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Senators Finally Get to Ask Questions
Generally at a criminal trial, questions are asked by the lawyers and are directed at the witnesses or the accused, and are very helpful in bringing the trial toward a proper conclusion. But an impeachment trial is no ordinary trial, so the questions are being asked by the jurors, are being directed to the lawyers, and are not having much of an effect on the proceedings at all.
It was possible, at least, that well-crafted questions might have shaken things up a bit, made some headlines, and put some pressure on the senators who are caught between Trump and a hard place. That is not what happened, however. Most of Wednesday's questions were primarily about posturing, and often came down to asking either the defense or the prosecution to deliver a five-minute monologue on how wrong the other side is. You may notice that is a description of what's already been going on for the last five days or so, which means it doesn't add much for an Adam Schiff or a Pat Cipollone to get up and do it again. On those infrequent occasions where a senator asked an actual, penetrating question, one that might reveal some new information, the question got punted.
For example, the President's defense team was unwilling to answer questions from Sens. Lisa Murkowski (R-AK) and Susan Collins (R-ME) about whether or not Trump mentioned the Bidens to Ukrainian officials at any time before Joe Biden declared his presidential run. They similarly declined to answer Sen. Mitt Romney's (R-UT) question about exactly when a hold was placed on the aid to Ukraine. In the other direction, Sen. Rand Paul (R-KY) tried very hard to sneak the alleged whistleblower's name into the record, but he was shut down by presiding officer/Chief Justice John Roberts before Schiff & Co. even had the opportunity to refuse to answer. It just affirms the perception that Paul, if we can be brutally honest here, is a real jerk. After all, normal people don't get themselves tackled on their own lawns by a neighbor who just can't put up with their nonsense anymore.
The general fecklessness of the questions and answers meant that the big headline maker on Wednesday, such as it is, was defense attorney Alan Dershowitz. He conceded that there was a quid pro quo, but declared that if the president tries to extort another country in service of his reelection bid, and he doesn't break the law, then that's completely ok, because he's doing so in service of the public interest as he sees it. An interesting legal theory, to be sure, and delightful to the Louis XIV wannabe at the other end of Pennsylvania Avenue, but a theory with a couple of holes in it. First, lest anyone forget, the Government Accountability Office has said that Trump did break the law by impounding funds Congress had appropriated. Also, soliciting election help from a foreign national is a federal felony even if the request is refused.
Second, Dershowitz's assertions are entirely at odds with the Constitution and with virtually all legal thinking on this subject, and, if they were to become precedent, would open a massive Pandora's Box that would legitimize all sorts of bad, banana-republic-like behavior. After all, all presidents think their reelection is in the national interest. In any event, just in case anyone thought that the President's defense team had finally settled on a cohesive argument that they can all agree upon, that did not happen. Later in the day, the other members of Team Trump returned to denying the quid pro quo.
Given that the first 8 hours of questions and answers yielded little of value, there's no particular reason to think that today's 8 hours will be any better. That means that what everyone's already laser-focused on is the issue of whether or not to call former NSA John Bolton and/or other witnesses. As noted above, the trio of senators most likely to rebel against the President were all asking hard questions on Wednesday, which makes it seem like they might really be prepared to support a call for witnesses. On the other hand, several other potential rebels, including Sens. Cory Gardner (R-CO), Pat Toomey (R-PA), and Martha McSally (R-AZ) all came out on Wednesday and said they oppose witnesses. Sen. Lamar Alexander (R-TN), who would potentially be the swing vote, is saying little.
Perhaps you see where this is headed: A possible 50-50 tie. In that event, nobody knows what John Roberts would do. And he, of course, is not saying. Republican senators said they think that they have the votes to block witnesses from being called, and that they don't think Roberts will have to make a decision. Maybe so, but when it's this close, nobody can be truly certain. After all, Senate Majority Leader Mitch McConnell (R-KY) thought he had the votes to kill Obamacare, and you know what happened there.
If the vote to call witnesses does fail, then McConnell will move forward on Friday with a vote to acquit. The Democrats could plausibly drag that process out for a day or two by offering up lots of sure-to-be-defeated amendments, but they could also decide that would look like sour grapes, or that they would like to let their presidential candidates get back out on the road, and could choose not to do so. In other words, there is a version of events where the impeachment trial has more weeks, and more drama, ahead, and there's also a version of events where everything is done and over in time for the Super Bowl. (Z)
John Bolton's World Is Upside Down
Suppose you are a foreign policy hawk who has worked in multiple Republican administrations, and whose gut tells you to bomb first, ask questions later. What would you be thinking after watching the news and discovering that Democrats (who used to call you a dangerous, nutty, reckless extremist) love you, and Republicans (who used to think of you as the top foreign policy expert in the country) hate you? This is former NSA John Bolton's world now.
Some of the Democrats who used to excoriate him are now touting his credibility. In contrast, some of the senators whom he used to work closely with are now on Fox News calling him "a tool for the radical Dems and the deep state." The irony here is that Bolton was on Fox News himself for 11 years. Sen. Chris Van Hollen (D-MD), who has previously called Bolton a "warmonger," described the situation as a "totally upside-down world." Former White House Chief of Staff John Kelly, who has gotten into profanity-laced shouting matches with Bolton, now says he believes Bolton's book.
One thing that most people who know Bolton agree on is that he is scrupulously honest. He says what he thinks and lets the chips fall where they may. He doesn't make up stuff. This is why he got into so much trouble with so many people when working for the government. But as a hard-right conservative with a reputation for always telling the truth, he could make a powerful witness.
Nevertheless, there are a couple of things to keep in mind. First, he wants to sell books and might provide testimony to maximize sales, even if that means telling the truth, some piece of the truth, and nothing but the truth. Second, friends say that he is still interested in having a future in Republican politics. Being responsible for the conviction of Donald Trump is not likely to be something he is eager to put on his résumé, so his testimony could contain more than a few surprises, should it come to pass. (V)
White House Wants to Block Publication of Bolton's Book
In addition to trying to block John Bolton's testimony, the White House is also trying to censor his upcoming book by claiming it contains "significant amounts of classified information." Senior White House official Ellen Knight informed Bolton's lawyer on Jan. 23 that some of the information in the book was top secret, so the book could not be published in its current form.
It is not known precisely what information the White House objected to, but no one will be surprised if everything negative concerning Trump has been marked for deletion.
What happens next depends on whether Bolton is subpoenaed by Congress and testifies in public. While the Executive Branch has some powers, so does the Legislative Branch, if it chooses to use them. If Bolton, under subpoena, says things in public that are in the book, the White House's case that the information must be suppressed will essentially be moot. Furthermore, if the Senate decides not to subpoena Bolton, the House certainly could. The administration could go to court to try to get a court order to stop him, but absent that, it would have no way to stop him from testifying, and once the information was out there, there would be no good reason to suppress the book.
On the other hand, if Bolton does not testify before Congress, then he could try to "fix" the problems with the book, or he could sue. However, either of those options could very well put the book in limbo for many months, or even years. The Trump administration, in a strategy that may sound familiar, would love to tie things up until after the election, and they would probably be able to do it. Call it the "tax return gambit." Naturally, if Trump is defeated at the ballot box, an insider tell-all book isn't going to sell nearly as well. So, Bolton is presumably now very eager to talk to someone in Congress, as that may be the only way to put the kibosh on the White House's suppression efforts. He's probably also kicking himself that he resisted past efforts to get him up on Capitol Hill. (V & Z)
Poll: Majority Opposes Use of Executive Privilege to Muzzle Witnesses
We still don't know whether witnesses will be allowed/required to testify at the impeachment trial (see above). First, the Senate has to vote whether to allow any witnesses at all, or just to vote on Donald Trump's guilt or innocence and wrap up the show. Even if the Senate votes to allow witnesses, it will vote separately on each one, including John Bolton, Chief of Staff Mick Mulvaney, Hunter Biden, and others. In the case of Bolton and Mulvaney (but definitely not the case of Biden), Trump could, and probably would, try to invoke executive privilege to try to prevent testimony.
From a legal perspective, that is probably a bad idea. If Chief Justice John Roberts or some other federal judge has to decide whether executive privilege works here, the evidence weighs pretty strongly against the President. After all, impeachment is specifically described in the Constitution and the Senate is granted the sole power to try impeachees. Executive privilege is not only not mentioned in the Constitution, it isn't even mentioned in any federal statutes. It is hard to see any judge ruling that a presidential wish overrides the written text of the Constitution. So, Trump's attempt to do so would likely fail, while at the same time weakening a doctrine he likely plans to use again in the future.
From a political perspective, meanwhile, it is definitely a bad idea. A new Politico/Morning Consult poll shows that, by a margin of 57% to 26%, registered voters oppose the use of executive privilege to block witnesses like Bolton. Opposition to executive privilege is 86% among Democrats, 57% among independents, and is even at 25% among Republicans. If Trump even tries to do it, Democrats are instantly going to be screaming: "Cover up! Cover up! Cover up!" And to a majority of voters, it will make Trump look guilty. Of course, Trump's lawyers have certainly read Bolton's book and may decide that his testimony will be so damning that even if there is only a 10% chance a judge or Roberts keeps him from testifying, it is worth the risk. (V)
Poll: Biden and Sanders Are in a Statistical Tie in Iowa
A new Monmouth University poll of Iowa released yesterday has Joe Biden on top at 23% and Sen. Bernie Sanders (I-VT) second at 21%. The margin of error is 4.2%, so either candidate could really be first. The only other candidates in the double digits are Pete Buttigieg at 16%, Sen. Elizabeth Warren (D-MA) at 15%, and Sen. Amy Klobuchar (DFL-MN) at 10%.
The caucuses are notoriously difficult to poll because turnout is so low compared to a primary, and it matters a lot who shows up. Also, the 15% cutoff means that the second-place choices of candidates who are eliminated in round one can ultimately determine the winner. So, all this poll really tells us is that things are going to be interesting next Monday. (V)
Biden Gets 200 Endorsements in South Carolina
Joe Biden, who has been leading in South Carolina for months, just got some more good news. Almost 200 teachers and educational leaders in South Carolina have endorsed him. Whether this translates into more votes remains to be seen. South Carolina could have enormous importance for Biden, because it appears that Iowa is close and Bernie Sanders is leading in New Hampshire. However, a commanding win in South Carolina could easily change the narrative. If Biden barely wins South Carolina, or loses it, that will be a huge hit to his campaign. On the other hand, if he does OK-to-good in Iowa and New Hampshire, and then trounces Sanders (and everyone else) in South Carolina, then a narrative will emerge that only Biden appeals to black voters, and so only he can hope to build a winning coalition. So, South Carolina is likely to take on a much bigger role this year than it usually does. (V)
Trump Appointees Will Flood Iowa on Caucus Day
Next Monday, when Iowa voters go to their caucuses, current and former Republican officials will flood the Hawkeye State in an effort to impress the caucus winner with how powerful the GOP is. Cabinet secretaries, White House officials, campaign officials, House members, and more will fan out across the state trying to get maximum publicity. Brad Parscale, Donald Trump's 2020 campaign manager, said: "This will be the strongest, best funded and most organized presidential campaign in history."
Interfering in the other party's affairs, known by the r-word, is not new to American politics, but it is already clear that the Trump campaign plans to engage in it big time this year. The purpose of flooding the state with high-ranking Republicans on Feb. 3 is to suck up some of the media attention, thus preventing the Democrats from getting all of it on their big day. David Bossie, Trump's deputy campaign manager in 2016 and someone who will play a major role in the 2020 campaign, said: "It would be a mistake to ignore a battleground state simply because there was no competitive primary on the Republican side." Matt Schlapp, chairman of the American Conservative Union, said: "This campaign is always on offense; it's on its front foot. It doesn't give Democrats a day to do their own thing." In short, the Trump campaign is going to be aggressive from day 1 and not take anything for granted. (V)
Team Trump Hands Out $25,000 to Black Voters
Giving people cash to vote for your candidate is one of those little no-no's enshrined in federal law. But giving them cash to show up at your campaign events might be fine. The Trump campaign is fully aware that it is having trouble getting black voters to come to Trump events, so it is trying out a new technique: Paying them to do so. Last month in Cleveland, a so-called charity, the Urban Revitalization Coalition, held an event in which speakers praised Donald Trump. Then there was a drawing in which many lucky ticket holders got envelopes stuffed with hundreds of dollars in cash. The nice thing about this method is that the people supplying the money can remain anonymous and even get a tax deduction for donating it because the Urban Revitalization Coalition is registered as a 501(c)3 charity.
Is this legal? The group certainly thinks so, because donors gave less than the $600 that would require reporting. However, Marcus Owens, a former director of the Exempt Organizations Division at the IRS, isn't so sure. He said: "It's not immediately clear to me how simply giving money away to people at an event is a charitable act." In addition, charities are not allowed to get into electioneering. If a group announced a free raffle at which envelopes full of cash would be drawn out of box and given to lucky ticket holders, that would probably be legal. But if the ticket holders are first required to listen to political speeches before the drawing, it might not be. That said, it seems unlikely that AG William Barr will investigate, let alone prosecute. (V)
Trump May Not Go Gentle into That Good Night
The key hallmark of democracy is the peaceful transition of power when the party in power loses an election or a vote of confidence in parliament. Donald Trump has violated so many other rules, practices, and traditions of democracy, that Democrats are afraid that if he loses the 2020 election, he may not exit gracefully. There is, of course, the possibility that he won't physically leave the White House on Jan. 20, 2021, if he loses. The odds on that happening are low, because if he makes clear he is not going anywhere, as soon as the new president is sworn in, he or she will order the Secret Service to arrest the Donald, by force if need be. He will then be charged with trespassing, as a bare minimum, and if the judge sees him as a flight risk, he might be held without bail.
So, that scenario is not what Democrats are particularly worrying about. What they are concerned about is that Trump will make the transition as difficult and painful as possible, without actually breaking (too many) laws. Normally, there is a good faith transition, in which the outgoing team meets the incoming team to explain ongoing issues and help them get up to speed. Democrats fear that Trump will order the cabinet and White House staff not to meet with the incoming team and not to tell them anything that is going on. The Democrats are also worried that documents may be destroyed or falsified so they won't be able to rely on the paperwork. This would be unprecedented, but a lot of what Trump has done, including lying in public 14,000 times, is unprecedented.
These fears are so real that several Democratic-oriented public interest groups, such as the Partnership for Public Service and National Security Action, are already working to provide an incoming Democratic administration with information on policy areas such as climate change, China, and defense policy, independent of the information (if any) that the outgoing administration provides. For example, having a list of all executive orders Trump issued, all regulations he rolled back, and all international agreements he pulled out of, could be vital for the new administration to allow it to reverse them quickly.
In contrast, the outgoing Obama administration prepared detailed briefing books for the incoming cabinet officials and others, to get the Trump administration up to speed quickly, just as the George W. Bush administration had done for Obama and pretty much every administration had done for its successor, regardless of party, for decades.
Hitting the ground running is crucial for an administration to succeed, as the president must appoint 4,000 people to government positions, of which 1,200 need Senate confirmation. A $4.7 trillion budget is also needed in short order.
There are two saving graces here. First, as noted, the Democrats are expecting a complete lack of cooperation and possibly outright hostility, so they have a year to prepare. They won't be taken by surprise if this happens. Second, most career civil servants are loyal to the Constitution, not to Donald Trump, and they know a great deal about how the government works and cannot be fired easily, so Democrats hope they will be able to fill in many of the gaps the outgoing administration might intentionally create. (V)
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