Slow but steady progress

April 4, 2024

Many readers freaked out over the Wall Street Journal poll published Wednesday. The poll was conducted by Tony Fabrizio, Trump's 2016 pollster and current owner of the largest service provider to the Trump Super PAC named “Rebuilding America.” If you are among the cohort of concerned readers, I recommend that you read the last story in this newsletter (before “Concluding Thoughts”) to learn why you should not be alarmed.

The bottom line is that, in general, President Biden is making slow but steady progress in overtaking Trump—and has pulled even or slightly ahead in most high-quality polls. That doesn’t guarantee that Biden will win. But, seven months before the election, the momentum is with President Biden. For good reason.

We cannot afford to relax, but neither should we dive into a deep panic every time a new poll is released—especially a poll touted by Rupert Murdoch’s WSJ and run by a Trump SuperPAC service provider. We should be tougher-skinned and more sophisticated after seven years of living with Trumpworld’s disinformation-based style of campaigning.

The Trump dumpster fire is consuming copious amounts of kerosene each day. Meanwhile, President Biden is working to promote affordable healthcare for all Americans. Read on!

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President Biden and Senator Bernie Sanders highlight success in cutting healthcare costs

It is difficult to compete with the daily news of Trump's teetering finances and criminal jeopardy, but President Biden continues to do so every day. You will not find those efforts in the headlines of most major media outlets, so do yourself a favor and watch President Biden’s speech on Wednesday: WATCH: President Joe Biden and Bernie Sanders join forces to promote lower health care costs | PBS NewsHour.

During his remarks, the President not only highlighted the successful effort to cap costs for insulin, inhalers (for asthma), and prescription drug deductibles, but he also attacked Trump for past efforts to kill the Affordable Care Act, his threats to cut Medicare and Social Security, and his role in overturning Roe v. Wade. Those are the right message points that Biden should be promoting.

It was also good to see Senator Sanders standing at the podium before and after President Biden, making an impassioned pitch for the government to do more to protect the health and welfare of Americans.

The speech by President Biden was his only public event on Wednesday, so it deserves to be highlighted and promoted ahead of the news regarding Trump's legal and financial woes. Share with a friend!

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Developments in Trump's election interference case set for trial on April 15, 2024

Did Trump just violate the revised gag order issued by Judge Merchan on Monday of this week? The order prohibits Trump from “making or directing others to make” statements about

the family members of any counsel, staff member, the Court or the District Attorney, if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel's or staffs work in this criminal case, or with the knowledge that such interference is likely to result . . . .

On Wednesday, Trump posted three articles by Laura Loomer that attack Judge Merchan’s daughter. See Trump Posts Multiple Articles Attacking Judge’s Family Despite Expanded Gag Order - MeidasTouch Network. Per the article,

On Truth Social Wednesday, Trump posted three articles attacking Judge Merchan and his family, in the span of a few minutes testing the new, expanded gag order in his Stormy Daniels hush money case. The articles mention Judge Merchan, his daughter, and his wife.

The posts violate the gag order—despite Trump's cute attempt to skirt the express language of the order. “Posting” a statement by a third party is “making a statement.” Under the order, Judge Merchan can find Trump in criminal contempt, punishable by a fine and imprisonment (up to three months in county jail).

Merchan would need to provide Trump notice of intent to find Trump in criminal contempt and provide an opportunity for Trump to respond. It would be appropriate for Judge Merchan to issue such a notice to Trump—which will keep Trump guessing about whether he will be in jail sooner than he thinks.

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Judge Merchan denies Trump's motion to dismiss on grounds of presidential immunity

In early March, Trump's criminal trial for election interference in New York was set for March 24. On March 7, Trump sought to dismiss the case on grounds of presidential immunity—three weeks before the scheduled trial date. The last-minute assertion of a defense that existed from the day the indictment was issued revealed the motion as a delaying tactic. See Judge denies Trump’s motion to delay NY hush money trial until Supreme Court rules on presidential immunity | CNN Politics

Per Judge Merchan,

This Court finds that Defendant had myriad opportunities to raise the claim of presidential immunity well before March 7, 2024. After all, Defendant had already briefed the same issue in federal court and he was in possession of, and aware that, the People intended to offer the relevant evidence at trial that entire time. The circumstances . . . . test this Court’s credulity.

I do not know whether the procedural rules of New York allow Trump to file an immediate (“interlocutory”) appeal from the order denying his motion to dismiss on the grounds of presidential immunity.

I do know that the procedural rules of New York will not stop Trump from filing an appeal, even if those rules do not permit such an appeal. Let’s hope that the New York appellate division will act more quickly, decisively, and correctly than it did in reducing Trump's bond from $454 million to $175 million without explanation.

Speaking of Trump's $175 million reduced appeal bond, the clerk’s office rejected the bond on Wednesday because the bond did not include the necessary information. Read on!

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Clerk returns Trump $175 million bond for filing deficiencies

Lisa Rubin has reported that Trump's $175 million appeal bond has been “returned for correction.” See Thread by Lisa Rubin @lawofruby. Per Rubin

Today, I learned that the court filing reflecting Trump’s bond in the civil fraud case was “returned for correction” and specifically, for the inclusion of a current financial statement and power of attorney. But all is not what it seems.

The financial statement that is missing does not seem to be Trump’s. Rather, the court appears to be demanding these documents from Knight Specialty Insurance Co. to ensure that company is sufficiently capitalized and authorized to post the bond.

As of tonight, those documents do not appear on the docket.

The failure of the bonding company to file the appropriate documentation is a major oversight. Bonding companies are in the business of issuing bonds that satisfy the requirements of courts across the nation. The failure of Knight Specialty Insurance to file an affidavit attesting to its net worth is highly unusual. It may be nothing—or it may be an indication that Trump cut corners in obtaining the bond. Stay tuned!

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Jack Smith files brief telling Judge Cannon that her “jury instruction” exercise is both wrong and grounds for seeking review in the 11th Circuit

Judge Aileen Cannon is doing everything possible to prevent the defense secrets case against Trump from getting to trial. In her latest gambit, she ordered the parties to “engage” in a pointless exercise of drafting proposed jury instructions that invite the jury to make legally erroneous factual findings.

On Wednesday, special counsel Jack Smith filed a response that has been described as “devastating” and a thinly veiled statement that Smith intends to seek intervention by the 11th Circuit Court of Appeals to correct Judge Cannon’s erroneous view of the law and seek removal of her from the case. The filing is here: Government's Response to Order Requiring Preliminary Proposed Jury Instructions.

In direct language intended to put Judge Cannon on notice that she is about to cross the legal Rubicon, Jack Smith wrote:

Moreover, it is vitally important that the Court promptly decide whether the unstated legal premise underlying the recent order does, in the Court’s view, represent “a correct formulation of the law.”

If the Court wrongly concludes that it does . . . it must inform the parties of that decision well in advance of trial. The Government must have the opportunity to consider appellate review well before jeopardy attaches.

Jack Smith then cites legal precedent that prosecutors can seek a review of a trial judge’s erroneous order regarding jury instructions by filing a writ of mandamus—or a request for extraordinary review. Jack Smith has successfully filed mandamus writs against Judge Cannon twice before, which resulted in stinging rebukes to the judge. She is on the cusp of seeing a third petition for a writ of mandamus filed by Jack Smith.

The underlying legal issues are complicated and Jack Smith’s response is masterful. For a fuller accounting, I recommend Mueller She Wrote on Post, Jack Smith Takes Cannon to Law School (post.news) and Lucian K. Truscott’s, Justice Aileen Cannon? Steel yourself: It could happen (substack.com). The former is a more more technical description, while Truscott’s article is eminently readable and appropriately pointed.

The good news is that Jack Smith appears to be at the end of his patience. If Judge Cannon does not act quickly to abandon her lawless ways, Jack Smith will ask the 11th Circuit to do it for her.

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Opportunities for reader engagement

Markers for Democracy is hosting an exceptional program that will include Molly Jong-Fast, Tim Miller, and Daniel Squadron:

Please join Markers For Democracy on Monday, April 8, 2024 at 7:30 pm ET for a virtual event in support of the Markers For Democracy Giving Circle which is focusing on Arizona and Pennsylvania, two critical states for 2024. First, The States Project's founder, Daniel Squadron, will discuss their critical work to turn state legislatures blue and maintain existing Democratic majorities. Then we’ll be treated to a freewheeling discussion between two podcast and media stars: Molly Jong-Fast, Vanity Fair special correspondent, Fast Politics podcast host, and MSNBC political analyst; and Tim Miller, author, host of The Bulwark and Next Level podcasts, and MSNBC political analyst. 

Markers For Democracy is committed to saving democracy one postcard at a time. They host virtual and in-person postcarding sessions with guest speakers throughout the year. You can learn more about them and sign up for their newsletter here:  https://markersfordemocracy.org/

RSVP here: https://www.mobilize.us/markersfordemocracy/event/610917/

My wife and I met today with a group of readers in Houston, Texas. (See picture below.) In keeping with our focus on Texas, I include two items that relate to Texas:

From reader Ellie Kona:

Shout out to Blue Horizons Texas challenging unchallenged red seats and to League of Women Voters working hard to register new voters!

Blue Horizon Texas—“Preparing Democratic & Progressive Candidates

in red and rural area.”

The League of Women Voters of Texas—"Empowering voters. Defending democracy.”

Last week, I mentioned a Substack newsletter about Texas: LoneStarLeft’s Newsletter | Michelle H. Davis. I have been impressed with the content of the newsletter in the short time I have subscribed. On Wednesday, the LoneStarLeft’s newsletter was entitled, The Heartbeat Of Change: Empowering Texas Through Grassroots Efforts. The newsletter focuses on Mothers for Democracy. The article states, in part

If you’re a Democrat in Texas, there are many reasons to feel hopeful about the future.

If we want to flip this state, we need organizers in every city, neighborhood, and college campus and the ears of every Texas voter. One group working to do that is Mothers For Democracy. You may already be familiar with Mothers For Democracy if you have seen this ad on YouTube: Thoughts and Prayers are Not Enough.

The Texas Democratic Party plays a crucial role in coordinating campaigns, shaping policy agendas, and providing support for candidates at all levels of government. However, to truly realize the goal of flipping Texas, it’s a multifaceted approach is necessary—one that combines the Democratic Party’s strengths with the grassroots energy and innovation of organizations like Mothers For Democracy.

The article in LoneStarLeft’s Newsletter is packed with detailed information showing the path to victory for Democrats in a state known for “low-propensity voters.” If you are interested in helping Texas turn blue, check out the article and Mothers For Democracy.

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A new round of polls shows steady progress for President Biden

I received dozens of emails from readers with copies of the WSJ poll and the NYPost’s promotion of the poll run by Trump's pollster in 2016. It purports to show that Trump is leading in five swing states.

I hate following and addressing polls, but some of you won’t or can’t look away. So, once more, with feeling, “Ignore the polls.”

But if you can’t, here is what Josh Marshall of Talking Points Memo had to say in his Editor’s Blog today: Biden’s Modest But Real Poll Gains. Per Marshall:

We have a cluster of new national polls out today. And they continue to show a bumpy and uneven but still clear movement in Joe Biden’s direction. Polls are complicated these days because there are so many different ones and more importantly the quality and reliability of those polls vary greatly. So, we have five polls out since the 25th. And those are Marist (Biden+2); Data for Progress (Biden +1), Big Village (Biden +2); Morning Consult (Biden +2) and Trafalgar (Trump +3).

Trafalgar is notorious garbage. Of this mix the one with the highest reputation for quality (in my mind) is Marist.

What do these polls mean? Well, whatever they mean is better than what the ones three months ago meant.

More seriously and specifically, I don’t take them to mean Biden is ahead and certainly not that he’s going to win. What I take them to mean is that there’s some slow but real movement in Biden’s direction.

My theory of the case (and that of many others) has long been that Trump has benefited greatly from the fact that we haven’t been in a general election context until the last few weeks.

So the polls have really been about Biden and how you think he’s doing, with Trump being the other guy if you’re not wild about Biden. That’s not a great question for Biden since, as we discussed a couple weeks ago, we live in the Everything Sucks Era.

As we move into a general election context, where it’s a choice between the two candidates, with an equal focus on both, Biden should start doing better. That’s the theory. And in fact these polls do show him starting to do better.

Having quoted Josh Marshall at length, a plug for Talking Points Memo is in order. I am a paying subscriber. If I were forced to select a single print publication as my source of news, it would be Talking Points Memo, especially Josh Marshall’s Editor’s Blog, which is available only to paying subscribers.

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Concluding Thoughts

I hope that Josh Marshall’s analysis has persuaded you that Biden has momentum in the right direction. That counts for a lot as Trump is about to become the first former president to sit through a criminal trial for election interference. But if you need an even bigger injection of enthusiasm today, I urge you to read the NYTimes’ interview of Simon Rosenberg of Hopium Chronicles. The article is here: New York Times, Many Democrats Are Worried Trump Will Beat Biden. This One Isn’t. (The article is accessible to all.) The

I acknowledge that remaining positive against an unrelenting onslaught of negativity is challenging. The media promotes negativity because it drives “clicks” (which drive advertising revenue). Republicans encourage a (false) negative narrative because they want to demotivate Democrats who are otherwise motivated and energized to stop Trump at the ballot box. A false negative narrative is the only tool left for a party that has abandoned ideas, principles, and integrity.

So, in a convoluted way, the fact that we are the target of constant negativity is a sign that the GOP respects and fears what Democrats have built over the last seven years: A massive, motivated, national grassroots movement that is formidable. We should be proud to be part of that movement. And to be clear, whatever we thought when we joined, we are lifetime members. There is no going back, no quitting. The battle to preserve democracy will outlast us. But that’s okay because it has always been so.

We have momentum. We have experience. We are promoting righteous causes. None of those factors guarantee victory in every battle, but they guarantee victory over the long term. That is enough to keep us going until the next generation reports for duty.

Talk to you tomorrow!