Judiciary Committee Votes to Hold AG William Barr in Contempt of Congress

The House Judiciary Committee voted yesterday to hold Attorney General William Barr in contempt of Congress for ignoring a subpoena to produce the full, unredacted Mueller report for the Committee to read. The vote was 24-16, along party lines. Chairman Jerrold Nadler (D-NY) said that the fight is not just about the report, but about whether Congress is a co-equal branch of government with the Executive Branch or not. Fundamentally, Donald Trump does not believe that Congress has oversight over him, and has instructed all the people in his administration to ignore congressional subpoenas. Ultimately, this hot potato will land in the Supreme Court's lap. Its decision could affect the future of American democracy as much as any case since Marbury v. Madison.

Formally, the next step is for the full House to approve the 27-page contempt report, and given the Democratic majority in the House, that is likely. It is even possible that a few Republicans will dare to vote for contempt in an attempt to preserve what is left of Congress' dwindling power in the face of an aggressive president. All the House Republicans know that someday the shoe will be on the other foot, and a Democratic president will try to stonewall a Republican-controlled House. However, because almost every member is petrified of being primaried if he or she votes for the contempt resolution, probably only a few, at most, will join with the Democrats.

This would not be the first time the House has held the AG in contempt. In 2012, the Republican-controlled House held then-AG Eric Holder in contempt for failing to turn over documents concerning the "fast and furious" gun trafficking investigation. The House eventually got what it wanted, but it took years and it could take years for the House to get what it wants this time as well. (V)

Trump Claims Executive Privilege over the Original Mueller Report

The tug of war over the unredacted Mueller report took a strange twist yesterday, when Donald Trump responded in advance to the expected House vote to hold AG William Barr in contempt of Congress by declaring that the report is covered by executive privilege, so Congress can't see it. Take that, Congress! Executive privilege is a concept nowhere to be found in the Constitution or the laws, but in the past courts have ruled that the president is entitled to have confidential conversations with advisers. The courts have reasoned that if presidential advisers knew that their advice might someday come out, they might be hesitant to say things that the president needed to hear, but which they didn't want to be on the record saying. What is covered by executive privilege is not well defined and ends up being decided by the courts on a case-by-case basis.

The most famous case involving executive privilege was Richard Nixon's assertion that special prosecutor Leon Jaworski could not have the tapes of Nixon's Oval Office discussions with his aides. If ever there was a situation in which a president could make the case for executive privilege, it was surely tapes of the president talking privately to his associates. But the Supreme Court ruled 8-0 that Nixon had to give the tapes to Jaworski. Trump's case is far weaker since it involves a report he had no hand in writing. Furthermore, he long ago waived executive privilege on the conversations his aides reported to special counsel Robert Mueller. Trump may not realize how weak his case is, or he may know and not care. He is most likely just angry about the plan to hold Barr in contempt and lashing out. Besides, since there is some basis for the concept of executive privilege, the fight over the report could be delayed for months or more as the expected case goes through the courts. (V)

Intelligence Committee Subpoenas Trump Jr.

That headline is not too much of a surprise, since it was inevitable that one committee or another would eventually want to hear from Donald Trump Jr., as he was the key figure at the now-infamous Trump Tower meeting with Russian lawyer Natalia Veselnitskaya. The surprising part, however, is that it was the Senate Intelligence Committee that issued the subpoena. That would be a committee run by Republicans, and chaired by a Republican, namely Sen. Richard Burr (R-NC). Young Trump has not decided exactly what he will do; he may show up and invoke the Fifth Amendment, or he may just ignore the subpoena.

Anyone who bet $100 that the first subpoena issued to a member of the Trump family would come from a Republican-controlled committee can now go collect their million bucks. Senate Majority Leader Mitch McConnell (R-KY) has declared that, with the completion of the Mueller report, it's "case closed" on Russian interference with the 2016 election. Apparently Burr did not get the memo, however, as he has some more questions on the subject for Don Jr. (who already appeared once before the Intelligence Committee, voluntarily). A number of Burr's GOP colleagues were unhappy with the subpoena, among them Sen. Rand Paul (R-KY) and House Minority Leader Kevin McCarthy (R-CA), who both publicly blasted Burr on Wednesday. Of course, neither of those gentlemen is on Burr's committee, so their opinion matters approximately zero. We shall see how much support Burr gets from Senate leadership, however, if his subpoena is ignored. (Z)

Trump Implicitly Admits that He Lost a Billion Dollars in a Decade

On Tuesday, the New York Times reported that Donald Trump's businesses lost over $1 billion from 1985 to 1994, most likely making Trump the biggest loser in the entire country, at least financially. Yesterday, Trump responded to the Times' story. He said that in the 1980s and 1990s, the tax laws gave real estate developers massive writeoffs and depreciation, so anyone involved in building large projects would show a big loss for tax purposes. He did include a pro forma note that the story was a hit job and fake news, but by emphasizing that it was legal and everyone did it, he is implicitly confirming the story. If it were fake, he would have just called it fake and not explained that it was easy to do and commonplace.

The losses allowed Trump to avoid paying income tax for most of the decade covered, but he didn't seem embarrassed by that revelation. In fact, he has previously said that anyone who doesn't do everything that is legally possible to reduce his taxes is a fool. The earlier comment plus the one yesterday suggest that Trump is fighting tooth and nail to keep his recent tax returns secret because there is something in there much worse than the fact that he didn't pay any income tax for years. He seems to regard that as a sign of how good a businessman he is, rather than something to be ashamed of. So probably the recent tax returns have something in them relating to Russia, such as large interest payments to Russian banks for huge loans. If House Democrats get their way, some day we may find out. (V)

New York May Release Trump's State Tax Returns

Even if House Democrats don't get their way, Donald Trump's tax secrets may be revealed, because a new front has been opened in the tax-return war. Yesterday, the New York State Senate passed a bill 39-21 that allows the commissioner of the New York Dept. of Taxation and Finance to release the state tax returns of any state resident to the same three members of Congress who have the right to federal returns. Specifically included is the Chairman of the House Ways and Means Committee, currently Richard Neal (D-MA). Neal has used his power and subpoenaed Trump's federal returns, but Treasury Secretary Steven Mnuchin has refused to turn them over.

The bill will now go to the State Assembly, where Democrats have a 106-43 advantage over the Republicans, so the bill is likely to pass. Gov. Andrew Cuomo (D-NY) has not yet said whether he will sign it if it lands on his desk, but it seems likely he will.

If the bill becomes law, and Neal asks for Trump's tax returns, the commissioner is likely to hand them over without an argument. Trump might try a Hail Mary lawsuit to stop him, although it is hard to see what grounds he might have. If Neal is smart, he will ask for the returns quietly, under the radar, without letting Trump know that he is doing so. That would make a lawsuit nearly impossible since the courts rarely, if ever, take up hypothetical cases. While the state tax returns don't include as much information as the federal ones, they no doubt include enough to keep Neal and his committee busy following leads for months to come. (V)

Feinstein Backs Biden

In a setback for Sen. Kamala Harris (D-CA), the other California senator, Dianne Feinstein, spurned her and is backing Joe Biden for president. It is very unusual for a senator not to support a colleague from the same state, so this is surely painful for Harris.

Feinstein explained her choice by saying she has known Biden for 20 years. When he was chairman of the Senate Judiciary Committee, of which she is now ranking member, he put her on the Committee, the first woman ever to be on it. She hasn't forgotten.

In contrast to Feinstein, Sen. Patrick Leahy (D-VT) has endorsed Sen. Bernie Sanders (I-VT) as "a proven leader with a strong message." Sen. Bob Menendez (D-NJ) has said of Sen. Cory Booker (D-NJ) that he is a "great friend and will make an even greater president." Sen. Tina Smith (DFL-MN) was proud to stand with Sen. Amy Klobuchar (DFL-MN) when she made her announcement. Sen. Ed Markey (D-MA) is behind Sen. Elizabeth Warren (D-MA). The only other exception to the custom of senators endorsing their colleagues is Sen. Chuck Schumer (D-NY), who is minority leader and wants to stay above the fray. So, he has refrained from endorsing anyone for president rather than work for Sen. Kirsten Gillibrand (D-NY), who seems to need all the help she can get. (V)

Pelosi Does Not Want to Jail Administration Officials

At a news conference yesterday, Speaker Nancy Pelosi (D-CA) made it clear she does not want to throw administration officials in jail. She just wants them to obey subpoenas, and will use the courts to try to achieve that. Some Democrats definitely do want to throw AG William Barr and Treasury Secretary Steven Mnuchin in prison for defying subpoenas, but that is not Pelosi's game. Besides, she knows the procedure. If someone is in contempt of Congress, it is her job to ask the attorney general to file charges, and she knows he won't do that against himself or Mnuchin.

Another option she could pursue is civil contempt, which could result in fines for the offenders. But they are rich, and might just pay the fines and become heroes to Trump's base.

Alternatively, if the administration continues to stonewall, as expected, the various cases will end up in the Supreme Court. If the Court orders the officials to comply with the subpoenas and they do not, then she has another remedy: impeaching them. The House Democrats probably have the votes for that. Even better, from Pelosi's point of view, is that impeachment trials for refusing to obey the Supreme Court put Republican senators in a bind. A vote saying that disobeying the Supreme Court is fine will surely irritate independent voters, but a vote to convict will anger Trump supporters. Pelosi undoubtedly sees impeachment of cabinet officials if they refuse to obey the Supreme Court as a better (political) outcome than trying to jail them. (V)

Florida Will Make It Harder for Former Felons to Vote

Last year, Florida voters approved an amendment to the state constitution to allow most former felons who have served their time to be reenfranchised. State Republican leaders, who know that felons skew minority and minorities skew Democratic, have worked hard to kneecap the amendment, since they can't repeal it. Their solution was to pass a bill requiring ex-felons to repay all their financial obligations before getting back the right to vote. These obligations include all court costs, fines, and in some cases, restitution to their victims. Since most of the ex-felons have no job and no assets, this will effectively keep them from voting, which, of course, was the plan. Gov. Ron DeSantis (R-FL) announced yesterday that he will sign the bill.

Democrats have howled that the law is an unconstitutional poll tax. Florida Democratic Party Chair Terrie Rizzo argued that history may view DeSantis as a man more in line with the times of Jim Crow if he signs the bill. Undoubtedly, the Democrats will sue and the case will end up in the Supreme Court. Everything ends up in the Supreme Court. The other two branches might as well be abolished since the Court decides everything. (V)

Schiff Introduces a Constitutional Amendment to Overturn Citizens United

After the Supreme Court ruled in the 2010 Citizens United case that individuals and corporations could spend as much money as they wanted on political campaigns, dark money poured in by the billions. In an attempt to stop having elections be for sale, Rep. Adam Schiff (D-CA) yesterday introduced a constitutional amendment that would allow Congress to pass laws regulating who can donate to campaigns and political committees and how much they can give.

Needless to say, a Constitutional amendment has a tall hill to climb before it becomes law. Too tall a hill, in this case, as there is zero chance that the proposal can get the 20 or so GOP votes it would need in the Senate. In fact, there is zero chance that the Senate will even take up the matter. However, it does allow Schiff to get some PR, which he likes. Further, if Nancy Pelosi brings it up for a vote (which is hardly certain), it would put House Republicans in the position of having to vote in favor of dark money, which isn't a great selling point to voters. (V)

The Once and Future Senator?

Jeff Sessions used to be the senator from Alabama. Then he was attorney general of the United States, until he was canned. Now he is thinking about becoming a senator again. Sen. Doug Jones (D-AL) is keeping the seat warm, but Jones has to face the voters again in 2020. If child molester Roy Moore runs again and gets the Republican nomination, Jones actually has a chance to hang onto his job, and Moore has been hinting that he may run again.

On the other hand, if Sessions decides to get his old job back, he would be a formidable contender, in part because he is well known in Alabama. On the other hand, his feud with Donald Trump is also well known, and Trump is still very popular in Alabama. In the special election for Sessions' seat, Alabama voters had the choice between a child molester and a Democrat, and they (barely) chose the Democrat. If Sessions were to run against Moore in the Republican primary, Alabama Republicans would again have a really tough choice: a child molester or a Republican who doesn't get along with Donald Trump. Somehow it doesn't seem fair that Alabama voters keep getting these tough choices. But maybe Sessions will pass on the election, making it easier for Moore. (V)

Charlie Cook Rules

People who follow elections often pay close attention to Charlie Cook, who handicaps all federal election races. He's not the only one who does this (Nate Silver and others do it too), but Cook is the dean of the pack and has been doing it for decades. As it turns out, political junkies aren't the only ones who follow Cook. Donors, especially big ones, do it, too. In fact, more money is spent on advertising in races for Congress that Cook rates as "toss-up" than on all the other races combined. And this holds for both the House and Senate. Here are the numbers in millions of dollars for 2018:

The effect is greatest for the Senate, where fully 80% of the money went to the toss-up races. In House races, 50% of the spending was in toss-up races but another 40% went to the races that leaned one way or the other.

Cook himself believes that newsletters like his have less influence than they used to, what with many small donors giving to their beloved candidate, no matter what the odds and no matter what Cook, Silver, and other gurus think. And obviously, cause and effect here isn't always clear—it may sometimes be that what makes a race worthy of the toss-up label is all the money being spent on it. Still, the effect of Cook's ratings remains substantial. (V)

Half of White Republicans Are Bothered by Someone Speaking a Foreign Language

A new Pew Research Center poll released yesterday showed that 47% of white Republicans would be bothered "some" or "a lot" if they heard someone speak a foreign language in public. Only 18% of white Democrats would be similarly bothered.

In contrast to the implied xenophobia mentioned above, 68% of Latinos, half of Asian Americans, and 48% of black folks would not be bothered. The percentage of those groups who would be bothered "some" or "a lot" is 13%, 24%, and 25%, respectively. It's worth noting that the poll was conducted in English and in Spanish, so any Asian folks who don't speak those two languages would have been excluded, which thus inflated that 24% a bit.

The poll was taken after a number of high-profile incidents in which a white person berated someone for not speaking English. One involved a gas station clerk who ranted at a Spanish-speaking customer. Another was at a donut store in which an employee got angry at a Somali-speaking family for talking to each other in Somali. (V)

Thursday Q&A

A pretty heavy dose of Trump conspiracy theorizing today.

Do you really think Donald Trump is engaging in insider trading, or other forms of stock manipulation? W.M., Niles, OH

No, neither of us think that is likely. These kinds of shenanigans tend to leave a paper trail, such that even very skillful stock traders often get caught with their hand in the insider-trading cookie jar. Trump is not a stock market guy, he's a real estate guy, so it's unlikely that he or any of his people would take such a huge risk.

That said, raising the possibility of insider trading was not our main point. In fact, the main point (which appeared at the end of that item) is that this is why Congress legitimately needs to have the tax returns and other records they've demanded. There is no president in recent memory, outside of Trump, for whom the possibility of stock market manipulation was even conceivable. And that is primarily because (1) Those men did not have a reputation for shady financial dealings, (2) They were transparent about their finances once they became president, and (3) They generally divested themselves of everything (or put everything in a blind trust). Trump's history and reputation aren't changing at this point, and he has no intention of divesting himself of his holdings, so those are two ways he will always differ from his predecessors. However, some amount of transparency—whether voluntary or forced— is still possible, and will go a long way to resolving the possibility of shady stock transactions, emoluments clause abuses, financial ties to the Russians, and other areas of concern.

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Have you (or has anyone) considered the possibility that Donald Trump is hiding his tax returns primarily because he knows it drives the Democrats nuts? Everyone (or at least everyone on the left) seems to have an idea that Donald Trump is hiding the returns because there is something embarrassing (or worse) there, such as proof of loans from the Russians or evidence that he is lying about his wealth. But could Trump just be keeping them private simply because he knows it is driving the other side bonkers, and even distracting them from challenging him on other activity or even on policy? J.O., Columbia, MD

We don't know anyone who has advanced this theory, and we think it is unlikely to be correct. While this theory might fit with today's circumstances, with Trump already elected and in the White House, his original refusal to release his taxes in 2016 came with a substantial amount of risk, and did him some amount of damage. There is no way that risk and that damage would have been worth it just to aggravate Democrats, especially since he has so many other ways of doing so.

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I keep wondering why so many Republicans in Congress stay loyal to Trump when they must realize he would throw them under the bus to save his own skin. I suspect that: (1) A lot of those folks accepted money from Vlad Putin and his cronies that was funneled to the Republicans via the NRA, and (2) Trump knows this, because Vlad told him. If so, then perhaps Trump has told the Republican congressmen that if he goes down he is taking them down with him. What do you think of that theory? D.W., St. Louis, MO

This was, allegedly, the basic scheme that kept J. Edgar Hoover in power for all those years. Many folks in Washington hated him, but were terrified to challenge him, for fear he would expose their secrets. And it's interesting that you bring this up in a week where many outlets are reporting on a vaguely similar kind of arrangement involving Team Trump. The story, in short, is that Jerry Falwell Jr. took some naughty photos that ended up in the wrong hands, and Trump used his clout (presumably with the National Enquirer) to make the problem go away in exchange for Falwell's endorsement.

All of this is to say, your theory is certainly plausible. However, we doubt that Trump is using Putin-supplied kompromat to keep his caucus in line. Around here, we are fans of Occam's Razor, which says that the simplest explanation for something is probably the correct one. And the simplest explanation here is that a sizable percentage of Trump supporters are fanatical to the point of being cult-like, and will turn against anyone that Trump turns against. Ergo, many (or most) GOP members of Congress are terrified that the President could kill their careers with a single bend of his tweeting thumb, and thus do everything possible to stay on his good side.

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You have suggested that Mueller and some of the people on his team are none too happy with Barr and his obstruction. So why wait for an invitation from Congress? Why not go on a political talk show and discuss what they think is important in the report? Or sit down with a few reporters from the Post or Times? Maybe even publish an op-ed? K.A., Clinton, MD

Speaking of Occam's Razor, the simple explanation in this case is this: none of Mueller's team would go public without his say so. And Mueller himself has a well-established reputation for: (1) playing by the book and working through channels, and (2) being publicity-shy.

There is another possible explanation, one that is not mutually exclusive with the first. In his investigation, Mueller surely encountered some information that is classified. He may be leery of any sort of public performance, for fear of inadvertently saying something that is not legal for him to say. Before Congress, particularly if the hearing is closed-door, that is less of an issue because those folks have clearances, too.

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I'm appalled by the obscurantism of the Republican Party in its actual form toward science. I could make an endless list: vaccines (that's what motivated my question in the first place), climate, heartbeat bills, offshore drilling, guns, and so on. I read a biography of the so-disliked President Nixon a few weeks ago, and my feeling is that he could pass for a "dangerous liberal" today, especially when it comes to environment, as 2019 Republicans seem to be willing to destroy the planet. I could say the same about an old school Republican like George H. W. Bush. What are, according to you, the causes of this daily regression across the Lincoln's party? What happened in these 40 years? E.K., Brignoles, France

Let us start by noting that the GOP does not have a monopoly on anti-science kookiness. In particular, anti-vax sentiment (and anti-GMO sentiment, for that matter) are about as common on the left as the right. Indeed, the most prominent anti-vaxxer in the United States may be Robert F. Kennedy, Jr., who is definitely a Democrat. (As an aside, though, two of his siblings and his niece have just written an op-ed calling him wrongheaded on this issue.)

That said, you are right that the GOP is more anti-science than the Democrats, and that it's gotten noticeably worse in the last couple of generations. You mention Nixon, who was not only legitimately pro-environment, he created the EPA. You're right about Bush Sr., too. And they weren't the only ones. Barry Goldwater was very eco-friendly, and Indiana senator Dick Lugar helped create some of the first caps on pollution, and was one of the first people in the U.S. to drive a Toyota Prius. Then he got primaried by a tea partier, namely Richard "rapes are a part of God's plan" Mourdock.

We can't be comprehensive here, of course, but we can point out three major reasons that the GOP tends to be anti-science (and, in particular, anti-global warming). The first is that they are the party of Christian fundamentalists, and there is an inherent conflict between fundamentalism (i.e., blind faith) and science (i.e., hard evidence). That conflict has shown itself many times over the past two centuries, most obviously in debates over evolutionary theory. Indeed, we are coming up on the 100th anniversary of the Scopes Monkey Trial (2025).

Second, about 15 years ago, a number of prominent folks in the petroleum business realized that efforts to reduce fossil fuel consumption were, well, bad for business. So, with the Koch brothers leading the way, they gave money to a few scientists who were willing to take it (most obviously Wei-Hock Soon), and then—armed with the results they had bought—launched an all-out propaganda blitz meant to convince Americans that global warming is a fraud. This was a message that was quite easy for some folks to accept, since "all is well" is a more pleasant thing to believe as compared to "Houston, we have a problem." Religious folks were particularly amenable to this propaganda campaign, since they are already primed to believe what they want to believe (faith) as opposed to what the evidence tells them to believe (science).

The third answer is: Barack Obama. As we know, much of the current GOP, including its leader, defines itself in opposition to the 44th president. He was very pro-science, and pro-fighting climate change. And so, opposing those things becomes a litmus test for politicians and voters who may not have strong opinions about these issues, per se, but want to oppose whatever Obama and/or the Democrats favor. This is hardly the first time in American history we've seen this dynamic; for its entire existence, the mantra of the Whig Party might as well have been "Whatever Andrew Jackson thinks, we think the opposite."

Again, this isn't the full story, but it's certainly a big part of it.

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I always thought that executive privilege was related to conversations (and related documents) where a president interacts with his own staff. It seems that the Mueller Report redactions and related documents are not in that category; they are related to what Mueller found out in his investigation. If I am correct in all this, then how can the President claim executive privilege on that material? He might as well claim executive privilege on anything if that is the case. P.B., Chicago, IL

There are actually two types of executive privilege. The type you are describing is "presidential communications privilege," and can only be invoked in communications directly involving the president. The other type is "deliberative process privilege," which covers the president's staffers, even in communications where he is not involved.

There is no plausible way that either of these types of privilege could be applied to the members of Team Mueller, since they were not interacting with Trump, nor conducting business on his behalf. If Trump does have an argument, it would have to be that some of the product of Mueller's team would fall into one of the two categories. For example, perhaps page 127 documents a conversation between Trump and an underling about national security, and the President plans to argue that he should be allowed to use privilege to keep that portion secret.

The odds, however, are that Trump has no argument, and that he's merely invoking privilege because: (1) He incorrectly thinks that it, like the pardon power, is a cure to all ills; (2) He's just stalling, or (3) All of the above.

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Has there ever been any history, or do you see any possible chance, of a presidential primary candidate stating that they would make a policy of picking from their primary opponents for all of their high-level appointments, such as Cabinet members, U.N. Ambassador, etc., promising that while their own agenda will be top of the pile, they will give their fellows the chance to fulfill their agendas as well? B.C., St. Louis, MO

Funny you should mention history, since this was actually the standard arrangement for most of the 19th century. Quite often it would be the party pooh-bahs who distributed the cabinet seats to the leaders of various factions, so as to build party unity. Sometimes, this would happen without the candidate even being consulted. Benjamin Harrison, for example, famously lamented that when he took office, he had no say over his department heads because all of the seats had been distributed in order to "pay the bills" of the election. When Rutherford B. Hayes was advised that his running mate, so as to balance the ticket, would be William Wheeler, the candidate had just one question: "Who is Wheeler?"

As you can imagine, presidents didn't always listen to the cabinet officials that were foisted upon them, and so the promise that this faction's or that faction's agenda would get an audience was not always fulfilled. However, there were some 19th-century presidents who worked quite well with their cabinets, and really did use them to make sure different elements within their party were heard. The most obvious of these is Abraham Lincoln, who juggled a very lefty Treasury Secretary (Salmon P. Chase), a moderate-to-lefty Secretary of State (William Seward), and a conservative Attorney General (Edward Bates), all of whom had been his rivals for the GOP nomination. Hence the name of the book by Doris Kearns Goodwin, Team of Rivals.

All of that said, we do not foresee a return of this model today. The optics would likely be bad; 21st century voters might take such announcements as an arrogant presumption of inevitable victory and react poorly. More importantly, a lousy cabinet secretary couldn't do all that much harm to a president or to the country back in the 19th century, when the federal government was small and fairly weak. Lincoln's original Secretary of War, for example, was a sleazeball named Simon Cameron. Nobody blamed Old Abe for picking him to keep Pennsylvania Republicans happy, and nobody blamed the President for shipping Cameron off to Russia as ambassador when it became clear he was a lousy secretary. Today, however, it is (generally) necessary to do some significant vetting of a cabinet secretary before offering them the job, and that's not practical while a campaign is underway. Further, the occasional Betsy DeVos, Rick Perry, or Ben Carson notwithstanding, it's generally expected that cabinet secretaries know what they are doing, and have some knowledge of the department they will be heading. There's no reason to think that, say, a presidential candidate's five main rivals would have five distinct skill sets that align with five major cabinet posts.

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