The latest Wall Street Journal poll has Democrats on edge, the headline being Joe Biden and Donald Trump tied at 46-46 in a two-man race.  These “Nervous Nellies” should keep THREE things in mind.

1. There are 14 “independent” polling services of which only THREE have Trump tied or ahead.
2. Poll sampling depends on accurately gauging the percentage of THREE groups of people who are likely voters in the 2024 election: Democrats, Republicans and Independents.  Major shifts in demographics and party affiliation since 2020 make any poll that does not take these factors into account suspect.
3. To win a majority of the electoral college, Joe Biden needs only THREE of the six 2020 battleground states: Wisconsin, Michigan and Pennsylvania.  All THREE have seen a rise in Democratic voter registrations (largely from younger voters) and an increase in Democratic turnout following the Dobbs decision.

But that is not what I came here to talk about.  In the same poll, respondents were asked, “Is (candidate) too old to run for president?”  The results?  Biden, 73 percent.  Trump, 47 percent.  That is a significant difference for two individuals who are only THREE years apart when it comes to age.  Biden, 80,  Trump, 77.  

But even that is not what I came here to talk about.  Presidential candidates have been able to overcome a plethora of biases.  John Kennedy and Catholicism.  Barack Obama and race.  According to the popular vote, Hillary Clinton and gender.  Biden and age. Perhaps the only remaining bias that continues to dog most presidential aspirants is height. Texas Tech political science professor Gregg R. Murray found that in 67 percent of the presidential elections, dating back to 1789. the taller candidate triumphed over (pun intended) his shorter opponent.

Which is why no one should be surprised Florida’s governor chose not to accompany President Biden during his visit to view the damage caused by Hurricane Idalia. You guessed it.  Ron DeSantis is THREE inches shorter than Joe Biden. Biden, 6 feet tall.  DeSantis, 5 feet 9 inches.  And you can bet the farm one of DeSantis’ campaign consultants told the governor, “The last thing we need is a photo of Biden putting his hand on your shoulder as he did with Zelenskyy.  That picture screams, ‘Son, nice of you to be here.'”

Not surprisingly, a DeSantis/Biden portrait would also debunk Trump’s self-reported height of 6 feet 3 inches he submitted to the Fulton County, Georgia sheriff’s office prior to his booking on August 24.  Former President “Double Down,” of course, would claim to be two times THREE inches taller than his rival for the GOP nomination.  One need only Google photos of Trump and DeSantis, such as the one below of the two men meeting on an Orlando tarmac in March 2020, to see a half-foot difference in height is questionable.

Aristotle first suggested the “rule of THREE,” based on his belief people find it easier to remember three things.  This principle was later applied to writing, psychology and survival techniques.  Think of what we were always told about fire safety.  “Stop, drop and roll.”  You should now add politics to that list of topics for which the “rule of THREE” is relevant.

For what it’s worth.
Dr. ESP

There is no dearth of opinions about what is at stake in the 2024 presidential and congressional elections.  Democracy versus autocracy.   The rule of law. A woman’s control over her own body.  Unfettered individual freedom versus community responsibility.  Let me add one more–not just the First Amendment, but the volume at which it is practiced.

Two events last week clearly demonstrated the contrast between the tone of communications represented by the front-runners in the two major parties’ respective nominations for president. At one extreme was Joe Biden’s assessment last Friday of the August jobs report at a briefing on the White House lawn.  You knew it was coming.  It was just a matter of time.  In what has now become a trademark of any Biden speech, especially when he wants to emphasize a point, the president leaned into the microphones and whispered, “You’ve heard me say many times: Wall Street didn’t build America; the middle class built America, and unions built the middle class.”  This mannerism, like his regular use of the word “malarky,” is both endearing and cringeworthy.

At the other extreme was Mark Meadows’ ill-advised decision to be his own witness at a federal court hearing at which he tried to convince the judge his role in the alleged RICO violations to overturn the Georgia presidential election should be held in a federal versus state court.  Under direct examination by his lawyers, Meadows claimed that his arranging phone calls and meetings for the president, despite the substantive content of those proceedings, was what a White House chief of staff does.  Therefore, his guilt or innocence depended on a determination whether he was “just doing my job” as a federal employee.

During the prosecution’s cross-examination, just as predicted in the August 26 post, “Legal TRAPpings,” District Attorney Fani Willis’ team provided several emails and phone conversations in which Meadows explores ways Georgia election officials might reconsider the results of the November 3, 2020 vote count.  They pointed out each instance was a violation of the Hatch Act as proof Meadows was operating outside the legal boundaries of his job description. More damaging was the possibility Meadows committed perjury when prosecution lawyer Anna Cross asked him if he had any role in coordinating the fake electors plot.  “No I did not,”  he asserted. Cross then showed Meadows an email he sent to Trump campaign advisor Jason Miller in which he wrote, “We just need to have someone coordinating the electors for the states.”

On redirect, the defendant’s lawyers then tried to address this damaging inconsistency.  But as is so often the case in MAGA-verse legal circles, Meadows’ team chose not to quit while they were ahead.  In hopes of rehabilitating their client, Meadows’ lawyer asks him about the motivation for the email.

Meadows:  It was mentioned to me that there was litigation going on, and that you had to have a provisional or conditional elector, and what I didn’t want to happen was for the campaign to prevail in certain areas and then not have this.

Defense Counsel: Why did you not want that to happen?

Meadows:  Well, because I know I would get yelled at if we had not.

Defense Counsel:  By whom?

Meadows: By the President of the United States.

If Meadows had only cared about his own interests as much as he claimed he was doing so  to protect Trump.  The Final Jeopardy answer would have been, “Mr. President, you should ask someone from the campaign to coordinate the electors for the states.”  The Final Jeopardy question? “How do you gently remind the commander-in-chief he is asking you to violate the Hatch Act and risk indictment for interfering in a state election?”

Not that it is the most important or objective criterion for selecting the nation’s chief executive, given a choice between the “Hoarse Whisperer” and “Old Yeller,”  I’ll take the former.

For what it’s worth.
Dr. ESP

For anyone who, like myself, has been a public sector employee and been interviewed, deposed or testified in a civil or criminal investigation, Monday’s evidentiary hearing in which former chief of staff Mark Meadows and former assistant attorney general Jeffrey Clark make their case to have their pending Fulton County trials assigned to a federal court brought back a flood of memories.  More importantly, the proceedings will involve some questions of law which to my knowledge have been largely ignored during the media coverage.  Provisions which allow the prosecution to lay a statutory trap to bolster their case.

Meadows has argued he was only doing his job when he placed calls or scheduled meetings with election officials in Georgia on behalf of the president. Expect his legal team to repeatedly declare, “That’s what chiefs of staff do.”  If that is the case, it is unfortunate there is no law preventing taxpayers having to fork over Meadows’ senior executive salary ($183,000/year) to the equivalent of an appointments secretary.  The prosecutors will no doubt respond, “Does your job description include making calls and setting up meetings with election officials for the sole purpose of asking a state official to manipulate the votes in a previously certified outcome?” If Meadows is in the witness chair, he might respond, “I set up all kinds of meetings on all kinds of topics.  I do not see how the substance of the president’s subsequent discussion makes a difference.”

In a Perry Mason moment, the prosecution continues, “Mr. Meadows, you do realize you have just confessed to a violation of the Hatch Act.  Under the Act, you are prohibited from political activity on federal time using federal resources.  You cannot transmit petitions for such purposes using government issued phones, computers or email.  And most importantly, you cannot use your official authority or influence to interfere with an election.  Mr. Meadows, did you do ANY of these things?”

No one has ever gone to prison for a violation of the Hatch Act.  Most infractions result in a warning or reprimand.  In the most egregious cases, an offender is fined and/or terminated.  If Meadow’s lawyers were really interested in their client’s welfare, they would request a recess, confer with their client and then tell Fani Willis and Jack Smith that Meadows will plead guilty to violating the Hatch Act multiple times, pay the appropriate fine and testify for the prosecution in both the federal and state trials.  Meadows can then spend the rest of his life with his family in the Macon County, North Carolina trailer he never owned or lived in,  where he claims to have voted in 2020.

Which brings us to the second trap, waiver of self-incrimination.  Willis’ filings include 161 specific acts which the prosecution claims are evidence of a criminal enterprise to overturn the results of Georgia’s presidential election.  However, as every legal expert explains, the challenge for Willis and her team is to prove the defendants’ intent.  The filings suggest she has the receipts to make her case including recorded conversations, text messages, draft documents, etc.  Refuting the prosecution’s claims may require the defendants to testify on their own behalf.  Meadows’ and Clark’s lawyers will help them shine the most favorable light on their actions during direct examination.  But what happens when the prosecution holds up tangible evidence to Meadows and asks, “Do you really believe this was merely a call to set up a meeting?”  Or with Clark, presents a copy of the draft DOJ communication to Georgia and other state legislators falsely claiming the department was investigating widespread fraud after Clark assures his own lawyers, “We were just exploring options.”

Both, I am sure, will be advised to invoke Fifth Amendment protection against self-incrimination.  Just one problem.  The Legal Information Institute at Cornell Law School describes an exception to this constitutional right as follows.

If a defendant takes the witness stand or a witness discloses self-incriminating information when answering specific questions, then the privilege is waived. Once waived, individuals cannot assert the privilege again when the prosecutor cross-examines their testimony.

Consider the following hypothetical.  The prosecution challenges Clark’s contention the draft memo was just an option.  “Mr. Clark, on January 3, 2021, did you call the president and tell him, if you were named acting attorney general, you would send the ‘draft’ to state legislators and recommend they name their own slate of Trump electors?”  The chorus of “Objection, your Honor” from the defense table will be deafening. 

However, the presiding judge will likely overrule the objection, explaining,  “Mr. Clark testified he only considered the DOJ correspondence as an ‘option.’  That, in and of itself may be an illegal abuse of power, even if he had never discussed it with the president.  You and your client opened the door.  You cannot now make the room inaccessible to the prosecution.”

MGM and Caesars Sport Books say the odds of either Meadows, Clark or any other Georgia co-defendant taking the stand on Monday are infinitesimal.  Yet, you might want to put a few dollars down since much of what has transpired post-November 3, 2020 defies probability.

For what it’s worth.
Dr. ESP