Third Party Slump

 David Weigel at Semafor:

“The biggest factor that was unique to this election cycle was a deep distaste of both candidates, which opened the door to elevated third-party voting even in a time of record polarization,” said Lakshya Jain, an elections analyst at Split Ticket. “Kamala Harris’ ascension seems to have completely changed this dynamic.”

Kennedy’s support took the hardest hit. Before Biden dropped out, he was polling as high as 22% in a three-candidate test. Post-switch polling has put him in the mid-single digits nationally and in swing states, at the same time that a Democratic campaign to remove him from state ballots was scoring wins. On Monday, a New York judge ordered Kennedy off the state ballot, ruling that he maintained a “sham” address in the state; Kennedy said he’d appeal and file a separate federal lawsuit, which he hoped would “preempt” ballot challenges.

Michael Scherer and  Josh Dawsey at WP:

Independent presidential candidate Robert F. Kennedy Jr. sought a meeting last week with Democratic nominee Kamala Harris to discuss the possibility of serving in her administration, perhaps as a Cabinet secretary, if he throws his support behind her campaign and she wins, according to Kennedy campaign officials.

Harris and her advisers have not responded with an offer to meet or shown interest in the proposal, say people familiar with the conversations.

The Kennedy outreach, made through intermediaries, follows a meeting in Milwaukee last month between Kennedy and Republican nominee Donald Trump to discuss a similar policy role and endorsement that resulted in no agreement. In those discussions, Kennedy spoke about advising Trump in a second term on health and medical issues.

Foreign Money

Our new book is titled Divided We Stand: The 2020 Elections and American Politics.  Among other things, it discusses foreign influence and Trump's attack on democracy.

Anna Massoglia at Open Secrets:

The DOJ announced charges in September against Republican operatives Jesse Benton and Doug Wead for allegedly funneling money from a Russian national to the Trump campaign’s joint fundraising committee in a straw donor scheme.

On Oct. 12, the FEC unsealed a signed conciliation agreement in which the pro-Trump Great America PAC agreed to pay a $25,000 fine after Benton allegedly solicited $2 million in 2016 from Telegraph journalists posing as representatives of a Chinese national.

In a recording released by The Telegraph, Benton can be heard describing how a foreign national could pass a $2 million contribution to the PAC through shell companies and 501(c)(4) nonprofit dark money groups.

The FEC charged Benton with knowingly soliciting illegal funds from a foreign national but Benton declined to cooperate with the FEC’s investigation and chose not to enter into conciliation because of due process issues. The FEC ultimately deadlocked on whether to pursue the matter further.

In December 2020, Benton was pardoned by Trump on charges tied to hiding bribes in an unrelated 2012 campaign finance scandal. At the time, Benton allegedly paid a vendor who then paid a subvendor, violating the FEC’s ultimate vendor disclosure rules.

Trump Legal

In Defying the Odds, we discuss Trump's dishonesty and his record of disregarding the rule of law.  His legal challenges to the election of Joseph Biden have toggled between appalling and farcical.

Trump's campaign has spent much of the past week in court with little success, and without presenting anything close to evidence that points to a fraudulent result.

Here's a breakdown of the litigation the campaign has filed:https://t.co/WwIpypEBIB

— NPR (@NPR) November 10, 2020

Jeremy Roebuck, Maddie Hanna and Oona Goodin-Smith at The Philadelphia Inquirer:

What began five years ago with the made-for-TV announcement of Donald Trump’s presidential ambitions from the escalator of his ritzy Manhattan high-rise ended Saturday with his aging lawyer shouting conspiracy theories and vowing lawsuits in a Northeast Philadelphia parking lot, near a sex shop and a crematorium.

In hindsight, the hastily arranged news conference featuring Rudy Giuliani, the president’s personal lawyer, just minutes after Joe Biden had been declared the victor of the 2020 race, delivered a fitting end to a campaign that had been at times characterized by its slapdash techniques.

But the question of how a landscaping company in Holmesburg became the backdrop for what could have been one of the Trump team’s last public gasps in its bid to reverse the results quickly captured the public’s imagination.

It started Saturday morning, with a presidential tweet that, as has often happened during the last four years, Trump’s advisers quickly scrambled to correct.

Trump announced: “Lawyers News Conference Four Seasons, Philadelphia, 11 a.m.,” only to delete his post minutes later and replace it with one changing the venue from the upscale Center City hotel to a similarly named business: Four Seasons Total Landscaping on industrial State Road, next to Fantasy Island Adult Books and Novelties and across the street from the Delaware Valley Cremation Center.

Matt Friedman at Politico:

The first person Rudy Giuliani, the attorney for President Donald Trump, called up as a witness to baseless allegations of vote counting shenanigans in Philadelphia during a press conference last week is a sex offender who for years has been a perennial candidate in New Jersey.

Adam Klasfeld at Law and Crime:

Over the weekend, the Trump campaign promised major revelations in their legal efforts to change the outcome of the 2020 presidential election, but their lawyers stumbled out of the gate on Monday morning.

The Trump lawyers submitted a “defective” appeal of a Michigan judge’s ruling that dismissed their lawsuit. The judge found last week that the lawsuit contained “inadmissible hearsay within hearsay.”

“I regret to inform you that your submission is defective,” the Trump campaign was informed in a one-page letter, alerting them that their lawyers forgot to attach a copy of the judgment and the underlying evidence.

Jennifer Rodgers, a former federal prosecutor and CNN analyst, called the mix-up an “embarrassing error but pretty minor.”

“Lawyers have paralegals and junior lawyers make filings all the time so these things happen,” Rodgers told Law&Crime in a text message. “But of course the broader point is this is not a sophisticated legal team the way you would expect from a presidential campaign. Long ago Trump ran through the top notch lawyers willing to work for him, so he’s working with lower-tier representation for sure.”

The technical error by the campaign’s attorney Thor Hearne marked an anti-climactic opening shot of a quixotic effort to prevent Joe Biden from assuming the office of the presidency on Inauguration Day.

It also represented a strained effort to a revive a legal action based on testimony by what poll watcher Jessica Connarn claims to have heard from an unidentified person who repeated a rumor and passed her a note.

“‘I heard someone else say something,’” Michigan Judge Cynthia Stephens said on Thursday, summing up Connarn’s affidavit. “Tell me how that is not hearsay. Come on now!”

Dartunorro Clark and Ken Dilanian at NBC:

The head of the branch of the Justice Department that prosecutes election crimes resigned Monday hours after Attorney General William Barr issued a memo to federal prosecutors authorizing them to investigate “specific allegations” of voter fraud before the results of the presidential race are certified.

Richard Pilger, who was director of the Election Crimes Branch of the DOJ, sent a memo to colleagues that suggested his resignation was linked to Barr’s memo, which was issued as the president’s legal team mount baseless legal challenges to the election results, alleging widespread voter fraud cost him the race.

“Having familiarized myself with the new policy and its ramifications, and in accord with the best tradition of the John C. Keeney Award for Exceptional Integrity and Professionalism (my most cherished Departmental recognition), I must regretfully resign from my role as Director of the Election Crimes Branch,” Pilger’s letter said, according to a copy obtained by NBC News.

“I have enjoyed very much working with you for over a decade to aggressively and diligently enforce federal criminal election law, policy, and practice without partisan fear or favor. I thank you for your support in that effort.”

Jessica Silver-Greenberg, Rachel Abrams and David Enrich at NYT:

Some senior lawyers at Jones Day, one of the country’s largest law firms, are worried that it is advancing arguments that lack evidence and may be helping Mr. Trump and his allies undermine the integrity of American elections, according to interviews with nine partners and associates, who spoke on the condition of anonymity to protect their jobs.

At another large firm, Porter Wright Morris & Arthur, based in Columbus, Ohio, lawyers have held internal meetings to voice similar concerns about their firm’s election-related work for Mr. Trump and the Republican Party, according to people at the firm. At least one lawyer quit in protest.

COVID, COVID, COVID

In Defying the Odds, we discuss the 2016 campaign. The 2019 update includes a chapter on the 2018 midterms. The 2020 race, the subject of our next book, is well underway.   It unfolds  as Coronavirus presents unprecedented challenges to public policy and the electoral process.   

The latest news is bad, both for the country, as well as Trump's prospects in the election next week.

 Thomas Beaumont at AP:

And now the virus is getting worse in states that the Republican president needs the most, at the least opportune time. New infections are raging in Wisconsin and elsewhere in the upper Midwest. In Iowa, polls suggest Trump is in a toss-up race with Biden after carrying the state by 9.4 percentage points four years ago.

Trump's pandemic response threatens his hold on Wisconsin, where he won by fewer than 23,000 votes in 2016, said Marquette University Law School poll director Charles Franklin.

“Approval of his handling of COVID is the next-strongest predictor of vote choice," behind voters' party affiliation and their overall approval of Trump's performance as president, Franklin said. “And it's not just a fluke of a single survey.”

The Centers for Disease Control and Prevention reported Sunday that among U.S. states, Wisconsin had the third highest rate of new cases for the previous seven days. Iowa was 10th

Trump won Wisconsin's heavily blue-collar Winnebago County, which includes Oshkosh, in 2016, after Democratic nominee Barack Obama had carried it in 2012. Today, Winnebago is among the top 10 counties where new Wisconsin COVID cases are being reported, according to data collected by Johns Hopkins University and compiled by The Associated Press.

The trend is similar in Iowa. Blue-collar Dubuque County was among the state's 10 counties with the fastest-growing number of cases per capita over the past two weeks. Trump won the county narrowly after Democrats had carried it since the 1950s.

Linley Sanders at YouGov:

In the last few days, the United States has set new daily records for the number of positive COVID-19 tests reported. Recent infection levels have been higher than they were even during the July peak.

The latest Yahoo News/YouGov poll shows that the increase has not gone unnoticed by voters. The percentage of registered voters who say "the number of cases is increasing" in the United States jumped nine percentage points over the last week, from 63% to 72%.

That number has been steadily rising throughout October, and across party lines. At the beginning of the month, a quarter (24%) of Republicans saw the case count rising. This week, that recognition has doubled (48%). Two-thirds (68%) of Democrats in early October said coronavirus cases were increasing; this week, 90% believe this to be the situation. 

ALL THE FAKE NEWS MEDIA WANTS TO TALK ABOUT IS COVID, COVID, COVID. ON NOVEMBER 4th, YOU WON’T BE HEARING SO MUCH ABOUT IT ANYMORE. WE ARE ROUNDING THE TURN!!!

— Donald J. Trump (@realDonaldTrump) October 27, 2020

Dysfunction and Denial

In Defying the Odds, we discuss the 2016 campaign. The 2019 update includes a chapter on the 2018 midterms. The 2020 race, the subject of our next book, is well under  way.   

Coronavirus presents unprecedented challenges to public policy and the electoral process.

Philip Rucker, Josh Dawsey, Yasmeen Abutaleb, Robert Costa and Lena H. Sun at WP:

A small team led by Kevin Hassett — a former chairman of Trump’s Council of Economic Advisers with no background in infectious diseases — quietly built an econometric model to guide response operations.

Many White House aides interpreted the analysis as predicting that the daily death count would peak in mid-April before dropping off substantially, and that there would be far fewer fatalities than initially foreseen, according to six people briefed on it.

Although Hassett denied that he ever projected the number of dead, other senior administration officials said his presentations characterized the count as lower than commonly forecast — and that it was embraced inside the West Wing by the president’s son-in-law, Jared Kushner, and other powerful aides helping to oversee the government’s pandemic response. It affirmed their own skepticism about the severity of the virus and bolstered their case to shift the focus to the economy, which they firmly believed would determine whether Trump wins a second term.

...
By the end of April — with more Americans dying in the month than in all of the Vietnam War — it became clear that the Hassett model was too good to be true. “A catastrophic miss,” as a former senior administration official briefed on the data described it. The president’s course would not be changed, however. Trump and Kushner began to declare a great victory against the virus, while urging America to start reopening businesses and schools

...
Trump embraced hydroxychloroquine, as well as azithromycin, as “one of the biggest game-changers in the history of medicine.” In the weeks that followed, however, the dangers became more clear. A Veterans Affairs study released April 21 found that covid-19 patients who were treated with hydroxychloroquine were more likely to die than those who were not. Three days later, the FDA warned that doctors should not use the drug to treat covid-19 patients outside a hospital or clinical trial because of reports of “serious heart rhythm problems.”

...
Marc Short, chief of staff to Vice President Pence, exerted significant influence over the coronavirus task force, setting the agenda and determining seating arrangements for meetings as well as helping to orchestrate press briefings. Short also is one of the White House’s most vocal skeptics of how bad the pandemic would be. He repeatedly questioned the data being shared with Trump, and in internal discussions said he did not believe the death toll would ever get to 60,000 and that the administration was overreacting, damaging the economy and the president’s chances for reelection, according to people who have heard his arguments

Almost As If SDNY Were Talking About Trump

In  Defying the Odds, we discuss  Trump's record of scandal.  In a plea deal, Michael Cohen implicated Trump in criminal activity.

Document: U.S. Attorney's Office for the Southern District of New York and Special Counsel's Office File Michael Cohen Sentencing Memo

The document suggests that  Trump committed felonies.

During the campaign, Cohen played a central role in two similar schemes to purchase the
rights to stories – each from women who claimed to have had an affair with Individual-1 – so as to suppress the stories and thereby prevent them from influencing the election. With respect to both payments, Cohen acted with the intent to influence the 2016 presidential election. Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments. (PSR ¶ 51). In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1. (PSR ¶¶ 41, 45). As a result of Cohen’s actions, neither
woman spoke to the press prior to the election. (PSR ¶ 51).

In October, the New York Times documented Trump's long history of cheating on his taxes.

The need for the sentence to promote respect for the law and to afford adequate deterrence further supports imposition of a significant sentence of imprisonment. Congress provided for strong criminal sanctions as a general deterrent to tax evasion, false statements to financial institutions, and campaign finance violations. Given the magnitude and brazenness of the conduct in this case, the interests of deterrence are best served by the imposition of a substantial term of imprisonment.

Cohen’s years-long pattern of deception, and his attempts to minimize certain of that  conduct even now, make it evident that a lengthy custodial sentence is necessary to  specifically deter him from further fraudulent conduct, whether out of greed or for power, in the future. Certainly, Cohen has no prior convictions, and is well-educated and professionally successful. Generally, such characteristics suggest that a defendant is unlikely to re-offend in the future. But where, as here, the nature, multitude, and temporal span of criminal behavior betray a man whose outlook on life was often to cheat – an outlook that succeeded for some time – his professional history and lack of prior convictions are not a significant mitigating factor.

For much the same reasons, the time-served sentence that Cohen seeks would send precisely the wrong message to the public. General deterrence is a significant factor here. Campaign finance crimes, because they are committed in secret and hidden from the victims, are difficult to identify and prosecute. Nonetheless, they have tremendous social cost, described above, as they erode faith in elections and perpetuate political corruption. Effective deterrence of such offenses requires incarceratory sentences that signal to other individuals who may contemplate conduct similar to Cohen’s that violations of campaign finance laws will not be tolerated. Particularly in light of the public interest in this case, the Court’s sentence may indeed have a cognizable impact on that problem by deterring future candidates, and their “fixers,” all of whom are sure to be aware of the Court’s sentence here, from violating campaign finance laws.

Additionally, a significant sentence of imprisonment would also generally deter tax evasion and other financial crimes by sending the important message that even powerful individuals cannot cheat on their taxes and lie to financial institutions with impunity, because they will be subject to serious federal penalties. This is particularly important in the context of a tax evasion prosecution. Hundreds of billions of dollars are lost annually because people like Cohen – who otherwise take full advantage of all that taxes bring, such as schools, paved roads, transit systems, and Government buildings – shirk their responsibilities as American taxpayers.

Trump and RFK

In Defying the Odds, we discuss Trump's character.

Yesterday was the 50th anniversary of MLK's death, and the speech that RFK gave in response.

President Trump signs a law today, commemorating the site of Bobby Kennedy’s speech on MLK in Indianapolis. The White House chose to have this signed in private, without any cameras or reporters present on the 50th anniversary of Dr. King’s assassination. pic.twitter.com/QteNtJTwT2

— Jeff Zeleny (@jeffzeleny) April 4, 2018

Why did Trump downplay the event?

First, RFK's most prominent grandson is Rep. Joseph P. Kennedy III (D-MA), a fierce Trump critic who delivered the Democratic response to the State of the Union.

Second, the Kennedy and King assassinations draw attention to gun violence.

Third, Trump has a fraught relationship with the civil rights community.

Gingrich and Pardons

In  Defying the Odds, we discuss Russian involvement in the 2016 campaign.

Face the Nation, October 13, 1996:

SCHIEFFER: Should--should President Clinton say flatly that he will not pardon anyone involved in Whitewater?

Rep. GINGRICH: You know, I--the notion that we're sitting here talking about whether or not a president of the United States would pardon people directly implicated in his potential breaking the law--I mean, it's so bizarre that I don't have a good answer for you. The Constitution provides for a very clear right of the president to pardon. Now it also provides for the Congress a very clear right to investigate a president. So I would guess that Clinton, in the end, will not pardon anybody because I don't think the country would tolerate it. I mean, I don't think he can buy Susan McDougal silence or Webb Hubbell silence with a pardon, because I think you'd then have just an outrage from the whole country. So...