These, the gruesome reality of pregnancy loss, are not words we often hear during Supreme Court oral arguments, buttoned-up proceedings where the justices prefer theory and abstraction to blood and organs.
On Wednesday, the right-wing justices really preferred the safe world of legal abstraction, where they could pretend that Idaho’s abortion ban — which only has an exception to save the woman’s life — won’t inevitably leave women to gruesome suffering.
The Court’s conservative wing tried with increasing and atextual persistence to convince listeners that Idaho’s strict ban still allows emergency room doctors to provide abortions to women in varying states of medical distress, and not just when doctors are sure the patient is facing death. They crafted a kind of anti-abortion fantasyland where not only do exceptions work, but that the narrowest ones will amenably stretch to cover all the sympathetic cases.
The Supreme Court hears arguments Wednesday in a case centered on whether emergency room doctors can provide abortions to women who need them to avoid serious illness and permanent damage — or whether they have to withhold medical care until those women are nearly dead.
The case comes out of Idaho, where the Biden administration says that the state’s abortion ban — with only an exception to prevent the death of the woman — must be superseded by a federal statute requiring hospitals taking in Medicare funds to stabilize patients by whatever means necessary.
The Supreme Court already interceded unusually early to let the Idaho ban go into effect while the case is litigated (not a good sign for abortion rights).
I routinely tell people not to look at every single poll but to focus on trends over time. That is, if you want to look at them at all. We’ll go into Election Day with the polls tight and the outcome still uncertain. I can say this because I actually watch them very, very closely … like unhealthily closely. It’s characterological. I don’t advise it for anyone else. But if you must, it’s okay, and I can relate.
This morning there’s a new batch of swing-state polls from Bloomberg/Morning Consult showing Trump ahead in all but one of those states and growing his lead versus the last of these polls a month ago. That’s not great at all. But as usual I would not invest too much weight in a single poll. These numbers are not in sync with other recent swing-state polls, though actually we have pretty few quality swing-state polls recently. But the overall trend over the last six or seven weeks still seems like what we’ve discussed in the last several posts on this topic. After several months of being behind by a small but real amount (2-4 percentage points), Biden has moved into roughly a tie.
Judge Juan Merchan heard arguments Tuesday about whether Trump had or had not already violated the gag order against him in the case multiple times. He didn’t rule from the bench, but with no trial today, I’d be surprised if he didn’t issue his ruling before trial resumes tomorrow.
Merchan was unsparing in his criticisms of the arguments made by Trump lawyer Todd Blanche, at one point telling him: “You’re losing all credibility with the court.” (The jury was not present for this exchange.) Merchan gave no indication how he would rule or the punishment, if any, he would impose.
I have no sympathy for Blanche or the role he’s put himself in, but clearly his effort to channel Trump himself is antagonizing the judge. No surprise there, really. Trump is his own worst enemy, and he’s taking a scorched-earth approach to the trial that is eliciting little sympathy from anyone and foreclosing viable defenses that, while they wouldn’t necessarily lead to acquittal, might soften the blow of a conviction.
Trump is all in on demonizing the whole process, denigrating anyone associated with it, and delegitimizing the court itself. It’s an all-or-nothing approach that would drive most criminal defense attorneys mad.
Stay tuned today for a possible ruling from Merchan.
No Trial Today
After two partial days of testimony, the hush-money trial stands in recess today. It will resume Thursday.
Because of Passover and a juror’s dental issue, we’ve had a halting start to the trial proper. Former National Enquirer publisher David Pecker has only testified for a couple of hours so far.
Things ended yesterday with a bit of cliffhanger, as prosecutors had walked Pecker to the cusp of testifying about the Stormy Daniels story. Expect them to pick back up there tomorrow.
Trump And The Tabloid World He Came From
David Pecker’s testimony pulled back the curtain on the bizarro, self-aggrandizing world of Trump and the tabloid world from which he emerged. We knew all of this already, in a way, but it was striking to hear it straight from one of the principal operators in that seedy-but-lucrative publishing backwater:
WaPo: A secret pact at Trump Tower helped kill bad stories in 2016
Philip Bump: Ted Cruz spotted the Trump-National Enquirer alliance in 2016
WaPo: Trump’s long, strange history with the tabloids
Coverage Tips
For the dedicated obsessives, a few deep-dive links:
To its credit, the New York court system will be posting daily transcripts of the trial here (it looks like we’ll get those on the following day, not the same day, but beggars can’t be choosers).
Quote Of The Day
Romney: I think everybody has made their own assessment of President Trump's character, and so far as I know you don't pay someone $130,000 not to have sex with you. pic.twitter.com/7N9lu8pkww
Ahead of tomorrow’s momentous Supreme Court oral arguments over Donald Trump’s strained claim of presidential immunity, Melissa Murray and Andrew Weissmann argue the high court has already botched the case.
Trump Executive Privilege Claims May See Light Of Day
Politico won an appeals court ruling ordering the unsealing of the court records in as many as five battles over executive privilege that Special Counsel Jack Smith fought to get high-level Trump White House officials to testify in his investigations of Trump.
Ukraine Aid Passes Senate
The Senate passed the foreign aid package that includes military assistance to Ukraine late Tuesday but not before Senate Minority Leader Mitch McConnell (R-KY) happily used the occasion of the bill’s imminent passage to slam Tucker Carlson:
Mitch McConnell: "I think the demonization of Ukraine began by Tucker Carlson, who in my opinion ended up where he should've been all along, which is interviewing Vladimir Putin" pic.twitter.com/EYFxxKQVEc
The Supreme Court takes up another post-Dobbs abortion case today. The issue is whether a federal law requiring emergency abortions to protect pregnant patients in medical distress overrides Idaho’s abortion ban. TPM’s Kate Riga will be on our coverage.
President Biden ripped Trump on abortion in a Tampa speech:
Wow. Biden in Tampa on Trump: "He said there has to be punishment for women exercising their reproductive freedom … maybe it's coming from that bible he's trying to sell. I almost wanted to buy one just to see what the hell is in it." pic.twitter.com/DbBkOI5lWH
NY-01: Indicted and ousted former Rep. George Santos (R-NY) has dropped his independent bid for the seat currently held by Rep. Nick LaLota (R-NY).
Politico: Why narrow majorities and House gridlock are here to stay in 2024
Who Is ‘We’ Exactly?
The Republican National Committee co-chair and daughter of its presumptive presidential nominee is just out there touting the Big Lie and threatening voters with prosecution:
Lara Trump: If we catch you cheating and we’re looking for you out there to cheat, we will prosecute you pic.twitter.com/f9JHENoNJP
Protesters chanted “Blood on your hands” at Tennessee House Republicans on Tuesday after they passed a bill that would allow some teachers and staff to carry concealed handguns on public school grounds, and bar parents and other teachers from knowing who was armed.
In my brief legal career 20 years ago, I spent more time litigating noncompete agreements (on both sides) than on any other single area of law. It was a weird and rapidly evolving area of the law back then. Weird because noncompete agreements were generally disfavored at law as anti-competitive (duh!), but over time numerous exceptions had been carved out that left plenty of room both for trying to enforce them and trying to defend against their enforcement. Hence, lots of litigation.
My understanding is the new FTC rule still allows the kind of noncompetes I was typically dealing with: binding either top executives or former owners who had signed a noncompete as part of the sale of their business. Because of more equal bargaining power, those types of noncompetes are less objectionable from a public policy point of view.
The FTC targets noncompetes for employees, whose bargaining power is more limited and for whom the widespread and indiscriminate use of noncompete agreements does begin to have real anticompetitive effects in the labor market.
Have A Whimsical Day!
Kites fly during the 37th International Kite Festival (RICV), at the beach of Berck-sur-Mer, northern France, on April 23, 2024. (Photo by Sameer Al-DOUMY / AFP) (Photo by SAMEER AL-DOUMY/AFP via Getty Images)
A local Arizona news outlet published a story last week highlighting remarks the Republican Senate candidate and election denier Kari Lake made to a crowd at an event put on by the Mohave County Republican Party. She appeared to lament the fact that the 1864-era total abortion ban that the state Supreme Court just allowed back on the books won’t be enforced in the state, unless local sheriffs decide to do it.
NEW YORK — Manhattan prosecutors teed up a key witness in Trump’s criminal trial on Tuesday to delve into the hush-money allegations that form the center of their case: concealed, and allegedly covered-up, payments to adult film star Stormy Daniels.
Sometimes a story catches fire and just a really straightforward look at the fine print shows there’s really nothing to it. One of the recent examples has to do with Sen. John Fetterman and the increasingly vocal complaints that he’s gone rogue from his progressive roots and is likely to one day become or is possibly already on his way to becoming the next Joe Manchin or Kyrsten Sinema. There’s actually a whole conversation on social media about how we’ll soon see him coming out against getting rid of or abolishing the filibuster.
It hadn’t fully occurred to me until opening statements yesterday that Donald Trump was going to stick with his claim that he never had sex with Stormy Daniels or, by extension, Karen McDougal.
As the first real day of trial unfolded yesterday, it became apparent that Trump wasn’t merely going to argue that this was a bullshit application of the business records law and that nothing he did amounted to criminal conduct. Rather, he was going to continue with the maximum denial: No sex, no affairs, no hanky-panky period.
That sets up the challenge of having to overcome the expected testimony of Daniels about the sex, in addition to all the testimony from Michael Cohen, David Pecker and others about how this transaction worked, what it was for, who was involved, etc.
If you’re a juror listening to all this, you almost have to believe that there was a massive setup of Trump, a wide-ranging conspiracy against him, in order to rule in his favor. That’s a high bar to clear.
‘What Have We Done?’
A resonant moment in court yesterday:
According to the prosecution's opening statement:
On election night 2016, as Trump edged closer to being declared the victor, Stormy Daniels' then-attorney Keith Davidson sent this text message to National Enquirer editor in chief Dylan Howard:
Josh Kovensky will be liveblogging the proceedings again today. Great stuff! Check it out.
First Order Of Business Today: Gag Order
Judge Juan Merchan is expected to take up Trump’s 10 alleged gag order violations in a hearing at 9:30 a.m. ET, before trial resumes later this morning. This can go in a lot of different directions, so I’m not to make any predictions. I would keep your expectations very low that Trump is going to be hauled off to jail this morning.
Things to know:
Just Security: Why Trump Will Likely be Held in Contempt and What Then
To what I am sure was the dismay of prosecutors, star witness Michael Cohen himself went after Trump on X/Twitter in a juvenile way.
More From Day 1 Of The Trial
The Atlantic: Trump’s Misogyny Is on Trial in New York
Philip Bump: Unpacking the alleged crime that made Trump’s alleged crime a felony
Harry Litman: How Trump’s trial will go well beyond the charges to paint a damning portrait of him
How’s The Trial Going For Trump?
The Fox News propaganda machine is so reliably pro-Trump that it can actually serve as a decent barometer of how things are going for him. When the Fox News defenders debase themselves with especially over-the-top, ridiculous, and far-fetched lines of attack, it’s a pretty good sign Trump is in the shit:
Watters: Trump has been on the move his whole life. Golf, rallies, movement, action, sunlight, fresh air, freedom. This isn’t lawfare. This is torture. They’re making 77 year old man sit in a room for 8 hours straight, four days a week pic.twitter.com/44Msywm7fe
The man running to be president again finds it torturous to sit in a room for a grueling eight hours a day and a whopping four days a week. Brutal.
‘Plasmic Echo’: Eye-Opening New Deets In Unsealed MAL Docs
On order from U.S. District Judge Aileen Cannon, hundreds of pages of investigative records in the Mar-a-Lago case were unsealed yesterday (with heavy redactions). Among the highlights:
The FBI code name for the Mar-a-Lago investigations: Plasmic Echo
A senior Trump aide who had access to Trump in the White House and post-presidency cooperated with investigators.
Trump valet and co-defendant Walt Nauta was allegedly told he’d receive a pardon in 2024. (Editor’s note: If Trump does win, he won’t take office until 2025 …)
These were records that Special Counsel Jack Smith had fought to keep sealed.
Trump Prosecution Miscellany
NYT: The Circus Trump Wanted Outside His Trial Hasn’t Arrived
Aaron Blake: Trump’s transparent attempt to play the victim on ‘election interference’
NYT: Could Trump Go to Prison? If He Does, the Secret Service Goes, Too
Quote Of The Day
January 6th was no less than an intent and an effort to replace by force who our country had voted for. The mob was there because it hadn’t achieved what it wanted to at the ballot box.
U.S. District Judge James Boasberg of Washington, D.C., in sentencing a Jan. 6 rioter
Trump Appeal Bond Gets All Sorted Out
New York Attorney General Letitia James and Trump worked out an agreement on the fly yesterday to tighten up his appeal bond, and the judge in the case approved it. That should put this whole matter to rest for the pendency of Trump’s appeal of the mammoth $454 million judgment against him in the civil fraud case.
2024 Ephemera
AP: In Tampa, Biden will assail Florida’s six-week abortion ban
TPM’s Nicole Lafond: Abortion Group, Dems Warn Swing State Voters That RFK Is Just As Dangerous As Trump On Abortion
Jordy Meiselas: Just a few weeks after you were in Pueblo, Colorado, Congresswoman Boebert left her district. Is that a coincidence or Dark Brandon at work?
As abortion access promises to be an energizing driver for voter turnout in 2024 — with abortion initiatives making their ways onto ballots in a handful of states — abortion advocates and the Democratic Party are reminding voters early and often that a vote for President Biden is the way to preserve abortion access in their states.
