Florida, Oh Florida

It Ain’t Over:   The fat lady hasn’t sang yet but the way this election is going a lot of nervous noshers on both sides of the aisle might find her wardrobe too tight to borrow before all the results come in.  On the House front, the Democratic ripple has turned into a fulsome wave.  As of now Democrats have gained a net of 32 seats with seven races still undecided.  It’s highly likely that the blue gain will end up somewhere around 37 seats, a historically impressive number given the Republican favoring gerrymandering put in place following the 2010 census.  Notably among the Democratic victors is Lucy McBath who edged out Republican Karen Handel for the Georgia 6 seat that Jonathan Ossoff failed to secure during last June’s hugely expensive special election.  The Georgia 6 seat, once held by Newt Gingrich, had been vacated by Health Secretary for a minute Tom Price.  On the Senate side three races are still undecided.  In Arizona where most people vote by mail, 500,000 ballots remain uncounted.  As of last night Democratic candidate Kyrsten Sinema has moved into the lead, ahead of her opponent Republican ally Martha McSally by around 9600 votes.  In a sign of their nervousness, Republican groups have gone to court to challenge the way Arizona counties verify signatures on mail-in ballots dropped off at the polls on election day.  The lawsuit provides one indication of Republican anxiety over results from Maricopa County, the most populous area of the state, where Sinema has dominated so far. Given the number of ballots that still need to be counted, it will be days before an Arizona victor is declared.  And then there is Florida where the races for Governor, Senator and even Agricultural Commissioner are within the margin of error that would automatically trigger recounts.  The number of votes separating Republican Senatorial candidate/current Governor Rick Scott and incumbent Democratic Senator Bill Nelson is now .21%,  less than the .25%, threshold for triggering a mandatory manual recount, while the differential between Tallahassee Mayor/Democratic Gubernatorial candidate Andrew Gillum, whose earlier concession is no longer relevant, and Republican candidate Ron DeSantis is between .25% and .50%, an amount that will trigger a machine recount. This being Florida, the state with the questionable election outcome that led to the infamous recount settling Bush v Gore Supreme Court decision , the one that that resulted in Bush becoming president, it’s no surprise that things are getting very contentious.  Something weird happened in Democratic leaning Broward County where a disproportionate number of voters inexplicably “forgot” to cast any votes for Senator something that is questionable at best.  Despite that oddity, last night Rick Scott filed suit, asking for an investigation into ongoing ballot counts that he accused of being a partisan attempt by "unethical liberals" to steal the Senate election, his way of saying that he doesn’t want anyone doing anything to uncover any more votes for his opponent, Democratic incumbent Nelson.  He went on to tell reporters  that "Every day since the election the left-wing activists in Broward County have been coming up with more and more ballots out of nowhere." Together with the National Republican Senatorial Committee, Scott is now suing both the Broward and Palm Beach County election supervisors.  He’s not the only one who is nervous about the outcome,  fearing that his already celebrated “bigly” Senate cushion could shrink, Trump is weighing in too.  Last night he tweeted  "Law Enforcement is looking into another big corruption scandal having to do with Election Fraud in #Broward and Palm Beach. Florida voted for Rick Scott!"  All sides have now lawyered up, it will be a while before we know who’ll be running Florida in the new year or who the state will be sending to the Senate, but then again this is Florida so while there’s always a chance that the truth will win out it’s highly likely that through a combination of finagling and suppression, the Republican margins of victory will remain intact.  The outcome of the Gubernatorial election in Georgia is also up in the air.  Though votes are still being counted, Republican Brian Kemp is so confident that his apparent victory will hold that he has stepped down from his Secretary of State position to start packing for his move to the Governor’s mansion.  That said Democratic candidate Stacy Abrams hasn’t thrown in the towel yet, she’s remains convinced that once all the votes are counted, Kemp’s percentage of the vote, currently at 50.3%  will drop enough to require a runoff election.  She’s persistent, this isn’t over.  As to Mississippi, the third state without a finalized Senatorial election, we will have to wait until later this month until after a mandated runoff election is held to learn who the state will be sending to Washington.  Odds are that Republican Cindy Hyde-Smith will win unless Democrat Mike Espy manages to defy the odds in what is now a very red state.

Mueller Time’s Up?  Trump appears to have finally found his Roy Cohn in Matthew Whitaker.  The more that we learn about the newly appointed Acting Attorney General, the clearer it becomes that Whitaker who could fairly be described as a partisan hack, was not picked because of his stellar credentials but was more likely selected with the expectation that he will do what’s best for Trump and not what’s best for the country.  The Iowa State law school grad has limited relevant legal expetise; questions some long established landmark Supreme Court decisions including Marbury v Madison, the decision that established the principle of judicial review; has  questionable business acumen; and, like Trump has actually been involved with at least one company pushing fraudulent services.  Though so far he’s made it clear that he has no plans to recuse himself from the Russian investigation, he’s already on record, written and videotape, questioning Mueller’s appointment, the scope of his investigation and the validity of the investigation all together. Additionally he’s denied that there has been any collusion or obstruction. Though not yet in power, House Democrats have already made it clear that they don’t plan to sit idly by while Whitaker does what most expect him to do, limit or dismantle Mueller’s investigation.  Yesterday the ranking Democrats who in January will be the chairs of committees overseeing judicial activities sent out a document preservation notice reminding administration officials including Whitaker that “concealing, removing or destroying such records may constitute a crime, may result in the immediate disqualification from holding a position in the federal government and may be punishable by up to three years' imprisonment under federal law."  Similar warnings, issued by Senator Feinstein and Representatives Elijah Cummings, Jerrold Nadler, and Adam Schiff, were directed to FBI Director Wray, CIA Director Haspel and other national security officials.  Senator Collins, the soon to be gone Senator Flake and Senator-elect Romney issued similar verbal warnings.  As to Whitaker’s appointment, yesterday in a NY Times op-ed, George Conway, the respected super conservative lawyer who turned down the opportunity to serve as Trump’s Solicitor General and who also happens to be Kellyanne’s husband, and  Neal Katyal who served as the acting Solicitor General under Obama, argued convincingly that Trump broke the law when he appointed Whitaker to replace Sessions.  They say that because Whitaker was never confirmed by the Senate his appointment is a violation of the Constitution’s Appointments Clause, which they believe requires all “principal officers” of the government to be Senate confirmed.  Though not everyone agrees with them, their view is widely held.  It’s not clear how long Whitaker will serve as acting AG although he will probably be around long enough to inflict some damage and might even be able to squash a subpoena or two including the one that might be sent to Trump himself, assuming it hasn’t already been delivered.  In the meantime, it’s reported that Trump is busy interviewing candidates to serve as the next attorney general.  One of those candidates, former NJ Governor Chris Christie visited the White House yesterday.  Senator Lindsey Graham also spent some time with Trump yesterday.  To the extent that he is to be believed, Graham is not interested in serving as Attorney General but come January he will be the Chair of the Senate Judiciary Committee so it’s quite possible that Trump was seeking his advice on who among his possible choices would be confirmable.  Hopefully, Graham advised him that some of the other names on his list, including  Rudy Giuliani and Florida Attorney General Pam Bondi who has been accused of accepting a political contribution in exchange for turning a blind eye to accusations of fraud at Trump University  wouldn’t pass muster.  Trump is also thought to be considering Health Education Secretary Azar and Labor Secretary Acosta, chiefly because they have both been previously confirmed. 

Other Legalities:  Say a prayer for the Notorious RBG AKA Justice Ruth Bader Ginsburg.  She fell in her office two days ago and though she felt okay enough to head home after work, she subsequently checked herself into the hospital where she is now recovering with three cracked ribs.  Quite a few tweeters have offered her a rib or two or three to the extent that would speed her recovery.  And let’s hope she recovers soon, yesterday, in a decision likely to make it to the Supreme Court, the 9^th Circuit Court of Appeals ruled that Trump’s decision to phase out DACA was likely “arbitrary, capricious, or otherwise not in accordance with law.” Today, in another act that will likely wind its way through the courts, Trump is expected to  sign a proclamation that would bar asylum for anyone crossing into the country illegally. Immediately after he signs his proclamation, he plans to leave for Paris for a World War 1 Commemoration.  To the extent that he checks the TV while traveling, and he most certainly will, he might learn that the soon to be timed out Mueller took full advantage of his sixty days of pre-midterm silence.  Expectations are high that a dump of Rosenstein approved indictments is imminent.