Pardon Me?

Two big stories related to the pardon power broke on Tuesday. And although we've been thinking about them all day long, we are not sure which of them is the more predictable one.

The first is that just about everyone in close proximity to Trump is asking about a blanket, preemptive pardon before he leaves office. That includes both family members and close associates, from Ivanka Trump and Jared Kushner to Rudy Giuliani and AG Bill Barr. Giuliani, for his part, denies that there have been any such discussions, but does anyone really believe he's being truthful?

The second story is that the Dept. of Justice has gotten wind of a payments-for-pardons scheme being run out of the White House. The DoJ's filing is heavily redacted, and so it's not clear who was involved in the scheme, or exactly when it was uncovered. That means it is not known whether or not Trump was involved, or was even aware of the plan. Still, given the type of people he surrounds himself with, he bears at least some responsibility, even if he was ignorant.

So which of these stories was more predictable? We still don't know. However, we would suggest that the President is playing with fire here. Obviously, anyone involved in the buying and selling of pardons is going to get popped, and will go to jail without passing 'Go' and without collecting $200. But beyond that, the limits of the pardon power have been little explored by the courts, primarily because presidents (even outgoing ones) have been pretty careful not to push their luck too far. But if Trump starts handing out blanket "Get out of Jail Free" cards like candy, and in particular if he decides to try and pardon himself, the courts may just take a very close look at the pardon power, and Team Trump could find that they are not quite as far beyond the long arm of the law as they thought.

It could get tricky if someone bribes Trump into giving him a pardon because pardons apply to crimes committed before the pardon. If the Supreme Court rules that the act of bribery as a part of the pardon process is an ongoing crime and thus not technically before the pardon, the Court could invalidate the pardon. Certainly the act of taking a bribe would be a crime on the president's part and the Court could easily say "no way" to self-pardons. (Z)

Don Trixote Continues to Tilt at Electoral Windmills

Claiming he was cheated out of an electoral victory is Donald Trump's business (these days), and business is good. According to Forbes, his "help me challenge the election" fundraising appeals have brought in a staggering $170 million from folks who would seem to be proving the old adage about a fool and his money, since the fine print in the e-mails makes clear that most of that money isn't actually going to election challenges. It's going to the RNC and to Trump's PAC; the latter legally allowed to pay whatever salary it sees fit to PAC Chair Donald J. Trump. With such a brisk haul, there is zero chance that Trump yields and stops challenging the outcome of the election. As a reminder, it is roughly $400 million in loans he has coming due in the next couple of years.

Other Republicans are joining Trump in pursuit of his empty quest. Rep. Mike Kelly (R-PA), who lost his lawsuit this weekend that endeavored to have his state's electoral results thrown out, has now asked the Supreme Court to take up the matter, with Sen. Ted Cruz (R-TX) loudly seconding the notion. SCOTUS is not likely to touch the matter with a ten-foot pole. Even if they do, they are not going to toss out millions of valid ballots because Kelly has a bee in his bonnet. And even if they do toss out the ballots, Joe Biden doesn't actually need the Keystone State's 20 EVs to be elected.

Similarly, some Congressional Republicans are threatening to object to the final EV tally when Congress certifies the results. Rep. Matt Gaetz (R-FL) is apparently the leader of this group, and if he can find a Republican senator to join him (Cruz?), then the Republicans will indeed be able to lodge a formal protest. However, it will presumably be shut down quickly, as it was when Democrats tried to pull the trick in Jan. 2005. And even if it's not shut down, the Democratic-controlled House is never, ever going to certify any result other than "Biden wins." So, the very best that Gaetz & Co. could accomplish is to keep the top two slots in the order of succession vacant, leaving the country with Acting President Nancy Pelosi. Senate Majority Leader Mitch McConnell (R-KY) will move heaven and earth to prevent that. So, objecting to the EV tally is an empty gesture that, regardless of what Gaetz claims, has no chance of keeping Trump in the White House.

Obviously, the Republicans who are performing this kabuki theater are not participating in the profits from Trump's fundraising. And we assume they are all clever enough to know that they have no chance of actually succeeding (although with Gaetz, who is not the sharpest knife in the drawer, that may be a big assumption). Presumably, what they are all doing is trying to score a few brownie points with the base while the opportunity is still there. And if the fabric of the democracy is damaged in the process, c'est la vie. Collateral damage.

The question is: How long will this work? Every day, more and more Trump loyalists concede that the election was legitimate, and that Biden did win. On Tuesday, Gov. Doug Ducey (R-AZ) said so, in no uncertain terms. So did—of all people—AG Bill Barr. Maybe he shouldn't count on that pardon, after all (see above). In any event, Barr not only said there was no evidence of large-scale fraud, he also engaged in a public spat with Rudy Giuliani over the matter.

Undoubtedly, some Trump loyalists will believe whatever the Dear Leader says, for however long he says it. But for the rest, surely the power of positive denial has its limits, right? (Z)

Trump Inches Closer to Making it Official

Donald Trump spoke to members of the RNC on Tuesday. And his remarks tacitly acknowledged that he lost this year's election, but he'll be back in 2024: "It's been an amazing four years. We are trying to do another four years. Otherwise, I'll see you in four years." The audience—mostly maskless, of course—cheered the promise.

We remain skeptical that he will be able to overcome four years of legal problems, and four years of aging, and four years of hard truths about his administration being revealed, and four years of people remembering what it's like to have a normal president who isn't stirring the pot at all times. However, it is clear that he, at least, thinks he's running. That means that the 2024 GOP presidential race will be chaos. It also means he's going to use his lame duck period to position himself for that hypothetical run.

For example, Congress is very close to confirming the spending bill that will fund the U.S. military for another year. However, at the 11th hour, Trump announced that he would not sign the bill unless it repeals the decades-old federal law known as Section 230. What Section 230 does is protect media platforms, like Facebook and Twitter, from being sued over the content produced by users. Here are Trump's tweets on the subject:

.....Therefore, if the very dangerous & unfair Section 230 is not completely terminated as part of the National Defense Authorization Act (NDAA), I will be forced to unequivocally VETO the Bill when sent to the very beautiful Resolute desk. Take back America NOW. Thank you!

— Donald J. Trump (@realDonaldTrump) December 2, 2020

Trump doesn't understand Section 230 all that well, but what he wants to be able to do is sue Facebook, et al. for "discriminating" against conservatives. And that largely only makes sense for him if he's planning to use the lawsuit as a means of riling up his base in 2024. We shall see if he sticks to his guns, but in any case, keep "How does this help Trump in 2024?" in mind when trying to make sense of whatever he does in the next six weeks. (Z)

Trump About to Suffer One Last Foreign Policy Loss on His Way Out the Door

The signature foreign policy accomplishment of the Trump presidency, such as it is, is the Abraham Accords, which saw the normalization of relations between Israel and the UAE. Part of the deal (and some have gone so far as to call this a bribe) was that the administration agreed to sell 50 F-35 aircraft, a big stockpile of missiles, and 18 Reaper drones to the UAE. The members of Congress, Democratic and Republican, are largely not thrilled to drop so much extra firepower into the middle of that region, especially since Israel would have to be given additional planes/arms, thus potentially triggering an arms race. So, it appears that the sale is going to be rejected. How Trump, or the UAE, will respond to this development is anyone's guess.

It is going to be very interesting to see how Trump's foreign policy will be judged, long term. There may be no aspect of the presidency that requires more diligent, painstaking work than conducting foreign policy. Trump does not do "diligent" or "painstaking," so he went for quick and easy scores, like the photo-ops with Kim Jong-Un, or the killing of Qasem Soleimani. The problem with quick and easy foreign policy is that it tends to be ephemeral, and has little long-term impact. Surely, Trump will leave office having done less of substance, foreign policy-wise, than any president since World War II. So, on a scale of 1 to 10, he might be a 1 or a 2, right? Except that while he didn't do much that was highly positive, he also didn't do much that was highly negative. He didn't effectively cook up a war in Vietnam (like LBJ) or one in Iraq (like Bush 43). He didn't illegally bomb Cambodia (like Nixon), or overthrow the legally elected leader of Iran (like Eisenhower). So, does the absence of big, red debits on his foreign policy résumé push Trump up to a 3 or 4 on that scale of 1 to 10? It is a good question. (Z)

What Ails the Democrats, Part 647

With the election over, and the Democrats having turned in something other than the dominant performance that many expected, every outlet is printing autopsy op-eds from folks on the ground who "know what's wrong" with the Democrats' approach. On Tuesday, Bill Hogseth, the Chair of the Dunn County Democratic Party in Wisconsin, added his two cents to this growing literature, in an op-ed entitled "Why Democrats Keep Losing Rural Counties Like Mine."

Hogseth's basic point is that he looks at his hometown, and he sees the roads that are badly in need of repair, and the empty storefronts, and the poor healthcare, and the drug addiction, and he sees the national Democratic Party saying nothing about how they plan to fix these problems. And so, election after election, the Party fails to win the hearts of rural voters. If only Team Blue would pull their heads out of their collective rear ends, and would speak to the concerns of rural voters, then they could regularly win in places like Dunn County. Easy peasy.

We are, in general, skeptical of pieces that start with the assumption that Democratic politicians and strategists (or Republican politicians and strategists, for that matter) are just too blind to see what is right there in front of them. There is no question that Hogseth honors the rural life, and that he remembers well a time when rural areas were thriving, and abuzz with activity. But the one constant in life is change, and there is much reason to believe that the rural America of the 1950s and 1960s is gone forever and can't be revived. Even if the federal government tried, they would likely just be delaying the inevitable, and at great cost. That is not to say rural voters are unworthy of attention, merely that the things the government can offer are things that would bring rural America into the 21st century, like broadband Internet, job retraining, or factories building solar panels.

Hillary Clinton's platform actually had plenty of those sorts of "modernizing rural America" ideas, as did Joe Biden's. But clearly, it was not what those voters wanted to hear. What they appear to want, on the whole, is someone to tell them that things can be as they were. Donald Trump, with his talk of bringing back the coal industry, and his constant refrain of "Jobs! Jobs! Jobs!", and his "Make America Great Again" slogan, was more than willing to tell rural voters this. He just didn't deliver (and, in fact, couldn't possibly deliver).

In short, we wonder if Hogseth isn't pointing the finger in the wrong direction. In fact, we wonder if he's not a bit in denial about how some rural voters, angry about their situation, bought into "culture wars" rhetoric about socialists and the gays and the deep state. Obviously, every American voter has the right to use their vote as they see fit. But if you use your vote on someone who offers only distractions and backward-looking fantasies, then you are not likely to get much of substance out of your ballot. (Z)

Biden Pressured to Make Cabinet More Diverse

Joe Biden promised to build an administration that "looks like America." And thus far, he's done pretty well. His team of six key economic advisers, formally announced on Tuesday, includes two Black members (one woman, one man), one Asian member, and just one white man. His six-man communications team is actually a six-woman communications team, five of them with children under the age of 6. This is not your father's presidential administration. Particularly if your father is Donald Trump.

Still, from the vantage point of many Democrats of color, particularly those currently serving in Congress, the president-elect's efforts are not enough. Having a Black Undersecretary of Commerce for Oceans and Atmosphere is all good and well, but it's the actual seats on the cabinet that are the big prize, and so that's what everyone has their eyes upon. Latinos, for example, are pushing for five seats. Asian folks are expecting three seats, the same number they had in Barack Obama's original cabinet. The Congressional Black Caucus wants "several" seats, particularly a Black Secretary of Defense.

This is, of course, a fact of life for presidents-elect, who invariably have 10 candidates being pressed upon them for every key posting. The various interest groups might as well ask for the moon and the stars, but they are not going to get most of what they want because of the finite supply of high-profile jobs. Thus far, Biden has picked one white woman, one Latino, and one white man for the jobs that are cabinet posts in the Trump administration. Further, the President-elect is using a trick he learned from Barack Obama, and elevating jobs that are currently non-cabinet to cabinet status. That will be the case with the UN Ambassador (which allowed Biden to add a Black woman to his cabinet), and also with the Chair of the Council of Economic Advisers. Don't be surprised if other jobs get kicked upstairs as well. In any case, when we do our cabinet rundowns, this is why we invariably point out that "white guy" is a strike against a candidate, because Biden can only get away with so many of them. (Z)

The Biden Cabinet: Secretary of Health and Human Services

Another cabinet projection. The positions we've already written up:

• Secretary of State (Nov. 11)
• Secretary of the Treasury (Nov. 13)
• Secretary of Defense (Nov. 17)
• Attorney General (Nov. 18)
• Secretary of the Interior (Nov. 20)
• Secretary of Agriculture (Nov. 24)
• Secretary of Commerce (Nov. 27)
• Secretary of Labor (Dec. 1)

Now Batting: Secretary of Health and Human Services.

• The Job: The name of the department pretty much tells the story; the HHS Secretary advises the president on the health and well-being of Americans, including (interestingly) income security. They interface with health officials at the state level, lobby Congress, and oversee a long list of federal entities, including the Food and Drug Administration, Centers for Disease Control, National Institutes of Health, Indian Health Service, Administration for Children and Families, and Centers for Medicare & Medicaid Services. HHS is one of the largest federal departments, with a budget of $1.3 trillion and close to 100,000 employees.
  
  
• Considerations: Under the best of circumstances, a new HHS Secretary is taking on a massive job, since managing so many people and so much money is no small task. And Biden's HHS Secretary will be handed two additional jobs of head-spinning magnitude on top of that: (1) dealing with the pandemic, including figuring out how to handle vaccination, and (2) making repairs to Obamacare, likely without much assistance from Congress.
  
  There have been 24 people confirmed to the post, and they break down into three pretty distinct types. Because the job involves a lot of politicking, about half of the secretaries were elected politicians (usually members of Congress). Because the job involves a lot of management, another third of the secretaries were bureaucrats with extensive managerial experience. And because the job involves a lot of health and medicine, about a third of the secretaries were physicians. Yes, one-half plus one-third plus one-third adds up to more than 100%; that is because some HHS secretaries are in multiple categories.
  
  
• Candidate 1, Gov. Michelle Lujan Grisham (D-NM): Reportedly, Biden is leaning heavily toward picking a state governor for the job, because he believes that governors have to have each of the skill sets listed above. In Lujan Grisham's case, he's right. She's not a doctor, but she's been involved in health care policy for decades, having begun her political career as New Mexico secretary of health and secretary of aging and long-term services. She's got the political chops; she was a member of the House of Representatives before being elected governor. And as both governor and bureaucrat in New Mexico, she has managed a lot of employees. She would also help with cabinet diversity, joining DHS Secretary Alejandro Mayorkas as members of Latino descent.
  
  We struggle to think of any real downsides to tapping Lujan Grisham, which is probably why she's the odds on favorite to win the job.
  
  
• Candidate 2, Dr. Vivek Murthy: Lujan Grisham particularly checks the "politician" and "bureaucrat" boxes, while Murthy checks the "bureaucrat" and "doctor" boxes. The Yale and Harvard-trained physician is widely respected in the medical field, and has extensive hands-on management experience, having founded the activist group Doctors for America and having served as Barack Obama's surgeon general. Murthy is an innovative thinker, and is known in particular for his argument that "loneliness" should be treated as a serious public health problem.
  
  Murthy is another strong candidate, and is considered to be Lujan Grisham's main competition. He could struggle to be confirmed, given his outspoken anti-gun stance, but he did make it through the Senate once before, so perhaps that's not such a problem. If Biden picks him, it will likely be for some combination of these three reasons: (1) Biden knows him better than he knows Lujan Grisham, (2) Biden could decide that a pandemic demands that an M.D. be in charge, and (3) Biden decides that Murthy is the best way to add an Asian American to the cabinet.
  
  
• Candidate 3, Dr. Mandy Cohen: Another Yale-Harvard grad, Cohen worked in the Centers for Medicare & Medicaid Services during the Obama presidency, and since then has served as Secretary of the North Carolina Department of Health and Human Services. The latter department isn't quite as big as HHS, but it does have 17,000 employees and a budget of $20 billion, so it's similar. Though she has not held elective office, she's had to work with a Republican legislature and a Democratic governor in North Carolina, so she's developed some pretty strong political skills.
  
  Cohen's being white doesn't help her, diversity-wise, though Biden could decide his Cabinet needs a devout, practicing Jew (Janet Yellen and Tony Blinken are also Jewish, but not really observant). Beyond that, Cohen's a fine candidate, but she's going to have a hard time overtaking Murthy and/or Lujan Grisham.
  
  
• Candidate 4, Rep. Karen Bass (D-CA): Presumably, the Congressional Black Caucus would be thrilled to have its current chair be named to the Cabinet. Bass worked in the medical field before entering politics, serving as a physician assistant, and has sat on various health-related committees during her time in Congress. She's about to begin her fifth term in the House, following six years in the California assembly.
  
  That said, Bass is surely a longshot. She's got no experience running a big bureaucracy, and "physician assistant" is not the same thing as "physician." Further, she's a prominent Medicare-for-All supporter, which puts her in opposition to Biden's "fix and improve Obamacare" stance.
  
  
• Candidate 5, Christen Linke Young: Yet another Yalie, though her degree is in law and not medicine. Young served for eight years under Barack Obama, helping to implement the ACA. She also worked in the North Carolina state health department for a couple of years before accepting her current fellowship with the USC-Brookings Schaeffer Initiative for Health Policy. Assuming that we call what goes on at USC "research," she's researching health insurance coverage and ACA implementation.
  
  Young would be a pretty good choice if "fix the ACA" was the only task for the new HHS secretary. But putting a Yale-trained lawyer in charge of the nation's pandemic response? It hasn't worked so well with Alex Azar, and you know what they say about the definition of insanity.

This is another position where a lot of names are floating around. In addition to the five folks listed above, CEO of LSU Health New Orleans' Health Care Services Division Dr. Rebekah Gee, former Obama White House official Kavita Patel, COVID-19 task force member Ezekiel Emanuel, Gov. Gina Raimondo (D-RI) and Secretary-designee of Wisconsin's health department Andrea Palm are also being mentioned. So is Dr. Anthony Fauci, but he's made clear he doesn't want the job. In any event, the broad consensus is that it's either going to be Lujan Grisham or Murthy.

Next up, assuming we are not scooped, is Housing and Urban Development. (Z)

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