THIS SUMMER OF SURPRISE

A month ago, Joe Biden, less than a week removed from what -- charitably speaking -- was a bad debate, was intent on running for re-election.

Today, Vice President Kamala Harris is the Democratic nominee.

If someone tells you they saw this coming . . .

They are lying.

At multiple levels.

In contemporary American politics, there are a number of truths that until recently you could take to the bank.  

One is that presidents who have won all their party's primaries and secured all the delegates needed to be their party's nominee will run for reelection. Another is that no one can secure the nomination of either party absent a years long slog through the snow, sun and rust belts, umpteen debates with a cadre of competitors, and tens of millions of dollars raised to finance the effort.  Yet a third is that, if the Democratic Party can figure out a way to divide its way to defeat, or at the very least create enough process to render that outcome unnervingly possible, it will do so.

Each of those truths, if not forever discarded, has been rendered -- for now at least -- inoperative.

All of them, however, became truths as a matter of cold historic fact.  

No president running for reelection with the nomination sewn up has decided not to run at the eleventh hour. 

And since 1968, no Democrat has secured his party's nomination without winning primaries and amassing the required number of delegates. 

In fact, 1968 was a watershed year for Democratic Party politics in America.

The Democrats disarray at their convention in Chicago that year -- along with the nomination of a candidate who had not participated in any primaries and then lost the general election -- led to the wholesale revision of the party's rules for selecting candidates. Under changes advanced by the party's McGovern-Fraser commission, the power of state committees peopled and run largely by insiders was curtailed and primaries became the only road to the White House. 

Every open contest since then has been a robust multi-candidate (and multi-year) affair.  

And if the polls showed you were a weak incumbent . . .

As they did in 1980 . . .

Even a sitting president could face a robust challenge.

So what happened this year?

Biden has been behind (or at best even) in the polls for the entire year.  He was widely perceived as being too old to do the job through the end of any second term.  And his approval rating nationally was dipping below 40%.  

None of this, however, attracted any significant opposition. 

And the opposition it did attract -- from Minnesota Rep. Dean Phillips -- was anemic.  

A write-in campaign for Biden beat Phillips in New Hampshire and Biden won by overwhelming margins in all their handful of head-to-head contests thereafter.

Until Biden announced he was leaving the race, therefore, there was no expectation that he was prepared to do so.

Nor was there any widespread belief that the search for a new nominee would be anything less than chaotic and divisive even if Biden belied those expectations and stepped aside. To the contrary, Vice President Harris was almost as unpopular as the President himself and a half dozen sitting governors and/or members of the cabinet -- Shapiro, Cooper, Whitmer, Pritzker, Newsome, Buttigieg -- were considered more than likely to enter any open field.

So . . .

Again . . .

What happened?

Why did Biden decide to get out?

Why was Kamala Harris able to secure the nomination without a fight?

Why, again contrary to expectations, has she been able to turn the race into an actual contest, one in which she appears to be resurrecting the Democrats winning 2020 coalition -- suburban women, minorities, the young and those with college degrees --  and along with it their chances of retaining the White House and Senate and winning the House?

Here's my take.

If there is one person uniquely surrounded these days by what is unexpected, that person is Donald Trump. Whether he is winning an election in 2016 that everyone (including Trump himself) thought he'd lose, spinning out lies at a rate and in an amount that creates a whole new genre of journalism called fact-checking, orchestrating an attempted coup based on the lie that he won an election he lost, being impeached twice or surviving assassination by mere centimeters, the man is a one-off.  There has never been anyone in American politics like him, at least not one like him who actually became president.

So, if you want to understand why Joe Biden decided to opt out of running for re-election, the best place to begin (and probably end) is . . .

Donald Trump.

Biden believes, quite correctly, that Trump represents an existential threat to American democracy.  There is no way in his mind  to sugar-coat that threat.  Trump has produced a handful of profiles in courage over the past eight years, chief among them Liz Cheney, Mitt Romney, the nine other Republican House members who voted to impeach him in 2021 and the six other Republican senators who voted to convict him.  

Biden must now be added to that list.

He left the race for two reasons.

First, because he knew he could lose.

And second, because he feared the country could not survive a second Trump term.

All the other explanations are, to my mind, fanciful, false or both.

I've met conservatives who think the departure is just the culmination of elite gaslighting that kept the country in the dark about the president's cognitive disabilities. There is no medical evidence to support this claim and Biden himself regularly refutes it.  He even did so in the process of getting out, assiduously managing the diplomatic tour de force that released Americans Evan Gershkovich, Paul Whelan, Alsu Kurmasheva and thirteen other political prisoners from Russian and Belarusian jails, and actually calling Slovenia's leader to cement its needed cooperation even as he was finishing the letter announcing his departure from the race.

The same can be said of those who credit Nancy Pelosi, Chuck Schumer, the members of Congress who advocated withdrawal or . . .

George Clooney.

Biden had the votes. 

If he wanted the nomination, there was no way to stop him from getting it.  

He could have told everyone to pound sand.  

Almost any other politician, including those now being credited as backstage authors of his exit, would have.

But he didn't.

Because he knows the risk of another Trump term is too great to accept, let alone make possible.

It is important that America understand that risk as well. 

Over the course of the last year, a sort of somnambulant amnesia has settled over the country about Trump in general and the risk he portends specifically. Apologists have turned his lying into exaggeration, his narcissism into toughness and January 6 into a mere protest whose tried, convicted and  jailed participants are now considered victims.  Labelling Trump a fascist is dismissed as over-the -top rhetoric even though erstwhile Republicans like Robert Kagan, who served in Ronald Reagan's State Department, have admitted "it is hard to find a better word for Trump the leader and his devoted following. Fascism is the malady to which modern democracies are particularly susceptible."

Kagan's latest book, Rebellion: How Anti-Liberalism Is Tearing America Apart Again, was published just this year.  In it, he notes that "It took Hitler nine years, from his failed putsch in 1923 to his electoral triumph in 1932, to complete the destruction of German democracy. In that period, his following grew from thousands to tens of millions. Trump's assault on American democracy arguably began in 2020, when he refused to accept his defeat at the polls. His rolling coup attempt has continued and grown since, and along with it the determination of millions of his followers to see him returned to power by whatever means necessary."

In January 2021, Kagan continues, "fully 71 percent of Republicans polled believed Joe Biden was not 'legitimate.' Little wonder that, at Trump's command, thousands of his supporters tried to do something about it . . . The majority were middle class and middle aged [and as] one fifty-six year old Michigan woman explained: 'We weren't there to steal things. We weren't there to do damage. We were just there to overthrow the government.'"  As Kagan explains, "Hitler" too "came to power in Germany first by winning democratic elections, by inspiring middle class Germans, by offering an alternative to the messy, often gridlocked democracy of Weimar Germany.  Only then did he cement his position in power by doing away with democratic norms."

"This," Kagan concludes, "is the Republican Party. Trump and his supporters have taken over the party and now seek to take over the country by any means necessary and put an end to the American experiment in liberalism."

If Trump explains Biden's decision to depart, he also explains the Democratic Party's decision to immediately coalesce around and support Kamala Harris. 

Biden himself led the charge, endorsing her within a half hour of bowing out. Just as quickly, her would-be opponents did the same.  All the talk about a mini-campaign or an open convention with days of yore drama evaporated.  Instead, the Democratic base woke up and in mere weeks, Harris raised $300 million, chose a Minnesota everyman as her running mate, hosted Obama-sized rallies, closed the national polling gap and is now leading in Michigan, Wisconsin and Pennsylvania in the latest New York Times/Siena College poll.

I am suspicious of polls.

And months out, I do not think they are all that predictive.

The current change in public perception, however, has been abrupt and immediate.  

In two of the three midwestern swing states, Pennsylvania and Wisconsin, Trump has lost between seven and eight points, and in Michigan he has lost a little more than five. In June he was leading in all three states. Today, he is not. The largest documented change, however, was on the question of  satisfaction among Democrats. In May, only 60% of the Democrats polled were satisfied with the choice of candidates in this year's presidential election. Now, 87% of them are.

Why the shift?

It isn't about policy.  On that. Harris and Biden are more or less identical. I also doubt it's just about demographics.  While Harris has regained some of the minority voters Biden was losing and gained appreciably with women, she has retained the same numbers of older voters Biden attracts and she might have been expected to lose. The increased satisfaction and enthusiasm is, I believe, based on the view that Harris can win.

That perception is a sail behind which there is a lot of wind.

Correctly or not, the voters as a whole were dissatisfied with having to choose between an actual and a near octogenarian.  Biden was more or less running within the margin of error but still behind Trump until the June 27 debate. Afterwards, he was losing nationally by a larger margin and losing outside the margin of error in the swing states. Once Biden removed himself from the mix, all that changed. Trump is now the candidate with an age problem. Harris is  now (ironically) the candidate of change and Trump is shackled by his own prior incumbency.

One of the lesser noticed tells in the Times/Siena poll is that voters are also giving Harris better marks on the economy than they were giving Biden. On the merits this makes no sense at all. Her economic policies and his are the same. What voters are probably doing is moving from dissatisfaction to engagement and in the process taking a second look at the conventional nonsense that has favored Trump on this issue.  

Trump's COVID economy was an absolute disaster and his pre-COVID economy inherited.  The sticking point has been inflation, which rose sharply after COVID crippled supply chains. Though the rate is now dramatically down, absolute prices are higher than they were in 2019. Trump and the GOP blame this all on Biden's spending. That, however, cannot be right inasmuch as the rate came down as COVID ended and the Fed raised interest rates.  The likelier culprit is corporate greed. Since 2019, experts attribute 4.5% of the cumulative 17% increase in prices to the rise in corporate profit margins at rates much higher than the growth in labor and non-labor costs. In fact, those margins are the highest (16%) they've been since the 1960s.  

As has always been the case, the only party willing to battle corporate greed in America are the Democrats. Toward that end, the Biden administration has resurrected antitrust law, lowered prescription drug prices, attacked junk fees, fought shrink-flation, increased the minimum wage and called for an increase in corporate taxes. At the same time, real wage growth has outpaced inflation so the gains have not vanished.  And going forward, building the economy from the middle out and the bottom-up has new (and younger) spokes-people in Kamala Harris and Tim Walz.

In opposition, when he is not otherwise losing it about (his and her) crowd sizes or recounting non-existent helicopter rides with Willie Brown, Trump preaches a politics of revenge and recrimination. He is a convicted felon and an indicted defendant; the only thing that may keep him out of jail is a Supreme Court that has written a blank immunity check against prosecuting presidents for the crimes they commit while on duty.  He will pardon convicted J6 defendants and any others who do his bidding while violating the law. His new running mate is becoming a punch line; his last one won't vote for him.

On policy, such (and thin) as it is, he pretends to oppose inflation but can never say how he will do so. It is the same with Ukraine or the middle east or hostages.  He always claims to have done better even when he hasn't and pretends to have a plan even when he doesn't. 

Joe Biden agreed to a bi-partisan immigration bill created and widely supported by the GOP; Trump killed it.

Joe Biden passed the bi-partisan infrastructure bill; Trump couldn't. 

Joe Biden restored NATO; Trump trashes it and praises Vladimir Putin. 

When he accepted Kamala Harris's invitation to join her on the Democratic ticket, Governor Walz thanked her for bringing back the politics of joy.

It was an apt characterization.

She has done so.

With her laugh, ready smile and funny (but spot on) memes.

But also with her readiness and steely resolve to continue the job begun in 2021.

America's voters don't settle.

They bitch and moan and groan and complain. 

They know elections are about them.

Those running better know it too.

They want it all.

A thriving economy.

Equal opportunity.

Fundamental rights.

And democracy.

Opposing fascism is not enough.

But welcoming it would be a disaster.

I saw a sign recently that captured all of this.

In two words.

It said . . .

"Kamala, obviously!"

HEANEY'S CHOICE . . . AND OURS

We have been here before. 

Many times.

We were here in 1776, 1787 and 1860. 

In 1929, 1941 and 1968.

In January 2021.

And we are here again.

Here is not a place . . . 

Or a space . . . 

Or even a time.

It is a choice.

In the final analysis, the choice is always clear. 

But not at the time. 

So the actual choice . . . 

At the time of choosing . . .

Is . . .

Difficult.

Impossible for some.

Painful for many.

So painful that it can be . . . 

Denied.

Even after it is made.

Because acceptance would be the death of something unwilling to die.

Maybe . . .

Anger.

Or ignorance.

Maybe something smaller.

But less abstract

Like a block.

Or a team.

Or larger.

But also less abstract.

Like a friendship.

Or a family.

Or a marriage.

The President has made his choice.

It surprised us.

It should not have. 

He has always been a man . . .

Of choices.

Big ones. 

Some sought.

Many not.

None . . .

Avoided.

All . . .

Clouded in uncertainty . . .

At . . .

The time of choosing.

And now . . .

We too must choose.

Seamus Heaney tells us:

"Human beings suffer . . .

They torture one another,

No poem or play or song can fully right a wrong inflicted and endured.

History says, don't hope

On this side of the grave.

But then, once in a lifetime, the longed-for tidal wave of justice can rise up,

And hope and history can rhyme.

So hope for a great sea-change on the far side of revenge.

Believe that further shore is reachable from here".

And . . .

Choose.

Wisely.

There will be no do-overs.

FROM HOLLER TO HYPOCRISY -- THE MAGA-FICATION OF JD VANCE

In 2016, Donald Trump needed to convince church-going Evangelists that a twice-divorced adulterer and erstwhile pro-choicer could still be their President.  

So he picked Mike Pence to be his Vice President.

Today, Trump needs to convince some supposedly undecided voters residing in Michigan, Wisconsin, Pennsylvania, Georgia, Arizona and Nevada that an election-denying, J6 coup plotting authoritarian with a preternatural allergy to facts and truth is not a wanna-be fascist ready to turn America into a 21st century version of the 20th century's Axis powers.

This is a tall order.

In a sane world, a normal political party would search for someone who was not an election denying, J6 coup plotting authoritarian.

Someone, for example, like Nikki Haley.

In an even saner world, the election denying, J6 coup-plotting nominee would concede the past so as to jettison the denial and distance himself from the coup.

Donald Trump, however, is not a normal nominee and the Republicans are not a sane political party.

They are both in love with lies.

The lies . . .

That Trump won the presidential election in 2020; 

That his then-Vice President could have legally refused to count legitimate electoral votes because he (or his agents) had created  fraudulent slates of so-called alternative electors; 

That he bore no responsibility for the mob he told to "fight like hell" on January 6; the one that ransacked the Capitol and terrorized elected Representatives, Senators, staff and police to stop the vote count; the one he could have but did not control and never ordered the National Guard to disperse.

So this time he picked JD Vance to be his Vice President.

Who, unlike Pence, is a Trump mini-me.

And is . . .

Also unlike Pence . . .

In love with the same lies.

JD Vance is the 39-year-old junior Senator from Ohio.  His political resume consists of two years in the Senate.  He is an ex-Marine and though he rails against elitists, he willingly attended and then subsequently exploited a degree from Yale Law School to obtain more wealth than he ever imagined possible in the neighborhoods that raised him.  

Those neighborhoods, of course, also put him on the map.

Or, put more accurately, he put them on the map in a best-selling memoir. 

The memoir, entitled Hillbilly Elegy, was published in 2016.

It was a great book.

And its author could have become a great man.

Had he remained true to its core insight.

But he hasn't.

The core insight of Hillbilly Elegy is that individual honesty and responsibility matter.  

Vance is a Scots-Irish  product of a "holler" in Kentucky's Appalachian hill country. Though he was not born there, his parents, grand-parents and extended family of uncles, aunts and cousins were.  He regularly returned there from Middletown, Ohio, and was basically raised by his grandparents, who also left but also regularly returned and who are (as he expects to be) buried there.

The nuclear and extended Vance family was, to be kind and in JD's transparently honest telling, dysfunctional. Though independent, self-reliant and manically loyal to their own, they were -- as often as not -- unhinged, violent and utterly irresponsible.  

Thanks to his mother's addictions and serial love life, he has had to try on three last names. Picked up from "a September day in kindergarten," he was told he'd "never see [his] dad again.", who gave him up for adoption. And at home, he was "introduc[ed] to "marital conflict resolution." 

"Here were the takeaways," he says: "Never speak at a reasonable volume when screaming will do; if the fight gets a little too intense, it's ok to slap and punch, so long as the man doesn't hit first; always express your feelings in a way that's insulting and hurtful to your partner". 

Child rearing was not much better. 

As his mother "cycled through boyfriends," JD grew "accustomed to a certain amount of instability . . . There would be fighting or running away from fights; when things got rocky, Mom would explode on us or even slap or punch us . . . With partying came alcohol and with alcohol came alcohol abuse".

Things got so bad that Vance, more than once, had to lie to keep his mother out of jail.

The upside was his grandparents eventually took over. 

By then, they had overcome alcoholism and skirt-chasing (grandpa) and "covert war" (grandma) -- and, apparently, a "Hillbilly culture" that then "blended a robust sense of honor, devotion to family, and bizarre sexism into a sometimes explosive mix" -- to be the parents to Vance they had not been to Vance's mother. Though they lived apart, grandfather Papaw was an FDR devotee who had a steady job at (and unvarnished pride in) Armco, the steel production company, and grandmother Mamaw (with whom Vance lived) had three rules: "Get good grades, get a job and 'get off your ass and help me'."

JD needed them.

By high school, his musical chairs life of changing homes, an addicted mom and "the express train to crazy" had turned him into a likely drop-out and potential druggie. 

His grandmother saved him from that. 

The Marines then turned him into a disciplined, capable and independent man.

And Ohio State and Yale Law were his path out of the rust belt and the holler.

On Wednesday night, he became Donald Trump's (second) running mate and the Republican Party's 2024 candidate for Vice-President. 

His acceptance speech was an odd amalgam of family pride, devotion to the class and culture of his birth, and creation of political history that doesn't exist to save the neighbors he claims Joe Biden (but not Donald Trump) forgot.

To get there, and let's be unapologetically Mamaw-ish on this point, he had to kiss Donald Trump's ass.  

Though careful to avoid the subject last night, JD thinks the 2020 election was stolen from Donald Trump and the J6 Capitol seizure not all that important and certainly not something for which Trump bears any responsibility. 

In advancing these claims over time, Vance had been cagey.  Trump's claims of outright fraud become, on Vance's telling, legitimate disputes over rules changes that worked (in some  but not all places) to Trump's disadvantage. He ignores the fact that courts said the rules changes -- which merely increased the ability to mail in ballots or vote before election day in light of Covid -- were valid both before they were used and after the election had occurred.

He also ignores Trump's conduct on January 6.

This is right out of Hillbilly Elegy . . .

But without any of the honesty.

In the holler, as in the case of Trump, violence to different degrees is an accepted way of life for which no apology is sought or given.  Vance was honest enough in his book to call this out but has resurrected the denial of his youth when confronted with the same behavior by Trump.  Put more starkly, the JD who peed in a cup to save his Mom on a urine test is now whitewashing Trump's lies to, so he says, save America.

He should know better.

Enabling never works.

His "save America" lies now  will fare no better than his save Mom lies did way back then.  

Beverly Vance was addicted to alcohol and drugs.

Donald Trump is addicted to power and himself.

As Vance told us last night, Beverly is in recovery, now for almost ten years.

Donald Trump, however, is not.

The other exercise in enabling on stage last night in Milwaukee was Vance's denial of history.  

In Hillbilly, Vance got a lot of his history right.  Grandma and grandpa were both Democrats, the latter a lover of FDR's New Deal and the pro-labor world it established that put Armco in Middletown, Ohio and gave him his life's work, the former a lover of Bill Clinton, a product of the rural south who could feel her pain. 

He also called out the holler's instinctual aversion to "the other", one that worked (unfairly) against Barack Obama, and noted that, in his experience at home, the lazy "welfare queens" were white.  Finally, Hillbilly was honest in describing the hollowing out of the mid-western manufacturing economy and the unfair burden that has imposed on the poor.

Last night, however, Vance told us he was against the passage of NAFTA in the 1990s, against the globalization that has allowed Wall Street to arbitrage American labor with cheaper foreign substitutes for the last thirty years, and against the war in Iraq in 2003. Ted Kennedy, Bernie Sanders and a host of other Democrats were against all of that as well, and  Ronald Reagan, the two George Bushes and the entire Republican Party were for it all.  For his part, Barack Obama opposed the war in Iraq,

But in Vance's world, all these policies are the fault of Joe Biden.

This is denial on steroids.

Nor did Vance's effort improve when he talked about Trump.

His claim that Trump opposed the war in Iraq was false.  Trump did not.  His claim that inflation adjusted earnings and workers' wages rose at unprecedented levels under Trump was also false.  Inflation adjusted wages stagnated until around 2014 and began to grow in Obama's second term at levels that were matched (because of Obama's policies which Trump inherited) but not exceeded in Trump's term.

There is a lot that needs to be done to bring back the holler.  

But . . .

On infrastructure, manufacturing and jobs, especially in the rural areas that Vance claims as his own, Biden is doing what Trump never did.

In truth, Vance's speech last night was designed to convince voters that he and Trump were somehow left-wingers on the economy and war in the 1980s, '90s and 2003 so that voters will allow them to be right-wingers in 2025 and thereafter.

The transformation, however, is impossible.

Trump has a record he cannot escape.  He supported Bush's Iraqi war. His mismanagement of the Covid pandemic was monumental; the advice to ingest bleach was his low point but of late he has even undermined his high point -- creating the vaccine -- by siding with deniers. The economy he brags about was Obama's, not his. For four years, he promised but never passed an infrastructure bill. And his tax cuts were just another GOP version of relief for the wealthy.

Vance, however, is also without escape.  

Though he was kid (or a soldier and student) until 2013, he made choices thereafter. 

If he really thought America's pols had ignored his neighbors for thirty years, he would have found many more allies in the Democratic Party than he could ever find in the Republican one. 

Ted Kennedy, Bernie Sanders, Bill Clinton, Barack Obama, Ohio's own Sherrod Brown and even Joe Biden are light-years closer to what Vance claims to be for now than anything on offer from Trump or the GOP.  With the latter, it's tariffs and tax cuts and the false claim that illegals are stealing jobs in the holler.  With the former, it's labor law reform, unionism, an increased minimum wage, the Affordable Care Act, infrastructure spending, a reemerging auto industry, the return of manufacturing and the green jobs of the future. The GOP supports none of this. In fact, they have spent much of the last week  maligning it in Milwaukee.

And then, of course, there's the right wing JD Vance. The one he hid last night. The one who . . . 

Thinks abused women should stay in abusive marriages . . .

Opposes abortion even in the case of rape or incest . . .

Doesn't care "what happens in Ukraine one way or the other" . . .

And, worst of all . . .

Would not have certified the 2020 election had he been Vice President.

In Hillbilly, Vance had some painful advice for "his neighbors, friends and family."

"The truth is hard," he said, "and the hardest truths for hill people are the ones they must tell about themselves."

Maybe he should re-read his book.

A CHALLENGING "WHAT IF?"

Would someone please give me medical evidence that Joe Biden cannot do his job?

To be clear, that would require a diagnosis that he has a disqualifying condition.

As far as I can tell, the only such conditions would be dementia, stage 3 Parkinson's disease or a stroke. If he was terminally-ill and bed-ridden with cancer or had end-stage congestive heart failure, that too would qualify.  To be clear, messing up a debate, reading from a teleprompter or confusion in the face of an opponent's unchallenged Gish-gallop of lies does not qualify. 

Age-related frailty does not qualify.  

Being required to get a little extra sleep every night does not qualify.

And three weeks of op-eds by pundits and the occasional actor . . .

Does not qualify either.

No matter how much they profess to love him.

Whether Joe Biden or anyone else can actually do the job of being president probably depends, at least as an initial matter, on what it takes to actually do the job.  As a democracy that elects its president, the easiest answer is that it takes whatever the voters think it takes.  This is fair as far as it goes. It runs, however, into problems once "what it takes" turns out to be a checklist for partisanship rather than a criteria for competence . . . 

Which is pretty much where we are today with Joe Biden.

For years, and without any objective evidence, Donald Trump and the rubber-stamped Trumpism that is today's Republican party have proclaimed Biden not fit to serve on account of his age.  They have openly proclaimed, again without any evidence, that Biden is physically and cognitively impaired and therefore cannot do his job.  Until a few weeks ago, the only "evidence" of any of this was the President's halting gait. 

The claim itself took a huge hit in March when Biden gave an impassioned State of the Union address replete with extemporaneous gibes at the right-wing amen chorus and an in-the-aisle after-party that had the Speaker wondering when he'd get to turn the lights off and send everyone home. In fact, things were so bad evidence-wise that Trump was repeatedly field-testing a "Joe's on drugs" explanation for any exhibitions of presidential energy and with-it-ness. 

But then, of course, the debate happened and Biden's poor performance became an evidentiary Rorschach test for anyone who had ever told him to be a one termer.

The problem with Rorschach tests, however, is they turn out false positives roughly half the time.  

In other words, they are useless.

And that is also the problem with using Biden's debate performance as a substitute for medical evidence.

The real job of the president is to uphold the oath of office, otherwise  make good decisions on difficult issues and work with and persuade Congress to fashion appropriate legislation.  The qualities needed to do so are respect for the rule of law, intelligence, honesty, empathy, patience, a willingness to listen and learn and the courage to admit when you are wrong. Because the job is so complicated and all-consuming, it also requires a team of non-yes men and women who can distinguish between signal and noise and a schedule where a full day's work is actually a full day.

In his one term in office, Donald Trump exhibited none of these qualities.  He broke the law, lied habitually and was lazy. "Executive time" in the residence and out of the Oval became the biggest item on his daily schedule. And while his team during that term thankfully included those whose saved us from his worst instincts, including his desire to illegally re-install himself in the White House after he lost, that will not be the case in any second term. Only the cravenly loyal will be part of any follow-on inner-sanctum.

My first reaction to the debate was to admit it was bad and that age-related questions had to be answered. I thought they could be with an independent medical exam. The White House response was that such an exam had already been done this past February and neurologists had declared the President  fit and free from "any cerebellar or other central neurological disorder, such as stoke, multiple sclerosis, Parkinson's or ascending lateral sclerosis." 

To me, that seems sufficient. 

To George Clooney, however, it is not.

What gives?

Lynn Casteel Harper is a minister and chaplain.  She has just written an article entitled "Ageism is Making it Impossible to Fairly Judge Joe Biden."  It appears in the current edition of America, the Jesuit review of faith and culture. 

In the article, Harper explains that "in the days since the first presidential debate" all she saw was "the circular logic that says [President Biden] is just too old”, is “incapable of leading because he's just too old and/or vulnerable to losing the election because he's just too old."  Instead, however, "of challenging the 'too old' assault for what it is -- a generalization propped up by the false equivalence of incompetence with old age -- many in the Democratic party have accepted and perpetuated this ageist language."

It is, she says, "warping media coverage and the calls for his resignation."

As Harper points out, the warping involves "both hyper-visibility and invisibility".  The "hyper-visibility scrutinizes all slip-ups, stumbles or slow-downs . . . Because ageism promulgates the notion that old age spells universal diminishment, all these highly tracked lapses are said to simply prove the point -- thus concealing ageism under the guise of 'just what it is.' Every flub from Mr. Biden gets routed back to the 'too old' evidence pile."

"The flipside of hypervisibility," she points out, "is the invisibility associated with old age, the . . . erasure [that] hides older people's gifts, knowledge, potential and accomplishments,” as well as the “positive attributes and contributions from old age." "Decline," she notes, "is presumed to be the hallmark of old age, and any kind of strength or ascendency . . . incidental or accidental". "Eclipsed by his age-associated weaknesses," she explains, "Mr. Biden's accomplishments are rendered invisible."

George Clooney's op-ed yesterday was only the latest example of this warping.  

In it, the acclaimed actor makes two assertions. The first is the unproven claim that Biden cannot win. Even after the debate, all the polls still handicap the race as a margin of error one at best. The second is the equally unproven claim that he cannot win (and Democrats will lose the House and Senate) because of his age. And that, at this point, threatens to become a self-fulfilling prophesy if repeated often enough. The rest is all about hyper-visibility or how we "collectively hold our breath or turn down the volume whenever we see the president, whom we respect, walk off Air Force One or walk back to a mic to answer an unscripted question."

This is not just the fault of Trump and the Republicans.  

As Harper admits, Biden himself has contributed to the problem with "super senior" push-up challenges that "defend his worthiness" through "physical feats of strength."  More to the point, she writes, "Mr. Biden and his team -- and the journalists who cover him -- have rarely seized the opportunity to foster a different narrative of his aging", one that focuses "on how his judgment has gotten keener, or on how he is not the person he was a decade or two or three ago (the man who maligned Anita Hill and voted for the Iraq War), and that is a good thing."

"What if," she asks, we "acknowledged that Mr. Biden cannot zig-zag the globe and be in top debating form . . . but . . . knows how to build and lead a team, delegate appropriately, and ask for help when he needs it. Maybe it is too dangerous to admit and embrace aging in this way, and maybe ageism's stranglehold is so strong that it would not help anyway, but it seems equally counterproductive to ignore aging altogether and cede the premise that being 'too old' is automatically disqualifying."

To be clear, Harper is not saying "aging leaves us unchanged."  It is not, she admits, "just a number." "Fresh limitations and challenges arise as the years go by, but other things can emerge too, such as refined perspective, greater discernment about what is important and deepened relationships."

In the will he or won't he drumbeat that has taken over, none of this is being said. 

And that may be the biggest tragedy that now awaits us.  

There is no guarantee a different Democrat can take out Trump. He or she may not have the time. Or may not survive the vetting.  Clooney glides by these legitimate concerns, dismissing them as "scary stories" that are "simply not true."

Perhaps.

But here's another story.

Harper again:

"Mr. Biden possesses many positive attribute that become possible with accumulated life experience, something that may not necessarily be true of his opponent in this election."

The only thing wrong in that last sentence is . . . 

The “may not”.

REVERSING HISTORY 

George III is laughing in his grave.

It took 248 years but America finally decided it wants a monarch after all.  

Or at the least the Supreme Court has made that decision.

The rest of us must now endure it for some foreseeable future.  

It is unclear how many presidential crimes we will also have to endure along the way.  

If Trump is elected this November, the sky may well be the limit. 

You can rest assured he will not be prosecuted for the attempted coup he orchestrated in the aftermath of the 2020 election.  You can also rest assured that, armed with a veritable handbook on how to turn America into the authoritarian fascist state he longs for, Trump's sycophants and institutional toadies will exploit the Court's idiotic endorsement of l'etat, c'est moi to give him precisely what he wants.

That is the immediate effect of Monday's Supreme Court decision in Trump v. United States.

The long-term effects are even worse.

In forty-two pages of judicial sophistry, John Roberts vacated the decisions of two lower courts that had declared Trump not immune from prosecution for having orchestrated his attempted coup.  

None of this Court's usual sources provided any basis for doing so.  

The text of the Constitution does not make former presidents immune from criminal prosecution.  In fact, it provides for the exact opposite in the so-called Impeachment Clause, which states that even a president convicted by the Senate on impeachment "shall nevertheless be liable for and subject to Indictment, Trial, Judgment and Punishment, according to Law."  

Nor does history, this Court's other go-to source on all questions constitutional, support in the least any grant of immunity.  

Again, the opposite is the case.  

At the time of the founding, a number of states had constitutions that gave their executives (i.e.,governors) immunity from criminal prosecution.  The Founders, however, decided not to do so. This was not all that surprising.  The country had just won a Revolutionary War separating itself from a regime where its executive, namely, the King, was immune. The Founders were not remotely interested in resurrecting that disaster.

At this point, Roberts and his Republican-appointed colleagues should have given up the ghost, affirmed the two lower courts' denial of immunity, and allowed the case against Trump to go forward.

But they didn't.

Instead, based on a problem that does not exist . . .

They created a solution that will make things worse.

Far worse.

The non-existent problem is that criminal prosecutions of former presidents will somehow cripple the Executive Branch.  As Roberts put it, under "'the pall of potential prosecution", "the hesitation to execute the duties of his office fearlessly and fairly . . . raises 'unique risks to the effective functioning of government."

"A President inclined to take one course of action based on the public interest," he said, "may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President's official acts are routinely subject to scrutiny in criminal prosecutions," he continued, "'the independence of the Executive Branch' may be significantly impaired."

There is, however, no evidence whatsoever that this problem has ever existed.

None.

No former president has ever said or even implied that he made or hesitated to make any decision because he feared he was violating the criminal laws or would be held accountable for any putative violation once he left office.

Not Nixon for bombing Cambodia, Jefferson for the Louisiana Purchase, Jackson for the "trail of tears", Lincoln for ending habeas corpus, Reagan for Iran-Contra or Bush II for approving enhanced interrogation techniques.

Nor has any presidential historian ever found any president who deemed this a risk.

This is not because no former president has ever before been indicted. 

To the contrary, until now everyone assumed that presidents, like everyone else, were governed by the nation's criminal laws, had to follow those laws on and off the job, and could be held accountable if they violated them.  Former President Ford confirmed that understanding when he gave Richard Nixon a pardon for any crimes Nixon had committed during his presidency. And the Supreme Court said as much in Nixon v. Fitzgerald when it both carved out an immunity against charging former presidents civilly for official acts they undertook in office but clearly noted the same would not apply in criminal cases. 

To cure this non-existent problem, the Court held, presidents from this point forward will now enjoy some form of absolute or presumed immunity.

For acts within "his exclusive sphere of constitutional authority," the President will be "absolutely immune." For "official" acts outside that sphere, he will enjoy either absolute or presumed immunity. It will be absolute "unless the Government can show that applying a criminal prohibition to that act would pose no 'dangers of intrusion on the authority and functions of the Executive Branch.'"

Though this standard seems clear as stated, Roberts spends two-thirds of his opinion offering guidance on what it means and how it should be applied . . .

Making it anything but.

In fact, we are in a brave new world.

Courts will first have to determine whether an act is within a president's exclusive sphere. Assuming it isn't, they will then have to decide if the act was official or unofficial. If unofficial, there is no immunity.  If official, however, the act is presumptively immune. To overcome the presumption, the Government will then need to satisfy the no danger test.  Critically, the Court stated that "in dividing official from unofficial conduct, courts may not inquire into the President's motives."  Nor, it said. "may courts deem an action unofficial merely because it allegedly violates generally applicable law." (Later in its opinion, the Court also decided that, in this case, evidence in the nature of "official conduct" could not even be used to prove Trump's motive or mens rea.)

In support of this three-part test, Roberts notes that examples of exclusive presidential authority include the pardon power, the power to remove and supervise federal officials acting on his behalf, and the power to recognize foreign countries. Official acts, he explains, are those for which the Constitution or statutes provide authority.  Because, however, the President's "discretionary responsibilities" are broad and some acts (like "speaking to and on behalf of the American people") are official even absent specific authority, Roberts concludes that "immunity extends to the 'outer perimeter' of the President's responsibilities, covering actions so long as they are 'not manifestly or palpably beyond [his] authority'"

The indictment of Trump charges him with attempting a coup by falsely claiming he won the 2020 presidential election and then attempting to enlist the Justice Department, the Vice President,  numerous state officials and others in support of his effort to reverse the results by falsely claiming fraud, finding votes that did not exist, creating fraudulent slates of electors in a number of states, demanding that the Vice President reject legitimate electoral votes on January 6 and inciting the Capitol riot that same day to force that result.

Though the Court remands the case back to the district court to determine which parts of that indictment, if any, can move forward, its capacious definition of official acts and "no danger" test make it highly unlikely that anything will survive.  Indeed, in his ten pages of specific "guidance" on how the Court's new immunity rule might apply to the actual indictment, Roberts basically lays out a road map to immunity. 

On the indictment's charge that Trump tried to use DOJ attorneys to "convince certain States to replace their legitimate electors with Trump's fraudulent slate" -- all of which the DOJ refused to do -- the Court notes that these allegations involved Trump's official use of power. To drive the point home, Roberts spends two pages going on about the executive's authority to investigate, prioritize and  prosecute crime, and the president's "unrestricted power" to remove officials.

On the charge that Trump tried to force the Vice President to reject legitimate electoral votes, Roberts spends three plus pages laying out the Vice President's role as successor and adviser to the President. "Whenever the President and the Vice President discuss their official responsibilities," he offers, "they engage in official conduct." 

On the charge that Trump conspired to create fraudulent slates of electors, the Court said "determining" whether this was official or unofficial conduct "requires a close analysis of the indictment's extensive and interrelated allegations."  On the charge that his rally speech on January 6 and tweets beforehand incited the riot that then occurred, the Court said that this too was "factbound".

As far as I can tell, the Supreme Court has decided that Trump cannot be prosecuted for, nor can any evidence be admitted of, any of the indictment's alleged interactions between him and DOJ attorneys or between him and Pence.  To the extent his communications with state officials fall within a generic right to officially comment on federal elections, or his rally speech and tweets are outgrowths of every presidents "long recognized" use of the "bully pulpit to persuade Americans . . . in ways the President believes would advance the public interest", these acts would also be beyond the reach of the criminal law.

That Trump actually lied about the results of the election and the absence of  any outcome-determinative fraud, actually intended to remain in office despite losing, actually solicited or approved his agents' solicitation of fraudulent electoral slates to do so, actually demanded that his Vice President spearhead an 11th hour unconstitutional coup and actually encouraged his supporters to engage in a putsch . . .

Does not matter to six members of this Supreme Court.

All of whom were appointed by Republican presidents.

Five by Republicans whom the majority of Americans voted against.

Trump v. United States will go down in history as one of the four worst decisions ever made by the Supreme Court.  The other three are Dred Scott v. Sanford, Plessy v. Ferguson and Lochner v. New York. In Scott, the Court held that Congress could not ban slavery in the federal territories.  It led almost directly to the Civil War.  In Plessy, the Court bastardized the 14th Amendment by allowing the de facto re-enslavement of blacks under the legal myth of separate but equal. It basically reversed the results of the Civil War. And in Lochner, the Court turned industrial capitalism into a killing field by allowing the abuse of children under the guise of the Constitution's contracts clause. It crippled Congress' ability to regulate the profit motive run amok.

The only bright spot in this otherwise dark and dangerous moment is this:

Disastrous decisions often beget prescient dissents.  

In Plessy, there was John Marshall Harlan.

In Lochner, Oliver Wendell Holmes, Jr.

And in Trump v. United States,  there is . . .

Sonia Sotomayor.

In her eloquent dissent, Justice Sotomayor eviscerates the Chief Justice's opinion. After laying out the indictment's "stark portrait of a President desperate to stay in power," she begins: "The Court now confronts a question it has never had to answer in the Nation's history: Whether the former President enjoys immunity from federal prosecution.  The majority thinks he should," she continues, "and so it invents an atextual, ahistorical and unjustifiable immunity that puts the President above the law."

"Argument by argument," she notes, "the majority invents immunity through brute force. Under scrutiny the arguments crumble . . . [T]he majority's broad 'official acts' immunity is inconsistent with text, history and established understandings of the President's role. [I]t is deeply wrong even on its own functional terms. Next, the majority's 'core' immunity is both unnecessary and misguided. Finally, the majority's project will have disastrous consequences for the presidency and our democracy."

Sotomayor justifiably upbraids the Roberts six for their transparent hypocrisy.  

Though the majority calls for "a careful assessment of the scope of Presidential power under the Constitution," she writes, that "careful assessment does not involve the Constitution's text," which "contains no immunity from criminal prosecution."  Laying out the wealth of historical evidence refuting any notion of criminal immunity, she concludes, citing the Dobbs  decision eliminating the right to abortion and the Bruen decision establishing the right to carry a concealed weapon, "It seems history matters to this Court only when it is convenient."

Text, history and hypocrisy aside, however, the "disastrous consequences for the presidency and our democracy" form the backbone of Sotomayor's dissent.  

At base, she notes, the Court has granted absolute immunity to any official presidential act. The Court claims otherwise but the "no danger" test for overcoming presumptive immunity eliminates that possibility.  "It is hard to imagine a criminal prosecution for the President's official acts that would pose no danger of intrusion on Presidential authority in the majority's eyes," she explains, and because "any incursion on Executive power is too much" under the majority opinion, whether immunity is absolute or presumptive "hardly matters."  In fact, the imposed test "narrows the conduct considered 'unofficial' almost to a nullity." And when the majority's additional rule precluding inquiry into motive is added to the mix, "any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motive and intent, remains official and immune."

In laying out the risks the majority pretends to protect against, the Sotomayor dissent unearths the fictional world in which the majority actually resides.  In that world, the president cannot dare to be bold or "'deal fearlessly or impartially' with the duties of his office" if he is held accountable for his crimes. "If that is right," says an exasperated Sotomayor, "it is a distortion that has been shaping Presidential decision-making since the earliest days of the republic." Because, from the beginning in 1787, "every sitting president has so far believed himself under threat of criminal liability after his term in office."

It is, of course, not right. 

Presidents have not found it difficult comply with the criminal law and do their job at the same time.  No one -- save Trump -- has even been charged after he left office; the only one who came close resigned and was pardoned. Any who are (including Trump) have available the full panoply of "robust procedural protections" that make base or frivolous allegations dead on arrival. And as for serious allegations, it is hardly chilling to require that the person sworn "to take care that the laws be faithfully executed" at the very least avoid violating the ones that are crimes.

The Supreme Court has laid waste to that bedrock requirement inherent in the rule of law.  

As Sotomayor starkly warns: "The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding."

"This new official acts immunity now 'lies about like a loaded weapon' for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the nation."

"The President of the United States is the most powerful person in the country, and possibly the world. When he uses his power in any way, under the majority's reasoning, he will now be insulated from criminal prosecution."

"Orders the Navy Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune.”

"Immune. Immune, Immune."

"In every use of official power, the President is now a king above the law."

Tomorrow is the Fourth of July.

I would table the fireworks.

A laughing George III is nothing to celebrate.

ABOUT LAST NIGHT

In the famous words of Ted Lasso . . .

"Oklahoma!"

President Joe Biden and Donald Trump took to the stage at CNN's studios in Atlanta last night for what was billed as a ninety-minute debate. 

Because their past meetings, largely if not exclusively on account of Trump's incessant bullying and puerile lack of self-control, had degenerated into the political equivalent of a food fight, the network imposed strict rules.  

There was no audience for anyone to play to. Anytime either candidate was not speaking, his microphone was silenced.  Their mics were also silenced whenever either candidate exceeded the time limits imposed for answers and rebuttals.  

Neither candidate was allowed to bring notes or other materials into the proceedings.  

During the two breaks, neither of them could speak to any staff or advisers.

The debate was hosted by two respected journalists, Dana Bash and Jake Tapper. They only asked questions.  And while they were excellent in demanding actual answers when none were given, they did not fact-check either candidate's responses.

If all of this was designed to restrain Trump, it worked but only to a very limited extent.  

He was stopped from interrupting and talking over anyone, which in the past had literally made the proceedings unintelligible. He was not, however, stopped from lying or from engaging in the mindless word salad that characterizes all of his extemporaneous riffs.

In the aftermath of the debate, CNN's own fact-checker, Daniel Dale, listed Trump's lies.  As Heather Cox Richardson pointed out early this morning in her Letters From An American, it took Dale three minutes to get through the list.

The list of lies was mind-boggling.

As CNN reported, "Trump made more than 30 false claims at the Thursday debate."  His "repeat falsehoods included his assertions that some Democratic-led states allow babies to be executed after birth, that  every legal scholar and everybody in general wanted Roe v. Wade overturned, that there were no terror attacks during his presidency, that Iran didn't fund terrorist groups during his presidency, that the U.S. has provided more aid to Ukraine than Europe has, that Biden for years referred to Black people as 'super predators,' that Biden is planning to quadruple people's taxes, that then-House Speaker Nancy Pelosi turned down 10,000 National Guard troops for the U.S. Capitol on January 6, 2021, that Americans don't pay the cost of tariffs, that he is the president who got the Veterans Choice program through Congress, and that fraud marred the 2020 election."

Concluding, CNN finished its report by noting that "Trump also added some new false claims, such as his assertions that the U.S. currently has its biggest budget deficit and its biggest trade deficit with China.  Both records occurred under Trump."

As Cox Richardson explained, the lies "went on and on, and that was the point.  This was not a debate.  It was Trump using a technique that actually has a formal name, the Gish gallop . . . It's a rhetorical technique in which someone throws out a fast string of lies, non-sequiturs, and specious argument, so many that it is impossible to fact-check or rebut them in the amount of time it took to say them.  Trying to figure out how to respond makes the opponent look confused, because they don't know where to start grappling with the flood that has just hit them. It is a form of gaslighting, and it is especially effective on someone with a stutter." Heather noted that Trump did the same thing to Biden in 2020. Ironically, however, "the lack of muting on the mics" then reduced Biden "to simply saying: 'Will you shut up, man'", while killing the mics last night "made the technique more effective."

Cox Richardson wrote that the Gish gallop can be "combat[ted] . . . by calling it out for what it is." 

I, however, have my doubts. 

Last night, my friend and  high school debate coach wrote that "As a reasonably successful high school debater more than five decades ago, I learned a hard reality. If you are devoted to arguing the facts  and reality and your opponent is willing to employ either false information or misconstrued data against your position, it is almost impossible to win an argument.  The great British linguist and theoretician, Paul Grice, established the rule that, in human communication, we normally expect a speaker to be expressing what is true (the first of the Grecian maxims of communication)."

It is, of course, almost impossible for anyone to go into any interaction with Trump expecting him to tell the truth, and it was not the case that Biden did so last night.  And though Cox Richardson thinks the Gish gallop was effective against Biden because he "retreated to trying to give three pieces of evidence that established his own credentials on the point at hand" rather than calling Trump out, the truth is that Biden often was . . .

Well . . .

Lost.  

So . . .

Oklahoma!

What should we do?

Here's my plan.

First, Joe Biden was bad last night. 

Admit it.  

And because a decent enough number of Americans think he is too old to complete another four years as President and may not have either the mental or physical stamina to do so, those of us who support him must confront this issue head on and refute it.  

Last night, Trump challenged Biden to take a cognitive test.  

We supporters should demand more than that.  

President Biden should publicly commit to immediately undergoing a full medical evaluation by an independent physician that includes tests of his physical stamina and mental acuity. If that evaluation does not clear him for the duty he seeks, he should announce he is not running for reelection and free all the elected delegates to choose a new nominee at the Democratic Party's August convention. 

If the shoe were on the other foot, would Trump or the Republican Party do this?

Not in a hundred years.

But we are different from them.

We aren't the party that is about to nominate a convicted felon, adjudicated rapist, pathological liar and coup plotting fascist bent on turning America into a 21st century version of what Germany became in the 1930s.

We are better than them.

They run away from the truth.

We confront it.

At the end of the day, Joe Biden has to be fit for duty.  

This does not mean he must exhibit the energy of a forty-year-old or become a poster child for prevagen.  

Performing as president does not require and is not the work of a soloist. It requires a team.  

One of the major reasons Trump cannot be president is that almost all the competent adults who saved him from himself in his first term have abandoned him this time. The list is long and includes most of his former Cabinet officials, two of his former National Security advisers, one former chief of staff and the former Vice President. The team he intends to put together in 2025 will be a rogue's gallery of sycophants and incompetents and his blueprint for governing will involve retribution, recrimination and revenge.

That is not a problem Biden faces at any level.

His Cabinet is first rate. 

Blinken, Austin, Yellin, Buttigieg, Raimondo, Vilsack, Granholm et al. are all superb.  Vice President Harris is an effective spokesperson, excellent communicator and a fighter. Together, this group is more than able -- and much more able than any group Trump can or  will put together -- to roll up it sleeves and continue to help this old but effective man be the continuing presidential success he has demonstrated he already is.

But first things first.

Oklahoma.

THE EVOLUTION OF A CULTURAL FELONY

Late in the afternoon on May 30, a New York jury found Donald Trump guilty of thirty-four counts of falsifying business records. 

At that time, in what was clearly a minority view, I thought the reasons not to comment on the verdict easily exceeded those for doing so.

The charge itself -- falsifying business records -- is ordinarily a misdemeanor.  It can be turned into a felony, though it rarely is, if the false records are generated with an intent to defraud that includes an intent to commit another crime or to aid in or conceal the commission of another crime. 

In this case, Manhattan's District Attorney Alvin Bragg alleged that the other crime was the violation of section 17-152 of New York's Election Law.  That section makes it a crime for two or more persons to conspire "to promote . . . the election of any person to public office by unlawful means".  The DA claimed -- and the judge agreed -- that the unlawful means could be "(1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) falsification of other business records; or (3) a violation of tax law."  

Jury verdicts in criminal cases must be unanimous.  This means that the twelve jurors must all agree on a verdict of either guilty or not guilty. In addition, to reach a guilty verdict, the jury must unanimously find beyond a reasonable doubt that the defendant committed each element of the crime.  

Here, that meant the jury was  required to unanimously find that Trump conspired to falsify records and did so with the intent to promote his election by unlawful means.

Critically, however, the jury in this case was not required to agree on those unlawful means.  So long as all twelve of them thought Trump had committed at least one of the three illegal acts alleged to constitute the unlawful means, that was sufficient.  Some may have thought he conspired to falsify records with the intent to promote his election by unlawful means by violating FECA; others may have thought he did so by falsifying other records or by violating the tax laws. 

Once you take out the sex and Trump, the combination of which turned it into a prurient daily double, the case was actually a boring one.  

There were thirty four "records" -- either checks signed by Trump, invoices from Michael Cohen or ledger entries in the Trump organization's books and records -- the jury had to conclude were false.  And then it had to further conclude that each record had been created as part of a conspiracy to promote Trump's election by unlawful means.  

The evidence of the first was pretty much irrefutable. The checks, invoices and ledger entries were called payments for legal fees where no legal services had been provided. As to the second, the DA was able to prove that, in the wake of Access Hollywood's  infamous "grab 'em by the p**y" disclosure, Trump and his campaign were intensely concerned about any other adverse stories surfacing, which ultimately resulted in Cohen paying off Stormy Daniels and Trump reimbursing the payment.

The problem in the case was whether the pay-off violated New York's election law. 

To do so, the payment (i) had to be for the purpose of promoting Trump's election and (ii) had to itself be made unlawfully. 

The jury obviously concluded it had. 

The first conclusion was hardly surprising.  

Before his 2016 campaign even started, Trump cut a deal with the National Enquirer's  David Pecker, who agreed to warn the campaign of any bad stories in the offing. As part of that deal, the National Enquirer's parent company actually paid for two stories and then did not publish them, a practice known as "catch and kill". Also as part of that deal, Pecker pressed Trump for reimbursement. Because he had already advanced $180,000 for two stories, Pecker refused to fund the catch and kill of the Daniel's story. At Trump's insistence, Cohen then stepped in to kill that story by paying Daniels himself in exchange for her non-disclosure agreement (NDA).

The second conclusion, however, was problematic.

Because . . .

We have no idea whether the jury agreed on what made the payment to Daniels illegal. 

Was the payment a violation of FECA, made in a way that resulted in the falsification of other records, or made in a way that violated tax law? The jurors were free to choose any of these bases and did not have to agree on that choice.

It's possible, therefore,  that Trump was found guilty of a misdemeanor turned felony based on crimes a less than unanimous group of jurors concluded he had committed.  And as a result, it's also possible the conviction was unconstitutional.  Unanimity has always been required in federal criminal trials, and in 2020 the Supreme Court held it was required in state criminal trials as well. Whether that rule was violated here depends largely on whether the required unanimity on an element of a crime can be satisfied where that element -- unlawful means -- is itself satisfied via a menu of possible illegalities, no one of which must be found unanimously.

Following each day of his trial, Trump headed for the media just outside the courtroom.  

Before the cameras, he repeatedly called the judge corrupt and claimed the process was rigged.  

Though he embraced his right not to do so on the witness stand under oath, his courtside comments also repeatedly proclaimed his absolute innocence. 

Much of what Trumps says, on most of the days he says it, turns out to be garbage.  Childish rants at best. Pathological lies at worst.  Following his conviction, however, one thing he said was absolutely true.

"This is not over."

He was right

He has grounds for appeal here and will undoubtedly pursue them.

At that point, the chattering should have ceased.

Because . . .

There was really no news there anymore.

OK, Trump is the first ex-president ever convicted of  crime.  

Add it to his list of firsts.  

The first ex-president indicted on ninety-one criminal counts in four separate jurisdictions. The first president to attempt a coup in the wake of his defeat at the polls.  The first president  impeached twice. The first ex-president adjudicated a rapist. 

Even the salacious stuff was vintage Trump.  Sex with a porn star followed by a blanket denial no one takes seriously.  We always knew he was a sleaze. 

The point is there was not much here that was new. 

But then came MAGA's unhinged reaction.  

And the reaction of its cowardly following.

And all the reasons for not commenting . . . 

Vanished.

Whatever appellate issues exist, the notion that Trump's trial was anything other than a classic example of the rule of law at work is complete nonsense. 

The indictment was issued by a grand jury.  

A motion to dismiss the indictment was denied and the denial was upheld on appeal.  

A jury was chosen randomly. 

The trial court judge bent over backwards in litigating and then ruling on Trump's on-going contemptuous conduct. Any other defendant who behaved as Trump had would have been jailed.  

Trump's lawyers were vigorous in their cross examination of the DA's witnesses. No one listening or watching -- and certainly no one on the jury -- could have failed to understand that the chief witness against Trump -- Michael Cohen -- was a convicted felon and a serial liar.  No one listening or watching could have missed the fact that the porn star was cashing in on her new-found celebrity.

At the end of the day, the documents -- and two Trump loyalists -- did Trump in.  

The accountants' true up as much as anything else proved that Cohen was telling the truth.  The whole legal fees front was a complete fraud.  And David Pecker and Hope Hicks helped seal Trump's fate by making it clear that a plan was in place to kill bad stories and that plan went into overdrive after the Access Hollywood tape.

All of this, however, is lost on MAGA's acolytes.

Texas Gov. Greg Abbott called People v. Trump  "a sham show trial" in "a Kangaroo Court" by "a sitting US president weaponizing our justice system against a political opponent."  Speaker Mike Johnson called the trial "shameful".  Ohio's JD Vance said it was "a disgrace to the judicial system." Ted Cruz called it "nothing more than political persecution." Marco Rubio out did them all.  For him, "what happened [was] similar to what I grew up hearing about in Cuba."  Trump's senior aide Stephen Miller demanded that "every facet of Republican Party politics and power . . . go toe-to-toe with Marxism and beat these communists." To make himself clear, Miller tweeted "Is every Republican state AG opening investigations into voter fraud right now?  Is every House committee . . . using its subpoena power in every way it needs to right now?" 

To call these statements unhinged is an understatement.

They are irresponsible.

On the one hand, they are false.

Joe Biden has weaponized nothing.  People v. Trump was a state case. So is the Georgia election case against Trump. Biden had nothing to do with either of them. The two federal cases have been brought by a Special Counsel from whom he is insulated by statute; that counsel can only be fired by the Attorney General and then only for cause. The one case, of course, in which Biden has an interest is the current federal prosecution of his son in Delaware for illegal possession of a firearm. He could have probably stopped it by just appointing a different US Attorney. But he didn't.

On the other, the rants of Abbott, Vance, Cruz, Rubio and Miller are dangerous.

People v. Trump was rightly considered the least important of the four cases brought against Trump. At base, it was about the tawdry cover-up of sleazy sex by a foul-mouthed fraud who routinely lies for a living. It wasn't in the same league as  the Georgia or DC election cases, which charge Trump with attempting a coup, or the Florida federal case, which charges him with illegally retaining national defense secrets. 

In support of Donald Trump's on-going effort to destroy the rule of law, however, the MAGA-fied GOP has upended all of that. 

Their rants literally mean no politician can be fairly tried in any jurisdiction that opposes him. No judge in that jurisdiction can preside.  No jury can be impaneled.  By definition, any such trial would be a sham, any such tribunal a "Kangaroo Court" where "proceedings deviate so far from accepted legal norms that they can no longer be considered fair or just."  

The idiocy inherent in such a construct is transparent.

No Democrat could ever be tried in a red state.

No Republican in a blue one.

Any that were would be living in Marco Rubio's childhood Cuba.

Presumably with all the "communists" Stephen Miller is so anxious to eliminate.

Nice job MAGA.

Alvin Bragg convinced a jury that Trump's misdemeanor was a legal felony.

And you've now turned that into a cultural one as well.