, the Census Bureau is supposed to report its numbers to Secretary of Commerce who is to forward those numbers to the president.  Upon receipt of those numbers, the President is to calculate the number of representatives that each state is entitled to and, by January 10,  forward a statement setting forth the population of each state and the number of representatives that each state will have in the next Congress.  The calculation is done by the “method of equal proportions” (one of several mathematical formulas used to “fairly” allocate partial seats). Continue Reading...

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Electoral College

By tmess2 | Published December 13, 2020

One of the often misunderstood aspects of U.S. elections is how the popular vote relates to the election of the President.  While, in the majority of the states, the ballot simply lists the candidates for President (along with the Vice-Presidential running mate), voters are effectively voting for a slate of electors.  The winning slate in each state then assembles on the first Monday after the second Wednesday in December at the location and time designated by that state.  After assembling, the electors for the state cast a vote for President and a vote for Vice-President.  The votes are then counted, and the electors complete six certificates of vote recording the votes of the electors for that state.  Each certificate of vote is paired with one of the previously completed certificates of ascertainment.  Federal law then directs what happens with the six certificates of vote with one going to the President of the Senate (in practice, the clerk of the Senate), two to the national archives, two to the secretary of state of the individual state, and one to the federal district court for that state.

Normally, the meeting of the electoral college is a big ceremonial event.  With Covid-19 and the potential for protests to get out of control, it appears that most of the states are planning on holding scaled-down events.

The fringe element of Trump supporters (and President Putin) are hoping for some last minute drama for Monday, but that is practically impossible for several reasons.  First, earlier this year, the U.S. Supreme Court upheld state laws requiring electors to vote for the presidential candidate to whom they are pledged.  While states have different laws on so-called faithless electors,  the net effect of those laws is that sixty-nine Biden electors are from states that replace an elector and cancel the electors vote if the elector fails to follow through on their pledge, sixty are from states that fine the elector, seventy-one are from states with pledges but no enforcement provision, and one hundred six are from states with no law on this issue.  That means that, at most, there are 237 Biden electors who could defect. Continue Reading...

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Safe Harbor Day — UPDATED

By tmess2 | Published December 6, 2020

Whether it is just the weirdness of 2020 or the narcissism of the Orange Menace, this post-election period has been about key dates and events.  Over the past four weeks or so, one by one, despite unsuccessful attempts to have courts intervene to block them, states have certified the results of the presidential election, and the remaining states are set to do so on Monday or Tuesday.   Once the appropriate authority within the state has certified the results of the presidential election, the governor is to complete and mail to the National Archives a “certificate of ascertainment.”  As of today’s date, the National Archives has received just under half of these certificates.

Now normally, this process is routine.  It happens, and only political geeks pay attention.  But because Trump and his “lawyers” refuse to face reality, we are now facing an event that has only really mattered once before in U.S. history — the safe harbor date.   If a state has concluded any dispute related to electors by six days before the electors meet, the determination by the state is “conclusive.”  In 2000, the U.S. Supreme Court used this language to find that Florida wanted all election contests to end by the safe harbor date.  The 2000 election is the only time that we have faced the safe harbor date having any meaning.

But we are back in that boat again.  And this year, the safe harbor date is Tuesday, December 8.    Despite Trump’s attempt to cast this election as a repeat of 2000 with the Supreme Court intervening to decide the election if necessary, what is happening in the courts does not support that alternate reality. Continue Reading...

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Trump and the Supreme Court (UPDATED)

By tmess2 | Published November 29, 2020

Even though Joe Biden will become President on January 20, Donald Trump is still the president.  Thus, until January 20, the policies of President Trump are still the policies of the U.S. Government, and Bill Barr and Noel Francisco still get to decide what position the U.S. will take in pending litigation

This week, the U.S. Supreme Court returns for its first set of oral arguments since Joe Biden became the presumptive President-elect.    And the session begins with a very big case — Trump vs. New York.  The issue in the case is whether unauthorized immigrants count as part of U.S. population in the census for the purpose of allocating congressional seats and government funding.

The big development on this case is that the Census Bureau will apparently be unable to meet the statutory deadline of late December for reporting the total count due to certain issues that have arisen in finalizing the count.    The U.S. Supreme Court had shortened the time limits on this case to make sure that they could hear arguments on it and issue a decision in a timely fashion.  But if the numbers will not be available until after January 20, and President Biden opts to use the full count, this case could disappear as moot.  I would prefer that the Supreme Court issue a decision upholding the plain language of the Constitution requiring a count of all persons residing in the U.S., but, as long as the Republicans attempt to manipulate the numbers fails, I can live with a non-decision. Continue Reading...

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Trump Law Update

By tmess2 | Published September 1, 2020

You know that something is wrong when you have to watch the appellate courts to know what is happening in the White House.  And this week has already seen several interesting rulings.

The biggest — because it is from the full U.S. Circuit Court for the D.C. Circuit — concerns the Michael Flynn case.  As you may recall, Michael Flynn (National Security Advisor for a day) pleaded guilty to charges of lying to federal agents as part of the Mueller investigation.  After Mueller wrapped things up and turned things over to the career prosecutors, William Barr became Attorney General of Trump and decided to start undoing what he could of the Mueller investigation and prosecutions.  Rather than proceeding with sentencing of the admitted criminal, A.G. Barr is willing to allow Flynn to withdraw his plea on a flimsy theory and then dismiss the charges.  Because this seems fishy and motivated by something other than normal prosecution operations, the judge who took Flynn’s plea decided to appoint an attorney as amicus curiae (literally friend of the court) to brief why the plea should stand and the request to dismiss the case should be denied.  (This procedure is not unusual at tbe appellate level.  Typically, once or twice a year, the Supreme Court will appoint an attorney to defend a lower court decision when both sides contend that the decision below was erroneous.  Rarely does the appellate court side with the amicus, but it does make sure that the best arguments in favor of the lower courts decision are heard.)

Mr. Flynn and his friends in the administration did not like this road bump in their attempt to wipe away any incentive for Mr. Flynn to decide to start telling the truth about his ties to Russia; so Mr. Flynn filed what is called a petition for writ of mandamus (essentially an order directing a lower court or government agency to do a specific act which contrasts with an injunction which orders a party not to do something).  Mr. Flynn got very lucky with the initial panel assignment somehow ending up with the two Trump appointees to the D.C. Circuit on his three-judge panel.  And the initial panel voted 2-1 to grant the petition and order the trial judge to grant the motion to dismiss.  The rest of the judges on the D.C. Circuit on their own motion decided to take the case from the panel and conduct a rehearing “en banc” (that is in front of all of the regular judges of the court).  On Monday, the full D.C. Circuit issued its ruling — an 8-2 decision denying the petition. Continue Reading...

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