Navy SEAL Situation Devolves from "Big Mess" to "Total Fiasco"

When it comes to the story of presidentially pardoned Navy SEAL Eddie Gallagher, there are so many moving parts, and so many different versions of events, and so many accusations flying around, that it's hard to know where the truth lies. It does not help that there was much movement on Sunday night, which is not exactly the best time to ask questions or get clarifications.

Let's approach the situation by looking at the four key players in this particular drama:

• Gallagher: Though he achieved exalted status as a SEAL, he has quite the checkered record. While he's been decorated for valor several times, he was also investigated for the shooting of a young girl in Afghanistan in 2010, for trying to run over a Navy police officer with his car in 2014, and for violating the rules of war during the Battle of Mosul in 2017. The latter investigation produced two witnesses who said that Gallagher not only posed for pictures with the body of a dead ISIS fighter (which is a no-no), but that he stabbed the person to death after he had surrendered and become a prisoner of war (which is a major no-no). Gallagher was arrested, charged with half a dozen crimes, among them murder, and put on trial. The prosecutor presented the matter thusly to the jury: "Chief [Petty Officer] Gallagher decided to act like the monster the terrorists accuse us of being. He handed ISIS propaganda manna from heaven. His actions are everything ISIS says we are."
  
  The Chief's bacon was largely saved when another man, after being immunized from prosecution, came forward and said that he was actually the one who killed the prisoner of war. Nobody seems to believe that this man is telling the truth, but it's hard to be 100% certain. Left with reasonable doubt on most counts, the jury was able to convict Gallagher only for violating Article 134 of the Uniform Code of Military Justice, "wrongfully posing for an unofficial picture with a human casualty." He was sentenced to four months in prison, which he had already served while awaiting trial, and a reduction in rank to Petty Officer First Class. He filed a petition for clemency, but that was rendered moot when the President stepped in and overturned the punishment. Gallagher will retire to civilian life at the end of this month.
  
  
• Donald Trump: The President has taken an interest in this particular situation for many months. It's not entirely clear what brought the matter to his attention, or why he's so fixated on Gallagher (and two other accused servicemen). In any event, he wanted the soon-to-be-former SEAL to be protected at all costs, and that is precisely what happened.
  
  
• Former Secretary of the Navy Richard V. Spencer: Publicly, Spencer spoke numerous times about the need for good order and discipline, and the importance of respecting the chain of command. Privately, he tried to strike a deal with Trump: You stay out of the Gallagher situation, and I will make sure he doesn't get booted out of the Navy SEALs. Who knows what on Earth Spencer was thinking here. If he thought his machinations would remain secret, he apparently hasn't been paying attention. And if he thought that Trump really cared about Gallagher's fate, as opposed to a chance to ride to the rescue in high-profile fashion with a presidential pardon and to get some good PR, then he really hasn't been paying attention. In any event, he was ordered to resign on Sunday night, which he did. In his resignation letter, Spencer presented himself as a man of principle who simply could not function in such an unprincipled administration anymore. This characterization is rather self-serving, and does not appear to square with the former Secretary's conduct in this matter.
  
  
• Secretary of Defense Mark Esper: On two key points, Esper has told two very different stories in the last few days. Originally, he said that he decided to let Gallagher keep his SEAL status because there was no chance he would get a fair hearing following all this controversy, and he also said that he fired Spencer because Spencer went outside the chain of command. Now, Esper says that both of those decisions were forced upon him by Trump.

So, there you have it. If there is anyone on that list who acted honorably or responsibly, we're not seeing who it is.

Now, let's talk about what it all means. First of all, there isn't going to be any immediate damage to Trump. His administration has so many scandals, we really need a scale in order to compare them. If one covfefe is "a one-news-cycle, tops" kind of scandal and five covfefes is "get ready to draw up articles of impeachment," then this feels like it's about two covfefes. It will linger a couple more days, then will be supplanted by something else over the Thanksgiving weekend.

That's not to say the story is insignificant, however. At the very least, the whole affair makes clear that Esper is the latest of the parade of invertebrates to serve in the President's cabinet, and that he's wrapped as securely around Trump's finger as Secretary of Energy Rick Perry (more below) or VP Mike Pence.

Beyond that, Trump could suffer some long-term damage. The folks at the Pentagon are not happy about all of this, and the reports are that some high-profile officers could resign very soon as a result. Further, one has to wonder where Trump stands with military voters. They are really hard to poll, in part because they are often basically unreachable (no cell phone service in the mountains of Afghanistan), and in part because they aren't supposed to express overtly political opinions. It is thought, however, that they broke about 2-to-1 for Trump in 2016, with officers more Republican and enlisted personnel somewhat more Democratic. Since then, he's pardoned Gallagher (which the other SEALs are reportedly outraged about), has humiliated numerous generals including the very popular James Mattis, and has disrespected the mission in Syria. If the President has bled some sizable amount of military support—say 5-10%—that could be an important factor in 2020, and one that would likely remain invisible until the ballots are counted. (Z)

Legal Blotter, Part I: The Congressional Subpoenas

Judge Ketanji Brown Jackson, a Barack Obama appointee who sits as part of the United States District Court for the District of Columbia, gave Donald Trump quite a poke in the eye on Monday. Ruling on the question of whether or not former White House counsel Don McGahn has to respond to a Congressional subpoena, the Judge said that he most certainly does. Her exact words, which seem custom-built to aggravate Trump:

However busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires. Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings

If that were not enough, she also described testimonial immunity for high-ranking White House staff as a "fiction that has been fastidiously maintained over time through the force of sheer repetition."

Exactly what will happen next is still up in the air. The Dept. of Justice says they will appeal; the next level of the federal court system is the D.C. Circuit Court of Appeals (led by Merrick Garland), and then there's just the Supreme Court. McGahn, for his part, says he will testify unless Jackson's ruling is stayed. It may very well be, although given that her opinion was quite thorough, it might not be, or she might be sustained very rapidly. Meanwhile, many of the folks who are currently refusing to testify may decide the writing is on the wall, and could decide to bow to reality. Put another way, leader-of-the-impeachment-inquiry Rep. Adam Schiff (D-CA) might just get to hear from former NSA John Bolton after all.

On the other hand, Jackson's comments nothwithstanding, the original case was really only about McGahn's appearance. If he loses, he will appear before Congress and may claim executive privilege to avoid answering any questions that touch on his official work in the White House. Then it would go back to the courts for a case centering on executive privilege. That could drag on until 2021. (Z & V)

Legal Blotter, Part II: The Tax Returns

You win some, you lose some. After getting bad news from the D.C. Circuit, Donald Trump got a little bit of good news from the Supreme Court. They have delayed the release of his tax returns to Congress indefinitely, until they can weigh in on the matter. And before they can weigh in on the matter, they must first decide whether or not to expedite the case(s). Briefs on that question are due December 5.

SCOTUS has done very little to tip its hand, so nobody really knows what they might do here. It's not even known how many justices agreed to consider this matter. Still, they could have declined the case outright, which would have been game over for Trump. So, the fact that the matter is still lingering on is good news for him. And if the Court decides not to expedite the ruling, better still. Trump needs to keep up this holding pattern just 344 more days to make it to the election. He probably can't pull it off, but his odds of pulling a rabbit out of a hat did get a little bit better on Monday. (Z)

Activist Group Says New Citizens Could Flip Swing States

The progressive group New American Leaders has done some careful analysis of the voting public, and come to a rather significant conclusion: There are enough brand-new citizens in some of the key swing states to potentially flip those states in 2020. For example, there are 440,000 new citizens in Georgia (which Donald Trump won by 200,000 votes), there are 300,000 in Arizona (which Trump won by 100,000 votes), and there are 64,000 in Michigan (which Trump won by 10,000 votes).

We mention this study because, as with the veterans above, we like to point out possible game-changers for the 2020 election to keep an eye upon. That said, we are currently taking this report with more than a few grains of salt. There's no reason to think that all of these folks are eligible to vote (surely many are minors), nor that they will get to the polls even if they are eligible (new citizens disproportionately choose not to exercise their franchise, for myriad reasons), nor that they would break overwhelmingly for Democrats if they did vote.

On top of all this, the DNC is quite good at what they do, is desperate to unseat Donald Trump and retake the Senate, and is looking under rocks for votes. It's somewhat hard to imagine that they would ignore, or would be unaware of, such an obvious growth opportunity. That, in turn, leads us to the conclusion that either recruitment efforts are underway, or that the Party has reason to believe that this is not so rich or so easy a vein of new votes as New American Leaders makes it seem.

In this context, it is useful to note that early reports in 2017, after Hurricane Maria wiped out Puerto Rico, said that hundreds of thousands of Puerto Ricans had moved to Florida and this could affect the 2018 Senate election there and save then-senator Bill Nelson's hide. Now it appears that the number is closer to 50,000 and the migration didn't save his hide. (Z & V)

Perry Calls Trump "The Chosen One"

If you want to serve in Donald Trump's cabinet, and in particular if you want to last more than a week, you will have to work on your...puckering skills, shall we say. Normally Vice President Mike Pence is the White House's champion brown-noser, although Rick Perry gave him a run for his money during a Fox & Friends appearance on Monday. Explaining that he gave Trump a one-page primer on Biblical kings, the Secretary continued:

I said, "Mr. President, I know there are people that say you said you were the chosen one and I said, 'You were.'" I said, "If you're a believing Christian, you understand God's plan for the people who rule and judge over us on this planet in our government."

Trump has previously referred to himself as the "chosen one," so Perry is just seconding the motion.

We assume that Perry has read his Bible at least once or twice in amongst all the thumping, though we wonder how strong his understanding of Christian eschatology really is. The Bible certainly does refer to a "chosen one," also known as "anointed one," or as "the Christos," or (in English) as "the Christ." Surely Perry is not forsaking the original Jesus and declaring the President to be the true Messiah. Fortunately, the Bible also has some insight about "chosen one" #2 (and #3, and #4, and the like). All of these fellows, who are prophesied to come along before Jesus returns, are described as the "man of sin" or the "pseudokhristos" or (again, if you prefer English) the Antichrist.

The Bible describes quite a few specific characteristics of the Antichrist(s). Among them:

• He will be a man of lawlessness (2 Thes 2:3)
• He will proclaim himself to be God (2 Thes 2:4)
• He will use all sorts of displays of power through signs and wonders (Twitter?) (2 Thes 2:9)
• He will have a mouth like a lion (Rev 13:2)
• He will attract worldwide attention (Rev 13:3)
• He will have the temperament of a dragon (Rev 13:4)
• He will control the world's economy (Rev 13:16-17)
• He will promise to be Jerusalem's savior, but that will prove a lie (Dan 9:27)

Hm, maybe Perry does know what he's talking about, and the end of days are nigh upon us. Alternatively, maybe this is the slickest shade in the history of American politics. Or, maybe Perry and many of his fellow Christians have so badly distorted their religion in service of political ends that they really and truly believe that the President is not only a Christian, but that he is some sort of latter-day prophet. We report, you decide. (Z)

Trump Certainly Looks Like He's Losing Support

In recent weeks, the "impeach him!"/"keep him!" polls have remained relatively steady, with perhaps a slight uptick in the "keep him!" faction. Frankly, we're not convinced that the fluctuations aren't just random noise. In any event, even if support for impeachment is relatively static, Donald Trump does appear to be bleeding some support due to the Ukraine fiasco. Keeping in mind that the scandal broke mid-September, here are his average approve, disapprove, and net figures for the last six months:

Month	Approve	Disapprove	Net
November	42.5%	54.8%	-12.2%
October	42.5%	54.5%	-11.9%
September	43.6%	53.2%	-9.6%
August	43.1%	53.9%	-10.8%
July	43.9%	53.0%	-9.1%
June	44.2%	52.6%	-8.4%

Inasmuch as every figure in this table is based on at least 12 polls, it's somewhat unlikely that pollster error or random fluctuations are significantly affecting the results. And it certainly looks like he's bled a couple of points since the Ukraine situation went public. That may not seem much, but for a fellow who won by the skin of his teeth in 2016, it's a lot. He's taken a particularly precipitous dive in the Rasmussen Poll, where he's now underwater by 11 points. That is consistent with the thesis that there's a real decline here, as Rasmussen generally oversamples and overweights Republicans, and among Republicans is the only place Trump really has to lose support. Anyhow, the takeaway here is that the percentage of voters who support impeachment is not especially well aligned with the number of voters who disapprove of Trump's job performance, and who are presumably primed to vote against him in 2020. (Z)

I Am Not a Crook: A Look at History's Most Scandalous Scandals, Part I

Regular readers know that, over the course of the past month, we've been tinkering with (mocking?) the decades-old formula: "'significant detail' + '-gate' = 'scandal name'," and have described the Ukraine scandal with the various names it might have if some other historical scandal, rather than Watergate, provided the suffix.

This week, which will probably be a slow news week due to the holiday, we're going to pay that off. Starting today, we will give brief overviews of all the scandals we've referenced, at the rate of roughly three per day, in chronological order. There is, for obvious reasons, a bias toward American scandals and toward more recent scandals, though not all entries on the list are recent and/or American. Then, once we're done, we'll have a couple of pieces that try to wrap things up with a nice, tidy bow—apropos to the start of Christmas season (and Hanukkah season, and Kwanzaa season, and Festivus season).

Anyhow, away we go:

1. The XYZ Affair, 1797-98 ("UkraineYZ Affair"): The first great scandal to follow the adoption of the U.S. Constitution, this one was perpetrated by the French, and actually unified the political parties of that era (the Federalists and Democratic-Republicans), at least briefly.
   
   The genesis of the scandal was in the French practice of seizing American merchant ships (something that the British were also guilty of). The administration of President John Adams wanted the French to knock it off, especially since France was supposedly a close ally of the United States, the two nations having recently aided each other in the overthrow of monarchical governments. So, Adams sent three diplomats to Paris to talk it over. Inasmuch as the President was a Federalist, he chose three like-minded fellows to handle the task: Elbridge Gerry, John Marshall, and Charles Cotesworth Pinckney. These three men did not have a high opinion of the French government, seeing it as corrupt and badly run. The modern equivalent would be if Donald Trump, hypothetically speaking, sent Kurt Volker, Gordon Sondland, and Rick Perry to deal with the government of Ukraine. Oh, wait.
   
   Anyhow, the three Americans arrived in France to meet with the French Foreign Minister Charles Maurice de Talleyrand-Périgord. Then known as the Marquis de Talleyrand (and later as Duke de Talleyrand), he was a cutthroat political operator and the nineteenth century's answer to Henry Kissinger. Instead of being allowed to speak to Talleyrand, however, the American diplomats were met by intermediaries, most notably Nicholas Hubbard (later W), Jean Hottinguer (X), Pierre Bellamy (Y), and Lucien Hauteval (Z). These men advised that there would be no deal and no meeting unless the U.S. agreed to pay off all merchant claims against the French, to give the nation of France a low-interest "loan," and to provide a large personal bribe to Talleyrand. That is pretty much how business was done in Europe back then, but the three American diplomats were shocked and offended, and saw the proposal as confirmation of their assessment of the French government. They also felt it was unlikely that the French would honor their part of the quid pro quo, even if the various payments were made. So, Marshall and Pinckney headed back to the U.S., while Gerry remained behind in hopes that there might be some future rapprochement.
   
   Well before Marshall and Pinckney got back to America, however, their correspondence related to the matter reached Adams' hands. The Federalists were persuaded that a great offense had taken place, and wanted the correspondence made public, while the Democratic-Republicans in Congress thought that maybe Adams had made the whole thing up to discredit them and the French. "Fake news" is how they might have described it. The correspondence eventually did get published, but with the French representatives' names replaced by letters, for security purposes. It really should be the WXYZ Affair, but that must not roll off the tongue, so Hubbard's pseudonym did not make the cut. Americans were angry enough that Adams launched the undeclared, and entirely naval, Quasi-War against France, and also used the situation as an opportunity to crack down on foreigners with the Alien and Sedition Acts. Democratic-Republican support for all of this, which had surged briefly, rapidly waned and then turned to anger, contributing substantially to Adams' defeat at the ballot box in 1800. Before leaving office, the President did manage to resolve the broader situation, largely because a new government led by Napoleon Bonaparte had come to power.
   
   
2. The Caning of Charles Sumner, 1856 ("The Caning of Volodymyr Zelensky"): Reportedly, Andrew Jackson's mother once told him: "Never tell a lie, nor take what is not your own, nor sue for assault or slander—settle them cases yourself." That may or may not be apocryphal, but it is a good illustration of a longstanding Southern code that said that certain matters, particularly questions of honor, are to be settled face to face, generally with some sort of violent confrontation. There is a reason that duelling survived in that region long after it had faded away in the North.
   
   That is the broad cultural context for what took place in 1856. The more specific context is the tensions that led up to the Civil War. Charles Sumner was a long-serving U.S. senator from Massachusetts and an outspoken opponent of slavery. In May of 1856, the Senator—angry about the Fugitive Slave Act of 1850, as well as the ongoing violence in Kansas—rose to deliver a speech in the Senate chamber in which he ripped into the South and pro-Southern interests in general, and then turned his sights on two of his colleagues in particular. The first was Sen. Stephen A. Douglas (D-IL) who, though a resident of a non-slave state, was a very prominent advocate of the pro-slavery position. The second was Sen. Andrew Butler (D-SC), who had succeeded the late Sen. John C. Calhoun (D-SC) as the South's preeminent spokesman in the Senate. Sumner excoriated Butler thusly:

   The senator from South Carolina has read many books of chivalry, and believes himself a chivalrous knight with sentiments of honor and courage. Of course he has chosen a mistress to whom he has made his vows, and who, though ugly to others, is always lovely to him; though polluted in the sight of the world, is chaste in his sight—I mean the harlot, slavery.

   The speeches of the 19th century had a lot of subtext to them, and this one is no different. Sumner is suggesting, first of all, that the Senator is an airhead like Don Quixote. He is also implying that Butler is not only metaphorically "in bed" with slavery, but that he literally engages in sexual intercourse with his slaves. This was a common attack against slaveholders, in part because it infuriated them, and in part because it was often true. This would mark the last time in U.S. history that someone would criticize a South Carolina senator for being stupid and immoral, as far as we are aware.
   
   Butler was outraged to have his honor impugned like this, but he was also in somewhat poor health (he'd recently suffered a stroke, and would be dead within the year). So, he was in no condition to avenge the insult. The same was not true of his cousin, Rep. Preston Brooks (D-SC). And so, on May 22, 1856, Brooks entered the Senate chamber to avenge his kinfolk, as chivalry demanded. Finding Sumner at his desk, Brooks proceeded to use his cane to beat Sumner nearly to death. The fact that Sumner could not rise from his desk (which was bolted to the ground) nor defend himself in any way was...not so consistent with chivalry, shall we say.
   
   All of this triggered much outrage in both sections, and certainly pushed the nation closer to civil war. Brooks, for his part, was put on trial and fined (but not given a prison sentence). Knowing that he was going to be expelled from the House, he resigned, and then, in the special election triggered by the vacancy, was reelected to his seat. He received hundreds of canes from well-wishers, though had little opportunity to use them for walking (or anything else), as he died from an asthma-like condition (croup) in January of 1857.
   
   Sumner was critically injured by the attack. Though the medical science of the time was not advanced enough to properly diagnose him, we now know he suffered brain damage and PTSD, among other things. He spent three years recovering, during which he was lauded as a hero across the North. His seat was up in 1856, and he was reelected, despite being unable to return to his duties. Physically, Sumner was never again right, and he suffered from the physical and emotional after-effects of the caning for the rest of his days (he died in 1874). However, when he finally did take his seat in the Senate again (in 1859), he did so to a standing ovation. The Senator became a major power broker there, and a key figure in the formation of the Republican Party, the prosecution of the Civil War, and the implementation of Reconstruction after the war.
   
   
3. Crédit Mobilier, 1872 ("Ukráine Mobilier"): Today, the value of connecting California to the rest of the United States is obvious. Back in the 1850s and 1860s, it was much less so, since California was sparsely populated, and any railway (railroads being the dominant mass transit of the day) would have to cross nearly 1,800 miles of sparsely populated territory, with security from attacks by Native Americans an additional concern.
   
   The Republican Party of the early 1860s, including its leader Abraham Lincoln, had a decidedly Whiggish slant. That makes sense, since many of them, including Lincoln, were former Whigs. And if there is one thing that the Whigs believed in, besides that Andrew Jackson was a giant SOB, it was the value of internal improvements. And so, with Southern Democrats almost entirely absent from Congress due to the Civil War, they passed the Pacific Railroad Act of 1862 (which was then supplemented by additional Pacific Railroad Acts). The bill chartered two private railroad corporations, the Union Pacific and Central Pacific, and granted them various subsidies (money, free land, low-interest loans) in order to make the project appealing to the rail barons who owned the two corporations.
   
   Most of the rail barons were, by the standards of both their day and ours, pretty shady. But the fellows who owned the Union Pacific Railroad (UPRR) really put their contemporaries to shame in this regard. They knew that both the government and the general public would be watching the UPRR very closely, due to concerns about fraud, as well as the widespread belief that there was no real benefit in constructing the transcontinental railroad. That is where the Crédit Mobilier of America (CMA) came in. Crédit Mobilier was the name of a real, and high-profile, international bank of that era (think Deutsche Bank or Credit Suisse today), although the American version had no relationship with the European one—the name of the former was chosen in order to trade on the cachet of the latter. The owners of the UPRR, created (and owned) the CMA, and subcontracted the entire job of building the railroad to it. The CMA, in turn, grossly padded out the invoices it sent to the UPRR, which the UPRR then sent to the federal government for payment. If the UPRR was audited (and it was), it would pass with flying colors, because it was just paying off the invoices it received. It was the CMA where all the skimming was taking place.
   
   The flim-flammery went beyond just bill-padding, however. Since the CMA was a publicly held corporation, they had to make some public accounting of their books. However, the owners of the CMA (who, again, were also the owners of the UPRR), conspired to loot the CMA by buying shares at par value but selling them at market value. The result of all of this was that the federal government paid about $90 million to build the railroad. About $50 million of that was legitimate, about $20 million of that was reported as CMA profits, and about $20 million was pocketed by the owners of the UPRR/CMA through stock manipulation. To make sure that the members of Congress kept the money flowing, and didn't look too carefully at things, several dozen of them were also allowed to buy some stock at par value and sell it at market value.
   
   The whole thing was exposed by the New York Sun in 1872, and there was much gnashing of teeth and rending of garments. President Ulysses S. Grant was not implicated, because the scheming was done by members of Congress, but Vice President (and former Speaker of the House) Schuyler Colfax was. An investigation was conducted by the Senate Judiciary Committee, and another was conducted by the Dept. of Justice. In the end, although a sizable number of people were implicated, there was little in the way of consequences. On Feb. 27, 1873, Reps. Oakes Ames (R-MA) and James Brooks (D-NY) became the only participants in the scandal to receive any official sanctions when they were formally censured by the House. How that might have affected their long-term fortunes will remain forever unknown; Ames left Congress voluntarily when his term expired a week later, and both men—coincidentally—died within a few months (Brooks on April 30, Ames on May 8). VP Colfax was dumped from the GOP ticket, but that was going to happen even before the scandal broke. And, in any event, he ended up being replaced by Henry Wilson, one of the other members who had accepted sweetheart stock deals. Another fellow who had accepted a stock deal, Rep. James Garfield of Ohio, was elected president in 1880. Gilded Age Americans clearly did not stay mad very long after a big scandal.

That's it for today. Up tomorrow: The Whiskey Ring, the Dreyfus Affair, and Teapot Dome. (Z)

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