The former president faces serious legal jeopardy. A defeat for Herschel Walker would hardly help him with Republican voters.
The polls are now closed in the Georgia runoff for Senate, and it’s time to start tallying the votes. We’re about to learn whether Herschel Walker, the Republican nominee, was able to rustle up the Election Day surge he needed to overcome Senator Raphael Warnock, the Democrat, who seems to have banked a significant lead in the early balloting.
While you’re waiting for the returns to come in — follow them here, and track our live updates — dig into some reading material:
Here’s an election-eve dispatch from my colleagues who have been reporting in Georgia: Maya King, Reid Epstein and Jazmine Ulloa. And here’s Jonathan Weisman’s take on the five factors that will decide the race.
From Washington, Carl Hulse examines the stakes of the election within the Senate. “The potential upside for Senate Democrats and the Biden administration should their candidate prevail is far more substantial than a single vote might suggest,” he writes.
And here’s some analysis from Nate Cohn, who writes that if Walker wins, “I don’t know how I would explain it. I would have to shrug my shoulders.”
the former guy
‘Watch his political altimeter’
As the political world awaits the outcome in Georgia, things are moving swiftly in the legal arena, where Donald Trump faces a serious threat from Justice Department investigators. A Manhattan jury convicted his business, the Trump Organization, of tax fraud on Tuesday. And if Walker — Trump’s handpicked candidate — loses the Senate race, these seemingly disparate events could soon intersect.
Trump has been hammering away at Attorney General Merrick Garland and Jack Smith, the newly appointed special counsel for two cases that could lead to the indictment of a former president for the first time in American history. Trump has cast the investigations as a political “witch hunt,” with echoes of tactics he has long used to keep Republicans in his corner.
Complicating matters, Trump has announced a third presidential bid. But he is a damaged commodity, burdened by the defeats his candidates suffered in the midterm elections. His Republican critics have grown increasingly bold; polls suggest that substantial numbers of rank-and-file G.O.P. voters now agree. Will Trump’s political force field fail him this time around?
And another shoe may yet drop. On Tuesday, the head of the Jan. 6 committee, Representative Bennie Thompson, a Democrat from Mississippi, said the panel would “probably” make criminal referrals to the Justice Department. The committee is weighing whether to include Trump in that list.
A referral from the Jan. 6 panel would be only a recommendation. But any such move would be freighted with uncertain political consequences — and it’s by no means clear how Trump’s battle for Republican hearts and minds would play out.
To sift through these and other aspects of Trump’s challenges, I spoke with Glenn Thrush, a longtime political and White House reporter who now covers the Justice Department for The Times and has been tracking Garland’s moves closely. Our conversation:
It sounds as if, from your reporting, Garland appointed a special prosecutor only reluctantly. What made him change his mind?
I wouldn’t cast it as a change of mind by Garland so much as it was a gradual, grudging acceptance that it was an inevitable, and somewhat forced, move on a crowded chessboard with few lanes of maneuver.
Garland’s aides have tried to portray the decision to pick Jack Smith as compulsory, dictated by the regulations governing the appointment of special counsels.
It wasn’t. It was Garland’s choice. It was predicated on external forces rather than any deep self-examination of whether or not he was capable of investigating Trump impartially, and it chafed for the attorney general.
Garland did not, notably, invoke the section of the special counsel regulation triggered by an actual conflict of interest — which Republicans have accused him of having; instead, he chose the “extraordinary circumstances” clause in the regulation.
This is something a lot of people miss about Garland, whose quietude can be mistaken for passivity: He might appear to be a “smaller-than-life figure,” as one recent chronicler memorably quipped, but this is a man who once saw himself in the mirror as a Supreme Court justice, and who views himself as a capable arbiter of final resort in any case.
When you talk to experts outside the Justice Department, how seriously are they taking the Mar-a-Lago documents case? Has there ever been anything like this before?
The Mar-a-Lago investigation is very serious.
The Jan. 6 inquiry deals more directly with Trump’s attempts to reverse the results of the 2020 election, but it is an extraordinarily complex case — and there are indications that prosecutors have a long way to go before even considering the kinds of charges that could eventually be brought.
The documents case, which Trump has tried to shrug off as a partisan spat over paperwork, would not be an easy prosecution, either, but it is a lot more straightforward, and hence more dangerous to him in the immediate future.
The government has already made it clear that it is focused on two primary possible charges, the mishandling of sensitive national security documents under the Espionage Act and obstruction of justice. One of the biggest decisions Smith is likely to face, people close to the situation have told me, would be whether to charge Trump with both — or focus on obstruction alone, with the Espionage Act as background music.
It’s also possible prosecutors would bring a case alone on the mishandling of documents. But that could be problematic, especially if there is no evidence that any of the material Trump possessed actually hurt the country.
Moreover, it is unlikely the department would have embarked on a high-risk criminal investigation if Trump had effectively said, “My bad,” and returned everything he had taken when the government issued a subpoena in May.
Trump is running for president again, but he appears pretty wounded after his candidates did poorly in the midterm elections. Does that affect whatever pressure Garland might be under from Democrats to indict Trump? That is, if he’s politically weak, maybe there’s less of a sense on the left that he’s a real threat to become president again.
Two things seem certain. Democrats are going to want Garland to indict Trump whether he is the front-runner or polling below Asa Hutchinson. Politically, you could make the case that charging Trump would create a backlash that could help him. And Garland is going to say that he is paying zero heed to politics.
Enter Jack Smith, who provides Garland with thin, but not negligible, cover.
While Garland technically has the ultimate say over both cases, his power is one of negation. He can reject Smith’s final recommendations, but under the special counsel regulation, he must inform Congress that he is opposing the man he picked, so it seems pretty unlikely that Garland would reject Smith’s work unless something really crazy happens.
Putting your old political reporter hat back on, what’s your read on how vigorously Republicans are inclined to defend Trump and attack the Justice Department? Are you seeing any signs that some in the party are now thinking, “Maybe it wouldn’t be so bad if Merrick Garland and Jack Smith handled this problem for us”?
This is a great question. We covered the 2016 campaign together, and how many times did we predict that some Trump disaster — a debate blunder, his refusal to quickly denounce David Duke, the “Access Hollywood” tape, you name it — would finally set off a mass defection inside the party?
This time might be different, but let’s withhold judgment and watch his political altimeter.
Anyway, that won’t have an impact on these two investigations. Evidence will. Jack Smith and Merrick Garland won’t bring a prosecution they can’t win, and public filings indicate that the Justice Department is not close to bringing charges.
Thank you for reading On Politics, and for being a subscriber to The New York Times. — Blake
Read past editions of the newsletter here.
If you’re enjoying what you’re reading, please consider recommending it to others. They can sign up here. Browse all of our subscriber-only newsletters here.
Have feedback? Ideas for coverage? We’d love to hear from you. Email us at onpolitics@nytimes.com.
Source: Elections - nytimes.com
