Friday, March 24, 2023

Is DeSantis out before he's in?

 It seems as though it was only last week that the powers that be in the Republican Party were ready to anoint Ron DeSantis as the heir apparent to Donald Trump. The more sober-minded, not totally-sold-out-to-MAGA Republican politicians and pundits were uniting behind the Florida governor and proclaiming that a vote for anyone else was a vote for Donald Trump. Uncharacteristically for Republicans in past half-decade, this was considered to be a bad thing.

Granted, it’s a little ironic that most of the Republican politicos who were rushing to endorse DeSantis and point fingers at skeptics were largely the same people who rushed to endorse Donald Trump and lock out challengers to the incumbent president in 2020. The Venn diagram of Republican elites who wanted no one other than Trump in the last cycle and who are frantic to be rid of The Former Guy in 2024 is pretty close to no overlap.

Donald J. Trump looks at diagrams and photos during his meeting with Florida Gov. Ron DeSantis Tuesday, April 28, 2020, in the Oval Office of the White House. (Official Photo by Shealah Craighead)

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But a funny thing happened on the way to the coronation. Although we are still at a point that would normally be very early in the primary cycle, DeSantis has not yet tossed his hat in the ring. In failing to do so, he has allowed Trump, Nikki Haley, and Vivek Ramaswamy (who?) to steal a march on him. To make matters worse, DeSantis seems to have failed to catch on with Republican voters despite some high-profile endorsements as well as also making some significant missteps on the pre-campaign trail recently.

One of the most damaging incidents was when DeSantis characterized the Russo-Ukraine war as a “territorial dispute” on Fox News. As the AP details, DeSantis may have thought that he would be able to split the baby between the pro-Ukraine traditional conservatives and the pro-Putinists in the MAGA wing of the party. No such luck. After an outcry, the governor reversed himself, calling his remarks “mischaracterized,” and said that Vladimir Putin was a “war criminal.”

The damage was done, however. Governors almost always have to prove their chops on foreign policy and the misstep and quick u-turn hurt DeSantis’s credibility. The moment gave Trump the opportunity to say that DeSantis was “following what I am saying” and that it was a “flip-flop.” Third-place candidate Nikki Haley was quick to agree, calling DeSantis’s performance “weak.”

When Donald Trump raised the possibility that he would be arrested this week, a claim the New York DA now calls “a false expectation” created by the former president, DeSantis similarly tried to have it both ways.

Reacting to the story at a press conference, CBS News quotes the governor as poking fun at Trump, saying, “I don't know what goes into paying hush money to a porn star to secure silence over some type of alleged affair, I just can't speak to that,” before calling the matter “some type of manufactured circus by some Soros DA.” The response seems to vacillate between acknowledging that Trump could have acted illegally while at the same time dismissing the possible indictment as politically motivated.

These two incidents underscore the difficulty that DeSantis - or any Republican - is going to have knocking off Donald Trump. The Republican Party is a deeply divided party, with a large share of Republican voters still beholden to Trump. The other half of the party may not necessarily dislike Trump, but they do see him as a liability.

To win the nomination, a Republican who isn’t Trump is going to have to whittle away at Trump’s base while consolidating the majority of the non-Trump factions of the party. The rub is that the two sides of the party are not united in much more than their visceral dislike of all things left. That makes it very hard for any candidate to bridge the gap. How do you consolidate the two wings of a party that are supporting opposite sides in a literal shooting war?

There are a few different schools of thought on that. One way is to be a leader and win the other side over to your camp. A different tactic is to triangulate and make both sides think that you’re one of them. Yet another possibility is to carve a plurality out of the middle while trying to depress turnout for your opponents.

Thus far, it seems that DeSantis’s strategy has been to veer to the right by engaging in culture wars in an attempt to woo Trump’s base. The problem is that Trump’s base does not appear willing to be wooed.

It isn’t that they don’t like DeSantis, they just don’t like him in a two-way race with Trump. At a lot of rallies and public events, Republican voters say that they like both men but see DeSantis more as vice presidential material or a standard bearer in 2028. It’s not uncommon to see Republican rally-goers wearing both Trump and DeSantis gear (with The Former Guy’s garb is always more prominent), but that may not last as the two sides dig in and become more hostile to the other.

The bottom line is that what DeSantis is doing now is not working. Trump consistently leads in primary polling by healthy margins, and I’ll wager that the indictment stunt will give The Former Guy an added boost as Republicans circle the wagons. An Emerson College poll from last week found that DeSantis even trails Trump in his own state of Florida.

If and when he finally announces, DeSantis will probably get a polling bounce, but that won’t be a permanent gain. It probably won’t even be enough to take Trump’s lead temporarily. The governor is going to have to find a formula that works and he is already running out of time and distance to do so.

There are two big reasons that DeSantis is losing. One is that the Republican Party is still the party of Donald Trump. The second reason is that DeSantis is trying to be everything to everybody. In so doing, he comes off as insincere and not genuine. The “flip-flop” label is often deadly for political candidates.

And as for DeSantis’s elite backers, Heath Mayo of Principles First had an excellent point when he compared the elite DeSantis backers to the anti-anti-Trump faction of a few years ago. These were people who didn’t want to be labeled as Trump supporters, but they were much tougher on Trump critics than on the man himself. Anti-anti-Trump was composed of people who thought that the big problem with Trump was the mean tweets.

The problem for DeSantis is that anti-anti-Trump was transactional. They didn’t really have a problem with Trump, so they rallied to him when they thought he could win. Now, the DeSantis campaign is only a means to an end for them. If Trump or someone else becomes the nominee, they’ll pull the lever for whoever the Republican candidate is.

Not so for Trump’s voters. Many of them probably don’t have a second-choice Republican. A very large share of Trump voters will stay home rather than turn out for Ron DeSantis or Nikki Haley or whatshisname. Some might even cross over to vote Democrat out of spite.

The Republican elites know this. As much as they don’t like Trump, they do realize that nominating someone else would split the party, assuring a Biden (or whoever the Democrats nominate) victory in 2024. With the prevailing attitude of party-over-all in the GOP, the reluctant DeSantis supporters will eventually fall in line and vote Trump when he becomes the nominee yet again.

A few months ago, I was convinced that DeSantis would run. Now, I’m not so sure. He is an astute politician and he can see which way the political winds are blowing. I’m starting to think that he may sit this one out.

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NONE OF THE ABOVE: I want to add a footnote to the above piece. I know a lot of Republicans who don’t want either Trump or DeSantis. A lot of my extended family members fall into this camp.

These people are largely evangelical Christian conservatives who were iffy on Trump before and swore (or at least stated strongly) that they would never vote for him again after January 6. The preferred candidates for these people are Nikki Haley and Mike Pence.

Polling indicates that people in this group are a minority with both Pence and Haley accounting for about six percent each , but I do wonder how many nominally Republican voters are out there who would stay home or leave the race blank if Trump is the nominee. I think it’s a lot more than MAGA believes.

In a close race, like 2020, the large number of people alienated by Donald Trump would probably prove decisive once again.

NO INDICTMENT YET: In an update to our Trump indictment story from last weekend, Manhattan DA Alvin Briggs has not indicted Trump yet, although the grand jury was scheduled to meet on March 23. In a letter responding to Republican congressional inquiries and hand-wringing, Briggs wrote that the Republican requests “only came after Donald Trump created a false expectation that he would be arrested the next day and his lawyers reportedly urged you to intervene. Neither fact is a legitimate basis for congressional inquiry.”

ANOTHER LEGAL UPDATE: Following up on my story about the piercing of attorney-client privilege between Trump and his attorneys, the appeals court panel has ruled in favor of the Department of Justice. The Hill reported on Thursday that Trump attorney Evan Corcoran must comply with a subpoena from special counsel Jack Smith. The filings are under seal, but the next step would probably be a further attempt to appeal to the full court.

HE HAD THE FISH: I want to say a quick word about the incident in which Southwest Airlines pilot who fell sick. The healthy pilot was aided by a pilot from another airline who was flying as a passenger.

First, even though airliners require two pilots, most aren’t that difficult to fly. One pilot typically communicates on the radios and programs flight computers while the other flies. Most pilots who have gone through simulator training have probably done the pilot incapacitation drill in which they had to land the plane without help. The second pilot is there for redundancy and workload management.

Second, it isn’t rare for airliners to carry off-duty airline pilots. Many pilots commute to work by flying in unsold seats or the cockpit jump seat.

It was a good thing that an off-duty pilot could assist in the incident, but this was not an “Airplane” movie scenario in which the passengers were in danger. There was a healthy pilot at the controls the entire time. The person most at risk was the pilot undergoing the health emergency.

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TWEET OF THE DAY: This one is just for fun. You’re welcome, America.

From the Racket News

Wednesday, March 22, 2023

Trump not arrested, but he just got more bad news

 The big news from Tuesday was that Donald Trump was not arrested. Contrary to his prediction over the weekend, The Former Guy has not been indicted, did not do a perp walk, and there is still no indication from anyone other than Trump himself that any such action is imminent. Despite his current freedom, however, Trump’s legal woes are mounting and he did get some really bad news.

ABC News reports on a new development in the classified documents case, one of the more serious allegations against Donald Trump. In a sealed filing, a federal judge ordered that Evan Corcoran, an attorney for Trump, must comply with a grand jury subpoena despite his attempt to claim attorney-client privilege. The material that Corcoran was required to turn over reportedly included handwritten notes, invoices, and transcriptions of personal audio recordings.

File:Donald Trump (29496131773).jpg
(Gage Skidmore/Wikimedia)

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It is extremely rare for a judge to order a breach of attorney-client privilege, but there are grounds for doing so. One of the most commonly used is the crime-fraud exception, which holds that discussions that involve plans to commit a crime or fraud are not protected by attorney-client privilege. This seems to be where Trump ran into trouble.

In the filing, the judge wrote that she found "sufficient" evidence that Trump "intentionally concealed" the existence of additional classified documents from his attorneys. Trump’s dishonesty led his lawyers to unwittingly deceive the government when they certified to the DOJ in June 2022 that no additional classified material had been found at Mar-a-Lago after a “diligent search.” This certification was proven false after the FBI searched Trump’s resort home in August.

Unsurprisingly, Team Trump appealed this order. CNN picks up the story there and details how a three-judge panel in the federal appeals court issued a temporary stay. Trump’s lawyers were required to file a brief by midnight Tuesday and the DOJ was given until 6:00 a.m. to respond. Both sides apparently met their deadlines, but at press time no decision has been handed down.

This story is still in process as we await the panel’s decision, but I am a lot more interested in these developments than I am in Alvin Bragg’s New York case. The documents case is now being overseen by special counsel Jack Smith and we now know that Smith and his team have found evidence of criminal obstruction. While the New York case seems to be a legal stretch, the documents case is a serious threat to Trump.

The judges seem to be taking the case very seriously as well. The initial order to breach attorney-client privilege was a major move, especially given the sensitive nature of cases involving a former president. In fact, such a move is probably unprecedented when it comes to legal cases involving former presidents. The short deadlines set by the three-judge panel also indicate that the judges are in no mood for foolishness or dilly-dallying. A frequent Trump legal strategy has been to delay as long as possible, but that doesn’t seem likely here.

As I’ve said for a long time, Trump’s jeopardy isn’t merely based on the fact that he had secreted away government documents and property at Mar-a-Lago. As we’ve seen, control of documents and classified information seems to be a weak link for many elected officials. What separates Trump from the Bidens and Pences with classified documents in their garages and attics is the fact that Biden and Pence did the right thing and called in the FBI when the material was found. Trump stonewalled the government for months. The difference between Trump and Pence and Biden is obstruction and the intent to deceive.

If Trump’s attorney-client privilege shield is pierced, there will be major implications that extend beyond the documents case. Smith is currently dealing with at least eight Trump cases that include the inquiries into the January 6 attack and Trump’s attempt to steal the election in addition to the classified documents investigation.

It’s important to note here that, as far as we know now, Corcoran is the only Trump lawyer who has been instructed to turn over his materials to the grand jury. We can speculate, however, that if the strategy works, he won’t be last. It is very possible that a great number of Trump’s lawyers may have been party to Trump’s criminal conspiracies. The question is what prosecutors can prove.

If Trump’s attorneys are required to turn over their notes and testify before grand juries, it provides an opportunity for investigators to probe deeper and pull threads of suspicious activity that can lead deeper into Trump’s organization. This also sets a potential perjury trap for the day when Donald Trump is finally called to testify under oath. If The Donald’s claims don’t match the records and testimony that his lawyers provide, he can be charged with lying under oath. On the other hand, if Trump tells the truth, he might incriminate himself.

One answer would be to invoke the Fifth Amendment right against self-incrimination. In fact, Trump did do this last year in a civil fraud case involving his businesses. Video of The Former Guy’s testimony shows that he took the Fifth Amendment route more than 400 times. But for a politician, invoking the Fifth can lead voters to believe that there is definitely something to hide.

With or without Trump’s testimony, the investigations will go on. And if Trump’s trusted legal confidantes are forced to present evidence against their boss, the government investigators will gain invaluable insight into what Trump was doing and saying as his lawyers launched myriad legal challenges into election results, as the insurrectionists stormed the Capitol, and as the National Archives tried to arrange for the return of the boxes of classified documents that they knew were at Mar-a-Lago.

Those attorney notes and records comprise evidence of Trump’s actions, words, and state of mind. They may be used to link him directly to crimes that include but are not limited to fraud, inciting a riot, conspiracy to obstruct a federal proceeding, and possibly even seditious conspiracy.

Part of Trump’s success in avoiding indictment and prosecution so far is in his strategy of insulating himself from illicit behavior. Like a mob boss, Trump seems to have had underlings do his dirty work. At least some of these underlings, like Michael Cohen, were attorneys, which allowed Trump to wrap his dealings with them in the attorney-client privilege. If that protection goes away, there is no telling what investigators will find.

If I were Donald Trump, I’d be hoping that Alvin Bragg was the one bringing the looming indictment. Bragg’s case is thin and will probably be easy to beat. Jack Smith’s indictments are going to be much tougher.

I do think indictments are coming, but I don’t think that it will be this week. Jack Smith is still pulling the threads of illegal actions to find out where they lead.

From Racket News

Saturday, March 18, 2023

This is not the indictment you’re looking for

 News broke on Saturday that an indictment of Donald Trump might be imminent. The news came from Trump himself, who posted on Truth Social that the “leading Republican candidate and former president of the United States will be arrested on Tuesday of next week.” The former president referred to himself in the third person in an all-caps two-part post on Truth Social.

It wasn’t immediately clear why The Former Guy thought he was about to be arrested, but most speculation focused on New York District Attorney Alvin Bragg’s investigation into Trump’s hush money payoff to Stormy Daniels in the 2016 campaign. Former Trump lawyer and fixer Michael Cohen was scheduled to testify to a grand jury about the payoff earlier this month.

These Aren't The Droids You Were Looking For Meme |  THIS IS NOT THE INDICTMENT; THAT YOU ARE LOOKING FOR | image tagged in memes,these aren't the droids you were looking for | made w/ Imgflip meme maker
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As the AP explains, Cohen paid $130,000 to Daniels and $150,000 to former Playboy model Karen McDougal (via the publisher of the National Enquirer) to kill stories about their extramarital affairs with Trump. The Trump Organization “grossed up” the amounts for “tax purposes” and reimbursed Cohen a total of $420,000. In 2018, Cohen pled guilty to eight counts, including causing an unlawful corporate campaign contribution and making an excessive campaign contribution at the request of a candidate.

Cohen went to jail for doing Trump’s bidding, but Trump himself was never charged. As George Washington University law professor Jonathan Turley explains, the Manhattan US attorneys, the Federal Election Commission, and Bragg’s predecessor as DA, Cyrus Vance, all declined to pursue the case against Trump because of its legal difficulties.

Under the current set of facts, Turley notes that the apparent charge would be falsifying business records, but that is only a misdemeanor and the statute of limitations is long expired. We are still within the statute of limitations for a felony, but the most obvious way to parley the falsified records into a felony is by tying them to election law violations. But again, the chance to make that connection has been passed over several times by federal prosecutors.

The connection is just a hard one to make stick in court. Did Trump order the payoffs because he wanted to influence the election or for other reasons? It is plausible to say that he wanted to keep the news of his affairs secret from his wife and family or that the scandal would have affected his brand.

In fact, back in 2012, Democrat John Edwards was acquitted of similar charges stemming from his own extramarital affair. The law on when payments for personal expenses become campaign contributions is murky, even if it seems blatantly obvious in the court of public opinion.

But all this is speculation so far. There has been no announcement from any prosecutor about pending charges. Even Trump’s own staff doesn’t seem to have any idea where The Former Guy got the idea that he is about to be arrested, as Maggie Haberman of the New York Times noted in a tweet.

Is it possible that Trump is gaslighting to stir up controversy and rally the base for his upcoming campaign kickoff in Texas next week? You’re darned tootin.’

Even if his prediction is wrong, he will have returned to the front page, generated contributions, and inspired Republicans to circle the wagons around him. An added benefit would be the letdown that Democrats will feel when nothing happens (much like the letdown that QAnon adherents felt when Trump was never restored to power and arrests of political opponents never started).

That hasn’t stopped both sides from jumping on the news, however. Democrats are in a celebratory mood while Republicans are fretting about the backlash if Trump is indicted. As usual, both sides are wrong.

Let’s take the Republican positions first. A frequent exclamation that I’ve seen from the MAGA right is that Democrats have weaponized the justice system and that prosecuting former presidents is something that third-world countries do. It’s un-American, they say.

Actually, the opposite is true. It would be un-American to allow politicians who commit crimes to remain unaccountable because of their (former) positions. In third-world countries, laws don’t apply to the elite. In America, however, not prosecuting a politician who broke the law would be un-American.

If we want to get into un-American behavior, we can also discuss Speaker McCarthy’s new investigation of the investigators, which doesn’t even wait to see if Trump’s claim of an imminent arrest is true. Elected officials should not interfere in ongoing investigations unless there is evidence of malfeasance.

Others fret about the potential for backlash if Donald Trump is held accountable. This isn’t the defense of Trump that they think it is. If Trump’s base and the Republican Party believe that Trump is infallible and untouchable, it becomes even more vital that The Former Guy’s crimes be brought to light. What this argument actually calls for is appeasing a radical minority by letting their leader run amok and disregard the law.

This point is especially important in light of Trump’s role on January 6, which is probably not going to be a legal issue in the current possible indictment if the pundit class is correct. Nevertheless, our unrepentant and lawless former leader’s post on Saturday sounds a lot like his “Stop the Steal” speech on January 6.

Having learned nothing except that he can get away with anything, Trump said, “We just can’t allow this anymore. They’re killing our nation as we sit back and watch. We must save America” [sic].

And by “save America,” Trump obviously means, “You must save me from jail.”

On the Democratic side, there is a tendency to grasp at any prospect of a Trump indictment, but, if you’d like to see Donald Trump pay for his crimes as I would, to paraphrase Obi-Wan Kenobi, this is not the indictment that you are looking for. If this possibly-looming Trump indictment depends on a novel legal theory that you have to squint your eyes just right to see, it’s probably not going to end well.

And if there is anything worse than stirring up the passions of the country with a controversial indictment of a major political figure, it is stirring up the passions of the country with a controversial indictment of a major political figure that is doomed to failure.

Think about it. Part of Trump’s mystique is the myth that he fights and wins. Yes, he made history as the first president to be impeached twice, but he survived both attempts to remove him from office. Now imagine if Bragg indicts Trump, takes him to court, and there is an acquittal. Or worse yet, the charges are thrown out.

As one of my favorite talk-show hosts, Michael Medved, used to say, “If you strike at the king, you’d better make sure you kill him.”

Now, I’m going to stress that the quote is figurative. Neither of us is calling for violence against Donald Trump, but what I really don’t want to see is Trump emerging from an indictment as a stronger figure. That is what would happen if Trump is acquitted.

If Trump is acquitted, there will be much rejoicing throughout the GOP as the disgraced former president’s mythos reaches new heights. His control over the party will be strengthened. Even some moderate and independent voters will see the acquittal as a vindication of claims that Trump was unfairly persecuted. He will be more likely to win in 2024. Most of us don’t want that.

I do believe that Trump has committed prosecutable crimes, but I am very skeptical that twisting his huh money payoffs into campaign finance violations is one of them. Prosecutors need to keep their powder dry and focus on the charges that are most likely to result in a conviction, not those that are most likely to generate headlines, book deals, and political notoriety.

Personally, I think that Trump is in far more legal jeopardy from other ongoing cases. In particular, there is the obstruction in the Mar-A-Lago classified documents case and the phone calls he made to Georgia elected officials seeking to “find” enough votes to overturn the state’s 2020 election results. There is now recorded audio of two phone calls made by Trump to Georgia officials and both have been heard by the Fulton County grand jury. I would be surprised if there were not evidence of more calls both inside and outside the Peach State.

There is also the ongoing January 6 investigation. Information is still emerging about Trump’s role in the riot and attack on the Capitol that includes evidence that the former president knew his claims of election fraud were false. Special Counsel Jack Smith’s investigation is underway and could result in the most serious charges that Trump could face.

I’m a firm believer that elected officials should not be granted special privileges. Justice in America should not depend on who you are or what your status is. At the same time, I think there is necessarily a high bar for the indictment of political figures because we need to avoid abusive prosecutions.

I do believe that Donald Trump has committed crimes and should be prosecuted, but I don’t want him to escape the most serious charges because a rogue prosecutor wants to make headlines. When a former president is prosecuted, the case should be airtight and the legal theories should be grounded in bedrock. I don’t think that either is true with Alvin Briggs’s case in New York.

On the other hand, I’m also still a bit skeptical that Trump isn’t just making the whole thing up. I’m not going to get worked up based on Trump’s social media postings just ahead of a rally. I’ll be surprised if an indictment is handed down this week, with or without an arrest, but I do believe that the wheels of justice are slowly turning.

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MEDICAL UPDATE: I’ve been meaning to update everyone on my prostate cancer situation.

We talked to the doctor this week and there was some cancer in one of the 10 lymph nodes and on the bladder base that they removed during the surgery. It still seems that we got it pretty early though and the margins were negative. The doctor doesn’t think that I’ll need any more treatments at the moment. I do think this is an answer to prayer.

The plan is to keep monitoring my PSA levels. If there is any sign of a return of the cancer, we will decide on a treatment plan then. God willing, it will never return.

I’m also recovering well from the surgery. Some side effects were expected, but they haven’t been as bad as they could be. These will probably subside as we get further out.

I’ve been encouraged by family and friends to write about my experience, but so far, I just haven’t been motivated enough to put fingers to keyboard on the topic. It’s something that I will probably do eventually, and I’ll let you all know when I do.

Going forward, please keep me in your prayers. It will be several weeks until my first PSA test and hopefully, it will be clean.

God is good.

MASTODON: If you’re on Mastodon, so are we. In fact, we are on Mastodon whether you are or not. Find the Racket News on Mastodon at

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Speaking for me personally, I have created a number of new social media accounts as I brace for Twitter’s implosion. I’m not extremely active on any of them yet, but you can find me on Post (@captainkudzu), Mastodon (, and Counter Social ( at the click of each link.

TWEET OF THE DAY: Jeff Blehar of National Review read my mind on the possibly-pending Trump charges.