Barr: Government Spied on Trump Campaign

Attorney General William Barr was back on Capitol Hill yesterday and faced some tough questions. One of them was whether he briefed the White House on special counsel Robert Mueller's report. Barr refused to answer. A question he did answer was about whether the government spied on the Trump campaign. He said he thought it did and he called that "a big deal." This statement echoes an allegation Donald Trump has long made and provides fresh ammo to Trump to attack the FBI, CIA, and other federal agencies. Barr clarified his comments by noting that spying on a campaign is not necessarily illegal and he would have to investigate to find out what happened and why.

Barr's comments sparked an intense reaction among Democrats. Sen. Mark Warner (D-VA) said: "Barr knows how counter-intel investigations work. He knows there was ample evidence of Russian attempts to infiltrate the Trump campaign and that the FBI took lawful action to stop it." Warner further said that Barr's remarks were irresponsible. House Judiciary Committee Chairman Jerrold Nadler (D-NY) said that Barr's remarks directly contradict what the Dept. of Justice has already told Congress. Other Democrats were more direct and said Barr was simply doing Trump's bidding. It is hard to find fault with that conclusion. Beyond the fact that there has been no public evidence of anything that would constitute "spying," it is difficult to come up with a plausible answer as to why this claim—which, if true, would be a major development—did not merit so much as a mention in Barr's summary of the Mueller report. What the AG has effectively done here is significantly undermine whatever remaining credibility he had as a fair and impartial arbiter of this matter, which means that the fight to see whatever material he tries to redact is going to be all the more fierce (see below).

One concession that Barr did make was to say that he would work with Nadler and Senate Judiciary Committee Chairman Lindsey Graham (R-SC) if they wish to see some of the redacted material in Mueller's report. But he also said that he would not seek a court order to release the grand jury testimony contained in it. (V & Z)

Democrats Are Preparing Their Response to the Redacted Mueller Report

AG William Barr is planning to release a redacted version of the Mueller report next week and House Democrats are already working on their response. Jerrold Nadler will very quickly issue a subpoena to obtain the full report and the grand jury evidence. Nadler's case will be based on his authority to collect information that could lead to an impeachment.

In addition, House Intelligence Committee Chairman Adam Schiff (D-CA) has already made a formal request to obtain the counterintelligence information to learn whether Donald Trump has been compromised by the Russians in any way. This falls squarely within the mandate of his committee. When the administration rejects the request, which is a certainty, Schiff will issue a subpoena and go to court to defend it. Under the law governing the secrecy of grand jury testimony, there is an exemption for material relating to counterintelligence matters, which is how Schiff will frame his case.

Both subpoenas are very likely to end up in the Supreme Court, since they pit one branch of government against another, and only the third branch can determine which one wins. (V)

Warren Raises $6 Million in Q1

Sen. Elizabeth Warren (D-MA) yesterday released her fundraising totals for the first quarter of 2019. She hauled in $6 million. That puts her in fifth place among the candidates who have already announced their Q1 totals. Here are the results so far:

Candidate	Q1 haul	# Donors
Bernie Sanders	$18 million	525,000
Kamala Harris	$12 million	138,000
Beto O'Rourke	$9 million	163,000
Pete Buttigieg	$7 million	159,000
Elizabeth Warren	$6 million	135,000
Cory Booker	$5 million	150,000
Amy Klobuchar	$5 million	100,000
Andrew Yang	$2 million	80,000

The candidates listed above are generally the best known ones and presumably will have raised the most money. One person who has not—and will not—announce his fundraising is Joe Biden. He is not formally a candidate (yet), so officially no one has donated to his campaign yet, but no doubt many donors have been approached and asked if they are willing to open their checkbooks when the time comes. At this point Biden is most likely waiting to see if hair-sniffing-gate dies down, so he can enter without that being the main news story. A new Quinnipiac poll of California Democrats should be encouraging to Biden, as 71% of them don't think Biden's actions and the news about it are a problem. (V)

How Democrats Could Get Ahold of Trump's Taxes

The conventional wisdom is that House Democrats will eventually get ahold of Donald Trump's taxes after a long fight because Chief Justice John Roberts likes to show he doesn't play favorites. Consequently, he sometimes sides with the Supreme Court's four liberals on issues he doesn't really care about, and protecting Donald Trump's tax returns surely isn't a core issue with him—unlike, for example, allowing states to pass laws that make it easier for Republicans to win elections. However, there may be another avenue that is almost as good and much, much easier: Go after Trump's New York State tax returns. There are three routes that are possible here, they are not incompatible with one another, and none of them preclude continuing to fight for Trump's federal tax returns. Here are the three routes:

• Subpoena them: The House Ways and Means Committee could issue a subpoena for all of the President's New York State tax returns since 1990, which the state (by law) still has. It is unlikely that New York would resist the subpoena because although New York has a privacy law, the law has clear exceptions for judicial orders or for orders "provided by law." A congressional subpoena would certainly meet the latter test since Congress has both legislative and oversight reasons for seeing the returns. In fact, Committee Chairman Richard Neal (D-MA) described precisely those reasons in his subpoena for Trump's federal tax returns. An extra added attraction of going this route is that if Neal issued a subpoena, Trump wouldn't even know about it unless the head of the New York State Dept. of Taxation and Finance blabbed it to Trump.
  
  
• The Hoylman bill: Most people don't eagerly await a congressional subpoena, but some New York lawmakers can't wait for one to show up at the Taxation and Finance office, so they are jumping the gun. In particular, State Sen. Brad Hoylman (D-Manhattan) has introduced a bill into the state Senate that would explicitly authorize the tax commissioner to give the chairmen of three specific committees in Congress (including Ways and Means) any New York state tax returns they ask for. Since the Democrats control the trifecta in New York, this bill stands a strong chance of becoming law. It would achieve the same effect as a subpoena and might avoid a court fight. There are some technical differences between a request under this bill and a subpoena, but in practice, they are not likely to be dealbreakers. Also, Hoylman's bill does not force the commissioner to hand over tax returns as a subpoena would, but there is little reason to think Gov. Andrew Cuomo (D-NY) would order the commissioner to refuse a request since he knows it would be followed by a subpoena, anyhow.
  
  
• A transparency law: Another bill pending in the state legislature would mandate the commissioner of taxation to release to the public the state tax returns of all officials elected statewide, including the president, vice president, governor, lieutenant governor, and the others. This would be in the interest of transparency. A majority of the members of both the state Senate and the Assembly have signed onto this bill as cosponsors. Assembly Speaker Carl Heastie has said he will bring it up this month. Trump can't go to court to block the bill because the courts frown upon telling state legislatures they can't pass certain laws. The procedure is to allow the law to go into effect and then challenge it. If the law passes and the commissioner of taxation posts all the relevant tax returns on his website right off the bat, a court challenge from Trump would be too late, as you can't unring a bell, and anything put on the Internet lives forever.

State tax returns don't contain as much information as federal ones, but they do contain a lot. Often, federal schedules have to be attached to state returns. If the state tax returns are released by one of the above mechanisms, at the very least it will give House investigators lots of leads to follow concerning Trump's business activities that they might want to pursue on their own. (V)

Sanders Unveils Medicare-for-All Bill

One hot potato for the Democratic presidential candidates is health care. Most of them want some kind of universal coverage, but the devil is in the details. For example, will private health insurance be eliminated? That detail could split the Democratic field, but it could also give Democratic primary voters a way to decide which batch of candidates are possibles and which ones are out. Yesterday, Sen. Bernie Sanders (I-VT) unveiled his new health-care bill, and immediately got four other candidates, Sens. Cory Booker (NJ), Kirsten Gillibrand (NY), Kamala Harris (CA), and Elizabeth Warren to co-sponsor it.

Sanders didn't discuss how to pay for it, but did say that costs should be manageable because government-run programs like Medicare have much lower administration costs (typically 2%) than ones from private companies (not to mention no need for advertising, profit, and exorbitant salaries for executives). Nevertheless, without running the math, it is impossible to say if insuring millions of people not currently insured can be done without a big tax increase. Of course, if the needed tax increase for the average person is the same size as the insurance premium he or she will no longer have to pay, it could be a wash. (V)

It's Now Miller vs. Kushner

Donald Trump's choice of Stephen Miller to lead on immigration has set up a clash of titans in the White House, as First Son-in-law Jared Kushner was previously in charge of concocting a new immigration system and will not take kindly to Miller taking over his job.

The battle between Miller and Kushner will be a careful one, since Kushner knows Trump likes Miller's ideas better than he likes his (Kushner's) own ideas. But Miller knows that Kushner's status as a family member makes him untouchable. Another factor in the mix is that corporate America doesn't like the idea of banning all immigration, which Miller considers a desirable goal if he could somehow pull it off. Kushner is much better plugged in with major CEOs than Miller is, so Kushner can rally big business to his side and have top executives lobby for his plans, knowing that Trump craves respect from them and hates to tell them that he is not going to do what they want. Miller and Kushner will also probably fight a proxy war in the media by selectively leaking damaging information about the other one in a way that leaves no fingerprints.

Of course, all of this may not matter, since Trump doesn't listen to anyone—certainly not on immigration—and is likely to ignore any plans from anyone else. Furthermore, there is zero chance that Congress will pass an immigration law in this session, since anything the Senate might accept will be killed in the House and vice versa. (V)

House Passes a Net Neutrality Bill

By a vote of 232 to 190, the House approved a bill to (re-)establish net neutrality. The bill has zero chance of even coming up for a vote in the Senate, but will certainly be part of the Democrats' 2020 platform. While most people don't really understand the concept, the absence of net neutrality could definitely have a major effect on the media landscape going forward. Under current FCC policy, a major Internet provider, such as Comcast or AT&T, is free to make an announcement to, say, video providers like Netflix, Amazon Prime, Hulu, and YouTube, in the form: "Please let us know how much you are willing to pay us to distribute your content to our customers." When the bids come in, they can pick the highest one and then block all the others. Under current FCC policy, this is perfectly legal. If a net neutrality law is passed, it would become illegal, because net neutrality means Internet carriers must treat all content equally and cannot give preference to some and block others.

It gets more complicated when multiple players are in the mix. For example, your local phone company might offer movies and television on Amazon Prime and shopping on Amazon while the local cable company offered Netflix and shopping on Walmart, with each carrier blocking the companies it had no deal with. So someone who wanted Netflix for video but Amazon for shopping would be out of luck.

Net neutrality pits one industry against another. The phone and cable companies are positively salivating at the thought of deals they can make with content providers and the fees they can demand to permit their customers to access that content. Big tech companies, like Google, Amazon, and Facebook are strongly supportive of net neutrality. If the Democrats win all the marbles in 2020, there will be a huge battle over this issue in 2021. (V)

Benjamin Netanyahu Won a Fifth Term as Israel's Prime Minister

It is now all but certain that Benjamin Netanyahu will get a fifth term as Israel's Prime Minister. His win is also a big win for his buddy Donald Trump. Israel is one of the few traditional U.S. allies that Trump supports. Netanyahu is currently under indictment for corruption, but that didn't seem to matter to the voters. Trump is not under indictment, but it is possible that enough evidence will surface by Nov. 2020 to make it clear to most voters that Trump has committed various crimes. Knowing that you can still win even if most of your country thinks you are a crook is surely a huge morale booster for Trump and may keep him from resigning before the election, even if the House finds massive evidence that he committed crimes.

Axios has a list of takeaways from the Israeli election:

• Netanyahu won big
• Netanyahu's opponent, Benny Gantz, did surprisingly well
• Netanyahu won because his right-wing partners did very well
• The center-left bloc did poorly on account of low Arab turnout
• Netanyahu's party won 35 of the 120 seats in the Knesset despite three indictments against him
• Netanyahu's close relationship with Trump helped him

While Trump promised to build a wall, Netanyahu did the opposite. Rather than building a wall along the West Bank (in addition to the one already there), he proposed incorporating the West Bank into Israel proper, although he carefully avoided saying the Palestinians would pay for the plan. Actually following through on this promise would generate a worldwide fire storm, so it is far from clear that the Prime Minister will even attempt it. Still, a defeat for Netanyahu would have been a proxy defeat for Trump, and both of them avoided it. (V)

Thursday Q&A

The Mueller report questions are picking up again; a veritable tsunami of them is likely in the near future.

Attorney General William Barr will submit the Mueller report to Congress with color-coded redactions. The redactions will fall into one of four categories. Will a future Attorney General have the authority to remove some or all of the redactions? R.C., Eagleville, PA

We have gotten several variants of this question, and the answer is that the report is now, and will remain, in the purview of whoever happens to be attorney general. If Barr resigns tomorrow, then his successor will have the authority to redact or un-redact. And if Barr hangs on until the end of Trump's term, then the AG appointed by the next president will have that authority. In other words, Barr's decisions do not remain in force for eternity, and only last as long as he's in that chair (or, until a court tells him to give up the goods).

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Given how experienced Robert Mueller is, and how long he had to work on his report, why wouldn't he have created a version that was already redacted according to legal requirements? T.S., Eugene, OR

Imagine that someone gave you a copy of the Bible and asked you to cross out anything within that might be "offensive." It's possible that, given its religious and historical significance, you might leave it entirely intact. Or, you might conclude that some of the sexual situations described therein could offend, and so you might decide that the story of Potiphar's Wife trying to seduce Joseph and the one about David and Bathsheba getting busy right after their son's funeral would have to go. Or, if you are focused on language, you might strike all mentions of thy neighbor's ass (so much for the 10th commandment).

The point is that although we all have the same basic sense of the rules for what is and is not offensive, each of us is likely to interpret and implement them a bit differently (or a lot differently). So it is with the redactions; Mueller's judgments would be different from Barr's, which would be different from Jeff Sessions' if he had remained on the job, and so forth. Further, if Mueller did presume to do so, it might be stepping on the AG's toes a bit by usurping his prerogative.

With all of that said, a reader who is a longtime government contractor advises us that documents of this sort do tend to include some preliminary assessments of the information included within. That way, a consensus can be built as the document works its way through the process. In this specific case, Mueller reportedly included reports at the beginning of each section in which he offered his assessments of the evidence within. So, he did do some of what you propose. However, anything more would have been a waste of time, and also a teeny bit presumptuous.

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Are acting secretaries able to vote to invoke the 25th amendment? I am starting to think that this is the motivation for so many cabinet heads rolling. J.J., Austin, TX

Let us start by noting the relevant portion of the amendment (Section 4, for those keeping score at home):

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

The first key (of two) is the term "principal officers." In government-speak, that means "whoever has the legal authority as head of the department." In most ways, an acting secretary has that authority. In some ways, they don't. So, the law could plausibly be interpreted either way: Yes they can vote to remove the president, or no they can't, and it would be up to the Supreme Court to make the final call. SCOTUS, of course, is supposed to figure out what the intent of laws/amendments is, in the case of fuzzy or unclear meaning. And note that the amendment does not say "cabinet secretaries." Instead, it uses a broader and less specific term. That would suggest that the original intent of the amendment was to leave room for the possibility that the principal officer might be someone other than a cabinet secretary. Like, say, an acting secretary. So, the odds are that the Court would uphold the right of acting secretaries to invoke the 25th amendment.

Remember, though, that we said there are two keys. The second is the phrase "or of such other body as Congress may by law provide." In other words, it is entirely within Congress' authority to choose someone besides the cabinet secretaries to make this decision. And if the matter was tied up in the Supreme Court, or the Court was to rule that acting secretaries do not count as "principal officers," the Congress could simply declare that the decision was going to be made by a commission composed of all of the Senate-approved department heads, along with all of the acting department heads. Alternatively, the Senate could just quickly confirm all of the acting department heads. In either of these cases, the exact meaning of "principal officers" would be rendered irrelevant. Of course, these options would be available only if the Republicans in the Senate were willing to remove Trump from office. However, your question largely presupposes that condition, since Mike Pence, et al., would never invoke the 25th amendment without knowing they had the backing of the Congress.

We will conclude by noting that it's unlikely Trump is using his large collection of acting secretaries as a hedge against removal from office. First, he doesn't think that far ahead. Second, the likelihood that it would not work out is so great that it would not be a worthwhile strategy to pursue.

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I have heard people who believe that Donald Trump will cancel the 2020 elections, and I heard the same about George W. Bush, and I am sure the same was said about Barack Obama. There also do seem to be situations, such as nuclear war, where an election might benefit from rescheduling. Is there any legal mechanism through which elections for federal office can be rescheduled (or, God forbid, canceled)? T.P., Franklinville, NJ

There are only two ways that Donald Trump could postpone or cancel the 2020 elections. The first would be to stage a coup. The second would be to announce that a state of war exists between the United States and [fill in the blank] and that consistent with the extraordinary powers granted him under Article II, Section 2 of the Constitution, he is canceling/postponing the elections. The first of these would not be legal at all, and so would not fit the parameters of your question, while the second would be extremely dubious.

Congress, on the other hand, absolutely can reschedule an election, emergency or not. The Constitution specifically grants them the right to decide the "Times, Places and Manner of holding Elections." Consistent with that, our current election date (the first Tuesday after the first Monday in November) is set by a Congressional statute, namely 3 U.S.C. 1. All Congress would have to do is pass a new law that supersedes that statute, and the election would be moved to a different date.

What Congress does not have discretion over is the length of officeholders' terms. Those are spelled out in the Constitution, and cannot be changed (except by an amendment, of course). While it is theoretically possible that the legislature could change 3 U.S.C. 1 such that the next election isn't held until, say, Christmas of 2022, Donald Trump's term would still expire on January 20, 2021, while the terms of all the representatives and one-third of the senators would expire about two weeks before that. So, a postponement of anything more than a couple of months would leave us with 66 or 67 senators as the only remaining elected officials in Washington.

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You said that "Kirstjen Nielsen was required to resign" in a piece on Tuesday. I've never understood why people resign, which is a voluntary act, when ordered to. Is there something about pensions or other rights that are affected if a person doesn't resign and is instead fired? D.C., San Francisco, CA

In some circumstances, the distinction between resignation and firing can affect unemployment rights, since people who quit their jobs generally don't get unemployment insurance. However, it's unlikely that is a consideration here. And even if it was, people who are forced to resign are generally treated as if they were fired.

That said, there are some good reasons in this situation for the resignation route over the firing route. From Nielsen's vantage point, saying that she resigned looks better for her than saying she was fired, even if we know what the truth of the matter is. And refusing to resign, by contrast, would look petulant, since every Cabinet officer knows full well they serve at the pleasure of the president. From Trump's vantage point, meanwhile, the Federal Vacancies Reform Act of 1998 gives him much greater latitude in his choice of acting officeholders in cases where the existing officeholder "dies, resigns, or is otherwise unable to perform the functions and duties of the office." If Trump officially fires someone, by contrast, he is only allowed to replace them with the person immediately below them on the totem poll.

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When politicians release their tax returns, what information gets released? I don't think anyone would want their personally identifiable information, especially their social security number, out there for all the world's spammers, scammers, and identity thieves to see. Also, when returns are released, who does the releasing, and to whom are they released? How is the information passed along to the public? D.L., Springfield, IL

You're right, they don't want to give out any identifying information, including SSN, but also home address (unless they're the president, in which case that's hardly a secret), and even more mundane details like the name of the person who prepared the tax returns. Some politicians have their accountant prepare a version of the returns where those fields are just left blank; that was the approach taken by the Obamas and the Bidens in the last tax returns they released before Obama's term was up. Other politicians just put a black line over anything they don't want you to see; that's the approach taken by, for example, Gov. Jay Inslee (D-WA), who is actually one of the few Democratic presidential candidates to have already released his returns (Sen. Kirsten Gillibrand has, too; most of the others say the returns are going to be made available soon). And the way they are generally released is that they are posted to a website under the candidate's control, like a campaign site or, in the case of Obama, the White House site. Occasionally, but rarely, they are posted to a shared document service like Google docs.

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You folks have said twice now that one disadvantage Rep. Tim Ryan (D-OH) has is his generic-sounding name. However, isn't it true that several semi-recent presidents or major party nominees also have had generic-sounding names? I am thinking specifically of Jimmy Carter, George Bush, Bill Clinton, Bob Dole, and Al Gore (among others). How "generic" does a name have to be in order to be forgettable? P.M., Currituck, NC

We are going to begin our response to your question with a question of our own: According to the Bible, how many of each animal did Moses take on the ark with him? We ask this question because it is a useful (and well known) demonstration of how people tend to remember names. The answer to the question, of course, is zero. Moses didn't take any animals on the ark with him. Noah did. However, because they are both male Biblical figures, the mnemonic devices that the brain uses to remember names makes it easy to overlook it when one of those names is improperly substituted for the other. This is known as the Moses Illusion.

The underlying cognitive issue here is this: The human brain is wired to remember things through association, particularly association with visual cues. Names are particularly hard to remember, because they generally have no particular relationship to what they signify. For example, even if you had no idea what the sculpture on Ellis Island was, it's clearly a statue. And so, if you were told it is the Statue of Liberty, it wouldn't be too tough to remember because its name describes what it is. On the other hand, there is nothing inherently "Tim" or "Ryan" about Tim Ryan, just as there is nothing inherently "Donald" or "Trump" about Donald Trump, or there is nothing inherently "Hillary" or "Clinton" about Hillary Clinton. Oh, and incidentally, the Statue of Liberty isn't actually on Ellis Island, it's on Liberty Island. But, for reasons you now know, people conflate the two because they're both islands in New York associated with immigrant arrivals.

And that brings us back to the Moses Illusion. Tim Ryan needs you to associate the correct name with the correct person. If you hear him give a speech, and you walk away saying, "Boy, I really like that Ryan Johnson" or "Boy, I really like that Tim Smith," it does him no good. The ideal thing would be to have a name that is also a signifier. For example, if Bernie Sanders' name was actually Whitey Fuzzyhair, that would give him a leg up. Failing that, an unusual name is helpful, particularly if it evokes a clear visual picture. If Tulsi Gabbard's name was Shiny Stinkybear, she could probably punch her debate ticket right now. Obviously, candidates don't actually have silly names like these, but it is also not a coincidence that, for example, Sanders managed to make his name a bit more evocative and visual by embracing the slogan "Feel the Bern."

On the other hand, a generic name is not only harder to remember, but it is more likely to cause Moses to be confused with Noah (particularly if the Moses in this case is one of a half-dozen clean cut, white bread, suit-wearing politicians). With the list of politicians you gave, most of them have at least one name that's not all that common. For example, there are only 4,089 people with the last name 'Dole' in the United States. There are also 19,175 Clintons, 29,834 Gores, and 99,480 Bushes. None of these ranks among the top 250 most common last names in the country (in fact, outside of Bush, none is even in the top 1,000). For the peanut farmer, on the other hand, Carter is pretty common (442,399 people; 46th most popular last name) but Jimmy is less so relative to other first names (317,656 people, placing it well outside the top 200). If #39 had gone with James, by contrast, that is the most popular first name in the United States, with a total of 5,477,505 of them running around. Small wonder that Jimmy Carter literally went to court to make sure that states listed him on the ballot as Jimmy Carter and not James Carter. Jimmy Carter is still pretty generic, but it's far better than James Carter.

The first name Tim (171,172 people) is a little less common than Jimmy, and Ryan is a little less common than Carter (170,024 people; 177th most popular last name). So, we might argue that, of the people on your list, Ryan does have it easier that at least one of them. And that may be so. However, Ryan has two liabilities that Carter did not. The first is that Ryan is also a very common first name (549,726; 109th overall). The second is that there is another prominent midwestern politician named Ryan, namely Paul Ryan. It's like if there was a prominent Alabama politician in 1976 named Jameson Carter. Add it all up, and we think there's a strong case that Tim Ryan has an unusually high bar to clear to get some name recognition.

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