Gang Warfare

The Gang of 10, 20, or 21 (depending on whom you are talking to) hammered out a deal on infrastructure and then presented it as a fait accompli, despite not having worked out certain trivial details. Like, for example, how it was going to be paid for. Sen. Joe Manchin (D-WV), in particular, waved that away and said there were plenty of options for addressing it.

Predictably, it turns out that the Senator got out his waving hand a little too quickly. They may not have a "clever" label identifying them as a gang, but it turns out that some members of Manchin's caucus are leftier than he is, and answer to voters leftier than he does. Leading the way is Sen. Ron Wyden (D-OR), who made clear on Monday that the current version of the bipartisan bill (especially the pay-for part) is an absolute non-starter for him and for several of his Democratic colleagues.

The (apparent) mistake made by Manchin and the other gangsters was in thinking that as long as they found a source of money that did not aggravate Democratic senators, then the deal was home free. The problem, as it turns out, is that for Wyden & Co. (and the voters they report to), there is only one source of money that is acceptable: corporations. A lot of progressive Democrats are hopping mad that corporations got a giant tax break during the Trump years (in addition to the breaks that corporations got before that), and so for them, taking a bite out of the big businesses is an end unto itself, an essential one, regardless of what the money is going to be used for.

And so, we have one side that has dug in on "no corporate tax increases." And on the other side, several members have dug in on "there must be corporate tax increases." If you can figure out a way to resolve that contradiction, you are cleverer than we are. And cleverer than Joe Manchin, for that matter. Is there really any way, at this point, that this doesn't end up with a giant, all-Democratic, reconciliation bill? That bill might raise the corporate tax rate to 25%, something Manchin himself has previously said he can accept. (Z)

What's the Plan for the 1/6 Commission?

There is much that remains to be settled when it comes to the House Select Commission on 1/6. That's understandable, since it was only made official last week, and the various partisan actors are still making their moves and their counter-moves. At the moment, there are three major functional questions still up in the air:

1. Will Republicans Participate?: Rep. Liz Cheney (R-WY) has, of course, already accepted an invitation from Speaker Nancy Pelosi (D-CA) to be a member of the committee. Which other Republicans will serve, if any, remains up in the air. Most members of Minority Leader Kevin McCarthy's (R-CA) conference don't want to touch this with a 10-foot pole, and some of them are also pressing for him to boycott the whole thing, in hopes of de-legitimizing it. The handful of Republican members who do want to participate are grandstanders whose purpose would be to introduce chaos into the proceedings, and who would likely be vetoed by Pelosi.
   
   
2. Who Will Testify?: Donald Trump is, of course, a potential star witness. It is unlikely he would show up if subpoenaed, since he does not regard himself as answerable to Democrats or Congress, and since his lawyers would do everything they could in order to stop him, at risk of his implicating himself (see below for more). Still, the Democrats may take a shot, nonetheless. Given how much Trump loves to air his grievances, particularly with the whole country watching, he might just take the bait. And if he doesn't, then "What is Trump afraid of?" will become a talking point for every Democrat running for office in 2022 (and possibly 2024).
   
   Also interesting is whether members of Congress will be summoned to appear. There are a number of Republicans, among them McCarthy; Reps. Mo Brooks (AL), Lauren Boebert (CO), Marjorie Taylor Greene (GA), and Madison Cawthorn (NC); and Sens. Tommy Tuberville (AL) and Ron Johnson (WI) who were not just witness to the events of January 6, but also participants. It will be a bit harder for them to avoid a subpoena, since Pelosi and/or Senate Majority Leader Chuck Schumer (D-NY) could plausibly order their chambers' respective sergeants-at-arms to find the member in question and to escort them to the hearing. In addition, the Democrats don't have enough votes in either chamber (2/3) to expel members, but they do have enough (simple majority) to strip committee memberships, so that potential stick is available. Of course, these things would not help improve the already terse environment that exists in Congress these days.
   
   
3. What's the Finish Date?: The agreement that the Senate rejected (via filibuster) established a completion date of Dec. 31 for the Committee's work. The subsequent legislation passed by the House has no deadline, which gives a certain amount of flexibility. That said, as a legal matter, this is an open wound for the republic, and the more quickly it is addressed, the better. As a political matter, the Democrats will want to have the committee's findings in their hip pockets in advance of election season. And as a practical matter, the members of the committee are going to be spending a lot of time on their reelection bids once the cycle heats up, while the only two Republicans who appear to be willing to participate like adults (Cheney and Adam Kinzinger of Illinois) could both be voted out of office on Nov. 8, 2022. So while the committee theoretically has as much time as it needs, in reality, this can't linger much longer than March or April of next year.

Once the committee actually gets going, and the questions above are answered (either definitively or preliminarily), then they will actually have to figure out what to investigate. The Guardian (UK) has put together a list of four probable questions the Committee will look into:

1. What were Trump and members of his administration doing during the attack?
   
   
2. Why were police and U.S. intelligence agencies so unprepared?
   
   
3. Why did it take hours for the national guard to be deployed?
   
   
4. Was there any coordination between Trump White House officials, Republican lawmakers and the rioters?

You can see why a congressional committee is necessary, since a lot of these things do not involve crimes, per se, and so would be beyond the purview of the Dept. of Justice. Further, this is going to involve putting political actors under the microscope for their political actions, and that is something that the DoJ does not like to do, given the desire to remain above politics.

As long as we're on this subject, incidentally, this weekend the MyPillow Guy let slip the date on which Trump is expected to be reinstated as president: August 13. The Guy (Mike Lindell) not only predicted that The Donald would be returned to the White House on (or near) that date, he also specifically proclaimed that MSNBC's Rachel Maddow would be compelled to go on her (left-leaning and very evidence-based) show and admit that the election was stolen from Trump. We are not certain which of these predictions is nuttier.

Here is what we do know, however: the more clearly and the more frequently that Trump and the GOP are linked to the insurrection, the worse it is for them politically (and possibly criminally). Republicans in Congress, from McCarthy and Senate Minority Leader Mitch McConnell (R-KY) on down, know this, which is why they are trying to kill the investigation. Under these circumstances, it just might be unwise for Trump and his various minions to be running around six months later, talking constantly about how he is going to seize the presidency from Joe Biden. One might even interpret such talk as evidence that the former president did indeed foment insurrection, and was indeed willing to engage in extralegal and/or unconstitutional behavior in order to retain his office. (Z)

How Not to Respond to Being Prosecuted

As long as we're on the crime beat, there are two general rules that a person should follow if they (or their business) have been charged with crimes:

1. Shut up.
2. If in doubt about opening your mouth, see Rule #1.

There are circumstances when a person's legal team might speak publicly, so as to shape the public narrative and to influence possible jurors. But it should always be the lawyers who do this, because (1) they are pros at this, and (2) the things they say are not likely to become evidence.

Of course, Donald Trump thinks he knows best. He is also endowed with zero ability to shut his yap. So, while he was performing at one of his rallies this weekend, he just had to indulge his persecution complex, and whine to the crowd about how unfair it all is. In fact, let's do a pop quiz. Which of these defenses did he offer up since the Trump Organization was charged with 10 felony offenses?

1. Who knew that this was illegal? We sure didn't.
2. Every business in New York does things like this.
3. I don't agree with the law.

These are arguably the three worst criminal defenses possible. Any lawyer who tried any of them in front of a judge would get laughed out of court. Anyhow, the answer to the question is that Trump actually offered up...all three. He must still be getting legal advice from Rudy Giuliani.

Here are direct quotes from Trump, should you wish to see the evidence for yourself:

1. Ignorance: "You didn't pay tax on the car or a company apartment...you didn't pay tax, or education for your grandchildren—I don't even know what do you have to p... Does anybody know the answer to that stuff?"
   
   
2. Everybody Does It: "[It's] standard practice throughout the U.S. business community, and in no way a crime."
   
   
3. Dumb Law: "Think of it, think of how unfair it is. Never before has New York City and their prosecutors or perhaps any prosecutors criminally charged a company or a person for fringe benefits. Fringe benefits. Murders, okay. Human trafficking, no problem—but fringe benefits, you can't do that."

Undoubtedly these assertions impressed the folks in Trump's base. However, a court is likely to take a slightly different view. These are not just lousy defenses—a judge might call them admissions of guilt.

When the charges were first announced, CNN ran an op-ed by lawyer Robert Gottlieb that suggests the court should impose a gag order on Trump. His concern is that "Trump will do and say anything to prejudice the fair administration of justice." That's true, but we would guess that Trump's own lawyers would also be thrilled if their client was gagged, so he doesn't spend the next however many months digging a bigger and bigger hole for them to climb out of. (Z)

Breyer Clerks Up for Next Term

More legal matters. It was already public knowledge that Associate Justice Stephen Breyer was interviewing clerks for the Supreme Court's next term. And now, he's made it official, hiring the four-person team that will carry him through next year. So, all the people who want him to retire (see here, here, here, here, here, here, here, here, and here for examples) are going to be very disappointed.

In the short term, these folks really shouldn't be disappointed. It may be obvious to them that the Justice should call it a career, but from his vantage point, he would have to admit two things to himself if he was going to follow their advice:

1. That the shadows are growing long, and he should commit to spend his remaining days on book-writing, teaching law at one of his alma maters (Stanford and Harvard Law), playing golf, or gardening, instead of doing a job that he loves and where he can sometimes make a real difference.
   
   
2. That the Supreme Court has fundamentally become a political body, and its actions are largely dictated by the ebbs and flows that take place over on Pennsylvania Avenue.

The first would be tough for anyone to swallow. The second is none too easy for a Supreme Court justice to accept, particularly one who has an idealistic view of the Court. This is why Ruth Bader Ginsburg hung on, despite having a considerably worse medical history than Breyer does.

And even if Breyer is willing to do what RBG could not, there is no reason to think he'd do it now. The next Supreme Court term will end sometime in late June, with arguments concluding on April 27. Should he conclude, either for his own reasons or for the reasons being pushed upon him by outsiders, that he's going to step down, he can make an announcement in May or June of next year, and there will still be plenty of time for another justice to be nominated and confirmed. Plus, that would give Judge Ketanji Brown Jackson, who is understood to be Breyer's preferred successor, time to get a little experience on the United States Court of Appeals for the District of Columbia Circuit (where she only commenced service two weeks ago). It's true that there is some small risk that a Democratic senator from a Republican-controlled state dies unexpectedly, and then Breyer himself dies unexpectedly. Maybe he missed that line about people refusing to learn from history being doomed to repeat it?

In short, if Breyer starts interviewing and hiring clerks for the term that runs from October 2022-June 2023, then it will be clear that he plans to hang on and hope for the best. But the decisions he has made for the term that begins this October really don't tell us anything. (Z)

An Interesting Election in Saxony-Anhalt

We're somewhat into the doldrums of the political calendar right now, which means we have a chance to run some items that were pushed aside by more pressing news. For example, there was an election last month in the German state of Saxony-Anhalt. Prior to that election, the polls and the pundits had Angela Merkel's Christian Democratic Union (CDU) and the far-right Alternative for Germany (AfD) running a close race. But when the ballots were cast and counted, the CDU absolutely trounced the AfD, with 37.1% of the vote to 20.8%.

Why are we talking about a second-tier election in a country that is not the United States? Well, it's not the result that interests us, per se, it's the postmortem explanations for why the polls went so wrong. The theory, advanced by those in the media as well as those in the academy, is that the neck-and-neck polls frightened many voters, and motivated them to get to the polls and cast their votes, to make sure that AfG was sent to defeat.

In all the hand-wringing about polls, in both the United States and abroad, this explanation has not come up very much. But if it is correct—or even partly correct—the implications would be profound. Polls are only supposed to measure behavior, not influence it. And if the announcement that [X] party/candidate is up by [Y] points causes voters to change their behavior, then what we would have here is a political version of the observer effect: an observed system is disturbed by the very act of observation.

There are lots of real-world examples of this: a tire-pressure gauge can never be 100% accurate because it releases some air in the process of taking a measurement; a thermometer can never be 100% accurate because it absorbs or releases some heat in the process of assessing temperature. However, scientists have found ways to make the observer effect negligible, at least in the world of science.

By contrast, if polls are informing people's decisions about whether or not to vote, especially to the tune of a 17-point swing, as may have been the case in Germany, that may not be so easy to correct for. Yes, the pollsters ask "How likely are you to vote?," but if the poll comes out and reveals that the race in question is very close, a voter could legitimately move from "might vote" to "certain to vote." And if the poll comes out and reveals that the race is in blowout territory, a voter could legitimately move from "certain to vote" to "might vote." Even worse would be if some voters (say, Democrats who are high-information voters) are influenced by polling results, but other voters (say, Trump Republicans who are low-information) are not (or vice versa). How does a pollster correct for that?

Presumably, pollsters are thinking carefully about this potential problem. But they are not likely to talk much about it, since "here's a problem we might not be able to solve, and if we can't then our product is not reliable" is not exactly going to be good for business. (Z)

An Interesting Election in Brazil

As long as we're talking international politics, let's head (far) southwest of Germany, and take a look at what's happening in Brazil as they gear up for the presidential election that they will be holding in 2022.

The situation in Brazil is of interest, in part, because they are a key player in Western Hemisphere affairs. However, they are perhaps of even more interest because current president Jair Bolsonaro is a right-wing, authoritarian populist in the mold of Donald Trump. There was a recent wave of those folks being elected to office—Trump, Bolsonaro, Narendra Modi in India, Boris Johnson in the U.K., etc.—and if they begin to drop like flies, then it may suggest the world is coping a bit better with the challenges that put them in office in the first place. Or, at least, that the world has discovered that right-wing, authoritarian populists don't tend to make good leaders.

There were two bits of headline-generating election news from Brazil this week. The first is that one of Bolsonaro's many, many challengers, Eduardo Leite, announced that he is gay. That would be a bold choice in the United States, even despite the legalization of gay marriage and other steps forward in terms of LGBTQ+ acceptance. In a socially conservative, Catholic country like Brazil, though? Very bold, indeed. Leite is not seen as a serious contender for the Brazilian presidency, but he has become a target for Bolsonaro, who just can't resist his instinct to say nasty things about his opponents. And so, the President has declared that he would prefer that his son be dead rather than gay, and has "joked" that Leite "hid federal resources in his backside." Nothing classier than a dripping-with-disdain anal sex reference. Undoubtedly Bolsonaro thinks that such remarks help him with his base, but they may also serve to make him look like a jerk to everyone else.

The other bit of news is that Bolsonaro has been accused of graft while serving in office prior to his presidential term. The scam, called rachadinha in Brazil, involves a high-ranking politician hiring aides, and then skimming part of their salary as part of the deal. We do not know how likely someone is to get prosecuted for this; the fact that the Brazilians have a specific word for the scheme hints at a certain tolerance for that behavior. In any case—and stop us if you've heard this before—Bolsonaro cannot be indicted while he's in office.

Just because prison is not in his immediate future (and may not be in his future at all) does not mean that the accusation (and the nasty personal attacks, and mismanaging COVID-19, etc.) won't hurt Bolsonaro with voters, however, as the polling trends are not looking good for him. Up through April, Bolsonaro consistently led his main rival, Luiz Inácio Lula da Silva (known as Lula) in the polls. But since May, Lula has led in every poll but one, by anywhere from 10 to 42 points. And in that one, Bolsonaro doesn't come out on top of Lula; he just loses to João Doria instead. There's still a long time between now and Brazilian Election Day (October 2, 2022), of course, but this election certainly bears watching. (Z)

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