McConnell Finally Reveals Impeachment Rules

Imagine that someone was on trial, the time for verdict arrived, and the defendant looked at the jury or the judge, tapped their watch, and said: "Can you make it snappy? I've got tickets to a ballgame." That probably wouldn't go over too well, as it would be remarkably presumptuous, while also suggesting a total lack of contrition.

On Monday, in our latest reminder that what is happening in the Senate right now bears little resemblance to an actual trial, Donald Trump did almost exactly that. He didn't tap his watch, but he did make clear that he wants this whole thing wrapped up no later than Feb. 4, which is when the state of the union address is scheduled. The President's surrogates, including Sen. Lindsey Graham (R-SC), also communicated that message during TV hits. That would be the same Lindsey Graham who is one of the 100 judges/jurors who will consider the case against Trump, and who has sworn an oath to be impartial.

Senate Majority Leader Mitch McConnell (R-KY), who is also a judge/juror, and who has also sworn an oath to be impartial, released the proposed rules for the trial on Monday, and he's doing everything he can to accommodate the President's wishes, with room to spare. Assuming that the rules are approved by the Senate (and McConnell says he has the votes, of course) then the prosecution will present its case over two marathon 12-hour days, running from 1:00 p.m. to roughly 3:00 a.m. each day. Then the defense will do the same, bringing the running total to four days. Then will follow 16 hours of questioning from Senators, presumably split across two days (although who knows?), followed by a vote on whether or not to subpoena new witnesses and/or new evidence.

What all of this means, at the very least, is that much of the trial is set to take place with a tired (and thus unfocused) jury of senators, and that a fair bit of it will take place in the dead of night, well after newspaper deadlines pass. Richard Nixon, author of the Saturday Night Massacre, would surely approve. It's also entirely possible that the whole thing could be dispensed with in under a week, if the senators do not decide to consider new witnesses and/or new evidence. That is a decision that, incidentally, will also be made in the dead of night.

Naturally, Senate Democrats are furious at the extent to which the Majority Leader is doing the President's bidding. For example:

Let’s be 100% clear - the only reason to restrict the impeachment managers to 24 hours over 2 days is to make sure the evidence is presented in the dead of the night, when no one is watching.

It’s not about finding the truth or honoring our duty.

It’s all about the coverup.

— Chris Murphy (@ChrisMurphyCT) January 21, 2020

These guys REALLY don’t want documents and witnesses and we should stop pretending that we don’t know why.

— Brian Schatz (@brianschatz) January 20, 2020

Americans deserve a fair trial in the Senate, and let’s be clear: an endurance test does not equal a fair trial.

— Senator Patty Murray (@PattyMurray) January 20, 2020

Senate Minority Leader Chuck Schumer described McConnell's proposal as a "national disgrace," and promised to introduce an amendment this morning that would lengthen the timeline and allow the calling of witnesses. Presumably, that will be defeated, and the trial will begin under the rules that the Majority Leader has set.

What this means is that the key moment, the linchpin to the whole thing, is going to be that vote on Sunday or Monday, when a handful of vulnerable GOP senators will decide if ending the trial after six days will look OK to swing voters, or will make the whole thing look like a sham. That, in turn, means that the spin that goes on outside the Senate chamber will be as important (or maybe even more important) than what actually happens within the Capitol.

Consistent with that, the Trump administration appointed eight Republican members of the House to serve as "advisers" to the President's impeachment team. They are Jim Jordan (OH), John Ratcliffe (TX), Mike Johnson (LA), Mark Meadows (NC), Debbie Lesko (AZ), Lee Zeldin (NY), Elise Stefanik (NY) and Doug Collins (GA). It is exceedingly unlikely that the nine lawyers on the impeachment team need much in the way of advice, particularly if the trial is only going to last a week, and the defense is only going to speak on two of those days. However, now that these folks have an "official" role, it justifies booking them on Fox News or "Meet the Press" or whatever other outlet/channel to talk about the trial. It is notable that several of these "advisers" don't even have law degrees (e.g., Meadows), but they do all have a history of vocally supporting the President.

The Trump spin machine was also in full force on Monday, even before these folks were announced, with the President's team making liberal use of the word "charade" (obviously, a centrally agreed upon bit of messaging) on both TV and in the 110-page brief they released. Alan Dershowitz, who it appears will be the lead "TV lawyer," was particularly ubiquitous in the last 48 hours, making the argument that a president has to commit an actual crime in order to be impeached. That is a 180-degree reversal of the position that Dershowitz took in 1998, when Bill Clinton was being impeached (his remarks start at 5:24):

For those who do not care to watch, Dershowitz declared back in '98: "It certainly doesn't have to be a crime if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don't need a technical crime. We look at their acts of state. We look at how they conduct the foreign policy. We look at whether they try to subvert the Constitution." When called out on this rather substantial inconsistency on Anderson Cooper's CNN program, the former law professor said he is "much more correct right now." That's certainly...convenient.

What this also means is that when Trump is accused of an actual crime, his lawyers argue that a sitting president cannot be criminally prosecuted (or investigated). And when he's accused of abuses of power/obstruction of Congress, and impeached, his lawyers argue that it doesn't count, because it's not an actual crime. That's also...convenient. As a bonus, when he's accused of a civil offense, his lawyers argue that a sitting president cannot be civilly sued (or investigated). In the aggregate, this certainly seems to be an assertion that the president is above the law in all circumstances. Will the alleged "liberal Democrat" Dershowitz and the members of the Republican Party still feel this way once a Democrat is back in the White House? Hmm...

Also participating in Monday's spin party was senior White House adviser Kellyanne Conway, who decided to take advantage of Monday's holiday, and share her informed historical analysis that, were he still alive, Martin Luther King Jr. would oppose impeaching Trump. "I don't think it was within Dr. King's vision," she said "to have Americans dragged through a process where the president is not going to be removed from office, is not being charged with bribery, extortion, high crimes or misdemeanors."

Quite a few folks were aggravated that Conway appropriated King in this way, but we think there's a real opportunity here. Every day, she could go on Fox or OANN to explain how a different historical figure would feel about impeachment. For example:

• Julius Caesar: "Et tu, Bolté?"
  
  
• Jesus: "Jesus knew what it was like to be put on trial for crimes you did not commit by people who don't like your ideas. Of course, the President is more devout than Jesus was."
  
  
• Isaac Newton: "If Newton was still around, he'd pick that apple up and throw it at Chuck Schumer."
  
  
• Isabella I of Castile: "She'd say this makes the Inquisition look like a day at the park."
  
  
• George Washington: "I believe it was Washington who said: 'I cannot tell a lie. Donald Trump should not be impeached.'"
  
  
• Abraham Lincoln: "Lincoln was constantly dealing with a Congress that drove him nuts, too. Why do you think he went to the theater so often?"

Undoubtedly, Conway also has valuable insight into how Confucius, Alexander the Great, Joan of Arc, Leonardo da Vinci, Mahatma Gandhi, and Winston Churchill would feel about impeachment.

One person Conway apparently didn't ask, and who is actually available for consultation, possibly even for free, is her husband, George Conway. Rather than discussing the matter over dinner, George decided the easiest way to get through to Kellyanne was writing an op-ed in the Washington Post, something he seems to do about once a week. His comment on Trump's response to the articles of impeachment starts out with: "Their arguments are wrong on the facts and wrong on the law, but that's not the worst part. At its core, they represent an attack on the impeachment process—and on the Constitution itself." After that it gets nastier. There was a 1979 movie Kramer vs. Kramer with Dustin Hoffman and Meryl Streep. Some day when the full story of the Trump administration has come out, there is bound to be a book (and movie?) Conway vs. Conway.

Anyhow, the Democrats will also be flipping the switch on their spin machine, presumably starting today. And again, all of this—impeachment "trial" and media spin—is for the benefit of a fairly small number of GOP senators, with the Democrats hoping they will vote to keep the trial going, and the Republicans hoping they will vote to end it quickly.

Of course, McConnell has most of the cards in his hand when it comes to keeping his caucus in line. He can even allow a few especially vulnerable GOP senators, like Susan Collins of Maine or Cory Gardner of Colorado, to vote with the Democrats, if it comes to that. That said, the latest poll of the electorate reveals that things are holding steady, and that a slight majority of Americans (51%) wants to see Trump convicted and removed. Presumably, in bluish states like Colorado and purplish states like Maine, that percentage is higher. So, the vulnerable Republican senators are about a week away from what will presumably be a very tricky decision for them. (Z)

Emoluments? What Emoluments?

In general, it is concerning when politicians do not divorce themselves from their financial portfolio, as the potential for abuse of power is so great. It was particularly concerning when Donald Trump chose not to do so, in part because his portfolio is so large and diverse, and in part because he's got something of a reputation for abusing the rules and for lining his pockets at all costs (e.g., his "charity," his "university," etc.).

Politico has a story right now reminding us of how very thoroughly the fears of three years ago have come to pass, as it is essentially impossible to tell where Trump the president stops, and Trump the businessman begins. He has steered government business to his hotels and golf courses, has successfully encouraged (required?) foreign dignitaries to stay at Trump International in Washington, has appointed key officeholders (like IRS commissioner Charles P. Rettig) to whom he has financial ties, and has leaned on foreign governments to grant pecuniary and other concessions (like, for example, fast-tracking trademark applications).

Needless to say, nothing is going to happen to Trump while he's in office. If using federal government funds to extort Ukraine produces only "witch hunt" complaints and a weeklong trial in the Senate, then leaning on people to get them to stay in presidential hotels is practically quaint by comparison, and Democrats certainly aren't going to stick their necks out (again) to impeach him on it.

What about when Trump is an ex-president? It is entirely possible that the next Democrat to occupy the White House will have the Dept. of Justice pursue this. However, he or she will have to think long and hard about that. On one hand, it is not good to establish the precedent that presidents can ignore the emoluments clause with impunity as long as their party controls the Senate. On the other hand, prosecuting an ex-president risks setting off a banana-republic-style tit-for-tat arms race, where parties win the White House and then seek to punish their predecessors. Plus, there are so many things that Trump might plausibly be prosecuted for; this one may be fairly low on the list compared to things like campaign finance violations and obstruction of justice.

It's also possible that the Trump presidency could be interpreted as a lesson in the shortcomings of the foreign and domestic emoluments clauses, and that once he's gone, Congress will pass laws that tighten things up for future presidents. That also won't be easy, though. First, Congress is not known for cooperation these days, even on seemingly obvious things like securing elections. Second, it won't be so easy to write the law in a way that forces presidents (or vice presidents) to divest themselves of everything without effectively creating a new requirement for qualifying for the presidency. That, in turn, might not pass muster, constitutionally. All of this is to say that this emoluments issue is a very thorny one that does not lend itself to easy solutions, either in the short or the long term. And given that roughly 20% of this year's Democratic field is made up of billionaires, this is a problem that is likely to rear its head again, sooner or later, and probably sooner. (Z)

About Trump's Popularity with Republicans...

Although Donald Trump does not do so well with Democratic and independent voters, he's wildly popular with Republicans. Even in the midst of being impeached, his approval rating with GOP voters remains in the 90% range, which outpaces all of his Republican predecessors (well, the ones who served in the era of polling, at least). The common, and seemingly logical, explanation for this is that the President is so loathsome to those outside the base that he forced a lot of moderate Republicans out of the party, which left behind an unusually pure pro-Trump remnant. After all, how could Trump possibly be more beloved among his fellow party members than Dwight D. Eisenhower or Ronald Reagan?

As it turns out, according to an analysis by the Washington Post's Philip Bump, the numbers don't really support that interpretation. The percentage of the electorate that identifies as Republican (about 28%), and the percentage of that percentage that approves of Trump (about 90%) has remained consistent over the course of the President's term, which has just begun its fourth year.

What really happened, as it turns out, is not that Trump "purified" the Republican Party, he merely took advantage of an already-existing state of affairs. Put another way, Trumpism is really a byproduct of the polarization that has emerged over the last generation, particularly the last 10 years or so. During the George W. Bush and Barack Obama years, a sizable percentage of the moderates in those parties (particularly in the GOP) jumped ship, and either joined the other party, or (more commonly) became Democratic-leaning/Republican-leaning independents. This also makes sense if we consider broader historical trends. That is to say, back when Eisenhower or Reagan was president, the Republican Party had liberal and conservative wings. The same is true of, say, John F. Kennedy or Bill Clinton and the Democratic Party. Needless to say, it's not so easy to keep everyone in two somewhat different factions happy at all times. It's much easier when a party is basically made up of one faction, which is a pretty apt description of the modern GOP (less so with the modern Democratic Party). This helps explain why no president prior to Trump, Republican or Democrat, has consistently been as popular with the members of his party as Trump has.

In the short term, this is very good news for Trump, as it's going to make it very hard for someone to vote against him in the impeachment trial and to get reelected as a Republican. In fact, it may be impossible to do so. In the medium term, it means that there is no reason to expect the GOP to "wake up" and become the Party of Lincoln (or even the Party of Reagan) again once Trump is gone. It was already the Party of X when Trump came along; all he did was solve for X. In the long term, however, the GOP pooh bahs should be very nervous. The current Republican coalition is held together by stances on the issues (anti-immigration, climate change denial, anti-abortion) and by appeals to "culture wars" that work with sizable numbers of white voters (especially older and/or uneducated ones), but that are anathema to most voters under 40 and to most voters of color. Trump barely won election in 2016, and it's possible he will win another squeaker in 2020, benefiting from the power of the bully pulpit. But once we hit 2024, the Republicans' math just won't add up, at least not on the national level. (Z)

...Which Leaves No Room for a "NeverTrump" Challenger

The notion that the GOP has a sizable number of voters who don't actually like Donald Trump, or that there exists a sizable number of Republican-leaning "independents" who are just waiting for the Party to return to normalcy, is what prompted several Republican candidates to announce primary challenges to Donald Trump. And when Joe Walsh, Bill Weld, and Mark Sanford announced their bids, we said the same thing each time: There is no way that a president with a 90% approval rating among the members of his party gets knocked off by a primary challenger.

Now, several months in, this trio has learned that truth the hard way. Sanford, for his part, has already dropped out. Meanwhile, Walsh and Weld have each failed to make the ballot in more than a dozen states; most recently they both failed to qualify for the Virginia ballot. On top of that, there are the half dozen or so state Republican parties that have canceled their primaries/caucuses. In short, unless he is convicted in the impeachment trial, resigns, or dies (all of which are highly unlikely), Trump will not only be the GOP nominee for the 2020 election, he will be their unanimous nominee. (Z)

And Then There's Trump's Popularity with Black Voters

The corollary to the Republican Party's embrace of "culture war" issues (which often includes thinly veiled racism, or even not-so-thinly veiled racism) is that they and their president are extremely unpopular with black voters. A new Washington Post/Ipsos poll underscores this: 90% of them disapprove of the job Trump is doing, 83% of them think he is racist, 77% of them say he has little or nothing to do with the low unemployment rate among black workers, and 65% of them say this is a bad time to be black in America.

It cannot be easy to feel like the President (and much of the country) hates you. Of course, voters who are angry/fearful/resentful also tend to be motivated voters, so this suggests a high level of black turnout in 2020, which is very bad news for the GOP. In 2016, 59.6% of eligible black voters cast a ballot, which was the lowest figure since the 2000 election (56.8%). It's not a coincidence that the GOP won those two elections by the skin of their teeth. If the turnout of black voters jumps into the mid-60s (the high was 66.6% in 2012), Trump will lose, and the Senate might very well flip.

These data also help us to understand the exceedingly pragmatic approach that black voters are taking to this year's election, overwhelmingly lending their support to the most "electable" candidate, with getting rid of Trump being the overriding concern. It appears, more and more, that these folks are lining up behind Joe Biden. Our best indicator of black voter preferences at the moment is polls of early-voting state South Carolina, where more than 60% of Democrats are black. There, Biden is absolutely leaving the field in his dust. In the latest poll of the Palmetto State, from Fox News, the former VP is at 36%. That puts him a staggering 21 points ahead of the second-place candidate, which is...Tom Steyer (15%). Sens. Bernie Sanders (I-VT) and Elizabeth Warren (D-MA) are not too far behind Steyer, at 14% and 10%, respectively. Of course, given the Democrats 15% cutoff to receive delegates, Biden could very well walk away with well more than 36% of the 35 delegates that South Carolina will award on Feb. 29. (Z)

Biden Doing Well in Iowa

South Carolina isn't the only place where things are coming up rosy for Joe Biden these days. As we get closer and closer to the day where Iowans have to cast actual ballots, he's doing quite well in the Hawkeye State. Four polls have been released in the new year, from Focus on Rural America, Monmouth, CNN/Des Moines Register, and CBS News/YouGov. Here's everyone who got above 1% in at least one of the four (and who is still in the race):

Candidate	FRA	Mon	CNN	CBS	Average
Joe Biden	24%	24%	15%	23%	21.5%
Bernie Sanders	14%	18%	20%	23%	18.75%
Pete Buttigieg	16%	17%	16%	23%	18.0%
Elizabeth Warren	18%	15%	17%	16%	16.5%
Amy Klobuchar	11%	8%	6%	7%	8.0%
Andrew Yang	3%	3%	5%	2%	4.3%
Tom Steyer	4%	4%	2%	2%	3.0%
Tulsi Gabbard	1%	2%	2%	1%	1.5%

With our usual caveats that Iowa's caucus system makes accurate polling particularly hard, and that one should not put too much stock in the opinion of a smallish and not-terribly-representative state, things are shaping up for Biden to get the 2020 cycle off to a good start. (Z)

Where Will the Trump Presidential Library Be?

The presidential library is actually something of a new phenomenon, emerging in the mid-20th century as a standard part of honoring an ex-president's service. Donald Trump is not a man known for research, or the embrace of knowledge, or even reading, but he loves to have his name on things, and so he's surely going to insist on the construction of the Donald J. Trump Presidential Library (and Golf Course?).

Locating the Trump Library is at least a little bit of a conundrum, as the state and city with which he's most identified are not exactly Trump-friendly, and are known for incredibly expensive real estate. It would appear that a tentative alternative has been found, however, and it's in Trump's new "home" state of Florida. Briny Breezes is a very Trump-friendly enclave, and would also welcome a new source of tourist revenue. The weather is good year-round, and it's not at all fire-prone, so there would be little risk of books being burned before they've been colored in. The real estate there would be affordable, because Briny Breezes is...a trailer park. Insert redneck joke here.

We freely acknowledge that an item like this is a triviality and has absolutely no bearing on present-day electoral politics. However, some days are absolutely dominated by heavy-duty news stories about events, like impeachment, that are likely to shape the future destiny of the republic. On days like that, it's sometimes nice to finish the day's posting with a little, light palate cleanser. (Z)

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