Giuliani Defends Trump, Attacks BuzzFeed

One only hopes that Donald Trump ends up paying his TV lawyer Rudy Giuliani and doesn't stiff him as he often does with his contractors, because Giuliani keeps going out farther and farther on a limb for him, and he can't be doing it for the fun of it. Yesterday, Giuliani told CNN's Jake Tapper that Trump did not instruct Michael Cohen to lie to Congress, and also said that BuzzFeed should be sued for publishing an article claiming Trump had suborned perjury by ordering Cohen to lie.

However, in the same interview, Giuliani admitted that Trump might have talked to Cohen about his testimony and insisted that would have been perfectly normal. Now that we know that discussions about Trump Tower Moscow may have been going on until November 2016, not June 2016 as previously reported, what could Trump have told Cohen to say? "Just tell Congress that my team worked with the Russians on a deal throughout the entire campaign"? Not very likely.

Giuliani also repeated his position that Trump was telling the truth when he repeatedly claimed during the campaign that he had no business in Russia. However, Giuliani admitted that Trump did sign a letter of intent to build Trump Tower Moscow, but according to Giuliani, that doesn't count as doing business. Sort of like what Bill Clinton and Monica Lewinski did doesn't count as "sexual relations"

Finally, Giuliani didn't see anything wrong with former Trump campaign chairman Paul Manfort giving critical polling data to a hostile foreign power so it could better fine tune its attack on the election. It was just bad judgment, according to the former mayor.

We may find out sooner rather than later what Trump and Cohen talked about, as Cohen is becoming more popular by the day. He is scheduled to testify before Rep. Elijah Cummings' (D-MD) House Oversight Committee on Feb. 7, and now House Intelligence Committee Chairman Adam Schiff (D-CA) wants a piece of the action and has said that he will subpoena Cohen as well. So if he wants to, it looks like Cohen will get multiple opportunities to lie to Congress some more before he goes to prison—for lying to Congress (and other crimes). (V)

Trump Fails to Drive a Wedge Between Schumer and Pelosi

Donald Trump is known to hate multilateral deals and that even holds when the number of parties in question is only three. He has repeatedly tried to talk to Sen. Chuck Schumer (D-NY) alone, but Schumer has consistently refused to comply. He always brings along Speaker Nancy Pelosi (D-CA). It's not quite the same thing as Vice President Mike Pence refusing to dine alone with a woman not his wife, but try as he may, Trump can't get Schumer to show up without his political alter ego.

Schumer talks strategy four or five times a day with Pelosi and has a lot of respect for her. He doesn't want to get into a situation in which Trump proposes something that he can agree with in principle, but that Pelosi doesn't like. That could drive a wedge between them, which is precisely what Trump wants, but Schumer isn't falling for it. He and Pelosi believe that the only way to win the shutdown battle is to stay unified and not to let any daylight come between their positions.

The two are an odd couple: a Jewish guy from Brooklyn who slouches and brings a Tupperware container of leftovers to the Senate for lunch and a multimillionaire Catholic fashion icon from California (via Baltimore) who hangs out with movie stars. Last year, Schumer had more power than Pelosi because the Senate has a filibuster, but now Pelosi has more power. They understand how power ebbs and flows and can manage it just fine. Both are very secure in who they are and what they can do and are determined to work together seamlessly. (V)

The "I'm Sorry" Primary Is Beginning

Times change, and things politicians did and said 10-20 years ago may not be so popular now. Quite a few Democratic candidates are beginning to notice this, and are being forced to deal with their own past. One example is how presidential candidate Sen. Bernie Sanders (I-VT) isn't nearly as big a fan of the Second Amendment as then-representative Bernie Sanders used to be. As a representative, he voted against the Brady bill and in favor of a bill allowing Amtrak passengers to transport guns in their baggage. Now he is saying "I'm sorry" about all that.

Speaking of guns, Sen. Kirsten Gillibrand (D-NY) once earned an "A" rating from the NRA for her courageous support of gun rights and opposition to pretty much all forms of gun control. She also opposed amnesty for illegal immigrants and supported more money to deport them. She also wanted to make English the official language of the United States. Oops. Sorry about that!

Joe Biden was a strong supporter of the 1994 crime bill, which beefed up police and prisons. He also supported tough mandatory sentences for drug users. And there was the way he disrespected Anita Hill as she told Congress about how now-Justice Clarence Thomas behaved toward her. Oops. Sorry about that!

Rep. Tulsi Gabbard, now a darling of the left, once worked hard with an anti-LGBT organization to make sure same-sex marriage didn't happen. As a state legislator, she said: "As Democrats, we should be representing the views of the people, not a small number of homosexual extremists." Oops. Sorry about that!

Just about any Democrat who has been in politics for a decade or two has a few issues on which they have completely flip-flopped. Their opponents are sure to bring those things up time and time again during the primaries to show how unprincipled they are and how they will say whatever they think current voters want to hear. Of course, the current head of the Republican Party was a Democrat until six years ago, and has flip-flopped on every single issue over time, except the need for tariffs. However, Republicans seems to have greater tolerance than Democrats for radical shifts in political positions. (V)

Democrats Need to Focus on Midsize Cities

As the 2020 election is revving up, the Democrats need a plan to win the Electoral College or 2020 will be a rerun of 2016. There are basically two directions they can go: (1) Fire up minorities and millennials to win states like Florida, Georgia, and North Carolina, or (2) win back the Midwest. The results of the 2018 elections ought to provide some clues. The Democrats had young, attractive, technically savvy, and well-funded black candidates for governor in Florida and Georgia. Both of them lost. One might be tempted to conclude that if a black man who is mayor of the state's capital city couldn't win Florida against someone who hugged Donald Trump as tight as one straight man can hug another, a black woman from California probably can't win there. Ditto Georgia, except replace "mayor" with "state representative." This strongly suggests that the more viable option is winning back the Midwest—somehow.

A lot of analysis has focused on how Democrats can win back working-class white men in Wisconsin and environs. If their main gripe was economic, the Democrats could offer a $15/hr minimum wage and things like that. But if it is racism and hatred of educated, know-it-all coastal elites, that won't cut it. A piece by Daniel Block looks at the issue from a completely different point of view that may be worth considering.

Block examined inequality, but not the way Bernie Sanders looks at it. He looked at inequality between regions of the country. Before Ronald Reagan was president, the Midwest had many thriving cities like St. Louis, Milwaukee, and Cincinnati, Once deregulation was introduced, these cities—which, like cities all over the country, are Democratic—began to go downhill and in some cases lose population. Consider, as an example, St. Louis. It used to be home to 24 Fortune 500 companies. Now it has 9. Local Ozark Airlines was bought by TWA, which was bought by American Airlines, which then decimated flights to St. Louis, making it less attractive for companies to have their headquarters there. Similarly, when a local bank that understands the local situation and tries to help the local economy is bought by a New York bank that doesn't give a hoot about the economy in St. Louis, Milwaukee, or anywhere, the economy in the cities takes a hit, the cities lose population, and there isn't enough counterweight in Midwestern states for the cities there to outvote the rural areas.

The (long-term) solution for the Democrats is to adopt policies that help midsize cities grow so they can win states that have a mix of midsize cities and rural areas. Such policies would include new and much tougher antitrust laws and vigorous enforcement of them to prevent big companies on the coasts from buying up smaller ones in the heartland and then degrading them. For example, Cigna—which is based in Connecticut—wants to buy Express Scripts, which is located in Missouri. The Justice Dept. should forbid that in order to keep a thriving company in Missouri.

There are many more examples, but the clear focus would be on stopping big companies from getting even bigger by absorbing distant companies that are doing just fine. Another general principle should be encouraging competition. If a sector doesn't have 10 major companies, maybe it is time to break up the biggest ones, either by law, or through highly progressive corporate taxes that make the stockholders demand that the companies split themselves up into smaller, less-taxed pieces. And of course, tax and other incentives for companies to set up shop far from the biggest cities could also play a role. It is an interesting article. (V)

Initial House ratings

House terms are so short that representatives are basically in campaign mode all the time. As soon as you get elected, you have to start thinking about getting reelected. So it is already time to start looking at the most competitive 2020 House races. Larry Sabato's Crystal Ball has published its first take on the 2020 House races. It sees 93 districts that could be at least somewhat competitive (meaning 342 districts are currently not competitive at all). The competitive districts include 47 districts with a Democrat in the seat and 46 with a Republican in the seat. Here is the initial list:

The ratings take into account not only where the districts are politically, but also where they are heading. That means that some districts which moved sharply in one direction in 2018 may now be out of reach for the other party in 2020 and are not listed above. Currently, there are 235 Democrats and 199 Republicans in the House, with NC-09 vacant. So, to flip the chamber, the Republicans will need 18 or 19 pickups, depending on what happens in NC-09.

History can provide some guidance, albeit only very broadly. Suppose Donald Trump is reelected. Would his coattails ensure a GOP takeover of the House? Probably not. In the last five elections in which an incumbent president won a second term, none of them also picked up 18 House seats. And if the Democrats win the White House, of course, it is inconceivable that simultaneously the GOP nets 18 House seats.

Also, the last time the House switched its majority two elections in a row was a while back: 1952-1954, so from a historical standpoint, that is unlikely.

However, if we look at just the toss-up and lean races, there are 27 Democrats at risk and only 20 republicans. Advantage GOP. That's because 31 Democrats are in districts Trump won, but only 3 Republicans are in districts Clinton won. If those districts vote for Trump again, he might be able to pull in at least some of the House members with him.

What is also noteworthy is that none of the Orange County House seats that the Democrats picked up for the first time in 2018 are on the list. Basically, Sabato thinks that they are going to be blue for a long time due to demographic changes in the county, and for the GOP they are now lost causes.

Needless to say, this is pretty early in the cycle. There are going to be retirements, primary challenges, and much more, so this is only the start of a long process. (V)

Trump's Base May Be Starting to Erode Slightly

Four new polls suggest that Donald Trump's base is beginning to show some cracks. A Pew Research Center survey shows Trump's approval at 37%, near the lowest it has ever shown. Even more important, among non-college whites, 50% approve of Trump's performance and 48% don't. That's a net swing of -15 points compared to a year ago.

CNN's poll found Trump's approval among non-college whites at 45%, down 9 points since early December. Quinnipiac University's poll found Trump's approval among those voters slipping from +19 to +10, a 9-point drop.

Then there is the Marist poll. 57% of the respondents said they would definitely vote against Trump in 2020 while only 30% would definitely vote for him. Among non-college whites, 42% said they would vote for him but 44% said they would vote for someone new.

Polls go up and down, but there are three major things to keep an eye on. First, the longer the shutdown goes on, the more it hurts Trump. Second, the economy and stock market are doing fine at the moment, although there are signs of instability. If they go south, it will be a disaster for Trump. Third, Trump's team is still negotiating with China. What happens if China decides it prefers to wait for 2 years rather than make any permanent concessions of consequence? Any or all of things could shake things up quickly. (V)

Monday Q&A

We have some really good themed Q&As planned, but they are probably going to have to wait until after the shutdown ends.

Does history have any instances where blame for a government shutdown shifted? I know Donald Trump's latest offer is just politics, but the Democrats could be open to attack for not using it as a starting point to negotiate. Have there been times where the tide turned against the party "holding all the cards?" M.P., York, PA

The short answer is: No. The longer answer is: This hasn't actually happened all that many times, so we're dealing with a small sample size.

Federal government shutdowns are a fairly recent phenomenon, and largely owe their existence to...you guessed it, Richard Nixon. For nearly 200 years (and particularly after the passage of the Budget and Accounting Act of 1921), the president submitted a budget to Congress, and Congress tweaked the proposal and adopted it, in the form of a continuing resolution (which does not require a presidential signature), or one or more appropriations bills, or both. The nuances are not important here; the two things that are important: (1) Presidents didn't necessarily need to sign off on the final product, and (2) The president had much more leeway in terms of how money was spent than is the case today.

For his entire time in office, Nixon faced off against a Congress that was solidly Democratic, and that passed budgets very different than the ones he submitted. Looking for a way to push back, Tricky Dick (who was, after all, a former Congressman himself) decided to exploit a weak spot in the process. He didn't always have success getting Congress to pay for the things that he wanted, but what he could do was refuse to spend the money the Democrats had appropriated for their programs and priorities. For example, Congress might set aside $200 million for food stamps, and Nixon would spend only $50 million.

In response to this, Congress adopted the Congressional Budget and Impoundment Control Act of 1974, which put much more budgetary power in Congress' hands. In particular, the president's proposed budget is much less important these days; it's really the Congressional Budget Office that handles the early stages of the process each year. Further, the president has far less leeway in spending (or not spending) money. Now, the entire budget is executed as a series of 12 appropriations bills that spell things out in great detail. This makes it almost impossible for a modern president to use Nixon's maneuver, and to sit on millions or billions in appropriated funds. However, it does mean that for the government to be legally funded, 12 presidential signatures are required.

There is also one other piece to the puzzle. Between 1974 and 1980, there were half a dozen occasions where the government was not legally funded in time. However, Presidents Ford and Carter just proceeded as if the previous budget remained in effect, so there was no shutdown. In 1980, however, Carter asked Attorney General Benjamin Civiletti about the legality of this, and the AG responded with two opinions: (1) That the government could not keep spending money if new budget resolutions were not in place, but (2) The government could continue offering "essential" services, even without a legal budget in place.

Hopefully it is clear how this led to the situation that exists today. In passing the 1974 bill, Congress took away one presidential tool for pushing back against their budget (refusing to spend money), but replaced it with another tool (refusing to sign one or more appropriations bills). And since Civiletti's opinions have gone uncontroverted, it means that when the president doesn't sign, the money spigot shuts down, while "essential" employees are required to keep working.

Since the current circumstances emerged in 1980, there have been 16 occasions where part or all of the government was not funded in time, and 10 of those resulted in employees being furloughed. However, most of these were brief; less than a week in most cases, and generally less than a few days. If we operate under the assumption that it would be difficult to measure shifts in public opinion that take place over a week (or less), then there are only two shutdowns available as a basis for answering your question:

• Dec. 15, 1995 to Jan. 6, 1996: President Bill Clinton and the Newt Gingrich-led House Republicans/Bob Dole-led Senate Republicans disagreed strongly over whose projections to use when setting the budget: The CBO or the OMB. The federal government was closed for 21 days, with about 800,000 people furloughed, until the two sides decided to split the difference. Polls at the beginning of the shutdown showed that the majority of Americans (55%) blamed the GOP for the shutdown. That number held pretty much steady until it was over. Meanwhile, Clinton entered the shutdown with an approval rating of about 50%. He dropped into the low 40s while the shutdown dragged on, but then shot up afterwards to the highest numbers of his presidency. Conveniently, the leaders of the two factions faced off in a presidential election the next year and, of course, Clinton crushed Dole. Meanwhile, Gingrich was out of office by 1999, in part because the shutdown served as an anchor around his neck. So, this one hurt the GOP at the start, hurt them at the end, and hurt them afterward. No major shift.
  
  
• Oct. 1, 2013 to Oct. 17, 2013: This is the shutdown triggered by Sen. Ted Cruz (R-TX), in particular, as he and his GOP colleagues tried to kill Obamacare by refusing to fund it (or anything else). As with the Clinton-era shutdown, and the current one, about 800,000 federal employees were furloughed. Even though public opinion was pretty much evenly divided on Obamacare (about 40% for, 40% against, 20% no opinion), it was overwhelmingly against shutting down the government. And, from the beginning, the GOP got the majority of the blame, with roughly 45% of voters pointing the finger at them vs. 25% pointing it at Barack Obama. Over time, those numbers actually got worse for the Republicans, and by the end, more than 50% of voters were blaming them. So again, no shift in the other direction.

Note that there were also several funding gaps of 10-20 days in the 1970s but, as noted, they didn't actually shut the government down. So, they are not comparable to the current situation.

In any case, as we noted at the outset: small sample size. However, in the two analogues that are available, the party that got the blame at the start of the shutdown (the GOP, in both cases) was also getting the blame at the end. Given how broadly unpopular Donald Trump is, and how clumsily he's played his hand, it's very hard to imagine that things will unfold differently this time.

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If the senate Republicans continue to increasingly feel the heat from shutdown consequences and Senate Majority Leader Mitch McConnell (R-KY) remains...McConnell, what are the mechanisms for his removal? Can the caucus replace him as the House Republicans have replaced the Speaker? What about a recall in his home state? KL, New York, NY K.L., New York, NY

To start, a recall is not a possibility. First, because Kentucky law does not have recalls of any sort. Second, because even if Kentucky did have such laws, federal officeholders are not subject to recall. Once a member of Congress has presented their credentials and confirmed that they were duly elected, they can only be removed by their colleagues.

For purposes of this answer, we are also going to assume that illegal acts (say, shooting McConnell) and wild trickery (say, quickly admitting Puerto Rico and Washington, D.C. as states, and adding four new Democratic senators) is off the table. In that case, there are three options:

1. McConnell's caucus could decide to elect a new leader
2. 67 senators could vote to expel McConnell from the Senate
3. Four Republicans could become Democrats, thus elevating Chuck Schumer to the position of Majority Leader

There is zero chance that any of these things will happen, of course.

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in 2010, California voters passed Proposition 25, which allowed passage of the budget by a simple majority and required legislators to forfeit their pay if they did not pass the budget on time. Since then, every state budget has miraculously been passed on time! What is the possibility of requiring our federal legislators to forfeit their pay if the federal budget is not passed on time? C.Z., Sacramento, CA

There have been some attempts to make this happen, including bills called the No Budget, No Pay Act in both 2012 and 2013. The bills did not go anywhere, primarily for two reasons. First, because the members are not, on the whole, enthused about putting their own paychecks on the line. Second, because the Constitution specifies that members of Congress must be paid, and so any change likely requires a constitutional amendment, and not just a congressional act.

That said, we think it's actually possible the Democrats could make this into a campaign plank in 2020. It would be a concrete way for the Party to express opposition to further shutdowns, and would likely have broad support among the electorate. We also think it's actually possible that such an amendment could secure passage from the necessary 38 state legislatures. After all, the only amendment to secure passage in the last 40 years had to do with Congressional pay (pay raises don't take effect until the next term of Congress). However, it should be noted that over 200 members of the House and a majority of the Senate are millionaires so missing a couple of $6,700 biweekly paychecks isn't going to make them eat dog food.

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Nancy Pelosi's challenge to Trump over the State of the Union makes most of us feel good, but apart from that, does it matter? In particular, has any State of the Union speech (or text) had any historical, real-world consequences? R.S., Madrid, Spain

It absolutely does matter. First, there is no regularly-scheduled occasion that affords a president a better opportunity to look presidential before a wide audience than the SOTU, with all its pomp and pageantry. In this particular case, it denies Trump an opportunity to propagandize about the shutdown on national TV for half an hour. It's true that he can give a speech from the Oval Office, but he's already done that, of course. Further, an Oval Office speech won't have the pomp and pageantry and, perhaps more importantly, it won't have all the applause. That's very important; seeing and hearing applause has a significant effect on people's perceptions. Denying him the usual venue also allows the Democrats in general, and Pelosi in particular (given where the Speaker sits for the SOTU) to avoid a lose-lose situation. They can't applaud Trump as he rails against them, but it's also not a good look for them to appear cranky and petulant on national TV.

As to the second part of your question, there are most certainly SOTUs that had great significance beyond the symbolism discussed in the previous paragraph. In 1823, James Monroe used the SOTU to announce what would come to be known as the Monroe Doctrine. In 1848, James K. Polk confirmed that there really was gold in California, and helped launch the California gold rush (and statehood for California). In 1862, Abraham Lincoln laid the groundwork for the Emancipation Proclamation. In 1942, just a few weeks after Pearl Harbor, FDR laid out his vision for why the U.S. was fighting in World War II (the "Four Freedoms"). In 1964, LBJ laid out what would come to be known as the Great Society (Job Corps, VISTA, Medicare, Medicaid, the Office of Economic Opportunity, etc.). All of these are pretty momentous, right?

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Why couldn't Mitch McConnell simply invite Trump to the Senate to give the State of the Union speech? Has that ever happened, or have the speeches always been given the in House of Representatives? G.W., Minneapolis, MN

While there are some Republican politicians and some editorialists who are calling for that, it probably won't fly. There are rules about who can and cannot conduct business from the Senate dais, and for the President to get up and "officially" speak, the Senate would have to adopt a resolution allowing him to do so. Such a resolution would be subject to filibuster, and so unless 7 Democrats/Independents rebelled against Chuck Schumer, it wouldn't go anywhere.

For hypothetical purposes, let us imagine that McConnell and Trump trample on convention and on standard procedures (not that they've ever done anything like that before), and Trump gets up and speaks without formal approval. That still wouldn't be a great option for him. To understand why, take a look at the Senate chamber:

As you can see, it's pretty small. Further, Senate Democrats would stay away in protest, so half the desks would be empty. The galleries are also limited in terms of seating. So, the audience wouldn't be nearly as big or impressive as it would be for an address delivered in the House. Further, the Sergeant at Arms works for Pelosi, so the customary announcement of the president would not happen. It's also possible she could turn off the cameras, and deny video coverage of the address. Add it all up, and if Trump really wants to choose an alternate venue, he's better off organizing one of his rallies.

No president has ever delivered the SOTU from the Senate chamber. The only one to be delivered verbally, but from somewhere other than the House of Representatives, was Dwight D. Eisenhower's 1956 address. Ike was recovering from a heart attack at a retreat in Florida, and so he recorded a message there that was broadcast nationwide later.

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Whenever folks talk about impeachment, they always focus on "high crimes and misdemeanors" and what exactly that phrase means or doesn't mean. They always seem to ignore the other two criteria for impeachment laid out in the Constitution, namely "treason" and "bribery." Why do you think these two get ignored, since they are much less nebulous? L.S., Greensboro, NC

Our guess? Because it's easier. First, in much the same way that everyone uses "collusion" when they really mean "conspiracy with Russia against the United States," "high crimes and misdemeanors" has become a widely-used shorthand for that entire passage in the Constitution. Second, because bribery and treason are surely included on the list of things that would be considered high crimes and misdemeanors. So, by using that phrase, you cover all the bases.

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Perhaps it's time to seriously begin discussing the possibility of a President Pence. Which means considering the various scenarios of how he will govern (as "will" is starting to appear more viable than "would"). Or perhaps more accurately, will Pence actually even be able to govern? L.K., Los Angeles, CA

Pence has two advantages over Trump. The first is that he's an actual politician, who knows how things work. The second is that he's got more of a presidential temperament, and would presumably be willing to be patient and do things the correct way, as opposed to constantly attempting shortcuts.

Pence also has some significant liabilities, however. He's way out of step with much of the country, a fact that everyone was reminded of when his wife took a job teaching this week at a school that bans all LGBTQ students. He does not command the loyalty of Donald Trump's base, and would be unable or unwilling to wield them as a weapon the way that the President does. He is shockingly low on charisma for someone who's had a lengthy career as a politician and a talk show host.

There are also some significant "unknown knowns" here, as Pence's viability would be affected by the manner in which he assumed the presidency. If he invoked the 25th amendment, claiming it was "for the good of the country," and made it stick, that would likely strengthen his hand. If he became president because Trump was impeached and convicted, or was forced to resign, then some of that stench (and maybe a lot of it) would attach to Pence, too. Remember that Gerald Ford was in Congress until December 6, 1973, and had nothing to do with Watergate. By contrast, if there was some crime serious enough to prompt Trump's departure from office, then Pence would have been (at very least) a beneficiary of that crime, and he might have been a co-conspirator.

There's no way to know for sure until it happens, of course, but our guess is that Pence would not be able to govern effectively, especially up against a Democratic-controlled House.

But the biggest unknown unknown is what would happen if there is a "Goldwater moment," again, this time perhaps starring Sen. Lindsey Graham (R-SC). Suppose special counsel Robert Mueller issues a damning report and public opinion rapidly turns against Trump and the House Judiciary Committee passes articles of impeachment. Then Graham goes to Trump and tells him there are likely 67 votes for his conviction in the Senate, so he can either resign or be put on trial in the Senate and probably lose. Then Trump goes to Pence and says: "I have the deal of a lifetime for you. I'll resign, you get to be president, but in return, you have to pardon me. Deal?" Pence's answer could have a major impact on his ability to govern. If Pence pardoned Trump, Democrats would howl to the moon and obstruct him in every possible way. If Pence refused to issue a pardon, the Republican base would go bonkers, leading to chaos. It's really hard to guess how this might play out.

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