Administration Has a Mixed Day in Court

You win some, you lose some. That was sort of the theme for the Trump administration on Tuesday, as it suffered setbacks in two very different cases, while potentially getting good news in a third.

The first loss of the day came courtesy of a three-judge panel on the United States Court of Appeals for the Second Circuit (which covers New York, Vermont, and Connecticut). A pair of George W. Bush appointees (Barrington D. Parker and Peter Hall) and a Barack Obama appointee (Christopher Droney) unanimously affirmed a previous decision by a Bill Clinton appointee (Naomi Buchwald), and said that if Donald Trump is going to use his personal Twitter account for government business, he cannot legally block users from following him because they criticized him or made fun of him.

We shall see if the administration appeals the decision and if they do, whether the Supreme Court wants to get involved in Twitter squabbles. It is really very strange that the administration pressed this matter, since Trump was all-but-guaranteed to lose (having already lost a very similar case). Further, the President can spend all day and night blocking people, and his every tweet is nonetheless going to be met with a barrage of scorn and criticism (along with a barrage of MAGAs and #Trump2020s). The only reason he could plausibly want to retain this "privilege" is so he can poke specific people in the eye by blocking them. While that is characteristic, perhaps, of the level of emotional maturity we've come to expect from this president, it's also not working the way he intends. Most folks who get blocked by him wear it as a badge of honor, and put it in their Twitter bios.

The second defeat of the day, meanwhile, also came from New York, as Judge Jesse Furman (an Obama appointee) ruled that the Justice Department cannot swap out the lawyers it's using for the citizenship question case unless there is a very good reason. And since none was proffered, the motion was declined, with Furman observing that the case is moving quickly specifically because the administration wanted it that way, and that they can't shift gears now just because they're losing. The President responded to the news, naturally enough, by suggesting the fix was in:

So now the Obama appointed judge on the Census case (Are you a Citizen of the United States?) won’t let the Justice Department use the lawyers that it wants to use. Could this be a first?

— Donald J. Trump (@realDonaldTrump) July 10, 2019

If Trump is asking whether this is the first time that a judge appointed by a president of one party ruled against a president of the other party, our resident historian can say with confidence that it is not. In fact, it happens all the time, which may just explain the GOP's efforts to move heaven and earth to secure the SCOTUS seat that went to Brett Kavanaugh. If Trump is asking specifically whether Furman was ruling based on politics, rather than the law, well, only the Judge knows for sure. However, Furman is so well respected that he's been talked about as a potential Supreme Court candidate. Further, this was a pretty standard ruling. So, in the absence of new information, we probably have to give Furman the benefit of the doubt.

If you want an example of a ruling where politics may well come into play, well, that brings us to the good news the administration got yesterday. It was on the Obamacare front, as a three-judge panel on the United States Court of Appeals for the Fifth Circuit (which covers Louisiana, Texas, and Mississippi) considered a suit brought by nearly two dozen red-state Attorneys General, and backed by Trump. The suit, in a nutshell, is an effort to bring down Obamacare on what certainly appears to be a technicality. SCOTUS previously ruled that the requirement that people have insurance, or else pay an extra tax, was a legal exercise of Congress' authority to levy taxes. In the 2017 tax bill, however, Senate Majority Leader Mitch McConnell (R-KY) & Co. reduced the penalty to $0. The current lawsuit, then, argues that a $0 tax is no tax, and if there is no tax, then SCOTUS' ruling no longer holds. In the initial ruling on the case, Judge Reed Shelton (a Bush 43 appointee) sided with the plaintiffs, and ruled that Obamacare should be struck down. However, Shelton has a particular reputation for being partisan, and that particular ruling was slammed from both sides of the aisle. For example, the director of litigation at the conservative Competitive Enterprise Institute said it was "embarrassingly bad."

The panel that heard Tuesday's appeal included one Trump appointee (Kurt Engelhardt), one Bush 43 appointee (Jennifer Elrod) and one Jimmy Carter appointee (Carolyn Dineen King). The two Republican-appointed judges asked many questions, while the Carter appointee asked none. Who can blame her; she's gotta be a little weary of this after more than 40 years on the bench. Anyhow, with the usual caveat that judges' questions are not always what they seem, folks in the court room interpreted what they were hearing as a strong indication that a 2-1 ruling upholding Shelton is coming down the pike.

If that is what comes to pass, then Trump will undoubtedly be thrilled. However, as we often note (including in yesterday's post), be careful what you wish for, because you just might get it. Healthcare was the #1 issue that powered the Democrats' success in 2018. If the Fifth Circuit rules with Trump and the attorneys general, then that will promptly be appealed to the Supreme Court, which will surely have to take the case. The result, just as in 2018, will be an election year full of headlines that remind voters the GOP is trying to take away their health care without actually offering up an alternative. If there is one thing that could flip control of the Senate, that would probably be it. (Z)

Judiciary Committee Preps a Flurry of Subpoenas

As long as we're on the subject of legal maneuvering, House Judiciary Committee Chair Jerrold Nadler (D-NY) is preparing to fire several shots across the bow of the S.S. Trump. On Thursday, the Committee will vote on subpoenas for a veritable All-Star list of Russiagate figures, including Jared Kushner, former AG Jeff Sessions, former deputy AG Rod Rosenstein, former NSA Michael Flynn, former chief of staff John Kelly, and former Trump campaign manager Corey Lewandowski.

Undoubtedly, some of those folks will ignore the subpoenas, and will dare Nadler to take the matter to court, which he certainly will do. So this is just the prologue to, for example, Nadler vs. Kushner. However, a fair number of these individuals (Sessions, Rosenstein, etc.) left the administration on less-than-great terms, and may not be interested in protecting the President. Lewandowski presents a different issue for Team Trump; since he never worked in the White House, any real or invented version of executive privilege does not apply to him. Whatever happens, the folks in Washington are certainly doing their best to make sure things remain interesting, even during the dog days of summer. (Z)

Acosta's Hot Seat Grows Hotter

Secretary of Labor Alex Acosta is getting a lot of the wrong kind of attention right now, with the result that he could find himself out of a job sooner rather than later. He's not a dead man walking yet, but his situation definitely deteriorated on Tuesday.

The Secretary has two distinct problems, both stemming from the plea deal he signed with convicted (and also newly-accused) sex offender Jeffrey Epstein during Acosta's stint as a U.S. Attorney. The first is the plea deal itself, which was not only lenient to the point of raising questions about corruption, but was also illegal. A judge ruled as such back in February, noting that Acosta failed to notify Epstein's victims of the plea deal, as the law requires. The second problem is that every story about the Secretary and his plea deal also reminds voters of the President's own connections to Epstein, which are substantial. The Donald's public image, of course, is paramount above all else, and anyone who harms that image has to go.

Trump, for his part, sort of signalled his continuing support for the Secretary, and said, "I feel very badly, actually, for Secretary Acosta because I've known him as being somebody that works so hard and has done such a good job." The careful reader will note, however, that nowhere in there is the phrase "his job is safe." And Trump himself conceded that he would have to "take a look" at the situation. As he does so, the President is going to get an earful from Chief of Staff Mick Mulvaney, who thinks Acosta should be fired immediately. Meanwhile, Acosta's support in the Senate is crumbling, with some GOP Senators (Ben Sasse, NE; Susan Collins, ME) calling for his ouster openly, others doing so off the record, and the rest (Mitch McConnell; John Cornyn, TX) saying "no comment."

Acosta took to Twitter on Tuesday to defend himself, arguing—in essence—that he extricated as much as he could from the billionaire given the available evidence, as well as the defendant's vast financial resources. Nobody seems to be buying that but, in the end, it doesn't matter. The general consensus is that Acosta's fate will be decided by the end of the weekend. If the negative coverage continues, particularly on Fox, and if Trump's telephone confidants tell him Acosta has to go, then Acosta will be gone. If the Secretary can weather the harshest part of the storm, then he'll likely survive. (Z)

British Diplomat May Keep His Job, After All

Speaking of people who may or may not have a job next week, it turns out that U.K. Ambassador to the U.S. Kim Darroch may not be recalled, despite the leak of disparaging memos he wrote about Donald Trump. Both of the men who are in the running to be the U.K.'s next prime minister addressed the subject on Tuesday, and neither committed to sacking the ambassador.

First was Jeremy Hunt, who, as the current Foreign Secretary, is Darroch's superior. After the President sent out yet another round of tweets on Tuesday slamming Darroch (this time as "wacky," "pompous," and "stupid"), Hunt came to the ambassador's defense. Responding via Twitter, he declared that "these comments are disrespectful and wrong to our Prime Minister and my country," that "allies need to treat each other with respect," and that "if I become PM our Ambassador stays." Hunt reiterated his position during a televised debate on Tuesday.

All of this put the other contender for the premiership, Boris Johnson, on the hot seat, compelling him to take a position of some sort. He waffled, saying that, "I won't be so presumptuous as to assume that I'm going to be in a position" to make a decision on Darroch. What Johnson most certainly did not do, however, was criticize Darroch or support Trump's position.

For Americans, we would suggest that all of this is very interesting for two reasons. First, one of the potential prime ministers poked Trump in the eye (hard!), and the other punted. This suggests that the relationship between the U.K. and the administration is not going to improve simply because Theresa May is replaced by more of a hardliner. Second, both of these men are desperately trying to win the favor of the 160,000 or so conservatives who will choose the next leader of the party (and thus the next PM). If one of them thinks the thing to do is to stand up to Trump, and the other can't decide, it implies that even among conservative Britons, who should be a reasonably friendly audience, the President is not popular. That runs directly contrary to the claims of the administration, and to the recent spate of op-eds (like this one) that insist that everything you've heard is wrong, and that Trump actually has a lot of support abroad. (Z)

Update: Shortly after we posted, Darroch decided to fall on his sword, and resigned.

Two Trump Lies for 2020

Yes, Donald Trump lies a lot, so picking out only two of them seems a bit selective. However, these two could prove particularly important to understanding his 2020 presidential campaign, so they're worth particular attention.

The first lie is Trump's regular insinuation that his base is enough to win reelection in 2020. For example, speaking to Time a few weeks ago, he was asked about the importance of expanding his appeal beyond his base and said, "I think my base is so strong, I'm not sure that I have to do that." Trump probably knows that is not true, since his base is about 40% of the voting public, and he can't win a presidential election with that small a percentage of the vote, Electoral College or no.

Certainly, Trump's pollsters and tactical advisers know that 40% won't get it done, and that leads us to the second lie. Actually, it's more like a collection of lies. The campaign's number crunchers have been looking at the 40% problem, and have discovered that a potential avenue to the necessary 46% or so is...wait for it...the president's environmental record. Among folks who are wavering, particularly millennials and suburban women, one of their main deal-breakers is the environment. Trump is never going to win over the hard-core Greenpeace types, of course, but his pollsters believe that if they can create the impression that his environmental record has been "responsible," that will be enough to peel off some of the waverers and bring them back into the President's column.

Consistent with this, Trump has given two recent speeches, one at the G-20 and one at the White House, celebrating his "accomplishments" on the environmental front. He claimed, among other things, that the United States' carbon emissions have declined "more than any other country on Earth" in the last decade, and that his administration has done more to protect public lands than any in history. Neither of these things is remotely true, of course, and by virtually any standard, the Trump administration has the worst environmental record of any in U.S. history (which is remarkable, given the existence of the George W. Bush presidency). Still, Team Trump thinks they can sell him as a green president. We'll see if roughly 5% of the voting public is buying. (Z)

Third Round of Democratic Debates Will Be Held in Houston

The first pair of Democratic debates were held in Miami, Florida. The second pair of debates, later this month, will be staged in Detroit, Michigan. And, on Tuesday, the DNC announced the site of round three: Houston, Texas. The hosts will be Univision and ABC. The names of the moderators, and whether there will be one night of debates or two, are to be determined.

There is one significant thing about Tuesday's announcement, and it's not that the venue will encourage Beto O'Rourke to display his Spanish-language skills again. Florida, of course, is a swing state that the blue team really hopes to win in 2020. The same is true of Michigan. And so, the choice of Houston suggests that the muckety-mucks at the DNC think, at least preliminarily, that Texas might just be in play in 2020. We're not sure they're right, but we're not sure they are wrong, either. If the Lone Star State is indeed in play (even if the Democrats don't win it), it will force the GOP to expend valuable resources playing defense in a state that they have grown accustomed to thinking of as "in the bag." (Z)

McGrath Is in, Sebelius Is Out

When it comes to news about the 2020 Senate races, the Democrats batted .500 on Tuesday. First, the hit: As expected, former Congressional candidate and Marine fighter pilot Amy McGrath announced that she will run against Mitch McConnell in 2020. As a woman, a Washington outsider, a military veteran, a Naval Academy graduate, and an excellent campaigner and fundraiser, she's everything the Democrats could possibly hope for in a challenger.

This will be a very interesting race, indeed. McConnell is wildly unpopular nationwide, thanks to his less-than-Democratic way of running the Senate. In fact, Sen. Tina Smith (DFL-MN) published an op-ed on that very subject on Tuesday, pointing out how very small a fraction of the Senate's time (about 15%) is spent on doing anything other than ramming through conservative judges. McConnell is also wildly unpopular at home; with a 36% approval rating and a 50% disapproval, he's 14 points underwater, which is the worst of any senator (only Sen. Bob Menendez, D-NJ, who just skated on charges that he took bribes, is even close, at 10 points underwater).

On the other hand, McConnell has three things going for him, beyond the fact that Kentucky is a pretty red state (though not as red as you might think; 8 of the last 10 governors were Democrats). To start, he is unusually good at bringing home the pork, and undoubtedly many Kentuckians will remember fondly the particular slice of bacon that they received courtesy of the Majority Leader. Second, McConnell knows that he does not actually need voters to think of him as a "good" option, merely as the "less bad" option. His team has been prepping for McGrath's entry into the race, and once she made it official, they unleashed an anti-McGrath website with the URL wrongpathmcgrath.com, as well as a carefully edited video that makes her appear to be slightly to the left of Karl Marx. Finally, McConnell's biggest ace in the hole is that he may not be popular in Kentucky, but Donald Trump still is (among Republicans, at least). Trump, for his part, has already unfurled his coattails for the Majority Leader to climb onto:

Democrats are coming after our great Kentucky Senator, Mitch McConnell, with someone who compared my election to September 11th....

— Donald J. Trump (@realDonaldTrump) July 10, 2019

....Why would Kentucky ever think of giving up the most powerful position in Congress, the Senate Majority Leader, for a freshman Senator with little power in what will hopefully be the minority party. We need Mitch in the Senate to Keep America Great!!

— Donald J. Trump (@realDonaldTrump) July 10, 2019

Wouldn't it be ironic if the career of the ultimate Washington insider is saved by the outsider that he's held at arm's length for the last three years?

And now, the miss: At almost exactly the same time that McGrath was throwing her hat into the ring, former Kansas governor Kathleen Sebelius announced that her hat will remain firmly on her head, and that she is not interested in running for the state's open Senate seat. The entry of the polarizing Kris Kobach (R) into the race on Monday means that the seat may actually be in play for the first time in close to a century. However, you can't beat somebody with nobody, and the Democrats just lost their best potential candidate.

After Sebelius, the blue team's bench in Kansas is a tad bit thin; former representative Nancy Boyda is running, as is former U.S. attorney Barry Grissom. It could be that one of them comes out of nowhere to run a surprisingly effective campaign, à la Stacey Abrams and Beto O'Rourke in 2018. That said, the DSCC is likely to try to recruit someone with a bit more name recognition—possibly Rep. Sharice Davids (D-KS). Still, if the Democrats could only have their favored candidate in one of the K states, they likely would have picked McGrath. (Z)

Tea Partier Wins North Carolina Runoff

The GOP says they would like to increase the number of women in their caucus, particularly in the House, where only 8 Republican women (versus 190 Republican men) serve. Party pooh-bahs have failed to put their money where their mouths are, however, and they lost yet another opportunity on Tuesday.

The election, in this case, was a runoff in North Carolina made necessary by the passing of NC-03's Rep. Walter Jones (R). The two Republicans who faced off were Greg Murphy and Joan Perry. Both are physicians, but one is a very right-wing man while the other is a more centrist woman. Perry got all of the establishment endorsements, but Murphy got the money and the manpower of the House Freedom Caucus, and won over 24,000 votes to Perry's 14,000. There may have been nothing the GOP establishment could have done to change that result, but if they don't even try, it's not exactly going to inspire other women candidates to take their chances.

In the general election, Murphy will square off against former Greenville mayor Allen Thomas. Thomas is the more experienced politician, but Murphy is the Republican in an R+12 district, so he's the favorite. NC-03 voters head to the polls again on September 10. (Z)

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