Barr Throws Down the Gauntlet

Attorney General William Barr was supposed to appear before the House Judiciary Committee yesterday. They even had a chair ready for him and everything. He did not show up, which was not a surprise, because he made very clear he wasn't going to show up. That left the Democrats to dine on the fried chicken that Rep. Steve Cohen (D-TN) brought to send a message: "Mr. Attorney General, you're a coward."

The Democrats, of course, are furious. Speaker Nancy Pelosi (D-CA), in her press conference after the no-show, did not mince words: "He lied to Congress, and if anybody else did that it would be considered a crime. Nobody is above the law; not the president of the United States, and not the attorney general." Judiciary Committee chairman Jerrold Nadler (D-NY) was also quite unhappy, and warned that there would be consequences. "We must do all we can in the name of the American people to ensure that when the Trump administration ends we have as robust a democracy to hand to our children as was handed to us," he declared.

In short, the Rubicon has been crossed. Barr has defied House Democrats, and dared them to do their worst. And their worst is a distinct possibility, as all options are reportedly on the table. A subpoena and a contempt of Congress charge are both givens, but suing Barr, referring him to his own department for investigation, and impeachment are all being bandied about, as well.

The AG is a veteran politician. He presumably knows what he's doing, and understands the risks he's taking. He may also be emboldened by being a part of an administration that seems to reside perpetually just outside the reach of federal law. However, there are at least three significant differences between Barr and Donald Trump when it comes to Congress unleashing its powers:

1. Trump is good enough at covering his tracks, and at getting his underlings to do the dirty work, that he's able to muddy the waters quite a bit when it comes to the commission of crimes (see Russians, conspiracy with). On the other hand, the behavior that could get Barr in trouble is pretty cut and dried. He clearly misrepresented the Mueller report, which is potentially obstruction of justice (more below). He even more clearly lied to Congress, which is perjury. And he will soon be in defiance of a Congressional subpoena, and will also be in contempt.
   
   
2. The base loves Trump like he's the second coming (doesn't the Bible say something about a fellow like that?) The base does not love Barr like that. So, if it were to come to impeachment, the GOP-controlled Senate might not be his "Get Out of Jail Free" card, the way it is with Trump.
   
   
3. Dept. of Justice policy prohibits the indictment of a sitting president. It imposes no such limit on the attorney general.

Add it all up, and Barr is a much more vulnerable target for various sorts of legal actions by House Democrats, which means he's (currently) a much more attractive target. He had better find his chest protector and shin guards, because it's time for the blue team to play some hardball. The only question is exactly what form it will take. (Z)

Trump Explains How He Coped with Mueller Probe

Donald Trump gave a speech on Thursday at the National Prayer Breakfast, and brought up the subject(s) of Robert Mueller, his investigation, and his report. And the President shared his strategy for getting through that crisis with the crowd. No, it wasn't blowing off steam on Twitter, or using the phrase "witch hunt" 20 times a day, or calming his jangled nerves with the soothing sounds of Sean Hannity singing his praises. Nope, he relied on his faith and his close relationship with the Lord. Trump asked Mike Pence to confirm this, and the VP did so, though it was not clear if he was endorsing Jesus in general, or Trump's close relationship with Jesus in particular.

Needless to say, this is all silliness. Donald Trump is not a religious man, as indicated by his lack of church attendance, his total disinterest in religion before entering politics, and his having lived a lifestyle for 70 years that is wholly inconsistent with the tenets of any religion, Christian or otherwise. It's possible that this only came up because it was a religion-themed event, and that will be the end of it. However, it's also possible that Trump has reason to believe he is losing support with evangelicals, and that his close personal relationship with his savior needs to be a major theme of his reelection campaign. If so, will he be able to keep a straight face while saying these things? Will his base actually buy it? Will Mike Pence, who (unlike Trump) believes in the parts of the Bible that forbid false testimony, be willing to play along? It could be very interesting. (Z)

Moore's Demise Is Official

Both of Donald Trump's picks for the Federal Reserve Board of Governors were in trouble from the start, due to their lack of qualifications and their checkered pasts. Last week, Herman Cain threw in the towel. And on Thursday, Stephen Moore did so as well, blaming the media for his demise. He did not appreciate that they had the temerity to look into his past, and to report a vicious pack of facts about it.

That leaves the administration back at square one, and with a choice to make. Trump can try to sneak another toady (or two) past the Senate, but that already failed, and Cain/Moore were presumably the best toadies available. Alternatively, he can make the sort of pick that other presidents make: An experienced, trained economist whose loyalty will be to the Fed, and not to the administration. We'll see which direction Trump goes, although it should be pretty clear where the smart money is. (Z)

Clinton Has a Sense of Humor

There is a fairly famous story about the great filmmaker John Ford, who had cast John Wayne in at least half a dozen movies, including Stagecoach and Fort Apache, by 1948. That year, Ford went to the theater to see Wayne in Red River, directed by Howard Hawks. Ford's review. "I never knew that big son of a bitch could act."

We offer this as prelude to Hillary Clinton's latest appearance on Rachel Maddow's program. Clinton showed some impressive qualities during her 2016 presidential campaign, and some that were not-so-impressive, but one thing we did not see much of was a sense of humor. However, it turns out she has a pretty wicked one. Chatting with Maddow, she suggested that Chinese hackers really ought to try to get their hands on Donald Trump's tax returns.

She's not serious. At least, not 100% serious, though who knows if Xi Jinping watches Maddow for ideas. Primarily, she is just poking the bear, by turning Trump's call for the Russians to hack her e-mail around on him. The President does not like turnabout like this, which he definitely does not regard as fair play. He likes it less coming from a woman, and still less when it involves his tax returns, which are a sensitive subject. Put another way, Clinton is just making sure to keep "living rent free inside of Donald Trump's brain," to use her exact words. Presumably, since she is no longer a candidate for office and can do it with impunity, pushing the President's buttons will be one of her main tasks during the 2020 presidential campaign. (Z)

California Senate Passes Tax-return-for-ballot-access Bill

On Thursday, the California state Senate passed Senate Bill 27 by a vote of 27-10, appropriately enough. The bill would require any candidate who wants to appear on the California primary ballot to release five years' worth of income tax returns.

It will undoubtedly pass in the California assembly, which has so few Republicans it could be confused for a NARAL fundraiser. Then it will head to Gov. Gavin Newsom (D), who hasn't yet said what he will do. His predecessor, Jerry Brown, refused to sign a similar bill last year. However, Brown consistently refused to release his own tax returns, so demanding them from another politician would have appeared a tad hypocritical. Further, he was term-limited. Newsom, by contrast, shared his tax returns (which revealed that his winery is doing very well, indeed). He also aspires to be reelected by voters who, on the whole, really dislike Donald Trump. So, the fate of Senate Bill 27 could well be very different than that of its predecessor.

Assuming the bill does pass (along with similar bills in Washington, New Jersey, and other states), then it certainly puts Trump and the GOP in an unpleasant position. Trump could release his taxes, of course, but he really, really doesn't want to do that, particularly if it involves bowing down to the demands of a deep blue state. Alternatively, the GOP could just take away the delegates of California and any other state that passes a similar bill. But do they really want to disenfranchise millions of their voters to protect Trump's tax returns? The third possibility is to fight the law in court, making the case that it represents an unconstitutional attempt to create new qualifications for office. The problem here is that this argument probably won't work, and even if it does, the pace of the courts is pretty glacial (which is what the President is counting on, of course, in suits where he's the defendant rather than the plaintiff). And a final option is to just let things take their course which, assuming Trump's taxes remain secret as of March 2020 (i.e., the IRS doesn't surrender them to Congress), would put someone like Bill Weld in a position to claim an awful lot of delegates. Maybe even enough delegates to be a problem for Trump. One wonders if RNC Chair Ronna Romney McDaniel is secretly hoping that the IRS is forced to give the President's tax returns to Congress, so she doesn't have to make a choice. (Z)

Friday Q&A

Another deviation from the usual schedule, so as to allow a few William Barr questions.

Given that contempt for refusing a congressional subpoena is not the same as conviction for a crime, would Donald Trump be able to use his pardon power to keep said contemptible from serving jail time or getting fined? J.R.K., Seattle, WA

As everyone knows, the situation is currently in a very gray area right now. Whether the courts will order Barr to appear, whether he will abide by their order, and whether Congress will dust off a power not used since the 1930s and send the Sergeant-at-Arms to raid Barr's house at 6:00 a.m. are all things that nobody knows right now. You're right, however, that under current circumstances, the pardon power would not apply.

With that said, contempt of Congress is a criminal offense, and has been since 1857. That law lays out a procedure for prosecuting a person in contempt (in essence, it's the responsibility of the U.S. Attorney for the District of Columbia). If Congress was to invoke that statute, and Barr was to be prosecuted, convicted, and sentenced, then the pardon power would then be invocable, and Trump would presumably do so. In fact, one has to wonder if Barr does not have the promise of a Trump pardon in his back pocket as an insurance policy.

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Since Barr and the White House publicly browbeat Robert Mueller this week for not making a decision to charge Trump for obstruction of justice, is it still possible for Mueller to do so? My understanding is that Mueller has not been relieved of his position as special counsel. J.C., Chicago, IL

You're right that Mueller is still on the payroll as special counsel, and is expected to remain so until he's done talking to Congress. And so, it is indeed possible he could produce Mueller report v2.0, or a Mueller report addendum, or a memo, or anything else he sees fit to produce. However, that document would be subject to the same "review" from Bill Barr that the first document got. And it would presumably be redacted or delayed (or both) into oblivion. If he wanted to actually jump straight to charging Trump, he could try it. It would only be for show, though, because the indictment would have to be approved by Barr, which obviously isn't happening.

Beyond the fact that it would be hard to clear the Barr, approaching things in this way is not Mueller's style. He's a team player, not a rebel. If he has something to say (and he probably does), then he will do it verbally, and before a Congressional committee. This would allow an end run around interference from the AG, and it's also much more by-the-book, which is a major selling point to a by-the-book guy like Mueller.

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Since it is pretty clear that Robert Mueller left it to Congress to determine if Trump obstructed justice, and Barr "preempted" such a procedure with his summary, it isn't also pretty clear that Barr has obstructed justice? K.W., Austin, TX

As we noted yesterday, we're not lawyers, and so we do not claim mastery of the nuances and subtleties of the law here. However, we will offer two observations. The first is that, according to the letter of the law, Barr certainly does appear to be exposed. Obstruction has three elements: (1) "Imped[ing], obstruct[ing], or influenc[ing] the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States;" (2) Proximity to a current or recent proceeding; and (3) Corrupt intent. Put more briefly, you have to interfere with an investigation, while that investigation is ongoing, and in a manner that was deliberate and dishonest. Barr probably interfered with Congress with his four-page "report" and his press conference, and he definitely did so by lying to them about Robert Mueller's opinions. Undoubtedly the matter is ongoing, and he clearly did it to protect his boss, and not in service of some non-corrupt goal. So, the AG appears to have met all three prongs.

But now our second observation, which is the other side of the coin. Obstruction is tough to prove, as we've all been learning this year, and Barr, unlike us, is a lawyer. Our guess is that he's been careful to walk carefully so he's just on the correct side of the "legal" line. Alternatively, maybe he's obliterated the line, and is counting on the Senate and/or a presidential pardon to keep him safe. In any event, this is a question that the Democrats and their army of lawyers are going to spend much time studying in the next few months (see above).

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I have always appreciated your non-partisan analysis, but your May 2 posting was very frustrating to me as I believe you fell into an all-too-common trap that many news organizations have fallen into. That is, you resorted to soft euphemism rather than calling out the obvious. Specifically, your section titled "Trump Won Iowa Due to Xenophobia" raised the profile on an important study that attributed Trump's success in Iowa to racial bias rather than religious or economic issues. However, I fail to see how the term "xenophobia" was more accurate or informative than the simpler and more powerful term "racism." I recognize that it's a charged term and that people will react negatively to it, but euphemisms don't make it any less ugly, they only create more space in the margins between racist dog whistles (or bullhorns) and acceptable behavior. S.V.E., Washington, D.C.

When (Z) was first assigned to teach History of California (not his specialty, or anywhere near it) about 10 years ago, he was working on the lectures, and learned that between 1848 and 1860, the U.S. army traveled up and down the state, slaughtering any Natives they encountered. Private citizens picked up the slack, earning a bounty from the state for every Native American they killed. As a percentage of the population, this effort was even more deadly efficient than the Holocaust, reducing the indigenous population of the state by 80% (150,000 to 30,000) in just over a decade.

This pretty clearly fits the definition of the word "genocide," which is often (incorrectly) used to describe mass killing, but which was actually coined in 1943 by lawyer Raphael Lemkin to mean "the systematic attempt to eliminate a race, religion, or culture" (note genos + cide = race + kill). Despite this, the word 'genocide' did not appear in any texts as (Z) prepared to teach the class, so he consulted with a number of folks who are experts in California history. They consistently refused to endorse that particular descriptor. That is fine, but they have to have a reason, and their reasons were shockingly flimsy. One historian (now deceased, but a giant in the field) said, with a straight face, that genocides can only target Jews. Even Lemkin, the guy who coined the term, never said that.

We pass this story along to communicate two things: (1) You're right that sometimes people are unwilling to use harsh (but apropos) words, for whatever their reasons might be. And (2) We personally have no issue calling a duck a duck. Finding the responses from the experts unpersuasive, (Z) wrote his lecture based on the view that what happened was indeed a genocide. He has since been sustained by the scholarship; the last few years have seen a number of books, like An American Genocide and Murder State, that characterize the mass-killing of Native Americans in California as a genocide.

Back to today, Donald Trump is a racist. Maybe not David Duke-level racist, but racist nonetheless. And he won the presidency, in part (maybe in large part) by appealing to other voters on a racist basis. We did not use the term "xenophobia" because we have a problem saying that. We used it because the original story and the original study both used it. And they did so because it actually is more accurate. Beyond the anti-Mexican racism, there was also substantial Islamophobia, along with more than a dash of anti-Semitism. Since "Muslim" and "Jewish" are not races, it is necessary to use the more general term "xenophobia" to properly account for the broad spectrum of bigotries that the Trump campaign capitalized on.

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I note that a lot of well-qualified Democratic candidates are saying they will not run for the Senate in 2020. I am guessing that most are really just waiting, as the election is over a year away. If Trump is still being Trump and these folks still see an opening, I expect many will be jumping in next spring. Your thoughts? C.C., Houston, TX

You are probably on to something. Announcing right now puts a big target on a candidate's back, and also commits them to more than a year and a half of brutal campaigning. Aspirants for high office never used to declare so early, for these very reasons. One of the primary reasons they do so today is to start raising the vast amounts of cash that a modern campaign requires. However, if a Stacey Abrams or a Beto O'Rourke were to announce a Senate run in April of next year, they would quickly have more money on hand than Croesus.

The only upside to declaring right now, for folks like this, is to keep other serious challengers from entering the race. So, if someone like Abrams is planning to jump in sometime next year, she's probably advised Minority Leader Chuck Schumer (D-NY) and DSCC Chair Catherine Cortez Masto (D-NV), so they don't recruit someone else, and so they steer other contenders away. It's also possible that one or more of the Democratic presidential candidates (O'Rourke? Jay Hickenlooper?) will jump in if their campaigns falter, as Sen. Marco Rubio (R-FL) did in 2016.

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I don't understand the rush to impeachment among some parties. Wouldn't it be better to wait for the 2020 election? If Trump is returned to office, then begin impeachment proceedings. C.F., Lawrence, KS

Keeping in mind that impeachment is as much a political decision as anything else, this seems non-viable to us. The argument that Team Trump is making right now is that the Democrats' investigations and impeachment talk are just shenanigans meant to overturn the results of the 2016 election. Most voters aren't buying it right now, but that argument would have a lot more salience if Trump was reelected. "Who is Congress to impeach Trump if the American people have had their chance to weigh in, and have sustained him?" Republicans would say. That would not be an easy question for Democrats to counter.

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What are the chances Trump will decide not to take part in 2020 presidential debates with the Democratic candidate? Could this be another "tradition" he forgoes? Given the widespread agreement that he lost each 2016 debate to Clinton, will he find some excuse to weasel out of debating? How much would doing so cost him with the electorate? If he does take part, which current Democrat might give him the toughest debate challenges? M.L.B., Albuquerque, NM

Given that Trump already skipped one debate in 2016 (albeit a GOP primary debate), there's every chance he'll skip the general election debates in 2020. He hates preparing for them (to the extent that he does prepare), he doesn't perform particularly well in them, and he's at risk of saying something that could cause him trouble. Since everyone already knows who he is and what he stands for, and since he is unlikely to inflict a mortal blow upon his opponent, there is very little upside to participation for the President.

If he does skip them, he will hold rallies on the same nights the debates should have happened, and will say this allows him to talk to "the people" without interference from the evil liberal media. And his base will love him for it, of course. The rest of the country will be less impressed, but Trump doesn't care about them.

Your last question is a very interesting one, if Trump ultimately does show up for the debates. A conventionally expert debater is someone who is well spoken, nimble on their feet, and has a broad-ranging mastery of the subjects that may come up. That is a description of Hillary Clinton, and we all know that her considerable skill as a debater did not allow her to knock Trump out. So, we have to operate under the assumption that intelligence and verbal skills and policy knowledge and the like do not necessarily make someone dangerous to Trump. In a conventional debate, the best candidate is probably Mayor Pete Buttigieg (D-South Bend), or maybe Sen. Elizabeth Warren (D-MA). But again, Trump is not a conventional opponent.

The kind of opponent who would likely give Trump fits is someone like Ronald Reagan. Ronnie could toss the occasional bomb when he needed to, though he generally managed to remain pleasant while doing it. Further, he was quite good at countering his opponents in a passive-aggressive manner that was lethal, and yet did not anger voters. One remembers his responding to Jimmy Carter by sadly shaking his head and saying, "There you go again." This made the then-president seem ridiculous, like he was completely out of touch with reality.

Anyhow, as you may have heard, Ronald Reagan was a Republican, and is presently dead, so he's probably not available to debate Trump. The closest equivalent in the Democratic field has to be Joe Biden. He can do throw bombs without being too nasty and, more importantly, he is pretty good at the "you're such a silly man" laugh and facial expression. In fact, here is him performing several variants during the 2012 vice-presidential debates:

It worked against Paul Ryan; no reason it wouldn't work against Trump as well.

Programming Note: We're still working on the next phase of the presidential candidates series, but it will be back next week for sure.

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