Political Animal

House Republicans Settle on Their Defense of Trump

With public hearings in the Giuliani/Ukraine matter scheduled to begin on Wednesday, the Republican staff for the committees that handled the depositions has issued a memorandum that members can use as a counterargument to impeachment. This includes four primary bullet points and then their supporting evidence. The television news outlets immediately provided their audiences with the bullet points, but didn’t really get into what undergirds their logical structure.

As you can readily see, some of their argument is preposterous on its face, like their contention that the White House’s selective release of the transcript of the call between Trump and Ukrainian president Zelensky doesn’t show any “pressure” or “conditionality.” Likewise, crediting Zelensky’s denials that he felt pressure is ludicrous given that he was being denied the javelin missiles he was requesting unless and until he agreed to smear Joe Biden and accuse his own country of having been responsible for the Russian hack of Democratic Party computer systems. The assertion that Ukraine was unaware of the hold on security assistance is contentious at best and irrelevant in any case. Trump directly denied Zelensky the javelin missiles on the call, and Zelensky was aware at the time of the call that he would not be getting a meeting with Trump until he met his demands for investigations. Moreover, the Ukrainians appear to have realized that Mick Mulvaney had placed a hold on assistance almost immediately and before even many of the main American witnesses in the case understood what was going on. Lastly, you can’t get credit for not mugging someone just because the police arrive in the nick of time to prevent the robbery.

These talking points are not convincing, but some of their supporting evidence has more to recommend it.

Chief among these is the argument that Donald Trump had a justifiable animus for Ukraine that formed a reasonable rationale for not wanting to meet with them or provide them with aid. Trump’s ill will for Ukraine is longstanding and well-documented, and based in large part on his anger over how Paul Manafort’s corrupt business practices there were exposed during the 2016 campaign. The Republican staff has dug up every negative comment about Trump they could find from a prominent Ukrainian during the 2016 campaign, and given Trump’s pro-Russia stance during that time and his dismissive attitude toward Ukraine’s territorial sovereignty, there is no shortage of such comments to choose from. Just as Russia was attracted to the positions Trump adopted and decided to help him, the Ukrainians were alarmed and obviously had a preference for the candidate who was committed to protecting them. The difference is that there is scant evidence that the Ukrainian government lifted a finger, as a matter of policy, to help Clinton’s campaign. There is absolutely no evidence that they hacked anyone, and certainly not the Democrats as Trump would have us believe. That theory doesn’t even make sense.

Nothing compels Trump to see Ukraine as an ally or Russia as a foe, but that is his official foreign policy which is supported by Congress and by his whole national security staff, as well as by the Pentagon and the State Department. In a way, it’s wrong to see the refusal to meet with Zelensky or the hold on military aid as the problem. The problem is that Trump does not agree with his own policy and doesn’t have the guts to change it. He could, for example, say that he recognizes Crimea as part of Russia and that Russia should also annex the ethnically-Russian parts of Eastern Ukraine. He could say that he’d like Russia to control Syria and for Turkey to drop their NATO commitments and ally with Russia while ethnically cleansing our Kurdish allies. He could say that the U.S. will drop out of NATO and stop cooperating with the European Union which would be better as a bloc of powerless statelets dependent on Russian energy and subject to Russian military pressure. He could outright drop any American commitment to defend the Baltic states or even Poland. But he doesn’t do these things and in fact allows our Pentagon and State Department to continue to operate as if our official policies are real.

This is why he needed Rudy Giuliani and Mick Mulvaney to be his point men on Ukraine. His own cabinet would have resigned en masse if he’d ever been up front about his true agenda. Congress would have revolted, too, including much of his party. Hurt feelings over 2016 have something to do with Trump’s hostility for Ukraine but that alone cannot explain his consistent anti-Western position on everything. He does Russia’s bidding at every turn and the only real question is why he does this.

The Republican staff also emphasizes that Trump’s concern about Ukrainian corruption is based on an accurate appraisal of the country which is shared by all the experts who have given depositions. This is true and accurate. Yet, Ukrainian corruption is merely a pretext for treating them with contempt and denying them the benefits of our alliance. The Pentagon, for example, certified that all their anti-corruption benchmarks for the year had been satisfied and that aid could be released. Trump did not ask his own government to condition the release the aid on any higher standard. He didn’t explain his decision at all.

In the end, the reason the national security apparatus rose up to report Trump’s anti-Ukrainian activities was not solely because he wanted to smear Joe Biden. It was also because, in doing so, he was screwing over Ukraine and helping Russia. This is because if Ukraine acquiesced and helped Trump win reelection, it would threaten the Democrats’ support for Ukraine and Trump would still be pro-Russian and hostile. It’s because denying a meeting to Ukraine’s newly inaugurated president and withholding military aid weakened Ukraine’s position in peace negotiations with Russia. It’s because delayed military aid weakened them on the battlefield. It’s because evidence of a bad relationship with the president in Washington, DC, weakened Zelensky politically with his own people. It’s because asking Ukraine to commit corrupt acts undermined official American policy aimed at getting Ukraine to reduce corruption. Trump’s pet conspiracy theories are a sideshow in this larger context.

The Republicans are going to argue that Trump is the president and he sets the policy and that if he wants to be anti-Ukrainian, that’s his prerogative. To a large extent, this is true. But he isn’t being impeached because he asked the foreign policy establishment to change our policy. In a real way, he is being impeached because he did not do this.

In an alternative universe, he could have been completely up front about his desire to ditch our Western alliance and hand as much power as possible to Vladimir Putin. I imagine that would have created a different kind of political firestorm, possibly leading his own party to seek his removal from office. But that’s not how Trump went about this. He instead let the American system operate as if everything is business as usual, with special forces operating in concert with the Kurds and military assistance going to Kyiv until, all of a sudden, he pulled the rug out.

Trump being Trump, he didn’t limit himself to doing Putin’s bidding but also sought some advantage for himself. Sliming Biden was like a two-fer in this respect. He made Russia happy while doing himself a favor in the process.

The House Republicans will argue a president can do what he pleases even if it’s based on bad information, contrary to the national interests and politically self-serving. The real question is, can the House Republicans accept a traitor in the White House who has attempted bribery in plain sight?

All signs indicate that they’re fine with this.

Trump’s Enablers Prepare an Impeachment Distraction. Will the Media Fall For It?

Prior to the launch of the public impeachment hearings on Wednesday, Margaret Sullivan has some sage advice for the media. She highlighted four things they should keep in mind when covering this important story.

  1. Stress substance, not speculation.
  2. Don’t let stunts hijack the coverage.
  3. Avoid Barr-Letter Syndrome.
  4. Beware mealy-mouthed and misleading language.

That first one captures one of my biggest pet peeves about how the media tends to cover politics. Sullivan is suggesting that reporters should focus on the substance of what Americans need to know from the hearings—not their own (often faulty) speculation about how it might play with voters in the so-called “swing states.” Impeachment hearings are a sobering historical moment, not simply another way to frame our addiction to horse race politics.

But I want to zero in on Sullivan’s second piece of advice about not letting the coverage get hijacked. As I noted last week, Trump’s enablers are already salivating over something they assume will be a major distraction from the impeachment inquiry: the release of Justice Department Inspector General Michael Horowitz’s report on the FISA application to surveil Carter Page.

Over the weekend, Victoria Toensing and Joe DiGenova told Lou Dobbs that the report would be “devastating” and “worse than you can imagine.” Of course, those two have their own personal reasons for peddling a distraction from the impeachment hearings, since they are up to their eyeballs in the extortion racket that was orchestrated by Rudy Giuliani. Similarly, Jason Chaffez was ruminating with Sean Hannity about the slam-dunk evidence against Obama administration officials that is about to surface.

What is likely to happen is that, when the report is released, it will spark a re-litigation of the whole issue of the Steele dossier and its role in enabling the “deep state” to spy on the Trump campaign. Before the time comes to focus our attention on the impeachment hearings, let’s take a moment to remind ourselves that all of the right wing talking points about that are lies. The following evidence comes from a memo written by Democrats on the House Intelligence Committee in January 2018.

  • The Steele dossier did not prompt the FBI’s counterintelligence investigation. That began in July 2016 and the team didn’t receive the dossier until mid-September.
  • When the FISA application was submitted in October 2016, Carter Page was no longer working for the Trump campaign.
  • Carter Page had an extensive record as someone of interest to U.S. intelligence services because Russia had previously attempted to recruit him as an agent.
  • The role of the Steele dossier in the application was to point to meetings Page held with high level Russians in the summer of 2016, during the time he served as an advisor to the Trump campaign.
  • Page initially lied about those meetings, but eventually confirmed that they happened.
  • DOJ did, in fact, inform the FISA court that Steele was hired by politically motivated people and that his research appeared intended for use to discredit Trump’s campaign.

All of that has been part of the public record for almost two years. Nevertheless, Attorney General Barr said that an investigation was required to learn whether the “spying” on the Trump campaign was adequately predicated and the president’s minions are certain that “deep state” heads are going to roll when that investigation is completed.

That brings us to a piece of advice that I’d like to add to Sullivan’s list: there is no need to give the same weight to these distractions as you give to actual evidence about Trump’s abuse of power and corruption. That is not partisan advice, but an attempt to affirm, once again, that the media’s job is to report the truth, not to give equal weight to lies in an effort to find balance.

One thing you can always count on from the Washington Monthly is a commitment to tell the truth. That has never been more important than it is right now. We are able to honor that commitment because of our status as an independent source of news and opinion, reliant on contributions from people like you. Thank you for your support!

Will Trump’s Judges Save His Presidency?

House Democrats have got their impeachment investigation off to an impressive start, discombobulating President Trump, unnerving his congressional allies, and galvanizing media and public attention. But it would be short-sighted for journalists and civic activists to focus exclusively on that probe. In fact, the fate of this presidency—and its myriad actions to ignore or junk landmark laws and programs—still rests largely in the hands of federal judges.

That may not be bad news for Donald Trump, who has often expressed faith in what he refers to as “my judges.” At the same time, Mitch McConnell has enabled a judicial confirmation conveyor belt that could tilt the federal judiciary even further rightward.

Other than Trump’s pressuring Ukraine’s president to investigate a political adversary, almost all claims of the administration’s illegality are now in the hands of the courts—including hugely consequential matters like Trump’s rescission of DACA protections and the administration’s deregulatory and defunding measures aimed at crippling the Affordable Care Act.

So far, judges and justices adjudicating anti-administration claims have given wildly contradictory signals, with some denouncing the administration’s claims as “repugnant to the nation’s governmental structure and constitutional values,” while others have practically parroted their arguments. Worse yet, the impeachment investigation itself could be thwarted by unsympathetic courts, either through reviewing challenges to House subpoenas or intervening at the behest of the administration or its allies.

Indeed, even before October 8, when the administration’s legal strategists issued an unprecedented blanket defiance of all House requests for testimony or evidence, House Speaker Nancy Pelosi and Intelligence Committee Chair Adam Schiff indicated that they  planned— unlike all modern congressional investigators—not to use the courts to enforce subpoenas, and, insofar as possible to avoid provoking the administration or its collaborators from proactively seeking judicial protection.

But that hope has already vanished. On October 25, a subpoenaed former National Security Council staffer asked the D.C. District Court to sort out whether he is legally obligated to honor a Congressional subpoena or the White House’s directive to ignore it. The lawsuit is odd, but probably sufficient to put much about the impeachment investigation in play in the courts. In response, wary House leaders withdrew the subpoena, serving notice that the lawsuit was thereby mooted. But on November 8 the NSC staffer’s counsel announced that he would not withdraw the suit—which Acting White House Chief of Staff Mick Mulvaney is now seeking to join. No matter how this standoff shakes out, it spotlights how impeachment’s adversaries want the judiciary to get involved.

House Democrats’ decision to test these uncharted waters—steering clear of court enforcement—is understandable. Previous generations of federal judges firmly supported Congress in handling its constitutional responsibility to check the executive branch. But adherence to that tradition by the current cohort of federal jurists cannot be taken for granted. Trump’s legal team sees at least a good chance that a Supreme Court majority could overturn or side-step precedents checking executive illegality during the Teapot Dome and Watergate scandals.

In fact, the very day of White House’s declaration of non-cooperation, a Justice Department lawyer asserted that Watergate era District Judge John Sirica’s March 1974 decision to turn impeachment-relevant grand jury materials over to Congress was “wrongly decided.”

D.C. Chief District Judge Beryl Howell, an Obama appointee, sternly dismissed that claim and ordered the administration to provide Congress unredacted Grand Jury evidence secured in Special Counsel Robert Mueller’s investigation. In response, Justice Department lawyers moved to keep secret the material until they appeal to the Supreme Court, where they hope to overturn this decision.

Trusting the Supreme Court’s five-justice conservative majority to squelch unfriendly lower courts is already the Justice Department’s keystone approach to fending off anti-administration challenges. For the past year, Trump’s Solicitor General, Noel Francisco, has upended judicial and departmental practice, frequently bypassing lower federal courts and instead seeking preemptive Supreme Court interventions to cut off regular order evidentiary and appellate procedures. The intention is as clear as it is brazen: to shield agency actions from any meaningful judicial scrutiny whatsoever.

On July 26, for example, the conservative bloc took time off from its summer recess to reward Francisco’s “expedited” application to short-circuit lower courts’ rulings that put a hold on Trump’s $2.5 billion border wall. In a single opaque paragraph, the majority stayed a District Court decision to preliminarily enjoin construction until its legality was decided at trial. The Catch-22 of this maneuver, as Justice Stephen Breyer noted in his dissent, was that, by the time a trial could be completed, the wall would likely already be built. In other words, if Trump gets his wall finished, much of the credit will belong to his Supreme Court allies willing to go outside the box to get it done.

In effect, the five Republican appointees’ keenness to ignore the judiciary’s modus operandi shows them less committed to vindicating the rule of law than to facilitating a GOP president bent on operating outside it.

If given a chance, these same justices could threaten the impeachment inquiry itself, be it debilitating key subpoena provisions, abetting the administration’s transparent priority of running out the clock before November 2020, or even backing up Trump’s widely ridiculed talking point that the entire impeachment investigation is unlawful.

Such possibilities are hardly far-fetched: while a 2-1 majority of D.C. Circuit Appeals Court judges recently approved a House subpoena seeking Trump financial records from his accounting firm, dissenting judge Neomi Rao elaborated a 66 page roadmap for judges or justices so inclined to rationalize shutting down or crippling virtually any congressional probe of this or any White House. Perhaps even more cheeky than her disdain for Congress’s oversight investigation authority was Rao’s gratuitous suggestion that courts could second-guess congressional impeachment results by determining what presidential conduct could constitute an impeachable “high crime or misdemeanor.” This grenade ignored express Supreme Court precedent—in a 1993 ruling by the impeccably conservative Chief Justice William Rehnquist—that Congress had the “sole” authority to process impeachments, precluding any judicial review of impeachment proceedings or determinations.

Judge Rao’s argument may be substantively extreme, but her hostility toward challenges to Trumpian overreach is not unique. Most (not all) decisions and opinions rejecting, limiting, or delaying claims of administration illegality have come from Republican appointees, and most (not all) decisions receptive to such challenges have come from Democratic appointees.

So, can this impeachment inquiry succeed without obtaining judicial orders compelling compliance? How much will the impeachment findings, its public impact, and outcomes be undermined?  Time will tell. So far, an array of current and former administration officials have responded to subpoenas with testimony and documents, providing potent grist for the impeachers’ mill, despite the White House telling them to stay away. But none of these cooperators are either current senior office-holders or members of Trump’s inner circle. Virtually all are career officials or former political appointees who are critical of Trump’s pressure campaign against Ukraine and his out-sourcing of diplomacy to Rudy Giuliani.

Impeachment proponents have amassed a compelling case. But more unequivocally damning revelations must be known to senior confederates, with more incriminating evidence withheld in documents. Without sworn, televised testimony from Attorney General Bill Barr, Secretary of State Mike Pompeo, Acting Chief of Staff Mick Mulvaney and, Giuliani, the public resonance, credibility, and, hence, the outcome of the effort could be curtailed.

Trump’s wager that “my judges” will save him may be a good bet, but it is not a sure one. In some instances, Republican-appointed judges, including Trump appointees, have played it straight, followed the law, and ruled in favor of the president’s challengers. Chief Justice John Roberts has demonstrated that, at least some times, he will not  tolerate administration perfidy. Consider his blistering rejection of Trump’s “contrived” attempt to add a citizenship question to the 2020 census. Still, the overall pattern is ominous: a federal judiciary that is not merely right-leaning ideologically, but increasingly tribal and outright partisan, has often neutered substantial court challenges to Trumpian abuse. That has already cast a long shadow over impeachment as well.

A Closer Look at Klobuchar’s Electability Argument

Amy Klobuchar has focused her message during the Democratic primary on the idea that she is the candidate who is electable—especially in the midwest battleground states that so many people have decided are crucial to winning in 2020. She made that case to Jake Tapper over the weekend.

While not saying so specifically, the argument is that she can win over some of the white rural and working class voters that flipped states like Michigan, Wisconsin, and Pennsylvania to Trump in 2016.

Electability has taken on a whole new significance in this presidential election, given the passion Democrats have for beating Donald Trump. But it is an extremely subjective construct—usually infused with the biases of the person making the case.

Klobuchar and her supporters focus the electability argument on her dominance in previous elections. Here is what David Edward Burke wrote about that.

She has consistently outperformed other Democrats in red states or districts. In 2018, she won her election in Minnesota by twenty-four points, the same margin Warren won by in Massachusetts. And she has won a majority of counties in every election, including winning counties that Trump won by over twenty points. Her Midwestern appeal means she has the strongest chance of winning the key states of Wisconsin, Iowa, Michigan, and Pennsylvania.

Klobuchar was initially elected to the senate in 2006, and a county map of those results demonstrates the kind of dominance we often hear about.

There are a few things to keep in mind about that election.

  • The 2006 midterms were a blue wave election that gave Democrats control of both the House and Senate for the first time since 1994. They were seen as a referendum on the presidency of George W. Bush, focused primarily on his failed response to Katrina and growing objections to the war in Iraq.
  • Klobuchar ran for the open seat that was vacated when Mark Dayton decided not to run again. Unlike other Democratic senators from Minnesota, such as Dayton, Wellstone and Franken, she didn’t face the challenge of having to defeat a well-known and well-funded incumbent.
  • Klobuchar’s opponent, Mark Kennedy, was not well-known and had tied himself strongly to Bush and his policies.
  • The Klobuchar name was a major advantage, given that her father is beloved around the state as a sports and travel writer.

As Burke mentioned, Klobuchar went on to win in 2018 by 24 points, which is huge. But by then, the map looked a bit different.

By way of comparison, here is what the map looked like when Al Franken—who would never be referred to as a moderate—won re-election in 2014.

The similarities are striking, with the one big difference being that Klobuchar did better in the suburbs surrounding the Twin Cities, something that happened a lot in the 2018 midterms. That was particularly true in Minnesota, where Democrats flipped two suburban House seats.

In two out of three elections, Klobuchar has had the benefit of running during a blue wave, which boosted her totals. But in 2018 she had the added benefit of running the same year that an election was held to fill Al Franken’s seat following his resignation. Republican efforts in the state were all focused on that race, which is demonstrated by the fact that Klobuchar’s opponent, Jim Newberger, only raised about $200,000, compared to her $10 million.

All of that poses a challenge to Klobuchar’s claims of being uniquely electable. But perhaps her biggest concern should be the fact that, in the few polls conducted in Minnesota this year, Klobuchar hasn’t even demonstrated that she can win her home state.  In national polls, she is averaging about 2.5 percent.

There are probably other arguments Klobuchar could make for her candidacy, but the evidence for her electability based on winning back white rural and working class voters in the midwest simply isn’t that strong.