The Tricky Excuse Trump Has for Skipping the Debate

Welcome to Trail Mix, a fun but nutritious snack for your election news diet. See something interesting on the trail? Email me at jake.lahut@thedailybeast.com.

This week, we examine a less discussed reason for Trump to chicken out on the first GOP debate. Plus, a GOP senate candidate who denounced Trump in 2016 flirts with far-right extremists, Nikki Haley blasts out potentially the most offensive map of China imaginable, and North Carolina gets its first Latino statewide candidate. Your author is back from vacation and downright chuffed for Arsenal to kick off their season vs. Nottingham Forest on Saturday.

Debating the debate

Donald Trump’s campaign has been banging the drum for weeks that he’s too formidable of a frontrunner to waste any time debating his opponents, citing an imaginary incumbency advantage by pointing to President Joe Biden refusing to debate his pair of Democratic challengers.

But there’s another, more serious reason why Trump might not make it to any of the debates this cycle at all: It could, theoretically, land him in jail.

At the arraignment for his third indictment this year in D.C. court last week, U.S. Magistrate Judge Moxila A. Upadhyaya spliced in a highly unusual warning in her otherwise boilerplate remarks about Trump’s duty to show up to his next hearing.

“I want to remind you that it is a crime to try to influence a juror or to threaten or attempt to bribe a witness or any other person who may have information about your case, or to retaliate against anyone for providing information about your case to the prosecution, or to otherwise obstruct the administration of justice,” Judge Upadhyaya told the former president.

Jack Smith Wants Trump Convicted by Super Tuesday

While a Trump adviser told The Daily Beast that the boss’s long-simmering feud with Fox News may be the most influential factor behind his decision to skip the first debate—despite CEO Suzanne Scott and President Jay Wallace making the trek out to Bedminster, New Jersey, to schmooze with Trump over dinner at his club—he’s also weary of “other possible mainstream media hosts,” a point of contention for other campaigns with the RNC as well.

Trump aides may be a little reticent to actually use the excuse that the former president can’t debate other candidates because he lacks the self-control to not cause himself legal problems. In fact, Politico reported earlier this week that a person close to the campaign said none of his attorneys had warned Trump against attending the debate. “And if they did, they wouldn’t like the response,” this person said.

But like most things that come out of the Trump campaign, you have to take the official word with a Trump Tower-sized grain of salt.

Notably, other campaigns do not have to deal with a judge warning them that they’ll get thrown in jail if they try to intimidate the jury or prosecutors. Aside from debating, those are two of Trump’s favorite pastimes, which puts him in a new kind of conundrum.

One thing Trump wouldn’t have on a debate stage is much in the way of 5th amendment protections against self-incrimination, despite hearty protections in the Constitution around political speech, according to Tracey Maclin, the University of Florida Levin College of Law’s Raymond & Miriam Ehrlich Chair in U.S. Constitutional Law.

“The government is not compelling him to take the debate stage,” Maclin told The Daily Beast for this edition of Trail Mix. “In fact, in order for the Fifth Amendment to apply, it can’t be anyone. It has to be the government.”

Putting it in more blunt terms, the constitutional law professor explained why Trump has more problems than just the debate stage when it comes to potentially incriminating himself or crossing the judge’s line in the legal sand.

“Most criminal defense attorneys would never let their clients to go on and on talking this bullshit,” Maclin said. “He’s only hurting himself. I’m sure the Special Counsel’s Office has someone, 24/7, monitoring TV and his social media pages.”

Trump Losing in Court (or in Another Election) Won’t Be Enough to Save U.S. Democracy

For Trump, going on the debate stage is particularly risky because multiple potential witnesses will be on the debate stage with him. His Vice President Mike Pence—as of this week—finally made the debate. Pence is potentially a critical witness about Trump’s efforts to overturn the election.

And while Chris Christie promptly exited Trump’s camp after he lost the 2020 election, the former U.S. Attorney and federal prosecutor is well aware of how to lead Trump into legally precarious waters. He also told podcast host Kara Swisher that he was interviewed by special counsel for the D.C. probe around two months ago, where he said prosecutors were looking to glean a better understanding from him over how Trump viewed his loss to Biden.

Still, Trump and his campaign are likely glad to have the excuse of potential legal ramifications for skipping debates, though it could be a strategic mistake for aides to broadcast that defense, as it just reminds voters that Trump is acting more like a defendant than a president at the moment.

At the same time, Trump has shown little interest in actually debating, seeming to recognize he has more to lose than gain. Instead of convincing him that he should get on the debate stage, the pilgrimage from Scott and Wallace from Fox News may have actually emboldened Trump, one GOP strategist argued.

“It shows that Trump is in a position of strength. I think they’re worried about their ratings to an extent,” the strategist said of Fox, requesting anonymity. “I think they’re worried about him counter-programming and causing utter chaos for them.”

Trump did it once in 2016, still fuming over then-Fox News host Megyn Kelly’s opening question in the first debate of that cycle about his past comments on women. Instead, he held a rally in New Hampshire and called Ted Cruz “an anchor baby in Canada.”

That might work for one news cycle, but should Trump grow tired of foregoing the spotlight at future debates, he could put himself in yet another genuinely unprecedented position.

Of course, Trump being Trump, he could always decide at the last minute that he wants to participate in the debate. He has said he will decide definitively one way or the other in the coming days, though his refusal to sign a pledge supporting whoever is the GOP nominee in 2024—supposedly a prerequisite for appearing on stage—is a good indication he’s not coming.

But the legal implications are a good reason why.

“The reason this is unexplored territory is because most defendants listen to their attorneys when they tell them under no circumstances are you supposed to talk about this case,” Maclin said, noting that just about everything Trump has said in his rallies so far about the justice system being rigged and the case amounting to political persecution would be fine, as far as risking any jail time goes.

However, Maclin said, the jury intimidation aspect is where things could get murkiest.

While Trump can say just about anything he wants with no regard for factual accuracy about much of the D.C. case, getting remotely specific about the jury or potential witnesses “is not constitutionally protected,” Maclin said.

“I mean, he’s really an idiot going on and talking about it, although part of it is the campaign, and the post-indictment procedures have turned into his campaign,” Maclin added. “But for him to complain about the system, for him to say even that Biden is somehow behind all of this—which is not true, of course—but I don’t know where the judge could say, ‘Oh that’s contempt, and I’m gonna throw you in jail.’ That would be a big mistake on the judge’s part, and would only engender more sympathy from his base.”

The rules of the road should be simple for Trump, should he finally give in and join his Republican rivals on the debate stage.

“He has no First Amendment right to intimidate witnesses. He has no First Amendment right to threaten government employees,” Maclin said. “The line that’s not clear is influencing the jury, because a defendant is constitutionally entitled to say, ‘I’m innocent.’”

Off the beaten path

Out of the reshuffle: David Reaboi, a pro-DeSantis influencer and a national security-oriented communications and policy adviser, was convinced he would get the nod as communications director following the most recent DeSantis campaign shakeup, according to two GOP sources familiar with the discussions. Unfortunately for Reaboi and the many friends he told about his exciting new gig, it never panned out, while perennially online firebrand Christina Pushaw prevailed with the arrival of fellow ex-governor’s office staffer James Uthmeier, who was previously the governor’s chief of staff. When reached for comment, Reaboi told The Daily Beast there’s “no way” he’s trying to join the campaign, and called the communications director rumors “BS.”

A nod and ayoo to the far right: New Hampshire Republican gubernatorial candidate Kelly Ayotte has had almost eight years to figure out how to handle Donald Trump and a reshaped GOP upon her re-entry into politics. Ayotte denounced Trump in 2016, walking back comments describing him as a “role model.” Since then, she’s said she would vote for him in 2024, but “he doesn’t have my endorsement.” Now, reported exclusively in Trail Mix, Ayotte’s ties to the extremist group Moms for Liberty have resurfaced in a since-deleted tweet from New Hampshire extremist Jeremy Kauffman and his wife, Rachel Goldsmith. Goldsmith headed the state’s chapter of Moms for Liberty, a group founded in 2021 with ties to the Proud Boys and the Jan. 6 insurrection. Kauffman has a history of incendiary rhetoric—including using the n-word, once tweeting that the only thing more racist than the term “is the idea that Black people are so fragile they’ll be hurt by seeing the word written out.” Goldsmith also served as the former executive director of the Free State Project, a breakaway libertarian group that advertised a life free of government interference by courting people to move to New Hampshire and eventually form an independent state that would secede from the union. Ayotte’s campaign did not return a request for comment.

Fable of Bogus: Nikki Haley’s campaign deleted a tweet showing a highly unusual map of China, configured perhaps in the most offensive way possible. The map of “Communist China” accidentally included the borders of Tajikistan, Kyrgyzstan, and Taiwan, marking quite the faux pas from one of the biggest China hawks in the 2024 field.

A first in North Carolina: Gabe Esparza, a Charlotte Democrat, became the first Latino candidate for statewide office on Thursday when he announced his bid for treasurer. A longtime business executive with experience as a senior Small Business Administration official, Esparza is also a trustee at Central Piedmont Community College.

Polling station

A new Reuters/Ipsos poll found Trump’s third indictment hasn’t had a noticeable impact yet, and that he’s polling neck-and-neck with President Biden in a hypothetical rematch at 35 percent to the incumbent’s 33 percent.

“The third indictment against Donald Trump does not fundamentally alter the 2024 landscape. Republicans continue to be solidly behind the former president,” Cliff Young, IPSOS’ president of U.S. public affairs, said in a press release. “We are, however, in uncharted territory and our most recent polling suggests a conviction, if it were to happen before the election, would have a significant negative impact on Trump’s chances.”

Campaign lit

The will to plagiarize. The Daily Beast’s Roger Sollenberger uncovered the college thesis of a Florida congressional candidate that one scholar called “a fascinating text from a plagiarism standpoint.”

Youngkin in the Hamptons. Wilbur Ross broke out his red slippers to host a fundraiser at his East End mansion for Virginia Gov. Glen Youngkin, who could enter the 2024 GOP field late on as a DeSantis alternative. Page Six got ahold of the invite.

The Quantum Mayor. Eric Adams and his history of embellished or flat out inaccurate tall tales got caught up in the web of New Yorker profile specialist Ian Parker, who wrote a devastating one on hizzoner.

Dark Pence. Trail Mix author Jake Lahut dove into the strange state of the Pence campaign and whether the former VP is really running for president, or something else.

Read more at The Daily Beast.

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