Trump Storms Out of Meeting with Pelosi and Schumer

Donald Trump was in a stormy mood yesterday, and it didn't involve Ms. Daniels. Senate Minority Leader Chuck Schumer (D-NY) and Speaker Nancy Pelosi (D-CA) went to the White House to see if they could make a deal with the President on infrastructure. It didn't happen. Trump arrived late to the meeting and immediately began fuming that the Democrats were after him, accusing them of "horrible, horrible things." He said he could not work with the Democrats unless they stopped investigating him, and also passed his new North American trade deal. He ranted for several minutes, not allowing them to say a word. Then he stormed out of the meeting. Schumer said that Trump had no intention of talking about infrastructure and the whole setup was a planned stunt. Senate Majority Whip John Thune (R-SD) said of Trump's approach: "I'm not sure I would use the same tactics." Thune obviously understands that Pelosi has some real power and won't be intimidated. Despite losing the game of shutdown chicken earlier this year, Trump may not yet fully recognize that she doesn't give in to bullies.

After the meeting, Trump talked to reporters in the Rose Garden and told them: "I don't do cover-ups." This was a reaction to Pelosi earlier in the day telling her caucus that he was "engaged in a cover-up." After Trump made his Rose Garden remarks, Schumer and Pelosi said they were taken aback by Trump's behavior. Schumer said: "To watch what happened in the White House would make your jaw drop." Pelosi, a devout Catholic, said: "In any event, I pray for the president of the United States, and I pray for the United States of America."

While she is at it, Pelosi might also have asked God to tell the members of her caucus to kindly shut up about impeachment. She knows there is zero chance of getting even a majority of the Senate to vote for conviction, let alone two-thirds. She also knows that having the House impeach Trump and having a majority of the Senate find him not guilty would just strengthen his hand by letting him say: "They put me on trial and I was found not guilty." So far, all of her committee chairs, except Maxine Waters (D-CA), are on the same page. It's the younger members who are on the impeachment bandwagon.

The one thing the Democrats could (and probably will) do is pass a resolution asking the Judiciary Committee to consider impeachment proceedings. That might help in the court fights since it would give a clear legislative reason for demanding various documents, namely, to determine if impeachment is warranted. (V)

Judge Allows Deutsche Bank Subpoena to Stand

Donald Trump's plan to block congressional subpoenas by going to court is not working as he hoped. Earlier this week, Judge Amit Mehta ruled that Trump can't block the House from subpoenaing his financial records from his accountants. Yesterday, he had another setback, as Judge Edgardo Ramos, an Obama appointee in New York, refused to issue a preliminary injunction preventing Deutsche Bank and Capital One from obeying a subpoena from the House Financial Services Committee that requested years of financial information about Trump. That would include his tax returns, which Deutsche Bank definitely has copies of. Trump argued that the subpoena has no lawful purpose, but the Judge didn't buy it, and said that Congress does other things besides passing laws. It also looks into corruption, waste, and inefficiency in federal agencies, he observed.

The case is hardly over, but it's not a good sign for Trump that two judges seem to be willing to let Congress look into his finances. Trump has frequently stated that looking into his finances is a red line that no one may cross. It looks like there is every chance it will be crossed, and soon. (V)

New York State Is about to Become a Problem for Trump

The New York State Assembly has just passed a bill that will allow state prosecutors to charge people with crimes, even though they have already received a presidential pardon for similar federal crimes. The bill had already passed the state Senate, and Gov. Andrew Cuomo (D-NY) has said he will sign it. As of this moment, New York's double jeopardy law prevents anyone from being tried in New York for a crime based on the same facts as a previous federal indictment. When this bill becomes law, family and associates of Donald Trump won't be home free even if he grants them pardons. All the pardons may end up doing is changing a potential stay in federal prison with a potential stay in state prison.

But there is more. The state assembly yesterday passed a bill 84 to 53 that would make any state resident's tax returns (and for tax purposes, Trump is a New York resident) available to the same three chairs on the tax-writing committees as the federal law. As with the double jeopardy bill, this one had already passed the state Senate, and Cuomo has already said he will sign the bill. That means if House Ways and Means Chairman Richard Neal (D-MA) asks for Trump's New York tax returns, New York state will provide them, unless Trump sues. However, that case would probably be tried in the state courts. It is conceivable that once the state courts are done, Trump will appeal to the U.S. Supreme Court, but there is a chance it won't take the case, since it is all about state law, not federal law. So far, Neal has not indicated that he intends to use the new law, since his focus is on the federal returns, which contain more information.

Yet another state-level problem that is brewing for Trump is the bills under consideration in multiple states to require candidates for high office to release many years of tax returns as a requirement for getting on the ballot. Here, too, the Supreme Court may prefer to stay out of this particular wasp's nest, concluding that ballot access is up to the states. After all, there are over five dozen political parties in the U.S. and it is the states that determine the requirements for being listed on the ballot, not the feds. Since most of them are not on the ballot, clearly states have some authority to pass laws about ballot access. Whether requiring candidates to release tax returns is permitted is uncharted territory, however. (V)

Schiff and Department of Justice Reach Agreement

House Intelligence Committee Chairman Adam Schiff (D-CA) yesterday canceled a meeting in which he was planning to take action against AG William Barr for not complying with the Committee's subpoena for information about the Mueller Report. The action could have been a citation for contempt of Congress, for example. The reason for not holding the meeting is an agreement between Schiff and the Justice Dept. to turn over 12 sets of documents Schiff wants. While this is by no means full compliance with the subpoena, it is enough of a start that Schiff is willing to hold off on finding Barr in contempt of Congress for the moment. To some extent, this is a test of whether the administration is willing to negotiate with Congress in good faith.

However, Schiff said that the subpoena remains in force and he also wants Robert Mueller to testify before his committee, in addition to the testimony the Judiciary Committee also wants. (V)

Trump and Biden in a Dead Heat in Florida

A new poll of Florida from Florida Atlantic University on the Democratic primary has Joe Biden at 39% and Sens. Bernie Sanders (I-VT) and Elizabeth Warren (D-MA) tied for second place at 12%. The university also jumped the gun a bit and asked how people would vote in a general election between Donald Trump and Joe Biden. Each one got 50%.

This is a surprising and suspicious result. Normally, this early in the cycle, many people are undecided and there were no undecideds reported. To cover their rear ends, just in case Biden is not the Democratic nominee, the pollsters also asked about general election match-ups between Trump and other Democrats, namely Sanders, Warren, Pete Buttigieg and Sen. Kamala Harris (D-CA). Trump beats them all by 2%, 4%, 4%, and 6%, respectively. Again, all the numbers added up to 100%, which is strange.

Finally, 48% support the idea that convicted felons have to meet all their financial obligations before getting the vote back and only 34% oppose it. Florida is about to pass a law requiring this, which would in practice largely negate the Amendment 4 question of last year that allowed former felons to vote. (V)

Poll: Enough about Russia Already

A small majority of Americans (53%) think the Democrats should forget about Russiagate and related matters and move on. In contrast, 44% want them to continue probing. Surprisingly, not all Democrats want the investigations to continue. Only 73% want House Democrats to keep at it while 25% say enough is enough.

On the other hand, majorities of Democrats, independents, and Republicans also say that the administration should cooperate with Congress. Finally, three-quarters of Americans want to see Robert Mueller testify before Congress. As to Mueller testifying, a Monmouth University poll came to the same conclusion, namely that 73% of Americans want to see Mueller testify before Congress. (V)

Mnuchin Wants to Find Out Who Wrote the Memo on Trump's Tax Returns

On Tuesday, the Washington Post reported that an IRS lawyer had drafted a memo saying that if the chairman of the House Ways and Means Committee asks for Donald Trump's tax returns, the statutory language is clear that IRS has no discretion and must provide them. So what was Treasury Secretary Steve Mnuchin's reaction to this? He wants to find out who wrote the memo, presumably to discipline or fire that employee. He also responded to questions from Rep. Jennifer Wexton (D-VA) that he sees no contradiction between the memo's conclusion that he must turn over the tax returns when asked and his own conclusion that he doesn't have to turn them over. He also said that he has not discussed the matter with Trump at all. Readers may decide for themselves how much of what Mnuchin said is actually believable. (V)

Investigators Can't Tell If Northam Was in Blackface Photo

When Gov. Ralph Northam (D-VA) admitted that he appeared in blackface in a photo in his 1984 medical school yearbook, there was an enormous uproar, with many people demanding his resignation. The next day he changed his mind and said he wasn't in the photo, but the uproar continued. It subsided a bit when Lt. Gov. Justin Fairfax (D-VA) was accused of sexual assault and Virginia AG Mark Herring (D) was also caught up in a blackface scandal. If all three were forced out, the fourth in line to the governorship is a Republican, so Democrats calmed down a bit.

The Eastern Virginia Medical School still wanted to get to the bottom of it, so it hired the McGuire Woods law firm to determine if Northam appeared in the yearbook in blackface (or, worse yet, in a KKK robe). The firm talked to numerous people who were there at the time and has now issued its report. It did not find anyone who stated from personal knowledge that Northam is in the disputed photo.

The bottom line here is that Northam will finish out his term. Fairfax and Herring probably will as well. So, they have weathered the storm, though if any of them run for public office in future, they will have some explaining to do. (V)

Thursday Q&A

A particularly interesting mix of questions today.

Curiously, the view from Europe—where there is little love for Trump—seems to be that he is right on one thing, and that is China. Could this also be true in the U.S.? A large part of the population blames globalization for their troubles. Having to pay more for stuff made in China may not actually bother people in the long run, much of our purchasing being needless consumerism anyway, and people being already willing to pay more for things made locally. Maybe Trump's strategy is in fact brilliant and will actually expand his potential electorate? E.F., Brussels, Belgium

The situation with China operates on two different levels. The first is economic. There is no question that China is a bad actor, very possibly the worst actor among the major industrialized nations of the world. They have not adhered to the promises made when they joined the WTO 18 years ago, particularly as regards giving other countries access to their markets. Their efforts to curtail intellectual property theft are laughably feeble. They funnel money to all sorts of shady characters, like Kim Jong-Un. They engage in currency manipulation.

With that said, it is not clear Donald Trump understands any of this. His public pronouncements on the subject, particularly his crude understanding of how tariffs work, give the general impression of someone who scanned a Time magazine article on the subject—in the 1980s. So, it could be that Trump is correct, but that it's just a case of the proverbial blind squirrel who finds an acorn once in a while.

The second level, meanwhile, is political. Even if Trump understands exactly what is going on, and has a brilliant plan for dealing with it, it is both necessary and advisable for him to communicate his program to the voting public. There's a reason that Abraham Lincoln sweated over the Gettysburg Address, that FDR did all those fireside chats, and that Ronald Reagan practically turned the Oval Office into a TV studio, and it wasn't for their health. Trump has done virtually nothing to explain and sell his plan to the American people, either because he doesn't really have one to explain, or because he doesn't have the patience for consensus-building. Barack Obama, incidentally, is guilty of the same thing. The Trans-Pacific Partnership was an attempt to wrestle with this same problem (albeit a more sophisticated one), but the 44th president didn't do enough to sell it to the American people, and now it's dead.

When we wrote yesterday that Trump appears to be losing the trade war, it was the political dimension we were talking about, since politics and elections are our focus. And that brings us to your actual question: whether this issue might be the President's path toward picking up some votes from the center, and maybe even from the left. And our answer is a confident "no." We think you might be a little too sanguine about how willing people are to bear the costs of a trade war (especially if they have already borne the costs of the tax "cut"). Further, the people who disapprove of Trump really disapprove of him, and are not likely to give him credit for any success (in much the same way that the killing of Osama bin Laden had no measurable impact on those who loathed Obama). Finally, much of Trump's base (farmers, corporate big-wigs, etc.) is rebelling against him. If even they aren't seeing the value in his policies, how can Trump's enemies be expected to see it?

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It's been suggested that even if Team Blue wins the Presidential vote in red states (e.g., Wisconsin, Florida) the GOP-controlled legislatures might disregard those votes and send a slate of GOP electors anyway. Are there any legal constraints on their ability to do so? In other words, was the current system (awarding electors on a winner take all basis) set by state law with a governor's signature (suggesting a need for something similar to change it)? Are there any state constitutional limits that apply? Or is the only check on such an act purely political? D.E., Santa Clara, CA

With the caveat that we are currently exploring areas of electoral law and procedure that have heretofore largely been unexplored, we will say that states have very wide latitude in deciding how their electoral votes are awarded. Recall that the National Popular Vote Interstate Compact, which now has 189 electoral votes' worth of states, and is about to add 6 more from Nevada, creates a situation where the votes of state residents will be essentially irrelevant. If 70% of Coloradans, for example, vote GOP but the national tally favors the Democrat, then Colorado's EVs go to the Democrat.

So, if the Wisconsin or Florida legislatures decide they will make the decision about their state's EVs, and that the vote of the people is merely advisory, they can probably do that. However, there are a couple of complications. The first, which we've seen with various initiatives of the Trump administration, is that even when powers are clearly delegated, there must be a justification for their exercise. While Team Trump has the power to add a citizenship question to the census, if they wish, they have to have a reason, and they have to demonstrate that their purpose is not discriminatory. States who decided to change the rules would surely be sued, and would likely have to adhere to the same standard. A second problem is that the rule change would almost certainly have to happen before ballots are cast. But a legislature that made such a change would be at risk of their party getting punished mercilessly at every other spot on the ballot. So, the odds of this actually happening are not too high.

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If Congress holds Don McGahn or other officials in contempt, and levies a daily fine of $25K, is that a pardonable offense? R.C., Burlington, NJ

As with the previous answer, we begin by noting that there isn't a lot of precedent here. However, in this particular case, there is one very clear bit of case law, though you will have to bear with us here. In Ex Parte Grossman (1925), the Supreme Court considered the case of a businessman named Philip Grossman who was selling liquor during Prohibition, and was arrested and put on trial. While the trial was underway, the judge imposed an injunction on Grossman that forbade him from selling alcohol until his case was resolved (there were some exceptions to the 18th Amendment, and Grossman was claiming one of them). Grossman kept selling nonetheless, and the judge slapped him with a contempt charge, along with a fine and a year in prison as punishment for violating the injunction. President Calvin Coolidge issued a pardon, but a district court hit him with another contempt charge, judging the pardon to be invalid, and jailed Grossman again. It was at this point that SCOTUS stepped in.

Writing for a unanimous Court, Chief Justice William Howard Taft declared that the pardon was valid, and ordered Grossman freed. However, the Chief Justice made very clear that this was because both contempt rulings were cases of criminal contempt, meaning that Grossman was being punished for his actions. Taft said that a civil contempt charge cannot be pardoned, because the guilty party is not committing "offenses against the United States." So what exactly is a civil contempt charge? It's punishment imposed because—wait for it—a person is not cooperating with a court order. For example, civil contempt might lead to someone being fined or imprisoned until they give testimony or surrender documents. Since the guilty party has the power to end their imprisonment (or other punishment) at any time, and since they haven't been charged with commission of an actual crime, there are lots of things they are not afforded—due process, a writ of habeas corpus, etc.—including the possibility of a presidential pardon.

So, if a judge (at House Democrats' request) says, "Don McGahn, you deserve punishment for your bad behavior, and so I'm fining you $100,000," that is pardonable. But if the judge says, "Don McGahn, I'm putting you in jail and fining you $10,000 a day until you abide by the subpoena you received," that isn't. Unless, of course, the current SCOTUS revisits Ex Parte Grossman and overturns it.

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In the previous two plus years of this administration, there was some talk Mike Pence was quietly formulating a run for the presidency in 2020. Some of his actions suggested he was actively trying to become a candidate for 2020. Was this done only because he thought Trump would not be in office by 2020, or is he still actively preparing to run for president in 2020? Is there any update on this matter? R.D., Philadelphia, PA

You're right that there is a lot less of this sort of talk than there was. Maybe it's because Pence has decided 2020 is not in the cards, or maybe it is because he's decided he just needs to be more subtle about it, for fear of the wrath of Trump. Only he knows for sure.

That said, we do have one piece of evidence that Pence's sights are now set on 2024 and beyond: He's been sending money from his PAC, which might otherwise be devoted to his own election, to pro-Trump candidates. So, he appears to be fully on board the S.S. Trump, at least for now.

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The FBI's investigation into Brett Kavanaugh's multiple sexual assault allegations prior to his confirmation to SCOTUS appears to have been highly suspect—perhaps another instance of Trump obstruction of justice. While admittedly a long-shot, if in 2020 Democrats re-take the White House and Senate and also hold the House, what are the chances House and/or Senate committees would have another "look" at these allegations and, if warranted, look to impeach Kavanaugh? L.C., San Diego, CA

We would guess the odds are close to zero, for both political and legal reasons. Politically, the blowback would be enormous, and the Democrats would be accused of stealing a SCOTUS seat and behaving like dictators. Of course, Senate Majority Leader Mitch McConnell (R-KY) actually did steal a SCOTUS seat, and there was massive blowback, but the GOP has much more stomach for that sort of thing than the Democrats do.

The legal problem is that the Constitution says that the basis for impeachment is "high crimes and misdemeanors," and strongly implies that those crimes/misdemeanors must be perpetrated while the person is in office. It doesn't appear to leave room for impeachment due to past offenses, or to having obtained one's job under false pretenses. The Democrats could try to argue that Kavanaugh lied during his hearings, and that he was de facto "on the job" at that point, or that when he took his oath of office, he perjured himself. However, these arguments would be a hard sell. What would be easier for the Democrats is to abolish the filibuster and then increase the number of justices to 11, 13, or 15.

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Most of your prior answers to questions about recent polling "misses" (e.g., Australia) have focused on polling methodology having become obsolete. Is it possible, however, that the problem isn't the polls, but rather that known and unknown election and vote shenanigans have started to become quietly successful? In other words, rather than every pollster's methodology abruptly becoming significantly and consistently erroneous, maybe they remain accurate, and industrialized covert election fraud has instead finally become reproducibly effective? B.H., Leesburg, VA

Let us start by noting that when it comes to the challenges of modern polling, most of what we have said isn't an opinion, it's a fact. Cell phones have made it much harder to reach people, and to get a representative sample. A person with a 212 area code could live thousands of miles from New York, as does one of us (V). That means that polls are more expensive, which in turn means fewer of them are conducted, which in turn means that important developments (like late swings in favor of a candidate) can be overlooked. Also, if it is extremely difficult to reach, for example, enough middle-aged black women then the pollsters are forced to give enormous weight to the middle-aged black women they did reach. And if those initial responders were an outlier (say, the pollster got unlucky and ended up with Diamond and Silk on the phone), then it skews the whole poll.

So, new challenges for pollsters are at least part of the story. Is it possible that underhanded behavior from domestic or foreign actors is also part of the story? Definitely, but the dots haven't quite been connected at this point. (V) and (Z) are both academics, and have been trained to rely on evidence. Most political commentators, analysts, and journalists, too (Breitbart and InfoWars staffs notwithstanding). And thus far, there just isn't enough evidence that election results have been corrupted in this way, at least on a national level. (Z) almost wrote a paragraph in this week's item on the Australia elections about the possibility that the Russkies got involved, but it just seemed a bit too conspiratorial in the absence of stronger evidence.

Here's another thing, incidentally, that might just be skewing things. For a very long time, elections were dominated by a particular set of issues, particularly the state of the economy. But in the last few elections, identity politics and demonization of the opposition have become so important that they might now be paramount. It's very possible that the electorate for a contest based on pocketbook issues and the electorate for a contest based on anger and resentment looks pretty different, but that pollsters don't have enough data to know that yet. One more data point suggesting that identity politics is the new normal is the enormous win for the BJP in India, which rejects the country's long history of liberal secularism in favor of open Hindu nationalism.

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Is there a pattern where presidents, when running for reelection, tend to lose vote share? E.W., Silver Spring, MD

Well, let's take a look at every president who has run multiple campaigns for the White House in the last 100 years. We're going to consider the percentage of the vote each candidate got, since raw vote totals may be skewed by population growth.

President	Percentage	Percentage	Change	Notes
Herbert Hoover	58.2 (1928)	39.7 (1932)	-18.5%	Great Depression started in 1930-31
F. D. Roosevelt	57.4 (1932)	60.8 (1936)	+3.4%	The New Deal was pretty popular
F. D. Roosevelt	60.8 (1936)	54.7 (1940)	-6.1%	Some people weren't happy about a three-term president
F. D. Roosevelt	54.7 (1940)	53.4 (1944)	-1.3%	Dewey didn't defeat Truman, and he definitely didn't defeat FDR
Dwight D. Eisenhower	55.2 (1952)	57.4 (1956)	+2.2%	Americans twice made clear they weren't Madly for Adlai
Richard Nixon	49.5 (1960)	43.4 (1968)	-6.1%	Numbers skewed by George Wallace, who got 13.5% of the vote in 1968
Richard Nixon	43.4 (1968)	60.7 (1972)	+17.3%	Ibid.
Jimmy Carter	50.1 (1976)	41.0 (1980)	-9.1%	Numbers skewed by John Anderson, who got 6.6% of the vote in 1980
Ronald Reagan	50.7 (1980)	58.8 (1984)	+8.1%	Ibid.
George H. W. Bush	53.4 (1988)	37.4 (1992)	-16%	Numbers skewed by Ross Perot, who got 18.9% of the vote in 1992
Bill Clinton	43.0 (1992)	49.2 (1996)	+6.2%	Perot was on the ballot in both years
George W. Bush	47.9 (2000)	50.7 (2004)	+2.8%	Gay marriage got many GOP voters to the polls in 2004
Barack Obama	52.9 (2008)	51.1 (2012)	-1.8%	Red-blue state polarization gave Obama a pretty firm ceiling

Undoubtedly, your question is prompted by the fact that Donald Trump won election in 2016 by the skin of his teeth, and so has virtually no margin of error. Ergo, if there's an inevitable 2% or 3% decline in his future in 2020, he'd be dead in the water. And if there's an inevitable 2% to 3% bump, he's got a fair bit of margin for error.

However, looking at the numbers above, we don't see any basis for strong conclusions of any sort. There are 13 entries on the list; 7 lost ground and 6 gained ground. That's as close to a coin flip as is possible. Even if we try to parse the data with more precision, we don't learn anything. For example, recent presidents (say, since 1976) are 3-3. Republicans are 4-4. Presidents who didn't have their numbers skewed by a third-party interloper are 4-4. And in most cases, there is something intrinsic to the specific election that explains the increase/decline—Hoover and the Depression, the presence of the third-party candidate, etc. So, if we're looking to predict the future, well, it would appear the tea leaves are elsewhere.

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