In his book Innovation at the Speed of Laughter. John Sweeney, owner of the Minneapolis-based improvisation theater Brave New Workshop, describes the value of injecting the adage “always have a Plan B” with steroids.  The process he uses to encourage his troupe to push for new and better ideas when developing material from concept to full-blown skit does not stop with two or three alternatives.  He recalls how he demands hundreds of variations on a theme before picking the one  that eventually gets added to a performance.

I thought about John Sweeney when I received an email from a regular follower of this blog.  In response to Sunday’s post “Not Who, How.”  She wrote, “Appreciated it very much.  Doubt it will happen.”  My reply?  “Agree, it is unlikely to happen, But, as you know, that is never my goal.  It is to raise options without judging their plausibility.”  Remember, I am the guy who spent 19 years constructing a version of John Kennedy’s assassination that even I do not believe happened.

The need for more options when it comes to the 2024 presidential election increased in magnitude yesterday when the Supreme Court laid the groundwork for Donald Trump to become the first imperial president in the nation’s history.  Though no blood was spilled, the idea that the occupant of the Oval Office could avoid accountably for criminal conduct by invoking a manufactured doctrine of “presumptive immunity” was, for believers in the American experiment, no less gut-wrenching than Hamas’s terror attack on innocent Israelis.  The question is whether it is shocking enough to declare war against the perpetrators.  If so, what does that mean?

Although Israeli prime minister Benjamin Netanyahu has repeatedly surrendered the high ground during the nine months since October 7, 2024, he initially understood that defeating Hamas was unlikely with a divided government, which resulted in his inviting political opponents to be members of his “war cabinet.”  Likewise, preventing a second Trump presidency, especially with the Court’s decision to roll out the red carpet for implementation of the unitary theory of executive power in which the other two branches of government have limited control over the president, is equally unlikely with a hopelessly divided electorate.

Joe Biden believes Donald Trump is an existential threat to nearly 250 years of American democracy.  He portrays the 2024 election as a choice between democracy and autocracy although I would argue the other side is more akin to a Russian-style oligarchy with rich donors using Trump as their showrunner.  He says this is not about blue states versus red states, liberal versus conservative or white versus black.  If stopping the Trump machine is that important, Plans B through Y are probably too squishy.  Desperate times require bold thinking.

I therefore offer Plan Z, an audacious and daring signal to the American voter that “business as usual” is not an option.  I present it as an unlikely extreme, but put it out there as a conversation starter.

1. On the morning of July 4, 2024, the 248 anniversary of the signing of the Declaration of Independence, Joe Biden announces he is resigning immediately.
2. At noon, Kamala Harris takes the presidential oath of office.
3. As her first act as president, she nominates Senator Lisa Murkowski (R-Alaska) to become her vice-president and urges Congress to confirm the nomination with all deliberate speed.
4. Harris then names Joe Biden as a senior advisor.  This is not without precedent.  During a 2003 training project for the Singapore Civil Service College, John Altman and I had the honor of a private audience with Lee Kwan Yew, one of the newly independent country’s founding fathers and first prime minister.  When we met Yew, he was 79 years old and held the title of “senior minister” with an office in the Parliament House.
5. At the Democratic National Convention in August, Harris confirms Murkowski will be her running mate.
6. The theme of the convention is “The United States v. Donald Trump.”  Speakers will be a mix of Democrats and former Trump allies.  Democrats will focus on their vision for America.  Republicans, as the did before the January 6 Select Committee, will remind voters of the political and personal norms that Trump and his sycophants have crossed.

Why a Harris/Murkowski ticket?  Let’s start with Harris.  First, she has the advantage of being mentored by Joe Biden and watching what he has been able to accomplish based on personal relationships and willingness to compromise.  Second, she is a skilled and experienced prosecutor, best evidenced by her questioning of attorney general nominee Bill Barr during his Senate Judiciary Committee hearing.  A Trump/Harris debate might be the closest thing we get to cross-examination of the former president.  And imagine his dilemma.  He can either face the music or appear weak and scared by refusing to participate.  Third, the practical matter of continuity.  Since the FEC campaign finance documents were signed by both Biden and Harris, she would automatically have access to the existing funds.  It is not clear that would be the case for other candidates, and no doubt, Trump lawyers would file court challenges to prevent or delay access to another Democratic candidate.

And why Murkowski?  First, Murkowski has bona fide conservative credentials which puts her in a position to argue Harris is open to a spectrum of ideological policy input.  Second, Murkowski lost the 2022 GOP nomination for reelection to her senate seat to a Trump-endorsed candidate.  However, running as an independent, she won the general election with 54 percent of the vote.  Third, she is a strong advocate for women’s reproductive rights, calling the Dobbs decision flawed.

Today the Supreme Court went against 50 years of precedent in choosing to overturn Roe v. Wade. The rights under Roe that many women have relied on for decades—most notably a woman’s right to choose—are now gone or threatened in many states.

Fourth, she regularly demonstrates her fealty to the Constitution and rule of law.  She voted to convict Donald Trump for attempting to overturn the 2020 election.  And she opposed filling the vacant Supreme Court seat following Ruth Bader Ginsberg’s death.

For weeks, I have stated that I would not support taking up a potential Supreme Court vacancy this close to the election. Sadly, what was then a hypothetical is now our reality, but my position has not changed.

Again, this is not a call for Biden to step down.  That is a personal decision he must make.  However, if he so chooses, here is one more option to make sure his personal sacrifice has the best chance of achieving the desired outcome.

For what it’s worth.
Dr. ESP

I would never want to play poker with MSNBC legal analyst Chuck Rosenberg.  Neither his facial expression nor tone/tempo of his voice ever change.  And he is always cordial when discussing the law with fellow attorneys.  That is why I was so surprised when we he vehemently rebuffed former deputy solicitor general Neal Katyal who proclaimed that today’s immunity ruling by the Supreme Court affirmed that a president could order Seal Team 6 to shoot a political opponent and not be charged with a crime.  Rosenburg shot back, “I don’t see anywhere in this opinion where it says that the president can order Team Seal 6 to assassinate an opponent.”

Chuck, the Constitution does not say the president has “the presumption of immunity” for official acts either, but as of 10:40 a.m., that is now the basis on which all presidential acts must be judged. So much for the originalist theory of interpreting the Founding Fathers’ intent. Equally important, the 6-3 majority declared, “Dividing official from unofficial conduct, courts may not inquire into President’s motives.”  I do not see that in the Constitution, either.

So Chuck, I am going to make this really personal so you can understand it.  A president of the United States orders Team Seal 6 to kill YOU, which they succeed in doing!  Isn’t the president commander-in-chief and can therefore deploy the military under Article II of the Constitution?  Furthermore, Article II requires the president, before taking office, to swear that he will “preserve, protect and defend the Constitution of the United States.” 

Your ghost believes you were a target because you had criticized the president on “Morning Joe” and demands the president be charged with murder.  However, the president invokes the language in Trump v. United States.  His lawyers argue YOU were a threat to the Constitution which their client swore to protect.  And therefore, the president ordered members of the military, as commander-in-chief, to eliminate that threat.   According to Chief Justice Roberts, who wrote the opinion, there is nothing you can do about it.

Even if there was recorded evidence, e.g. taped conservations in which  the president said, “I’m just sick and tired of that SOB Rosenberg calling me out on something,” those tapes would never be heard.  Why?  First, the Court says you cannot question the president’s motive that he responded to a constitutional threat.  Worse yet, the Court further declared that prosecutors cannot use evidence associated with an “official act.”  Therefore, all the president needs to do is claim that this discussion with a staff member was related to the deployment of the military which is authorized under Article II.

Rest in peace, Chuck.

POSTSCRIPT:  WE THE JUSTICES

Over the last five days, the Supreme Court, based on ideological 6-3 votes, has:

• expanded the authority of the president to act with impunity (Trump v. U.S.);
• undercut the Congressional and Executive authority under Articles I and II to write and implement the law (Ohio v. Environmental Protection Agency);
• declared that the storming of the Capitol on January 6, 2024, does not meet the definition of obstructing an official government action (Fischer v. U.S.).

There is no way to interpret these actions other than as a slap in the face of legal precedence and common sense.  If you ever thought the Supreme Court was the last bastion of hope for protection of the American form of government (as it did during Watergate) and our Constitution rights (reproductive choice and voting in the 1960s and 1970s), that era is history.

One can only hope the American people who share this view will use November 6, 2024, as their opportunity to give the Court, Leonard Leo and the Federalist Society the finger.  The only guardrail left to save the American experiment is us!

For what it’s worth.
Dr. ESP

Saturday morning, Washington Post political reporter Aaron Blake ranked 10 potential replacements if Joe Biden chooses to step aside.  I found Blake’s analysis to be quite compelling.  When it came to Vice-president Kamala Harris, he rightly pointed out the backlash from the Black community if she was passed over for someone else, giving Donald Trump more ammo to convince Black voters they are being used by the Democrats.  I also appreciated his including Michelle Obama on his list, calling her “everyone’s dream candidate.”  However, he was quick to acknowledge it would not happen because the former first lady has no interest in the job.

The rest of the list was replete with the usual suspects.  Governors Gavin Newsom (CA), Gretchen Witmer (MI), Jared Polis (CO), Andy Beshear (KY) and Josh Shapiro (PA).  Senators Amy Klobuchar (MN) and Raphael Warnock (GA).  Secretary of Transportation Pete Buttigieg.  The problem is that a final decision is needed before the Democratic National Convention begins on August 19, leaving little time for the usual winnowing down that leads to a consensus candidate.

At all costs, Democrats must avoid a contentious nomination process with little chance for healing before the general election.  So the question is not so much who should head the ticket, but how that person is selected.   Fortunately, there is a model for just such a situation.  In 1999, 30 Republican governors convened a meeting to determine who would challenge Al Gore, the likely Democratic nominee for president.  Each promised not to support any other candidate.  And we know what happened.  George W. Bush, with the full backing of 29 of his fellow state chief executives, won a narrow victory in the electoral college.

I am not recommending that Joe Biden call it a day.  That is best left to him, his family and close associates.  However, if he chooses that path, I suggest he do so on one condition.  Everyone interested in becoming the Democratic standard bearer must join him for a meeting in the White House cabinet room, at which time, he informs the attendees:

I have decided to withdraw as a candidate for president and to release my pledged delegates, if and only if, before we leave this room, we all agree on who will be the presidential and vice-presidential nominees.  You will then join me on the White House lawn to announce that decision and to offer your full support of the ticket.   

Now I know several of you had your eye on 2028.  That is where the two nominees have to give a little.  Even if he or she wins in 2024, they must agree they are not guaranteed re-nomination in 2028.   They will have to earn it.  If any of you think we need a change, go for it

That’s the deal, Jack. 

What’s more, this could be another chance for Democrats to again demonstrate the difference within their ranks and the cultists who dominate the MAGA party.  If Donald Trump had as bad a night as Biden, does anyone honestly believe he would have admitted it?  Or he would be sitting down this morning with his wife and children this morning (assuming he could find them) to discuss his future.  But it is not just about Joe.  The above scenario also requires that all but two aspirants to the presidency and vice-presidency put aside their personal ambitions for the national interest.  Such a gesture would further solidify the dichotomy that the leaders of one party are willing to put country before self and one that worships a man who was hijacked his party for personal gratification.

The election with a new ticket could be waged  much like Lyndon Johnson’s 1964 campaign, a tribute to a “fallen” president and a call to finish the mission he started.  On women’s rights.  On climate change.  On income and wealth inequality.  On gun safety.  On the need for a Supreme Court the founding fathers envisioned.  On global democracy.  Joe was never good at touting his own accomplishments.  But his successor can both remind voters of what has been accomplished and honor Biden by call the party platform his “unfinished” agenda.

Nor does Biden now have the oratorical skills to prosecute the case against Donald Trump’s lies.  Imagine a national convention dedicated to dismantling Trump’s version of American in which speaker after speaker across the party’s spectrum parses the fire hose of lies presented during the July MAGA convention.  The stage is framed by a banner which simply says, “The Honest Truth.”  A convention which begins with a film that answers the question, “Are better off today than you were four years ago?”  Images that remind voters of what America looked like on January 19, 2021 and how our country is now the envy of the free world.  After which, the convention chair introduces the outgoing president, giving delegates a chance to thank him for his service and what he has accomplished in just four years.

Even if Biden stays in the race, the opportunity is the same.  With just two and a half months between the convention and election day, Democrats will have the national spotlight for three days.  All they need to do is make the most of it.

For what it’s worth.
Dr. ESP

While waiting for Season 3 of “The Bear,” I watched the “Hit Man,” a based on true story movie about a college professor who moonlights as an undercover agent for the New Orleans Police Department.  His job?  Disguised as a murder for hire professional, Gary Johnson (played by Glenn Powell) meets with potential clients, records their conversations and accepts payment for eliminating one their adversaries.  To document the efficacy of his work, following each encounter, the client is seen posing for his or her mug shot.  I give this innovative, well-acted and equally well-directed film a huge thumbs up. (Available on Netflix)

I wish I could say the same for the six justices on the Supreme Court who yesterday decided that the difference between a crime and a thank you is the timing of the payment.  In the case of Snyder v. United States, James E. Snyder,  the former mayor of Portage, Indiana, received a check for $13,000 from truck manufacturer Peterbilt in 2014, months after the city purchased two trash trucks from the company’s local affiliate for $1.1 million. When charged under 18 USC §666, Snyder argued the law applied only to bribes.  Therefore, Peterbilt’s payment after the purchase was a legal gratuity.

Writing on behalf of the 6-3 majority, Justice Brett Kavanaugh did not hesitate to accept Snyder’s argument lock, bump-stock and barrel, beginning his opinion:

The question in this case is whether 18 U. S. C. §666(a)(1)(B) makes it a federal crime for state and local officials to accept gratuities for their past official acts. The answer is no.

Among the reasons for his opinion, Kavanaugh writes:

…the dividing line between §201(b)’s bribery provision and §201(c)’s gratuities provision is that bribery requires that the official have a corrupt state of mind and accept (or agree to accept) the payment intending to be influenced in the official act.

Is anyone surprised that a judicial body which avoids accountability for any appearance of corruption would not use common sense when asked what constitutes “corrupt state of mind?”  What was Mayor Snyder’s state of mind when he was handed the personal check for $13,000 check?  Did he once consider, “If Peterbilt can afford to give me such a generous gratuity, maybe we paid too much for the two trucks, and the proper response would be to deposit the check in the city treasury?”  And did he honestly believe this gratuity would not influence his decision the next time the city needed trucks?

Which brings me back to “hit man” Gary Johnson?  Suppose he was a real hit man willingly accepting payment to off a client’s adversary.  As the client pulls out an envelop and slides it under the table.  Johnson immediately objects, “Not now. That would be corrupt.  Give me the money after I’ve completed the assignment.  Then we can call it a gratuity.”

Of course, Johnson would still be charged with murder under a different statute, but it least he would not be guilty of corruption.  So let’s take another example.  Suppose the son-in-law of a former president. serving as a White House senior advisor, facilitates the sale of military equipment to a foreign government.  After the son-in-law is no longer a government official, the sovereign fund of that foreign government invests $2 billion dollars in his company Affinity Partners.  According to Kavanaugh and his fellow justices, “Nothing to see here.  No quid pro quo.  It’s just a gratuity.”

Equally disturbing is the fact that Kavanaugh invokes the #1 MAGA defense when it comes to criminal laws, weaponization of the Department of Justice. He channels one of Donald Trump’s greatest hits, “If they succeed in prosecuting me, you’re next.”  Kavanaugh writes:

The Government asks this Court to adopt an interpretation of §666 that would radically upend gratuities rules and turn §666 into a vague and unfair trap for 19 million state and local officials. We decline to do so.

I can see it now.  FBI agents stationed outside classrooms for the chance to entrap a teacher accepting an apple from a student.  Or patrolling neighborhoods during the winter holidays in search of residents offering Starbucks gift cards to their meter reader or garbage collectors.

While Kavanaugh twisted himself into a pretzel to come up with six reasons why 18 USC §666 does not mean what it clearly says, Justice Ketanji Brown Jackson parsed the law to explain why Kavanaugh’s argument was wrong.  She reminded the majority:

Ignoring the plain text of §666—which, again, expressly targets officials who “corruptly” solicit, accept, or agree to accept payments “intending to be influenced or rewarded”—the Court concludes that the statute does not criminalize gratuities at all.

What is a gratuity other than a REWARD for past service?  And by its very definition, the timing of the reward is irrelevant.

When you vote for president this November, remember that the next occupant of the Oval Office may have any number of appointments to the Supreme Court.  You will decide whether those nominees rely on common sense when interpreting the law or on their ability to make word salad out out of constitutional and statutory language.

For what it’s worth.
Dr. ESP