Biden 2020 Launches

He's probably the Democrats' frontrunner, and if he's not, he's certainly in the top two or three. So, the first official day of Joe Biden's campaign is necessarily pretty newsworthy. It was a mixed bag, overall.

Things started, officially, with the early morning release of Biden's campaign announcement video, which appears to have become the standard way in which candidates launch. Here it is:

The reviews are all over the place; but our opinion is that it's a miss. The first half is about how wrongheaded Donald Trump is, and the second half is about how Biden believes in America. Charlottesville is used as a framing device, allowing the candidate to connect the white supremacists from a couple of years ago to one-time Charlottesville resident Thomas Jefferson, and his introduction to the Declaration of Independence. It's a little clumsy, particularly since Jefferson wrote the Declaration in Philadelphia (of course), and didn't live in Charlottesville itself until more than four decades later.

Anyhow, the video reveals nothing about Biden's platform, or why someone would want to vote for him in 2020. Yes, he expresses his support for "American ideals," and he's a fan of the guys who invaded Normandy on D-Day, and Martin Luther King Jr., and women's suffrage, but those aren't exactly radical positions to take. Our staff researchers are looking into it, but it does not appear a single Democratic candidate has come out against the Civil Rights movement, or women's right to vote, or Operation Overlord. Meanwhile, by starting with an extended attack on Donald Trump, Biden appears to be repeating the same errors that Hillary Clinton made. Anyone who is going to vote Democratic because of what happened at Charlottesville hardly needs to be reminded of what happened at Charlottesville.

With that said, the video did achieve one goal for Team Biden: It got Donald Trump's attention. He was on Twitter within an hour of the release, tweeting and re-tweeting anti-Biden messages like these:

Welcome to the race Sleepy Joe. I only hope you have the intelligence, long in doubt, to wage a successful primary campaign. It will be nasty - you will be dealing with people who truly have some very sick & demented ideas. But if you make it, I will see you at the Starting Gate!

— Donald J. Trump (@realDonaldTrump) April 25, 2019

If Joe Biden wants to keep score:

In 8 years, Biden & Obama had a net loss of 193,000 manufacturing jobs.

In just over 2 years, @realDonaldTrump has created 453,000 manufacturing jobs.

Don’t let Biden take us backwards!

— Ronna McDaniel (@GOPChairwoman) April 25, 2019

If it is the goal of the President and the RNC not to look scared of Biden, this is definitely not the way to do it. Plus, they gave him lots of free publicity.

The former VP also began rolling out his endorsements on Thursday, with the highest-profile ones including Sens. Chris Coons and Tom Carper (D-DE), Bob Casey Jr. (D-PA), and Doug Jones (D-AL), and former New Hampshire governor John Lynch. One endorsement he does not have is Barack Obama's; Biden explained that he asked the former president not to make an endorsement, and that "Whoever wins this nomination should win it on their own merits." That's a little hard to swallow, and is also somewhat inconsistent with collecting a bunch of other endorsements. That is to say, if Coons and Carper endorse you, then you're still winning on your own merits, but if Obama endorses you, you're not? A much more plausible explanation is that Obama did not want to get involved in the primary process, consistent with the "elder statesman" role that is expected of ex-presidents.

Whatever the case may be, endorsements are something of an "old school" element of American politics, kind of like campaign buttons. Both are not nearly as important as they were when, say, Biden was beginning his political career. Given that, as well as the fact that most of Biden's major endorsements came from AARP-eligible white guys, Thursday's endorsements actually served to heighten the perception that the candidate may be a tad out of touch, and more suited to run for president in the 1990s, as opposed to the 2020s.

And speaking of the 1990s, the biggest ghost from Biden's past made an appearance on Thursday. He was asked, as he will be a million times, about Anita Hill. He said that he called her to apologize for his behavior during the Clarence Thomas confirmation hearings, when he was chair of the Senate Judiciary Committee. Unfortunately for him, Hill did an interview with the New York Times that was published Thursday, and she made clear that all is not forgotten or forgiven. "I cannot be satisfied by simply saying, 'I'm sorry for what happened to you'," she said, "I will be satisfied when I know there is real change and real accountability and real purpose." That is surely not the response Biden was hoping for.

So, as we said, a mixed day. And, to be entirely frank, it was probably closer to the negative side of mixed, rather than the positive side. That is definitely not what a candidate is hoping for on the first day of their campaign, particularly when it has been so carefully planned and staged. And so, it's fair to say that Day 1 was basically a loss for Biden. Fortunately for him, there are more than 500 days left until Election Day where he might score some wins. (Z)

Sanders Had a Rough Day, Too

Joe Biden may have stumbled a bit out of the gate, but his (current) main rival did some stumbling of his own this week. On Wednesday, Sen. Bernie Sanders (I-VT) appeared at a forum held by She the People, an organization whose goal is to drive up voter participation among women of color. He was asked about how he'd deal with the resurgence of white supremacy in the United States, and he said he wants to "bring our people together around an agenda that speaks to all people," and then he started talking about health care. The crowd was underwhelmed, to say the least.

There is no question that Sanders' heart is in the right place when it comes to these sorts of issues. And he's certainly tried to do better this time around, meeting with leaders from minority communities, and incorporating more rhetoric into his stump speech about the struggles faced by people of color in America. However, he cannot change the fact that he sees economic inequality as the fundamental cause of oppression, and so he basically feels that the problems of, say, black Americans will be solved in the exact same way as the problems of, say, struggling coal miners. If the Senator is going to go from upstart challenger in 2016 to nominee in 2020, he simply must do much better with minority voters. And his misstep before She the People suggests that he may continue to struggle on that front. (Z)

Trump Is Contemptuous of Contempt of Congress

For many decades, Donald Trump has violated laws, rules of conduct, and ethical codes that he knows are hard to enforce, and then has dared his opponents to come after him. Given his vast army of lawyers, his financial resources, and the molasses-like pace of the court system, he's gotten away with it most of the time. His current war against Congress is more of the same and, according to a new piece from Vox, he may get away with it, yet again.

An executive summary of the piece is provided by the very first sentence: "President Trump's White House appears to have figured out the secret of congressional oversight: there's not much Democrats can do if they say no to everything." There have been a number of folks who defied Congressional subpoenas in recent years, including Barack Obama attorney general Eric Holder, and George W. Bush White House counsel Harriet Miers and press secretary Josh Bolten, and they all basically got away with it. So, it could very well happen again.

With that said, Congress does have options. Expect to hear the phrase "inherent contempt" a lot in the near future. This is the term for the Congress' power to enforce its subpoenas itself, with the Sergeant-at-Arms of the House or of the Senate arresting the individual who has been found in contempt and imprisoning them in the Capitol jail. This power was affirmed by the Supreme Court in 1935's Jurney v. MacCracken, so it is certainly legal and well-established. It hasn't been exercised since that time, but perhaps desperate times will call for desperate measures. At least one Democratic member, Rep. Gerry Connolly (D-VA), hinted on Thursday that the option may be on the table.

Alternatively, the Democrats have options that are (or may be) beyond Donald Trump's power to interfere with. They are actively searching for whistleblowers, for example, and are also ready to pursue people (Don McGahn) and entities (Deutsche Bank) that are more concerned about pissing off Congress than they are about pissing off Trump. It's also worth noting that the blue team's number one goal isn't to punish Trump for his misdeeds (that will be much easier to do once he's out of office), it is to weaken him and his party in advance of the 2020 election, so that the voters can do what the Senate won't. So, if he behaves in a manner consistent with a very guilty man, then that may do just as much damage to him as if he cooperated. (Z)

Senate Republicans Are Bleeding Support

Speaking of members of the Republican Party being hurt by Donald Trump, the Washington Post's conservative-but-staunchly-anti-Trump columnist Jennifer Rubin observes that a sizable number of GOP senators who are up for reelection in 2020 are taking a beating in the polls right now, with their approval ratings plummeting. Sens. Susan Collins (R-ME) and Cory Gardner (R-CO) are hurting the most, but Thom Tillis (R-NC), Mitch McConnell (R-KY), and Joni Ernst (R-IA) are also bleeding profusely, with each of them dropping anywhere from 5-15 points, approval-wise, in the last six months.

So, are these folks really in trouble? You can't beat someone with no one, as we have noted many times, and the Democrats don't really have a Senate candidate in any of these places yet. With that caveat, though, the answer is: Yes, yes they are in trouble. Collins, Gardner, and Tillis all represent purplish-to-light-blue states, and their fairly consistent support for Trump puts them out of step with their voters. So, even if the Democrats don't have a clear candidate right now, a good one is going to step forward and give those three folks the fight of their political lives.

Iowa, meanwhile, may be one of the most interesting states in 2020. It's been basically red for a while, but there are signs that it's trending purple, and there are definite signs that voters there are very unhappy with Trump and his tariffs. We could have a Montana-like situation, where a folksy, populist Democrat could very well knock off a sitting GOP senator.

And as to McConnell, he's probably the safest of the five people on that list, but that doesn't mean he can rest easy. Kentucky did have a Democratic governor (i.e., the winner of a statewide election) as recently as 2015, and the Majority Leader is also at some risk of a serious primary challenge. Imagine you offered most Democrats this deal: Kentucky's Senate seat remains in Republican hands, but a Republican other than the much-reviled McConnell. Our bet is that most of them would take that without hesitation. (Z)

Trump Allies to Trump: Shut Up

The Democrats, particularly those in the house, are trying to hold the Trump administration accountable for his misdeeds. And they are really trying to weaken him in advance of the 2020 elections. Both goals are served by the President's constant harping about the Mueller investigation. And so, his closest allies are doing what they can to get him to let it go, already.

The legal problem here is that Trump's threats against the members of Congress, and anyone who might talk to them, could well constitute obstruction of justice and witness intimidation. The PR problem here is that his daily kvetching makes him look like someone who has a guilty conscience, and serves to keep the focus on the fact that the Mueller report wasn't actually all that favorable to him. To put that another way, when the Democrats talk impeachment, they play into Donald Trump's hands a fair bit, as they allow him to pitch his narrative of being persecuted to his base. But when Trump talks about Mueller, he plays into the Democrats' hands by keeping the report in the news, and displaying behavior that is paranoid, self-involved, and divorced from reality. That's the best commercial for their 2020 presidential candidate the Democrats could hope for.

Anyhow, Trump's allies see this, but the President doesn't. You get three guesses as to who is going to win this little argument, and the first two don't count. (Z)

North Korea Situation Deteriorates Even Further

The last Donald Trump and Kim Jong-Un summit collapsed, with the President departing early when it was clear no progress was being made and no deal was going to happen. Since then, the Koreans have resumed their missile tests, once again making clear that they have no intention of actually denuclearizing. Yesterday, things went downhill a bit more, as Kim struck a particularly overt anti-U.S. posture.

There were actually two different stories on this front on Thursday. First, it became public knowledge that in 2017, Kim & Co. presented the U.S. government a bill for $2 million for the medical care given to Otto Warmbier. This would be the same Otto Warmbier who was arrested by the North Korean government, and whose health problems were their doing. They didn't really expect to be paid for medical treatment; this was just a way of trying to collect some ransom from the U.S. government without calling it "ransom." The Trump administration says they didn't pay it, which may or may not be true, but it certainly makes clear the President was lying when he said he was unaware of the mistreatment of Warmbier.

Also on Thursday, Kim had a chat with Vlad Putin; the two are currently having a summit of their own. And in remarks widely rebroadcast by both Russian and North Korean media, Kim lambasted the U.S. and the Trump administration, accusing them of operating in "bad faith," and threatened that his country will do whatever it needs to protect itself.

In short, what is playing out here is the exact same pattern that has played out at least four or five times before. A member of the Kim family appears amenable to diplomacy, extracts some concessions from the U.S. and/or other Western powers, and then returns to his old ways. Everyone whose name does not rhyme with Tronald Dump saw this coming a mile away. Clearly, the President need not keep that Nobel Prize space on his mantle open anymore. (Z)

Friday Q&A

A Friday edition, prompted by rearranging we did in response to the release of the Mueller report. We're going to forgo the candidate profile again, but will have one next week.

Given that the Supreme Court seems likely to uphold the Trump Administration's inclusion of a citizenship question on the upcoming census, should the Democrats start publicly pushing a tactic of "don't answer that question at all?" I know it's illegal to lie on the census, but what kind of enforcement mechanism is there? Could a reasonable "retaliation" to the question simply be a widespread media campaign telling people to just skip that question entirely? R.H., Anchorage, AK

We got multiple variants of this question, and feel a little silly that the notion did not occur to us to address in our original item on this matter.

Anyhow, let's start with the enforcement question, which is somewhat interesting. There are several things to be pointed out here:

• People are legally required to respond to the census.
• Not responding to the census is an infraction, and 18 US 3571 sets a $5,000 maximum fine for infractions.
• It is illegal to give false answers; that is an additional infraction.
• However, the law specifically makes clear that certain kinds of information (specifically, religious affiliation) can be withheld by respondents.

If you add this all up, the Census Bureau probably can't punish people for skipping one question, since those folks would still have responded to the census, and since there is clearly some level of allowance for skipping questions. If the Bureau does try to punish people for that one question, then the maximum penalty would be a $5,000 fine, but they haven't actually prosecuted anyone in nearly 50 years.

So, both statute and precedent suggest people would get away with not answering that question, particularly if they did so en masse. It's not like the Census Bureau has the means to prosecute hundreds of thousands or millions of people all at once, even if they somehow decided to try it. So, we would expect that if SCOTUS approves the question, there will be a campaign to encourage liberals to skip it, either from the Democratic Party, or from some activist organization like the ACLU.

One other thing to consider: The census has to be "locked" by July of this year in order to be ready by 2020, which is why the Supreme Court is under the gun. So, if a Democrat is elected in 2020, he or she cannot remove the question. After all, the census will have been completed by the time the next president is inaugurated on Jan. 20, 2021. What they could do, however, is announce that they are not interested in that data, and that if elected, they guarantee no punishment for those who have chosen not to answer that question. That would certainly lead to millions of non-responses, which would de facto spike the question.

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Can you please elaborate on "executive privilege?" Richard Nixon claimed it to avoid handing over his tapes, but it was denied. I grew up thinking there was no such thing, but it's being talked about again. Is it a law? A tradition? When have presidents claimed it successfully? R.K.P., Chicago, IL

Throughout U.S. history, there have been instances of presidents refusing to give information to Congress. George Washington refused to share details about the negotiations over the Jay Treaty with the House (though he did give them to the Senate). Abraham Lincoln refused to share details of Union war strategy. Dwight D. Eisenhower took steps to keep White House conversations from being used as evidence during the Army-McCarthy hearings. However, it was Richard Nixon who took this occasional (but rare) exercise of authority, and tried to make it into an official presidential prerogative, including giving it a name. While he was able to gain formal Supreme Court recognition of the power in United States v. Nixon (a win!), they also unanimously agreed it did not apply to his particular circumstances (a big loss!).

There's actually nothing in the Constitution on this subject. Actually, it's the lack of guidelines that make executive privilege's existence possible, since if the Constitution explicitly gave Congress the right to demand whatever information they want, then executive privilege would be unconstitutional, and if it explicitly gave presidents the right to withhold whatever information they want, then it would be unnecessary to create a separate doctrine. There are actually two types of executive privilege: "presidential communications privilege" applies only to communications that involve the president, and "deliberative process privilege" applies to conversations about the work of the executive branch, and can extend to communications that do not involve the president. Given the lack of constitutional guidance, both types are rooted largely in the separation-of-powers notion that the executive branch needs to be able to do its business without interference from the other two branches. So, to successfully invoke privilege, the President has to be able to argue that the information in question would fundamentally interfere with the functioning of the executive branch if it was made available to Congress. This is why Nixon failed in his case, because he could not sustain the argument that a tape recording of a two-year-old conversation would materially interfere with his administration's work going forward.

Since SCOTUS codified United States v. Nixon, executive privilege has been invoked much more than it used to be, but it's still relatively rare. Given the gray legal area in which the power exists, Congress and the White House usually try to work things out. Over the course of the last three presidential administrations, it was invoked a total of roughly two dozen times, with the majority of those coming during the Clinton years. In those cases, the foundation was pretty strong. For example, Barack Obama refused to turn over information related to Operation Fast and Furious, which was an ongoing anti-gun law enforcement effort.

The upshot is that Donald Trump may think that executive privilege is a panacea that allows him to hide all of his secrets from Congress, but he's wrong. See the next answer for an example of that.

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I have a question about executive privilege, specifically as it applies to Don McGahn. Assuming for the sake of argument that the White House claims executive privilege, but Mr. McGahn wants to testify. Could the President essentially issue an executive gag order? And if so, what would be the potential legal penalty if Mr. McGahn speaks anyway, especially if he speaks under oath to Congress? D.M., Seattle, WA

If McGahn wants to talk to Congress, there is nothing that Trump can do to stop him. As we noted in the previous answer, there is no statutory basis for executive privilege. It is rooted in tradition and (since 1974) court rulings. What that means is that there is no statutory penalty for violating privilege. An active executive branch employee could be terminated as punishment, but McGahn isn't an active employee, so even that is not available. Pretty much the worst the President could do is blast him on Twitter.

There are certain types of information that McGahn could theoretically disclose that would put him in hot water. It is illegal for someone to share information relating to the national defense or information of pecuniary value to the United States, even after they leave the federal service. However, it is unlikely that McGahn has that kind of information. Further, the law is meant to address the sharing of that information with private citizens or with foreigners. The members of Congress have security clearances, and McGahn would probably be allowed to share "prohibited" information with them, if he did have it.

Note that these same basic questions came up in the case of James Comey, whom Trump also threatened to silence with executive privilege. It didn't work then, for the reasons outlined above, and it won't work now, if McGahn wants to talk.

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What happens if Donald Trump takes his impeachment case to the Supreme Court and they agree to hear it and also rule the House impeachment proceedings are unlawful? S.C., Scottsdale, AZ

Excellent. Now that we've discussed United States v. Nixon, we get to move on to Nixon v. United States. Yes, it's a different case. It's also a different Nixon, though this one was also facing impeachment. In 1993, Judge Walter L. Nixon was convicted of committing perjury and impeached, and he went to the Supreme Court to get the impeachment killed. They ruled unanimously that impeachment was a political question, and thus was the sole province of Congress and not justiciable. Unlike the other Nixon, Walter did not see the writing on the wall and did not yield to reality, and so the Senate moved forward with the trial and removed him from office.

If the Supreme Court were to rule for Trump in the scenario described, they would be ignoring both the Constitution and established SCOTUS precedent. Thomas would also be contradicting his own past ruling, since he was on the Court in 1993. That would be the absolute end of them as impartial arbiters of the Constitution, and states and citizens would feel empowered to pretty much ignore SCOTUS for many years, as happened after Dred Scott in 1856.

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In a tweet last week dismissing the Mueller Report, Trump used the phrase "total bullshit." While the Donald has used coarse language in public many times since he descended the gilded escalator four years ago, is there any other instance of a President using one of Carlin's seven dirty words so publicly? J.H., Los Angeles, CA

The only slam dunk example is the equally coarse Lyndon B. Johnson, who wasn't especially shy about deploying several of the seven dirty words in the presence of reporters, and sometimes even the general public. Most famously, he was asked why he didn't take Richard Nixon's ideas seriously, and he said, "Boys, I may not know much, but I do know the difference between chicken shit and chicken salad."

There are also examples of presidents accidentally being caught on tape or on camera swearing because they didn't know they could be overheard. Although, in those cases, it has usually been words less coarse than the big seven. There's the time in 1982, for example, where Ronald Reagan thought his microphone was off after a White House press conference, and cursed the press corps as "sons of bitches." Or, if you insist on something from Carlin's list, Bill Clinton was caught on tape saying, "I don't think I should take any shit from anybody on that, do you?" while a candidate 1992. And if we include Veeps, Dick Cheney got caught telling Sen. Pat Leahy (D-VT) to "fuck off."

And finally, let's give an honorable mention to Andrew Jackson, who had quite the potty mouth in private. While he kept it buttoned in public, his pet parrot Polly, who often accompanied him on official occasions, had no such compunctions. And so, she was known to publicly repeat the things she'd heard so many times from her master in private.

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Since the nomination of Trump, it seems there has been a steady trickle of prominent, life-long Republicans who have publicly transformed to Democrats or Independents, most recently Prof. J.W. Verret and Iowa State Rep. Andy McKean. Have there been any prominent Democrat(s) who shifted toward the Republicans? A.M., Miami Beach, FL

If we're talking about politicians like McKean, no clear-cut examples occur to us (though perhaps a reader will bring one to our attention). The closest we can come up with is Trump supporters who are officially Democrats, but who have been behaving like Republicans for decades. For example, does anyone think Sheriff David Clarke is really a Democrat? Or Michael Flynn? Gov. Jim Justice (R-WV) was a Republican up to 2015, switched to the Democrats several months before the gubernatorial and won as a Democrat, and then quickly switched back to the GOP at a Trump rally. He technically fulfills the guidelines you've laid out, but was literally a Republican for decades before "becoming" one for Trump.

If we consider public figures and celebrities, then we can come up with a few examples. Roseanne, Mike Tyson, Kanye West, and Dennis Rodman have all identified as Democrats in the past, and are now outspoken Trump supporters. All four also have a reputation for being a little unstable, mentally. Maybe that's just a coincidence. Oh, and there's also a certain businessman and former reality TV star who switched from Democrat to Republican in the era of Trump. And he also has a reputation for being a little unstable, mentally.

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