“How can ‘traditional’ Republicans make their voices heard?”

The Washington Post has published several responses to the op-ed written by three GOP ex-senators: Danforth, Cohen, and Simpson. In their op-ed, they explained that they are creating a new organization called “Our Republican Legacy” inside the Republican Party. The premise of their endeavor, they said, is their belief that “traditional Republicanism, though currently in eclipse, is no more extinct than the sun was over portions of the country on April 8.” Their plan is for their new organization to “facilitate” the “expeditious return” of old-guard Republicans.

One of the responses to this op-ed that the Post published was mine. My point was that these three ex-senators, while laudable in their motives, are mistaken if they think their “traditional Republicanism” can make a “comeback” without electoral reform along the lines that Eric Maskin and I have been advocating. I cite the examples of Rob Portman and Matt Dolan–their kind of Republican in Ohio–as unable to compete under the existing electoral system, even though the median voter in Ohio would prefer them to the MAGA candidates, like J.D. Vance and Bernie Moreno, that emerge as the nominees of MAGA-dominated Republican primaries. I also cite Nikki Haley’s inability to prevail in this year’s Republican presidential primary even though she would beat either Biden or Trump head-to-head. If traditional Republicans like these three ex-senators don’t learn to embrace the electoral principles of Condorcet, upon whose insights Eric Maskin and I rely, they will become extinct like dinosaurs–leaving Americans only Democrats and MAGA candidates from which to choose.

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“Ohio lawmakers won’t pass Biden ballot fix, House speaker says”

Cleveland.com:

If President Joe Biden is going to make it on the ballot in Ohio, it won’t be because of the Republican-controlled state legislature, according to Ohio House Speaker Jason Stephens.

Stephens told reporters on Tuesday the push to fix the state law that’s posing a barrier for the Democratic president has stalled out, even though Republican leaders in both the House and Senate, where the GOP holds a supermajority, ostensibly have said they’ve wanted to pass something.

SOS LaRose warns Biden campaign.

Sounds like there will have to be a lawsuit or a tweaking of the DNC rules to formally nominate Biden earlier.

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“Rudy Giuliani and 10 others plead not guilty to charges of conspiring to overturn the 2020 presidential election in Arizona”

CNN:

Rudy Giuliani and 10 others pleaded not guilty in an Arizona court Tuesday to charges of allegedly conspiring to overturn the 2020 presidential election results.

The former New York mayor was also ordered to post a $10,000 bond after he ducked efforts by the state to serve him with a summons over the past week.

Giuliani was served Friday in Palm Beach, Florida, at his 80th birthday bash held by a GOP operative. Arizona prosecutors spent weeks trying to track down Giuliani and eventually found him based on some of his podcasts.

A grand jury in Arizona handed up indictments last month charging over a dozen Donald Trump allies for their efforts to overturn his 2020 election loss, including the fake electors and several individuals connected to his campaign.

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“A Hidden Variable in the Presidential Race: Fears of ‘Trump Forever’”

Bloomberg Businessweek:

As the rematch between Joe Biden and Donald Trump draws nearer, political professionals are detecting an unusual concern among some undecided voters: that if Trump returns to the White House, he’ll refuse to step down when his term is up.

Seiji Carpenter, vice president at David Binder Research, noticed this fear in early April while conducting focus groups of people who had voted for Biden in 2020 but became disillusioned and were considering switching sides. “We were talking to Latino men and Asian American-Pacific Islander women in battleground states,” Carpenter recalls, “and they went straight to the issue of, what if Trump won’t give up power?”

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With Both Sides Resting in Trump Hush Money Trial, Whether Donald Trump Committed Felonies is Uncertain, Likely Depending on the Jury Instructions and How Appeals Courts Will Interpret the Law

Both sides have now rested in the Donald Trump hush money trial in New York. The parties will fight over jury instructions and then there will be closing arguments beginning right after Memorial Day, on May 28. Having expressed some serious skepticism about this case before the trial, some have asked if the evidence at trial has changed my view. I attended a morning of trial in person and followed the news coverage, although I have not read through all the trial transcripts. So my answer is somewhat hedged, but in a word, my views have not changed. I’d summarize them like this:

There is ample evidence that Donald Trump committed misdemeanors by falsifying business records under New York law. He listed payments to his former lawyer Michael Cohen as legal expenses when they were instead payments to keep Stormy Daniels quiet about an alleged sexual liaison. If the case were just this, jail time for a first time offender would almost certainly be off the table, and this indeed could have ended with a whimper.

As I explained in my LA Times piece, to make this into a felony, Trump had to be falsifying the records to further or conceal another crime. From the beginning, the NY district attorney was not that forthcoming about what those other crimes are. Eventually, the DA settled on three: violations of federal campaign finance law; a state election law, and a state tax law. The prosecutors’ emphasis has been on violation of federal campaign finance law.

There are both legal and factual issues related to the federal campaign finance law charges. Legal questions include whether these payments were indeed campaign related; it’s not a violation of Cohen paid Trump’s personal expenses. If they were campaign related, then Cohen potentially made an excessive in-kind contribution to Trump’s campaign when he paid Daniels, and Trump in funneling money to him facilitated a conduit contribution, potentially using impermissible funds to do so. And the information was not disclosed. An appeals court could rule as a matter of law that these expenses cannot be considered campaign related. After all, imagine if the payments were reported: no doubt someone would file a complaint stating that paying off someone to keep quiet about sex cannot be an expense that a campaign can pay for.

There are also issues of federal preemption and supremacy. Some of these were ruled on by a federal judge when Trump tried to remove the case to federal court and Trump did not appeal. This raises the question of whether he’s waived his right to keep fighting those issues. In essence, the question is whether you can take a federal campaign finance violation and make it a crime (or an enhancement of a crime) in state court.

Factually, there are questions as to Donald Trump’s state of mind, about which there was mostly the testimony of Cohen. For a federal campaign finance law violation to be a crime, one has to wilfully violate the law. It’s not enough to be careless about it. Was there enough evidence of what Trump was thinking about if he was violating federal campaign finance laws? That’s not quite the same as whether he was doing it to help his election chances. He could have thought that without knowing he was violating the law. (The judge excluded Trump’s statements from 1999 on Larry King that he was very familiar with campaign finance laws.)

Trump’s lawyers will likely argue in closing that the payments were not campaign related expenses but personal, aimed at his marriage. That may be a fact question for the jury, depending on what shakes out in the jury instructions. My understanding is that the judge has not been too focused on jury instructions, and that’s a potential big problem. Incorrect jury instructions are a major ground for reversals on appeal, because if the jury is told what the law is incorrectly, courts cannot defer to their determinations of guilt under an incorrect standard. The exclusion of Brad Smith’s testimony about FEC practices (such as when the payment to Daniels would have been reported—if after the election, then this could not have mattered for affecting the outcome of the election) could also be grounds for appeal.

There’s been much less attention paid to the state election law claim. As I’ve written, no one seems to be prosecuted under this New York law. This raises issues of potential selective prosecution. And more importantly, no one knows how appeals courts will say this New York law could be violated and whether what Trump did qualifies. Can violation of a federal campaign finance law constitute a state election law violation? Another serious issue on appeal.

I cannot speak to the state tax law violations, but we’ve heard very little about them in the prosecution’s case. Will those claims even go to the jury? What will the jury instructions there look like?

Trump could well be convicted, depending on the jury instructions and how the jury reads the evidence. That conviction could well be overturned on legal grounds on appeal, eliminating the felony aspects of the charges (potentially for a new trial), leaving only misdemeanors. Given the normal pace of appeals, this is not likely to be resolved before the election. But if Trump is convicted, watch him argue for a fast track appeal, even as he has slow walked the important election interference case against him in DC. If Trump gets a reversal before the election, could that give him an electoral boost? And we know what Trump would say if he loses election and later gets a reversal on appeal: election interference.

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