Why Are The Lizard People Allowing These Polls?

News about two sets of polls over the weekend brings me back to the question I raised a week ago, in which I cited Rush Limbaugh's often-expressed view that the polls aren't meant to report the news, they're meant to shape it. So in that context, what are we to make of the weekend's new polls showing Trump trending ahead of Joe once again? For CNN:

Former President Donald Trump has opened his biggest lead ever captured in the CNN poll of the American electorate, enjoying a six-point advantage over incumbent Democrat President Joe Biden.

Trump, at 49 percent, is six percent ahead of Biden’s 43 percent when the two are polled head-to-head.

For Gallup,

President Joe Biden averaged 38.7% job approval during his recently completed 13th quarter in office, which began on Jan. 20 and ended April 19. None of the other nine presidents elected to their first term since Dwight Eisenhower had a lower 13th-quarter average than Biden.

. . . Jimmy Carter is the only other president with a sub-50% average in his 13th quarter. Three of the four prior presidents who had 13th-quarter approval averages below 50% lost their reelection bids, with Obama the exception.

On April 19, I quoted Sean Trende, the supposedly Republican-leaning Senior Elections Analyst for RealClearPolitics, for the conventional take on how the polls were going for Joe:

There’s little doubt at this point that President Biden’s standing in the polls has improved. In late January of this year, former President Donald Trump led Biden in national head-to-head polls by as many as 4.3 points. As of today, Trump’s lead sits at just two-tenths of a percentage point. Why might we be seeing this?

My view at the time, expressed in the post, was that several outlier polls showing Joe wildly ahead had come out in recent days, and National Authority Sean Trende (or his munchkins) simply cranked them into their average -- and voila, Trump led by just two-tenths of a percentage point. As of yesterday, Trump was back ahead by a full point, but that's still an average. Recent commentators have been handicapping polls by the 3% overestimate of Biden's 2020 popular vote results, so a 1% lead in the RCP average might be closer to a 4% lead in the real world, except of course, the popular vote doesn't elect the president, so this is all an elaborate fantasy no matter what.

But why are the polls even allowing us to see this development if Limbaugh's theorem is true? Why not just keep Republicans in the doldrums, at least until the actual election outcome proves them wrong? I can think of several reasons. One, an election analyst on Fox several weeks ago whose name I can't remember, suggested that in February and March, the lizard people senior Democrats had been pressuring Biden to drop out using poll numbers showing him trailing Trump, but it hadn't worked, Joe stayed in, so they reverted to cooking the numbers in Joe's favor in hopes of swaying the electorate anyhow.

Certainly this has had its effect on Joe's outlook. Via NBC News, as of just this past Saturday,

Over the past several weeks, President Joe Biden has privately expressed confidence that he’s going to win the November election, according to three people familiar with his comments, in a shift from the frustration with the status of his campaign that he was venting to aides just a couple months ago.

The turnabout in Biden’s mood has been propelled in part by recent polling that shows him gaining ground against former President Donald Trump, these people said.

Well of course, even Republican Sean Trende said this is happening! The piece goes on,

The president’s positive outlook on his re-election prospects is a significant reversal of his views for much of the past year since his campaign launched. For months, the president has privately expressed frustrations, which at times have boiled over into anger and outbursts at staff, over his diminished standing with voters.

. . . [Meanwsile,] Trump now has been in a criminal courtroom in Manhattan stewing in unflattering courtroom sketches and scandalous headlines over allegations he paid off a porn star during his 2016 presidential run.

Biden himself referred to this view in his remarks at the Saturday evening White House correspondents' dinner:

“Donald has had a few tough days lately. You might call it stormy weather,” Biden quipped, referencing Trump’s current hush money trial.

But Limbaugh also understood the need for pollsters to preserve an aura of credibility, especially if their predictions turn out to be wildly out of line. On October 17, 2016, in the runup to Trump's upset victory over Hillary, he said,

Here we are three weeks out and the ABC/Washington Post poll shows Hillary leading Trump by four. Even if that were outside the margin of error, stop and think of this now. This is four points. Here’s what the Washington Post says.

“The poll was conducted during one of the most tumultuous periods of Trump’s candidacy, after the release of a video in which he spoke about taking sexual advantage of women and during a time when numerous women have accused him of sexual misconduct. … Nonetheless, the controversy appeared to have had only a minimal impact on his overall support.”

. . . In other words, if Trump is at four points after withstanding this barrage, then they have to be scratching their heads. Now, I want to remind you of one more thing. We’re getting close now to the period of time where the pollsters are going to have to start showing the race as it is. Now, I’m of the opinion they’re not yet. I’m of the opinion that they’re still using their polls to make news, to shape public opinion, rather than reflect it.

But as we get closer to the election — we’re not there yet, by the way. But as we get closer to the election, all of these polling companies are gonna want to be right when it’s all over.

Limbaugh went on about the evidence of enthusiasm at Trump rallies and the mood of the electorate that contradicted the conventional poll results:

But there still is this professional reputation. So we’ll see if other polls start to tighten and get closer as we near Election Day. But the conventional wisdom is that Trump’s toast, he’s had it, he’s unhinged. He won’t stop talking about these women. He won’t stop reacting. He won’t stay on issues. Except when you go to one of his rallies he’s totally on issues. And the people are as revved as they’ve ever been, and more people are showing up at Trump rallies than ever before, and more people are being turned away because they can’t fit in than ever before.

And everybody tells you, “You can’t judge it by that, Rush. That’s not scientific data. That’s anecdotal. That’s just people talking.” Well, it’s not just people talking; we see it.

So I think if Limbaugh were still talking now, he'd be pointing out that the New York trial is backfiring, the Atlanta trial was backfiring, and at minimum, the the pollsters can't keep enabling the media to sustain a narrative that Biden is gaining ground, and they're worried about damaging their franchise. I've got to imagine that if any senior Democrats were ever serious about getting Biden to drop out earlier this year, they've lost hope, so that can't be behind the latest unfavorable polls. So here's Gallup commenting on its own poll results:

In this election year, when Biden is hoping U.S. voters reward him with a second term, he is needing some positive momentum to put him in a stronger position to be reelected. However, that didn’t occur during the past three months, with Americans no more positive about how Biden is doing his job than they were in his prior quarter, or for most of the past three years. This is the case even after Biden delivered his election-year State of the Union speech in March, a chance for him to sell his accomplishments directly to the American people.

With about six months remaining before Election Day, Biden stands in a weaker position than any prior incumbent, and thus faces a taller task than they did in getting reelected.

I've got to think this is more about sheer survival, but also, let's keep a couple of other developments in mind:. First, the New York Times isn't happy:

The New York Times issued a scorching statement on Thursday blasting President Joe Biden for avoiding media interviews as establishing a “dangerous precedent,” as liberals criticized the paper in response to a POLITICO report detailing friction between the Times and the White House.

Second, William Barr, the deep state mole, son of an upper-class prep school headmaster, who did all he could to undermine Trump as Attorney General, has done a 180:

Former Attorney General Bill Barr, who previously said that Donald Trump shouldn’t be near the Oval Office, told CNN’s Kaitlan Collins on Friday that he would vote for the former president over President Joe Biden in the 2024 election.

Limbaugh, if pressed, would probably say that the lizard people establishment will get their way no matter what. Of Trump in the dark days of his 2016 campaign, he said,

I think a lot of people would have crumbled by now if they had been dished the treatment Trump has gotten. I think a lot of people would have caved and said, “You know what? I’ve got a life after all of this is over and I don’t want these people destroying what I’m doing here.” They would have caved. They would have quit. They would have ceded or what have you.

Trump has not done that and I think the establishment is kind of surprised and shocked and a little not sure what’s going on here. Because the one thing they know is that their hold on power is, as this is demonstrating, they are a minority.

The lizard people may even be recalibrating. As I've been saying, Joe's a puppet, everyone understands that -- but he came with factory defects. You pull a string and expect his hand to move, instad, his knee goes out of joint. Some people may be starting to think even Trump is a better choice than Biden.

All Of A Sudden, The Trump Trial Is Slowing Down

Let's recall that a week ago, Judge Merchan wasn't going to let Trump take any days off from his New York trial:

The New York judge overseeing former President Trump’s hush money trial said Monday that Trump cannot attend arguments on presidential immunity at the Supreme Court next week.

It came after the judge earlier delayed a decision on allowing Trump to attend his son Barron’s high school graduation in May.

The attempts by Trump to take off certain days of his hush money trial that is expected to last weeks, if not months, came as the first day of trial was officially underway in Manhattan.

. . . “Arguing before the Supreme Court is a big deal, and I can certainly appreciate why your client would want to be there, but a trial in New York Supreme Court . . . is also a big deal,” Judge Juan Merchan said to Trump lawyer Todd Blanche, rejecting his request to let the former president play hooky.

“I will see him here next week,” the judge added.

While the judge clearly implied the trial should have the highest priority, at least for Trump's time, so far, it's been held only three-and-a-half days a week, and next week looks like it will be even less. On Friday, the trial broke for the weekend and will return on Tuesday at 9:30 am. Wait a moment. What happened to Monday? I've looked for the reason the judge is taking Monday off and can't find any.

I've been a juror in two criminal trials myself, and I've reported on several civil trials as a blogger-journalist at my old blog. Judges normally want to move things along, and there's normally a morning and afternoon session five days a week, with judges threatening to go longer if things don't move on schedule. This past week with Judge Merchan, there was an early quit for a juror's toothache Monday, a delay for a contempt hearing Tuesday morning, and another early quit later that day for Passover.

My experience of judges has been that with those initial delays, Judge Merchan would be eager to move things along, but no -- now no trial Monday, no reason given. On top of that, he'd originally scheduled another hearing on Trump's contempt charges for this coming Wednesday, a day he'd previously reserved for other business without a trial that day, but now he's moved the hearing to Thursday, which would normally be a trial day.

With a decision on one contempt motion pending, Judge Juan Merchan has scheduled a hearing on Thursday for prosecutors to argue that Trump has committed more violations of the judge’s gag order against disparaging or intimidating witnesses, jurors and other trial participants.

At the first contempt hearing on Tuesday [April 23], prosecutors sought fines for ten Trump online posts blasting witnesses Stormy Daniels and Michael Cohen and calling prospective jurors “liberal activists.” Assistant Manhattan District Attorney Chris Conroy said that next week’s hearing will cover four more alleged gag-order violations.

So in the coming week, we've got Monday off for an unknown reason, at least part of Thursday taken up by a contempt hearing, which had previously been scheduled for the normal Wednesday off day. So it looks like at best, next week will be maybe two and a half days of trial, Tuesday, part of Thursday, and Friday, that is, unless somebody else has a toothache. This is worse, not better, than last week. This is simply not my experience of trials. Just this past Wednesday, I cited the American Bar Association's statement on the Special Functions of the Trial Judge:

(a) The trial judge has the obligation to avoid delays, continuances, and extended recesses, except for good cause. In the matter of punctuality, the observance of scheduled court hours, and the use of working time, the trial judge should be an exemplar for all other persons engaged in the criminal case. The judge should require punctuality and optimum use of working time from all such persons.

These new delays, while they continue to make me question whether Judge Merchan is in over his head, also lead me to ask if there might be another reason behind them. For instance, Jonathan Turley commented on Fox,

He says Trump's defense attorneys

are doing a good job, largely allowinmg the case to collapse on its own weight. This case thus far is about as good a model for prosecution as the Titanic is a good model for navigation. I don't understand why they would start with Pecker. In my view he is disastrous. First of all, I'm speaking as a criminal defense attorney. What most good prosecutors, if they know the criminal defense attorney will bring up something damaging, will bring it up themselves. The most damaging aspect of Pecker's testimony is that he did the same thing with a wide variety of celebrities. That is really quite damaging, and by not revealing that to the jury in your direct, there is a sense that there was some hiding of the ball here. You can lose credibility with the jury. That is really quite remarkable.

In fact, there seems to be a consensus of commentators outside legacy media that the trial isn't going as expected, with others pointing out that the defense had been able to establish that "Catch and Kill" was a common business practice employed by celebrity publicists and was not a crime.

However, a web search for accounts of Friday's trial brings up mostly references from ABC, NBC, CBS, the Washington Post, and the New York Times suggesting, for instance,

Former presidents typically spend their post-White House years writing memoirs, making well-paid speeches and cementing their place in history. By becoming the first former president to face criminal trial, Trump is instead sitting in court, watching someone else try to define his legacy even as he campaigns for a second term in the Oval Office.

Over four days of testimony this week, former National Enquirer executive David Pecker told the jury not just how deeply involved Trump’s team was in using the supermarket tabloid to fuel his 2016 presidential campaign, but also how celebrities and politicians generally try to buy, trade or bully their way out of scandalous stories.

But all the accounts minimize that Pecker testified he had been doing this for many years, for celebrities who were not presidential candidates, and indeed for Trump himself when he was a celebrity with no political ambitions -- and none of this was a crime.

It's hard for me not to think that Merchan has concluded -- or actually, since the guy seems pretty obtuse, he's been told -- that the trial isn't going as planned, he needs to take the spotlight off the testimony in the trial and redirect it to the contempt hearing. Although we keep hearng the trial is expected to last six to eight weeks, with Pecker, the prosecution's best witness, failing to build a basis for the subsequent testimony of Michael Cohen and Stormy Daniels, who will likely be chewed up by the defense, I'm not sure it can go that long. This may be another reason for Judge Merchan to slow things down.

Let's keep in mind that over the past months, the New York hush money case was regarded as the least important and weakest of Trump's four pending trials. More recently, it's developed that at minimum, none of the other three now seems likely to begin before November, with the possibility that the US Supreme Court may eliminate them in a decision on presidential immunity, or they may be dismissed for other reasons.

As a result, it looks as though the New York case is the last hope for the Biden campaign to be able to campaign against Trump as a "convicted felon" -- but even this possibility is beginning to recede. So they're now casting about for a Plan B -- if they can't get a guilty verdict from the jury, at least they can somehow pile up contempt charges. Thus the delay and Thursday's big contempt hearing. We'll have to see how this goes.

The Women Who Sent Joe Pictures

Remarks from Joe Biden in his recent interview with Howard Stern drew some attention this week. Following the death of his first wife in an auto accident,

"I got put in that 10 Most Eligible Bachelors list," he told Stern. "And a lot of lovely women ... would send very salacious pictures and I just give them to the Secret Service. And I thought somebody would think I was ... "

The president then seems to trail off. U.S. senators and House representatives are not provided Secret Service detail, though many do travel with some security. He then discussed how he met his current wife, first lady Jill Biden.

He went on about meeting Jill:

"I just gave up," Biden continued. "I got a call from my brother. So, I have a girl here at Delaware; Jill is nine years younger than I am. He said you'll love her. She doesn't like politics."

What I haven't seen anyone mention so far is that the Stern interview appears to have been taken almost word-for-word from the White House record of Joe's remarks to the carpenters' union in Scranton on April 16:

And what happened was that I got put on that 10 most-eligible bachelors list in America. (Laughter.) You got it man. I thought it was a pretty cool thing. (Laughter.)

But I used to send more things to the Secret Service because I’d get women sending me pictures that I was afraid I’d get set up for. (Laughter.) And unlike the guy running, I didn’t take advantage of any of it. (Laughter and applause.)

Any rate, to make a long story short, all kidding aside, I — I would just give them to the Secret Service.

And then,

And I get a call from my youngest brother. He said, “Joe, I’ve got just the girl for you.” And he was at the University of Delaware at the time, as this girl was. She used to be nine years younger than me. Now she’s 25 years younger, but — (laughter) —

So, he said, “You’ll love her. She doesn’t like politics.”

After my mother passed away, I got a call from my cousin, my mother's sister's son. I think he was actually closer to my mother than I was. He wanted to vent. "Did she ever give you these long, long stories that always ended with something that showed how virtuous she was?"

"Hmm," I said. "No, I never heard anything like that." (Actually, she mostly wrote me letters about how I needed to lose weight.) But my cousin's account somehow reminded me of Joe repeating the story about the women sending him pictures, with the punch line that unlike Donald Trump, who presumably followed through on the offers, Joe just turned them over to the Secret Srvice -- wha, so the agents could ogle them themselves?

Both Joe and my mother seemed to have a repertory of stories about what hot stuff they are, or were, always with the punch line that they're virtuous, even heroic. It's odd that my mother never told them to me -- possibly because I might have been a little too direct about how I'd already heard them, and anyhow, that wasn't what happened. My poor cousin was just too polite.

What we do see is that, as all the reports point out, when Joe was in the Senate, he didn't have Secret Service protection, so it's hard to avoid thinking this story was cobbled up from some combination of foggy memories and wishful thinking, and although it doesn't rise to a medical diagnosis, it kinda proves that Joe can be a tiresome bore who trots out the same old chestnuts on the slightest pretext. In contrast, heads of state were always delighted to hear Reagan's insider anecdotes of old-time Hollywood, and I suspect after-hours chat with Trump would be just as much fun.

But these strange vignettes, especially in the context of Joe's Uncle Bosey stories, point to how unrealistic Nate Silver's well-intended advice from this past February is, that Joe should do "improvisational public appearances".

Here's what I'd propose. Over the course of the next several weeks, Biden should do four lengthy sitdown interviews with “non-friendly” sources. “Non-friendly” doesn't mean hostile: nonpartisan reporters with a track record of asking tough questions would work great. A complete recording of the interviews should be made public. The interviews ought to include a mix of different media (e.g. television and print) and journalistic perspectives.

At the end of Silver's list of possibilities, he adds,

Wild card. Take your pick. Bonus points for Fox News, though I doubt Biden would do it. Go on Ezra Klein's podcast? Go on Rogan? Just kidding, I think. But Bernie Sanders did it.

I would think the Howard Stern interview fully fits Silver's wild card category -- but the takeaway everyone got from it was the bizarre business of the dirty picures the ladies used to send him. Except that Silver's other recommendations are precisely what even the New York Times has now accused him of dodging, for instance:

A lengthy sitdown interview with the Washington bureaus of the New York Times or Washington Post.

Just this past Thursday,

The New York Times issued a scorching statement on Thursday blasting President Joe Biden for avoiding media interviews as establishing a “dangerous precedent” . . . .

The Times in a statement called it “troubling” that Biden “has so actively and effectively avoided questions from independent journalists during his term. . . . That is why Mr. Sulzberger has repeatedly urged the White House to have the president sit down with The Washington Post, The Wall Street Journal, Reuters, CNN and other major independent news organizations that millions of Americans rely on to understand their government.”

Back in February, Silver wrote of his proposal that Joe should sit down with the major outlets,

This really isn't too much to ask. These are the sorts of interviews that every other recent president has done. I admit that I'm asking Biden to pack in several in a row, but he has to make up for lost time. And the timing is urgent because he and his inner circle have to make sure that he's really up for a second term and that this is the best option for Democrats.

But that was February, and this is late April. If anything, the timing is more urgent. I suspect that the reason Biden's handlers haven't seen the urgency Nate Silver -- and now the New York Times -- see is that they fully recognize that Joe isn't up to any sort of unscripted or "improvisational" forum, and this has become a major problem.

In fact, I'm starting to wonder if we're facing a crisis that's been officially unacknowledged for some time, but there's going to be an event that finally drives it into the spotlight. I keep thinking about the 1936 abdication crisis in the UK:

[T]he British press remained quiet on the subject until Alfred Blunt, Bishop of Bradford, gave a speech to his diocesan conference on 1 December, which alluded to the King's need of divine grace: "We hope that he is aware of his need. Some of us wish that he gave more positive signs of his awareness." The press took this for the first public comment by a notable person on the crisis and it became front-page news on 3 December.

As I've been saying, one issue is that despite his repeated claims (which he also made in the Stern inverview) never to have touched alcohol, the empirical evidence of intoxicated speech, the slurring, hypercorrection, and random pauses, makes me think some sort of revelation about the real circumstances can't be too far away -- or if not that, some equivalent headline to the news of Bishop Blunt's admonition.

Plasmic Echo

Via the Washington Examiner:

A judge in Florida went on an unsealing spree this week, making public a trove of documents that had previously been filed under seal or in heavily redacted form in former President Donald Trump’s classified documents case.

The documents, which included hundreds of pages of exhibits, motions, and other filings, underscored the close communication the Biden White House and the National Archives and Records Administration had in the year before Trump was indicted.

. . . Trump has consistently maintained that NARA was out to get him and that the agency had been maliciously coordinating with President Joe Biden’s White House from the outset of its pursuit. Newly unredacted court papers showing Trump and Smith battling over access to discovery in February reveal examples of the communication Trump has criticized.

In fact, the records confirm a lengthy history of collaboration among the White House, the National Archives, and the Justice Department to identify records issues that could be used to bring charges against Trump, even against the background that transfer of records during presidential transitions is never smooth.

Trump’s defense attorneys also referenced some exculpatory remarks [NARA general counsel Gary] Stern made to Trump aides in the form of a letter draft on May 5, 2021.

“Stern’s draft conceded that ‘things were very chaotic, as they always are in the course of a one-term transition,’ and he acknowledged that ‘the transfer of the Trump electronic records is still ongoing and won’t be complete for several more months,’” defense attorneys wrote.

Stern and the White House had apparently been coordinating efforts as of May 2021, only four months after Trump left the presidency, and we can see by the FBI memo reproduced at the top of this post that by February 2022, the FBI was involved and had given the invesigation into Trump's records the code name PLASMIC ECHO. This piece at The Federalist outlines what the writer thinks are the most significant revelations from the new documents, and the long coordination among the White House, the National Archives, and the Justice Department is on the list:

Following Trump’s departure from office, the National Archives and Records Administration (NARA) began “to work with the White House Office of Records Management on exaggerated claims related to records handling under the Presidential Records Act (PRA),” a motion to compel discovery from Trump’s attorney’s states.

NARA General Counsel Gary Stern sent a letter to Trump’s PRA “representatives” in May of 2021 in which he said he “had several conversations” with the White House’s Office of Records Management and had raised some “concerns,” presumably about the documents in question, with NARA Archivist David Ferriero, according to pictures of the new, less-redacted filing posted by [reporter Julie] Kelly.

. . . The filing alleges Ferriero then “threatened” one of Trump’s PRA representatives in August that he was presuming that 24 “alleged — and non-existent” boxes of records were “destroyed” and that Ferriero would report his claims of missing documents to the White House and Department of Justice.

By September, Stern was sending around a letter “that we could consider sending to the Attorney General about missing Trump records,” according to the filing. Stern also sent an email admitting he “informally reached out to the DOJ counsel about this issue” and that “WH counsel is now also aware of the issue, and has asked that I keep them in the loop to the extent that we make any reference to [WH-ORM],” according to the filing.

However, the Gateway Pundit reveals another issue that isn't mentioned in other stories:

President Trump said two years after he met Obama before his 2017 Inauguration that Obama was on the brink of starting a war with North Korea. Trump claimed that Obama was “close to starting a big war” with North Korea.

The corrupt and criminal Obama/Biden gang was after documents related to North Korea years later when it raided President Trump’s iconic home of Mar-a-Lago and took President Trump’s documents that he legally had possession of per the Presidential Records Act.

This is reflected in an unsealed after-action memo written following the Mar-a-Lago raid on August 6, 2022 (click on the image for a larger copy):

I always acknowledge here that I have a certain sympathy for conspiracy theories that have a contrarian bias, and the idea that the Mar-a-Lago raid was an excuse to retrieve documents potentially compromising for Obama from a Trump trove is appealing. It reminds me of the argument in the 1991 Len Colodny - Robert Gettlin book Silent Coup

that former White House counsel John Dean orchestrated the 1972 Watergate burglary. His motive was argued to have been to protect his future wife Maureen Biner by removing information linking her to a call-girl ring that worked for the DNC.

. . . In 1992 John and Maureen Dean sued Nixon "plumber" G. Gordon Liddy for libel, after Liddy sought to support the core claims in Silent Coup. Liddy's testimony was the first time he spoke publicly in detail about the Watergate break-in, as he had refused to cooperate with investigators during the Watergate scandal. The libel case was dismissed without prejudice and was later refiled. In 2001 a federal judge declared a mistrial after the jury was deadlocked, and dismissed the $5.1 million defamation lawsuit.

No libel or defamation suit regarding the allegations in Silent Coup has ever prevailed in a trial, although settlements have been paid out of court. The idea that the Watergate burglary was undertaken to retrieve compromising documents is intriguing, as is the idea that there may in part have been a similar motive behind the Mar-a-Lago raid. At minimum, this reflects the threat Trump apparently represented to the White House even out of power, and even during 2021-22, when the likelihood of Trump running for president again seemed remote.

The unsealed documents also contain a reference to an alleged attempt by one of Jack Smith's prosecutors, Jay Bratt, to intimidate Stanley Woodward, counsel for one of the defendants in the Mar-a-Lago case. However, this was already public knowledge as of September, 2023, and the documents reveal nothing new.

There are no earth-shattering revelations in the new documents, but they do demonstrate an overall pattern whereby the White House used the National Archives, the Justice Department, and the FBI to pursue a political agenda against Donald Trump. I suspect the chief effect of this will be a serious effort to dismantle this aspect of the deep state should Trump be elected to another term in November.

The Legal Issues In Trump's New York Trial, In Detail

With the start of the Trump New York trial, the legal theories behind the various Trump lawfare cases are beginning to become clear. Alan Dershowitz gives a 30,000 foot interpretation in this YouTube video. At 7:28, he gives a simplified version of the prosecution's strategy:

Today was the first, pretty much, day of trial for Donald Trump. There's only one problem withthe trial: no reasonable person can figure out what the crime is. For example, today the witness was this guy Pecker from the National Enquirer, this kinda rag, that does "catch and kill", yuou know, he makes money by geting rich people to pay him to buy stories from people who are going to be exposing famous people, and then he buys the story and gets an exclusive with the accuser, and then doesn't run the story.

A pretty sleazy journalism, not a crime! Why did we have a whole day of testimony on something that may be immoral but isn't a crime? And in the next days, we're gonna hear from Stormy Daniels, who'll say, "I got paid hush money", even though she denied it earlier, "becaujse I had sex sith Donald Trump", even though she denied that earlier, but it's not a crime.

. . . They took a minor state misdemeanor well past the statute of limitations . . . . If you list something in a corporate expense form as a legal expense, buit it really was more of a political expense -- people do that all the time. . . . they created this felony out of that by saying, "but his real purpose was to fool the voters and to create election fraud", a federal offense, and so he committed a state misdemeanor in order to commit a federal crime.

But I don't find this satisfying in regard to the actual legal issues, and more important, the options available for Trump to defend the case. This piece delves farther into the complexities:

If you’re looking for the clearest statement of Bragg’s legal theory, you can find it in a November 2023 court filing opposing Trump’s motion to dismiss the case, along with Merchan’s ruling on that motion.

. . . In his filing, Bragg sets out four potential object offenses: violations of federal campaign finance law under the Federal Election Campaign Act (FECA); violations of New York Election Law § 17-152; violations of federal, local, and state tax law; and additional falsifications of business records outside the Trump Organization. Merchan allowed Bragg to move forward with the first three theories, but tossed out the last one.

. . . Let’s begin with that last offense. The underlying conduct here concerns records generated not just in the Stormy Daniels payment, but also in the course of another two additional efforts to squelch stories that might have harmed Trump—in both instances, with the central involvement of American Media Inc (AMI), the parent company of the National Enquirer tabloid. The first story, which turned out not to be true, concerned an allegation by a Trump Tower doorman that Trump had fathered a child out of wedlock; the second was to Karen McDougal, a former Playboy model who says she had an affair with Trump. Trump, Bragg alleges, coordinated these payoffs with David Pecker, who purchased the rights to these stories with no intention of ever publishing them—a so-called “catch and kill.”

But as Dershowitz points out, "catch and kill" isn't a crime. The link continues,

. . . More central to Bragg’s legal theory are violations of federal election law under FECA.

. . . Bragg is arguing that Trump falsified the Trump Organization’s business records with the intent to criminally violate FECA. Ruling on Trump’s motion in limine, Merchan held that Bragg may not point to Cohen’s guilty plea or the Justice Department or FEC agreements with AMI as themselves evidence of Trump’s guilt, but that the district attorney may offer “testimony about the underlying facts … provided the proper foundation is laid.”

Trump has leveled multiple legal challenges against Bragg’s use of FECA as an object offense, arguing in his motion to dismiss that a violation of federal law can’t serve as the “other crime” under § 175.10. Merchan, however, held it could. Trump also argued that FECA preempts state law and thus rules out prosecution under § 175.10 with FECA as the object offense. Merchan rejected this argument as well[.]

. . . This brings us to the final potential object offense, and the one that seems to bear the most weight in Bragg’s presentation of the case so far: New York Election Law § 17-152, a misdemeanor offense that prohibits “conspir[ing] to promote or prevent the election of any person to a public office by unlawful means.”

. . . During opening statements on April 22, prosecutor Matthew Colangelo emphasized the role of § 17-152 in the district attorney’s case, declaring, “This was a planned, coordinated long-running conspiracy to influence the 2016 election, to help Donald Trump get elected.” Senior Trial Counsel Joshua Steinglass further underlined the importance of the statute the following day, describing § 17-152 as “the primary crime that we have alleged” as an object offense. “The entire case is predicated on the idea that there was a conspiracy to influence the election in 2016,” Steinglass said.

. . . But § 17-152 requires that a conspiracy be carried out by “unlawful means”—so what “unlawful means” is Bragg alleging? Colangelo . . . gestured at this during his opening statement, describing the conspiracy as carried out “through illegal expenditures . . . using doctored corporate records and bank forms to conceal those payments along the way.”

So far, as we can see from this history, Judge Merchan and the state appeals court have consistently ruled against Trump's challenges to this theory, and this is likely to continue. Gateway Pundit has published a lengthy essay by Paul Ingrassia on Trump's legal options:

[T]he President’s lawyers have multiple grounds on which to appeal this present show trial, which makes a mockery of the rule of law currently underway in lower Manhattan.

. . . The first, more conservative approach, would be a kind of collateral attack on the proceeding – which challenges the case on grounds other than the underlying merits of the claim – through what is called an Article 78 filing under New York law. . . . Article 78 appeals would help streamline the process, given that President Trump’s case was brought in state court already, where such appeals are commonplace.

. . . President Trump’s lawyers have strong grounds to make an Article 78 appeal on the basis of the unconstitutional scope of the gag order that Judge Merchan arbitrarily imposed upon him, which fails to meet normal strict scrutiny analysis under federal law[.]

. . . Another issue that might be included in an Article 78 appeal is the issue of judicial misconduct: in other words, the conflict of interest serving as the basis for the appeal. . . . Under New York law, “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned…”. An important ground for dismissal is when “the judge knows that the judge or the judge’s spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such a person … has an interest that could be substantially affected by the proceeding.”

One such interest that can be substantially affected by the proceeding is an economic interest. Namely, the economic interest of Loren Merchan, Judge Merchan’s daughter, who happens to fall “within the sixth degree of relationship” stipulated under the rule.

. . . Separately from the Article 78 proceeding, President Trump’s lawyers also have the option of making an interlocutory appeal directly to federal court – either to the Second Circuit or, better, Supreme Court. Under well-settled federal law, the Supreme Court has permitted interlocutory appeals from state to federal court, in the decision Lauro Lines S.R.L. v. Chasser (1989), if the appeal satisfies the three-prong test of what the High Court called “the collateral order doctrine.”

. . . In President Trump’s criminal proceeding, all three elements are easily met. The matter appealed – the recusal order – would conclusively determine the outcome of the case because if the Judge is found conflicted under New York or ABA canons regulating judicial ethics, there would be strong grounds for a mistrial. Even if President Trump’s attorneys appealed just on the gag order issue, that still would likely satisfy the collateral order doctrine[.]

. . . [T]he advantages to a state court proceeding should be placed alongside the advantages of a direct interlocutory appeal to federal court. These advantages may be described as follows: 1) even though state law is supposed to apply more generous speech protections, considering the current cast of characters in charge of New York’s law enforcement . . . it is improbable that President Trump’s state constitutional rights would be adequately protected. It would thus be incumbent upon federal actors, either judges or prosecutors, to apply New York law faithfully – or, in the alternative, use the federal standard to exonerate President Trump from the endless indignities of New York’s corrupted judicial system. 2) The second reason favoring federal appeal is that federal courts – and the Supreme Court, above all – has the greatest means to establish a national standard for the ongoing criminal (and potential other) proceedings against President Trump.

The summary of the Trump appeals against Judge Merchan in the second link above suggests that Trump's attorneys are fully aware of the basic issues, as well as Trump's continuing options. I've got to assume they're on top of strategies like an Article 78 appeal and an interlocutory federal appeal -- but in the meantime, we shouldn't minimize the effectiveness of Trump's Chicago Seven defense strategy, which is succeeding so far in making Judge Merchan recognize Trump is making a monkey of him.

Judge Merchan Loses His Temper

Although the New York courts have announced that they intend to post transcripts of the Trump trial "before the end of the following business day", this so far hasn't taken place, and the most recent transcript on the site is from Monday. Thus, at least so far, I'm having to rely on incomplete media accounts of the record. Here's the version of vesterday's blowup on Breitbart:

Merchan then asked Blanche to explain if Trump believed he was not violating the gag order when he reposted the Truths.

“I’d like to hear that,” Merchan exclaimed.

Blanche tried to explain, but Merchan said, “Blanche, you’re losing all credibility. I have to tell you right now, you’re losing all credibility with the court.”

There's a not fully helpful account of the proceedings in reverse chronological order on CNN. The exchange above appears to have taken place near the end of the hearing, close to the start of the day's trial at 11:00 AM. The specific issue, according to the CNN link, came up in relation to Trump reposting a comment by Jesse Waters:

Moving onto the post about the jury and Jesse Watters, Judge Juan Merchan asked: "Your client manipulated what was said and put it in quotes, am I right?"

"I wouldn’t use the word manipulation your honor," Donald Trump's lawyer Todd Blanche responded. "But the rest of the quote was not part of the quote."

Merchan said that Trump's post on the jury was not a repost.

"This is something that was said on TV and your client had to type it out. He had to sit there, use quotation marks, the shift key and type every thing out and then add those additional words," the judge said.

Blanche acknowledged that Trump's post about the jury was not a repost.

Judge Juan Merchan said he wants to hear an assertion under oath that Donald Trump believed he wasn't violating the gag order when he made the posts in question.

Merchan said: "How do I know that’s his position? Are you testifying under oath that that’s his position?"

"I'm not testifying, I'm making argument," attorney Todd Blanche replies.

"It's your client's position that when he reposts, he did not believe he was violating the gag order. I’d like to hear that. Or you just want me to accept it because you’re saying it?" Merchan says to Blanche.

This excerpt from Politico isn't covered in the CNN version, but it appears to be in the context of the same exchanges:

Prosecutors argued earlier that Trump's social media post calling Cohen and Daniels "sleaze bags" was a part of the former president's strategy to “condition” his followers.

Merchan also remarked that he would take into consideration the timing of Trump’s messages.

“You said the timing matters, why?” Blanche asked. “Why?”

Merchan responded sharply. “I’m asking the questions, OK?” he told Blanche.

Merchan warned Blanche that he was running out of time before the jury is expected to come back at 11 a.m.

Merchan's mention that they're running out of time is the one feature that caught my attention. Merchan scheduled this hearing to begin at 9:00 AM, to last until 11:00 AM, when the jury would arrive to start the day's abbreviated trial session. The hearing actually started around 9:20, and from what I can see in the CNN version, it spent over 90 minutes going round and round and accomplishing nothing -- Merchan said he wouldn't rule from the bench in any case, so we'll have to wait to see what he rules.

I note that the American Bar Association's statement on the Special Functions of the Trial Judge says in Standard 6-1.5. Obligation to use court time effectively and fairly:

(a) The trial judge has the obligation to avoid delays, continuances, and extended recesses, except for good cause. In the matter of punctuality, the observance of scheduled court hours, and the use of working time, the trial judge should be an exemplar for all other persons engaged in the criminal case. The judge should require punctuality and optimum use of working time from all such persons.

As best I can see, Judge Merchan wasted everyone's time in a rambling hearing in which he went round and round with Trump's attorney Blanche on questions like whether it's a violation of his gag order to repost someone else's opinion, and in the face of Blanche's argument that it was common sense that it wasn't, Merchan lost his temper and, in the media accounts, raised his voice. ABA Standard 6-1.4 says,

The trial judge's appearance, demeanor, and statements should reflect the dignity of the judicial office and enhance public confidence in the administration of justice.

This comment on courtroom etiquette from a working attorney explains the issue of how judges should address attorneys in court:

Judges often address attorneys by their last names, preceded by a courtesy title such as "Mr." or "Ms." This form of address is respectful and maintains a professional tone. For instance, "Mr. Smith, what is your argument regarding this motion?"

. . . Regardless of the specific term of address, judges typically maintain a respectful and professional tone when speaking to attorneys. This upholds the decorum of the court and the impartiality of the judiciary.

For Judge Merchan to addresss attorney Blanche as simply "Blanche" is outside normal courtroom decorum -- but in Trump's civil trial with Judge Engoron, the judge addressed Trump's attorney as "Chris" when he became impatient. This reflects badly on both judges.

The fact that yesterday's hearing ended only because it ran out of time suggests to me that Judge Merchan is simply over his head in this case, and it's confirmed by his losing his temper at Mr Blanche. So far, the case has been stumbling along with repeated recesses, when it would be even to the prosecution's advantage to move things quickly.

But we're also back to the Chicago Seven defense, which Alan Dershowitz, who helped develop it in the original Chicago Seven case, acknowledges the Trump defense has been using, particularly in the New York civil and criminal cases. The strategy is to get under the judge's skin and deliberately cause outbursts like Judge Merchan's yesterday. This in turn damages the court's credibility with the public.

Unlike Abbie Hoffman, Trump isn't wearing costumes or performing street theater in court, but he's doing precisely the things that will set the judge off. He posted before yesterday's hearing:

HIGHLY CONFLICTED, TO PUT IT MILDLY, JUDGE JUAN MERCHAN, HAS TAKEN AWAY MY CONSTITUTIONAL RIGHT TO FREE SPEECH. EVERYBODY IS ALLOWED TO TALK AND LIE ABOUT ME, BUT I AM NOT ALLOWED TO DEFEND MYSELF. THIS IS A KANGAROO COURT, AND THE JUDGE SHOULD RECUSE HIMSELF!

— Trump on 𝕏 (@trump_repost) April 23, 2024

This thing is going to collapse of its own weight -- and Trump is going to continue to bait Merchan to the point where Merchan will try to put him behind bars.

"Pecker's Up!"

In the middle of her podcast yesterday, while discussing the Trump trial in New York, Megyn Kelly interrupted the discussion to announce, "This just in! Pecker's up!" and proceeded to giggle. This, of course, was a reference to David Pecker, the former publishing executive who is the lead prosecution witness in the trial. Her reference to his being "up" meant that he was taking the stand as they spoke, but the point, of course, was the bawdy implication that could be drawn from the circumstance.

This, it seems to me, is the emerging problem for the prosecution with this trial, and as with anything else, no plan survives contact with the enemy. After more than a week, it's been a bore. During jury selection, we had the usual talking heads outlining the usual defense strategies for choosing jurors, with the usual pontifications about New York juries -- except that the usual things didn't happen. Politico was one of the few outlets to notice:

As if there weren’t enough plot twists in Donald Trump’s legal saga, this week’s jury selection has produced one more: At least two lawyers will sit on his jury.

. . . Typically, prosecutors and defense lawyers alike try to keep lawyers off juries, fearing heightened scrutiny from members of their own profession. But in a Manhattan jury pool that is largely seen as unfavorable to the former president, Trump’s legal team might see a silver lining in having lawyers on the jury.

“They’re not emotional thinkers,” said Galina Davidoff, a Chicago-based trial consultant. “The profession requires them to do analysis, and emotional thinkers get more easily swayed by the side that goes first, that tells a good story.”

But this also reflects the overall dullness of the proceedings so far. No sooner did Mr Pecker come up than the court adjourned for a juror's toothache, and that led some commentators to wonder if the toothache was real, that the tedium might be more than at least that juror could bear.

Trials and hearings can be great television -- look what happened to Fani Willis in Atlanta just a short while ago. Clips and stills from that episode went viral for weeks. But in this trial, there are no cameras and no recordings, and media hungry for visuals can't get them. Did Trump fall asleep? Did he fart? Did he look annoyed? We'll never know. All anyone can do so far, like Megyn Kelly, is make bad jokes where she can find them.

Here's the pre-trial conventional wisdom from legacy media, via Doug Gordon at Newsweek:

According to the most recent New York Times/Siena poll, nearly 6 in 10 voters believe the charges of hush money payments made to a porn star are serious, including 54 percent of Independents. And the bad news for Trump doesn't end there.

Exit polls during the Republican primary showed that around 30 percent of Republican primary voters would not believe Trump was fit for the presidency if he were convicted of a crime. Even if you assume that 95 percent of those Republican voters eventually come home to Trump—a safe assumption—the 5 percent who may not are more than enough to deliver a second term to President Joe Biden.

The problem I see here is that Stormy Daniels was an issue in 2016, along with others like Karen MacDougal and the Access Hollywood tape. None of these hurt Trump badly enough to cost him the election in 2016; the voters factored them in then, and they're still going to factor them in now. The prosecutors seem to be angling to bring them into this trial if they can, but trying to take the audience back to 2016 isn't going to work, especially if they can't play clips of porn stars on the witness stand.

Doug Gordon goes on at Newsweek:

The contrast and opportunity this hands the Biden campaign could not have been any clearer than it was last week. While Trump was confined in court like a common criminal, Biden spent the week barnstorming across Pennsylvania talking about lowering taxes and bringing manufacturing jobs back to the United States. It's a movie we're likely to see play out over and over again: Trump in court and Biden in battleground states.

Except that Joe wasn't "talking about lowering taxes and bringing manufacturing jobs back to the United States", he was talking about Uncle Bosey and fumbling with the takeout box. This won't be Gordon's idea of a movie -- there'll be no film of a fidgety, annoyed, or guilty-looking Trump in the trial, while Joe has an inexhaustible supply of stumbles, gaffes, malapropisms, mispronunciations, and brain freezes that will lead the headlines because there won't be any footage of Trump in the coutroom at all.

Nor can I discount Trump's attorney Todd Blanche's remarks to the jurors in his opening statement,

"Use your common sense. We’re New Yorkers. It’s why we’re here," Blanche said, adding "we trust you" to decide the case on the evidence.

Especially if there are two attorneys on that jury, I'm starting to think this isn't going to turn out like just about everyone has been predicting. Let's not forget the stunned surprise when Nixon Attorney General John Mitchell and Finance Committee Chairman Maurice Stans were acquitted of charges that they had obstructed an investigation in a New York federal trial in 1974. I'm not so sure New York juries are as precictable as everyone seems to think.