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Barr Tries to Fire U.S. Attorney Investigating Giuliani

Friday night is always a great time to look for big news because the Trump administration thinks no one will notice if it does something big then. For 24 hours, it might work, because the dominant story today will surely be Donald Trump's rally and COVID-19 superspreader event in Tulsa. Nevertheless, AG William Barr's order last night to fire the Manhattan U.S. Attorney Geoffrey Berman is going to be news for a while because Berman is not going quietly.

In fact, Berman is not going at all. After Barr announced that Berman was stepping down, Berman issued this statement: "I learned in a press release from the Attorney General tonight that I was 'stepping down' as United States Attorney. I have not resigned, and have no intention of resigning, my position, to which I was appointed by the Judges of the United States District Court for the Southern District of New York." Normally speaking, U.S. attorneys serve at the pleasure of the president, and it is unheard of for one to resist being fired.

But this time is different for two important reasons. First, Berman has been investigating Rudy Giuliani for months. At the very least, Giuliani was indisputably carrying out U.S. foreign policy in Ukraine by negotiating with Ukrainian President Volodymr Zelensky. In particular, he was trying to get Zelensky to agree to announce that he was investigating Hunter Biden. The problem is that while Trump undoubtedly told Giuliani to do this, Trump never gave him an official role, so he was negotiating with a foreign government as a private citizen, which violates the Logan Act. If Trump had appointed Giuliani as a special envoy for Ukrainian affairs, then everything would have been fine, but he didn't.

Now, it is perfectly obvious that Trump and Barr want to kill the investigation of Giuliani. You can bet your bottom dollar that if Barack Obama's AG had tried to fire a federal prosecutor who was investigating a friend of Obama's, every Republican in the Senate would be demanding his head on a pike. So far, no word from Senate Republicans on this matter. Don't hold your breath.

The other complication is that Berman got his job in an unusual way. It was initially an interim appointment later made indefinite by a panel of judges until the Senate confirms a successor. Trump nominated SEC Chairman Jay Clayton to the position yesterday. If the Senate confirms Clayton, then Berman will leave. However, even for Senate Majority Leader Mitch McConnell (R-KY), pulling Clayton over the finish line could be tough, as Clayton is a specialist in corporate mergers and acquisitions and has never worked as a prosecutor. Getting someone with no prosecutorial experience whatsoever confirmed to one of the highest profile prosecutorial jobs in the country will be a challenge. The Majority Leader will probably count noses first and if there aren't 50 (unmasked) noses (and mouths) for confirmation, he may not even try.

This whole incident shows up a deep flaw in the Constitution. Ultimately, the president is in charge of investigating crimes committed by the president and his friends. Trump has now made it clear that if a president doesn't want to be investigated, he can just stop it by firing the investigator (or the inspector general). Due to the peculiar circumstances of Berman's appointment, Trump might not get away with it, but had Berman been a normal appointee and confirmed by the Senate, Trump would clearly have had the power to fire him at will.

Does Congress have any power here? Yes, but we doubt it will exercise it. The House could impeach Barr for obstruction of justice and put him on trial in the Senate. The trial might take only a couple of hours before the inevitable verdict of "not guilty," but Barr would go down in history as the first AG ever to be impeached and put on trial. The verdict of future historians is not likely to be friendly to Barr, but by the time someone writes a book entitled History of the United States from 2000 to 2100, Barr will be dead. (V)

Saturday Q&A

We've picked up a fair number of new readers recently, and it's also been a very busy news week. For both of these reasons, presumably, we got more questions in the last week than we've ever gotten in any single week (over 400 of them). Can't answer them all, of course, but we did pick a larger than usual number. After all, we have to do something to pass the time inside this damned political-question-answering factory.

Q: I agree with you that several salt tablets should be taken prior to reading John Bolton's book, but when the Pretender and Thief fights its publication so fiercely, by claiming it discloses government secrets, doesn't that actually lend credence to Bolton's claims? I realize that a chess game of trying to intimidate others who might want to pee into the White Tent on Lafayette Square is going on, but the unintended optics just might magnify Bolton's claims. R.C., Alexandria, VA

A: This is the sort of judgment call that a historian makes all the time when dealing with sources. Yes, Trump's reaction is a point in favor of judging Bolton's book credible, but it is not conclusive. If the book was made up entirely of lies and fabrications, but lies and fabrications that Trump thought would hurt him, then he would fight it, too.

That said, the tone and tenor of the President's response, coupled with the fact that there are so many other witnesses who would challenge outright lies from Bolton, makes us think the book is basically truthful.


Q: You wrote: "With just one day's testimony, [John] Bolton could have changed the entire complexion of the impeachment." Do you really believe that anything Bolton could have said would have prompted Republicans in the Senate to convict Donald Trump and remove him from office? Amber Phillips in The Washington Post makes a strong case that it would not have. For example, the most likely Republican senator to have joined Mitt Romney to vote to convict would have been Lamar Alexander (R-TN), but he has already said that Bolton's book does not change his mind about his vote to acquit. And the only change of complexion that matters would have been a conviction. I.K., Olympia, WA

A: We would suggest that you and Amber Phillips are overlooking a key ingredient here, namely public opinion. It is very possible that if each Senator had gotten a briefing from Bolton right before casting their votes, they probably would have ignored it. However, if someone who is as White-House-insider as it gets goes before the House (or the Senate) and declares that not only is the whole Ukraine thing true, but that the President tried to do the same thing with China and other countries? That would be massive news. It would have given political cover to the Democrats to continue pressing for other witnesses who refused to testify, and also to look into other areas of presidential misbehavior. Who else knows about the alleged machinations with China, for example?

We will never know, one way or another, what might have happened. But always remember that impeachment is a political process as much as it is a legal process. And if the public had grown angry enough, that could very well have changed the dynamics of what happened in the Senate. Remember that the very fact of impeachment itself seemed impossible, right up until it didn't.


Q: I just read this article and am now breathing into a paper bag to try to calm myself down. I realize voter suppression and gerrymandering are huge issues, but maybe I've deluded myself into believing that we can overcome them and win in 2020. I was also unfamiliar with the provisions of the 12th Amendment, but have a vague recollection of you both mentioning it on this site before? So please, guys, talk me off the ledge here! How accurate do you think this scenario actually is? A.S., Brewster, MA

A: To start, and forgive our strong words, but the once-great Salon has turned into something of a burning trash heap. They will run nearly any garbage that they think will get clicks while simultaneously jamming six ads down your throat. And Greg Palast, the "investigative journalist" who is the subject of this piece, is basically a conspiracy theorist who traffics mainly in suppositions and vague accusations rather than hard evidence.

Are shenanigans possible on Nov. 3? Yes. Are they likely? Also yes. But hijacking a presidential election is no small feat, and other than repeatedly asserting that millions of Democratic votes will be wiped out, Palast is extremely vague as to exactly how Team Trump might pull off the feat. Recall that the two most important people in a state, when it comes to the election results, are the governor and the secretary of state (with the responsibility for certifying the results usually in the hands of the latter). And guess what: The four swing states that are most likely to swing in Joe Biden's direction—Wisconsin, Pennsylvania, Michigan, and North Carolina—all have Democrats in both jobs. If Biden holds the 2016 Clinton states (all of which, except for Maryland, have either a Democratic governor, a Democratic secretary of state, or both), then he needs any three of those four states to swing to him in order to win the election. If they do, then all the shenanigans in the world in Georgia and Florida and Texas won't matter. And if they don't, then Biden wasn't going to win Georgia or Florida or Texas anyhow.

In addition, there is the formerly red state of Arizona, which the 11 polls since March 1 have shown as turning blue. While the governor, Doug Ducey, is a Republican, the secretary of state, Katie Hobbs, is a Democrat. She is not going to issue a certificate of ascertainment certifying the electoral votes for Trump if she doesn't think he won them legitimately.


Q: Like many of your readers, I was mortified by what went down in the Wisconsin primary for many reasons. One thing that really bothered me was the number of open polling places for Milwaukee—I believe it was less than 10 for the entire city. This reeks of (Democratic) voter suppression with the excuse that there were not enough poll workers.

For the general election, I was wondering what I could do to help. I am a resident of Illinois and a low risk for complications from COVID. Is there any way that I (and other low risk volunteers), though not residents of Wisconsin, could volunteer to ensure that staffing at polls is adequate? G.K., Chicago, IL

A: The response to your question, speaking in general terms, is: "probably not." The answer to your specific question is: "definitely not." Each state has its own laws about who can and cannot serve as a poll worker (see here for a comprehensive list), but generally they have some sort of residency requirement. In your home state of Illinois, for example, poll workers must be registered voters. In Wisconsin, they don't have to be registered voters, but they do have be qualified to serve as electors (which, in that state, means proof of at least 10 days' residence prior to the election).

You could theoretically get a hotel room in Milwaukee on Oct. 23 and then promptly open a utility account with the local gas or electric utility to get proof of residence, but that's presumably a bridge too far for most people. The best channels for your admirable motivations are probably to contact a voter rights' group like Unite America and ask if they are looking for volunteers, or to contact the Democratic Party of Milwaukee to see if they have any vote-harvesting efforts that they could use assistance with.


Q: In this season of political books, tell-all and otherwise, I wanted to ask your opinion of the book The Impostors by Steve Benen. His argument is that not just Trump, but the Republican Party in general, doesn't believe in policy anymore. As he put it in the TV interview I saw, the thrust is punditry and power over policy and governance.

Your take on Benen's analysis? E.V., Derry. NH

A: First caveat: Benen works for MSNBC, and more specifically for Rachel Maddow. Second caveat: We haven't read the book.

With those things out of the way, we will start by observing that the blurb on Amazon (which comes from the book cover) describes Benen's analysis as "groundbreaking." That is way overselling it; the fundamental changes in the Republican Party have been clear for at least a decade, if not longer, and have been commented on by many, many analysts, including us.

Beyond that, though, we largely agree with his basic premise. If we were to summarize the situation, as we see it, we would offer four propositions:

  1. Many current Republican leaders, with Donald Trump and Senate Majority Leader Mitch McConnell (R-KY) foremost among them, have subordinated policy and governance to the raw pursuit of power.

  2. The policy positions that the modern Republican Party does have are often mutually inconsistent (for example, strong support for personal liberty, but also strong support for government management of people's sex lives).

  3. The policy positions that the modern Republican Party does have are entirely negotiable, depending on circumstance, and tomorrow's policy may be 180-degrees different from today's (for example, opposition to Russia or views on the federal deficit, immigration, or free trade).

  4. The policy priorities that Party's leaders speak most loudly about are often smokescreens for their true policy priorities (for example, outspoken opposition to abortion keeps evangelicals on board so the party's leaders have the numbers they need to take action on...tax cuts).

These things aren't necessarily unique to the modern Republican Party; all parties have internal contradictions within their platform, and members who have forgotten that absolute power corrupts absolutely, and so forth. But rarely, if ever, have we seen a party take things to such extremes in each of these four dimensions.


Q: What do you think the Lincoln Project is looking to accomplish beyond the 2020 election? Do they hope to pull the Republican Party back towards the middle? Are they basically assuming the Republican Party is a lost cause and they are now Democrats? Are they trying to provide some direction to the Republican Party as they enter a generation of political wilderness? R.M., Pensacola, FL

A: Short-term? We think they are public-minded citizens who believe Donald Trump represents an existential threat to the country, and who are determined to use whatever credibility they have with Republican voters to try to win some of them over to that view.

Long-term? They probably don't think too much about the long term, because it would be too depressing. They may hope that somehow, some way, the Party goes back to being the party of McCain, Romney, and Reagan, but they know in their hearts that is not likely to happen. They will cross that bridge when they come to it, but our guess is that most of them are well along the path to becoming conservative Democrats.


Q: As depressing as it is to ask this question about any politician, let alone the president, but: I'd like to know what you think would happen if a tape emerged that unequivocally proved that Trump has used the n-word; particularly in the context of all the current BLM protests? Would it move the needle any or (horror of horrors) actually convince any Republicans to break with him? C.M., Belfast, Northern Ireland

A: We doubt it would move the needle one bit. Trump has done and said more than enough racist things that everyone knows where he stands. Those for whom racism is a deal breaker, the deal is already broken. And those for whom it is not a deal breaker—assuming they don't approve of Trump's verbiage (and some certainly would)—would find ways to explain the footage away:


Q: Donald Trump won 2016 by a thin margin. Since then, he has primarily played to his base and opposition seems to have grown and strengthened. Is there any evidence that his base has grown at all? What are the chances that there are large numbers of folks who didn't vote for him in 2016 but are now sold on his value? G.K., Hillsborough, NJ

A: We, like everyone else, are looking for that, because it would be a very important story. And we have seen no evidence of a sizable drift toward Trump in any state or among any demographic. On the other hand, there is clearly evidence of a drift away from him in many states, and among several demographics, most obviously suburban women, and to a lesser extent, seniors.


Q: I concur with A.D.M. from Toronto that Barack Obama would absolutely be the best person for Secretary of State in a Biden administration. However, do you think that it doesn't matter since the United States has no credibility with other nations because they all now know that the next president could void any and all obligations? L.R., San Diego, CA

A: That is definitely a problem. That said, we will point out three things: (1) It is literally the job of skilled diplomats to talk their way through such problems, (2) Many other nations of the world, particularly in the West, have a vested interest in believing that the U.S. will live up to her commitments and so may be more willing to take a leap of faith than they would be with other nations, and (3) the next Democratic president and Secretary of State will undoubtedly find ways to construct treaties such that once they are approved, they will be difficult to vacate in a fit of pique.


Q: Why do presidential appointments require only Senate confirmation, not also the House? Are there any other actions that involve only one house of Congress? J.A., Rutland, VT

A: The House, of course, is apportioned by population, and members serve two-year terms. This being the case, the Framers gave it exclusive powers over several things that tend to affect high-population states more heavily. The most obvious of these powers is the right to initiate revenue bills (since big states pay more taxes than little ones). James Madison & Co. also suspected, correctly as it turns out, that the House would be more subject to the "passions" of the people. So, the framers were reluctant to assign more deliberative matters to the lower chamber.

The Senate, of course, is apportioned by state, and has members who serve six-year terms. This being the case, the Framers gave it exclusive powers over several things that tend to affect all Americans equally. The most obvious of these powers is the right to approve treaties. Further, given the Senators' longer terms, as well as the fact that they generally represent larger and more heterogeneous populations, the upper chamber was expected to be the more calm, deliberative body. So, they were assigned the responsibility for approving judges and other appointments.


Q: I've been studying the Senate map, looking particularly at 2022, my thoughts being that if (when?) the Democrats take back control of the Senate this year, would it benefit them to not abolish the filibuster, thinking ahead to the future when they might wish it were still available? If they think they have a good chance of getting to 60 in 2022, would this be a good strategy? I see potential 2022 pick-ups for the Democrats in NC (Burr), WI (Johnson), IA (Grassley), FL (Rubio), PA (Toomey), and OH (Portman). Or is this too many political lifetimes away and they should just grab their opportunity right away and make the most of it? I think I worry that abolishing the filibuster will create unforeseen problems in the future. K.H., Maryville, TN

A: As a practical matter, the Senate is broken, and the filibuster is broken. That body was supposed to be more deliberative, as noted above, and was also supposed to be more oriented toward consensus-building. The filibuster, meanwhile, was supposed to be a rarity, deployed only in the most significant of circumstances.

At the moment, the filibuster is wielded on a near-daily basis. Actually, on a more-than-daily basis if you consider the average number of filibusters per day. And so, there is a legitimate civics-based argument for getting rid of it, since it's being used abusively. Further, if the U.S. is evolving toward a more parliamentary system where whatever party is in power gets to implement their agenda largely unchallenged, then let's evolve.

There is also a political argument, namely that the filibuster is sure to die soon anyhow, and whichever party makes that move first will enjoy significant benefits. On top of that, the last generation worth of Republicans have stretched the Constitution to the breaking point to implement their program. If the Democrats want to compete with that, they will have to do some stretching, too. And, in contrast to something like sitting on a SCOTUS nomination for nine months, at least killing the filibuster does not run contrary to the framers' intent, since they did not expect it to be a part of Senate business at all.

Meanwhile, basing one's plans on assumptions about what will happen in the next election, or the one after that, is something of a fool's errand. Better to take the bird in the hand now, as opposed to waiting for the two in the bush later.

It is possible that the Democrats could dial back the filibuster without killing it. For example, they could re-establish the requirement that a filibustering senator actually physically filibuster (i.e., stand up in front of the Senate chamber and read from the phone book). That would cut down significantly on abuses. Similarly, we could also envision a situation where the Democrats kill the filibuster, make some changes, and then try to rebuild the normal operation of the Senate, re-establishing some version of the filibuster, as well as re-instituting things like blue slips for judges. In this case, the blue team would essentially be re-imposing limits upon themselves, which at least nominally increases the odds the Republicans would honor those limits whenever they regain the majority.


Q: A few times, over the past week or so, you have mentioned the filibuster and the likelihood of the Democrats, should they move into the Senate majority, abolishing or modifying the last remnants of it. However, I have been worrying about a different possibility: the Republicans lose the Senate majority on November 3 (whether or not Mitch McConnell retains his seat; whether or not Trump is re-elected) and then McConnell abolishes the filibuster so that he can ram through all sorts of disastrous things in the nine weeks between the election and the new Congress. (There was a reason Christopher Browning referred to McConnell as "the gravedigger of American democracy" in his 10/25/2018 New York Review of Books article "The Suffocation of Democracy.") L.E., Santa Barbara, CA

A: We don't think you have much to be concerned about. McConnell is already ramming through as many judges as he can, since that process is unfilibusterable. What happens on Nov. 3 won't change that dynamic very much, if at all. And just about everything else has to be passed by the House, which is certainly not going to facilitate any part of the Majority Leader's agenda.


Q: Donald Trump and Mitch McConnell have rammed almost 200 judges through, a mark that hasn't been hit for over four decades. Since many of these judges are not qualified for their positions, is this something a Democratic administration might be able to review? Or a Democratic-controlled Congress? J.C., Dallas, TX

A: Once a judge is seated, the only way they can be removed is by being impeached and convicted for some sort of misconduct. If the Democrats can prove that a judge misrepresented themselves in their confirmation hearings, then they might be able to pop one or two of them for perjury and get them off the bench. But removing them because they were not qualified and should not have been appointed in the first place? Not possible.

It is at least possible that the Congress could pass a new Federal Judiciary Act, and could establish term limits or mandatory retirement ages for judges. However, that would serve only to limit the tenure of unqualified judges, not to remove them immediately.


Q: If Joe Biden wins the presidency and Democrats take back the Senate, why shouldn't he immediately nominate two new Supreme Court justices that are progressive or at least on the left end of the political spectrum? You've spoken before about how there's no wording in the Constitution limiting the Court to nine justices. Sure, the Democrats got a couple of wins this week in the highest court, but shouldn't that make them greedy for more? A.K., Houston, TX

A: Speaking of the Judiciary Act, a new one expanding the court would be necessary, since the president cannot just declare new SCOTUS justices willy-nilly.

If the Democrats try this, which they might very well do, they will have to tread lightly and make the public case for it. The Supreme Court depends on people's belief in its legitimacy. And if the Court appears to be "packed" for purely partisan purposes, its legitimacy will take a big hit, particularly if it issues forth with a bunch of controversial 6-5 decisions. And when SCOTUS decisions are seen as less-than-legitimate, their impact is very much muted, because anyone and everyone, from presidents to governors to private citizens, tends to push back against the rulings or to find ways to skirt or ignore them.


Q: The news from the Supreme Court this week reminds me of something Joe Biden brought up during the primary debate: that if elected he would consider appointing a black, female justice. My question is: who would he consider? To me, some of the obvious choices would be: Sen. Kamala Harris (D-CA), Stacey Abrams, and New York AG Letitia James. But are there other strong possibilities (appellate judges, etc.)? R.H.D., Webster, NY

A: We will start by pointing out that while there are no set requirements for Supreme Court justices, it is unusual these days to confirm someone who has absolutely no experience as a judge. Of the current nine, only Elena Kagan had no judicial experience at the time of her appointment, and before her, the last time it happened was back in 1972, when William H. Rehnquist and Lewis F. Powell Jr. both joined the Court with no previous experience wearing the robes.

There are currently four black women serving on U.S. Courts of Appeals (Bernice Bouie Donald, Johnnie B. Rawlinson, Judith Ann Wilson Rogers, and Ojetta Rogeriee Thompson), but all were born in 1952 or earlier, and 68+ is a rather advanced age for a SCOTUS appointee these days. If we add district court judges, that yields an additional 37 candidates, many of whom would get serious consideration. For example, Denise J. Casper is a 50-year-old Obama appointee and Harvard Law grad who now has 10 years' bench experience and who served as an assistant U.S. Attorney for 6 years. Ketanji Brown Jackson is a 48-year-old Obama appointee and Harvard Law grad who now has 7 years' bench experience and who clerked for Stephen Breyer. Andrea R. Wood is a 47-year-old Obama appointee and Yale Law grad who now has 7 years' bench experience and who worked for the Securities and Exchange Commission for a decade. Margo Kitsy Brodie is a 54-year-old Obama appointee and Penn Law grad who now has 8 years' bench experience and who served as an assistant U.S. Attorney for 13 years. So, Biden would have some good options.


Q: I think that the recent decision from SCOTUS regarding LGBTQ rights was at least partially influenced by the current state of unrest, as a sort of olive branch or attempt to defuse the current situation a bit. Do you think this could be true? R.G., Portland, OR

A: Nope. The cases were heard last October, the justices voted many months ago, and Gorsuch has been working on his opinion ever since. It is just a coincidence that the decision was announced when it was.

Generally speaking, any justice who tried to use their votes to address "in the moment" unrest would be playing a fool's game. That would be doubly true here, since a decision that reduces systemic homophobia and transphobia is not the same thing as a decision that reduces systemic racism.


Q: Why do pollsters continue to do national polls for the presidential race? I thought we all had learned what really matters: each state and its electoral votes. Is this merely peddling the horse race? M.L., Gainesville, FL

A: They interest readers, they're generally easier to do than more focused polls, and they do give at least a little bit of insight into the state of the race. It is pretty tough for the national popular vote and the Electoral College to fall too far out of sync with each other.


Q: I was wondering how we should interpret different kinds of political polls. For example, many commentators/bloggers/etc. note that Donald Trump's approval ratings are very low, but didn't a huge fraction of Trump's 2016 vote come from people who disapproved of him? How predictive are approval/disapproval polls in terms of vote outcome? J.O., Columbia, MD

A: It is true that Donald Trump got votes from many people in 2016 who said they did not like him or did not approve of him. That said, there are at least two big differences this time around. The first is that Trump was running against a historically unpopular Democrat in 2016, and for many voters, it was a question of which candidate was less odious. That is not the case in 2020. The second is that in 2016, people were disapproving of Trump the man, or Trump the candidate, or the president they guessed Trump would be. Now, they are disapproving of the president Trump is. That is certainly a different commodity.

Since there's never been a president like Trump, we can't speak with total confidence about what is indicated by his low approval ratings (which are now sinking into the high 30s in some polls). We will say that, historically speaking, approval/disapproval has been very predictive, and that an approval rating below 48% or so has been unsurvivable for an incumbent. If Trump survives, he'll not only be bucking the trend, he'll be bucking it by a massive amount.


Q: Is anyone (particularly in academia) taking a serious look at the possibility of the Bradley effect causing the shockingly high support levels that Biden is polling at, particularly in the South? Given what we know about demographic polarization for Donald Trump, it seems very implausible that Joe Biden is close to leading states like Georgia, Arkansas, and South Carolina.

Taking a look at your average Trump supporter, we know that they're "trained" to be highly tribal and paranoid of institutions like media and pollsters. Therefore, it strikes me as implausible to believe that they'd be honest to either a live, online, or IVR pollster. J.A., Edmonton, Alberta, Canada

A: Let us start by noting that the "Bradley Effect" (also known as the "Wilder Effect" or the "Shy Tory" effect) generally describes a situation where a respondent is embarrassed to tell a human pollster their true intentions, and so lies to save face. There is some debate about how real the effect is, or whether it exists at all. In any event, it is plausible that some folks in 2016 might have been embarrassed to admit their support for Donald Trump, but we just don't see it in 2020. Those folks have had three-plus years worth of time, plus oodles of encouragement, to come out of the Trump closet, as it were.

Could Trump supporters be outright lying to pollsters, just to throw a wrench into the works? Maybe, but we doubt that, too. Trump and his base are invested in the idea that high polling numbers are good, and we don't imagine they would deliberately take steps to make his support look weak. Further, pollsters often have internal cross-checks built into their list of questions, so as to tease out people who might be lying about some questions and remove them from the sample.

It is the case, we will note, that Trump supporters are less likely to take pollsters' calls than non-supporters. But that just forces the pollster to work harder to find respondents; it doesn't taint the poll.


Q: Can you recommend a good resource on the history of polling, more specifically the history of political polling in the U.S.? And, because instant gratification is in the American ethos, can you tell me when state level polling for the presidential election started? When did it become common? P.N., Austin, TX

A: If you want something more accessible, a volume that combines some talk of history, methodology, and impact, then consider Polling Matters: Why Leaders Must Listen to the Wisdom of the People by Frank Newport, the longtime editor-in-chief of the Gallup Poll. If you want something more scholarly, including extensive discussion of the history and evolution of polling, then take a look at Numbered Voices: How Opinion Polling Has Shaped American Politics by UConn political scientist Susan Herbst. Admittedly, Herbst did get her Ph.D. at USC, but that was back in the 1980s, and she's worked hard since to overcome that rocky start.

As to your historical question, there's no single answer. Political parties have been using straw polls to gauge the temperature of a city or state since the 1820s. Franklin D. Roosevelt, elected in 1932, was the first president to make extensive use of private polling as part of his decision-making process. George Gallup established his polling business in 1936. In 1947, the American Association for Public Opinion Research was founded. In 1952, UNIVAC correctly predicted the winner of the presidential election on national TV. All of these were important signposts in the development of political polling.


Q: In regards to your recent mention of Washington, D.C., and possibly Puerto Rico becoming states, I wonder how that would affect the House of Representatives. I understand that the number of Senators would increase to 104, but how about the House? Would the total stay at 435 or would it increase? P.B., Chicago, IL

A: The number of seats in the House is set by the terms of the Apportionment Act of 1911. So, unless there is an update to that bill, then the number will remain at 435.


Q: If Washington, D.C., becomes a state, how many representatives will it get in the house, and what states are likely to lose a representative as a result? R.H., Macungie, PA

A: The population of the District is similar to that of Vermont and Alaska, and so it would get the same number of representatives those states have, namely one. You did not ask, but if Puerto Rico was to be declared a state tomorrow, it would get five new seats. Since Congress is not in the habit of firing its members (and probably could not legally do so), the one representative for Washington and the five for PR would just be added to the current total, and the number would not be reduced back to 435 until the next apportionment.

If Puerto Rico and/or DC are added after the 2020 census, however, then the former—its population having shrunk a fair bit since the 2010 census for obvious reasons—would only get four seats. The same point about a temporary expansion until the next apportionment would hold, but at such point that the number was pared back down to 435, the states most likely to lose a seat are Ohio (most likely), followed by California, Minnesota, Alabama, Montana, Florida, Texas, and New York. However, that is based on estimates, and the exact list depends on exactly how the 2020 census turns out.


Q: As I understand it, the whole point of establishing the District of Columbia in the first place was so that the national capitol would be separate from (and therefore not subservient to) any state. Doesn't now making Washington, D.C., a state subvert the entire reason for its existence? Or has the original motivation to separate the national capitol from the states outlived its usefulness? S.W.B., New Albany, Indiana

A: When the Framers created that requirement, they were thinking specifically about the Pennsylvania Mutiny of 1783, during which 400 angry soldiers besieged the Congress of the Confederation for three days and the state government of Pennsylvania shrugged and refused to do anything about it. The conclusion was that the federal government needed to command its own troops, rather than rely on state militias, and so needed to occupy an independent, non-state-owned piece of land. We think it's safe to say that Congress is no longer in danger of being besieged and that, even if they are, they will have plenty of troops at their disposal, D.C. statehood or no.

That said, the general idea is that if D.C. becomes a state, it will cede a small portion of its territory (basically, Pennsylvania Avenue) so that the Capitol, the White House, and other key buildings will still be located in a non-state federal district. If it somehow happens while Donald Trump is still in office, we would bet that Mayor Muriel Bowser would be willing to let him keep Black Lives Matter Plaza, too.


Q: When you discuss territories that could become U.S. states, you typically omit the U.S. Virgin Islands. Is there a possibility of making them a state? Beyond Washington, D.C., and Puerto Rico, how do you rank the remaining territories in terms of their likelihood of statehood, and the pros and cons of each? For example, it seems like the Virgin Islands might be an easier addition since they are so much physically closer to the U.S. mainland, but their population is also pretty small. E.W., Skaneateles, NY

A: We're going to start with the supposition that the only candidates for statehood in the foreseeable future are the six territories that have been granted (non-voting) representation in the House. Here they are, with population, the year they were granted representation, and the political affiliation of the representatives they have elected:

Territory Population Representation Year Party Preferences
American Samoa 55,519 1978 2 Democrats, 1 Republican
Washington, D.C. 705,749 1970 2 Democrats (both very long-serving)
Guam 159,358 1970 4 Democrats, 1 Republican
Puerto Rico 3,193,694 1901 11 Democrats, 3 Republicans
Northern Mariana Islands 53,883 2009 1 Democrat turned Independent
U.S. Virgin Islands 106,405 1973 4 Democrats, 1 Republican, 1 Independent

We don't think proximity to the U.S. particularly matters. After all, Hawaii isn't close. Instead, we are going to make the following assumptions:

Following these assumptions, it is clear why Puerto Rico and Washington, D.C., are far and away the likeliest candidates for statehood. They are reliably blue, they have far and away the largest populations, and they've been in line for half a century or more. The other territories, unless maybe they agreed to become some sort of joint state, really have not much of a claim at all. Any of the four beyond Puerto Rico and D.C. would be the least populous state by a large margin, making even #50 Wyoming (578,759) look positively crowded by comparison.


Q: Supposing the District gains statehood at some point in the near future, I wonder what its name might be. Obviously, you can't call it a "district" anymore, and "Columbia" might be very problematic nowadays for obvious reasons. With "Washington" already taken, are there any obvious options out there? S.M., Baltimore, MD

A: As noted above, if there is statehood for the capital, a piece of it would remain independent and would surely retain the name Washington, D.C.. That means we would have a whole new state, one where the predominant demographic is, and has historically been, black. Recent events have reminded everyone that the country has done a pretty good job of honoring white men in its memorializations, including white men who turned traitor and fought to save slavery, but that it has done a less good job of honoring the contributions of black folks. And you know who lived in Washington, D.C., and whose house there is a historic site and a museum? Frederick Douglass. So, "Douglass" sounds like a pretty good name to us.


Q: You wrote, regarding John Bolton's book, "Surely, it's just a coincidence that it's being displayed mere inches from Erik Larson's "Devil in the White City," a book about the tensions between a white supremacist real estate developer and a sociopath with violent tendencies."

While I appreciate the coyness, I read "Devil in the White City" and do not recall picking up on anything related to white supremacy. And I cannot find anything when searching for Daniel Burnham, to whom I suppose your comment refers. Nor do I recall there being any "tensions" between the two figures. This is of course assuming you are referring to Daniel Burnham and H.H. Holmes.

Could you provide any additional information with regards to the white supremacist claim? O.B., Petaluma, CA

A: Well, those descriptions were post hoc; they became clear only with the benefit of perspective. To start, it's true that Burnham and Holmes did not know one another, and that Burnham wasn't even aware of Holmes. But the whole book is built around the tension between the positivity and the whiteness of Burnham's "White City" and the negativity and the darkness of Holmes' serial murder factory.

Meanwhile, in our era, white supremacists often speak loudly and wear their views on their sleeves because they are a minority faction and they are looking for attention for their "cause." In Burnham's era, that didn't happen because white supremacism was, in effect, assumed. He wasn't running around in Klan robes (especially since the Klan wasn't active in 1893) or participating in lynchings. But the event he organized was named in honor of Christopher Columbus, and was an explicit celebration of white (American) progress and white (American) achievement. In other words, Burnham's white supremacy (like Theodore Roosevelt's, or Henry Cabot Lodge's) was not angry or violent, it was paternalist. Which, we would suggest, makes the Trump comparison we drew pretty apt.


Q: Whose names, statues, and monuments should be torn down? George Washington was the foremost hero of the revolutionary war, the chair of the Constitutional convention, the first president, and a man who walked away after two terms, foregoing the opportunity to be king. Thomas Jefferson wrote the Declaration of Independence and was instrumental in the adoption of the Bill of Rights (freedom of speech, assembly, due process, etc.).

Yet Washington and Jefferson were also slave owners. In Berkeley, CA, schools now named for Washington and Jefferson will be renamed. Should Washington, D.C. and Washington State be renamed? Should the Washington monument and the Jefferson memorial in D.C. be torn down? Who should weigh the balance in these and numerous other cases? On the basis of what principles? And how should history, good and bad, best be preserved, independent of the propaganda and passions of a given moment? G.A., Berkeley, CA

A: Obviously, it's tricky, and there is some judgment involved. With that said, if we start banishing everyone who does not live up to our present-day ideas on race, sexuality, gender, etc., there won't be very many statues left.

In our view, a pretty good line looks something like this: "Is the person's historical significance rooted entirely or mostly in oppression, or is it rooted in something more positive, and their oppressive behaviors were just one part of the picture?" Jefferson Davis, for example, is a man whose entire historical significance is rooted in the fight to maintain slavery. Thomas Jefferson's significance is rooted in his efforts to achieve a better and more just world, as best he understood it, and his slave-owning is only part of the picture.

As we said last week, the broader solution is that museums and historical sites exist to preserve the past, and outside those spaces, perhaps remembering/honoring those who have gone before is less important. Although we do like the ad hoc solution that has emerged in the last few weeks: tear down the statue, but leave the pedestal. If that's not a teachable moment, we don't know what is.


Q: Woodrow Wilson is mostly ranked between the 6th best and 11th best president in US history, Andrew Jackson is mostly ranked between 9th best and 19th best president in US history. I sense you have a negative opinion about these two presidents. So would you rank them substantially lower than the average historian? Why do average historians rank them higher than you? And are there any other U.S. presidents for whom you have a much more positive or negative opinion than the average historian? F.S., Cologne, Germany

A: Both of these men are good examples of historical figures whose reputation has shifted a lot over time. Jackson's one-time sky-high rating was due to his being an inspirational leader who invited the "common man" into politics. There's also little question he got credit for his military career, even though that should not be a part of the equation. Meanwhile, some of his debits were glossed over. Now, however, some of Jackson's accomplishments have a bit less luster, while his Indian policy and his economy-destroying central bank machinations look quite odious. So, he's been slowly sinking for at least a generation, and (Z) is certainly on board with that re-examination.

Wilson, for his part, has a positively Nixonian résumé (no surprise that Nixon hung Wilson's portrait on the wall of the Oval Office, perhaps). By this, we mean some really impressive accomplishments, like leading the U.S. to victory in World War I, overseeing the establishment of the Federal Reserve, and ushering in a host of other progressive reforms. On the other hand, he segregated the federal government, botched the post-WWI negotiations, and allowed the Palmer Raids to take place. Some scholars are simply more willing than others to overlook these faults.

Here are three underrated presidents, in our view:

And three overrated presidents:


Q: You wrote that James K. Polk "ran on a list of promises (including that he would serve only one term), fulfilled them all, and then retired, as he said he would." How can you say that he fulfilled all of his promises when his election campaign slogan was "54-40 or fight," but then once he became president, he conceded the Oregon Territory between the 49th parallel and 54-40 to the British without a fight? P.M., Albany, CA

A: Because he did not run on that slogan. He promised to resolve the Oregon boundary dispute and he did. "54-40 or fight" was cooked up by Democratic newspaper editors in 1846, nearly two years after Polk was elected. It was never embraced by Polk himself, especially since he preferred not to fight (at least, not the British).


Q: In last Saturday's post you mentioned the Senate composition as being 58-36 when Franklin D. Roosevelt took office and 65-33 when LBJ did. Yet the total number of senators in each case (94 for FDR and 98 for LBJ) is 2 fewer than the total number of senators that should have been serving at the time. Were those other senators really missing, or were they taking "Executive Time"? R.F., Eugene, OR

A: On the day Roosevelt took office, one Montana seat was vacant by virtue of the untimely death of Thomas J. Walsh, while another was occupied by a third-party candidate (Henrik Shipstead, of the Farmer-Labor Party) who did not, at that point, caucus with either party. So, that partisan breakdown was correct, though the Walsh seat was quickly filled by a Democrat and Shipstead started caucusing with the blue team shortly thereafter, giving FDR an effective 60-36 majority.

As to LBJ, we erred. When we looked it up, we looked at the start of 1963, when two seats (one from Oklahoma and one from Wisconsin) were indeed vacant. However, by the time Johnson actually took office, both seats had been filled, as had the seat that came vacant when Estes Kefauver died in August 1963. So, on the day that his term commenced, LBJ actually had a 67-33 Senate majority to work with.


Q: You have been talking about members of an ethnic minority group becoming Vice President. Charles Curtis, vice-president under Herbert Hoover, was 3/8th Native American, lived on a reservation on the great plains, and was Senator Majority Leader from Kansas. Any thoughts on how Curtis has so completely disappeared down the historical memory hole? J.V., Madison, WI

A: He remains the highest-ranking tribe-enrolled Native American in U.S. history. Here are some guesses as to why he's not more famous:

All of that said, we would guess that the most significant factor is the curious place that Native American status occupies in American culture. The Natives themselves were largely wiped out and/or forced onto reservations. So, as a group, they have been smaller and less visible in the last century or so than, say, Latinos or black people or even many white ethnic groups like the Irish or the Poles. Meanwhile, a lot of white Americans—and we're not naming names here—have tried to make themselves a little more exotic and a little less white by claiming some fraction of Native heritage (sometimes truthfully, sometimes not). Add it up, and "part Native American" seems to be deemed less worthy of special notice or consideration than "part something else."


Q: I followed the link about the nutter the Republicans have running in Georgia, who declared: "No! You have to be sworn in on the Bible!" Does the President indeed have to be sworn in on the Bible? L.M.S., Harbin, China

A: There is no constitutional or statutory requirement for presidents (or anyone else) to be sworn in on the Bible. That would be unconstitutional, as Article VI specifically says "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Any president who does use a Bible, then, is just doing it for symbolic purposes. And there are four presidents who did not use one for their swearing in. Two of those were for philosophical reasons: John Quincy Adams and Franklin Pierce felt it was more appropriate to be sworn in on a book of laws. Two of those were for pragmatic reasons: Theodore Roosevelt and Lyndon B. Johnson became president unexpectedly and did not have a Bible at hand. So, TR was originally sworn in on nothing and LBJ was sworn in on a Catholic missal. Both were sworn in on Bibles for their second inaugurations (when they were reelected, in 1904 and 1964, respectively).

Among the things that non-presidents have been sworn in on: a Torah scroll, a Quran, a Buddhist Sutra, the Bhagavad Gita, a copy of The Autobiography of Malcolm X, a rabbit's foot, a Kindle (displaying the text of the 19th Amendment), an iPad, and a copy of the Constitution.


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