Trump Can Start Building His Wall

Late Friday, Donald Trump got some moderately good news, as the Supreme Court announced that it was lifting an injunction that stopped him from using military funds for border-wall-building purposes. The vote was...you guessed it, 5-4.

Naturally, Trump celebrated this as if it was a triumph along the lines of D-Day or the moon landing:

Wow! Big VICTORY on the Wall. The United States Supreme Court overturns lower court injunction, allows Southern Border Wall to proceed. Big WIN for Border Security and the Rule of Law!

— Donald J. Trump (@realDonaldTrump) July 26, 2019

It's a win for him, yes, but there are caveats. The first is that the underlying case that led to the injunction is still in effect, and the plaintiffs are going to press for an expedited decision, which they may well get. So, it could be a short-term win. Beyond that, even if Trump is able to spend all of the money that is currently (and possibly temporarily) at his disposal, it's only $2.5 billion. That won't go far. In fact, it may not go anywhere at all; all of the "easy" spots for wall-building already have fencing. It will take a lot of time to build more—so much time that there may not be any actual wall construction before the election.

Another caveat is once the Supreme Court has decided that the president can reallocate funds Congress has appropriated for project A and spend them on project B, future presidents may decide they like this concept. Imagine a future Democratic president who decides to take money Congress has appropriated for buying machine guns for the military and diverts it into a fund to buy back machine guns from private citizens to reduce gun violence. The possibilities are limitless and it ends Congress primary power: The power of the purse.

That leads us to a related development: the administration also announced on Friday that it would deploy troops to spend a month repainting the existing portions of the wall. This was justified with the explanation that the special, slippery paint will make it harder for people to climb the wall, and will also make it easier to see if people are trying to do so. However, it certainly has the general appearance of putting lipstick on a pig. There will be photo-ops with Trump, and claims that he built his big, beautiful wall, and then we will see in 2020 if his voters hold him responsible for coming up way short on his preeminent campaign promise. Most likely, however, they will cheer and continue to support him, since what matters to them is photo ops, not actual policy or the execution thereof. (Z)

This Weekend in Trump Racism

It's been two weeks since Donald Trump fired off the racist tweets targeting "The Squad," which dominated at least a week's worth of news cycles. He will undoubtedly return to that subject in future speeches, and at future rallies, but on Saturday morning he decided to take things in a different direction:

Rep, Elijah Cummings has been a brutal bully, shouting and screaming at the great men & women of Border Patrol about conditions at the Southern Border, when actually his Baltimore district is FAR WORSE and more dangerous. His district is considered the Worst in the USA......

— Donald J. Trump (@realDonaldTrump) July 27, 2019

....As proven last week during a Congressional tour, the Border is clean, efficient & well run, just very crowded. Cumming District is a disgusting, rat and rodent infested mess. If he spent more time in Baltimore, maybe he could help clean up this very dangerous & filthy place

— Donald J. Trump (@realDonaldTrump) July 27, 2019

Why is so much money sent to the Elijah Cummings district when it is considered the worst run and most dangerous anywhere in the United States. No human being would want to live there. Where is all this money going? How much is stolen? Investigate this corrupt mess immediately!

— Donald J. Trump (@realDonaldTrump) July 27, 2019

Are these as racist as the tweets from two weeks ago? Maybe not, but they are in the ballpark, when targeted at a black congressman who represents a district (MD-07) that is 59% black, and when utilizing verbiage like "infested." Thus far, the tweets aren't getting nearly as much attention as the ones targeting The Squad, perhaps because they are slightly more subtle, or perhaps because people are weary of this discussion. Nonetheless, the President continues to make it very clear exactly what kind of campaign he plans to run in 2020. (Z)

America Will Get Less Safe This Week

Six months ago, in a development that got surprisingly little attention given its import, Donald Trump withdrew the United States from the Intermediate-Range Nuclear Forces Treaty. Negotiated by Ronald Reagan and Mikhail Gorbachev in 1988, the agreement banned all of the two nations' land-based ballistic missiles, cruise missiles, and missile launchers with ranges of 300–3,400 miles (500–5,500 kilometers). Trump argued, with some justification, that the Russians were not adhering strictly to the deal, and so he decided to chuck it entirely. Vladimir Putin followed suit the next day, and on this Friday the withdrawals become official and the treaty disappears.

There are now three countries that, from a nuclear standpoint, look like they will be more dangerous on the day Trump leaves office than they were on the day he was inaugurated. The first is North Korea. The President's "diplomacy" there may have been nominally helpful or nominally hurtful, but there is no question he has not shut down Kim Jong-Un's nuclear program, regardless of any claims to the contrary. The second is Iran; that country is again enriching uranium, and the responsibility lies almost entirely at Trump's feet. The third, of course, is Russia, which will be free to expand its short- and medium-range arsenal with impunity.

As David A. Andelman, of the Center for National Security points out, the Russians are far scarier than the Iranians or the North Koreans when it comes to nukes. Not only is the Russians' ability to construct nuclear weapons real, instead of theoretical, they are actually ahead of the United States in this area, at the moment. At the same time, the Putin regime is corrupt and sometimes careless, and the more nuclear bombs the Russians produce, the more likely that one ends up in the hands of terrorists. This being the case, it was extremely irresponsible to pull out of the INF treaty, particularly while making no effort to salvage it, or to work out an alternative. If Trump is actually in the thrall of Putin (possible), and if it's proven that is why he pulled out of the treaty (longshot), then this might be the highest crime and misdemeanor of them all. Of course, none of this is likely to hurt Trump in 2020, as he's very good at distilling foreign policy into sound bites that contain little truth, but a lot of base-satisfying criticism of Barack Obama. (Z)

Democrats Aren't Giving Up on Impeachment

Former special counsel Robert Mueller failed to deliver a smoking gun in his testimony before the House Judiciary and Intelligence Committees this week, which certainly appeared to be the death knell for any chance of impeaching Donald Trump prior to the 2020 election. Not so fast, though. The blue team (at least, part of the blue team) has adopted a new approach: they are going to go after the secret evidence that Mueller presented to his grand jury, in hopes of finding a smoking gun there.

This is really quite the little dance that is going on here. There is little question that, if the decision was in Robert Mueller's hands and there were no external considerations, he would impeach. There is little question that, if the decision was in the Democratic pooh-bahs' hands (including those of Speaker Nancy Pelosi, D-CA) and there were no external considerations, they would impeach. However, Mueller is unwilling to pull the trigger out of some sense of duty or responsibility, and the Democrats are unwilling to pull the trigger for fear of political blowback. And so, each waits for the other to take the plunge and to declare that "the buck stops here." Mueller himself has now exited stage right, so the blue team's new strategy is essentially a backdoor attempt to give him ownership of impeachment. Seems like a Hail Mary pass to us and, in any case, neither the former special counsel nor the Democrats are impressing with their unwillingness to stand tall and have the courage of their convictions. Note that is not an argument for impeachment, per se, it's an argument for growing a spine, doing what you believe to be right, and accepting the consequences that come as a result. (Z)

Another GOP Representative Throws in the Towel

We are in prime season for congressional retirements, as members have to decide now if they want to run again, or else clear the decks and leave enough time for their potential replacement to campaign and raise money. The latest member to announce that they are done is Rep. Martha Roby (R-AL), who will not seek a sixth term. Her district (AL-02) is very red, with a PVI of R+16, and so does not figure to be in play in 2020, unless the GOP nominates a(nother) credibly accused child predator.

Roby is the eighth Republican to retire this cycle, and the third this week. This compares to just three Democrats who have retired this cycle. Thus far, the GOP total is not outside of historical norms, but there's also a lot of time left for others to jump ship. Roby's retirement is of particular interest for two reasons. First, she is the second of the 13 Republican women in the House to throw in the towel (alongside Susan Brooks of Indiana), which means the Party's "woman problem" could get even worse than it is now. Second, she nearly lost her primary election last year due to her opposition to Donald Trump. And so, the transition of the Grand Old Party to the Trump Organization Party continues at a brisk pace. These two developments are not unrelated; it is not easy to be female and to support Trump, given both his political agenda and his personal history. Sen. Susan Collins (R-ME) has been the most high-profile case of someone trying to walk that line, but Roby and Brooks have tried to walk it, too, and apparently are sick of it. (Z)

Democratic Presidential Candidate Update: Sen. Cory Booker (D-NJ)

Last week we revisited one of the two candidates who is on the bubble for the third round of debates (Sen. Amy Klobuchar, DFL-MN), and this week we revisit the other. They are the only two, at the moment, who have cleared the polling threshold (2% in at least four approved polls) but not the fundraising threshold (130,000 unique donors, including at least 400 donors in 20 different states).

Our original profile of him is here.

• Where Has He Been Recently?: He spends a lot of time in Washington, doing his day job, but when he hits the road, he generally visits Iowa and South Carolina.
  
  
• Recent News: Booker tried to run a "nice" campaign, and it didn't work, so most of the coverage this week has been about how he's going to take the gloves off.
  
  
• Offbeat News: If elected, Booker would be the first bald president in many years (unless you count Donald Trump, the last one was either Jerry Ford or Dwight D. Eisenhower, depending on how bald someone has to be in order to be considered "bald"). This week, the Senator got some mileage out of his chrome dome, shaving the heads of three supporters who agreed to donate $1,000 each to charity (see below).
  
  
• Finances: In Q2, he took in $4.5 million and spent $5.3 million, which left him with about $5 million cash on hand (because he started the quarter with about $6 million in the bank). He'll be able to hang on for a while, if he wants to.
  
  
• Polls: His best number, which he's achieved a number of times, is 3%, most recently in an Economist/YouGov poll earlier this month. His average, across all polls, is 1.7%.
  
  
• What Did We Guess His Signature Issue(s) Would Be?: Urban renewal
  
  
• What Appears to Be His Signature Issue Now?: The three top-level categories on the issues page of his website are justice, opportunity, and American leadership, which cover an awful lot of ground. When he's on talk shows, or giving stump speeches, he varies his remarks based on his audience. So, it would seem his campaign does not really have a signature issue yet.
  
  
• Strengths for the Democratic Primaries: (1) If he can build a coalition of mid-Atlantic and black voters, that's pretty potent; (2) you might not guess it, but he's got very close ties to the Jewish community, a key Democratic constituency; and (3) voters in the South and the rust belt love former football players.
  
  
• Weaknesses for the Democratic Primaries: (1) Between his veganism and his non-married status, he may be a little too unorthodox for some voters; (2) the constituencies he's aiming for are also being pursued by at least two people ahead of him in the polls; and (3) the base is not going to like his close relationship with corporate donors.
  
  
• Booker on Trump: "The issues we hear Donald Trump talking about are just so contrary to who we are as a people. They are an affront and an insult to our higher angels and our best selves." (6/1/16)
  
  
• Trump on Booker: "If Cory Booker is the future of the Democratic Party, they have no future! I know more about Cory than he knows about himself." (7/25/16)
  
  
• The Bottom Line: All signs point to a Booker-Sen. Kamala Harris (D-CA) tag team against Joe Biden in this week's debate. If that doesn't move the needle for Booker, he's in trouble.

Saturday Q&A

We moved the Q&A to Saturday so it would have a little more breathing room on a slow news day. And then, there was a whole bunch of news on Friday and Saturday, as you can see above. Oh well, you know what they say about the best laid plans of mice and men. Anyhow, we are going to lead with the obvious subject, namely Robert Mueller's appearance before Congress. We'll have some more in the next Q&A, just to spread it out a little.

Regarding your statement that Trump may have been right to claim victory after the Mueller hearings, do you think there is also an argument that the effects on the next election may not be in his favor? Nancy Pelosi has made clear she believes impeachment is the wrong move politically, and if the lackluster hearings now make it less likely to bring impeachment proceedings, could this not help Democrats in the longer term? W.F., Los Angeles, CA

There is, of course, no way to be certain about this unless we somehow manage to run the election two times, one with impeachment and one without. Since that cannot happen, outside of the show "Rick and Morty," we'll just have to hazard our best guess. And our best guess is that all of the political "damage" that would have been done by impeaching Trump has already been done. That is to say, folks who are going to be angered by impeachment have likely been persuaded that the Democrats already ran Trump through the wringer with the Mueller investigation and all of the various activities in the House, and that the only reason they did not formally impeach him was that they did not have enough evidence. So, those people are already lost to the Democrats and aren't coming back. Meanwhile, in the absence of an actual impeachment, Trump's dirty laundry isn't being aired on a daily basis in the headlines. So, at the moment, it seems like the President is having his cake and eating it, too. He can play martyr, and yet he avoids the scrutiny of an actual impeachment. And if we're right, then the answer to your question is no, this state of affairs does not work to the Democrats' advantage, either short term or long term.

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Why was Robert Mueller so concerned about the time it would have taken to subpoena Trump and possibly to get him to testify? It seems to me that one tactic would be to initiate impeachment proceedings whenever convenient and keep them going until Election Day. Then, Trump would be running for president under an impeachment cloud, while negative information about him continued to emerge, and the Senate would have no opportunity to exonerate him. Aside from ginning up his base, which will probably happen anyhow, what's the downside of such a plan? J.C., Swampscott, MA

The reason that Mueller was concerned is that his primary task was to investigate and uncover Russian interference in the 2016 election, in hopes of protecting the sanctity of the 2020 election. Even with him concluding his investigation in mid-2019, there's almost certainly not enough time to fix all the things that need to be fixed, even if the GOP-controlled Senate was willing to play ball. If Mueller had burned another six months or so waiting to possibly talk to Trump, that would have meant wasting precious time, likely with very little reward.

As to House Democrats, however, your strategy makes all the sense in the world to us. And, to an extent, that is what they are doing; they're just not calling it "impeachment proceedings" yet. However, they may well have to make that leap sometime this year, just because "we're collecting information" doesn't afford them nearly as much legal oomph in court as "we're undertaking our Constitutional duty to prepare for impeachment proceedings."

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A question was asked during Robert Mueller's testimony that I don't think was sufficiently answered: Can a sitting president be tried for federal crimes, once they have left office, if the statute of limitations is up? T.T., Manhattan, KS

You are referring to the line of questioning from Rep. Mike Quigley (D-IL). Here is the exact exchange:

QUIGLEY: So the follow up question that should be concerning is what if a president serves beyond the statute of limitations?

MUELLER: I don't know the answer to that one.

QUIGLEY: Would it not indicate that if the statute of limitations of federal crimes such as this are five years that a president who serves a second terms is therefore, under the policy, above the law?

MUELLER: I'm not certain I would agree with the -- I'm not certain I would agree with the conclusion. I'm not certain that I can see the possibility that you suggest.

Mueller is a lawyer, former special counsel, and former FBI Director, and even he didn't know the answer. We are none of those things, but we will give it the old college try and attempt to answer where he couldn't.

The quick and easy answer is that the statute of limitations (five years for non-violent federal felonies) would indeed run, making Trump un-prosecutable for crimes committed as president. If you would like to hear someone who has an actual law degree say that, then here is CBS News legal contributor and University of Baltimore School of Law professor Kim Wehle.

However, that does not necessarily mean Trump is home free. There are at least four things that he should be worried about, even if he gets reelected:

1. If he's already been indicted, and the indictments are sealed until he's not president anymore, then he's not protected by the statute of limitations because he will have been charged within the appropriate time frame. The public has been told that there are no sealed indictments against him, but it is very likely the public would be told that even if there were sealed indictments, so that denial should be taken with a barrel of salt.
   
   
2. The fear that he could skate on, in effect, a technicality, could prompt any of the following actions: A U.S. Attorney could decide to disregard Dept. of Justice guidelines and file a sealed or unsealed indictment; Congress could change the statute; or the House could use this as an excuse to impeach, making the argument that it is literally the only option available to make certain that justice is served. The latter argument was exactly the one that Quigley was trying to set up with his questioning.
   
   
3. One of the exceptions to the statute of limitations is the continuing-violations doctrine, which says that the statute of limitations generally begins to toll with the last criminal act in a series. There is a pretty good argument that, every time Trump does something like call the Mueller investigation a "witch hunt," he continues the behavior that would form the basis of an obstruction case. If so, then the statute would not start to run until he shuts up about Mueller, James Comey, etc., which he's never going to do.
   
   
4. Finally, a prosecutor could argue that the statute should be waived in Trump's case. There's a debate among legal scholars as to the exact nature of the statute of limitations: is it a procedural rule that bars all prosecutions beyond the "expiration" date, or is it merely an affirmative defense? If it is the former, then that would be the end of the conversation, and Trump would skate. But if it is the latter, then he would essentially be arguing for a finding of not guilty because too much time had passed, and the court would be free to reject that defense. The "affirmative defense" argument is a minority interpretation of what "statute of limitations" means, but the notion does exist, and there is some case law to back it up. Someone making that argument might also bolster their case by pointing out that since Trump was protected by a Justice Department policy (and not an actual law), and that he was the head of the Justice Department, he was de facto acting as his own judge. Courts don't like problematic situations like that, and may be willing to interpret existing laws very liberally to make sure they can't exist.

Please note that this list only applies to crimes Trump may have committed as president, and not other things he might be indicted for, and where the statute of limitations may not save him. Anyhow, the upshot is that reelection is not necessarily a "Get Out of Jail Free" card for the President.

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I'm a dual U.S./Canadian citizen living in Canada, and have come to the conclusion that the U.S. is not salvageable. The founding fathers, for all of their alleged brilliance, actually put in place a system where two-party political gridlock is the norm. So my question is, is it time to acknowledge that the U.S. is a failed political experiment and move on? Countries come and go all the time. Try going to Czechoslovakia or the USSR today...they don't exist. Why should the U.S. be any different? The populace is intensely divided, there seems to be no common ground, and no way to avoid obstructionist politics for the foreseeable future. Is it time to dissolve the union? Oddly, for all that left and the right disagree on, they both seem to subscribe to the doctrine of American exceptionalism despite the fact that the U.S. fails to provide for the basic needs of their citizenry like every other developed nation in the world. Am I wrong to give up on the U.S.? A.R., Toronto, Canada

We can't disagree with the thrust of your observations and criticisms, but we think the dissolution of the U.S. is very, very unlikely.

It is true that some nations have changed governments, often multiple times, in the last century or so. France and Russia are on their third governments in the last 100 (or so) years, Germany their fourth, China and Japan their second, and so forth. However, those changes generally come as a result of extreme (and violent) pressure, sometimes from without (a World War, for example), or sometimes from within (a large-scale rebellion). Neither of those conditions seems likely to occur in the United States; it's just too large for all of the aggrieved persons to rise up in violent rebellion, and it's not likely to be torn asunder by a world war. Further, and consistent with the doctrine of American exceptionalism, Americans tend to be pretty well persuaded that their Constitution is something special, is a model for the rest of the world, and is to be saved at all costs.

Historical precedent also supports this interpretation. This is not the first time the U.S. has been bitterly divided, and has suffered from gridlock. In some cases, most obviously the Civil War, one faction has tried to rebel violently, and has been compelled to submit. In other cases, most obviously the Gilded Age, Americans were eventually able to agree that some changes needed to be made, and they made them. The political system hasn't collapsed or dissolved, it's merely evolved. It's worth noting that the European country most like the United States, namely the United Kingdom, has followed much the same model. They've had their flare-ups and their periods of limited progress, but their current government is the direct byproduct of nearly 1,000 years of evolution and change, and there is a direct line (admittedly, one with a few brief interruptions) from William the Conqueror to Boris Johnson. Both of whom, incidentally, are known as "the bastard," albeit for different reasons).

Another thing that makes a U.S. dissolution unlikely is that it is the foundation of the modern world, particularly in terms of economics, but also militarily. If the country were to collapse, all hell would break loose around the globe, resulting in conditions that could make the Great Depression look like a day at the park. So, there would be enormous global pressure for the U.S. to stay together.

Finally, there is geography. If the South had won the Civil War, the Confederacy might have become a viable country since it was geographically compact. If the U.S. were to break up into Bluestateland and Redstateland, both would consist of disconnected chunks. The former would include California, Illinois, and New York. The latter would include Idaho, Texas, and West Virginia. Getting goods from one piece to another would require driving through a hostile foreign country and possibly paying severe tariffs to get permission. It would never work.

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When did the leaders of the House and Senate determine that they could simply refuse to take up bills passed by the other body? I first became aware of this when John Boehner did it. Could a law be passed (in some unlikely future congress) that would require all measures to be debated and voted on? This appears to be part of the methodology for destroying our form of government. D.S., Palo Alto, CA

This has been going on for centuries, particularly anytime the Congress is divided, with one party controlling the House and the other controlling the Senate. The only thing that is new is the extremes to which Senate Majority Leader Mitch McConnell (R-KY) is willing to take it (we point the finger at him because his chamber is passing very few bills while rejecting many that the House sends them, meaning that there's no tit-for-tat going on, and the obstruction is currently only going in one direction).

Anyhow, as you probably know, there are rules on the books about how quickly the Senate must take up articles of impeachment voted upon by the House. In fact, there are rules that compel the Senate to give quick attention to a number of different sorts of measures. So, one might conclude from this that the rules could be changed to force consideration of all matters, right? Not so much. Well, actually, they could be changed...by the Senate. But, of course, the Senate could also change them back. Or, alternatively, they could use parliamentary tricks to get around their own rules. So, this isn't much of a solution.

Anything beyond a change to Senate rules (or House rules) would likely run contrary to Article I of the Constitution, which means that if permanent change is wanted, then we're probably talking a constitutional amendment. The problem there, beyond the enormous challenge in passing an amendment, is finding some sort of wording that says "both houses of Congress must consider legislation promptly," and yet allows for proper consideration of weighty matters that cannot be handled hastily, while leaving zero loopholes for sneaky people like McConnell to exploit. Not an easy task, to say the least.

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Could Microsoft decide to voluntarily keep up security patching through November 2020, for PR purposes? B.P., Salt Lake City, UT

This is a reference to our item on the voting machines in many states that are still running on the (now-ancient) Windows 7 operating system, which Microsoft will stop updating in January of next year. That means that if vulnerabilities are discovered, there will be no fixes beyond January 14, 2020.

Yes, Microsoft could voluntarily choose to do this, but they won't. Beyond the fact that it's no small expenditure of time, money, and energy to keep patching Windows 7, it would also set a bad precedent for Microsoft to send the message that when they set a drop-dead date, they don't really mean it. Apple, Microsoft, and others learned long ago that sometimes users need to take their medicine, and learn their lesson about the importance of upgrading.

If Microsoft were to provide this service, it would probably have to be under the radar, and with significant money kicked in by the various state governments. But if the state governments are going to spend money on election security, they might as well spend it on getting new, non-obsolete equipment.

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How many states have ever been a "swing state" and how has the grouping of swing states changed over time? Are there some states that have never been a swing state? Why wouldn't those "never swing" states support the National Popular Vote Interstate Compact (NPVIC)? E.W., Skaneateles, NY

Inasmuch as the definition of "swing state" is somewhat malleable, it's fair to say that nearly all of the states have been considered swing states at one time or another. Most of the western states were, from the 1940s to the 1970s. Most of the New England and mid-Atlantic states were, from the 1920s to the 1980s. Most of the Southern states were, from the 1950s to the 1980s. Most of the Midwest states are now. There are a few states that one could identify that have never been particularly swing-y (Utah, Hawaii, Kansas), but the list is pretty small. If you would like to see a visualization, the New York Times has a good one here.

The Electoral College, of course, was created to make certain that small states are not overlooked, but that's not how it's working today (if it ever did). Nobody campaigns in Rhode Island or North Dakota. The only states that get any serious attention (beyond fundraising trips) are the dozen or so whose outcomes are in doubt (Colorado, Florida, Iowa, Michigan, Minnesota, Ohio, Nevada, New Hampshire, North Carolina, Pennsylvania, Virginia, and Wisconsin, according to FiveThirtyEight's list). That would suggest that there are about 40 states who would benefit from signing on to the NPVIC. Most of the blue states among those 40 have already taken the plunge. Why haven't the red states? We have several theories:

• They still think that the Electoral College benefits small states
• They have aspirations of being a swing state one day
• They dislike change
• They prefer to do the opposite of what blue states do
• They recognize that the current system has tended to favor Republican candidates, and was directly responsible for the elections of George W. Bush and Donald Trump

It's probably some combination of these, with the last one figuring particularly heavily.

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