Supreme Court to Take Up Trump Taxes

On Friday, the Supreme Court decided to wade right into the middle of the 2020 elections, announcing that it will hear three cases related to Donald Trump's tax returns.

Although the cases all involve the President's financial records, they would appear to raise very different kinds of legal issues. The first, involving the state of New York's (potential) prosecution of Trump, is about state vs. federal power, and also exactly how much authority law enforcement officials have. The other two, involving the House of Representatives' demands to see the taxes, is about the balance of powers between the legislature and the executive, and the extent to which Congress may engage in oversight of the presidency.

In the short term, this is obviously a win for Trump, who bought himself at least six more months of secrecy. Arguments in the three cases are expected in March, and a decision is expected in June. In the longer term, this timing could prove...inconvenient. Assuming that Trump loses any or all of the cases, he's either going to have to reveal the returns or defy the Court right at the height of election season. Alternatively, if he wins all three, that will mean the Supreme Court has done quite the ballet dance in order to interpret the law in Trump's favor. That would raise lots of uncomfortable questions about government corruption while reminding Democratic voters of how important Supreme Court seats are, particularly the ones that might just be vacated by Ruth Bader Ginsburg and Clarence Thomas between 2021 and 2025.

In short, it appears that SCOTUS' decision to hear the cases (which requires just four justices to agree) is great news for the President right now, but that any ruling has a real chance to hurt his reelection chances. (Z)

House Judiciary Committee Makes it Official

This item could easily have been written in advance, as every single element was predictable with 100% accuracy. On Friday morning, the House Judiciary Committee approved two articles of impeachment in just 10 minutes, with a party-line vote. Donald Trump and his party responded angrily, with the President calling it an "embarrassment to this country."

Now the matter will head to the full House, and soon thereafter the Senate, where Majority Leader Mitch McConnell (R-KY) has said there is "no chance" of conviction. He is busily coordinating with his colleagues, and with the White House, to fashion the least-damaging trial and "not guilty" verdict possible. Before the senators consider the matter, they will be required to swear the following oath, in order to act as the President's judges/jurors:

I solemnly swear (or affirm) that in all things appertaining to the trial of Donald John Trump, now pending, I will do impartial justice according to the Constitution and laws, so help me God.

How a verdict reached in advance, before a single bit of evidence has been heard, is "impartial justice," is a question that McConnell has not yet answered. (Z)

Saturday Q&A

We follow, once again, our regular template (for the moment). Impeachment questions, followed by other kinds of questions.

Q: Is it possible, and would it not be good strategy given the horrible way Republicans have behaved at this point, to just pass the two articles of impeachment so Donald Trump will be an impeached president, but then delay sending over the articles of impeachment for trial and continue to investigate in the House, call additional witnesses, and write up more articles of impeachment to add to those they have already passed? What do you think are the pros and cons of this? J.J., New York, NY

A: If the Democrats were to try this strategy, the correct maneuver would be to table the final vote. Once the articles of impeachment are passed, Speaker Nancy Pelosi (D-CA) & Co. would be on very shaky legal ground trying to stick them in their hip pockets. And, in any case, we think this is not a great strategy for the Democrats. If the outcome—impeachment, trial, exoneration—is pre-ordained, then they might as well get everyone on the record right now, while the Democratic caucus is holding together and public support for impeachment is pretty high.

To drag things out would convey few benefits. It's true that one of the un-deposed witnesses, like former NSA John Bolton, might have something really juicy to share. But what are the odds that person (whether Bolton or anyone else) actually spills the beans and it affects the case against Trump? Keep in mind that Richard Nixon's underlings were far more forthcoming during the Watergate scandal than Trump's have been, and in a far less polarized political environment, and Nixon was still safe until an actual recording of him unambiguously ordering his underlings to break the law came to light. Does a Trumpian "smoking gun," of some sort, even exist? And even if it saw the light of day, would it matter? Actually, we would argue that the transcript of the phone call with Volodymyr Zelensky is a smoking gun, and yet Congressional Republicans have hardly batted an eye.

Meanwhile, there would be some serious downsides to dragging things out. What if public support for impeachment faltered? Then the Democrats would really be between a rock and a hard place. Plus, dragging it out would leave too little time between the impeachment trial and the general election, from the viewpoint of swing-district Democrats. They would like to have time to fill their moderate/right-leaning constituents' minds with thoughts other than "my representative voted for impeachment." A lengthy impeachment process would give Trump a grievance to run on, and to use to whip the crowds into a frenzy at his rallies. And finally, it would play right into Republicans' claims that this is just a political ploy, and not a serious attempt to punish malfeasance. Not helping, in that regard, is that Democrats have argued that impeachment just can't wait, because the malfeasance is ongoing. "I thought Adam Schiff said, back in December, this needs to be done NOW," Republicans would say, if impeachment lingers into April or May or June.

Note also that the fact that impeachment will be in the rearview mirror by February does not mean the Democrats will stop investigating Trump. They'll just do it as oversight, as opposed to preparation for an impeachment trial.

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Q: The leading Republican senators are working with White House staff to determine the best approach to Trump's upcoming trial in the Senate. Some Republican senators have indicated their view that, during the trial, neither the House prosecutors nor the defense should be allowed to call witnesses. Are you familiar with any other trial in which the prosecution was forbidden to call witnesses, and jurors (here, the senators) have negotiated the rules of the trial with the accused? G.A., Berkeley, CA

Q: I don't understand the unabashed and close coordination between Trump's lawyers and Senate Republicans. They are holding strategy sessions together on how to beat impeachment, and being very public about it. The idea of a defendant meeting with half the jury to discuss the best way to secure acquittal would normally shock anyone. How is this considered OK? Did Democrats proudly cast themselves as Bill Clinton's uncompromising protectors, and openly strategize on his acquittal? R.S., San Mateo, CA

A: There is no real precedent for this behavior in American history. Needless to say, nothing like this would happen in a proper civil or criminal trial. And there has never been an impeachment where the senators running the trial had so much interest in exonerating the accused. In the first two presidential impeachments, the faction running the trial in the Senate was openly hostile to the president, and was not looking for the quickest and easiest way to let him off the hook. And, in both cases, even the faction that was not running the trial appeared to take their duties seriously. Democrats back in 1998-99 certainly didn't openly plot strategy with the White House. Meanwhile, all the other impeachment trials the Senate has conducted (16 of them) had judges as the defendants, which obviously changes the partisan dynamics a fair bit.

The closest analogue we can come up with is something like the McCarthy hearings, where constitutional norms (like the right to call witnesses) were often set aside, and the "result" was known in advance. Needless to say, the McCarthy hearings are not exactly a great model to be following. With that said, we will point out that the Republican approach to impeachment is entirely consistent with their legal theory of the whole thing. That is to say, they have made the argument that this whole thing is a charade and a perversion of the Constitution on the part of the Democrats. And so, the GOP is responding in kind, with their own charade and their own perversions of the Constitution. Whether folks like Senate Majority Leader Mitch McConnell (R-KY) and House Minority Leader Kevin McCarthy (R-CA) actually believe what they are selling is not something we can know.

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Q: Has the U.S. ever had such a nakedly partisan Attorney General as William Barr, or is he the worst ever? I am old enough to remember John Dean, and he at least tried to present a veneer of objectivity. Bill Barr seems to have no such concerns. E.S., Arlington, MA

A: Note that John Dean was actually White House counsel, not AG. Anyhow, the three worst AGs in U.S. history, by virtually any measure:

• A. Mitchell Palmer, 1919-21: Woodrow Wilson's last AG, Palmer was his era's Joe McCarthy. During the red scare that followed World War I, he was responsible for the arrest and imprisonment or deportation of 3,000 accused "political radicals." The Palmer Raids, as they were known, were the gold standard (the lead standard?) for AG misconduct for generations. And if that were not enough, Palmer was also responsible for giving J. Edgar Hoover his first break, and so deserves partial blame for the widespread abuses of the future FBI director.
  
  
• John Mitchell, 1969-72: Richard Nixon's AG during the formative years of the Watergate scandal, Mitchell did plenty of dirty work on Tricky Dick's behalf. That included illegal wiretaps, baseless prosecution of war protesters, and trying—through any means possible—to keep the Pentagon Papers secret. After leaving office, he helped plan, and cover-up, the Watergate break-in.
  
  
• Alberto Gonzales, 2005-07: More than happy to tote the Bush Administration's water, Gonzales managed an extensive program of warrantless wiretapping, suborned and oversaw torture, and fired en masse U.S. Attorneys who did not toe the party line.

Barr is very much in the company of these "public servants." Does he belong at the top of the heap (or, perhaps more appropriately, the very bottom of the dung pile)? It's very close, one way or another. Of course, Barr still has time to burnish his "résumé," as it were, so stay tuned.

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Q: If Bernie Sanders were to win, how effective would he actually be, both domestically as well as internationally? I fear we might end up with 4 years of gridlock and disappointment, followed by yet another GOP grifter. M.F., San Francisco, CA

A: This is the single biggest weakness in Sanders' case for the presidency. There's no question that he's a man of deep and abiding commitment and passion, who really believes what he says. This makes him somewhat different from most politicians, whose words are influenced (at least in part) by political considerations. Sanders' authenticity is why he has the support of a die-hard cadre of left-leaning voters.

The problem with True Believers™ is that they often have trouble with compromise; they can't abide the horse-trading that is generally necessary in order to get things done in politics. Sanders' career in the Senate affirms this concern; he can point to no major piece of legislation that he introduced that actually became law. His career in the upper chamber has largely been the story of some unimportant bills that did become law (like renaming post-offices) and aspirational bills that didn't even make it out of committee (like Medicare for All).

There are some presidents who, once they were in the big chair, surprised everyone with their pragmatism and their previously unknown political acumen. Abraham Lincoln is an example of this. But, more often, a presidential candidate who does not appear to have highly developed political skills lives up to that reputation. Warren Harding, Herbert Hoover, Jimmy Carter, and Donald Trump are all examples of this.

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Q: Donald Trump won the Electoral College but lost the popular vote by 46% to 54%. Is he the biggest popular vote loser among those who won electorally? M.M., Plano, TX

A: Let us note that Hillary Clinton got 48.2% of the vote, which means your percentages are correct only if you count all non-Trump votes in that 54%. That may seem sensible, except that doing it that way would grossly distort the answer to the second part of your question. For example, in 1992, 57% of Americans voted against Bill Clinton (a gap of 14%). In 1860, 60.2% of Americans voted against Abraham Lincoln (a gap of 20.4%). In both cases, the reason was because there were three (or more) viable candidates in the race, and the popular vote was fragmented.

What you're really looking for is a sense of whether or not Trump was the weakest of the five presidents who lost the popular vote and yet won the Electoral College. The way to judge that is to compare the popular vote winner's vote totals to the Electoral College winner's vote totals. And the answer is that Trump is in the middle of the pack. In 1824, John Quincy Adams lagged popular-vote-winner Andrew Jackson by 10.44% of the vote, though that was another election with multiple viable candidates. In 1876, which was a two-candidate election, Rutherford B. Hayes trailed Samuel B. Tilden by a shade over 3% of the vote. Trump's gap of 2.1% places him third, as noted, and then it's Benjamin Harrison (0.79% less than Grover Cleveland) and George W. Bush (0.51% less than Al Gore).

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Q: I think Michelle Obama, Tom Hanks, or even Oprah Winfrey would stand a better chance of beating Trump than any of the current Democratic candidates, including Biden. Would you agree? E.S., Eugene, OR

A: If the election was held this week, there is no question that Michelle Obama would stand a better chance of beating Donald Trump than any of the Democrats currently running for president. In part, that is because she is, with Democrats, one of the most beloved people in the country. And in part, that is because while she's been in the public spotlight for a decade, she's never been under the particularly large and powerful microscope that presidents get put under. It's unlikely she has any skeletons in the closet, but it's at least possible she has some previously undisclosed weaknesses. At very least, nobody really knows her stance on the issues, with only a few exceptions. It gets harder when you actually have to take a stance on immigration, or tax policy, or ISIS. Were she to declare tomorrow, and run a proper campaign for 11 months, she'd probably still be the strongest candidate, but that's not a slam dunk.

As to Hanks and Winfrey, they are also quite popular, like Obama. But they have been under even less of a microscope than she has and, unlike her, they have no claim whatsoever to experience in governance. Historically, Republicans have been comfortable with a lack of experience in their candidates for major office—think Ronald Reagan and Arnold Schwarzenegger for governor, Donald Trump for president, George Murphy for U.S. Senator, etc. Democrats have been less so; the only major-office celebrity Democrat is Al Franken, and he was a Harvard-educated author and political commentator with multiple books and fellowships under his belt. All of this is to say, we're not sure Democrats would accept a political amateur as their standard-bearer, even if Republicans would (and did).

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Q: Let's say Donald Trump loses the Electoral College, but he and his allies in GOP states can't stomach the thought of giving up control. So, they find ways to put pro-Trump electors in place, since many states have no faithless elector clause. Maybe they also pay existing electors and they buy off the Electoral College, even though the voters made a different choice. It seems to me that there is no real enforcement mechanism to prevent such activity, and Trump could stay on illegally until the courts settled the question, if they even chose to do so. Similarly, given this view, what stops Trump from trying to run for a third term, even though the 22nd Amendment says he is not supposed to? I write this as someone who fears that the system is failing, and the people who are supposed to stop things like this are intentionally turning a blind eye to the activities of this President and the GOP. R.D., Austin, TX

A: There is little question that Donald Trump, and some of his supporters, have trampled on the Constitution in ways that would previously have been unthinkable. That said, even they have bumped up against constraints created by the law and by what is politically practicable. Note that many cabinet officers have been sent packing due to their corrupt behavior. Note that there is no new border wall to speak of. Note that Obamacare is still in place. Note that Trump will be impeached, and there will be at least some form of trial.

Trying to buy off the Electoral College would be very difficult, indeed. Keep in mind that electors are generally devoted partisans, chosen for the honor due to their service to their party. Any one of them, if offered a bribe, could blow the whistle and we'd have a scandal that would make Watergate look like a day at the park. The odds that 10 or 20 electors (or whatever number necessary) could be found are very low; the odds that those folks could be found without stumbling over one or more whistleblowers are infinitesimal.

Meanwhile, ignoring the 22nd Amendment would be even more tenuous. The authority of all government officers—president, members of Congress, the courts—derives from the Constitution. Clearly, much of the GOP has lived within the gray areas of that document for years. Some Democrats, too. But if Trump and his minions choose to openly disregard something that is black and white, then they would be gutting the basis for their own authority. Why would anybody abide by any portion of the Constitution they don't like if the President doesn't have to? Why, for example, would anyone pay their income taxes? That's decreed by a constitutional amendment, too. At that point, Trump & Co. would effectively be declaring a dictatorship, and dispensing with the Constitution entirely. And it's not impossible that they might toy with the idea, but there is no such thing as a dictatorship that survives without the backing of the military. Do you think the United States armed forces are prepared to overthrow the Constitution? We don't.

Every government falls, eventually. And sometimes it's a slow process, almost unrecognizable to the citizenry while it is happening. See, for example, the Roman empire. However, for all the damage and all the violating of constitutional norms that we've seen in the last several years, we doubt the fall of the American democracy is upon us, quite yet.

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Q: I just finished flipping through pollster Stanley Greenburg's new book, RIP GOP: How the New America Is Dooming the Republicans. Based on data from his polling and focus groups, he seems to agree with your often stated opinion that demographics and a solid dislike for Trump among those outside the Trump base will doom the Republicans in 2020. It seems to me that this idea suffers from the assumption that these new, numerous anti-Trumpers will actually vote. As you have often pointed out, millennials and Latinos in particular have poor voting records. Considering that record, and the enhanced power of Red states in the Electoral College, I am not sanguine about the Democrats' chances next year. Is there really solid polling data on a state-by-state basis that shows that the EC votes will swing Blue in 2020? R.N., Redmond, WA

A: Your question somewhat conflates two different things; let us deal with them one-by-one. First of all, there is no question that the demographic groups Republicans rely on are, on the whole, shrinking. The demographic groups that Democrats rely on are, on the whole, growing. The current Republican coalition will, very soon, no longer be enough to elect presidents, even accounting for structural advantages like the GOP domination of small, low-population states. Either the Party can re-align and find a way to attract new voters (like the Republicans, 1968-80, for example), or it can punt presidential elections for a long time (like the Democrats, 1860-1912, for example).

Can we, or anyone else, say with confidence that 2020 is the year that the GOP reaches that point? No. Even with the (already ample) polling data available, there are just too many "known unknowns" and "unknown unknowns." We don't even have the identity of the Democratic nominee, of course, and there's also no great way to be sure exactly how confident voters are in their choices, or how likely they are to cast a ballot, this far out. The best that we (or anyone else) can say is that there appears to be extremely (and perhaps historically) high voter enthusiasm heading into 2020. If true then, broadly speaking, that will work to the detriment of a president whose approval ratings are in the mid-to-low 40s. On the other hand, if the Democratic primaries end up with two or three finalists and a particularly ideological fight develops between them, supporters of the losing candidate(s) may just say "I'm not voting for the lesser of two evils" and stay home on Election Day.

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Q: My conservative friend gleefully sent me the results of the British Parliamentary election with the comment, "This could well suggest that people who predict a Trump landslide may be right." Is this correct? Can we read the British tea leaves and predict the same kind of nationalist wave here in America in 2020 sweeping Donald Trump to another four-year term? J.L., Los Angeles, CA

A: What if we told you that there was a party on the ballot in the U.K. on Thursday that supports socialized healthcare, the legalization of gay marriage, an end to international trade deals, a strong relationship with NATO, legalized marijuana, taking strong steps to combat global warming and...they won a smashing victory? It's true; these are (among) the policy positions that the Conservative Party has taken under its last three leaders.

There is much temptation to compare the U.K. election and the upcoming U.S. election. After all, the two nations have much in common, and there seem to be some obvious similarities between U.K. 2019 and U.S. 2020, like a right-wing populist looking to be returned to office, a cranky and outspoken left-wing socialist challenger in his 70s, bitter partisanship, a debate about the nation's relationship with other countries, possible Russian influence, and the like. If you want to read such comparisons, and how salient they are (or are not), CNN, Fox News, Politico, The Guardian, ABC News, The New York Times, and Axios, among others, have you covered.

Donald Trump has also drawn the comparison, which should—all by itself—give you pause. And indeed, we're not really buying it, as there are simply too many major differences to make a comparison all that meaningful. As we illustrated above, the right-wing party in the U.K. would be center-left in the U.S., while the left-wing party in the U.K. would be...we dunno, probably burned at the stake in the U.S. There is no issue equivalent to Brexit in the 2020 U.S. elections. Boris Johnson, while hated by many, has not (yet) inspired quite the depth of loathing that Donald Trump has. The British electoral system is very different from the American system, not least in that a vote for parliament in the U.K. and a vote for prime minister in the U.K. are the same vote. The American equivalent would be that, if you want to be represented by a Republican in the House, you must also vote for Donald Trump. Obviously, that is not how it works in the U.S., which is a pretty big difference.

If there are lessons in the U.K. election for American politicians, they are likely tactical more than anything else. Like, for example: "Have a clear message and don't try to be all things to all people." But, truth be told, American politicians should not have needed the Brits to teach them that. As to the notion that Thursday's events prove that Bernie Sanders or Sen. Elizabeth Warren (D-MA) is unelectable, we're not buying it. And the notion that Thursday's events presage a Trump landslide? Nonsense. Jeremy Corbyn was one of the worst candidates in recent British history and was promising extremely controversial things like nationalizing the railroads. Say what you want about Sanders, but he is much too smart to promise nationalizing the airlines.

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Q: Why is SCOTUS waiting until mid-2020 to hear the cases on Donald Trump's taxes? Why after impeachment? Why so close to the next election? It seems this would be of utmost urgency, but it's being slow played. Given the timing, they're likely to say the request has no legitimate legislative purpose because impeachment is over, right? This just seems so bizarre. R.S., Los Angeles, CA

A: Obviously, we don't know anyone on the Supreme Court (nor would we want to know most of them, frankly). And even if we did, they could not share the answer to this question with us or anyone else. That means that we're left to guess. It is somewhat unlikely that the Justices already know what verdict the Court will render; such pre-coordination would be very much a violation of the ethics of the Court, and the Justices take those ethics very, very seriously. However, what they all know is that any decision they make is going to be very controversial, and is going to be savaged by half the country. In those circumstances, it is best to do things by the book, to salvage as much legitimacy as is possible.

Ruling so close to the election is definitely an issue, and one that probably makes at least some of the justices a little leery. But they presumably feel that they are choosing from a bunch of bad options, and that this is the least bad one. In that way, it parallels James Comey's situation when it came to the new cache of Hillary Clinton e-mails discovered late in the 2016 campaign.

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Q: Which of the 50 states is the worst? Why? R.M., Bryan, TX

A: Well, this is kicking up a hornet's nest. But we like hornet's nests, so we're going to plunge right in and answer...Mississippi.

To start, Mississippi was, for generations, the embodiment of entrenched Southern racism. Actually, it kinda still is. It's not a coincidence that when the Confederacy needed a president, they chose one from Mississippi. Nor is it a coincidence that in the "I Have a Dream Speech," Martin Luther King, Jr. looked forward to a day when "even Mississippi" would embrace equality, or that the preeminent grassroots narrative of the Civil Rights Movement is Coming of Age in Mississippi, or that Missisippi was the last state to officially abolish slavery (in 2013!), or that Mississippi is the only state left whose state flag incorporates the Confederate battle flag.

On top of that, Mississippi does not do so well by most measures of success that you might look at on a statewide level. Of the 50 states, it has the lowest median income ($37,095), the highest percentage of people in poverty (24.2%), the lowest life expectancy for residents (75 years), the highest obesity rate (35.5%), the lowest high school graduation rate (73.3%), and the second-highest unemployment rate in the nation (5.5%, better than only Alaska). As a consequence of all of this, Mississippi was rated by Gallup as the 47th-most-miserable state, beating out only Arkansas, Louisiana, and West Virginia.

In fairness, Mississippi is undoubtedly home to many fine people, and its sons and daughters have made many great contributions to the arts. That list includes William Faulkner, Beah Richards, James Earl Jones, Robert Johnson, and Tennessee Williams.

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Q: In the Watergate scandal recap, you mentioned the 18-minute tape gap and that, "Later analysis, conducted by computers not available in 1974, revealed that the missing segment had been erased and re-erased at least 20 times." I am wondering, was it ever revealed who erased the tape? Was it Nixon himself, Rose Mary Woods, or someone else? T.H., La Quinta, CA

A: The answer to this will likely never be known. It is improbable that Nixon did it himself, at least not deliberately, as he was notoriously bad with any sort of technological device. The prime suspect is White House Chief of Staff Alexander Haig, who denied it and, at various times, fingered Woods, Nixon (on accident, due to his technological clumsiness), and unknown "sinister forces." Others think that, if it was not Haig, it was one of the many crooked lawyers who worked for Nixon.

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Q: Could you tell us what Spiro Agnew did and why he resigned? I've never heard that story. R.L., Alameda, CA

A: Well, officially he was popped for tax evasion. However, the real story is that during his pre-vice-presidential career, he was on the take, collecting lots of kickbacks during his time serving as Executive of Baltimore County (1962-66) and as governor of Maryland (1967-69). In 1972, U.S. Attorney for the District of Maryland George Beall opened a broad investigation into corruption in Baltimore, and that investigation eventually ensnared Agnew. The VP took the position that the president and vice president cannot be investigated or indicted while in office. We know, it's hard to imagine someone would make such an outlandish argument. But it happened! Anyhow, neither Beall nor the courts bought into what Agnew was selling, and by 1973 the VP was in deep trouble. Pleading to tax evasion (and, tacitly, agreeing to resign, which he did on October 10, 1973) was a face-saving measure that also allowed Agnew to avoid prison time (he paid a $10,000 fine and did three years of unsupervised probation).

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