Judge Schedules Hearing on Trump's Financial Records Case for Tomorrow

House Oversight Committee Chairman Elijah Cummings (D-MD) has subpoenaed Donald Trump's financial records from his accounting firm, Mazars. Trump has sued to block the subpoena. The judge assigned to the case, Amit Mehta, an appointee of Barack Obama, clearly understands the significance of the case and has expedited it. He scheduled the first hearing for tomorrow.

During his testimony before Cummings' committee, Michael Cohen said that Trump often inflated his net worth when that suited him and deflated it when that suited him. Giving false numbers to banks, insurance companies, and property assessors constitutes financial fraud, and Cummings wants to know if Trump is indeed guilty of financial crimes. Getting the records from Mazars would be a good start. Then he can subpoena other records and compare them to one another. If there are major discrepancies, he might have a case for fraud. Whether crimes committed by a president before he took office constitute grounds for impeachment is a good question. But ongoing crimes that started before a president took office and continued afterward probably are.

Maxine Waters (D-CA), chairwoman of the House Banking Committee, is also working on the financial fraud investigation. She has issued subpoenas to Deutsche Bank, Capitol One Bank, and other banks. The two chairs have agreed to work together. (V)

Democrats May Rethink Impeaching Trump

History gives House Democrats a reason to rethink their current inclination to not impeach Donald Trump. It's not about the two previous impeachments, those of Andrew Johnson and Bill Clinton, neither of whom was convicted. Nor is it about a dozen current GOP senators coming out in favor of it, which certainly hasn't happened. It has to do with the subpoenas House committee chairs have fired off at the White House.

In the past, judges have repeatedly ruled that Congress has a strong case for getting sensitive documents when they are needed for some basic congressional function, rather than when Congress is simply on a fishing expedition. If the House Judiciary Committee were to open hearings specifically aimed at determining whether it should draft articles of impeachment for Donald Trump, and to claim that it needed certain documents to see if Trump broke the law and thus should be impeached, the chances of judges (and possibly the Supreme Court) ordering the documents to be turned over would increase greatly. After seeing the documents, the Committee could decide to "hold off" on impeachment for the moment and then revisit it later.

Legal experts note that in 1974, the D.C. Circuit Court of Appeals ruled that the House Judiciary Committee had a stronger claim on Richard Nixon's tapes because it needed them for official House business, namely deciding whether or not to impeach Nixon. The Senate had no such claim. In 1984, the Atlanta-based 11th Circuit Court ruled that secret grand jury material could be released to the Judiciary Committee, which needed it in connection with the impeachment of a federal district court judge, Alcee Hastings.

Even Republicans agree with this theory. The ranking member of the Judiciary Committee, Doug Collins (R-GA), said: "If the chairman truly wanted to get at this information, then he can go to what I believe many in their heart desire is, is open the impeachment inquiry." Rep. Steve Chabot (R-OH) said: "I think if you actually get into impeachment, it does open up access to more things." Very likely the Republicans are just goading Chairman Jerrold Nadler (D-NY) to formally open impeachment hearings because they believe it will fire up Trump's base and help him in 2020. But it's a gamble because the documents Nadler and other Democrats want (including Trump's tax returns) might have explosive information in them.

In short, the Democrats have to weigh the political implications of taking the first baby steps toward impeachment against the chances that they will get the documents—including Trump's tax returns—they want without instigating impeachment proceedings. (V)

Are We in a Constitutional Crisis?

Some Democrats (but so far no Republicans) are saying that since the Trump administration has basically said it will not accept any oversight from Congress, we are in a constitutional crisis. To get a better idea of whether that is true, Slate's Dahlia Lithwick asked a number of constitutional lawyers the question. Briefly summarized, here are their reactions.

We are not in a constitutional crisis:

• Jed Shugerman: It would happen when either party bypasses or ignores the courts
• Walter Dellinger: We will be in a constitutional crisis when a court order is defied
• Carolyn Shapiro: We are on the brink, what with voter suppression, gerrymandering, and contempt
• Sheldon Whitehouse: That happens when a Trump-appointed judge fails to uphold Congress' oversight power

We are indeed in a constitutional crisis:

• Sherrilyn Ifill: Barring a congressional committee from fulfilling its oversight responsibility is over the line
• Neal Katyal: Having a leader who has nothing but contempt for the law does it
• Dawn Johnsen: We are like the proverbial frog who isn't jumping out of the increasingly boiling water
• Laurence Tribe: Our constitutional norms are in meltdown

Wrong question

• Caroline Fredrickson: If we wait for some red line, it will be too late
• Ian Bassin: Modern autocrats don't send tanks into the town square; they slowly chip away at the constitutional order

Several of the experts made references to metaphorical frogs in hypothetical pots. In Lithwick's words: "If you're waiting for the lawyers to tell you that it smells a lot like freshly steamed amphibian, you're doing it wrong." (V)

Biden Has a Huge Lead in Florida

Joe Biden has an enormous lead among Florida Democrats. A new poll has Biden at 39%, Sen. Bernie Sanders (I-VT) at 16%, and everyone else in the low single digits. Biden is wildly popular with old white voters and with black voters of all ages. Among the black voters, for example, 85% have a positive view of him, only 7% have an unfavorable view, and 46% are planning to vote for him despite the presence of Sens. Kamala Harris (D-CA) and Cory Booker (D-NJ) in the race. The elderly and the black voters are two major voting blocs in the Sunshine State.

Florida's primary is March 17, 2020, two weeks after Super Tuesday. If Biden can stay in contention until then, for example by coming in first or second in all the early states and doing reasonably well on Super Tuesday, then a huge win in Florida, the third most populous state, could be a knockout blow and make him the presumptive nominee. Of course, if he blows his lead in Florida, that could be a fatal body blow since expectations now are that he will sweep the state. (V)

Sanders and Ocasio-Cortez Team Up

Rep. Alexandria Ocasio-Cortez (D-NY) has become one of the best known Democrats in the country a mere 4 months after taking her seat in the House. She co-designed the Green New Deal with Sen. Ed Markey (D-MA), but that is more of a blueprint than a bill that the House could vote on. Now Ocasio-Cortez has written an actual bill that she wants the House to pass. It would cap credit card interest at 15%, far below what many credit cards are now charging.

The bill itself is not so interesting. Almost any Democrat could write such a bill. What is interesting is that she is working with Bernie Sanders on it. This is the first time the two Democratic Socialists have worked together on something concrete. From Ocasio-Cortez's point of view, having a senator work with her makes the bill look more serious, even though its chances of passing the Senate are slight. From Sanders' point of view, working with a young congresswoman who is hugely popular on the left is likely to help his primary chances, especially among young voters who prefer the Democratic Socialists' ideology but also think that Joe Biden might be a stronger general-election candidate. In any case, it is rare that a long-time politician sees working with a first-term representative as a big catch, but that seems to be the case here. But don't run out and start printing Sanders/AOC 2020 bumper stickers yet. The young representative will be 31 on Inauguration Day, so make that Sanders/AOC 2024, when the Vermont Senator will be 84 years young. (V)

Giuliani: Investigate Biden

No, not that Biden. His son. In an attempt to stay in the news now that his role as Donald Trump's TV lawyer during the Mueller investigation is drawing to a close, Rudy Giuliani has found a new drum to beat. He is going to attack Joe Biden's son, Hunter Biden. It is a longstanding modus operandi for the Republicans to find one of your opponent's (possibly peripheral) weaknesses and make the whole campaign about it (think: Hillary's e-mail server, Barack Obama's "57 states" remark, John Kerry and swiftboats, etc.). Giuliani thinks he is onto something by going after Hunter Biden and shopping the story to journalists.

Here's what actually happened: In 2016, then-vice president Joe Biden was pressuring the Ukrainian government to fire its top prosecutor, Viktor Shokin, who was widely seen as corrupt. Among other things, the prosecutor was investigating a Ukrainian natural gas company, Burisma, whose oligarch owner, Mykola Zlochevsky, was thought to have embezzled $24 million from the company. One of Burisma's board members was Hunter Biden. Eventually Shokin was ousted and the new prosecutor dropped the case. Conclusion: Joe Biden used his influence to help a corrupt company his son was associated with.

Except it's not true, although that won't stop Giuliani. In reality, the case against Burisma had been dormant for two years before Joe Biden got interested in fighting corruption in Ukraine. The reason was that Shokin didn't have enough evidence to go to court. The new prosecutor didn't either, so he dropped the case entirely. To a large extent, that was a formality because Zlochevsky had covered his tracks well and there wasn't enough evidence to charge him with a crime.

Also of note, many European leaders and the International Monetary Fund also wanted to get rid of Shokin and none of them had any family ties to Burisma. With so much opposition to the corrupt Shokin, Biden's decision to join the chorus was very likely motivated by a genuine desire for transparency in Ukraine, rather than a desire to bail his son out. Furthermore, it wasn't even necessary, because the case had already been cold for two years before Biden piped up. But count on Giuliani and Donald Trump to make Biden's opposition to Shokin a Big Deal and to try to make the campaign about it if they can. (V)

Conservative Filmmaker Enters Democratic Primary

A conservative Republican filmmaker, Ami Horowitz, has entered the Democratic primary with the intention of getting on stage in the June debate and telling all the other candidates that they are insane. His plan is to hoist the Democrats by their own petard. In order to be fair to everyone, even the most marginal candidates (yes, we are looking at you, Marianne Williamson), DNC chairman Tom Perez said that anyone getting 65,000 donors or polling at 1% can be on stage. So Horowitz sent out an email asking for people to donate $1 to his presidential campaign, in hopes of getting 65,000 donors and thus making the cut. He might well make it.

However, Perez has a potential backup plan. If more than 20 candidates qualify, then only candidates who meet both criteria will get on stage. It is very unlikely that Horowitz will pass both tests, so the Democrats are probably safe. But this incident goes to show that when a party sets specific criteria for being considered a legitimate candidate, it has to consider the possibility of the other party trying to gum up the works. There is even an (unprintable) name for this kind of activity. (V)

Democrats are Passing Up Winnable Races in Droves

What do these people have in common: Stacey Abrams, Gov. Steve Bullock (D-MT), Rep. Joaquin Castro (D-TX), John Hickenlooper, Beto O'Rourke, Josh Stein, and Tom Vilsack? All of them have a decent shot at becoming a U.S. senator and none of them are even trying. Needless to say, this is bad news for the Democratic Party, which will have an uphill climb to capture the Senate, even with good candidates like these, and a much steeper hill with second-tier candidates. Why have all these potential candidates passed on races they have a chance of winning?

FiveThirtyEight has analyzed the situation and come to the hypothesis that voting has become so polarized that it is really tough for a Democrat to knock off a sitting Republican senator in a red state, which is what all of these people except Hickenlooper would have to do. A key piece of evidence is that in 2016, for the very first time, every Senate race was won by the party that took the presidential vote in the state. In the states that Hillary Clinton won, no Republican won a Senate election. In Trump states, no Democrat won a Senate election. More and more, people have abandoned the old "I vote for the best candidate regardless of party" idea and just vote a straight (D) or (R) ticket. So if you are a Democrat in a state Donald Trump won in 2016, you might think very, very carefully about running for the Senate in 2020, even against a weak opponent.

Timing is also an issue, but it cuts both ways. In a presidential election year, Democratic turnout is higher than in off years. This is a reason for the above crew to go for it now. On the other hand, Donald Trump's supporters are so zealous that they may also turn out in larger numbers in elections where he is on the ballot than in, say, the 2022 midterms. Also, the president's party generally takes a hit in the midterms, in part because presidents always over promise and their supporters are correspondingly disappointed when they don't get what they had been expecting, so they may not vote.

Also a factor here is that Bullock, Hickenlooper, and O'Rourke seem to have their eyes on the big prize, however unlikely that might be. The thought of being in the Oval Office seems to mesmerize politicians to the extent it robs them of their sanity. So instead of going for a Senate seat, in which they might have a 30-50% chance, they go for the big prize, where they might have a 1% chance. Of course, there is still plenty of time for them to change their minds once they discover their White House dreams are just fantasies.

Stacey Abrams is a special case. She had a talk with Joe Biden and it was followed by speculation that he discussed putting her on the ticket. From Biden's point of view, having a charismatic black woman as his running mate makes a lot of sense. The Democratic wing of the Democratic Party is lukewarm on Biden, but would fall head over heels in love with Abrams. If he picked her, he would probably tell her to spend the entire campaign in North Carolina, Georgia, and Florida, three states where a couple of extra points could make the difference between winning and losing. From Abrams' point of view, being the veep in an administration in which the top dog starts out at age 78 has to be an attractive deal, even if the actuarial tables for a 78-year-old male give him another 9.4 years. (V)

House and Senate Republicans Are Fighting about a Black Man

They both want him. John James, a military veteran and businessman, ran for the Senate against Sen. Debbie Stabenow (D-MI) last year and was beaten 52% to 46%. But in the modern world of politics, losing is the new winning (see: O'Rourke, Beto and Abrams, Stacey). Senate Republicans want James to go after Sen. Gary Peters (D-MI) in 2020.

On the other hand, House Republicans are arguing that he has demonstrated that he can't win statewide, so why not lower the bar a bit. They want him to go up against one-term congresswoman Haley Stevens (D-MI), who won the open seat left behind by the retirement of Dave Trott (R). The district, in the Detroit suburbs, is R+4, so James would probably have a better shot there. But if he does that, the GOP doesn't have a clear choice for someone to oppose Peters.

Interestingly enough, some parts of Trumpworld do not want James to run for the Senate due to the fear that he would rev up the Democrats to go vote and would make it harder for Trump to win the state again. In this view, it is better to concede the Senate seat and think about the big picture.

One of the reasons both chambers want James to try again, despite his loss last year, is that he is a prolific fundraiser. He has $500,000 left in his campaign account as of March 31, 2019, so he would start either race with a big head start. On the other hand, Peters has $3 million in his bank account, another reason for James to go after Stevens instead of Peters.

However, James is only 37, so he could skip both races and wait until 2022 to run for governor against Gov. Gretchen Whitmer (D-MI). In theory, he has plenty of time to decide, but if he makes a choice now for one of the 2020 races, he would probably clear the field. If he takes too long to decide, other Republicans may announce for one or both of the 2020 races, in which case he will have a primary on his hands. (V)

Monday Q&A

We tend to get a lot of questions about the questionable behavior of the Trump administration on any day ending in 'y.'

Why do pundits waste even five seconds thinking about using a vice presidential nominee to appeal to a niche audience and to balance out the presidential nominee from any demographic, ideological, or geographic standpoint? Haven't we learned anything from vice presidents Tim Kaine, Paul Ryan, Sarah Palin, and John Edwards that this theory is garbage? Joe Biden, Dick Cheney, and even Mike Pence actually brought skills and experience to the table, which to me is worth far more than any identity politics on either end. M.K., Livingston, NJ

We agree with the general thrust of your question: That vice presidents should be chosen based on fitness and functionality, and not because they appeal to some element of the base. That said, we are going to take a few exceptions to your question.

First, it's not the pundits that have a problem here, it's the politicians. The reason that pundits speculate about "balance" candidates is because sometimes politicians choose "balance" candidates.

Second, the line you draw is a little brighter and redder than it really should be. Paul Ryan, for example, was chosen for both "balance" and also "utility," in that he was young and Midwestern (balance), but also he had experience with Congress, which Mitt Romney did not (utility). The same is true of Mike Pence, who was chosen because he had experience with governance and Donald Trump did not (utility), but also because he appealed to Midwesterners and evangelicals (balance).

Third, maybe it does matter sometimes. The most famous example is the 1960 election, in which John F. Kennedy chose Lyndon Johnson as his running mate, despite Kennedy's well known contempt for the boorish, uncultured Johnson. Kennedy knew he had to win Texas or it was curtains. He surmised that with Johnson on the ticket, he might be able to do it. Sure enough, Kennedy/Johnson won Texas 51% to 49%. Would Kennedy, with Hubert Humphrey (MN) or Wayne Morse (OR) as veep, have lost the election? Nobody knows, but it is plausible.

---

I understand that Donald Trump's initial imposition of tariffs on steel and aluminum were based on (arguably bogus) national security concerns. What is the legal basis for Trump's newest round of tariffs on Chinese products? I was under the impression that absent emergent concerns, Congress set tariffs. J.K., Falls Church, VA

Donald Trump is largely relying on the national security argument that he made in the first place, although in the case of the latest round of tariffs, he has also invoked the Trade Act of 1974, which (may) give him the authority to retaliate against the theft of intellectual property. So, that's the official explanation.

The real explanation, of course, is that Trump now knows the Senate will not push back against him, regardless of how much he assumes powers that are not really his.

If you like satire, this was the exact subject of Saturday Night Live's opening sketch this week:

---

The White House has advanced the theory that it should generally be immune from Congressional oversight by virtue of the executive and legislative branches being "coequal branches of government." But would this point of view, applied in reverse, not upend the long-standing precedent that the Justice Department may investigate and prosecute sitting members of Congress or Congressional staffers? For instance, here in San Diego, Rep. Duncan Hunter (R-CA) who is currently under indictment. K.K., San Diego, CA

This is a variant of the Unitary Executive Theory, which a lot of Republicans are fans of these days, though they weren't talking much about it, say, five years ago. Our staff researchers are trying to figure out why.

Anyhow, this argument is contrary to the intentions of the men who wrote the Constitution. They may have meant the branches of government to be equal, although their words and actions suggest they actually intended the legislative branch to be a little more equal than the others (it is described in Art. I, not Art. II). And, in any event, they absolutely intended the various branches to keep an eye on one another. That is why anything the federal government does requires the involvement of at least two branches. Laws have to be passed by the Congress, for example, and then signed by the president. The president picks SCOTUS justices, who have to be approved by the Congress. If the president is to be impeached (a form of oversight baked right into the Constitution), the chief justice presides.

As you correctly point out, taking this theory to its logical conclusion would strip the executive branch of powers it wants to keep and has no intention of giving up. Consequently, the people who are saying this are really just finding a pleasant way to say they want the president to be less presidential and more dictatorial.

---

It now appears the battles between the House and Trump over acquiring his tax returns, and other documents, is headed to the courts. We know such court battles can go on for months or years. Is there not some way these matters can be expedited? Given the details these documents might contain, potentially very important information for voters to know, is there not a way to move the process forward before the next election. If these legal matters will ultimately end up in the Supreme Court, why can't they get there sooner? M.L.B., El Dorado, KS

These things can be expedited, and for the very reason you lay out. In fact, we already have a case of a judge doing this (see the first item above).

The Watergate situation is probably the closest analog we have to work with. The infamous tapes were subpoenaed in April 1974. Nixon dragged his feet in various ways, but lost his case at the district level on May 31 of that year. He appealed to the Supreme Court, which heard oral arguments on July 8, and issued its ruling just three weeks later, on July 24. In short, the most famous and consequential "executive privilege" case in American history was resolved in roughly three months.

The upshot is this: There's a very good chance that Team Trump is not buying nearly as much time for themselves as they hope they are, particularly since the issues they are pushing back on are generally very clear and well established areas of law. For example, the law that says that House Ways and Means Chair Richard Neal (D-MA) can have Donald Trump's tax returns is unambiguous, and affords executive branch employees no leeway and no right to exercise their own judgment. One way or another, Neal is going to go to a judge and ask for a court order (very possibly a writ of mandamus) compelling Secretary of the Treasury Steve Mnuchin and IRS Commissioner Charles Rettig to hand them over. This is a fairly simple proceeding, and there aren't complicated legal questions that Team Trump can claim they need months to research. We would be shocked if this is not resolved by the end of the year, and there's an outside chance it's resolved by the time summer rolls around.

---

Isn't the possibility of something nefarious being exposed from Trump's tax returns most likely a red herring? If the IRS has been auditing each of his returns for many years, they presumably would have found something if there was anything to find, and in that case, wouldn't we already know about it? N.S., Milwaukee, WI

We hate to be disagreeable, but we would say that pretty much every assumption you make here is incorrect.

To start, there are many things that might come up in the context of an IRS audit that would be problematic, but that would not become public information. Further, thanks to the work done by the New York Times, we already know that Trump did engage in shenanigans on his tax returns and that the IRS did not catch all (or most) of it. So, there is no reason to assume that anything illegal on the returns would definitely have been discovered and would definitely be public knowledge now.

More importantly, however, is that much of the information that could be damaging to Trump would not be caught by even a perfect audit, for at least two reasons. The first is that there may be stuff in there that is not illegal, but is embarrassing to him and damaging to his public image. Most obviously, if he's not a billionaire, and not even close, that would undermine essentially the whole basis on which he ran for president.

The second reason (and this is where the President is most likely to end up in hot water) is that there may be things on the tax returns that are only problematic when given context that was not available to the IRS, or is not within their purview to act upon. For example, it's not illegal to borrow money from Russians, and no audit would punish that. But it would be deeply problematic if we learned that Trump had done such borrowing, given his denials and his interactions with Vlad Putin. Similarly, the IRS largely has no way to compare the claims being made in Trump's taxes to the claims being made when he applies for loans from, say, Deutsche Bank. But if Elijah Cummings ends up with both sets of numbers, and they don't come close to adding up, then he will have strong evidence of fraud (see above).

As we said last week, we are fans of Occam's Razor around here. And given how hard Trump has worked to keep the returns a secret, and how much risk he and others have assumed in order to do so, the simplest explanation is that there is something pretty problematic in there.

---

When polls say America is divided about whether the president should be impeached, do people understand that impeachment is the process, and not the same thing as removal? And, on a related note, would impeachment hearings prevent all the stonewalling that is going on? A.A., Kingwood, TX

"Impeachment" has become shorthand for "impeachment and conviction." Since it would be an unusual kind of voter who wants Trump to be impeached, but not convicted, it is fair to interpret "I would like to see Trump impeached" as meaning "I would like to see Trump impeached, convicted, and removed from office." Whether most voters actually grasp the distinction between impeachment and conviction is hard to say, but our guess—based on anecdotal evidence—is that the majority do not. We would also further guess—again, based on anecdotal evidence—that the majority think that Richard Nixon was impeached, although he was not, of course.

Theoretically, there might be some voters who want extensive hearings in the House about alleged crimes Trump has committed, thus educating the public about them, followed by an impeachment vote, but would prefer that only 66 senators vote for his conviction. This situation would lead to a very damaged Trump running for president in 2020. Some Democratic voters who like to play 3D chess might reason that having a Democrat run against a very damaged Trump would be a better deal than having the GOP candidate be an undamaged Mike Pence. Similarly, there may theoretically be some Republican voters who think that impeaching Trump and failing will backfire on the Democrats, and so who want an impeachment but not a conviction. That said, people in these two groups are surely a small minority.

There is no reason to think that impeachment hearings will reduce the amount of stonewalling. However, as we note above, impeachment proceedings could make it easier for the Democrats to break down the stone wall by demanding that certain documents become part of the case, with Chief Justice John Roberts agreeing.

---

Could you please comment on the accuracy and current state of polling, especially in the U.S., specifically with regard to cell phones? I hear that pollsters are not allowed to or do not call cell phone owners, which makes me wonder how accurate they can possibly be. I'm 60+ years old and I don't have a landline, and almost no one I know does. I know it's even worse among younger folks. B.B., Portland, OR

First of all, it is not illegal for pollsters to call cell phones. If Democratic pollster Celinda Lake picks up her phone and hits 10 random digits on it and asks whomever answers a bunch of questions, it is perfectly legal. What violates federal law is having a computer dial the number. So pollsters can definitely call people at random if a human being punches in the number. Needless to say, this slows down the process considerably and makes it much more expensive.

Consequently, this is a real problem for pollsters going forward. The dialing issue aside, it is hard to get people to pick up when they see a number they do not recognize. Further, there is no particular reason to assume that someone who has, say, a 212 area code (Manhattan) actually lives in New York City. People often have area codes from other, often faraway, places. Most commonly, this is because they used to live in those places, but sometimes it's for other reasons, like making a phone call local for relatives with landlines.

Since pollsters' methods are their intellectual property, they don't necessarily share too much with the rest of us, so it's hard to know exactly how they are dealing with this problem. One possibility is to use the Internet for polling, though that carries with it a bunch of other challenges. Another is to shift toward tracking polls, where they talk to the same 100 or 200 people every week, and use them to track changes in the electorate. The USC Dornsife/L.A. Times poll, which was the one most bullish about Donald Trump's potential victory (and was, of course, correct about that), is a tracking poll.

---

If you have a question about politics, civics, history, etc. you would like us to answer, click here for submission instructions and previous Q & A's. If you spot any typos or other errors on the site that we should fix, please let us know at corrections@electoral-vote.com.

Email a link to a friend or share:

---The Votemaster and Zenger