TODAY'S HEADLINES (click to jump there; use your browser's "Back" button to return here)

      •  Trump Twitter Chronicles, Volume III
      •  Trump Won't Block Comey's Testimony
      •  Where is Sean Spicer?
      •  Sessions May Be on Thin Ice
      •  Team Trump Blindsided by NATO Speech
      •  Russia Hacked a U.S. Voting Machine Manufacturer
      •  NSA Leaker Arrested
      •  Mueller Is Assembling an All-Star Team
      •  Majority Opposes Paris Accord Exit
      •  Senators Don't Think a Healthcare Bill Is Possible
      •  Trump's Legislative Agenda Is Dead
      •  Supreme Court Strikes Down Another North Carolina Gerrymander

Trump Twitter Chronicles, Volume III

President Donald Trump apparently just can't help himself. Monday morning he was on Twitter again, venting for the third day in a row about the London terrorist attacks and his Muslim travel ban. The latest tweetstorm has seven entries; here are the highlights:

People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!

— Donald J. Trump (@realDonaldTrump) June 5, 2017

The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.

— Donald J. Trump (@realDonaldTrump) June 5, 2017

In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!

— Donald J. Trump (@realDonaldTrump) June 5, 2017

So, Trump has once again made his lawyers' lives harder by cutting them off at the knees. He has, at very least, confirmed three things: (1) That the second travel ban was not meant to actually fix the substantive legal problems with the first as much as it was to make the first more salable, (2) That the administration's public pronouncements on this and other matters (i.e., "this is not a travel ban") are not necessarily truthful, and (3) that Trump holds the court system in low regard. None of these three things will help when the Supreme Court takes up the case, which is why many prominent GOP lawyers have expressed their concern and/or irritation with the President's itchy trigger finger. That includes George Conway, husband of Kellyanne, who turned down a DoJ job last week, and tweeted Monday morning that:

These tweets may make some ppl feel better, but they certainly won't help OSG get 5 votes in SCOTUS, which is what actually matters. Sad. https://t.co/zVhcyfm8Hr

— George Conway (@gtconway3d) June 5, 2017

Conway also tweeted a link to a Washington Post story explaining the myriad ways in which Trump is undermining his case.

So, what is going on in Trump's mind? How could he do something that both friends and foes recognize as so obviously counterproductive? There are really only a handful of possible explanations that suggest themselves:

• He just can't control himself: This one is fairly self-explanatory. Trump has spent his whole life as the boss, and has had no need to rein himself in. Now that he's president, discretion and impulse control are much more necessary, but you can't teach an old dog new tricks. Trump has rarely shown an ability to curtail his worst instincts since taking office, even when doing so would be as simple as not picking up his smartphone.
  
  
• He's stubborn: This possibility could easily exist in concert with the previous one. Undoubtedly, many people around Trump are telling him to lay off Twitter. He may well be showing them that nobody tells The Donald what to do.
  
  
• He does not understand what he's doing: It doesn't take too much sophistication to understand the legal implications of Trump's tweets, but it does take a little. In the past, the President had that sophistication, but maybe he doesn't any more. There is some evidence that his mental faculties are in decline, so it's at least possible he really doesn't know any better. If that seems preposterous, we should keep in mind past cases where a chief executive's loss of faculty was kept pretty well hidden by his inner circle (Ronald Reagan, for example, or Woodrow Wilson).
  
  
• He wants the ban to fail: Assuming that theory #3 is wrong, and Trump is still reasonably sharp, then he may be aware of two things (1) The travel ban is not likely to have much impact on terrorism, and (2) There is every chance the U.S. will be the victim of at least one terrorist attack while he's in the White House. If the travel ban takes effect, and then an attack happens, then the blame falls pretty squarely on the President's shoulders. On the other hand, if the ban is struck down, and then there's an attack, Trump can tweet: "See! I told you so!" and can try and shift the blame to the courts.

Theory #4 is the most plausible, probably, and at the same time the least frightening. Whatever the case may be, however, it will be very hard for the Supreme Court to uphold the ban at this point—assuming that they even want to do so. If they try, given how many courts have already found the ban(s) to be legally wanting, they will appear hyper-partisan, something that John Roberts (and possibly new justice Neil Gorsuch) would prefer to avoid. (Z)

Trump Won't Block Comey's Testimony

Former FBI Director James Comey is scheduled to testify before the Senate Intelligence Committee on Thursday. There have been media reports about Donald Trump attempting to block his testimony on the grounds of executive privilege. Now it is official: Trump will not try to block Comey. Trump's spokeswoman, Sarah Huckabee Sanders, admitted as much yesterday. Her stated reason was to facilitate a swift examination of the facts. This is roughly analogous to a baseball team down 3 games to none in the World Series deciding to forfeit the fourth game so the fans would know the outcome earlier.

The real reason is that Trump doesn't have a leg to stand on, legally-speaking. Executive privilege is all about the separation of powers. It is about whether Congress can force another branch of the government—the executive branch—to give up information the executive branch doesn't want to divulge. It has nothing to do with whether a private citizen (James Comey) is allowed to voluntarily talk to anyone he wants to about any unclassified subject he cares to talk about.

There is also the small issue of enforcement. Suppose Trump were to announce: "I hereby declare that James Brien Comey, Jr., may not speak to anyone in Congress about any conversations we had." What if Comey did it anyway? Trump would look like a loser and the testimony would be out there anyway. Could Trump get a court a enjoin Comey from speaking to Congress? Or from holding a press conference? Or from walking into the Washington Post building and having lunch with Dan Balz? Such a gag order is a prior restraint of speech and the courts will grant this only in dire circumstances. In short, Trump has no way to force Comey to shut up since he is willing to talk and a Senate Committee is willing to listen. (V)

Where is Sean Spicer?

White House Press Secretary Sean Spicer's job has apparently been on life support for a while, and things took a turn for the worse last week. By Thursday and Friday, he was barely answering reporters' questions at all, relying instead on pre-written statements, along with the occasional "let me get back to you on that."

Given this context, it raised a few eyebrows on Monday when the White House sent Deputy Secretary Sarah Huckabee Sanders out to talk to the press instead of Spicer. Sanders explained that her boss was busy due to "taking on extra duties" and that it's "common" for deputy secretaries to pinch hit sometimes. The latter assertion is true, but generally this happens only when the actual secretary is out of town. Spicer was most certainly in the White House on Monday, so that circumstance does not hold here.

What's going on, then? Well, it's possible that Sanders was speaking truthfully, that there's nothing to see here, and that Spicer will be back on the job Tuesday. It's also possible that Spicer is going to be kicked upstairs, to replace departed White House Communications Director Mike Dubke. That would fill a key vacancy, relieve Spicer of a duty he's not very good at, and spare Trump an embarrassing high-profile firing. So, a triple win.

Those are two theories that would be, to a greater or lesser extent, good news for Spicer. Now, two theories that would be bad news for him. It is possible that he has been benched temporarily, as sort of an adult, White House version of a "time out." The same has (apparently) happened to other high-profile spokespeople, including Kellyanne Conway and Katrina Pierson. It's also possible that Spicer's exit from the Trump administration has begun, and that this is the administration's way of trying to do that while flying under the radar.

Whatever the case may be, it won't be long until we get an answer. Either Spicer will be back on the job soon or he won't be. (Z)

Sessions May Be on Thin Ice

Sean Spicer is not the only member of the President's inner circle who may be nearing his expiration date. According to reports from the New York Times, Trump is furious with Attorney General Jefferson Beauregard Sessions III over two things. The first is the travel ban; as the President's tweets make clear, he is blaming the DoJ for not making progress on the issue. The second is Robert Mueller; Trump apparently believes that if Sessions had not recused himself and put the Russia issue in Assistant AG Rod Rosenstein's hands, there would be no investigation right now. Both notions are, of course, dubious at best.

Assuming the Times' reporting is correct, we should keep in mind three things. The first is that if we know Trump is angry, then Sessions knows, too. The second is that Sessions is a savvy operator, and knows how to work his way out of trouble. The third is that Trump is susceptible to a bit of shallow flattery, and changes his mind frequently. These same considerations apply to men like White House Chief-of-Staff Reince Priebus, Secretary of State Rex Tillerson, and Senior Adviser Steve Bannon, all of whom have been reported to be "dead man walking," and all of whom remain employed. Point is, Sessions may be in hot water, but there's still time for him to save himself, especially since firing him would look very bad so soon after canning James Comey. (Z)

Team Trump Blindsided by NATO Speech

Speaking of trouble in Trump paradise, Politico has an interesting story about the President's NATO speech last week. It would seem that as the speech went through various drafts, it contained strong language that affirmed the United States' commitment to the organization, and specifically to Article 5 of the NATO treaty, which requires member nations to defend one another. The address was carefully vetted by Secretary of Defense James Mattis, National Security Adviser Herbert McMaster, and Rex Tillerson, who are on the same page so often these days that they have acquired the moniker "MM&T." The three men were so certain their version of the speech would be the one the president delivered that they told the New York Times about the Article 5 portion. So, MM&T were quite surprised when that part wasn't included in the actual speech, apparently having been excised by the two Steves: Bannon and Miller.

Nobody in the administration is denying Politico's reporting, so it's safe to say it is accurate. That being the case, it suggests a rather high level of dysfunction within the White House. This perception is affirmed by Mattis' actions since the European trip; appearing at a summit in Asia this weekend, he strongly affirmed the United States' commitment to defending its allies. In other words, he's off the President's script, to the point of going rogue. This would not be the first administration to have serious internal divisions, of course, but it is unheard of for them to be this public, and to show themselves this early in a president's term. Stories like this are also not going to make it any easier for Donald Trump to find people to fill the hundreds of jobs (441, to be exact) for which he has not even identified a nominee. (Z)

Russia Hacked a U.S. Voting Machine Manufacturer

Cyber security experts have been screaming from the rooftops for years that electronic voting systems are vulnerable to manipulation, but their defenders have pooh-poohed the idea. Now there is a report that the Russian hackers did a lot more to influence the 2016 election than release some e-mails that got supporters of Sen. Bernie Sanders (I-VT) in a dither. The report says the hack was done by Russian Intelligence Agency GRU and the manufacturer might have been VR systems. The company's voting products are used in Florida, North Carolina, and Virginia, among other states. The report, produced by the NSA, was leaked anonymously to The Intercept, and does not claim that the Russians actually managed to change the code in the voting machines to sway the count.

It does allege that they tried, though. What they did do was send fake emails to election officials in the hopes of getting them to turn over the voting machines' passwords. If the GRU managed to get some, they could potentially log into the machines and try to change the software. The attack was quite sophisticated; it was not the work of a couple of 12-year-old boys in the Philippines who did it as a joke. So far it remains unsubstantiated, but it shouldn't be surprising that the GRU tried to hack the voting machines, so it seems entirely plausible.

If the Russians' real goal was not so much to elect Donald Trump but to destabilize America's democracy, this is clearly the way to go. Imagine what could happen if it comes out that Trump/Pence won due to Russian hacking of voting machines. Then Pence is as tainted as Trump even if he is personally squeaky clean. Impeaching and convicting Trump doesn't solve the problem. Democrats will call for a new election, but the Constitution does not provide for new elections under any circumstances. It could get—what's the technical term for this?—messy. (V)

NSA Leaker Arrested

The government employee who leaked the NSA report to The Intercept (see above) has been identified. It is Reality Leigh Winner, who is employed by government contractor Pluribus International Corporation in Georgia, and carried a Top Secret security clearance. Winner has been arrested and arraigned, and faces up to 10 years in prison.

There is little question that the DoJ will throw the book at Winner. The Trump administration has been desperately searching for someone to make an example of, and they've got a winner in Winner. Not only did she print the document in question under her own login, she also used her work computer to e-mail it to The Intercept. Will this serve to stanch the flow of leaks coming from Washington? Maybe some, but its more likely effect is to cause leakers to be much more careful about covering their tracks. (Z)

Mueller Is Assembling an All-Star Team

If anyone thought special counsel Robert Mueller was just going to whitewash Donald Trump and then gracefully retire, it is time for some more thoughts. To start with, Mueller has a wealth of personal experience with national security issues. He probably remembers the Sept. 11th attacks quite well, since they happened exactly one week after he took office as FBI Director, and he was expected to figure out who planned and executed them. He also has been involved in cases from Watergate to Enron to prosecuting the Mafia.

But his personal background is only the start. He has gone on a hiring spree, assembling an industrial-strength team of prosecutors. The biggest catch so far is Andrew Weissmann, head of the Justice Dept.'s criminal fraud section. Weissmann is a fraud and bribery expert who is known to "follow the money." He has prosecuted the Enron executives Ken Lay and Jeffrey Skilling for running a massive fraud operation. Weissmann also prosecuted more than 25 cases involving the Genovese, Colombo, and Gambino Mafia families.

Other top lawyers who have joined his team are James Quarles, a former Watergate assistant prosecutor, Aaron Zebley, Mueller's chief of staff when he ran the FBI, and Jeannie Rhee, a former Justice Dept. attorney. The number of leads Mueller has to follow is so large that he is likely to hire another half dozen prosecutors. He is also expected to tap experts from other agencies for specialized needs. For example, he might want Treasury Dept. experts who understand money laundering practices and IRS agents to help study complicated tax returns.

Mueller isn't starting from scratch, either. He is inheriting numerous ongoing FBI investigations, including those involving former NSA Michael Flynn, former Trump campaign manager Paul Manafort, and former campaign hand Carter Page. This is a massive project and people close to it say it could take up to 2 years for Mueller to produce a final report. If Trump is furious at Rod Rosenstein for hiring Mueller, as reported above, there is good reason for his anger. Mueller clearly is going to do a thorough job and let the chips fall where they may. (V)

Majority Opposes Paris Accord Exit

A solid majority of Americans oppose Donald Trump's decision to pull out the Paris Climate Accord. According to a new WaPo-ABC News poll, 59% said they oppose withdrawing, while only 28% approve the withdrawal. Furthermore, 46% strongly oppose pulling out of the international agreement. Of the people surveyed, 47% think it will cost American jobs while 39% expect it to create jobs. To make it worse, 55% think it hurts American leadership in the world. Almost certainly, Trump exited the agreement for political reasons, rather than a genuine belief it would create jobs. If so, the gambit may not have worked well, with large majorities thinking it was a bad idea. (V)

Senators Don't Think a Healthcare Bill Is Possible

Sen. Richard Burr (R-NC), one of the most loyal allies of Majority Leader Mitch McConnell (R-KY) and not someone given to spouting off without thinking first, has said that he thinks a comprehensive healthcare bill is unlikely this year. That is Senate-speak for "the votes simply aren't there." Republicans can afford to lose only two members of their caucus on any vote. The current game plan is to work on an outline rather than drafting an actual bill that could be put to a vote. But even an outline will be extremely contentious. Will the outline say that people with pre-existing conditions have to be covered? Will it say that insurance companies are free to offer "junk insurance," basically very low-cost policies that cover almost nothing and have high deductibles to boot? How will it handle the tens of millions of people who can't afford healthcare insurance? These aren't minor details that a couple of Senate interns can work out later. Burr would never have said what he said unless he was pretty sure the Senate wasn't going to pass a bill this year. McConnell didn't contradict him, either. So the signs all point to divisions within the Senate Republican caucus that are so deep as to be unbridgeable.

To make things worse, the Republicans can't begin to work on changing the tax code until they have done something about healthcare, one way or another. They could concede that the ACA is here to stay and then begin on taxes, but that makes it much harder, because they were counting on saving the government close to a trillion dollars over 10 years by gutting Medicaid. That money could be used to pay for tax cuts without blowing a hole in the budget. If nothing happens this year, it is exponentially harder in 2018, which is an election year. The GOP does not want to run on a platform of "Just give us a couple more years and we'll get the job done." (V)

Trump's Legislative Agenda Is Dead

If key senators don't think a healthcare bill is possible and tax cuts depend on getting a healthcare bill passed (not to mention getting Republicans to agree on which taxes to cut and how much), what's left? Maybe an infrastructure bill, but Republican hardliners don't want to spend money on infrastructure and Democrats won't support a bill that basically privatizes federal assets. What about building a wall? Maybe, but only if the Wall Fairy supplies the materials and labor. In short, it looks like Donald Trump's legislative agenda is dead in the water. A former official in George W. Bush's administration, Andy Karsner, described the Trump administration and the congressional leadership by saying they "have no skill set, they have no craftsmanship. They have no connection to the time when people passed legislation."

This doesn't mean that the rest of Trump's term will be pointless. A president can achieve many things via executive orders, and his cabinet officers can make new regulations and rescind old ones, but governing by executive order and regulation is fragile because a subsequent Democratic president could undo all of their work, even with a hostile Congress. Nevertheless, government-by-regulation can have an effect, at least in the short term. The EPA has already revoked many Obama-era rules, thus allowing more pollution and oil drilling in the oceans. The Labor Dept. has reversed rules restricting bank activities. Multiple agencies have dumped rules encouraging agencies and companies to respect the rights of LGBT citizens.

Another power the president has is to present a budget to Congress. Now, Congress doesn't always give the president everything he wants, but it is a starting place. If a president asks for an additional $54 billion for defense, he might get only $20 billion, but he won't get a defense cut of $30 billion. In short, it looks increasingly likely that in 10 years there will not be any major Trump legislative achievements, but his effect on the country could still be enormous due to executive orders, regulations, and the budget. Not to mention, of course, his Supreme Court appointment(s). (V)

Supreme Court Strikes Down Another North Carolina Gerrymander

For the second time in as many weeks, the Supreme Court has struck down a North Carolina gerrymander. This time, they declared a staggering 28 legislative districts to be illegal. However, they also kicked the question of whether or not new elections should be held back down to the lower court for further review. So, it's something of a mixed victory for voting-rights advocates, since time to squeeze new elections into 2017 is running out.

The North Carolina case may prove to be small potatoes, however, compared to another case that the Court will soon hear, this one involving a gerrymander in Wisconsin. Perhaps the greatest problem in this area of law, to borrow the late Antonin Scalia's words, is that no, "manageable standards for adjudicating political gerrymandering claims have emerged." Current swing justice Anthony Kennedy has also asked for a meaningful measuring stick. The Wisconsin case aims to solve that issue, asking justices not only to overturn a gerrymander in that state, but to do so using a mathematical formula called the efficiency gap. The simple version of the formula goes like this: If a party claims, say, 50% of the votes in a state but only 30% of the legislative seats (or Congressional seats), then that is an efficiency gap of 20%, which is outside the realm of pure chance and would theoretically be deemed illegal. If the Court gives its assent to using the efficiency gap as a measure, it would solve the problem Scalia and Kennedy identified, and would make gerrymandering very difficult, if not impossible.

So, which party would benefit if the Supreme Court gives its blessing to the efficiency gap? Well, fortunately, that analysis has already been done by Kaz Weida of Rantt News. She has identified the 10 most gerrymandered states, six of them red (West Virginia, Kentucky, Louisiana, Utah, Texas, Arkansas), three purple (North Carolina, Pennsylvania, Ohio), and one blue (Maryland). Her guess is that redrawn maps in these 10 states would take 22 "safe Republican" seats and 3 "safe Democrat" seats and make them competitive. That includes the seat of Rep. Jason Chaffetz (R-UT); one wonders if his imminent retirement reflects his reading of the tea leaves on this issue. Weida's analysis squares with the fact that Democrats have not held this small a percentage of the seats in the House of Representatives since the 1940s, and have not held this small a percentage of the seats in state legislatures since the 1920s. So, any way you slice it, a pro-efficiency gap ruling from the SCOTUS would be a serious reverse for the GOP. (Z)