Bloomberg Is Running

Billionaire Michael Bloomberg yesterday announced that, on second thought, he is running for president. Earlier this year, he said he wasn't going to do it, but that was before Joe Biden began slipping and Sen. Elizabeth Warren (D-MA) began rising. Bloomberg hates Donald Trump with a passion, wants him defeated, and like many billionaires, has an ego the size of his bank account, so he thinks only he can ride to the rescue. Also, he is none too happy with Warren's plan to tax the net wealth of people with assets of more than $50 million. His net wealth is 1000 times that, at $50 billion. Unlike Trump, he plans to release his tax returns shortly, which will confirm that basic fact.

How much Bloomberg's entry will shake up the race remains to be seen. Currently, on a good day, he is polling around 2%, roughly the same as the other billionaire running for the Democratic presidential nomination, Tom Steyer. Unlike billionaire Howard Schultz, who flirted with a presidential run as an independent, Bloomberg is running as a Democrat. From his point of view, that has advantages and disadvantages. The big advantage is that if he gets the nomination, he will automatically be on the ballot in every state and D.C., something Schultz couldn't be sure of.

The big disadvantage is that a large chunk of Democratic voters don't like billionaires. In fact, some of them are actively running on a platform of reducing the influence and power of the very rich. Other Democrats are not going to be happy about the "stop and frisk" policy he oversaw and expanded in New York City, which he called off only after several judges forced him to. It disproportionately targeted black and Latino citizens, who were overwhelmingly not guilty of anything. Still other Democrats will recall Bloomberg's aggressive surveillance of New York's Muslim community, a surveillance undertaken for...reasons? That surveillance yielded absolutely nothing actionable, either in terms of people who had already committed crimes, or who were about to.

Bloomberg is running the Giuliani playbook—that is, skipping the four early states and hoping to clean up later. It didn't work for Giuliani in 2008, but Bloomberg has a better chance because he is planning to spend $30 million on advertising this week. Nothing like that has ever happened before. Steyer will spend $1.2 million this week. Third is a tie between Sen. Bernie Sanders (I-VT) and Andrew Yang, who will each spend $500,000 this week.

Bloomberg is running ads worth at least $100,000 in 56 different media markets, so it is a national blitz designed to move him up in the polls. At least he will know quickly whether the ads have moved the needle much. In 2 weeks, he can run polls to see if he has moved above 2%.

One possible, even likely, effect of his campaign is to pull votes from Joe Biden and maybe Mayor Pete Buttigieg (D-South Bend). It is very unlikely that any Warren or Sanders voters will jump ship to him. So the net effect of his campaign might be to weaken Biden and increase the chances of Warren or Sanders getting the nomination.

One small question about Bloomberg's candidacy is: How will Bloomberg News cover its owner? The editor-in-chief, John Micklethwaite, said Sunday that it will not investigate him, but to be fair to the other Democrats running for president, it won't investigate any of them either. Other media outlets are unlikely to be so accommodating. (V)

Report: Nunes Met with Former Ukrainian Official to Get Dirt on Biden

Intelligence Committee Ranking Member Devin Nunes (R-CA) has been grandstanding more than a little in his continuing defense of Donald Trump during the impeachment hearings. A congressman grandstanding is more "dog bites man" than "man bites dog," but this time may be different. CNN is reporting that a lawyer representing Lev Parnas, one of the two associates of Rudy Giuliani who were recently arrested and indicted, is prepared to tell Congress about a meeting Nunes had last year in Vienna with corrupt former Ukrainian prosecutor Victor Shokin. The purpose of the meeting was to discuss digging up dirt on Joe Biden. Shokin was ousted from his job in 2016 due to pressure from many Western countries, including the U.S.

The lawyer, Joseph Bondy, said that Parnas put Nunes in touch with Shokin. When they met, Nunes told Shokin that it was urgent that dirt be dug up about Burisma, a Ukrainian company on whose board Hunter Biden sat. If true, this would mean that Nunes was anything but a neutral observer trying to get the truth from the witnesses.

When CNN asked Nunes about the trip to Vienna he responded: "I don't talk to you in this lifetime or the next lifetime. At any time. On any question." Those aren't the words of someone who traveled to Vienna due to his great love of opera.

Congressional records show that Nunes, former NSC member Derek Harvey, and two others traveled to Europe from Nov. 30, 2018, to Dec. 3, 2018. The records don't show where they went or what they did.

According to Bondy, Parnas has had it with Trump and Giuliani. He believes he was a loyal foot soldier for them, doing their bidding (getting dirt on Biden) and now he has been thrown under the bus. If he were subpoenaed to testify before Congress, he might have quite a story to tell. Of course, Nunes would undoubtedly deny everything, since he is not under oath.

Keep in mind that Parnas is under indictment and people under indictment often say things they think will help their case. He is also undoubtedly going to ask for immunity, lest his testimony be used against him. It will be up to the SDNY to decide how to handle any such request. (V)

What's Next?

The House is in recess now in order to eat turkey, but in a week they will be back to talk turkey. No more witnesses are scheduled, although Lev Parnas could be called if a deal can be made, as discussed above. So what is going to happen next? If no more witnesses are called, then the chairman of the House Intelligence Committee, Adam Schiff (D-CA), will write up some notes about what he has learned so far and drop them on the desk of Judiciary Committee Chairman Jerrold Nadler (D-NY) for consideration. Nadler could call more witnesses or just start drafting articles of impeachment.

One possible change to the schedule could occur if Donald Trump agreed to testify, or at least answer questions in writing. The chances of him testifying in person are basically zero because his lawyers would never allow that. Answering written questions might be OK with them, since they, and not Trump, would write all the answers. Nadler knows this, of course, so he might not want to waste much time on mock testimony. On the other hand, a trial during the Christmas season wouldn't get as good ratings as one in January, so Nadler might be open to doing something other than passing articles of impeachment quickly. Of course, he could pass them through his committee quickly but have Speaker Nancy Pelosi (D-CA) delay a full House vote until January.

One thing that Schiff—and you can assume that he's also speaking for Pelosi here—made clear this weekend is that he is not prepared to wait months to compel other witnesses to testify. He said he would very much like to hear from former NSA John Bolton, in particular, but that it would have to be voluntary. Schiff opined, quite correctly, that the evidence is overwhelming already, and that any additional testimony is not likely to change that. He also said that there was "merit" to the notion that it would be easier for the Senate to compel testimony than it is for the House. So will we hear from them at that point? See below for more on that. (V & Z)

Will Bolton Testify at the Impeachment Trial?

Former NSA John Bolton has said that he is willing to testify in the Ukrainegate matter if a judge orders him to do so. He might yet get his chance. A former federal prosecutor sent an email to Josh Marshall of Talking Points Memo that raises an important point concerning his testimony, and possibly also that of Acting Chief of Staff Mick Mulvaney, Secretary of State Mike Pompeo, former NYC Mayor Rudy Giuliani, VP Mike Pence, and others.

The email that Marshall published contained this paragraph concerning the Senate rules for trying an impeachment:

The rules provide that the House [impeachment] managers can issue subpoenas to anyone, presumably including Bolton and Mulvaney. A senator could object that the testimony is irrelevant or covered by privilege. Rule VII provides that a ruling on such questions will usually be made by the Presiding Officer—the Chief Justice, unless he refers the decision to the full Senate. The Chief Justice would likely decide, in the first instance, claims of executive privilege or attorney-client privilege. He would also likely decide questions such as the crime/fraud exception and the co-conspirator exception to the hearsay rule, as well as questions of waiver of any privilege. Finally, he would rule on subpoenas for the production of documents.

Bolton is in a situation slightly different from the others, as he said he would be willing to testify if a judge ordered him to do it. Presumably the Chief Justice of the Supreme Court of the United States should be good enough. The others might claim executive privilege, but there is no appeal from whatever then happens in the Senate. If they defy Roberts, they could face prison for contempt.

If Roberts were to order all of the above to testify, Majority Leader Mitch McConnell (R-KY) would be in a pickle. He would have to make a guess what the witnesses were going to say. If he thought they would all perjure themselves and say: "Ukraine? What's that? Is it some planet out near Saturn?" he could just let them testify without objection.

However, if he thought they were going to rat out Trump, he could have the entire GOP caucus vote to overrule Roberts, although the optics of not letting a key witness appear would be terrible (and Bolton might appear anyway). If McConnell expected multiple witnesses to throw Donald Trump under the proverbial bus to save their respective necks, he could grit his teeth, let them do it, and pray that Trump resigned before his caucus had to vote on anything. After all, McConnell cares about control of the Senate more than he cares about control of the White House, so his actions are likely to be those that cause the least pain to his own members, Trump be damned.

All of this hinges on whether the impeachment managers subpoena any of the people who might have talked to Trump about Ukraine, and how Roberts handles it. Also relevant is whether the Democrats try for a twofer. They could subpoena Vice President Mike Pence to ask about what he said to Ukrainian President Volodymyr Zelensky in their Sept. 1 meeting. The point of putting Pence on the stand under oath and cross examining him about what he knew and when he knew it would be not so much to get more information to convict Trump (Bolton knows enough for that), but to tie him to the affair as closely as possible in case he ends up being the Republican nominee in 2020.

And as long as we are playing 3D chess here, another path this whole thing could take is that Roberts upholds the subpoenas, everyone testifies, and they all lie through their teeth claiming Trump withheld the military aid to save the taxpayers $391 million and never pressured Ukraine. But for Mulvaney & Co., there are some risks with this approach. The first is the prisoner's dilemma, which tells us that it's way better to be the first truth-teller than the second truth-teller or the first, second, or third liar. While the folks who still work in the White House could coordinate their testimony (including an agreed-upon set of lies), Bolton is a wildcard. If they all say one thing, and he says another, then they would be left in a bad place.

That leads us to the next dilemma. It is possible that Mulvaney & Co. could testify and lie, but with the promise that they will be pardoned for their perjury. There are some additional risks that come with this, however. Trump has not actually pardoned anyone implicated in Trump-related crimes so far, because the optics of that would be very bad. He could be waiting until after the 2020 elections, but what happens if he doesn't make it that long and leaves office early due to resignation, illness, or removal? Similarly, what if the President's lawyers point out to him that suborning perjury, and then pardoning it, could lay the groundwork for a slam-dunk obstruction of justice charge as soon as he's out of office? And finally, the limits of the presidential pardon power have not really been tested in court. But if Trump uses the power in a fashion that appears abusive, particularly if he happens to do so right before resigning or being removed from office, it is entirely possible a court could step in and invalidate the pardon.

The upshot is this: A lot of folks will have some tricky decisions to make in the near future. First up will be the Democrats who are managing the impeachment process. They will have to decide whether to try to subpoena Bolton, Mulvaney, et al., to testify. And if they do make this choice, then they have to think about whom they want to call. It could be just Bolton, since he's the likeliest to tell the truth. It could be Bolton and one or more of Mulvaney, Giuliani, Pence, and Pompeo, with the idea of ratcheting up the pressure on everyone, and also doing some damage in advance of the 2020 elections. It seems unlikely that Schiff & Co. will call nobody from this list. From the Democrats' point of view, there is no downside to trying at the trial. How many they try to call, and in what order, is anyone's guess.

Then, if asked to back the Democrats' subpoenas, John Roberts will have to decide what he wants to do. To us, it seems unlikely that he would refuse, because if Trump were then acquitted, half the country would blame Roberts for taking sides. He certainly doesn't want that. Besides, if the Democrats got really angry, they could impeach him. All it takes, after all, is 218 votes in the House. He absolutely certainly doesn't want that, even if there is no chance of his being convicted, as that would further politicize a Court whose reputation is already shaky.

If the Democrats call Bolton, Mulvaney, et al., and Roberts assents to those subpoenas, then it will be time for some Republicans—the ones in the White House, and the one who runs the Senate—to make some tough decisions. Undoubtedly, all involved would prefer to save Trump, but the path to doing that comes with significant risks. The simpler, and more self-serving, path would be to throw the President under the bus. After all, he would think nothing of doing the same to them. Put another way: Do they channel their inner Michael Cohen, or their inner Roger Stone? (V & Z)

Ruling in McGahn Case Is Expected Today

All of the above discussion about trial strategy could be rendered moot today as U.S. District Judge Ketanji Brown Jackson is expected to rule on a subpoena compelling former White House Counsel Don McGahn to testify before the House. If she rules that McGahn must testify, he could either (1) testify or (2) appeal the decision. Unlike Bolton, McGahn doesn't appear to be eager to testify, so most likely he will appeal.

Bolton would not be bound by the ruling since he is not a party to the case, but if he is merely looking for a fig leaf, this could be it. On the other hand, if he really doesn't want to testify yet so he can first write a blockbuster book, he could continue to insist that he will only testify if a judge orders him to do it.

Bolton aside, the ruling is important because McGahn is also a potentially important witness. He knows a lot about what went on in the White House while he was there and could potentially do a lot of damage to Donald Trump if he had to testify. But an appeal could delay the next round for weeks or months, after which the case could head to the Supreme Court. (V)

Mulvaney Tried to Justify Holding Up Ukraine Aid Afterwards

A report from the Washington Post indicates that after the military aid to Ukraine was held up, Mick Mulvaney tried to reverse engineer an explanation as to why. A review of the situation has turned up hundreds of documents that show officials trying to rationalize the decision. The existence of a major effort to cook up an explanation suggests that disclosing the real reason—that Trump was trying to extort Ukraine—was unacceptable for public disclosure, so something else had to be concocted.

The problem is that Donald Trump often acts without thinking or planning. He simply decided to block the aid without getting any legal basis for it. Then Mulvaney and Acting OMB Director Russell Vought had to brainstorm to figure out a reason that seemed plausible and was legal. That wasn't so easy to do quickly because the whistleblower's complaint and the publication of the redacted transcript of the now-infamous July 25th phone call made it urgent.

The records review was done by the office of White House counsel Pat Cipollone. He and Mulvaney are apparently not on the same page, according to sources. Cipollone is tightly controlling his findings and Mulvaney wants to know what he has found. House investigators have requested the documents he has turned up, but Cipollone has made it clear they are not getting any of them. In a Senate trial, these documents could be the subject of a subpoena on which Justice John Roberts might have to rule. (V)

Trump: Pompeo Might Run for the Senate

After months of both Mike Pompeo and Donald Trump denying that Pompeo had any interest at all in running for the seat of retiring senator Pat Roberts (R-KS), Trump has now acknowledged that, yes, Pompeo might run for it. That is probably shorthand for: "Yes, he will run."

Absent Pompeo, there is a good chance that right-wing firebrand Kris Kobach would get the nomination and then lose the seat in the general election. Trump knows he may need every Senate seat if he is reelected, hence the change in his position. Of course, if Pompeo is forced to testify before the Senate during an impeachment trial, anything could happen, including him being forced to turn on Trump, which would certainly not help his run. If he sticks with Trump, but perjures himself in doing so, that might not work out so well, either. (V)

Ruth Bader Ginsburg Was Hospitalized Again

Justice Ruth Bader Ginsburg was admitted to Johns Hopkins Hospital in Baltimore on Friday after experiencing chills and a fever. She was given fluids and antibiotics and sent home yesterday.

Ginsburg is 86 and has had multiple health scares in recent years. She has been treated for pancreatic cancer, colon cancer, and lung cancer in the past. Most people don't want to die, but she really, really, really doesn't want to die before Jan. 20, 2021 at noon.

The political implications of her dying sometime in 2020 are enormous. Mitch McConnell is not likely to invoke the "McConnell rule," that says no Supreme Court appointments can be taken up in the last year of a president's term, even though that is precisely what he said when Barack Obama nominated Merrick Garland to replace the late Antonin Scalia on March 16, 2016. If he takes up and lets the Senate confirm her replacement, he will expose himself as a hypocrite. But the possibility of a 6-3 majority on the Supreme Court is undoubtedly worth it for him.

However, should this come to pass, packing the Supreme Court will instantly become a campaign issue and Democrats will be tempted to say: "Since you play hardball, we are going to play hardball, too." Ginsburg will no doubt try to save the Democrats from this predicament by staying alive for another 14 months, but there comes a time for all of us when our desire to go on living is vetoed by our aging body's ability to do so. (V)

Navy Secretary Richard Spencer Is Fired

Navy SEAL Eddie Gallagher knew better than to pose for a picture with a dead ISIS fighter's body. But he did it anyhow, got caught, and was in line to be punished (though that punishment might also have been due to suspicions that Gallagher was guilty of murdering the person in the photograph). In any case, his punishment was thrown into question once Donald Trump heard about what was going on. Trump cares little for rules, or for the consequences of his decisions. He can see only the PR value in this situation, which afforded him an opportunity to flex his muscles (+1) to the benefit of a military veteran (+1) whose only crime involved one of them damned terrorists (+1). In short, three wins for the price of one.

By contrast, the military establishment, from Secretary of Defense Mark Esper on down, did not want Trump to get involved. First, they did not particularly want to send the message that the rules do not matter, and that "trophy photos" are a-ok. They also did not want the process of meting out justice to be compromised by a presidential end run.

As it turns out, however, there was at least one person in the chain of command who was trying to find a corrupt sort of synergy between the two sets of goals. That would be Navy Secretary Richard Spencer, who went to the White House and proposed a "secret" arrangement wherein Gallagher would keep his status as a SEAL, but would be dismissed from the Navy. That way, in Spencer's view, everyone would get what they wanted.

It basically ended up working out that way, although not along the lines that Spencer proposed. The tribunal went forward, convicted Gallagher, reduced his rank, and forced him to retire. Then, Trump restored the rank, while Esper allowed him to keep his SEAL status. Esper later found out about Spencer's machinations, and on Sunday demanded (and got) the Secretary's resignation, because Spencer had so obviously subverted the chain of command. And so we have yet another situation where Trump and one of his underlings conspired to engage in unethical or illegal behavior, and yet, the person who will pay the price is not the President. (Z)

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---The Votemaster and Zenger