Dec. 10

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Ayers: Thanks, But No Thanks

Nick Ayers, who was Donald Trump's preferred candidate to replace outgoing chief of staff John Kelly, has decided he is not interested in the job. Instead, he will leave the White House entirely, and help run a super PAC set up for the President's reelection campaign.

Officially, Ayers' lack of interest is due to his desire to move back to Georgia with his young children. However, given that he's an ambitious, young (36) Republican who was just offered one of the half-dozen or so most powerful jobs in Washington, that doesn't quite pass the smell test. No, there were some rather significant downsides to the job that ultimately kept Ayers away. First, there's the fact that Trump turns every holder of the job into a whipping boy and a target for abuse, before eventually throwing them under the bus. Then, there's the constant backbiting in the White House, where everyone is out for themselves. Already, some key folks had signaled their distaste for Ayers, including First Lady Melania Trump. And finally, there's the ongoing Mueller investigation, and that entering close Trump orbit can put a person in significant legal peril.

So, where will Trump turn next? It's pretty clear, at this point, that "the best people" want nothing to do with this administration. On top of that, Senate Majority Leader Mitch McConnell (R-KY) has told the President to keep his hands off the Senate, for fear of a repeat of the Jeff Sessions-Roy Moore debacle in Alabama. That could mean Trump picks someone from the House, like Rep. Mark Meadows (R-NC). The Freedom Caucus chair talks with the President on a regular basis, and is said to be interested, but is a bomb-thrower and not a consensus-builder, and so is not especially suited to the job, temperamentally. Trump might also try to rearrange some of the deck chairs on the Titanic...er, to shift some personnel around. Treasury secretary Steve Mnuchin would reportedly accept the job, but he's not an experienced political operator, which was one of Trump's main problems with Kelly. OMB Director Mick Mulvaney, by contrast, is an experienced political operator, and is a better diplomat than Meadows. However, he's made clear he wants to stay in his current job.

Yet another option, though nobody is floating this possibility publicly, is that Trump goes without a chief of staff and does the job himself. On one hand, Trump doesn't like having someone watching over his shoulder and being told what to do, so such an arrangement would be appealing on that level. On the other hand, Trump doesn't particularly like doing work, and going without a chief of staff would add more to his plate, so such an arrangement would be very unappealing on that level. For what it is worth, the last fellow to try to go without a chief of staff was Jimmy Carter. Carter was a control freak who loved to work long hours, and even he eventually concluded that he couldn't do it alone.

Whatever Trump does, then, it's going to involve picking from a bunch of less-than-ideal options. And it is evident, at this point, that the President's general tendency to make scapegoats of his underlings, and to dismiss them at his whim, might be substantially reined in from here on out by the simple fact that finding replacements is getting harder and harder. (Z)

Jerrold Nadler: An Order to Make Illegal Payments Would Be an Impeachable Offense

Yesterday, the incoming chairman of the House Judiciary Committee, Jerrold Nadler (D-NY), told CNN's Jake Tapper that if Donald Trump directed Michael Cohen to make secret (and illegal) payments of hush money to various women to keep them quiet during the election, that would certainly be an impeachable offense because doing so violates election law.

However, Nadler has also said that not all impeachable offenses should lead to impeachment. It depends on how serious they are. A very rough analogy is that if a child runs out between two cars to catch a runaway ball and a police officer sees it, he could arrest the child for jaywalking, but he could also decide to forget that and just warn the child how dangerous it is to do that. Nadler explained his position by saying that an impeachment is an attempt to overturn an election, and that should be done only for very serious situations, not minor crimes. In any event, it is premature for Nadler to explain what he will do with special counsel Robert Mueller's report until he has a copy in his hands.

Somewhat ominously, Nadler also said that nothing in the Constitution prohibits a sitting president from being indicted. That is just a Justice Dept. policy and doesn't even have the force of law.

Over at NBC, Sen. Rand Paul (R-KY) expressed a rather different view. He said: "We have to decide whether or not really criminal penalties are the way we should approach campaign finance." In other words, what's the big deal that Trump paid a couple of women a modest amount of money to keep them quiet? After all, they accepted the deals and took the money. He also brought up a similar scandal involving then-senator John Edwards, who was prosecuted and acquitted over hush-money payoffs to his mistress at the time.

So Nadler thinks payoffs are impeachable offenses and Paul doesn't. Ultimately, it is Jerry Ford's definition that matters: An impeachable offense is anything 218 members of the House think it is. (V)

Rubio: It Would Be a Huge Political Mistake for Trump to Pardon Manafort

Sen. Marco Rubio (R-FL) also had something to say on CNN yesterday. Namely, when asked what he thought about Donald Trump's potentially pardoning his former campaign chairman Paul Manafort, Rubio said: "I just think it would be the wrong thing to do and I think it would be a huge political mistake as well." Trump, of course, has toyed with the idea of pardoning Manafort.

Rubio added that if Trump misused the pardon power like this, it would trigger a debate about amending the Constitution to eliminate or restrict its use. He didn't explain how, though. One obvious idea, of course, would be to require Senate confirmation for a proposed pardon and maybe even a 2/3 majority of the Senate. The original idea of giving the president the power of the pardon was to right a grievous wrong when it later became obvious that justice had miscarried. There was also a notion that the president might need to use the pardon in order to help end an insurrection, by promising the leaders they would not be punished and/or executed. It was never intended that the president could use it to let his friends commit crimes and then get away scot free. (V)

Fourteen of Trump's Associates Talked to Russians During the Campaign or Transition

While Robert Mueller is keeping his cards close to his vest, from his court filings and newspaper reports it is already clear that at least 14 of Donald Trump's associates had contact with Russians during the campaign or transition. Michael McFaul, the former U.S. ambassador to Russia, called that "extraordinary."

Here is the list of the 14 Trump associates who had contact with various Russians:

Here is the list of Russians with whom they have had contact:

Some Russians offered dirt on Hillary Clinton, others offered potential real estate deals, and still others offered to have Trump meet Vladimir Putin. All in all, the amount of contact between the Trump campaign and Russia is unprecedented. Furthermore, it wasn't just low-level people testing the waters or spies offering dangles. The 2016 Republican platform was changed somewhere along the line to make it more pro-Russia (or, at very least, less anti-Russia). No one has taken credit for the change in language, but somehow it got changed. So not only were there more than a dozen people in the campaign talking to Russians, the talk had effects starting very early in the general election campaign. At the very least, it is unusual in the extreme that a campaign from a party that has hated godless Commies for a century would suddenly have so much contact with aforementioned Commies (even if they're not technically Commies any more).

And not all the outreach was from Russia to the campaign. Some of it went the other way. In particular, Jared Kushner's ill-fated attempt in Dec. 2016 to set up a hot line between Trump and the Kremlin to bypass the official hot line that has existed for decades was initiated from the Trump end, not the Russian end. It is likely that we don't yet know how all the pieces fit together, but some day we might. Trump is not known for his interest in prayer, but this might be a good time to start and pray that Robert Mueller doesn't know how the pieces fit together.(V)

Kushner Advised Saudis after Khashoggi's Death

Speaking of Jared Kushner, the New York Times had some new reporting on him this weekend, namely that he was regularly on the phone with Saudi Crown Prince Mohammed bin Salman after the murder of journalist and U.S. resident Jamal Khashoggi, advising the de facto Saudi leader how to weather the storm.

For Kushner to do such a thing is absolutely staggering. Following the killing, the President was supposed to be managing the United States' official response to the incident. And, literally just down the hall, one of the President's closest advisers was utilizing an office and a phone paid for by the U.S. government to feed the Saudi government the proper counter-moves. If this had happened under Barack Obama—say, while he was dealing with Benghazi, Hillary Clinton was chatting with the Libyan government about how to avoid taking responsibility—there would have been ten investigations and constant calls for Hillary's head. Actually, there were ten investigations and constant calls for Hillary's head without her making phone calls like that. If she actually had been pulling a Kushner, there would undoubtedly have been impeachment proceedings against her, and probably against Obama, too.

This story also raises a legitimate question: Are there any ethical lines that the members of Team Trump won't cross? Is there anything they will not do, not because it's illegal or unprofitable, but simply because it is wrong? If that thing exists, it is very hard to imagine what it might be. (Z)

The Calendar Will Change the Democratic Party's Primary Process Dramatically

Here's a question to test your knowledge of politics: "What's the most important thing that will happen on Feb. 3, 2020?" If you said: "Iowans will go to their caucuses," you may be right, but probably not. It's the day California will send out absentee ballots to the roughly 60% of the voters who vote early. They could start mailing them back even before Dixville Notch, NH has tallied its 12 votes a week later. Illinois and Ohio will also start early voting before Election Day in New Hampshire. Texas also opens early voting, well, early.

The consequences of so many big states voting early are enormous. In the past, an unknown peanut farmer from Georgia could walk a quarter of a million miles in the snows of Iowa, win the caucuses, and be propelled into the White House. That's very unlikely in 2020 (in no small part because no peanut farmers seem to be running). The first two early states, Iowa and New Hampshire, are 90% white. In California, Ohio, Texas, and Illinois, minorities are a much larger part of the electorate. No matter what happens in the first two (or first four) states to vote, when California, Texas, Virginia, and North Carolina, plus five other states vote on March 3, 2020, over 1,000 delegates will be selected, swamping the combined total of the four small early states (about 185). This means that candidates who don't see the four early states as prime hunting grounds could skip them entirely and concentrate on the big states that vote on March 3.

Needless to say, to run a serious campaign in California, Texas, Virginia, and North Carolina (and optionally in five more states), a candidate needs serious money. It's almost like a general election campaign, but worse, since the money has to be spent in some of the most expensive states, rather than in medium-sized swing states like Colorado. This reality could well mean that candidates who can raise, say, $50 million, right off the bat can spend February 2020 running a national campaign and candidates who can't are going to have to hope and pray they sweep the small states to get enough momentum to give them the publicity they need to do well on March 3. It also means that California's favorite sons and daughters, like Sen. Kamala Harris (D-CA) and L.A. Mayor Eric Garcetti, and Texans like Beto O'Rourke, have a big advantage over candidates from less populous states that vote later. Sens. Bernie Sanders (I-VT) and Amy Klobuchar (DFL-MN), we're looking at you.

This change in the calendar puts a premium on being well-known (or being from California or Texas) by the Fall of 2019 in order to raise the boatloads of money needed to compete in the big states. The old model of win Iowa and New Hampshire and then you are in like Flynn won't work in 2020.

One big factor that could play a role is the Democratic Party primary debates. If a bunch of debates are held in the Fall of 2019, then any candidates who stand out might be able to raise enough money to compete on March 3. But that raises another issue. With, say, 30 candidates and a 90-minute debate, each candidate gets 1 minute for an opening statement, 1 minute for a closing statement, and 1 minute to listen to and answer 1 question. That's probably not a great format to stand out. The DNC could have a grown-ups' table and a kiddies' table, but how would that work? Would a candidate polling at 3.54% make it to the grown-ups' table and one polling 3.52% end up at the kiddies' table? With the margin of error in the polls around 4%, that's not much better than random. Whatever scheme DNC Chairman Tom Perez comes up with, some candidates are going to scream. In short, the 2020 Democratic primaries are likely to be very different from the 2016 Republican primaries. (V)

Monday Q&A

Not surprisingly, George H.W. Bush continues to be a popular subject for questions. Though the questions are getting more critical, generally speaking.

Much of the discussion of George H.W. Bush has been positive, but a few people have brought up the negative aspects of his legacy. In this category (but not receiving much attention) are the allegations that George H.W. Bush green-lighted the invasion of Kuwait through his envoy April Glaspie, who told Saddam Hussein, allegedly with Bush's approval, that the United States "has no opinion of your Arab-Arab dispute, like your border disagreement with Kuwait." Do you believe this is a fair criticism of the late former president, or are Bush's critics misunderstanding or taking out of context the envoy's meeting with Saddam Hussein? C.V., Raritan, NJ

Well, let's start by noting that the exact quote is (allegedly), "We have no opinion on your Arab-Arab conflicts, such as your dispute with Kuwait. Secretary Baker has directed me to emphasize the instruction, first given to Iraq in the 1960s, that the Kuwait issue is not associated with America." Beyond that, this is a famously-tricky case of diplomacy gone wrong. There are at least two publicly-available transcripts of that interaction, and nobody is sure which one is correct, since the State Department has never produced an official version. Further, the notorious portion (even if true) is being taken out of context. In both of the publicly available transcripts, it is clear that Glaspie was treading carefully, and that she was trying to tell Hussein that the U.S. had no interest in his dispute, but that the Bush administration wanted to see things handled peacefully.

In the end, the odds are that Hussein would have invaded anyhow, regardless of what the United States said. However, Team Bush is certainly guilty of failing to make clear to him that such a move would likely be met with force. So, while the evidence does not support the "Bush gave the green light" argument, it does support the "Bush did not communicate clearly" argument, and for that he certainly does deserve some criticism.

We are reminded of a similar sort of diplomatic miscommunication, this one involving Japan and the Harry S. Truman administration. After the President went to Potsdam in July of 1945 and warned the Japanese that they would be destroyed if they did not surrender unconditionally, the Japanese government responded with a statement whose key word was "mokusatsu." That word can be translated more neutrally, as something like "no comment," or more negatively, as something like "this is not worthy of a response." It was, of course, translated in the U.S. with the second meaning.

The general notion is that if the Truman administration had worked harder to understand the message, then maybe the bombings of Hiroshima and Nagasaki would not have been necessary, which in turn would mean that Truman ordered hundreds of thousands of needless deaths. But this ignores that even if Japan was willing to surrender before the bombs (unlikely), they certainly weren't willing to surrender unconditionally. Which means that, at best, the Truman administration lost out on a possible (but probably slim) opportunity to talk some more, and not on an opportunity to end the war. So, while the simplified version of the story looks pretty bad for Truman, a fuller version is somewhat less damning.


I'm very disappointed that you failed to note that George H.W. Bush died on World AIDS Day. His tenure as president continued Reagan's deplorable inaction. Bush Sr. refused to address and fund programs around HIV/AIDS education and prevention, as well as drug treatment. He imprisoned AIDS victims from Haiti on Guantanamo in squalid conditions. During the AIDS crises, we have declared that Silence = Death and it pains me that you contributed to that silence. J.R., New York, NY

In fairness to us, he died on November 30, and World AIDS Day is December 1. In any case, the exclusion of that particular dimension of Bush's presidency was because the fairly narrow constraints of an obituary (particularly a brief one, written immediately after Z had been lecturing for six hours) made it difficult to address the matter properly. On one hand, his handling of the AIDS crisis was reprehensible from a modern vantage point (and, in many ways, from a 1980s vantage point). On the other hand, back then, AIDS was a much trickier political issue, not unlike global warming today. Liberals were generally convinced that it was a crisis, while conservatives were largely in denial, or were even willing to suggest that it was somehow God's will. That doesn't excuse Bush, per se, but it does add context that would be hard to squeeze into an obit. Further, Bush tried to mend his ways later in life, giving attention and steering money towards AIDS prevention efforts.

In short, having decided to note about three "credits" in Bush's presidential ledger, and three "debits," we chose to go with the ones that were a little less tricky to deal with.


George H.W. Bush was not just a former president, he was also a former vice president. While he was alive, there were 7 living current and former vice presidents. Is this some kind of record? S.T., Glen Rock, NJ

A good follow-up to our answer about the most living presidents! The answer is that, as with the six living presidents, it is indeed a record, but one that has been reached more than once. The other time, beyond the almost two years that Bush was still alive and Mike Pence was VP, came in the early 1990s, when Richard Nixon, Spiro Agnew, Gerald Ford, Walter Mondale, George H. W. Bush, Dan Quayle, and Al Gore were all alive. That one ended like this one, with the death of a man (Nixon) who had been both VP and president.

You didn't ask, but to make this answer entirely parallel with the other one, there have been a handful of veeps who were the only one living. John Adams, of course, and also Hannibal Hamlin, Levi P. Morton, and Thomas R. Marshall. Hamlin was the only one to pull off the trick by being a living ex-veep at a time when there was no sitting veep (thanks to the death of Thomas A. Hendricks in an era where veeps did not get replaced).


Is there any law that states that a former POTUS can't be prosecuted for crimes committed before assuming office? If a Democratic controlled House can wait, why not just try, arrest and convict President Trump at a perhaps more convenient time after he's left office? L.K., Los Angeles,CA

The only special privilege the president has, theoretically, is that he cannot be prosecuted while in office. And even that, as noted above, is just a Justice Dept. policy, and does not have the force of law behind it. That would be something for SCOTUS to decide.

If Trump is protected from prosecution for any pre-presidential crimes, it would be in the same way as anyone else, by the statute of limitations having run out.


When someone like Robert Mueller files sentencing memos and we get to see only a redacted version, who gets access to the original? Who determines when, if ever, the redacted portions will become public? G.S., Oakland, CA

There are two reasons that things might be redacted. The first is to protect information related to national security, and the second is to protect information that could compromise other, ongoing investigations or legal cases.

In the case of state secrets, the information would be available to anyone who has the apropos security clearance. And whenever something is classified, it is also assigned a declassification date. The default is 10 years, but under some circumstances the period can be extended to 25, 50, or (rarely) 75 years. At the end of the classification period, the information would be available to anyone who wants it.

In the case of legally-sensitive information, which presumably forms the bulk of the Mueller redactions, only the Court and its officers (including the attorneys) have access. The redaction ends at the discretion of the court, normally once all relevant prosecutions have concluded.


I've always found the 35-year old requirement for President interesting, if only because it's the only example I can think of where that mature an age is required. Though attaining that age is no great feat now, I expect it was far rarer back when this requirement was established. What percentage of the population lived to be that old then? If we "indexed" that age against the average life expectancy in its time, what would that age requirement be today? J.R., Orlando, Florida

This is not so simple a question to answer as it may seem, in part because we don't have as much data as we would like, and in part because the data is distorted in a way that is hard to correct for.

Let us start by observing that these ages likely had fairly little to do with actuarial tables, of which the men who wrote the Constitution would only have been vaguely aware. They set the age for representatives at 25, which is a nice, solid, clearly-adult age. Then, they added five years for senators, and another five for president. It was very much a "that sounds pretty good" kind of decision.

And now to your actual question. The simple answer is that life expectancy back then was 40 years. Today, it's about 78 years. So, a straight conversion would be that 35 back then is roughly the equivalent of 68 today. But recall that the data is distorted. And what it is distorted by is the fact that infant mortality rates (as you allude to) were very high back then. In fact, depending on exactly what part of the country and what decade we're talking about, anywhere from 30% to 50% of Americans would not reach adulthood. However, once someone made it to 21—presumably having survived and developed immunity to a bunch of diseases, like smallpox—then their life expectancy was not markedly different from ours; they could expect to live to be about 71. So, it is probably most correct to say that the modern-day equivalent of 35 is something like 39 or 40.


How likely is it Puerto Rico or any other territory will become the 51st state in the foreseeable future? C.L., Durham, UK

Of all the potential territories that could plausibly become states, Puerto Rico is the deepest into the process, having satisfied all of the requirements for statehood, and having requested admission to the union. That particular dance began in the 1950s, and its most recent chapter came in June 2017, when a referendum expressed heavy support on the island for statehood (97% in favor). However, low turnout (23%), in part due to anti-statehood voters boycotting, led some people to question the legitimacy of the result.

That said, the Puerto Ricans have expressed support for statehood enough times that Congress certainly has the legal power to act (and, if there's any doubt, the Puerto Ricans could quickly hold another election). If Congress does decide to take up the matter, statehood would require only a majority vote of the House and the Senate. Since admission would almost certainly add two more Democratic senators, and probably two or three Democratic representatives, this is not likely to happen until the blue team has control of both chambers. When that happens, though, they might well decide that statehood for Puerto Rico and Washington, D.C. is the best available hedge against the rural-urban divide, and the fact that 18% of Americans (mostly in sparsely-populated red states) currently control half the Senate seats. The Trump administration's abysmal handling of the post-hurricane situation in Puerto Rico would give added cover for that move.


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