Judge Kimba Wood Appoints a Special Master in the Michael Cohen Case

Three new developments occurred in the case of Donald Trump's fixer Michael Cohen yesterday. First, Trump called in to Fox & Friends for an interview and said that Michael Cohen didn't do a lot of legal work for him. That is important because federal agents seized Cohen's computer, phone, and other items in a raid 2 weeks ago. Cohen and Trump are arguing in court before Judge Kimba Wood that the information on the devices is covered by attorney-client privilege, and therefore shouldn't be given to prosecutors. But if Cohen didn't do much legal work for Trump, then most of the information on the computer and phone (presumably relating to Cohen's other clients and his various business dealings) is not privileged and can be given to prosecutors. Thus, Trump's comment is certain to be used against him to argue that prosecutors should be given most (or nearly all) the information captured in the raid. Under federal law, when a lawful warrant is executed (as it was in the Cohen raid), any information related to crimes other than the one being investigated is admissible in court and can be used to prosecute the person raided or anyone else who may have committed a crime.

Second, in the interview, Trump admitted that he knew about Cohen's payment to Stormy Daniels (whose real name is Stephanie Clifford). He had previously said he knew nothing about the payment. The payment is important because if it was done to silence Daniels in order to help Trump's election, it would be a violation of federal election law. Trump's admission that he knew about it pulls him into the case. A key issue here is who supplied the $130,000 payment. If Cohen paid out of his own pocket and had no expectation of being reimbursed, he violated federal law. If Trump supplied the money but didn't report it, he violated federal law. Daniels' lawyer, Michael Avenatti, practically jumped for joy when he heard Trump's comment. He wants to depose both Cohen and Trump under oath to find out whose money it was and to show that the nondisclosure agreement has legal flaws in it and is not enforceable. Given how freewheeling Trump was on Fox & Friends, hopping wildly from one topic to another, his lawyers are probably sweating bullets already about what he might say if Avenatti, who is very clever, gets to depose him under oath.

Third, and probably most important, Judge Kimba Wood, who is handling Cohen's case, appointed a special master to review all the documents on the computer, phone, etc., to determine which ones are covered by attorney-client privilege and which ones are not. The special master is Barbara Jones. After graduating from Temple University Law School, Jones went to work for the Organized Crime unit of the Dept. of Justice in 1973. She later became an assistant U.S. attorney for the Southern District of NY. Still later, Bill Clinton appointed her to the federal bench in the Southern District in 1995. She took senior status at the end of 2012 and retired a few days later to go into private practice. She now works on white collar and financial fraud cases. In short, she is a very experienced prosecutor, judge, and private lawyer, whose specialization may well be quite relevant, depending on what she finds on Cohen's computer.

After Wood announced that she was thinking of appointing a special master, both Cohen's lawyers and the prosecutors gave her some suggestions. She rejected them all and made her own choice based on her long working experience with Jones in the SD court. Wood, like Jones, is in her 70s, and has been around the track a couple of times. Neither one is going to be pushed around by anyone and both surely know everyone is watching them very closely, so they will be exceedingly careful to follow all rules, procedures, precedents, and laws because they know that eventually Anthony Kennedy is going to tell the world whether they got it right. After making the appointment, Wood said that she expected the special master to do her work quickly. Cohen's lawyer, Stephen Ryan, praised the appointment, calling it a "wonderful choice." If Jones soon announces that almost nothing on Cohen's computer is privileged, he may come to regret that remark. (V)

Pompeo Confirmed

There was a lot of drama as Secretary of State-designate Mike Pompeo tried to secure the approval of the Senate Foreign Relations Committee, even though Senate Majority Leader Mitch McConnell (R-KY) made clear he was going to bring the nominee up for a full vote regardless of the Committee's opinion. Ultimately, Committee member Sen. Rand Paul (R-KY) decided to give his approval. From that point forward, the end result was inevitable, and on Thursday the full Senate voted to confirm the nomination 57-42. That's all of the Republicans who were present, along with Democrats Heidi Heitkamp (ND), Joe Manchin (WV), Joe Donnelly (IN), Bill Nelson (FL), Claire McCaskill (MO), and Doug Jones of AL. All but Jones face tough reelection contests this year.

Thus far, America is getting it's money worth out of the newly-minted Secretary. Following the vote, he promptly left for a trip to Belgium, Israel, Jordan, and Saudi Arabia. It is not known if he's flying first class, or if he has begun picking out expensive new furniture for his office, though. (Z)

Senate Judiciary Committee Passes a Bill to Protect Mueller

Somewhat unexpectedly, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) managed to get the Committee to pass a bill protecting special counsel Robert Mueller. The vote was 14 to 7, with all the Democrats, Grassley, and three other Republicans—Lindsey Graham (SC), Thom Tillis (NC), and Jeff Flake (AZ)—voting for it. The bill would give Mueller, or any future special counsel, the power to ask for a judicial review of his termination. If the judges felt the firing was political and not for good cause, they could reinstate him.

Despite Grassley's efforts, the bill is never going to become law. Mitch McConnell has clearly stated he thinks it is not necessary so he will not schedule a floor vote on it. And even if he did, and it miraculously passed, it could never get through the House. And if two miracles happened and it passed both chambers, Donald Trump would veto it.

But why take chances on the bill's passing? Trump hinted yesterday that he may be ready to intervene in the Russiagate probe and possibly try to fire Mueller. Members of Congress from both parties have repeatedly warned Trump that firing Mueller would probably set off a constitutional crisis, but if he feels cornered, he might try anyway. So, this is probably a warning shot fired across Trump's bow. (V)

Another Bad Day for Pruitt

EPA Administrator Scott Pruitt appeared before two House committees on Thursday, and it wasn't pretty. The Democrats, for their part, were holding nothing back. Rep. Frank Pallone (D-NJ), ranking member of the House Energy and Commerce Committee, accused Pruitt of peddling "half-truths, misleading answers, or outright falsehoods" and told the Administrator that, "You are unfit to hold public office and undeserving of the public trust." Even the Republicans were none too friendly, with Energy Committee chair Greg Walden (R) observing that, "These issues are too persistent to ignore."

Pruitt's response was, essentially, to obfuscate. He declared that, "Much of what has been targeted towards me and my team, has been half-truths, or at best stories that have been so twisted they do not resemble reality." Of course, "much of what you have heard is not entirely true" is another way of saying, "Some of what you've heard is true." Beyond that, Pruitt used a similar line when he appeared on Fox News last week, insisting that he knew nothing about the excessive raises given to his lieutenants. On Thursday, when a lie meant possible perjury charges, Pruitt acknowledged that he actually was aware of the raises. So, it turns out that sometimes when he says "that's not true," he actually means, "yep, that's true." And thus we continue to explore exactly what Donald Trump's limits are for bad behavior by an underling when that underling is willing to do literally anything the President asks. (Z)

Trump Wants to Get Rid of the Electoral College

We now have something where Donald Trump and the Democrats are 100% in agreement. Although his unwise comments on Michael Cohen (see above) were the big story from his appearance on Fox & Friends, the President also had this to say:

Remember, we won the election. And we won it easily. You know, a lot of people say "Oh, it was close." And by the way, they also like to always talk about Electoral College. Well, it's an election based on the Electoral College. I would rather have a popular election, but it's a totally different campaign. It's as though you're running—if you're a runner, you're practicing for the 100-yard dash as opposed to the 1-mile. The Electoral College is different. I would rather have the popular vote because it's, to me, it's much easier to win the popular vote.

More than 500 days in, and it's still hard to believe sometimes that the President of the United States is such a lousy verbal communicator. In any case, this statement raises more questions than it does answers. Does Trump really think it was an easy win? Is he unaware of how small his margin of error is in 2020? Has he really convinced himself that he could have won the popular vote if he'd really wanted to? Is his understanding of civics so poor that he does not realize how angry his GOP brethren would be if the Electoral College went away? It would be interesting to see the Democrats announce that they would be delighted to work with him on his proposal, but they won't do it, because some of them (say, Patrick Leahy of Vermont) come from small states, too. (Z)

Democrats Are at Each Other's Throats (Again)

The good news for the blue team is that they have lots of high-quality candidates running to defeat incumbent House Republicans. The bad news for the blue team is that they have lots of high-quality candidates running to defeat incumbent House Republicans. The result is nasty primaries in which the winner will be broke and bloodied just as the real action starts. The Party leadership is trying to reduce the problem by quietly asking weaker candidates to leave the field now and endorse the stronger candidates. When the weaker candidate is a progressive, it is Bernie v. Hillary all over again.

Case in point: House Minority Whip Steny Hoyer tried late last year to cajole progressive candidate Levi Tillerman to drop out of the race in CO-06, a winnable D+2 district currently represented by Rep. Mike Coffman (R-CO). Tillerman saw this coming and secretly recorded his conversation with Hoyer. He has now released the audio recording. House Minority Leader Nancy Pelosi (D-CA) backed up Hoyer and progressive groups howled and said in effect, the Democratic leadership never learns to stay out of primaries and let the people decide whom they want as their candidate. The Progressive Change Campaign Committee and Democracy for America faulted Hoyer for prioritizing corporate interests over progressive ideals. The DFA's executive director, Charles Chamberlain, said: "If Steny Hoyer wants to continue carrying water for greed-driven corporate interests in Congress, that's his choice, but he doesn't represent the future of the Democratic Party or the interests of the people of color and progressive white voters critical to retaking the House in November." Pelosi shot back with: "What's important in all of this is that one in five children in America lives in poverty and goes to sleep hungry at night. That's what makes this election so urgent for our country and for our children."

So the civil war continues. Progressives insist that the only way to win is to run candidates who represent the Democratic wing of the Democratic Party. The leadership insists that the candidate has to be a good fit for the district, and in some districts, that means only a conservative Democrat can win the general election. To be continued. Indefinitely. (V)

Larry Sabato's Crystal Ball Changes 15 House Ratings

Two approaches can be used to try to predict which party will control the House next year. One is the "macroeconomic" way, by looking at the generic Democrat vs. Republican polls, the president's popularity, the state of the economy, etc., and build a model driven by historical data. These models basically say: "When the generic poll says x and the president's popularity is y, historically the result is z."

The other way is "microeconomic," essentially looking at each of the 435 House districts and, based on the facts in each race, trying to set the odds for that race. Only a few handicappers are capable of that, since it requires looking at and understanding the factors in all 435 races. Actually, it isn't quite that bad, since well over 300 districts are so partisan, the results are certain even before the candidates are known. Still, there are probably close to 100 districts that are not certain, and in a wave year, maybe more. Only a couple of people and groups try to do this. One is the well-known election guru Charlie Cook. Another is Larry Sabato's group at the University of Virginia. Sabato has just changed his ratings on 15 House races. Fourteen of the changes favor the Democrats; one favors the Republicans.

First, the good news for the Republicans: After winning the AZ-08 special election on Tuesday by 4 points (the initial reports said 5 points, but the final result was only 4), Representative-elect Debbie Lesko (R) is now judged safe. If she could win an open seat, the reasoning is, she can certainly win as an incumbent (although, in fairness, the national Republicans won't be pouring millions of dollars into her race in November as they did during the special election).

Now the medium news for the red team: Ten races have been downgraded from safe Republican to likely Republican. This means the Republican is still very likely to win, but in a massive wave, has a chance of losing.

Now the bad news: Three races have gone from likely Republican to leans Republican. This means they are very much in play. Those incumbents are Dan Donovan (NY-11), Dave Brat (VA-07), and Cathy McMorris Rodgers (WA-05). Brat is a kind of celebrity, since he was an unknown college professor when he knocked off then-House Majority Leader Eric Cantor. But his district includes both Greater Richmond as well as rural areas. If the urban Democrats in Richmond show up in force, Brat may have to go back to his former teaching job. Rodgers is the only woman in the Republican leadership and she has had it easy until this year. She is facing another woman, Lisa Brown, the former leader of the Washington state Senate. Her eastern Washington district includes Spokane and Walla Walla but is R+8. Still, the Democrats are going to make a huge effort to unseat her and Brown is clearly the toughest opponent she has ever faced.

Finally, Sabato has changed Leonard Lance's NJ-07 district from leans Republican to toss-up. The district is R+3 but is the fifth richest district in the country and one of the few in which over half the residents 25 or older have a degree from a four-year college. It is precisely this kind of affluent, well-educated suburban district that is rapidly moving away from the Republicans. Mitt Romney won it by 6 points in 2012, but Hillary Clinton took it by a point in 2016. The Democrats have a strong candidate in former State Dept. official Tom Malinowski and he is all but certain of rolling in money as Democrats all over the country will pump money into this flippable district. Sabato also has NJ-11 (Rodney Frelinghuysen) as a toss-up. NJ-02, the district from which Frank LoBiondo is retiring, leans Democratic. Thus New Jersey has three extremely competitive races that could flip a Republican seat. (V)

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---The Votemaster and Zenger