Judge Rules Against Trump

Judge Amit Mehta, who was considering Donald Trump's argument that Congress has no right to see his financial records, said last week that he would issue his ruling quickly. And Mehta's questions for Trump's lawyers certainly seemed to suggest that he found their argument to be weak. As it turns out, he did indeed rule quickly, and he definitely found the President's argument wanting, because the Judge declared on Monday that House Democrats are within their rights to subpoena the records.

Team Trump, of course, was not pleased by this result. Trump lawyer Jay Sekulow promised that an appeal would be filed promptly. And the President himself blasted the ruling as "ridiculous" and "totally wrong," while calling into question Mehta's legitimacy as a judge because he is an appointee of Barack Obama. It's probably a lucky thing that Mehta's last name is not Martínez.

As we know at this point in his presidency, the intensity of Trump's response to news like this is basically proportionate to how threatened he feels. And make no mistake, Monday's ruling was all sorts of bad news for the President, and he knows it. First, because of how fast everything unfolded. The initial request for injunction was filed on April 22, and now we have an adverse ruling less than a month later. If Team Trump's goal is to drag this out past the election (and it is), that is not promising. Beyond that, however, Trump is now 0-for-1 in cases dealing with Congressional oversight of him and his administration. And Monday wasn't just a loss, it was a huge loss. Mehta issued a 41-page opinion in which he shredded the argument being made by the President and his lawyers. That opinion is now available to judges who are considering similar cases, for them to review and to use as a potential template. That includes the D.C. Circuit Court of Appeals, and the Supreme Court, both of which may or may not agree to hear an appeal of Mehta's ruling. If they do agree, it's going to be hard to drag the process out for very long, given how carefully the Judge laid everything out.

Mehta's ruling wasn't Monday's only bad news on this front, however. Transcripts of Michael Cohen's closed-door testimony before the House Intelligence Committee were released, and they reveal that the former Trump fixer claimed that negotiations for Trump Tower Moscow were underway deep into 2016, well after it was clear that Trump would be the GOP nominee. Further, Cohen says he was ordered by Sekulow to lie to Congress about the timeline, and to claim negotiations ended in January 2016 (which he did, during his initial appearance last year).

It is possible that Cohen is lying, since he's not the most honest fellow in the world. However, there is relatively little motivation for him to do so, unless he's willing to risk an even longer stint in the joint in order to try to stick it to his former employer. It is also likely that he (and, therefore, Congress and the SDNY) have corroborating evidence of his claims. Assuming Cohen is being truthful, this story adds substantially to Team Trump's headaches. From Sekulow's perspective, he would be dead to rights on obstruction of justice and suborning perjury, and would need to begin making preparations to join Cohen for a lengthy stay at Club Fed, sans his bar card. For Trump himself, it would add to the already strong case that he encouraged obstruction, and it would put his kids in danger of perjury charges, since they—particularly Donald Jr.—repeated the apparently phony timeline during their testimony. When young Trump appears before the Senate Intelligence Committee next month, this question is sure to come up, and—again, assuming Cohen was being truthful—Don Jr. will have a very interesting choice to make.

In the end, it's pretty clear where this story is headed. One of these days, and that day is likely to come sooner rather than later, Trump's financial records and his tax returns are going to see the light of day. Even if he is personally willing to defy court orders, there are plenty of folks who may not be so eager to go to prison on his behalf, whether that's the commissioner of the IRS, or one of his underlings, or the pooh-bahs at Deutsche Bank, Mazars, etc. And we are undoubtedly going to learn, among other things, that Trump had financial relationships with Russian oligarchs (and thus with Vlad Putin) that extended well into the 2016 campaign (and maybe beyond). Exactly how extensive those relationships were is still unclear, but it's almost certainly enough that the constant contacts between Trump campaign officials and the Russians become deeply problematic, as do the last-minute pro-Russia changes in the GOP platform, the mysterious and very generous donations to the inaugural committee, and the "Vlad and I talk, but nobody gets to know what we discussed" summits. What the folks in Congress do once all the pieces of the puzzle are revealed is anyone's guess, but if we're trying to figure out what qualifies as "high crimes and misdemeanors," placing one's personal business with the Russians over the interests of the United States, and then lying repeatedly about it (including to Congress), would surely clear the bar. (Z)

White House Orders McGahn Not to Testify

Theoretically, former White House counsel Don McGahn was supposed to appear before Rep. Jerrold Nadler's (D-NY) House Judiciary Committee today. However, as part of its ongoing efforts to stymie oversight from the legislature, the administration has blocked McGahn from appearing, arguing that Congress cannot ever compel testimony from senior administration officials. "This action has been taken in order to ensure that future Presidents can effectively execute the responsibilities of the Office of the Presidency," declared White House Press Secretary Sarah Huckabee Sanders. Because if there's one thing that this administration cares about, it's safeguarding the integrity of the democracy for Donald Trump's successors.

As we have noted before, Team Trump is in a very weak position here. Executive privilege almost certainly doesn't apply here, and even if it does, the fact that there's no statutory basis for that authority means there's no penalty for "breaking" privilege, other than firing the guilty employee. The administration clearly knows this, which is why they have invented, out of whole cloth, an even broader version of privilege that would cover all senior White House employees under all circumstances. We're not lawyers, but this pretty clearly does not pass the smell test. And if you don't trust us, well, CNN's Elie Honig is a lawyer, and he describes the administration's legal reasoning as "nuts." Honig points out that the memo released by the White House on Monday (and prepared by William Barr's Dept. of Justice, naturally) cites no court rulings in support of its position. Needless to say, that's a pretty good sign that one's argument is somewhat less than airtight. Like, in the same way that Swiss cheese is less than airtight.

This is actually the second time McGahn has ignored Congress; last month he did not respond to Nadler's request for thousands of pages' worth of documents. The Representative did not hold McGahn in contempt then, but that is likely to change once he officially fails to show up today. Indeed, Nadler says he already has the paperwork ready. Though he is not saying so, the only way that he doesn't file it is if he decides to forgo the contempt order and request a writ of mandamus instead.

Interestingly, an adverse court order of whatever sort may be exactly what McGahn wants. There's no particular reason to think he's willing to fall on his sword for Trump, and he's given several indications he wants to spill his guts. At the moment, however, he is subject to an order from one branch of government, and to a request from another. A contempt order or a writ of mandamus would equalize things, and allow McGahn to argue that whatever he did, he was going to have to defy one of the two branches. Only he knows for sure what his plan is, but whatever it might be, it's not going to remain secret for much longer, because there is zero chance Nadler is going to just let this go. (Z)

Trump Slams Fox News

Fox News held its latest town hall with a Democrat over the weekend, this time welcoming Mayor Pete Buttigieg (D-South Bend). He took no prisoners, and blasted several Fox News personalities, including Tucker Carlson and Laura Ingraham. The Mayor also had some pointed words for and about Donald Trump, including describing the President's behavior as "grotesque."

Trump, of course, does not like to be criticized on national television. He particularly dislikes it when it happens on Fox, because he regards that as a personal betrayal. And so, he shared his irritation on Twitter:

Hard to believe that @FoxNews is wasting airtime on Mayor Pete, as Chris Wallace likes to call him. Fox is moving more and more to the losing (wrong) side in covering the Dems. They got dumped from the Democrats boring debates, and they just want in. They forgot the people.....

— Donald J. Trump (@realDonaldTrump) May 19, 2019

....who got them there. Chris Wallace said, “I actually think, whether you like his opinions or not, that Mayor Pete has a lot of substance...fascinating biography.” Gee, he never speaks well of me - I like Mike Wallace better...and Alfred E. Newman will never be President!

— Donald J. Trump (@realDonaldTrump) May 19, 2019

Alfred E. Neuman, particularly misspelled, may not be the freshest reference in town, since MAD magazine was at its height roughly 45 years ago. Maybe the next tweet will have a Jaws joke or something about Twiggy. Meanwhile, it did not take the Internet long to point out that if there's anyone who bears a resemblance to the reddish-orange-haired Neuman, it's probably not the brown-haired Buttigieg:

Meanwhile, Trump has demonstrated, yet again, that he either does not understand, or does not care about, how journalism is supposed to work. He was taken to task by reporters across the spectrum on Monday, including some current and former Fox News employees. Brit Hume, for example, tweeted this in response to Trump:

Say this for Buttigieg. He’s willing to be questioned by Chris Wallace, something you’ve barely done since you’ve been president. Oh, and covering candidates of both parties is part of the job of a news channel. https://t.co/D8yQE2kfYF

— Brit Hume (@brithume) May 20, 2019

The extent to which Fox is, or is not, a legitimate news outlet is open to debate. What is clear, however, is that they will continue to give coverage to Democratic candidates over the course of the next 18 months. What that means for their relationship with the President will be one of the big stories of this election cycle. (Z)

Amash Becomes a Pariah

This weekend, Rep. Justin Amash (R-MI) sent a series of tweets in which he opined that the Mueller report presented convincing evidence that Donald Trump committed obstruction of justice, and that the time has come for impeachment. The Representative—a co-founder of the House Freedom Caucus—is no centrist, and he became the first member of the red team to take this position. On Monday, he took to Twitter to double down, with a series of tweets that started thusly:

People who say there were no underlying crimes and therefore the president could not have intended to illegally obstruct the investigation—and therefore cannot be impeached—are resting their argument on several falsehoods:

— Justin Amash (@justinamash) May 20, 2019

That was followed by eight additional tweets, each of them pairs that laid out an argument being made by Trump supporters, followed by Amash's counterargument.

Not surprisingly, the response from pro-Trump forces has been swift. It begins with the President himself, who attacked Amash after the initial set of tweets this weekend, and then attacked him again after Monday's reprise. Speaking to reporters, Trump said, "He's been a loser for a long time. Rarely votes for Republicans, and personally I think he's not much." Amash's (former?) colleagues in the House Freedom Caucus voted to formally condemn him (which means at least 80% of them were in agreement). They did not kick him out though, which shows how much they are caught between a rock and a hard place. Whether he wants to remain a member of the group, however, is an open question. Meanwhile, the Representative officially drew a primary challenger on Monday, with pro-Trump State Rep. Jim Lower (R) throwing his hat into the ring. "Congressman Justin Amash's tweets yesterday calling for President Trump's impeachment show how out of touch he is with the truth and how out of touch he is with people he represents," said Lower.

Amash's alleged apostasy presents several problems for Trump. The first is that his words are a little hard to dismiss, since (unlike the Democrats) he has no political motivation to call out the president, and every reason to remain silent. The second, related to the first, is that Amash has given cover to other Republicans who might be inclined to speak out. We will see if any do, but if just a few more members of Congress follow Amash's lead, it could open the floodgates. And the third, which is less obvious than the other two, is that Amash might be setting himself up for a presidential run. Not as a Republican, but as a Libertarian (which is where the Representative's sympathies really lie, anyhow). Amash would have no expectation of winning, but he might reasonably expect to collect 3%-5% of the vote. If many of those votes came from conservatives who don't like Trump, but can't abide voting for a Democrat, that could be a real problem for the President in 2020. (Z)

Elizabeth Warren Did OK in West Virginia

Yesterday, we had an item about Sens. Elizabeth Warren (D-MA) and Bernie Sanders (I-VT) in which we observed that while they are both progressives, they aren't interchangeable, and they are counting on different constituencies. That item included this passage: "It is easy to imagine Sanders or [Joe] Biden going to West Virginia and telling unemployed coal miners that the system is rigged against them and being cheered. It is hard to imagine that happening to Warren." Quite a few readers e-mailed us to point out that, in fact, Warren did recently make a trip to West Virginia, and that she did get some cheers.

Fair enough, though it's worth noting that the subhead on Politico's version of that story was "The liberal firebrand draws nods and even a few cheers on a trip through rural West Virginia," which does not quite describe the raucous crowds that Sanders and Biden are able to draw in the Mountain State. Further, our specific point was that Warren may have issues with noncollege white men; the pictures of Warren's event show sizable numbers of black and/or female attendees, and a minority of white male attendees.

In any event, what this discussion really shines a light upon is one of the trickiest aspects of modern-day political analysis, namely populism. Populism, roughly defined, is the sense that "the people" are in a pitched battle with "the elites," and that something needs to be done to restore balance between the two. The traditional right-left political spectrum does not account well for populism, as there are right- and left-wing variants, depending on exactly how "the people" and "the elites" are defined. Any descriptor that can quite correctly be applied to William Jennings Bryan, Huey Long, Adolf Hitler, Hugo Chávez, Silvio Berlusconi, and Vladimir Putin is clearly a tricky concept.

Not every U.S. presidential election involves populist candidates, but this year we have at least four major ones whose program has populist elements, namely Sanders, Warren, Biden, and Donald Trump. Exactly how interchangeable these folks are in the eyes of "the people" who support them is very hard to gauge, and will be a big part of the story in 2020. For example, if Warren drops out, will her voters be open to voting for Biden? Could Sanders, if he is the Democratic nominee, steal a sizable number of votes from Trump? These are great questions, and not terribly easy to poll. That said, we do stand behind our initial assertion, namely that there is only some overlap between Warren's base and Sanders' base, and it's probably not as much as people might think. (Z)

Pollsters Fret Over 2020

Speaking of items from yesterday, we had a fairly lengthy answer to a reader's question about modern polling. The executive summary: Things aren't quite as bad as they seem, but there are some serious issues creeping into the process, especially due to the rise of cell phones. As if on cue, Politico's Steven Shepard had a piece on Monday that addresses this very issue, reporting that pollsters are scared witless that they will not have "cracked" the problem of 21st-century polling in time for the 2020 election.

To a large extent, Shepard raises the same issues we did. It's harder to reach people on cell phones, which means making many more calls, and thus incurring much greater costs (since those calls, whether they connect or not, have to be placed by a human being). These costs come as news budgets are being slashed, which means an immovable object (much higher costs) is meeting up against an irresistible force (much less money to spend). And all of this as polling "fails" in Australia, the U.K., etc., have the pollsters with their backs up against the wall. If American pollsters blow 2020, which figures to have greater voter engagement than any presidential election in recent memory, their reputations may never rebound. They are trying desperately to come up with alternative tools, like web surveys and various sorts of tracking polls, but there may not be time to work out the kinks before November 3, 2020, is upon us.

Needless to say, nobody knows at this point whether the pollsters will get their act together in 2020 or not. However, what we can do is speculate about a related question: Will this uncertainty favor one party over another? This is highly speculative, but our guess is that it will, and that the beneficiary will be...the Democrats. First of all, Republicans have been questioning the validity of polls for at least three or four election cycles (remember Dean Chambers' Unskewedpolls.com in 2012?). In theory, polling uncertainty should be "same old, same old" for them. The Democrats, on the other hand, are the party that just lost a presidential election that the polls seemingly told them was in the bag. It's very possible that, even if the polls predict a victory for the Democrat next year, a lot of "Ahhh, I don't need to get out and vote" folks from 2016 will be converted into "You can never be sure; better safe than sorry" folks in 2020. And since the Democrats are the larger party, higher turnout generally works to their favor. Again, though, this is just an educated guess. (Z)

Austrian Government Falls

Stop us if you have heard this before, but the Russians may have decided there was an opportunity to create a little chaos in another country, using a right-wing politician endowed with questionable ethical standards as their access point. So, they (or someone masquerading as them) found a pretty young Russian woman to make overtures to said politician, and he was caught red-handed trying to close the deal. The resulting scandal has enmeshed his nation's government, and threatens to bring his whole party down.

The country we are talking about, of course, is Austria. The politician is Heinz-Christian Strache, who tried to, in effect, convey ownership of the country's largest newspaper in exchange for generous Russian contributions to his campaign. Strache was caught on video, so he can't deny his culpability. The folks in Austria are so angry about this that Chancellor Sebastian Kurz had to dissolve his government and call a snap election.

Generally speaking, we don't say too much about foreign politics here unless the story has a direct relevance to American politics, but this one clearly does. It's actually not certain that the Russians were behind the whole scheme; it may have been them, or it may have been a put-on by someone from Germany or Israel who was looking to embarrass Strache and his party. Either way, however, Strache believed that such a deal was plausible, and might actually be proffered by Russian interests. He surely had some basis for that belief.

This is not to say that Team Trump made the same kind of deal Strache tried to make, even though (per the first item above), it's pretty clear that something in the same ballpark took place. At the very least, the Austria scandal (and yes, they are already calling it Strachegate) makes clear that the kind of questions that Jerrold Nadler and House Oversight Committee Chair Elijah Cummings (D-MD) and House Financial Services Committee Chair Maxine Waters (D-CA) are asking are entirely reasonable, regardless of what the non-Justin Amash Republicans might say. (Z)

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