Get out your popcorn out for this one, which will end up with many matters to be decided by the judiciary.

Jim Jordan will be investigating the Jan 6th investigation – of which he is almost certainly a target. Should an FBI officer be forced to reveal details of an investigation to the guy he’s investigating? The common sense answer is obvious, but the legal answer is not.

Furthermore, there could be a battle of subpoenas. Jordan could be issuing subpoenas to the investigators while they are issuing subpoenas to him to testify about his actions on and leading up to January 6th. The DoJ will obviously challenge any congressional subpoena in court if the subpoena interferes with a criminal investigation, and the Supreme Court will probably have to sort it out eventually. The congressman, on the other hand, can’t ignore a grand jury subpoena. Judges take those very seriously. In the most extreme example, it could actually end up with Jordan questioning a guy one day, then getting arrested by the same guy the next day!

The current head count in the Senate is Democrats 48, Republicans 49, with three undecided. That means whichever side wins two of the last three will control the Senate.

  • In this particular election neither candidate will win Georgia, which requires a run-off when no candidate reaches 50%.
  • While it is too early to call Nevada and Arizona, it appears that they will split, which means everything may hinge on the Georgia run-off.

(If either side wins both Arizona and Nevada, that side will control the Senate, and the Georgia run-off will not affect the balance.)

538 now shows that the GOP is slightly more likely to capture the Senate. The forecast model moved the GOP from “51 wins per 100 simulations” to 55/100.

538 now shows Fetterman ahead by half a percent in Pennsylvania. No forecast or poll comes close to that kind of precision so the bottom line is – we know nothing.

Georgia is in precisely the same boat. 538 shows Walker up by a tenth of a point. There is a key distinction between Georgia and the other states in that a win on Tuesday does not mean an automatic Senate seat unless the winner exceeds 50%. Given a third party candidate and a virtual tie between the major party candidates, a December run-off seems like a strong possibility.

538 still has Nevada in the toss-up category, but it seems increasingly likely that Laxalt will win. 538 shows him winning 59/100 simulations, versus 41 for the Democrat. The problem here is that Sen. Masto (birth name Catherine Cortez), despite being Hispanic through her father’s side, has lost Hispanic support. In September she had a 19-point lead among Hispanic voters, and she now faces a 13-point deficit. A Laxalt win will most likely mean that the Democrats have to win both Pennsylvania and Georgia.

Maybe.

Maybe not.

We may not know which party will control the Senate until December.

The problem is that Tuesday’s winner in Georgia doesn’t necessarily get a Senate seat. Georgia law requires a run-off if neither candidate gets 50%, and that is a distinct possibility because Libertarian Chase Oliver has about 5% support and the other two guys are about tied.

People sometimes abandon third-party candidates on election day, but if a run-off is required, and if the Republicans are ahead 50-49 for the other seats, control of the Senate could all hinge on that one state, which would be the only one voting at that time! That would bring a three-ring circus and total chaos to Georgia.

Again.

Isn’t this where we came in?

Moreover, Brian Kemp is expected to clear the 50% hurdle in the gubernatorial election, so all the media focus would be on the senatorial contest. If that happens, it would mean another annoying month of political bullshit for everyone. Of course it won’t be anywhere near as annoying for us as it will be for Georgia residents, who will be bombarded with every possible form of Walker and Warnock advertising for another month. That should fill the coffers of all the media companies in Georgia. With so much at stake, the major parties will be competing to buy up every TV spot, every radio spot, every billboard, basically every bit of available advertising.

That’s a funny headline from the Onion, but the ancient Iowan seems safe for re-election to an eighth term six-year term …

… assuming he lives one more week until election day, which is probably an even-money bet.

Grassley is 89 years old and will probably be the president pro tempore of the Senate if the GOP wins. It is an honor usually accorded the senior senator of the majority party, and a position Grassley previously held. That’s largely an honorary position, but we often forget that it stands third in line to assume the Presidency behind the VP and the Speaker of the House. The current order of succession is Kamala Harris, Nancy Pelosi, Patrick Leahy. If the GOP takes control of both houses, the order of succession would likely be Kamala Harris, Kevin McCarthy, Chuck Grassley. I’m going to go out on a limb and say that’s not really our all-star team.

Grassley would not be an automatic selection and there are no constitutional mandates to guide the selection. The choice of the senior senator of the majority party as pro tem is merely a tradition, not a requirement. The constitution does not even require the position to be filled by a member of that chamber. As senate.gov notes, “Although the Constitution does not specify who can serve as president pro tempore, the Senate has always elected one of its members to serve in this position.”

The same is true of the Speaker of the House. The members can vote for absolutely anyone. To make a radical example, a GOP-controlled House could elect Donald Trump as Speaker, which would give him a tremendous amount of power over investigations of himself and his enemies, as well as great power over the government’s purse strings. (Despite the fact that we have lionized and even apotheosized the Founding Fathers, they could not possibly have foreseen every possible pitfall of democracy.)

Speaking of ancient politicians, why did we start to elect these old geezers?

Joe Biden is the oldest man ever to sit in the oval office, and he assumed that title on the day he took office. Biden was already older at the beginning of his term than Reagan was at the end of his.

At 78 years and 61 days, he was by far the oldest man ever inaugurated, breaking the previous record by 7 1/2 years.

but …

Should Donald Trump get elected in 2024, he will break the record for oldest inaugurated, and should he live through that term he will then break the record for oldest ever to hold the office!

(And of course Biden would also break his own records should he run again and win.)

There are not many up-and-coming young political superstars. Ron DeSantis is 44, Buttigieg is 40. Behind them the ranks are thin.

It was a bad day for Trump. It was a far worse day for Judge Cannon in Florida. The appeals court ruled that every element of Judge Cannon’s ruling was incorrect, and totally agreed with the DoJ in every particular.

Trump’s declassification argument was ruled (1) unproved; and (2) even if it had been proved, irrelevant. It is irrelevant for two reasons: (1) declassification does not impact the content of the documents, and none of the cited criminal statutes are affected by whether any documents are classified; (2) even if everything was declassified, the documents would still belong to the United States, not to Trump, and the government agents therefore had the right, and obligation, to seize them.

The appeal was reviewed by a three-judge panel, two of whom were Trump appointees.

There is another issue with declassification that nobody has mentioned but (surprisingly) Bill Barr. If Trump did in fact declassify some documents that include material that needs to be secret for the security of the United States, thus making them accessible to anyone through the freedom of information act, that would be an act of recklessness more dangerous than anything else Trump has ever done.

To make an extreme example, suppose some documents showed that Al-Qaeda was developing a nuclear weapon, based on a tip by our spy within Al Qaeda. If declassification allowed Al-Qaeda to find out about the spy and to move their base of operations, and thus to continue the operation while eliminating our eyes on it, that would be providing aid and comfort to an enemy of the United States.

Declassifying that kind of information would meet the precise constitutional definition of treason. If I were in his shoes, I’d be less concerned with a charge of mishandling some papers than a charge of treason. I think it would be wise of him to drop that “I declassified everything” argument.

But then again, when has he ever been wise?

Note: The fact that somebody has the POWER to do something does not automatically make it legal. A President of the United States has pretty much unlimited power to grant federal pardons, but if he offered to grant pardons for ten million dollars each, it would still be corrupt and would be prosecuted (after the President left office) under the RICO and other statutes.

Similarly, the Vice-President has the POWER to break a tie in the Senate, but if she were to do so in return for a massive kickback from the Pharma companies, it would be criminal.

The same logic applies to declassification. If the Presidential declassification of a necessarily secret document provides aid and comfort to America’s enemies … well, he has the POWER to do that, but it could be an act of treason.

(Those are hypothetical arguments. I have no idea what is actually in the secret papers because … well, mainly because if a schmuck like me knew, they wouldn’t be very secret, would they?)

HUMOROUS SIDEBAR: I assume that back in his school days, Trump’s excuse for not having his homework was that he did it in his head. Today he said there is no documentation of declassification because he did it in his head!

“If you’re the president of the United States, you can declassify just by saying, ‘It’s declassified.’ Even by thinking about it.”

He also speculated that the FBI may have been looking in his desk for the missing Hilary Clinton e-mails, a speculation which is utterly demented even by his own lofty standards.


The Presidential Records Act is clear in one way: Trump absolutely does not have the right to retain any of his Presidential records in his personal possession. In that regard at least, there is no debate. The rest of the issues are complicated.

In simplest terms, while Trump clearly does not have the right to possess the documents, he may be able to keep most people from accessing them.

The archivist can’t just allow public access to records without warning. If he is to make a previously undisclosed document public, he must make certain filings to that effect, including a notice to the affected former President, who has a certain time period to file his claims of privilege.

However …

The current President is the one who determines whether to uphold a former President’s claim. Executive privilege is held by the current executive branch, not by a private citizen, so Trump’s claim of privilege is valid only if Biden upholds it, which he might well do if it involves secret matters of national security, but which he obviously would not do if it involves Trump committing or conspiring to commit a crime. In between those two clear-cut extremes, there may be many shades of gray.

However …

Biden’s decision can be appealed, and the archivist can be forbidden by a court order from making the documents public.

(c)

(1) If a claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) is asserted under subsection (b) by a former President, the Archivist shall consult with the incumbent President, as soon as practicable during the period specified in paragraph (2)(A), to determine whether the incumbent President will uphold the claim asserted by the former President.

(2) Not later than the end of the 30-day period beginning on the date of which the Archivist receives notification from a former President on the assertion of a claim of constitutionally based privilege against disclosure, the Archivist shall provide notice to the former President and the public of the decision of the incumbent President under paragraph (1) regarding the claim.

If the incumbent President determines not to uphold the claim of privilege asserted by the former President, the Archivist shall release the Presidential record subject to the claim at the end of the 90-day period beginning on the date on which the Archivist received notification of the claim, unless otherwise directed by a court order in an action initiated by the former President.

However …

Even if a former President’s claims of privilege are upheld, his records can still be accessed as evidence in a criminal proceeding (subject to a court order), and those records are always available to the current President, since he needs them to conduct the duties of his office. (Most obviously, the current President can’t know whether to uphold a predecessor’s claim of privilege on a specific document if he doesn’t know what is in the document.)

In summary, there is no procedure that will allow Trump to regain possession of the documents, and there is no procedure that will allow Trump to shelter the documents from Biden’s eyes, but Trump may be able to keep Congress, the press and the public from access to those documents, subject to review by Biden and the courts.

“Sean Hannity claims that Trump being sent to jail would not necessarily be a road block of any kind in terms of him deciding to run for president in 2024.”

Interesting point and basically correct.

Eugene V. Debs was in a penitentiary, serving a ten-year sentence, when he lost the 1920 presidential election.

Professor Laurence Tribe of Harvard Law, a pre-eminent constitutional scholar, has pointed out that Trump could run and even govern from his cell, quipping that Trump could even deliver the State of the Union address ‘via Zoom while wearing orange prison garb.’” Other legal scholars seem to be in unanimous agreement.

The original Constitution, amended by the 14th and 25th Amendments, covers the qualifications for the office of President, as well as the reasons and procedures for removing him or her. The bottom line is this: Political office is the one job where the candidate is not required to have any employment-related qualifications. You don’t need an education. You don’t need to be intelligent. You don’t need to be sane. You don’t need a clean criminal record. You can literally be in jail. As long as you will turn 35 before assuming office, have lived in the country for at least 14 years, and are a native-born citizen, you’re golden to be President as long as you win the electoral college. Basically, the President of the USA has a lower bar to clear than a KwikStop night clerk.

The 14th amendment does add another requirement:

No person shall hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.

So Trump could be disqualified if he is convicted of that specific crime.

Some liberals have quoted 18 U.S. Code § 2071, subsection b, to say that Trump could be disqualified for mishandling the documents sought in the Mar-a-Lago raid, to wit:

Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.

While it is technically correct that Trump could have violated this law, and that a conviction would disqualify him under the law’s terms, that paragraph is clearly unconstitutional. If Trump were convicted of that and wanted to run for President again, he would petition the courts, and the Supreme Court would allow him to run without even debating it. The Constitution specifies the requirements to install or remove a President, and the Congress can’t declare new procedures on its own. That’s obviously a violation of the separation of powers, but over and above that it’s just plain silly. If the Congress had unchallenged power to establish new requirements for the Presidency, today’s Democrats could write a new law disqualifying anyone who was over 180 pounds. Such shenanigans are unconstitutional, and the Constitution itself is difficult to amend.

“The former vice president and other prominent Republicans are not only praising the end of Roe v. Wade but signaling bigger plans to strip women of their rights”

I don’t doubt that he sincerely believes this to be right, but there is more than his moral conviction behind this public declaration. In pursuing the 2024 nomination, Pence is looking for a strategic differentiation from Trump and DeSantis, and this is an obvious appeal to the powerful evangelical base of the conservative movement.

Given that conservatives are feeling their oats because of the current configuration of the Supremes, many are wondering which other “unenumerated rights” may be threatened because they are not specifically mentioned in the Constitution.

Clarence Thomas seems to have his sights set on other cases involving the right to privacy:

  • The right to contraception that the court set out in 1965 in Griswold v. Connecticut.
  • The court’s 2003 decision in Lawrence v. Texas that the Constitution prevents states from criminalizing private homosexual conduct
  • The court’s declaration in Obergefell v. Hodges (2015) that gay individuals may marry the person of their choosing.

Thomas’s interest in Obergefell is an especially interesting one, since a direct precedent of that decision is Loving v. Virginia (1967), in which the court struck down Virginia’s ban on interracial marriage. In Obergefell, the Supreme Court invoked Loving, among other cases, as precedent for its holding that states are required to allow people to marry whom they choose, under both the Equal Protection Clause and the Due Process Clause.

Thomas is a black person married to a white person – the very situation that led to the conviction of the Lovings, which was overturned by the decision of the Supremes! If Loving were to be challenged, would Thomas have to recuse himself?

——————

Yes, that’s right. It seems impossible to believe, even for those of us who have lived through all the turbulent subsequent years, but as recently as when I was in college, Virginia had a law forbidding interracial marriage.

Trump’s personal vendetta against Brian Kemp will have to wait for another day. Kemp tripled Perdue’s vote count – and then some – despite Trump’s whole-hearted opposition! Kemp won every county in the state.

The Georgia gubernatorial election will pit two of Trump’s mortal enemies in opposition. (Kemp vs Stacy Abrams) I have to think he will abstain from that choice. That’d be like Superman making a choice between Luthor and Brainiac.

Nearly 60 per cent of US voters would back independent candidate over Biden or Trump

Ross Perot made the mistake of being born too early and having to run against two fairly popular candidates. If he were alive now, he could probably beat these two! Come to think of it, I don’t think there is anything in the Constitution that requires the candidate to be alive.

Speaking of not being alive … I don’t remember how to do actuarial calculations, but I wonder about the odds that both Biden and Trump will be alive in November, 2024. They are both elderly. Biden looks more feeble every day, and Trump is obese. That would be an interesting prop bet for those online gambling sites.

You political junkies know how important this was. The future of Ukraine, the future of NATO, and maybe even the future of the European Union hung in the balance. Macron’s opponent is a pro-Putin right-winger.

He did win by a comfortable 16-17 points or so, but consider this: (1) he defeated the same woman by 32 points the last time they faced off; (2) 41% of the French people voted for a pro-Putin candidate during a Putin-ordered war. We live in troubled times.

I can’t see how this position could be in his interest.

OK, let’s say he’s right.

Now let’s assume Trump runs against Kamala Harris in 2024 and beats her fair and square.

According to his theory, barring any new legislation to the contrary, Vice-President Kamala Harris has the authority to reject any slate of electors she has any question about, accepting instead alternate electors beholden to her, thus installing herself as President!

(That’s a pretty sweet authority – essentially the right of any party to hold power forever!)

There has been a lot of talk about sanctions against Russia for a Ukrainian invasion, and what Russia may do in rebuttal. I have read a lot about how the Russians may engage in monumental hacking attacks, or how they may cut off Europe’s critical fuel supplies.

What I have not read is this: Russia and its evil half-brother Kazakhstan supply 38% of America’s uranium. Uzbekistan, where my family comes from, is not as subservient to Russia, but they would have to comply if Russia made them an offer they can’t refuse, and they supply another 8% of America’s needs. All told, that’s nearly half of our uranium that Russia can control if it chooses to.

The United States has 56 nuclear power plants supplying power to 28 different states. Together those plants supply about a fifth of all power in the United States. If Russia and Kazakhstan were to impose an embargo on the sale of Uranium to the USA, it would have a massive impact on energy production. America’s allies, notably Australia and Canada, have substantial uranium resources, but can’t immediately supplant the supply from Russia and its allies. Similarly, nuclear power can eventually be replaced by other forms of energy, but not overnight. If Russia decided to take the most dramatic action and cut America off, a disruption like this could create chaos in the stock market, and could wreak havoc on everyday life in certain parts of the country.

Russia and the Kazakhs may not want to do this because they make a profit selling that uranium to the USA, so an embargo is a lose-lose, but they can do it if they feel it is necessary.

And you may have read this somewhere – Mr. Putin is not an especially nice person.