Impeachment Day 1 Goes Badly for Trump

The third presidential impeachment trial in American history got underway on Thursday. And despite the fact that there was little business conducted, beyond the ceremonial stuff, Donald Trump had a very bad day.

Let's start with the pomp. The day began with House Democrats formally marching the articles across the Capitol and presenting them to the Senate. If you care to watch for yourself, here is the video:

The folks who handled the task were the seven impeachment managers and (taking the lead) House Clerk Cheryl Johnson and House Sergeant-at-Arms Paul Irving. One is reminded of the movies "The Magnificent Seven" or "The Right Stuff." Or maybe of a perp walk.

After the articles were read, and Chief Justice John Roberts made his entrance, the members of the Senate were sworn in as jurors en masse. Here's the picture of that:

You will note that nobody left the room, and that nobody—like, say, Majority Leader Mitch McConnell (R-KY) or Sen. Lindsey Graham (R-SC)—choked on their words or burst into flames when they got to the part about being impartial. So, it turns out that previous, public promises to not be impartial had no effect on the proceedings.

If nothing much was done, then how was it a bad day for Trump? Because of events that took place outside the Senate chamber (and, in fact, before the trial even got underway). To start with, former Trump henchman Lev Parnas has gone full John Dean, and decided to tell everything. Perhaps each of these outlets thought they were getting an exclusive, but Parnas was all over the place on Wednesday and Thursday, sitting for interviews with MSNBC, CNN, and the New York Times. Only he knows for sure what caused him to rebel, but (1) anger at being thrown under the bus by Donald Trump and presidential lawyer/fixer Rudy Giuliani, and (2) desire to avoid prison time presumably played a role.

In his interviews, Parnas gave lots of details about how the sausage was made when it came to Ukraine. In particular, he emphasized three things: (1) that getting the Ukrainians to announce the launch of a formal inquiry of the Biden family was the key, and no other outcome was acceptable; (2) that this was done entirely in service of the President's personal goals; and (3) that Trump was fully aware of the entire operation (as were Vice President Mike Pence and former Secretary of Energy Rick Perry). The President "knew exactly what was going on," Parnas told MSNBC, while to the Times he said "I am betting my whole life that Trump knew exactly everything that was going on..." That is unambiguous, to say the least.

Parnas' revelations, which he would presumably be happy to repeat if subpoenaed, certainly complicate the President's defense (and thus the lives of the senators who want to acquit him). Parnas is a first-hand witness to the events he described, so dismissing his words as "hearsay" doesn't exactly fly. He could be smeared as a liar (and, in fact, Trump and Giuliani are already doing that), but he has hard evidence to back up his claims, as revealed earlier this week. Trump is also insisting that he doesn't even know Parnas, a laughably implausible lie that prompted Parnas' attorney to release a video showing Parnas and Trump having a conversation at Mar-a-Lago. Further, in an instructive (and under-reported) development, the GOP has dropped newly-identified Parnas confederate Robert Hyde like a hot potato, and will not support his bid to unseat Rep. Jahana Hayes (D-CT). If there was no substance to Parnas' claims, then why abandon Hyde?

So, Trump was personally involved in the whole scheme, and whatever plausible deniability he had appears gone. However, his defenders can just argue that what he did, though not pretty, was a perfectly legal exercise of presidential power, right? Actually, Houston, we have a problem on that front, too. Shortly before the impeachment theater began, the non-partisan Government Accountability Office issued a nine-page report declaring that Trump had indeed broken the law, as he is not entitled to infringe on Congress' power of the purse. Here's their (very dry) executive summary:

Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.

Of course, the GAO is just a bunch of lawyers, accountants, and other professionals who specialize in constitutional law and federal government policy, and whose stated mission is "accountability, integrity, and reliability," so what would they know? Indeed, this is a big enough (and adverse enough) development that even Breitbart felt compelled to report the story. In fact, one wonders if the Democrats will consider a third article of impeachment, for violations of the Impoundment Act.

In short, Donald Trump's defense team just earned themselves a fair bit of overtime, as they try to figure out what the heck they are going to do. Assuming the Senate sticks with their previously announced plans, the trial starts in earnest next Tuesday, and the first three days will be used by the prosecution to lay out their case. That means that Team Trump is at bat on Friday morning, so they have one week to decide what their strategy is going to be. The obvious options that present themselves:

• He said, he said: The defense could argue there are two sides to every story and that Parnas (and all the other witnesses) are simply wrong, while the GAO has no idea what it's talking about. This will work for the base, but will it work for anyone else? And, if not, then will it work on GOP senators who face tough reelection bids in purple states (more below)? Further, if Trump's attorneys say that the President sees things one way, and Parnas sees things in another, and who knows who's right, then it makes it particularly difficult for the Senate not to call the other eyewitnesses that are still out there in order to resolve the incongruity, like former NSA John Bolton or Chief of Staff Mick Mulvaney.
  
  
• Gaslight: Trump's attorneys could, and may very well, try to gaslight, and to present a wholly different version of events that has little connection to the evidence. For example: "Donald Trump is a victim of a deep state conspiracy cooked up by Hillary Clinton and her friends Rep. Adam Schiff (D-CA), Ambassador to the EU Gordon Sondland, Joe Biden, the whistleblower, and Lev Parnas, along with several Russian uranium dealers, the Iranian government, and three different pizza places in Washington." This would not be easy to maintain for an entire trial, especially when they are compelled to answer questions. Further, this is another scenario that will get it done with the base, but won't really give cover to the Republican senators who face tough reelection bids.
  
  
• Whataboutism: Given that we're talking about the legitimate exercise of presidential power, and that presidents often operate in gray areas of the law, this might be the best option on the list. If Trump's attorneys can make the case that other presidents have done the same thing, then it would make his own behavior more acceptable. There are a couple of problems here, though. The first is that it's not going to be easy to build this case, because most other presidents haven't done this sort of thing. Breitbart, for example, accompanied their item on the GAO report with this piece, headlined "Seven Times the GAO Found the Obama Administration Violated Federal Law." That may sound damning at a glance, except that the examples are all inadvertent breaches of the law, generally involve relatively small amounts of money, and were committed by people far removed from the President in the chain of command. There is nothing in the Obama administration's record, or the records of most other administrations, that involves the president himself knowingly utilizing vast amounts of money to his own personal benefit. To the extent that parallels do exist they would come from the Nixon administration, and a president who resigned in order to avoid impeachment is probably not the soundest foundation for an impeachment defense.
  
  The other problem with this approach, meanwhile, is that "hey, someone else did it, too" isn't really a defense. You aren't going to be acquitted of, say, murder just because other people got away with murder.
  
  
• Attack the Process: This, of course, was the primary approach taken by Republicans during the House phase of the trial. The problem here is that "I don't like the process" is a red herring, and not an actual defense (outside of overt, and illegal, misconduct). Another problem is that attacks on the process could boomerang on the defense. For example, let us imagine that they trot out Prof. Jonathan Turley again, and he testifies again that the Democrats just didn't investigate enough. What happens if Schiff or one of the other impeachment managers says: "Fair enough. Mr. Chief Justice, we would now like to call the witnesses that were denied to us earlier, including Bolton, Mulvaney, Secretary of State Mike Pompeo, and former White House counsel Don McGahn." Then what?

Undoubtedly, Trump's team will come up with something, because that is their job. And they will benefit from the fact that Trump's defenders are willing to bend over backwards to accommodate him in a way that Bill Clinton's defenders and Nixon's defenders largely were not. Still, trying to triangulate between the desire of Trump for acquittal, the desire of vulnerable GOP senators to avoid the appearance of a sham trial, and the information that is already publicly known (including that which was revealed this week) is going to be a daunting task. (Z)

Ukraine Launches Investigation

Finally, at long last, the actions of the Trump administration have prompted the Ukrainian government to launch an investigation. It is unlikely that Donald Trump will be declaring victory, though, since it's not going to be an investigation of the Biden family. Nope, the Ukrainians will be taking a long look at claims that former U.S. Ambassador to Ukraine Marie ("Masha") Yovanovitch was illegally surveilled at the instigation of the Trump administration.

This news raises three questions as regards the impeachment trial: (1) Will the Ukrainians turn up anything in time for it to influence the trial?; (2) Is this a sign that Volodymyr Zelensky has assessed which way the wind is blowing, and is no longer concerned about stepping on Trump's toes?; and (3) If so, would Zelensky now be willing to say that he felt pressured by Trump's demands, and that he believed a quid pro quo was being proposed? There are no answers to these questions yet, of course, but stay tuned. (Z)

It Turns Out that There Were Casualties from Iranian Attack, After All

When Iran lobbed those missiles at an American military base in Iraq, we were all told there were no casualties. Now, it turns out that wasn't exactly true. In fact, the Pentagon admitted on Thursday that at least 11 service members were treated for injuries. Their explanation for the discrepancy: The injuries were all concussions, and the symptoms did not manifest themselves until several days after the attack.

Maybe all of that is true, and this is the end of it. However, you would be wise to be a bit skeptical. First, the U.S. government, whether run by Federalists, Democratic-Republicans, Whigs, Democrats, or Republicans, has been misrepresenting casualty figures for as long as it has been sending soliders into combat. Dead and injured soldiers do not make voters happy. Second, this administration has a particular reputation, as you may have heard, for dishonesty. Third, "nobody was hurt" was an important justification for Donald Trump's decision to stand down, allowing him to avoid a potentially bloody game of tit-for-tat. In other words, the White House had specific motivation for lying here. Fourth, the administration mysteriously and abruptly canceled four Iran-related briefings scheduled for the members of Congress this week, without explanation. Add it all up, there is much reason to believe there is still more to this story that is not publicly known. (Z)

Iowa Could Have Many Winners

It is 17 days to the Iowa caucuses and counting. We have consistently taken the position that winning Iowa isn't nearly as meaningful as it seems, given the relatively small number of delegates awarded, and the Hawkeye State's inconsistent record of tapping the eventual nominee. Where the results do tend to matter, however, is in identifying those candidates who are not viable. That is to say, a person can finish in the top three or four, and still have hope going forward. On the other hand, finishing in fifth (or worse) is pretty much the death knell.

This year, in response to the close-as-can-be 2016 caucus, Iowa has changed the rules for reporting the results. Previously, the only numbers announced were the final delegate tallies. In 2020, however, the Iowans will announce three things: (1) the initial vote totals, (2) the final vote totals, and (3) the number of delegates awarded.

The Iowa Democratic Party and the DNC thought this would serve to give a winning candidate (e.g., Hillary Clinton) more of a mandate, once people learned that person won both the most delegates and the most votes. Maybe, maybe not, but this also opens up the very real possibility of a split, not unlike a popular vote-Electoral College split, allowing multiple candidates to claim "victory." Actually, it's even worse than that, because in a general election there is only one ballot total, whereas here there will be two. Further, in a general election, there is no prize for second or third place. Unlike horseshoes, dancing, and hand grenades, close doesn't count. In a primary/caucus, runners-up matter.

Needless to say, every candidate is going to parse the results in a way most favorable to their case. Some of them, namely the ones who appeal to rural voters (Joe Biden, Sen. Amy Klobuchar, DFL-MN) are likely to do better in delegate count than ballot count. Others, namely the ones who appeal to urban/college town voters (Sens. Elizabeth Warren, D-MA, and Bernie Sanders, I-VT) are likely to do better in ballot count than delegate count. And Mayor Pete Buttigieg (D-South Bend) is likely to have the most crossover appeal, and will likely be able to say something like, "I'm the only candidate that finished in the top 3 in both rural and urban areas." The upshot is that Iowa is likely to give even less clarity to the race than usual. (Z)

What Bloomberg's Path Looks Like

Assuming that Iowa (and the other three early states) do not substantially clarify the race to be the Democrats' presidential nominee, there is one candidate who stands to benefit. And that would be...former New York mayor Michael Bloomberg. John Ellis, who has covered politics for years for the Boston Globe and other papers, has written a column for the Washington Post that describes what Bloomberg's path to the nomination looks like.

The first part of the plan, as noted, is to wait for the first four states to give a boost to nobody. Since he's not on the ballot, Bloomberg won't be able to win any of those four states. However, because he's not on the ballot, he won't be able to lose them, either. That means he likely remains viable heading into Super Tuesday on March 3. And as that date nears, Bloomberg would use his vast fortune to blanket the airwaves and the Internet with ads, making an argument along the lines of: "Clearly none of the 'frontrunners' has people excited, so what about a highly electable moderate with extensive experience in both the private and public sectors?"

Most people who write about politics, including us, are skeptical that this approach can work. And a big part of the reason we're skeptical is that the last time someone tried it, it failed spectacularly. That would be another New York mayor, namely Rudy Giuliani. However, we would be remiss if we did not point out that there are some important differences between Giuliani 2008 and Bloomberg 2020. First, although Giuliani wasn't trying to win in the early states (which, in 2008, were IA, WY, NH, MI, NV/SC, and LA, in that order, all voting in January of that year), he was on the ballot, and so there was hard evidence for a lack of enthusiasm for him. As we note above, that would not be true for Bloomberg. Second, by the time Giuliani was ready to "throw the switch," then-Sen. John McCain (R-AZ) had already built up a fair bit of momentum. That's somewhat less likely in 2020, given the divided field and the fact that only four states are going early as opposed to seven. Third, Giuliani's burn rate was pretty high, such that he was running low on funds by the time he dropped out. That won't be a problem for Bloomberg, whose bank balance is approximately 800 times as large as Giuliani's entire 2008 cycle fundraising take ($66 million).

So, maybe this New York mayor can make it work where his predecessor could not. We're still skeptical, though. Can we really imagine that anyone is going to get excited, for any reason, about one of the most bland politicians in recent memory not named Terry McAuliffe? Can we really imagine the progressive wing of the party is going to flock to a guy who is barely a Democrat, having rejoined the party just three months ago? Can we really imagine that black voters, a key Democratic constituency, have forgotten Bloomberg's support for "stop-and-frisk"? Bloomberg also has some...curious political instincts. For example, during this week's debate, he (or, at least, his campaign account) was tweeting awkward attempts at comedy, among them:

Last year alone, Mike spent over $200 million dollars on scratch-off lottery tickets. #BloombergFacts #DemDebate

— Team Bloomberg (@Mike2020) January 15, 2020

While Mike is currently the 14th richest person in the world, that position could change depending on how he does tonight at the dog track. #BloombergFacts #DemDebate

— Team Bloomberg (@Mike2020) January 15, 2020

Mike has given billions to charity, but refuses to give another cent to his lazy slacker nephew, Duane. #BloombergFacts #DemDebate

— Team Bloomberg (@Mike2020) January 15, 2020

Ha, ha! How wacky! Nothing voters love more than to be reminded how much richer you are than they. Anyhow, we still don't think Bloomberg is a serious candidate, but we present the evidence on both sides, so readers can decide for themselves. (Z)

Collins' Approval Rating Sinks Below McConnell's

Once per quarter, Morning Consult polls the approval rating of each of the 100 senators. And this month, for the first time, Sen. Susan Collins (R-ME) earned the "distinction" of being the least popular senator in America. 52% of Mainers disapprove of her, which means she's now ahead (behind?) of Mitch McConnell. Only 50% of Kentuckians disapprove of him.

Collins has sunk 10 points in Morning Consult's ratings since the Ukraine saga began; those two things are undoubtedly related. On Thursday, in what is surely not a coincidence, Collins announced that she is "likely" to support calling witnesses during the impeachment trial. This is the latest maneuver in her attempts to try to walk both sides of the street, and to keep both pro-Trump voters and anti-Trump voters happy. Undoubtedly, she's a skilled politician, but it's clearly not working, and that's not likely to change. She's flipping and flopping around so much that neither side is going to feel like she's representing their interests, while both sides will perceive (with good reason) that she's just taking whatever position is politically expedient on any given day.

Collins is also in a much tougher situation than her fellow doghouse resident McConnell. He's not too popular in Kentucky, and he and everyone else knows it. However, for many cycles, the Majority Leader has run on the argument that even an imperfect Republican is better than a Democrat. Given that Kentucky is a very red state, voters have bought into this line of thinking, and decided that maybe the grass isn't bluer on the other side. Maine, on the other hand, is purple-to-blue. It's entirely plausible that voters there will decide that a Democrat is better than an imperfect Republican. In fact, it's more likely than not, at this point.

Incidentally, Collins' sagging approval ratings were not the only good news for Democrats in Morning Consult's numbers. The bottom seven, beyond Collins and McConnell, were Sens. Joni Ernst (R-IA), with 42% disapproval, Lisa Murkowski (R-AK), at 41%, and Bob Menendez (D-NJ), Cory Gardner (R-CO), and Martha McSally (R-AZ), who are all at 40%. All of the bottom seven are also underwater, by anywhere from 3 to 13 points. There are two reasons this is good news for Team Blue. First, it suggests that none of the moderate Republicans are doing a great job of having it both ways on impeachment. Second, five of these seven folks (everyone except Murkowski and Menendez) are up this year, and represents an "in play" Republican-held seat. If the Democrats are hoping that impeachment will boot Trump out of the White House, well...that's still unlikely. However, if they are hoping it will deliver the Senate back into their hands, that's looking much more possible. (Z)

Cheney Won't Run for Senate

By virtue of Sen. Mike Enzi's (R-WY) retirement, Wyoming will have an open Senate seat in this year's elections. Inasmuch as the Cowboy State hasn't elected a Democrat to the Senate since 1970, and it currently has a PVI of R+25, making it the reddest state in the nation, Enzi's replacement will also be a Republican. The only question is: What Republican? On Thursday, Rep. Liz Cheney (R-WY) announced that it won't be her.

Given that Cheney has presidential aspirations, and has won statewide election in Wyoming (inasmuch as the state has only one House seat), it might seem obvious that she would seek a promotion and another line for her résumé. However, former State Treasurer and Rep. Cynthia Lummis (R) has already declared a run, and she's won statewide election more times than Cheney has (5 to 2). And that is before we consider the possibility that well-heeled businessman Foster Friess might jump in. So, there is no guarantee that Cheney would win the seat if she ran for it. Further, she's the third-ranking member of the House GOP Caucus, as Chair of the House Republican Conference, which means that she has a far higher profile in the lower chamber right now than she would have for many years if she became a junior member of the upper chamber.

That said, the last (and only) time someone went straight from the House of Representatives to the White House was 140 years ago, when James Garfield did it. So, Cheney might want to think about setting her sights first on some sort of non-Senate promotion, whether the governorship of Wyoming (though that job's not likely to open up before 2026), a Cabinet slot, or the vice presidency. Luckily for Cheney, at 53, she's still got a fair bit of time left to burnish her credentials. (Z)

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