Ninth Circuit Upholds Muslim Ban v2.0 Injunction

In another setback for President Donald Trump, yesterday the U.S. Court of Appeals for the Ninth Circuit refused to overturn a lower court's decision to block Muslim travel ban v2.0. It was a unanimous decision of the three judges on the panel, all of whom were appointed by Bill Clinton. The order shot down Trump's view that as president he can do whatever he thinks is needed to defend national security, saying: "National security is not a 'talismanic incantation,' that, once invoked, can support any and all exercise of executive power under Sec. 1182(f)." In other words, the president is not a king (or shaman), and has to respect things like laws, courts, and the Constitution.

This is by no means the first case Trump has lost on immigration, even with the revised ban. The Ninth Circuit case came from a federal judge on (in the words of Attorney General Jeff Sessions) "an island in the Pacific." The island (actually a group of islands) has a name: Hawaii. A district judge in Maryland also ruled against the ban, as did the Fourth Circuit. Now it up to the Supreme Court to make the final call, either sustaining or overturning two appellate court decisions. (V)

Trump Holds First Cabinet Meeting

Donald Trump held his first Cabinet meeting on Monday and, like just about everything he does as President, it was unlike anything anyone has seen before. The meeting started with Trump making a rather remarkable declaration about himself:

Never has there been a president....with few exceptions...who's passed more legislation, who's done more things than I have.

This, of course, is not remotely true. Far from being at the top of the list, Trump is way down at the bottom, in William Henry Harrison territory. Not good, given that Old Tippecanoe expired after 31 days. Indeed, the President has personally secured passage of no legislation, and his primary work product so far has been executive orders. There was added irony to the statement given that, as the Cabinet was meeting, the Muslim travel ban was being struck down yet again. (see above)

After The Donald's opening remarks, then things got really odd. Each person at the table was required, in turn, to lavish praise upon their boss while he grinned and pointed at himself. For example, HHS Secretary Tom Price said, "Mr. President, what an incredible honor it is to lead the Department of Health and Human Services at this pivotal time under your leadership. I can't thank you enough for the privileges you've given me and the leadership that you've shown." CIA Director Mike Pompeo said, ""Mr. President, it's an honor to serve as your CIA director. It's an incredible privilege to lead the men and women who are providing intelligence so that we can do the national security mission. And in the finest traditions of the CIA, I'm not going to share a damn thing in front of the media." Reince Priebus came up with, "We thank you for the opportunity and the blessing that you've given us to serve your agenda and the American people." CNN's Chris Cillizza went so far as to rank all 23 statements from Senate-approved Cabinet members, from least fawning (EPA administrator Scott Pruitt) to most fawning (Vice President Mike Pence). Evaluating the hourlong performance, conservative commentator Bill Kristol tweeted, "I've seen individual Cabinet members fawn over a president when with him in public. But I've never seen this kind of collective sycophancy." It is instructive, however, to note the several individuals who managed to fulfill their "duty" without actually mentioning Trump or his "accomplishments" (Secretary of Defense James Mattis, for example, or Secretary of State Rex Tillerson).

In any case, it's not a big surprise that when a President of the United States is an egomaniac who demands copious amounts of flattery. They're not all that way, but some of them are—Nixon, LBJ, Harding, A. Johnson, Jackson, etc. Nor is it a big surprise that Trump, in particular, is an egomaniac who demands copious amounts of flattery. We already knew that. What is remarkable is that he felt the need to mount such a public performance, one that few people in the room (and none of the media) were going to find persuasive. It was so absurd that one could almost take the transcript, swap in Alec Baldwin and Kate McKinnon, and have a "Saturday Night Live" sketch. The only really plausible explanation is that he's just trying to get juicy positive quotations out there for the right-wing media to use as building blocks for their pro-Trump coverage. Alternatively, maybe it was an early gift, in advance of the President's 71st birthday tomorrow. (Z)

Sessions Will Testify in Public before the Senate Intelligence Committee Today

Everyone in D.C. has been in suspense about the Senate testimony of Attorney General Jeff Sessions scheduled for today: Would it be in public or would it be in private with just the committee members present? Now we know the answer: It will be public. Mike Allen has the scoop here. Sessions wanted to testify in private but the Committee refused, so Sessions is stuck with being the sequel to James Comey.

Many Republican insiders see this as bad news. Sessions knows that Donald Trump will be glued to some screen, large or small, during the testimony. The big question is how much Sessions will say and how often he will invoke executive privilege to avoid answering questions. Comey avoided answering some questions as well, but in almost all cases said that he would go into them in a closed session in the afternoon. If Sessions does that, he will get a pass from the senators, but if he point-blank says "I'm not answering that," it is going to irk many members of the panel. Furthermore, the media will act like he is hiding something. So he may be forced to choose pleasing his boss or pleasing the senators. (V)

Questions for Sessions

Jeff Sessions might very well have as much damning information in his head as James Comey, even if he is much less willing to share it. Undoubtedly, the members of the Senate Intelligence Committee are hard at work on what questions they will ask. Many sites have put together helpful crib sheets, from the Washington Post to ABC News to The Nation. Here are the big ones, organized roughly by subject:

• Why did you leave James Comey alone with Donald Trump in the Oval Office?
• Did Comey ask you for help keeping his distance from Trump?
• Do you have any doubts about Comey's testimony?
• Whose version of events do you find more truthful: Comey's or Trump's? Why?
• Do you have any knowledge of conversations being recorded in the White House?

• What was your role in Comey's firing?
• Did you produce your letter about Comey of your own volition, or was it at the direction of the President?
• Did you agree with Comey's firing?
• If yes, then did you ever warn Comey you were unhappy with his performance?
• If yes, what was the specific evidence of that poor performance?
• Do you believe, as the President does, that Comey broke the law by leaking his private memos and notes?

• Were Trump's multiple calls to then-U.S. Attorney Preet Bharara inappropriate?
• When you were a U.S. Attorney, did you speak regularly to the president then in office?

• Why should your previous, inaccurate, testimony before the Senate not be considered perjury?
• Did you "forget" any meetings beyond the two that have been made public? If so, how?
• How many times did you meet with representatives of the Russian government?
• What did you discuss with the Russians at those meetings?

• Why did you recuse yourself from the Russia investigation?
• Have you considered resigning your post? If yes, why?
• Have you considered firing Rod Rosenstein? If yes, why?
• Do you believe the president committed obstruction of justice?

There is, quite obviously, a lot of rope there for Sessions to hang himself with. We shall see how well he can dance. (Z)

Secret Service Knows of No Recordings

Inasmuch as the President of the United States tends to be a busy fellow, it's not terribly practical for him to personally operate recording equipment. This being the case, every past chief executive who has recorded conversations in the White House, including Richard Nixon, has put the responsibility in the hands of the Secret Service. They are already there, after all, and are cleared to hear what the president hears. On Monday, in response to a FOIA request, the USSS announced that they have no recordings and no transcripts of any conversations that have taken place in the Trump White House.

The chance that there are recordings of James Comey's conversations with Donald Trump, which was already remote, just got more so. The only real way such a recording might have been achieved, while keeping the USSS completely in the dark, would have been for Trump to use a device that he keeps on his person, like a smartphone. And if Trump pushed 'record' on his iPhone before initiating a conversation that he knew to be touchy enough that he had to ask people to leave the room, then that would be really, really dumb. Anything's possible, but it's very hard to believe he'd be so foolish. (Z)

Plurality of Voters Think Trump Obstructed Justice

A new PPP poll shows that 49% of registered voters think that Donald Trump has obstructed justice, compared to 41% who think he hasn't. Right now, nearly all Republicans in Congress say they support Trump, but if lopsided majorities of the public turn against him, Congressional Republicans could drop Trump like a hot potato. By some estimates, privately 90% of House Republicans would prefer a President Pence to a President Trump.

The poll also asked a number of other questions. For one, Trump's approval is at 40%, vs. a 54% disapproval. However, another warning sign for Trump is that 48% support impeaching him vs. 41% opposed to impeachment. Voters are also having buyer's remorse. If the election were held today instead of last November, Hillary Clinton would beat Trump 48% to 41%.

The poll also looked forward to 2020 and matched Trump up against various national Democrats. He loses to every one of them, including Joe Biden (54% to 40%), Bernie Sanders (52% to 39%), Elizabeth Warren (49% to 39%), Al Franken (46% to 38%), and Cory Booker (46% to 39%). Taken with the approval data, it is clear that 40% of the voters are sticking with Trump, no matter what he does and no matter whom he runs against in 2020. As long as his base remains intact, no calls for him to change his ways are going to have any effect. (V)

Senate Has a Bill to Put More Sanctions on Russia

Late last night, Chairman of the Senate Committee on Foreign Relations, Bob Corker (R-TN), told reporters that his committee had finished work on a bill that writes the current sanctions against Russia into law and puts new ones in place as well. If the bill becomes law, the president will be stripped of the power to lift the sanctions on his own. He will need approval of Congress to do so. Senate Minority Leader Chuck Schumer (D-NY) praised the bill, so it will likely sail through the Senate, probably with enough votes to override an expected presidential veto. Schumer urged the House to pass it quickly as soon as it gets over there.

Corker's bill isn't the only one aimed at Russia. A bill jointly authored by Sen. John McCain (R-AZ) and Sen. Ben Cardin (D-MD) would impose financial penalties on Russia for its meddling in the 2016 election. An even stranger pairing of senators is the very conservative Sen. Mike Crapo (R-ID) and the very liberal Sen. Sherrod Brown (D-OH), who have agreed to a bill to strengthen the sanctions Barack Obama placed on Russia. Sen. Lindsey Graham (R-SC) is also working on a bill. In short, it is not yet clear how many bills will finally emerge, whether they will be combined, or the precise trajectory they will follow, but it seems very likely that some bill strengthening, rather than weakening, the sanctions will pass the Senate by a large majority.

Sanctions aside, the bill could have another effect that is currently under the radar. Suppose the bill passes Congress, Trump vetoes it, and then Congress overrides his veto. That is clearly speculative, but plausible. How will Trump react to discovering that sometimes Congress wants things he doesn't want and that it has the power to get its way when it really wants to. Never in his entire life has he had a boss or even anyone who could say "no" to him and have it stick. It would be quite out of character for him to respond to an override by tweeting: "You win some, you lose some. c'est la vie," and not only because he doesn't speak French. (V)

Four Members of Mueller's Team Have Donated to Democrats

The Hill is reporting that four of the top prosecutors on the team of special counsel Robert Mueller have donated to Democratic candidates, as follows:

• Michael Dreeben gave $1000 to Hillary Clinton's Senate PAC
• Jeannie Rhee gave $5400 to Hilary Clinton's presidential PAC
• Andrew Weissmann made six donations totaling $4700 to Barack Obama's 2008 PAC
• James Quarles has donated to over a dozen Democratic PACs since the late 1980s, but also to two Republicans

Needless to say, Republicans will shortly begin howling to the moon that the prosecutors are completely biased against Trump and their final report should be discounted as a partisan attempt to undo the 2016 election results. There was no report about Mueller's own donations, if any. (V)

Trump Reportedly Considering Firing Mueller

Donald Trump's allies are doing what they can to undermine Robert Mueller, in anticipation of whatever unpleasant conclusions he might reach. Newt Gingrich, who conveniently happens to be hawking a new book he "wrote" about Trump, has taken the lead, asserting that, "Republicans are delusional if they think the special counsel is going to be fair." Other Trumpeters are also closing ranks; Representative Sean Duffy (R-WI), for example, suggested that Mueller should be relieved of his duties, wondering, "What the hell are we investigating?" Apparently, the Congressman does not follow the news.

Given that such rhetoric is now running rampant among the right-leaning media, from which The Donald gets most of his information, it should not surprise us that at least one Trump intimate, longtime friend Christopher Ruddy, says the President is "considering, perhaps, terminating the special counsel." White House spokeswoman Sarah Huckabee Sanders denies that this is the case, but it seems very unlikely that Ruddy would have made it up from whole cloth.

If Trump really is having such thoughts, it should make those around him very nervous. Given his propensity for flying by the seat of his pants, all it would take would be one ill-tempered hour, and Mueller (and probably Rod Rosenstein) would be done. If it were to happen so early in the process, the optics would be very, very bad, and at the same time Trump would be adding to the weight of the evidence in favor of obstruction of justice. Further, as Rep. Adam Schiff (D-CA) observed on Monday, Congress would almost certainly re-hire Mueller the next day, at which point he would be beyond Trump's authority. So, the President would suffer the damage that would come from his own personal Saturday Night Massacre and yet would not get the benefits. As much as he hates being under scrutiny—which is pretty much the opposite of "Winning!"—Trump would be wise to let the process play out. That is his only (probably slim) chance of lifting the Russia cloud. (Z)

Gorsuch Makes His First Ruling

People waiting for newly confirmed Justice Neil Gorsuch to make his first ruling need not wait any longer. Yesterday, he issued it. In 1977, Congress decided that debt collectors working for banks and credit card companies were harassing people who owed money too much and passed a law restricting what they could do. In a case before the Court, Santander Consumer USA bought a package of bad debts from CitiFinancial at a deep discount and then began harassing the debtors in ways forbidden by the law. Santander argued that the statutory language of the law makes it clear that it applies only to debt collectors working for the actual creditors and that it doesn't apply to companies collecting their own debts. For the unanimous court, Gorsuch wrote that maybe companies collecting their own debts should be subject to the same rules as third-party debt collectors, and maybe Congress even had that in mind, but the plain text of the law covers only third-party debt collectors. So, Santander's position was upheld.

What this shows is: nothing. Yes, Gorsuch is a strict originalist who says he looks at the words in the law or the Constitution to make a ruling, without regard to the context or what has happened since. But Justices Elena Kagan, Ruth Ginsburg, Stephen Breyer, and Sonja Sotomayor all agreed with him on this, so it is hard to read a lot into this one opinion. (V)

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---The Votemaster and Zenger