To Impeach or Not to Impeach, That Is the Question

The House is in recess right now, and Speaker Nancy Pelosi has successfully tamped down talk of impeaching Donald Trump, at least for now. So, she gets to take a few breaths. In about a week, however, she's going to face the same chorus of voices calling for action, and that chorus is likely to get both larger and louder. So, what should she do?

On this question, the commentariat's advice is quite clear. Consider these recent op-eds:

• Why the Democrats' long game on impeachment is working
• Impeach Trump? It would be a profound mistake for Democrats to be goaded into it
• Democrats shouldn't focus on impeaching Trump. They need to focus on beating him in 2020.
• The (Political) Case for Impeachment Doesn't Hold Up
• Smarts, not lack of spine, keep Pelosi from impeaching
• How do you solve a problem like Donald Trump? Impeachment isn't the answer. Yet.
• Impeaching Trump Would Constrain Democrats Too Much
• Don't Impeach

Although there are also these op-eds:

• Nancy Pelosi is making a big mistake on impeachment
• The Democrats Are Overthinking Trump's Impeachment
• Impeaching Trump Is Risky. So Is Refusing To.
• Democrats need to get past impeachment jitters. It's not 1998 and Trump is no Clinton.
• Pelosi's Pragmatism on Impeachment May Backfire
• The case for impeaching President Trump--now
• It's time to start impeachment hearings. Today.
• Why I'm Now for Impeachment

Ok, so maybe the commentariat's advice isn't so clear.

That's 14 different op-eds on impeachment, covering a vast range of views. Undoubtedly, Pelosi hears that many different takes on the subject every single day. So, she's justified in being a little weary of the subject. And nobody, including the Speaker, knows exactly how this will all play out. However, as folks ponder the options and consider their opinions, we will add a few observations. First, let us point out two things that are probably weighing too heavily on the discussion:

• Beware the Clinton precedent: When it comes to the political risks of impeachment, the example that everyone turns to, given that Andrew Johnson was more 150 years ago, is the Bill Clinton impeachment. That blew up in the Republicans' faces and, the argument goes, the same is likely to happen to the Democrats.
  
  That is possible, but—as several analysts have pointed out—the Clinton impeachment is a single data point, and one that is not especially comparable to the current situation. Some of the pieces linked above explore this angle, but the best is probably this one by the Washington Post's Aaron Blake. You should consider reading the whole piece, but the gist is that while there are certainly some similarities (Clinton and Trump are both philanderers and liars accused of obstruction), the differences are more salient. Clinton's impeachment happened right before the election of 1998, not 18 months out. Clinton was personally popular, and Trump is not. The charges against Clinton were considerably less serious, and involved personal matters that many Americans were willing to give him a pass on. The charges against Trump, not so much. Further, Clinton's post-impeachment polling bump did not last, and his party lost the White House at the next election. For such a "disastrous" mistake by the GOP, that's actually a pretty good outcome.
  
  
• Polls are not instructive: There is one president for whom impeachment is now almost universally regarded as just: Richard Nixon. He didn't actually get impeached, because he took Barry Goldwater's advice to resign, but he would have been impeached and convicted if he had forced the issue. But the thing is, public opinion polls showed a solid majority of Americans being against impeachment until just weeks before the end came. If polls of this particular question were not terribly useful then, there's no reason to think they will be now.

And now, here are a couple of things that should probably get more attention than they do:

• Maybe Trump is not the only one who should be put on trial: This is a little unorthodox, so bear with us. On Monday, Senate Majority Leader Mitch McConnell (R-KY) and several of his colleagues, including Sens. John Cornyn (R-TX), Lindsey Graham (R-SC), and Thom Tillis (R-NC), told reporters that if they do receive articles of impeachment from the House, they will dispense with them very, very quickly. "Why on earth would we give a platform to something that I judge as a purely political exercise?" wondered Tillis.
  
  This is really quite remarkable, and surely isn't getting as much attention as it should. Four United States senators announced that before any trial has been conducted, and before any evidence has been heard, they have already reached their verdict and it is "not guilty." In any other trial in the land, if a juror publicly announced that, he would immediately be ejected from the jury pool. In any event, one could make the argument that the most dysfunctional part of the American democracy right now is not the White House, it's the Senate. And an impeachment trial might bring some important public attention to that dysfunction.
  
  
• What's the 2020 argument?: Presumably, the Democrats are going to make the case in 2020, as they did in 2016, that Donald Trump is not fit to be president. But if they don't impeach him, it could suggest to voters that they don't really believe what they are selling. At the very least, it will suggest that the blue team is not willing to stand up for its principles.

Note, once again, that this is not intended as an argument for or against impeachment. It's merely an attempt to cut through some of the noise as people consider the matter. (Z)

SCOTUS Sends Mixed Messages on Abortion

In 2016, Indiana passed a pair of laws related to abortion. The first banned abortions that are done based on a fetus' sex, race or disability. This was a very clear attempt to use the 14th Amendment to get around Roe v. Wade. The second required fetal remains to be buried or cremated (as opposed to being handled in the manner that, say, amputated limbs are). The laws were both challenged in federal court, and both were overturned. In January of this year, the Supreme Court was asked to consider the matter, and on Tuesday they announced their decision, reinstating the fetal remains law but leaving the other law overturned.

It is not at all clear what this means. Some SCOTUS watchers interpreted it as a sign that the Court does not want to deal with this political football at all, and will continue to take a pass on most abortion-related cases (as they have already done on two other recent occasions). Others think that the Court wants to wait until it can consider a law that attacks Roe head on (like the recent ones passed in Mississippi and Alabama). Still others say that the justices' decisions tell us nothing about any cases other than these two.

The one thing that was clear on Tuesday is that if and when the Court does take up an abortion case, the battle lines are already clearly drawn. Ruth Bader Ginsburg wrote a strongly worded dissent in which she disagreed with the Court's ruling on the fetal remains question. Sonia Sotomayor said she agreed with Ginsburg, and would have preferred the Court not take up either case. On the other side, Clarence Thomas wrote a blistering 13-page concurring opinion in which he said that the Court was right not to arbitrate this particular case, but warning that abortion could definitely be used as a tool of eugenics, something he thinks SCOTUS may have to consider in the future.

It is true that abortion could be used in that way. It's also true that at the turn of the 20th century—when eugenics was in vogue in some circles—a few folks did indeed advocate for selective abortion as a means of improving the human race. However, Thomas' argument is anachronistic, not unlike arguing that if it becomes legal to slaughter horses to make dog food, people might not have enough transportation, or declaring that if people are required to wear hats indoors, it will make it impossible for phrenologists to do their work. The Justice is also making a slippery slope argument (which are usually pretty weak), and one that does not square with the facts. Eugenics only works if the government tells "unfit" women they must have abortions, but neither the Indiana law nor any other passed in the last century grants the government that power.

In any event, Thomas' willingness to parrot a talking point from the modern-day anti-abortion movement is a sidebar. The main story is that when it comes to Roe, the future remains as murky today as it was yesterday. (Z)

McConnell to Ginsburg: Don't Die

Ok, that's not actually what Mitch McConnell said, but it's definitely what Ruth Bader Ginsburg heard. The Senate Majority Leader was speaking at a luncheon in his home state, and was asked what he would do if a Supreme Court seat came open in 2020, given his refusal to give Merrick Garland a hearing in 2016 due to it being an election year. "Oh, we'd fill it," McConnell said without hesitation.

This is not exactly news, as McConnell has said as much before. Still, after hearing him repeat it on Tuesday, millions of Democrats across the land undoubtedly had the same thought that Senate Minority Leader Chuck Schumer (D-NY) had:

|￣￣￣￣￣￣￣￣￣ |
| Senator McConnell. |
| is a |
| hypocrite. |
| ＿＿＿＿＿_＿＿＿_ |
(\__/) ||
(•ㅅ•) ||
/ 　 づhttps://t.co/lIveqezK5A

— Chuck Schumer (@SenSchumer) May 29, 2019

McConnell has tried to explain the apparent inconsistency by saying that in 2016, the Senate and White House were controlled by different parties, which is why voters needed to be given time to weigh in, but that in 2020 it's the same party, so this time they don't. It's a tenuous argument, at best. And in a follow-up to the above tweet, Schumer suggested that McConnell won't confirm a Democratic nominee under any circumstances, and will concoct some new justification for his inaction if and when it becomes necessary. The Minority Leader might very well have the right of it; McConnell has shown little shame in his career when it comes to the naked exercise of power (see above). And, from the Majority Leader's vantage point, a 5-3 conservative majority is nearly as good as a 6-3 majority.

With that said, if a seat did come open, even if it was with just six hours left in Donald Trump's presidency, McConnell would move heaven and earth to try to get that sixth conservative justice approved before the inauguration (shades of Marbury v. Madison). So, Democrats nationwide will be crossing their fingers that Ginsburg's health holds up until at least January 20, 2021 (or January 20, 2025). Her departure may well turn 5-4 into 5-3, but that's at least a little better than 6-3. (Z)

Elaine Chao Turns Out to Be Kinda Swampy

Mitch McConnell was not the only member of Washington's #1 power couple to be in the news on Tuesday. His wife Elaine Chao made the front page of the Wall Street Journal, and not in a good way. At this point in Donald Trump's presidency, there is credible evidence that much of his cabinet is either unqualified for their jobs (Ben Carson, Betsy DeVos, Rick Perry) or is corrupt (Steven Mnuchin, William Barr, Andrew Wheeler). Some departed members, like Scott Pruitt and Ryan Zinke, probably belong in both categories. Chao, who also served in George W. Bush's cabinet, and also filled high-profile positions in the George H. W. Bush and Ronald Reagan administrations, appeared to be one of the exceptions—a capable and conscientious public servant. Not so fast, as it turns out.

The story in the WSJ centers on Chao's relationship with Vulcan Materials, a company that manufactures raw materials—primarily crushed stone, sand and gravel—used in construction, particularly in the construction of new roads. They do nearly $5 billion in sales a year, and the U.S. Department of Transportation is one of their biggest customers. Chao was a Vulcan Materials board member prior to becoming Secretary, which entitled her to stock options. In the disclosure forms and other paperwork that she filed prior to her appointment, she promised to quit the board and to divest herself of all stock. Chao followed through on the former promise (it would have been hard to hide if she didn't), but she did not follow through on the latter promise. That "oops" netted her the tidy sum of $40,000 in the last year.

Once the WSJ's story came out, Chao's spokespeople at the Dept. of Transportation spent the day pointing fingers, and arguing alternatively that (1) holding the stock is not a conflict of interest; (2) divestment is very complicated; and (3) the ethics agreement that Chao signed is flawed. The careful reader will note that these explanations are rather inconsistent with one another and that, regardless, none of them excuse Chao's failure to do what she said she would do, and cash out the stock options. That said, one should not expect Chao to face any consequences for this. Other members of the Trump cabinet have gotten away with far worse, and that's without being married to the Senate Majority Leader. (Z)

The States of the Democratic Field

March 3, 2020, is going to be a big day for the Democratic Party, as that is Super Tuesday. 14 states will cast their primary ballots on that day, including the large and delegate-rich states of California, North Carolina, Texas, and Virginia. Before that, however, the candidates will have four chances to show they can connect with various portions of the Democratic base, and to get some "momentum": Iowa (Feb. 3), New Hampshire (Feb. 11), Nevada (Feb. 22), and South Carolina (Feb. 29).

No campaign would ever admit to shortchanging one or more of the four states, since there would be no upside in doing so, and much downside. Nonetheless, each candidate only has so much time and money, and there is a lot of competition this year, as you may have heard. So, a certain amount of triage has to take place, and that triage gives some insight into the thinking of the various campaigns. So, here is an overview of how things are shaping up:

Iowa: By virtue of going first, Iowa has a disproportionately large role in winnowing down the field. If a candidate limps into the Iowa caucuses and then performs poorly, then that is pretty much the death knell. Similarly, a frontrunner who underperforms in Iowa can burst their own bubble very quickly. And as the only Midwestern state in the first four, the Hawkeye State is also important for candidates who want to show they can win back the "rust belt."

Candidates who are betting heavily on Iowa: Joe Biden, Gov. Steve Bullock (D-MT), John Delaney, John Hickenlooper, Sen. Amy Klobuchar (DFL-MN), Beto O'Rourke, Sen. Bernie Sanders (I-VT), Rep. Eric Swalwell (D-CA), Sen. Elizabeth Warren (D-MA)

New Hampshire: Of the four early states, New Hampshire is the one that speaks least clearly for any key Democratic constituency. Yes, it's a New England state, and yes, it's got a lot of centrist Democrats. However, New England is in the bag for the blue team, and Iowa is more important in terms of judging a candidate's centrist appeal. New Hampshire, then, is primarily important for candidates from New England who can't afford a thumbs down from their neighbors, and for folks who need some success there either to build on success in Iowa, or else to show that Iowans (who are 91% white) don't speak for everyone. Of course, New Hampshire is 94% white, so they don't speak for everyone either (hence the importance of South Carolina).

Candidates who are betting heavily on New Hampshire: Sen. Cory Booker (D-NJ), Mayor Pete Buttigieg (D-South Bend), Delaney, Sen. Kirsten Gillibrand (D-NY), Sanders, Sen. Kamala Harris (D-CA), Warren

Nevada: For candidates who bomb in Iowa and New Hampshire, Nevada is their last chance—three strikes and you're out. Most candidates aren't giving the Silver State a lot of attention right now, but they are setting things up to pivot aggressively in that direction if needed. The state is also important as a barometer of Latino voters' preferences, and—to some extent—the preferences of union workers.

Candidates who are betting heavily on Nevada: Biden, Julián Castro, Harris, Booker, Rep. Seth Moulton (D-MA), Sanders, Warren

South Carolina: This primary, of course, is the one where black voters get their say. Anyone who is trying to show they can win that key Democratic constituency will need to do well in the Palmetto State.

Candidates who are betting heavily on South Carolina: Biden, Booker, Harris, Sanders, Warren.

There are some clear themes that come from looking at all four lists as a group. Here are some of them:

• Some of the big dogs, particularly Sanders and Warren, are trying to wage four-state campaigns. We shall see how that goes, though we all know what happened when Hillary Clinton overreached in 2016.
  
  
• Buttigieg is playing things a little conservative right now, but that will undoubtedly change, given that he has big dog money in his bank account.
  
  
• Fringy candidates, by contrast, have to be very careful with their resources, and so many of them are making a serious play for only one of the four states.
  
  
• Some of the fringy candidates aren't even able to do that much; folks like Andrew Yang, Marianne Williamson, Bill de Blasio, and Wayne Messam don't have a serious ground game in any of the four early states.
  
  
• For all the attention that is going to be paid to Iowa, it's actually South Carolina that might be the most important of the four early states. Two or three of the leading Democrats are likely to receive something close to a knockout blow on that day.

In any event, that's where things stand at this moment. We think it is likely that the early debates will knock out at least a few of these folks, so things could change a little (or even a lot) by September. (Z)

Roy Moore Plans to Run

People who really love Roy Moore and people who really hate him both got some great news on Tuesday: He's definitely planning to take another shot at Alabama's U.S. Senate seat in 2020. This news comes courtesy of Rep. Bradley Byrne (R-AL), who is friendly with Moore's inner circle, and who predicts that the official announcement should come within the next month. Byrne, who is running for the same seat, said he "welcomes" the former judge to the campaign. Uh, huh.

The people who love Moore appreciate his willingness to embrace theocracy more openly than just about any politician in the United States (even Mike Pence), laws be damned. Those who hate him are thrilled because he becomes the immediate favorite for the GOP nomination, and he's undoubtedly the Republican who gives Sen. Doug Jones (D-AL) the best chance of being reelected. Moore reportedly thinks he can win, and he may be right, since the last race was very close (50.0% for Jones to 48.3% for Moore), and Donald Trump figures to have coattails in the Yellowhammer State.

On the other hand, the fundamentals of the race haven't changed—Jones remains a very conservative Democrat, and Moore remains a credibly accused child molester. Also, the judge would be a 74-year-old rookie senator with zero political experience in a body in which it generally takes 15-20 years to gain real power. So, from a practical standpoint, he may not be the best guy to bring home the bacon (or, perhaps more regionally apropos, the chitlins). And if that were not enough, Donald Trump Jr. took to Twitter on Tuesday to tell Moore to stay out of the race:

You mean like last time? You’re literally the only candidate who could lose a GOP seat in pro-Trump, pro-USA ALABAMA. Running for office should never become a business model. If you actually care about #MAGA more than your own ego, it's time to ride off into the sunset, Judge. https://t.co/Twg9isFRkY

— Donald Trump Jr. (@DonaldJTrumpJr) May 28, 2019

If Trump Jr. is serving as a surrogate for his father, and telegraphing that White House support is not forthcoming, that would be very bad for Moore. In any event, a Moore-Jones rematch would definitely be close, whatever the ultimate outcome. That is pretty much the best Jones can ask for. (Z)

Texas Secretary of State Falls on His Sword

Texas is one of nine states in which the governor is responsible for appointing the secretary of state (there are also 38 states in which the position is elected, and three in which the state legislature chooses). However, once the governor makes his choice, the Texas legislature has to confirm the pick prior to the end of the next legislative session, which is normally pro forma. As of yesterday, Gov. Greg Abbott (R) has gone through three secretaries of state in four years, a positively Trumpian pace. The latest secretary to exit was David Whitley (R), who was appointed only in December of last year. Whitley resigned on Tuesday, minutes before the latest session of the legislature was set to conclude. This was a face-saving measure, undertaken when it became clear the legislature had no intention of confirming him.

Whitley's downfall was triggered by his purge of Texas voter rolls. He oversaw the removal of nearly 100,000 names, ostensibly with the goal of removing fraudulent non-citizen voters. However, virtually none of them were actually fraudulent, while tens of thousands of them were either natural-born or naturalized citizens. The ham-fisted maneuver triggered multiple federal lawsuits, and eventually a ruling that not only were the names to be restored, but also that Texas cannot attempt another purge using this particular methodology. So, Whitley achieved nothing while embarrassing his fellow partisans, and providing lots of ammunition for Democrats who argue that voter-roll purges are not in good faith. He thus became toxic, and now he's out of a job.

With that said, Whitley is clearly a fall guy here. The purging process was underway before he took office, and there is no doubt that he got his marching orders from Abbott. Further, there is little question that Team Abbott will do an end run around the court ruling, and attempt another purge using a different methodology. And that purge will happen under the auspices of secretary #4, a recess appointment who will remain in office until at least 2021 because the Texas legislature meets every other year. Still, when the new purge comes (sometime before next year's election), the voting public and the courts will presumably be watching extra closely. (Z)

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