In Decatur, Georgia, a momument to the Confederacy stood for 100 years before being removed in 2021. Yesterday it was replaced by a 12 foot statue of John Lewis, the civil rights leader and U.S. Representative who died that year. — Read the rest
Luxury electric automaker Rivian made several big announcements this week related to its expanding product line. At the same time, though, the company announced that it would pause construction on a factory in Georgia that received some of the most generous taxpayer-funded incentives in state history.
On Thursday, Rivian unveiled three new vehicles that will be available in the coming years. The company already offers the R1T and R1S, a luxury truck and SUV, respectively, which start at $70,000–$75,000 and can cost $100,000 or more. CEO R.J. Scaringe announced the R2, a smaller and more modest SUV that would be available in 2026 with prices starting at $45,000, as well as the R3 and R3X crossovers, also expected to be less expensive than the R1 series.
As Reason has documented, Rivian went public in November 2021, promising luxury electric vehicles that would be both stylish and rugged. The following month, the company—which only had a single factory in Illinois—struck a deal to build its second factory in Georgia: Rivian would spend $5 billion on the factory, and in exchange, Georgia state and local governments authorized up to $1.5 billion in tax credits and incentives.
In the years since, however, the company has struggled. In May 2023, Bloombergreported that the company had lost 93 percent of its share value, and its market cap reflected "almost no value beyond the company's cash hoard." In the fourth quarter of 2023, the company lost $43,372 on each vehicle sold, up from a $30,648 per-vehicle loss in the third quarter.
Branching out into the more affordable R2 and R3 models is key to Rivian's long-term survival, opening up its product line to appeal to more than just those who can pay over $75,000 for a luxury vehicle. And to do this, it had to make some adjustments.
"To enable R2 to be launched earlier and with a considerable reduction in the capital required for its launch, Rivian plans to start production of R2 in its existing Normal, Illinois manufacturing facility," the company announced. It is also pausing construction in Georgia: "Rivian's Georgia plant remains an extremely important part of its strategy to scale production of R2 and R3. The timing for resuming construction is expected to be later to focus its teams on the capital-efficient launch of R2 in Normal, Illinois."
The move is expected to save the company $2.25 billion "as compared to the original forecast of launching the first line of R2 production at Rivian's Georgia site."
In October, the company announced that the Georgia site was "95 percent graded" and "nearly ready for construction to begin." Notably, under the incentive agreement, Georgia officials paid over $32 million for "clearing and grading" the site.
One year ago, almost to the day, Scaringe reaffirmed the company's dedication to the Georgia project, telling The Atlanta Journal-Constitution, "We're committed to this state and this project," adding that "the future of our company in terms of scaling and growing really relies on the future of this project. There's not another option. We're not planning an alternative. This must work."
The electric vehicle market, while growing, is in flux, due to softening consumer demand and persistently high interest rates. Just last month, Apple—the first company in history to ever record a $3 trillion valuation—canceled its decade-long quest to develop an electric car. General Motors and Ford have also rolled back pledged investments in electric vehicles.
In that sense, Rivian's pivot would be perfectly reasonable—companies must be free to adapt to changing circumstances in a way that benefits both their customers and their shareholders. But as with any central planning scheme, state economic incentives don't tend to allow for those sorts of dynamic pivots. In this case, Georgia officials mortgaged a large amount of taxpayer money on a plan that foresaw the company continuing on a path that no longer seems financially feasible.
In 1920, the perennial Socialist Party candidate Eugene V. Debs ran for president of the United States while serving time in a federal prison for delivering a seditious speech. He received nearly a million votes. His sentence was commuted by his erstwhile rival, the newly elected Republican Warren G. Harding, two days before Christmas in 1921.
No one expected Debs to actually win the White House. His best showing was in 1912, when he captured nearly 6 percent of the popular vote (but no presidential electors). So the nation has never had to seriously grapple with the possibility of someone winning the presidency while behind bars.
It might be time to think more seriously about that contingency. The Donald Trump years have brought many strange constitutional hypotheticals to life, and Trump promises more to come if he has a second term, recently demanding, for example, the courts must recognize "COMPLETE & TOTAL PRESIDENTIAL IMMUNITY" from all criminal acts that he might commit during a term of office. The 2024 elections promise more possibilities even before we get to serious third party candidacies or faithless electors.
Trump has not yet been outfitted with an orange jumpsuit, but stranger things have happened. The former president is now defending himself against four separate criminal indictments. The wheels of justice turn slowly, and these cases are unusually complicated. Moreover, Trump has an incentive to throw up as many procedural obstacles as possible with an expectation (an expectation that has not been legally tested) that all pending prosecutions will be put on hold if he were to return to the White House.
It is a decent bet that none of his criminal trials will reach a conclusion before November. But there is a genuine possibility that one or more of his trials could reach a verdict by Election Day. No doubt some of these prosecutions were brought with the hope of knocking Trump off the ballot, or at least damaging his candidacy, and some resemble more of a political Hail Mary than an ordinary criminal prosecution, but Trump faces a serious risk of conviction in at least some of them.
To briefly review, Trump is charged with election interference in New York, with a conspiracy to steal the 2020 election in Georgia, with mishandling national security documents and obstruction of justice in Florida, and with defrauding the federal government and obstructing a government proceeding in Washington, D.C. The first two of those cases were brought in state courts under state law by state prosecutors, and the other two were brought in federal courts under federal law by Department of Justice special counsel Jack Smith.
Of course, even if he were found guilty of a criminal charge in one or more of those cases, Trump could be expected to file appeals to those convictions. He would likely be released pending his appeals, which further reduces the likelihood that he would be serving a criminal sentence at the time of the election or even Inauguration Day.
There is nothing in the Constitution that prevents a current inmate of a state or federal penitentiary from running for or winning the presidency. Unsurprisingly, the constitutional framers did not anticipate the possibility that the American electorate might make such a choice, and so did not think to account for the possibility. Thus, we must now consider what would happen were Trump to be both criminally convicted and elected president.
If Trump is cooling his heels in the big house when Inauguration Day arrives, he could simply be sworn in as president in his prison cell. The presidential oath can be taken wherever the presidential designate happens to be at the time of his ascension to the office. Nothing says the president cannot be a convict, though the Department of Justice has insisted (when this was a live question under Nixon and Clinton) that a sitting president cannot be prosecuted. Joe Biden will stay out of prison—at least until he moves out of the White House.
Whether or not a president-elect is behind bars in the weeks after the election, what might we expect to happen?
1. A Pre-Inauguration Pardon
The most likely scenario might be that Trump would receive a pardon, or at least a commutation of his sentence, before Inauguration Day. The prospect of a president being sworn into office while behind bars is such a national embarrassment and potential constitutional crisis that responsible government officials may decide it necessary to spare the nation that particular nightmare.
When President Gerald Ford issued a pardon to former President Richard Nixon in September 1974, he explained: "My conscience tells me clearly and certainly that I cannot prolong the bad dreams that continue to reopen a chapter that is closed. My conscience tells me that only I, as president, have the constitutional power to firmly shut and seal this book. My conscience tells me it is my duty, not merely to proclaim domestic tranquility but to use every means that I have to ensure it."
As expected, the pardon damaged Ford's hopes of winning the presidency in his own right, but he believed the self-sacrifice was worth it to restore some normalcy after the Watergate scandal. The political costs to anyone pardoning Trump are also likely to be severe, but the national benefit of not inaugurating an inmate is arguably greater than that of turning the page on Nixon.
Trump's criminal liability is more complicated than was Nixon's. President Joe Biden could pardon Trump of his alleged federal crimes currently being prosecuted by Jack Smith. Biden's authority in regard to those crimes is plenary, but it expires at noon on Inauguration Day if he doesn't win in November. If Biden were to act at all, it would seem wise to do so shortly after the election rather than letting the situation draw out.
But Biden has no power to pardon Trump for his alleged state crimes. Georgia's Republican governor, Brian Kemp, does not have the authority to pardon Trump of any convictions that Fulton County District Attorney Fani T. Willis might win: The Georgia Constitution vests the pardon power in the State Board of Pardons and Paroles, which is composed of five members, all of whom were appointed by Republican governors. The board may not grant a pardon until a criminal sentence has been completed (or innocence has been proven), but it can commute a sentence when "such action would be in the best interests of society and the inmate." By contrast, New York Gov. Kathy Hochul, a Democrat, may grant reprieves, commutations, and pardons if Trump is convicted in the prosecution brought by Manhattan District Attorney Alvin Bragg.
2. An Impeachment
Perhaps the least likely scenario is that Congress rises to the challenge of what to do about an individual elected to serve as president who is currently an inmate. The House could adopt articles of impeachment holding that the crimes for which Trump had been convicted in state or federal court also qualified as high crimes and misdemeanors. The Senate could then try Trump on those articles of impeachment, with a conviction resulting in Trump's removal from office. Since Republicans currently control the House, it seems unlikely they would take this step. Even if they did, conviction in the Senate would hardly be assured. There are serious constitutional challenges to this path, which would undoubtedly increase the difficulty of persuading a necessary number of legislators to follow along.
First, the federal charges arising from Trump's actions in Mar-a-Lago involve his conduct when he was out of office. Whether a federal officer can be impeached for out-of-office misbehavior is constitutionally unsettled, at best.
Second, the other three prosecutions all involve Trump's conduct while still serving as president, but the Senate has already demonstrated that it is skittish about the prospect of convicting a former officer for misconduct while in office.
Third, the House has never impeached a private individual before he assumed a federal office. A pre-inauguration impeachment would require that the House be willing to take that unprecedented step and overcome the constitutional objections that would necessarily arise.
Fourth, it is not at all clear that the Senate can preemptively bar an individual from assuming office. The Constitution specifies that a sitting officer "shall be removed" upon conviction, but there can be no removal if Trump has not yet been inaugurated. The Senate can follow a conviction by disqualifying an individual from holding future federal office. The Senate has worked on the assumption that it can disqualify someone convicted in an impeachment by a subsequent simple-majority vote. This approach might make disqualification easier to win in the punishment phase, but it would also likely make conviction more difficult.
Congress could minimize some of these constitutional and political concerns by waiting to impeach and convict until after Trump is inaugurated. The newly elected House of Representatives will be sworn in on January 3, 2025, more than two weeks before Inauguration Day. A newly elected Democratic majority could move swiftly ahead with an impeachment of President-elect Trump as soon as the 119th Congress is convened. (Impeachment would presumably be a nonstarter if Trump's electoral coattails bring a Republican House majority.) If it so chose, the Senate could hold off on taking a vote to convict in an impeachment trial until the moment after Trump takes his oath of office. Immediately upon conviction, Trump would be removed from his new office.
Alternatively, the House could wait until Trump was sworn in to vote on articles of impeachment. Delaying the proceedings might avoid some constitutional questions about impeaching individuals before they take office, but it would still not avoid the problem of impeaching an individual for actions that took place before he assumed his current office.
3. A Post-Inauguration Disability
The 25th Amendment is being recognized more and more. Adopted in the wake of President John F. Kennedy's assassination, the amendment provides for the possibility of a still-living president unable to perform the duties of his office. Section 4 of the amendment has been much discussed of late, since it allows the Cabinet to involuntarily strip the president of his powers. There is essentially no chance that a Trump-appointed Cabinet would invoke Section 4 under these circumstances.
Section 3 has been the most used provision of the amendment, and it provides for the possibility that the president might voluntarily transmit to the leaders of Congress "his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President."
Presidents have used Section 3 when, for example, they expect to be under anesthesia. President Ronald Reagan somewhat reluctantly invoked this provision before undergoing surgery in 1985. President George W. Bush invoked it twice while he underwent colonoscopies. In 1988, a distinguished commission recommended that presidents put plans in place for invoking Section 3 in a variety of medical situations that would render the president temporarily unable to perform his duties.
Neither the Constitution nor practice has clarified what might render a president "unable to discharge the powers and duties of his office." Nothing prevents a newly inaugurated Trump from determining that his imprisonment constitutes such an incapacity necessitating he designate his vice president as acting president. As acting president, the vice president could immediately issue a pardon of Trump for any federal crimes. Trump, thus relieved of his criminal punishment, could then inform Congress that he is resuming his presidential duties and fly the coop aboard Marine One within minutes of his swearing in.
Of course, the pardon of an acting president could not reach punishments for state crimes. If Trump finds himself in a state prison in Georgia or New York on Inauguration Day, the 25th Amendment gambit will not work. It is, however, the safest way for Trump to receive a valid presidential pardon after his inauguration.
4. A Post-Inauguration Self-Pardon
Alternatively, a newly inaugurated Trump could dispense with the complications of the 25th Amendment and instead simply issue a pardon to himself for his federal crimes. This would be a legally risky strategy. There are good reasons for thinking that a self-pardon would not be constitutionally valid.
The director of the Federal Bureau of Prisons could presumably be persuaded to take the president's word for the validity of his self-pardon and see to his release. He would likely need a pliant attorney general and Office of Legal Counsel in place to provide legal cover, which would necessitate waiting until such officers could be appointed.
The validity of a self-pardon would undoubtedly be litigated. Trump would no doubt be able to wait out the litigation from the White House rather than from a prison cell. But with such a novel and difficult constitutional question, it is far from certain how the courts would resolve such a case. Ultimately, the question would have to be resolved by the Supreme Court.
If Trump had issued a self-pardon in his first term of office, it seems entirely plausible that the justices might have ruled it out of bounds. As a practical matter, though, Trump would back the Court into a difficult corner if he launched his second term of office with a self-pardon. In that situation, the justices would understand that declaring the pardon invalid would create an immediate constitutional crisis over whether the president would voluntarily return to prison. Faced with such high stakes, a majority of the justices might be willing to swallow their doubts and uphold Trump's self-pardon.
5. A Trump Resignation
There is always the possibility that an incarcerated Trump could recognize that he should decline to serve as president for the good of the country. He could declare his intentions before Inauguration Day or be sworn in and then immediately resign. In either case, the duly elected vice president would become the president.
Such a prison-house conversion seems extremely unlikely.
As long as we're reaching, there are two more scenarios that are at least possible. They are even more far-fetched than the resignation, but this is Trump that we're talking about. Who can say that he might not prefer the unexpected?
6. A Prison Presidency
We've all seen TV shows where an incarcerated mob boss keeps pulling the strings of his criminal organization from his jail cell. Trump is sometimes likened to a mob boss. Perhaps he would enjoy the drama and spectacle of being the leader of the free world from a customized and lavishly appointed wing of a penitentiary. State and federal officials might be willing to make such accommodations, even if they are not willing to simply let Trump go. If he can't go to the White House, then he can make White House operations come to him. He could meet with foreign dignitaries and congressional leaders in the prison yard. His chief of staff could set up shop in the cell next door to Trump's own. Donny from Queens could become The Kingpin.
7. A Presidential Prison Break
These are all legalistic scenarios, even if the legal strategies are sometimes a stretch. But why be limited by mere legalities? Trump likes to toy with raw power.
If he were confined in a federal prison on Inauguration Day, President Trump could simply order any and all necessary executive officers to release him from his cage. If some of those officers were not sufficiently pliant to his demands, he could remove and replace them with more accommodating substitutes. Trump might not bother to supply those officers with even the legal fig leaf of a self-pardon. He could simply order them to act and promise to pardon them if there are any legal consequences for their escorting him out of prison.
Trump would be daring Congress or the courts to stop him. But maybe the lesson he took away from his first term of office was that he could win such a dare.
If he were confined to a state prison on Inauguration Day, President Trump could not just issue orders to his jailers. Things would have to be done the hard way. Trump might expect the U.S. military to rescue the commander in chief from his imprisonment and overawe or overwhelm any resistance it might encounter in doing so. The military would perhaps be unwilling to obey such orders, but that would not necessarily deter him from trying to find a sufficient pocket of loyalists in the federal ranks who would be willing to storm a state prison complex on the president's orders.
The events of January 6, 2021, demonstrated that at least some Trump supporters were willing to riot on his behalf. It is unclear whether he still commands that level of passion, but perhaps there are those who would be willing to take up arms if he were to call out to them. Rather than imagining themselves as American patriots circa 1776, they would instead have to imagine themselves as French revolutionaries circa 1789 as they stormed their American Bastille. Whether taking to the streets to prevent Trump from being taken into custody in the first place or mustering outside the prison gates in an attempt to break him out, they would have no need to wait until Inauguration Day to liberate their hero.
Trump once bragged, "I can tell you I have the support of the police, the support of the military, the support of the Bikers for Trump—I have the tough people, but they don't play it tough—until they go to a certain point, and then it would be very bad, very bad." Very, very bad indeed
What If a Candidate or President-Elect Is Incapacitated?
We are on the path to nominating two presidential candidates well over the age of 75. From an actuarial perspective, this seems unwise.
If a newly inaugurated president were to suffer a major medical event in the moments after being sworn into office, the path forward would at least be clear: The 25th Amendment would kick into gear. If the president were to die, the vice president would become president and would select a new vice president to be confirmed by the Senate. If the president were to be left severely impaired but alive, the president could voluntarily and temporarily turn over his duties to the vice president. If he were unable to do so voluntarily, the vice president and a majority of the members of the Cabinet could vote to temporarily take the powers from him.
If a president-elect were to die before being sworn into office, the 20th Amendment specifies that the vice president–elect would be sworn in as president in his stead. If the president-elect were alive but unable to take the oath of office, the situation is not so clear, but most likely the vice president–elect would be sworn in, perhaps as acting president, and immediately begin to exercise the powers of the office.
Of course, the next American president will not truly be elected until the Electoral College casts its ballots on December 17, 2024. Once the electors have voted, their choice is locked in. If the nominal president-elect were to shuffle off this mortal coil before the electors meet, they could have a relatively free hand to choose someone else, but they most likely would be expected to choose the successful presidential running mate. (In 1872, one of the candidates did in fact die after Election Day and before the Electoral College met. He had lost the contest, so the question of who would get his votes was academic; the electors split their ballots among several figures, with three attempting to cast votes for the corpse.)
If a presidential candidate were to die shortly before the general election on November 5, 2024, his name would remain on the ballot and voters pulling that lever would in reality be choosing a slate of that candidate's presidential electors. If something were to happen to a candidate after the nominating convention but before ballots are printed and early voting begins? Well, then things get complicated, depending on each political party's own rules.
Essentially, if the Republican presidential nomination unexpectedly became vacant, the Republican National Committee would fill the slot using voting rules comparable to those of the national convention. If Biden were to vacate the nomination for any reason before early voting began, the Democratic National Committee would vote for a new presidential nominee.
In this week's TheReason Roundtable, Katherine Mangu-Ward is in the driver's seat, alongside Nick Gillespie and special guests Zach Weissmueller and Eric Boehm. The editors react to the latest plot twists in Donald Trump's various legal proceedings and the death of Russian opposition leader Alexei Navalny.
00:41—The trials of Donald Trump in Georgia and New York
Send your questions to [email protected]. Be sure to include your social media handle and the correct pronunciation of your name.
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It's quite a turn when a prosecutor defends the use of cash for financial transactions. After years of authorities treating mere possession of physical money as sketchy and grounds for seizure, this week a law enforcement official claimed there's nothing to see in her alleged cash reimbursements to her boyfriend for an enviable lifestyle arguably funded by the taxpayers. Either Fani Willis and company were right in the past and she should be subject to scrutiny for anonymous transactions, or she's right today and she and her colleagues owe the rest of us a pass on our taste for financial anonymity.
If you haven't kept up on the details, Fani Willis is the Fulton County district attorney overseeing the Georgia election interference case, which has been described as potentially the strongest and most consequential case against former (and maybe future) president Donald Trump. At least, it was described that way until defense attorneys revealed that Nathan Wade, a special prosecutor in the case, is unqualified for the job, was romantically involved with Willis, and is being paid much more than any of his colleagues (around $654,000 in all)—money from which Willis seemingly benefited in the form of expensive vacations and other pleasures of life with Wade.
She Reimbursed Everything in Cash. Of Course.
Well, she benefited unless she reimbursed Wade for her share. Whether or not she did is among the issues raised in a hearing investigating her alleged misconduct in the case.
"I didn't ever make him produce receipts to me," Willis said in response to questions about the couple's significant expenses. "Whatever he told me it was, I gave him the money back."
"You gave him cash before you ever went on the trip?" she was asked to clarify about one vacation.
"Mmm-hmm," Willis replied.
But she not only had no receipts, she also had no ATM slips or evidence the cash existed. It supposedly came from a substantial stash she kept at home on her father's urging.
Dad's Advice and 'Printed Freedom'
"I was trained, and most Black folks, they hide cash or they keep cash, and I was trained you always keep some cash," her father, John Floyd, confirmed. "I gave my daughter her first cash box and told her, 'Always keep some cash.'"
That's great advice. Cash is essential in emergencies, useful when electronic payments systems are down, and (importantly for this case) it's private and anonymous. When central-bank types floated the idea of abolishing physical money in favor of digital currency a decade ago, prominent German economist Lars Feld retorted that cash is "printed freedom" which helps people escape state control.
But that anonymity, which Fani Willis cited as the reason she had no evidence that she'd compensated Wade for his expenses, is exactly why government officials so despise its use by mere mortals.
Governments Hate Cash
"It just was not credible," CNN legal analyst Michael Moore, a former United States Attorney, commented of Willis's testimony about "things as nebulous as cash payments so there's no way to track it." He added: "It reminded me of watching a criminal defendant take the stand."
Cash is increasingly assumed by officialdom to be nefarious in and of itself.
"Cash can play a role in criminal activities such as money laundering and allow for tax evasion," notes Investopedia. "Since 2016, global policies have been implemented to thwart the use of cash in favor of digital currency transactions."
The mere presence of physical money triggers official suspicion and the urge to confiscate.
"It's the presence of paper legal tender—U.S. currency—that underlies nearly all of the thousands of police interactions we reviewed," The Greenville Newsreported in a 2020 story on civil asset forfeiture, under which money and valuables are seized, often with no charges brought against their owners.
Like Fani Willis, CNN's Moore is from Georgia and served there at both the state and federal level, so his attitude is illuminating. Georgia gets a D- grade from the Institute for Justice (I.J.) for its forfeiture laws.
"Across 15 states for which we have reliable property data for 2018,38 currency—primarily cash—predominates, accounting for an average of nearly 70% of forfeited property," I.J. revealed in the 2020 report, Policing for Profit. Georgia was among those states and "between 2015 and 2018, Georgia law enforcement agencies forfeited more than $51 million under state law. Between 2000 and 2019, they generated an additional $388 million from federal equitable sharing, for a total of at least $439 million in forfeiture revenue."
The 2023 budget for Fani Willis's Fulton County government includes Fund 442, Federal Equitable Sharing, for "proceeds of liquidated seized assets from asset forfeitures."
Willis may have taken her father's excellent advice about keeping cash on-hand. But her office is among those putting the screws to members of the public who abide by similar counsel and rely on physical money for its utility and anonymity. To keep large amounts of cash in Fulton County, Georgia, is to risk its seizure by the authorities. Yet Willis (assuming we believe her) does much business in cash.
If Prosecutors Get To Benefit, So Do We
So, which is it? Was the Fani Willis of the past, along with most of her profession, correct in considering cash to be inherently sketchy and evidence of some sort of criminal activity? If so, the court should view her claims of cash transactions as suspicious in themselves, just as she would treat regular people.
Or is the Fani Willis of last week correct that using cash is just good sense and evidence of homey wisdom handed down through the family? If that's the case, her office should have been treating people with the same light touch she hopes to receive.
The powers-that-be should abide by the same policies they inflict on the rest of us. If they want the freedom and privacy inherent in using cash, they can't keep it as a private privilege; we all get to benefit.
My sentiments are with John Floyd and Lars Feld on this. Cash is freedom and we should always keep some on hand. If that applies to Fani Willis, it must apply to everybody.