Feb. 03

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A Tale of Two Memos

Two members of the House have written memos about a routine renewal of a FISA Court warrant, and everyone in Washington has abruptly dropped the subject of a train full of Republicans hitting a garbage truck on Wednesday to focus on those memos. First, Rep. Devin Nunes (R-CA) released his recently-declassified memo (full text here), despite strong objections from the FBI and Dept. of Justice. It claims that the Justice Dept. applied for a renewal of a warrant to surveil Carter Page, a minor figure in the Trump campaign, without mentioning that the proof he was up to no good came from raw intelligence gathered by Christopher Steele, who was financed by Hillary Clinton. Nunes' conclusion is that the warrant application, which was approved by Deputy AG Rod Rosenstein, proves that the FBI and Rosenstein are biased against Donald Trump and the whole investigation of Russian interference in the election by special counsel Robert Mueller is a witch hunt and should be terminated immediately.

The other memo, written by Rep. Adam Schiff (D-CA), rebuts just about everything in the Nunes memo, but since it is still classified, we don't know for sure what is in it. Nevertheless, there is so much wrong with Nunes' memo that just using publicly available information, we can make a pretty good guess what Schiff had to say. Here are some points almost certainly in the Schiff memo.

For people who were expecting a smoking gun, Nunes' memo is a big disappointment. It has been known for many months that the FBI has had Carter Page in its sights for years, and the memo just confirms this. Actually, rather than asserting that the Steele dossier was the reason the FBI was interested in Page, the memo specifically says that it was information from Trump's foreign policy advisor, George Papadapolous, that got the FBI interested in a wiretap in the first place. Put another way, the memo undermines its own argument, by asserting that this all started with Steele/Clinton, and then saying it actually started with Papadapolous.

The memo was written a number of days ago, and there clearly hasn't been an update since then. In particular, there is a gratuitous reference to FBI agent Peter Strzok, who sent anti-Trump text messages to his lover, Lisa Page. Trump loyalists suggested that this is proof that the whole FBI is out to get Trump. If Nunes had updated his memo, he would have deleted that remark, because it is now known that Strzok is the person who wrote the draft announcement of the "NEW CLINTON EMAILS!!!" announcement that former FBI Director James Comey released just 11 days before the election. A good case can be made that Strzok had a major role in the October surprise that sunk Clinton, so he is anything but a diehard Clinton hack.

In addition, Carter Page is a pretty minor figure in all this. Let's call him a tea boy since apparently George Papadopoulos was allegedly the coffee boy for the campaign. If the FBI and Rosenstein were biased against Trump and out to get him, is extending an existing wiretap on the tea boy the best they could do? And nothing in Nunes' memo relates to the indictments Mueller has already gotten or his investigation of possible money laundering by Paul Manafort, Jared Kushner, or Trump himself. If Rosenstein were out to get Trump and the best he could do was continue wiretapping the tea boy, he should be fired—for incompetence.

All this aside, we still don't have Schiff's memo, which contains classified information. What might that be? We can't be sure, but there is a good chance that Schiff provides other (classified) sources that were presented to the FISA Court judge and which were the real basis for extending the surveillance warrant, not the Steele dossier. Also noteworthy is that to renew a FISA warrant, new material obtained from the wiretap must be presented. Recycling the original application is not allowed. That means even if the Steele dossier had been used to get the original warrant, then there must have been new information to get a renewal. If this is true, then Trump will never declassify Schiff's memo, since that would undercut the Nunes memo even more.

The bottom line is that the Nunes memo is clearly very misleading and doesn't provide any serious basis for Trump to fire Rosenstein, which was the supposed purpose of the memo. It will give right-wing commentators and websites material to use for days, and since Trump gets most of his news from them, he might yet decide to fire Rosenstein, the consequences of which are likely to be cataclysmic. Nunes, in a pretty clear acknowledgment that his memo came up short in terms of giving the President enough cover to move forward, has already said that more memos might well be coming, most likely one focusing on the State Dept. Trump, for his part, implied on Friday that Rosenstein is in jeopardy. When reporters asked him whether he had confidence in Rosenstein, or if he was considering termination, the President spat, "You figure that one out."

Meanwhile, most of the other Republicans in Washington were awfully quiet on Friday. On one hand, they clearly don't want to take sides against Trump. On the other, they don't particularly want to be associated with the use of classified information for political purposes, and they certainly don't want to be associated with Russiagate if the whole thing goes south. The one exception was Sen. John McCain (R-AZ), who has nothing to lose, and so blasted Trump and Nunes, declaring that "if we continue to undermine our own rule of law, we are doing Putin's job for him."

Finally, there is one thing almost no one is talking about: If Trump fires Rosenstein, Assistant AG Rachel Brand, and ultimately Mueller, that doesn't mean the show is over and Trump is home free. There is a good chance that New York AG Eric Schneiderman would pick up the ball and run with it, given that the meeting with Natalia Veselnitskaya in July 2016 occurred in his jurisdiction. (V & Z)

Things to Keep in Mind When Reading about Nunes' Memo

Jonathan Swan at Axios has a good list of things to keep in mind when reading the Nunes memo and all the stories about it. Here are his main points:

In short, Rosenstein signed off on a fairly routine renewal of an existing wiretap on a minor figure the FBI has been aware of since 2013. Now right-wing media are making Mt. Everest out of a molehill in an attempt to get rid of Mueller. And if they keep harping on it, it could give Trump the cover he needs to pull the trigger. (V)

Could Mueller Indict Trump?

Only Robert Mueller knows what is in the heart of Robert Mueller. That said, the general consensus is that whatever he comes up with as part of his investigation, he will not try to indict Donald Trump. According to the conventional wisdom, the legal and political difficulties an indictment entails are so great that Mueller is more likely to just dump his findings in Congress's lap and let them make the call. According to two prominent attorneys that Politico talked to, by contrast, it is more likely than not that Mueller indicts. "If I were a betting man, I'd bet against the president," said one of the pair.

The two attorneys are both currently representing high-ranking members of the Trump administration, so they had to speak to Politico off the record. They base their conclusion on two things. First, having dealt with Mueller, they think he's unlikely to be worried about the conventional wisdom. Second, like everyone else, they recognize that Russiagate has quickly become less about the law, and more about political posturing. They speculate that even if he thinks it will get thrown out, Mueller may go for an indictment anyhow, to make a statement about how serious his findings are, and to force Congress's hand in terms of doing something. This presumes, of course, that Mueller finds something he deems serious, but if that proves to be the case, it certainly wouldn't be surprising to see him play his hand in this way. (Z)

Dow Has a Beast of a Day

Friday was a rough day for the stock market, as the Dow Jones dropped 666 points. This is the biggest drop, by percentage (2.5%), since the Brexit in 2016. And it's the biggest drop, by points, since the last year of the Bush administration. What happened, given that the economy seems to be humming along? That's always a difficult question to answer, but analysts are pointing to two things. The first is a general sense that the market is overheated, and due for some cooling. The second is the Nunes memo. "There looks like a breakdown of the institutions in our country," said Ian Winer, head of equities at Wedbush Securities. "No matter what side you're on, that's not good."

At the moment, the United States is in the midst of a 102-month-long period of economic growth. That's the third best run in American history, just four months behind the economic explosion that unfolded throughout most of the 1960s, and just 18 months short of the dot-com boom that Bill Clinton oversaw. All three of the 100-plus-month upswings took place almost entirely under Democratic leadership, and the other two both ended within a year of a Republican taking office. Perhaps that's just a coincidence, but the evidence certainly suggests that a downturn is coming sometime soon.

Did the party end on Friday? That's a question that can only be answered with the benefit of hindsight, but if the answer is yes, Donald Trump will have to own it. He's hugged the economy in general, and the Dow Jones in particular, so close that there's no going back now. This is why most presidents tend to hold the market at arm's length. They know they'll get the credit for boom times anyhow, and they don't want their words to come back to haunt them. Or their tweets, either.

Seeing Friday's news, it brings to mind that Abraham Lincoln was shot on Good Friday, the same day that Jesus was killed, a coincidence so poetic that it's been a part of that narrative ever since. If this not-so-good Friday was indeed the end for the Trump boom, generations of historians will surely note that the mark of the beast proved to be The Donald's undoing. Of course, they may write that even if the stock market does just fine from here on out. (Z)

Judge Bans Florida's Ban on Voting by Former Felons

All but four states automatically restore voting rights to felons after they have served their time and are released. Florida is one of the four exceptions, and nine former felons there have filed a lawsuit to get their rights back. Federal judge Mark Walker has now ruled that Florida's law to deny ex-felons the right to vote is unconstitutional.

There is a process in the Sunshine State for a felon to get back the right to vote, but the judge said it is lengthy and arbitrary. The judge cited one case in which Gov. Rick Scott (R) said: "We can do whatever we want." He also cited another in which Scott immediately restored an ex-felon's voting rights after the man told Scott he had illegally voted for him. This decision, which the state is sure to appeal, is playing against a background of a ballot measure in November in which the voters will get to decide how they feel about restoring voting rights for ex-felons who have not committed serious offenses. (V)

Demographics Alone Won't Save the Democrats in Florida

Much has been written about ex-felons possibly having their franchise restored (see above) and the 300,000 Puerto Ricans who have moved to Florida since Hurricane Maria, but Nate Cohn has written the most detailed analysis yet of how much these changes in the Florida electorate are likely to matter. In short, they will definitely help the Democrats, but they won't turn Florida into California, or even into Virginia.

The main reason that possibly adding 1.5 million former felons and 300,000 Puerto Ricans to the electorate won't matter as much as Democrats would like is that these groups have miserable turnout records. Let's start with the Puerto Ricans since (1) they will indisputably have the right to vote in 2018 and beyond and (2) there is plenty of data about the voting behavior of Puerto Ricans already in Florida. It is estimated that only 225,000 of the 300,000 Puerto Ricans are of voting age and that only 57% will register, equivalent to the percentage of eligible Latinos nationwide who are registered. That will add 130,000 Puerto Ricans to the rolls. In 2016, 62% of Florida's registered Puerto Ricans actually voted, so we might assume there will be 80,000 new Puerto Rican voters and not all of them are Democrats. If 75% vote for Democrats and 25% vote for Republicans, that is a net gain of 40,000 votes for the Democrats. In a close election (ask Al Gore for tips here), that could matter, but Donald Trump won Florida by 112,911 votes, so Puerto Ricans alone won't flip the state.

Now, consider the ex-cons. First, it is not sure they will get the franchise back. The appeals court or the U.S. Supreme Court could overturn Walker's decision and the referendum could fail. But let's assume they get the vote back. On the whole, they are young, non-white, and have low incomes, all of which correlate strongly with not voting. Studies show that a turnout of 20% in swing states in presidential elections is par for the course. Still, 20% of 1.5 million is 300,000 new voters, more than triple the expected number of new Puerto Rican voters, even though all the latter have to do is go to city hall and fill out a simple form. Given the demographics of the ex-felons, a 75%/25% split for the Democrats would mean a net gain of 150,000 votes, more than enough to overcome Trump's 2016 margin.

However, other factors also play a role in Florida. A key one is that white voters from the North are flooding into Florida at a huge rate, and not all of them are from the Bronx. In 2017, newly registered Floridians were evenly balanced between Democrats and Republicans, and that includes all the Puerto Ricans, so the other new voters are heavily Republican. In particular, for some peculiar reason, Florida seems to be a magnet for old people, and old people like the GOP very much. White voters over 50 registered Republican in 45% of the 2017 registrations, vs. only 21% Democratic. On top of all this, Florida is the nation's third most populous state, so it takes a lot to move the needle. (V)

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