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Jim Dennis

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Alabama election laws are weird. The GOP's convulsions dealing with Roy Moore hinge on exactly how weird they are.

Updated below.

As you listen to Alabamian GOP officials hem and haw about supporting Roy Moore, you should know a few things specific to Alabama:

• Alabama has a law (complemented by party rules) that automatically punishes any elected officials for endorsing a candidate other than their party's. It's written such that "anti-endorsing" Moore may trigger the penalty as well: a six-year exclusion from any ballot printed in Alabama. So yesterday's spectacle of Rep. Mo Brooks (R-AL) literally running away from a reporter asking him if he was revising his endorsement can be perhaps better understood in those terms: if he spoke out against Moore, he could lose his seat in congress by being unable to appear on next year's primary ballot.
Even the few GOP officials who have said that they personally intend to vote for the Democrat, or write in another candidate's name, are threading a needle: they may be able to express this, but only so long as they don't make any suggestion this constitutes an endorsement or a recommendation for how other Alabamians should vote.

• Many have asked why the Alabama GOP doesn't strip Moore of his nomination, or why Donald Trump (or whoever else it's believed might have influence over Moore) hasn't made a personal appeal to Moore to withdraw. There are two reasons, with the first being most straightforward and not particular to Alabama:
The ballots with Moore's name have already been printed and sent to absentee voters; it's too late to change them. After the date the ballots are statutorily considered "printed" (in Alabama, 76 days before the election), if the candidate on the ballot wants to run, a party's withdrawal of its nomination has no practical effect. The party can withdraw funding, it can run ads or put up posters condemning the balloted candidate and supporting another candidate (perhaps a write-in, as Sen. Lisa Murkowski successfully did in Alaska after losing her party's nomination), but if the plurality of votes go to Moore and he's still a qualified candidate who says he's still in the race, he is elected regardless of any action the Alabama GOP takes at this point.

• The second reason shows why urging Moore's withdrawal is a non-starter in Alabama. First, let me explain why it could be a reasonable strategy in most other states: in those other states, if Moore had been disqualified or withdrawn, and voters picked Moore's name anyway over that of Democrat (and not the Star Trek: Discovery actor who plays the alien Saru) Doug Jones, the result would be a null election. (This is known in electoral-geek circles as "the American rule.")
The seat would once again become vacant, the governor would choose another interim Senator (or re-appoint current interim Sen. Luther Strange), and she'd announce another special primary and general election for the seat. (In which, incidentally, Roy Moore would be free to run.)
But in Alabama, a 2014 law states that in such a case, the election is not considered null under "the American rule"; instead, any ballot marked for a disqualified or withdrawn candidate (such as—in this hypothetical—for a withdrawn Moore) is considered "spoiled" and is not counted. (This is, in contrast, known as "the English rule", and will be familiar to people who have sat through election-night coverage on the BBC when each constituency declares its votes—the "spoiled ballot" count is always mentioned in the tally.)
The upshot of "the English rule" here means that the highest legitimately balloted vote-getter (almost certainly Democrat Doug Jones) wins.
(Incidentally, I can find absolutely no record of why the Alabama legislature made this change in 2014. If anyone knows, I'd be curious why this change was enacted.)

So, the GOP basically has three choices here:

1. Cede the election to the Democrat Jones. It's been eye-opening for many of us to learn how Alabama Republicans have difficulty determining which is worse, being a child molester or a Democrat.

2. Try to push a write-in candidacy. Perhaps for current interim appointment Luther Strange, or perhaps—as Senate majority leader Mitch McConnell has suggested—for the current Attorney General (and former holder of the vacant seat), Jefferson Beauregard Sessions III. The possibility of Sessions attempting to re-take his seat is one I'll come back to in a moment.

3. Tacitly continue to back Moore's candidacy. This could just be the default by inaction. It may, or may not, be informed by a presumption that the Senate will refuse to seat him or promptly eject him, at which point the (Republican) governor would again get to appoint a new (Republican) interim Senator, and announce a new round of special elections.

As an aside, I should mention there's a fourth, wild and unprecedented possibility—but if the past two years have taught us anything, it's that "wild and unprecedented" don't mean what they used to in electoral politics: the Alabama Secretary of State and Governor could together declare an emergency and cancel the election, to start over with a less problematic Republican candidate.

As far as I can tell, this provision has never been used anywhere in a statewide race for political reasons; it's heretofore been used in cases where a disaster or a massive polling failure means a normal election can't be conducted on the day planned. (For instance, New York exercised this emergency power to reschedule the mayoral election that was to be held on September 11, 2001—and they made this decision on that day, after the terror attack, after many ballots had already been cast.) But nothing seems to preclude Republican elected officials from using such emergency powers to protect party control of a Senate seat. Like I said, precedent may no longer mean anything, so this is a real possibility.

Finally—I said I'd come back to the possibility of Jeff Sessions running as a write-in candidate. This has obvious political advantages for the United States Senate Republican Conference and for the Alabama GOP: the four-term senator has near-100% name recognition, and is probably the only candidate that Republicans could be reasonably sure would win in a write-in campaign, unlike other candidates like Luther Strange who very well could result in a split vote with Moore (whether or not he was a qualified candidate on election day), resulting in a win for Doug Jones. Also, should Sessions unexpectedly not win, he could retain his post as Attorney General.

But there's another factor: President Donald Trump would love to be rid of an Attorney General in Sessions who has recused himself from issues relating to Russia, to the Trump campaign, and to Hillary Clinton. He could then hand-pick a new Attorney General who would follow Trump's will and fire special counsel Robert Mueller, and begin the politically-motivated investigations of Hillary Clinton he so desperately wants.

Trump has apparently felt boxed-in up till now, unable to fire Sessions due to his enormous popularity among conservatives and the Bannonites, and for fear of a minority of congressional Republicans banding with Democrats to take action to curtail his power over the Department of Justice. But if Sessions were to leave to resume his Senate seat,¹ Trump would be far freer to select an AG more to his liking. (Or, more precisely, Republicans in Congress would be freer to run cover for him by pretending a nakedly political power-grab was simply the president exercising his normal constitutional powers as prescribed and expected.)

So: is it contemptible that Alabama Republicans won't disavow Moore, even now? Absolutely. But it's a teensy bit less contemptible than you may think, due to quirks in Alabama election law.

UPDATE, 16 Nov. 21:30 GMT

(I've added this as a comment to several reshares; my apologies if you see it repeatedly.)

I left out a possibility that's being floated today (not because I wasn't aware of it, but because it didn't occur to me as a "choice" the "GOP" could "decide" to "use", but of course it is)—interim appointment Sen. Luther Strange could resign. Because of yet another oddity in Alabama election law, that would create a new vacancy, separate from the one Strange was appointed into, and for which a new election could be held. The election underway would be null and void.

Gov. Kay Ivey could then appoint a new interim appointee (it could even be Strange, which would be strange, wouldn't it? [cough] sorry...), and announce a new special primary, where presumably Roy Moore is not elected (though if you believe some of the polls out today, that may not be a safe presumption!), and a new special general election.

This is roughly equivalent to the "Moore wins and Senate refuses to seat him or immediately ejects him", but is cleaner for Senate Republicans, which is presumably why it's the option McConnell is leaning towards. As he'd be the one who would have to lean on Strange to make it happen, it has a pretty good chance of happening, particularly as we get closer to December 12 if Moore is up in the polls.

¹ For readers who may not be familiar, the Constitution forbids an individual from simultaneously holding positions in more than one branch of the federal government (aside from the unusual and singular case of the Vice President also officially being President of the Senate, but that's mostly a tie-breaking and ceremonial role). The Attorney General is an officer of the Executive Branch, so would be unable to take a seat in the Senate without first resigning from DOJ.

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Over 400 millionaires sent this to Congress:

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Popping the Red Pill: Inside a digital alternate reality - CNN Money

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Someone once asked Dennis Ritchie:

"In your experience, how long does it take for a novice programmer to become a proficient C programmer, capable of writing non-trivial production code?"

Dennis replied:

"I don't know. I never had to learn C."

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Whiskey Tango Foxtrot, indeed!
Last week, some information came out about the criminal investigations into Michael Flynn Sr. (the former National Security Advisor) and his son, which put the revelations that started to leak about him last March into an even crazier context. Lawfare has an excellent summary of just what the new information means, and how much more serious this has gotten.

The part we knew as of March was that, during the 2016 campaign, Flynn (Sr.) was acting as an illegal agent of the Turkish government.* During this time, according to a multiply-sourced WSJ report, he had a meeting with that government in which they discussed a plan to kidnap Fetullah Gülen, a Turkish emigré living in Philadelphia who Erdogan regards as his chief political enemy, and transport him secretly to Turkey, where he would presumably be imprisoned or executed.

What we learned in the past week was that there are a few other things that make this even nuttier:

(1) Flynn apparently continued to act as an agent of the Turkish government after the election, when he was NSA-designate, and had at least one meeting with Turkish representatives where they were discussing the Gulen plot in more depth.

(2) It is not clear whether, during this meeting, the discussion was about kidnapping Gülen illegally (as during the previous meeting), or about Flynn using his influence as NSA to force the DOJ to extradite him, even though the DOJ has long made clear that extraditing someone's political enemies to face a kangaroo court or simply a firing squad is not consistent with US law. However, he and his son were apparently offered $15M by the Turkish government to do one of these things.

(3) It is not even clear whether Flynn stopped being a Turkish agent on January 20th, when he became National Security Advisor.

This is, to put it mildly, very felonious. Not "you failed to register as a foreign agent" felonious, but conspiracy to commit kidnapping, soliciting bribes, and acting as a foreign agent while a US government employee felonious, which is a whole different ballpark.

Now the thing is: We don't know which, if any, of the allegations in (1)-(3) are true. There's enough sourcing on the March releases that I'd say that we have a pretty high degree of certainty about the original meeting; the ex-director of the CIA was at that lunch too, and when he heard them talk about this he promptly said "what the fuck?" and reported it immediately. (That's not the level of proof required for a conviction, obviously, but it's a safe bet that it means that there is more than enough evidence to prove what happened at that meeting.) But so far there's little public information about his conduct after the election, or after the inauguration.

The most serious charge of all in this stack, conspiracy to kidnap (there would be both state and federal charges possible here, thanks to the international angle) would require proving that not only did two or more people discuss plans to do so, but that at least one of the co-conspirators then "do any overt act to effect the object of the conspiracy." While I have no information about whether this happened, I would note that the March meeting alone may be enough to prove the first part of this, and given that he was conspiring with the officials of a government that has imprisoned over 160,000 people on the suspicion of being vaguely allied with Gülen since mid-2016 alone**, the odds that they engaged in at least one overt act are actually pretty good.

Which means that Flynn may have a great deal more to worry about than we knew.

This puts all the previous discussion about the Flynns being witnesses which Mueller intends to flip in a very different light. If he were facing nothing more serious than a charge of failure to file paperwork as a foreign agent, he would have reason not to be too worried, and this is why people were wondering much more about the legal status of his son, who is apparently in a great deal of hot water. But if Flynn is looking at life without parole (the statutory max for conspiracy to kidnap under both 18 USC 1201 and 18 Pa Cons Stat 2901), he is having a very different set of conversations than the ones we expected.

So to sum up: The FBI is currently investigating whether the former National Security Advisor, immediately before and/or during his term of office, was acting as an agent of a foreign government and plotting to kidnap people on their behalf, and/or to accept a large bribe to cause that kidnapping to happen through slightly less illegal means.

And no, this is not the plot of a spy thriller. This is what real life looks like in 2017.

I am seriously running out of appropriate terms for "what the fuck is going on here?"

* He publicly admitted this, and has retroactively filed the registration papers to make him a legal agent of their government – which is often something prosecutors will let drop if you do. If that's all you did. If you want a snapshot of what we knew for sure and suspected as of March:

** ; Erdogan blamed the April 2016 coup attempt on Gulen, and
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