Meanwhile, Biden is kicking [asterisks].

June 14, 2023

          The “anti-Biden” narrative in the media and GOP for the last twenty-four months has been along the following lines:

          Sure, Biden’s first two years were successful on every measure and unemployment is at a historic low, but inflation and gasoline prices are high! That’s the only thing voters care about! And no one cares about the seemingly endless investigations of Trump that are going nowhere!

          I have, of course, resorted to hyperbole and poetic license in describing the “Biden is failing” narrative, but doing so makes it easier for me to make my point:

 While Trump has finally been indicted for federal crimes, Biden continues to achieve significant victories on the legislative and economic fronts.

          Avoiding a default over the debt ceiling was a legislative masterstroke that should not be forgotten or minimized. Since then, the economic news has been consistently good. On Tuesday, President Biden tweeted about the most recent data from the U.S. Bureau of Labor Statistics, which reported a 4% annual inflation rate in May:

Today’s report is good news for hard-working families. It shows continued progress tackling inflation at the same time that unemployment remains at historic lows.

Annual inflation is now at the lowest level since March 2021, and less than half of what it was last June.

          Simon Rosenberg (of Hopium Chronicles | Substack) put that achievement into a global context, tweeting,

The economic recovery from COVID has been stronger here in the US than in any other G7 nation and inflation is much lower here than in the EU or UK.

          As Biden’s trajectory is rising, Trump's is falling. It is true that Trump's legal troubles are consolidating his support among his existing base—a constituency that is too small to elect Trump. To be elected as president, Trump needs to convince independent voters that being indicted for unlawful retention of defense secrets, obstruction of justice, conspiracy, and false statements is not disqualifying to be president. All indicators suggest that Trump's legal jeopardy is having a predictable effect on support among voters who are not in his base—he is losing support.

          For example, a CBS poll taken over the weekend shows that 38% of likely GOP primary voters believe Trump's retention of the nuclear documents presented a national security risk. If even half of those Republicans vote against Trump in the general election, it will be extraordinarily difficult for him to win. Worse news for Trump is that 80% of voters who are not in his base believe his retention of nuclear documents presented a national security risk.

          The CBS poll is of limited utility because it focused on GOP primary voters, but in the few questions that addressed other voters, the responses were not good for Trump. An ABC/Ipsos poll taken last week drilled down on Independents, showing that 48% believe that Trump should have been indicted, while 33% believe he should not have been charged. If those percentages map onto how Independents will vote in 2024, Trump cannot win in the general election.

          I acknowledge the above conclusion is based on extrapolation and speculation that pushes the polling data beyond the questions asked. But if the data in the ABC/Ipsos poll is viewed as an analog for electoral support, it should be a warning signal for Trump. And it should give confidence to those who (like me) believe that an inevitable consequence of the prosecution is that it will damage Trump's electability in the general election.

          The point is that Biden continues to overperform while Trump is facing increasing headwinds with each new indictment. And the great likelihood is that by the end of the summer, Trump will be facing new indictments in Georgia (election interference) and D.C. (crimes related to attempted coup and insurrection). And on Tuesday, a federal court permitted E. Jean Carroll to amend a pending defamation complaint against Trump to include comments he made during the CNN “town hall” three weeks ago.

          In summary, things are bad for Trump and getting worse. Meanwhile, Biden is kicking ***.

Trump is arraigned on charges of unlawfully retaining national defense documents.

          Trump appeared today before a magistrate judge in Palm Beach, Florida, to plead “Not guilty” to 37 counts in the indictment. There is so much being written and said about the indictment, I won’t try to compete with the (mostly) good commentary available from other sources. Instead, I will focus (for now) on how I believe we should respond to the unprecedented situation of a former president and current presidential candidate under indictment.

          The facts that matter:

• Trump is struggling to assemble a defense team because of his notorious difficulty as a client. The attorneys who appeared with him at the arraignment were “borrowed” from his Manhattan indictment defense team. Not a good sign for Trump.

• Trump's co-defendant and valet could not retain an attorney in advance of today’s hearing. Not a good sign for Waltine Nauta.

• The Magistrate Judge said he would enter an order prohibiting Trump from speaking to specified witnesses. Trump will likely violate the order early and often.

• There was a very small crowd of Trump supporters outside the courthouse, despite Trump's call for supporters to “protest” and “take our nation back” if he was indicted. Either Trump is losing his ability to command his supporters, or the January 6^th prosecutions have made an impression. Or both. In either case, good outcome!

          We have begun a long and circuitous trek to trial. There has been a torrent of legal analysis about legal and procedural issues that may arise on that trek. My advice is to not let yourself be overwhelmed by complex and arcane issues that may not be relevant anytime soon. When the issues arise, we can discuss them with the benefit of actual motions and responses by the parties.

          If you find yourself trying to force your dinner companions to take a position on the intricacies of the crime-fraud exception or whether a judgment of acquittal is appealable, that is a cry for help. That said, dozens of readers have written to say that Joyce Vance’s analysis in her blog Civil Discourse | Substack has been particularly helpful in navigating the issues. If you are searching for a sophisticated, accurate, and understandable discussion of the issues, there is no better place to start than with Joyce Vance.  

          I have come to understand over the last four days that my view about forging ahead with the prosecution before Judge Cannon represents a minority position. Reasonable people can (and do) disagree with my position and are urging the DOJ to file a motion for recusal at the outset of the case. A recusal motion is warranted on the facts and would likely be granted by the 11th Circuit. I explained yesterday why a recusal motion is neither risk-free nor a panacea.

          I have nonetheless been disappointed to see that people whose judgment I agree with 100% of the time (Rachel Maddow, Ian Millhiser) strongly suggest that Jack Smith cannot win before Judge Cannon. I simply do not understand that defeatist attitude. It is counterproductive and undermines public confidence in the judicial system. The judiciary is designed to be self-correcting over time. It is built on the assumption that bad judges may err at the trial court level but will be reversed on appeal. And sometimes bad decisions are upheld on appeal, and we are forced to accept an unfair result. But giving up before the first motion is filed is mystifying to me.

          When I write statements like the above paragraph, readers respond by saying, “Judge Cannon is really bad. You don’t understand how bad she is and what damage she can inflict.” I do understand how bad she is and what damage she can inflict. Read my newsletter about Judge Cannon dated September 16, 2022, entitled Lawless, corrupt, and dangerous. - by Robert B. Hubbell (substack.com). The title sums up my views if you don’t want to read my real-time thoughts about Judge Cannon when she was wreaking havoc in the search warrant proceeding.

          I have responded to hundreds of readers over the last four days explaining and defending my views on Judge Cannon. In an act of self-preservation, I won’t be doing so going forward. Judge Cannon is a Rorschach ink-blot test on people’s views of the judiciary. We will learn over the coming months whether she will continue to be lawless, corrupt, and dangerous, or whether she has been chastened by the 11th Circuit. If the former proves to be true, I heartily agree that the DOJ or the 11th Circuit should act to remove Judge Cannon from the case. Until then, we should be focused on defeating Trump at the polls.

House GOP plans to vote to censure and fine Rep. Adam Schiff.

          Rep. Anna Paulina Luna (R-Fla.) has introduced a resolution to censure Rep. Adam Schiff and fine him $16 million (if the House Ethics Committee agrees). See House to consider resolution to censure Adam Schiff | The Hill. The legislation is nothing more than a blatant attempt to retaliate against Adam Schiff for his leading role in the first impeachment of Donald Trump. You will recall that Rep. Schiff was prescient in warning Republicans that if they did not vote to convict Trump, “he will do it again.” He did—on January 6^th.

          To their everlasting shame, House Republicans are whipping the vote to censure Adam Schiff. He was interviewed by a reporter for The Hill about the censure motion.  The video is embedded in the article linked above. If you have a moment, watch the video and you will be reminded of Adam Schiff’s dignity, intelligence, and equanimity in the face of hate-filled, slanderous attacks by the MAGA party that Trump built.

Louisiana’s congressional maps may be redrawn to create a new majority-minority district.

          The Supreme Court’s surprise 5-4 decision in Allen v. Milligan enforcing Section 2 of the Voting Rights Act should mandate a similar result in a Louisiana suit challenging racially gerrymandered congressional districts. See Louisiana Gets a Shot at Fair Maps After Supreme Court Ruling in Allen v. Milligan - Democracy Docket.

          The ruling in Allen v. Milligan may create (or modify) a half-dozen congressional districts with majority-minority populations—which are likely to elect Democratic representatives. Although we cannot rely on demographics to flip the House in 2024, removing racially gerrymandered boundaries will allow Democrats to fairly contest seats currently drawn to favor Republican candidates.

Richard North Patterson’s novel “Trial” is published.

          Several weeks ago, I recommended a Substack blog by author Richard North Patterson that serialized the first several dozen chapters of his new book, Trial. I understand that many of you have been reading each new chapter as it was released. The full novel, Trial, went on sale on June 13, 2023. While I rarely promote books in this newsletter, Ric is a longtime reader of the newsletter, best selling author, and a friend. More importantly, Trial addresses current issues of race, policing, and voting rights in a novel form that makes for a compelling read. Trial is available everywhere.

          My wife and I are making a concerted effort to support independent booksellers. If you have a local bookstore near you, consider making a trip (or a call) to satisfy your reading habit while helping to preserve independent booksellers.

Concluding Thoughts.

          Is it just me or has the indictment stirred the political pot? There are so many political stories to write about it is difficult to find a thematic narrative for each newsletter. “Moderate” Republicans in the House are now revolting against last week’s revolt by House “extremist” Republicans. The vote to censure Adam Schiff may be part of an effort to distract from Trump's legal peril. Kevin McCarthy has sunk to new lows, while the ten GOP candidates have adopted forty-two different positions on Trump's indictment. And Ron DeSantis has gone to the dark side in a big way. (More on that tomorrow.)

          The fracturing of the news cycle is one reason for my mantra: Focus on the election, not the trial. The trial is not the election. The election is the election. It would be silly to suggest they will not affect one another in some ways, but in terms of calibrating your commitment over the next eighteen months, recognize that you can change the trajectory of the election but not the trial.

          So, follow the trial, but if you find yourself reading Blackstone’s Commentaries on the Law (1765) or the legislative history of the 1917 Espionage Act, you need to do some phone banking or write a few postcards.

          Talk to you tomorrow!