Thursday, July 9, 2020

Indepen-Dunce Week: Losing To Win

Donald Trump lost both tax cases today in front of SCOTUS, but he won when it comes to delaying the now inevitable release of whatever criminal information in his returns until after the election.

The Supreme Court on Thursday rejected President Trump’s assertion that he enjoys absolute immunity while in office, allowing a New York prosecutor to pursue a subpoena of the president’s private and business financial records.

In a separate case, the court sent a fight over congressional subpoenas for the material back to lower courts because of “significant separation of powers concerns.”

“In our judicial system, ‘the public has a right to every man’s evidence,’” Chief Justice John G. Roberts Jr. wrote in the New York case, citing an ancient maxim. “Since the earliest days of the Republic, ‘every man’ has included the President of the United States.”

In both cases, the justices ruled 7 to 2, with Trump nominees Neil M. Gorsuch and Brett M. Kavanaugh joining the majorities. Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

While the court said Manhattan District Attorney Cyrus R. Vance Jr. had the authority to subpoena the records from Trump’s private accounting firm, it also sent the case back to a district court for more work.

The information is part of a grand jury investigation, so the joint decisions dash the hopes of Trump opponents that the information will be available to the public before the election.

Vance is investigating whether the Trump Organization falsified business records to conceal hush payments to two women, including pornographic film actress Stormy Daniels, who claimed they had sex with Trump before he took office. Trump has denied those claims.

Vance is seeking Trump’s tax returns, among other records. The president has refused to make them public, unlike previous modern presidents. Because the records are for a grand jury investigation, they would not likely be disclosed before the election.

So both cases will go back to lower courts for ruling based on the test criteria outlined by Chief Justice Roberts in both decisions, meaning that while the cases will go on, they will go on long after November's election.

Trump is probably in real trouble at the state level. He could be indicted, depending on how NY's state courts rule, but that won't happen until next year at the earliest.

As far as the House Democratic subpoenas go, those too go back to a lower court, will be made moot when Congress adjourns in January, and the process will have to start 100% all over again. If Trump's still President in 2021 with a new Congress, Trump will simply tie the ruling on the specific subpoena up in court for another two years and let the subpoena expire again. Roberts gave him (and all future presidents) the road map to do just that.

Either way though, Trump lost, but effectively won, at least as far as the 2020 election goes on his clearly politically fatal tax returns. Besides, what difference would the fact that Trump's a tax cheat and criminal make to voters now, at this point, after all the criminal acts he's already performed in office so openly and brazenly?

Effectively it doesn't matter at all.  But it will be used against Joe Biden next year if the GOP still controls the Senate. If not, expect Biden to be sued by red states retaliation for the New York case against Trump.

And while politically Trump wins, legally, should he lose the election, he's now almost certainly heading for prison in New York. Keep in mind that Trump now has every reason to make sure that never happens, or he's spending the rest of his life in a prison hospital.

How far will he go to escape that fate?

Indepen-Dunce Week: Bluenami Tsunami

I said last month that I wouldn't be convinced Joe Biden had any shot of defeating Trump until he was favored to take the 270 electoral votes he needed to win. Up until now it's been tossup after tossup, and tossups right now have to favor the incumbent. But now, Cook Political Report finally has Biden getting 279 electoral votes regardless of tossups, and finally, it's time to start to believe Biden can win. Cook's Amy Walter:

This election is looking more like a Democratic tsunami than simply a Blue wave. President Trump, mired in some of the lowest job approval ratings of his presidency, is trailing Biden by significant margins in key battleground states like Pennsylvania (8 points), Michigan (9 points), and Wisconsin (9 points). He’s even running behind Biden in his firewall states of Florida and North Carolina.

We’ve made changes to our Electoral College ratings to reflect this reality.
  • Wisconsin, Pennsylvania, and Nebraska’s 2nd district move from Toss Up to Lean Democrat.
  • Maine, once in Lean Democrat, moves to the safer Likely Democratic category.
  • Georgia has joined Arizona, North Carolina and Florida in the Toss Up column, although, at this point, Biden would be slightly favored to win at least Arizona and Florida.
  • Maine’s 2nd district has moved from Likely Republican to a more competitive Lean Republican.

These moves alone push Biden over the 270 electoral vote threshold (to 279).

Caveats still abound even as down-ballot races are shifting towards the Dems.

Can things change between now and November? Of course. So, this comes with that important caveat. But, we also know that the president is not interested in changing his approach or focus. As one strategist who has been doing extensive focus group work with suburban voters tells us, “they are mostly done with Trump.”

One of the biggest unknowns, however, is voting itself. As we’ve seen this spring and early summer, most states are not prepared for an onslaught of absentee ballots. And confusion about how/where to vote could impact turnout. Moreover, if voters start to sense that the race for president is a blow-out, will they be more willing to split their tickets to ensure a ‘check and balance’ in Washington next fall? At least one Republican I spoke with, however, was wary of a check and balance working this year, telling me that “people are looking for a restart and a reset.” That includes down-ballot candidates as well as the president.

The reality is that we won't know who won for at least a week after Election Day, if not two or three weeks.  A 279-269 scenario where Trump runs the table on tossups would still be a Biden win, but Trump could all but force a Supreme Court decision to move things to go to the House if votes aren't counted and certified by December 14th, when electors are supposed to meet in state capitals. 

Bush v Gore went until December 12th, 2000 and was decided just days before the elector deadline that year, the 18th (First Monday after the second Wednesday in December).  If Florida can go that long, imagine the Trumpies jamming up a half-dozen or more states this way to prevent Biden from being able to claim 270.

The point is, take nothing for granted.

Even the ability to vote.
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