RNC Cowers before Trump; Pence, Not So Much

We are beginning to see a split within the Republican Party. Some members are still in thrall to Donald Trump, as if hypnotized, but others are not. Reps. Liz Cheney (R-WY) and Adam Kinzinger (R-IL) are having none of it. Sens. Mike Rounds (R-SD) and Mitch McConnell (R-KY) are ever-so-gently, but unmistakably, beginning to disagree with Trump in public. A year ago, star reporter Carl Bernstein said he knew 21 senators who hold Trump in contempt, but didn't dare say so in public, at least not then. That may be changing.

The latest evidence of a public split within the GOP first came at the RNC's winter meeting in Salt Lake City. There the 168-member body voted to censure Cheney and Kinzinger. It is extremely unusual for a party committee to censure their own sitting members of Congress unless they have committed a fairly heinous act. Joining a House committee to investigate a coup attempt against the United States is not a heinous act. The RNC didn't vote to eject the two members from the Republican Party, not that that would have made any difference, since there are no dues/qualifications to be a Republican, such that anyone can join the party at any time they please (same holds for the Democrats, of course). The resolution accuses Cheney and Kinzinger of persecuting ordinary citizens engaged in "legitimate political discourse." Of course, the pair aren't persecuting anyone although AG Merrick Garland is prosecuting people who engaged in an attempted coup. It's a subtle, but important, difference.

While most of the RNC members were fine with the censure, some were not, opening a small fissure within the Party. For example, Chairman of the Illinois Republican Party Don Tracy said: "I don't think you build a majority by censuring fellow Republicans." Committeeman Ed Broyhill of North Carolina said he wanted to stop "name calling" and focus on Joe Biden. Most likely many members actually agree with Broyhill and want to focus on winning in 2022, not relitigating 2020, but were scared to say so to reporters covering the event. Note also that the "legitimate political discourse" bit caused quite a brouhaha among folks from across the political spectrum, such that the RNC had to walk that back a bit.

Former governor Chris Christie (R) is not afraid of much, so yesterday he agreed with Broyhill and said that people are tired of hearing about Donald Trump all day. Instead, they want to know how Republicans will solve their problems if they win in 2022 and 2024.

Yesterday, former NSA Herbert McMaster went on CBS's "Face the Nation," and Rep. Michael McCaul (R-TX) went on ABC's "This Week" to push back against the RNC, as well. Sen. Lisa Murkowski (R-AK) also criticized the RNC. The National Review ran an editorial yesterday condemning the RNC for censuring Cheney and Kinzinger, calling it morally repellent. The editors also called it stupid, with no conceivable benefit to the Republican Party.

There is clearly a small, but growing, core of high-level Republicans who want to move forward and leave Trump in the dust. If this group grows in size in the next few months, it could trigger a major fissure within the Republican Party and snatch defeat from the jaws of victory in November as Republicans fight other Republicans. Saint Ronald of Reagan is no doubt rolling over in his grave now.

While they were at it, the RNC members voted to prohibit the GOP presidential candidates from participating in any mud-wrestling contests (informally called "debates") in 2024. The assumption here is that Donald Trump will be the nominee and he doesn't do well in debates, so they will give him an excuse for not attending ("the party won't let me"). Of course, if Trump is not the nominee and the RNC sticks to its guns (unlikely), this could backfire spectacularly if the nominees in 2024 are Joe Biden and Gov. Ron DeSantis (R-FL) or worse yet (in many ways) Sen. Ted Cruz (R-TX). Everyone who reads this site undoubtedly knows a great deal about both of them, but many Americans outside of their respective states don't know them at all. A "debate" is hugely important for an unknown candidate to become better known. If the RNC really prohibits any non-Trump candidate from debating, it could be a huge mistake.

If the RNC pulls out of the Commission on Presidential Debates, the Commission could (but probably won't) decide to strike back. One way would be to hold the "debate" anyway, basically just having the moderator ask the remaining candidate policy questions for an hour or so, kind of like a press conference or a town hall. The news the next day would all be about that. Even more radical would be to change the rules about who is eligible to "the two biggest parties willing to show up." If the Republicans pull out, then it would be a Democrat debating a Libertarian. This would give the LP massive free publicity and no doubt attract votes from people who never even heard of it. Every one of these votes would come out of the Republicans' hide.

Now onto another non-cowering part of the GOP. On Friday, Mike Pence sharply rebuked Trump for claiming that he (Pence) had the power to overturn the election on Jan. 6, 2021. He said the President of the Senate has no such power. Literally, Pence said: "President Trump is wrong." And he said it to a group of right-wing lawyers at a Federalist Society meeting in Florida. When was the last time you heard any current or former high-ranking Republican saying those four words?

We are not sure what Pence's game is here. McConnell clearly wants senators to start criticizing Trump in smaller or bigger ways in the weeks ahead in order to reduce his power, but Pence doesn't take direction from McConnell. Our best guess is that Pence is seriously thinking about the scenario that Trump takes a big hit this year or next, due to some combination of a blistering report from the House Select Committee or by being indicted and convicted in multiple jurisdictions. By putting plenty of daylight between himself and Trump, Pence is probably trying to avoid having his perfectly coiffed hair messed up when the proverbial poop hits the proverbial ventilator. The mere fact that he is trying to do this suggests that he thinks Trump is in for a world of hurt. Pence is no newbie and would never try to distance himself from Trump unless he thought Trump's star was falling rapidly.

Trump responded to Pence by saying that he understands that Pence didn't have the power to unilaterally declare him the winner, but he did have the power to send electoral votes from states with lots of fraud back to the state legislatures to fix. Of course, Pence didn't have that power, either.

It is especially interesting to note that Trump did not call Pence names a third-grader would be proud to have thought of or launch a personal attack on him. This is very unTrumpian. What's up here? It could just be that Trump knows that Pence has the goods on him and that sooner or later he is going to be subpoenaed to testify on national television about what he knows about the coup attempt. The lack of a direct attack could be a subtle offer to Pence, effectively saying: "If you don't rat on me, I won't destroy you." Pence may or may not have gotten the message and may or may not believe it even if he understands it. Also, at this point, Pence probably understands that his own future depends on what the general public thinks of him, not what Trump thinks of him, and will act accordingly. (V)

What Does Manchin Really Want?

Trying to figure out what Sen. Joe Manchin (D-WV) wants has become a bit of a cottage industry. As soon as you think you have nailed it, he changes his mind. Nevertheless, he is making noises about a replacement bill for Build Back Better. Maybe we are going out on a limb here, but we think he really does want a bill—just not the one Joe Biden wants.

Any "soft infrastructure" bill has two parts: (1) the goodies and (2) the baddies. All the other Democrats are focused on goodies: Pre-K for young parents, hearing aids for seniors, etc. The baddies (the taxes to pay for the goodies) are seen as a necessary evil.

Manchin appears to be doing it the other way around. He seems to be more interested in the taxes, to fight inflation and reduce the deficit. The goodies are just collateral damage to him. Among other things, Manchin has indicated he would like:

• A hike of the corporate tax rate to 25%
• A 15% minimum corporate tax
• An increase of the capital gains tax to 28%
• Higher marginal tax rates for the wealthy
• Eliminating loopholes like the carried interest provisions hedge fund managers use
• Fixing (i.e., gutting) the Republicans' 2017 tax bill

One can almost imagine that he sipped tea with Sen. Elizabeth Warren (D-MA) and took notes. However, most of these things are toxic to Sen. Kyrsten Sinema (D-AZ), so even if he writes his own bill with these items and votes for it, it still might not pass. But Sinema really does not want to be the sole reason no bill passed. If Manchin really means what he is saying now (and with him, one never knows), the pressure that will be exerted on Sinema will be enough to turn all of Manchin's coal into a truckload of diamonds.

As to the goodies, at this point, it hardly matters whether Manchin prefers pre-K to hearing aids or electric cars to child tax credits. At this point the Democrats are so desperate they are likely to go for any bill he promises to support, again, with a footnote about Sinema. But at the same time, they'll believe it when they see it. Some of them fear he is just stringing them along again, as he has before.

Progressives will mumble about a mini-bill with limited goodies, but if most of Manchin's tax plans get in there, they will go for it in the end since they see taxing the rich as a major policy goal, maybe even more important than some of the goodies on their wish list. (V)

Manchin Endorses Murkowski

One thing that Joe Manchin wants that is completely unambiguous is for Sen. Lisa Murkowski (R-AK) to be reelected. He said so with no hesitation while appearing with her on CNN's "State of the Union" yesterday. Murkowski is facing a Trump-endorsed primary opponent, but Manchin couldn't care less what the leader of the Republican party thinks of him. Truth be told, he doesn't even care what the leader of the Democratic Party thinks of him.

Manchin and Murkowski have worked together on several bills, including infrastructure. They like each other as much as they like fossil fuels. This isn't the first time Manchin has backed a Republican for the Senate. In 2020, he backed Sen. Susan Collins (R-ME) even though her state doesn't have a lot of fossil fuels (unless you count wood as a fossil fuel).

Murkowski also said she will support Manchin in 2024, if he runs. It is questionable whether endorsements have much value at all, especially when the endorser is barely known in the endorsee's home state. Do people in the hollows of West Virginia take their direction from people living in the snow of Alaska, and vice versa? We have our doubts. (V)

Workers at Democratic Firm Rebel at Working for Sinema

Speaking of Kyrsten Sinema, it isn't just the other Democratic senators who are more than slightly irritated with her. It's also the people who work for her. In the past 2 years, her reelection campaign has paid the Democratic consulting firm Authentic half a million dollars for campaign help. The company specializes in digital ad campaigns for a number of progressive/progressive-leaning Democrats, including Kamala Harris, Rep. Barbara Lee (D-CA), Rep. Hakeem Jeffries (D-NY), Rep. Adam Schiff (D-CA), Sen. Cory Booker (D-NJ), Sen. Tammy Baldwin (D-WI) and Boston Mayor Michelle Wu, among others.

Now the staffers there who are working on Sinema's campaign are in open revolt. One of them said: "I am doing the devil's work." Another said "I feel sick about it, tbh." Yet another was afraid that the company would lose some of its progressive clients if they learned it was working for Sinema. Finally, another was worried that their reputation would suffer irreparable damage if Democrats came to think of them as Team Sinema.

Their problem is that the firm has progressive values and they want to help elect Democrats who will further these values, not Democrats who block them. The company is unionized and the union contract specifies that employees who are unhappy working for a particular candidate can ask for reassignment to a different candidate. Some of them are now doing that. If enough employees ask to be reassigned, the company will have to cancel the contract, telling Sinema that no one is willing to help her. There are plenty of other consultants she could hire, but it is never great for a candidate to have your first-choice consultants tell you they don't want you or your money.

Sinema may need Authentic more than Authentic needs her. Unlike most Democrats, she is positively awful at raising money from millions of small donors. Just over 2% of her $1.6 million haul last quarter came from small donors. This means she really needs a lot of help and that will be all the more difficult if the kinds of firms that could help don't want her as a client. Of course, maybe her strategy is to simply forget the small donors and get a few big corporate donors to pony up as long as she acts like a de facto Republican. However, half a dozen of the top Democratic Senate candidates in 2020 raised something on the order of $100 million, almost all from small donors. These include Sen. Jon Ossoff (GA, $140 million), Jaime Harrison (SC, $133 million), Sen. Raphael Warnock (GA, $125 million), Sen. Mark Kelly (AZ, $100 million), Amy McGrath (KY, $96 million), and Sara Gideon (ME, $76 million).

The problem is that you can't get to $100 million if the members of your own party hate you and consultants won't work for you. Yes, Exxon Mobil and Chevron can give millions to help her, but only if the money goes to a super PAC, which pays higher rates for advertising and gets far less help from the DNC, DSCC, etc. than an actual candidate. Otherwise, they are subject to the same $2,900 per election as everyone else. If Sinema continues to block the Democrats—especially if Joe Manchin writes an infrastructure bill he likes and votes for it, making her the sole cause of its defeat—it wouldn't be surprising to see her raise $10 million from fat-cat donors for her 2024 primary while Rep. Ruben Gallego (D-AZ) raises $100 million from grassroots donors all over the country. (V)

What Other Crimes Did Trump Commit?

Prosecutors sometimes have to make a tough decision: Indict a suspect for the terrible crimes that he committed but that might be hard to prove to a jury, or indict him for mundane crimes that are much easier to prove. The former may be more satisfying, but getting someone locked up for petty theft robbing a liquor store is sometimes easier than for a disputed murder committed during the robbery. The poster child here is Al Capone, who wasn't nailed for the crimes he committed as a mobster, but for failing to pay income tax on his ill-gotten gains.

The same logic could apply to Donald Trump. Nailing him for a conspiracy to commit sedition could be tough to prove to a jury beyond a reasonable doubt (especially if one or more jury members were hard-core Trumpists). But there are also some more mundane crimes available that are much easier to prove, including these:

• The Ukrainian coverup: Someone who knew about Donald Trump's call to Ukrainian President Volodymyr Zelensky filed a whistleblower complaint according to law. The inspector general concluded it was credible and under law was required to inform Congress. He didn't. Did somebody block him from doing it? Who? It shouldn't be hard to find out since the IG is alive and available to testify under oath. There is written evidence from Sen. Ron Johnson (R-WI), of all people, suggesting that Trump was the one and was actively trying to cover his tracks. Obstructing a federal official from carrying out his duties is a federal felony.
  
  
• Shredding official records: Trump often tore up federal records by hand. This goes back to at least 2018. At that time, two federal employees told the media that their job was to paste the pieces together so the National Archives could preserve them, as required by the Federal Records Act 18 U.S.C. 2071. That someone put them back together later doesn't matter. It is a crime to destroy federal records that the law says must be archived. If 18 U.S.C. 2071 seems vaguely familiar, it might be because that is the section of the law that Republicans accused Hillary Clinton of violating when she erased some of her e-mails. Of course, whether she broke the law depends on which e-mails she erased. Federal law did not require her to archive e-birthday cards from Chelsea.
  
  
• The Republican National Convention: Trump ran part of the 2020 Republican National Convention from the White House lawn. The Hatch Act prohibits federal employees from carrying out partisan political activities on federal property, but the president is exempt from the Act. However, 18 U.S.C. 610 makes it a federal felony to command a federal employee to engage in political activity. The president is not exempt from this law. There was a large set erected for Trump's speech on the lawn, with a stage, flags, lighting, a sound system, and much more. Did the stage crew fairy do this on her own? Or did Trump order one or more federal employees to engage in an in-kind contribution to his campaign, a federal crime? It shouldn't be hard to find some crew members who set up the stage, lights, sound, etc., ask them who gave them their orders, and follow the chain up the tree. At some point a civil servant will point to a Trump aide. Then the aide can be asked under oath: "Did you just decide on your own to erect a stage on the White House lawn, or did someone tell you to do so, and if so, who?"
  

None of these are terribly difficult to investigate. AG Merrick Garland doesn't have to use his 40 years' experience full-time on this. A couple of summer interns should be able to collect most of the evidence for him to judge in a couple of months. (V)

The Courts Are Getting into the Map-Making Business

Many states have finished making their congressional (and state) maps. That is only Part 1 of the process. Part 2 is the lawsuits that inevitably follow. Part 2 is now in full swing. In any state where the legislature draws the map but the governor has veto power, the map is going to end up in court if neither party has the trifecta. That will also happen in states where one party has complete control but got too greedy.

There are two key facts to remember here:

• The Supreme Court thinks partisan gerrymandering is hunky dory, but racial gerrymandering is still a no-no
• Many states have constitutional provisions and/or laws banning all kinds of gerrymandering

These mean that federal cases can claim racial gerrymandering and state cases can claim state law was violated. Already, 44 cases have been filed in 17 states with more to come for sure. Some of those are just the losers bellyaching, but some of the plaintiffs have a real argument. Let's take a look at some of the biggies. For the complete list, see here.

• Alabama: Civil rights organizations have filed federal lawsuits claiming that the map the legislature drew is a racial gerrymander because it packs very large numbers of Black voters into a single district and splits the other concentrations of Black voters among multiple districts. All of them want at least a second Black district. On Jan. 24, a three-judge panel blocked the map because six of the seven districts are majority-white even though 27% of the state is Black. Fourteen other states have supported Alabama's right to try to effectively disenfranchise a large part of the state's minority population. This case is headed for the U.S. Supreme Court.
  
  
• Georgia: There are also three federal cases here. The plaintiffs say that the map packs and cracks and there should be a second district in the western Atlanta area where a minority candidate could win. The suits note that nearly all of Georgia's population growth since 2010 has been among minority communities, and this is not reflected in the maps. They also note that GA-06 has been gerrymandered to prevent Rep. Lucy McBath (D-GA) (who is Black) from being reelected. In addition, the map packed large numbers of Black voters from six counties into a sprawling district, GA-13. Finally, the map lumped Black voters in Cobb County with a larger number of rural white voters with whom they have little in common.
  
  
• Michigan: Here, one of the two cases was decided last week when, in a 4-3 decision, the state Supreme Court threw out a suit filed by Detroit lawmakers against the independent commission. The court said the plaintiffs didn't prove their case because in four counties with large Black populations—Genesee, Oakland, Saginaw, and Wayne—white voters sometimes do vote for Black politicians. Another lawsuit alleges that the population differences among the districts are too great. A third one, from the League of Women Voters, claims the map is a partisan gerrymander, in violation of the state Constitution.
  
  
• New Jersey: Here the Republicans didn't complain about the map, per se, but about the process used to produce it. The state Supreme Court didn't buy into that at all and ruled 5-0 to throw out the Republicans' suit because the process is not a valid grounds for challenging the map, and there was no argument the map was illegal. The way it works in the Garden State is that each party draws its preferred map and hands it to an independent commission consisting of 6 Democrats, 6 Republicans, and one other person named by the Supreme Court. This time the independent picked the Democrats' map. The Court said that if the legislature doesn't like this process, it could propose a new amendment to the state constitution.
  
  
• North Carolina: Biggie here. On Friday, the North Carolina Supreme Court threw out the state map altogether 4-3, with the vote breaking along party lines. And this isn't the first time the state's highest court has thrown out nakedly partisan maps. In the legislature's map, Republicans would have controlled 11 of the 14 districts, and this in a 50-50 state. Also, Black candidates have a chance in only 2 of the districts, despite making up 30% of the state's voters. The Court ordered the legislature to produce an acceptable map by Feb. 18, explain their methods, and get approval from a three-judge panel. The primaries are May 17 and candidates can't file until they know what the districts are.
  
  
• Ohio: Two lawsuits in Ohio claim that the Republican-drawn map is a partisan gerrymander, something the state Constitution prohibits. Republicans are expected to win 80% of the seats (12 of 15), even if they get only 53-55% of the vote. On Jan. 12, the state Supreme Court tossed the map. Republicans then asked the Court to use the map anyway because the filing deadline was on Feb. 2. This one is still up in the air.
  
  
• Pennsylvania: Republicans control the legislature but the governor is a Democrat, so the map-drawing was never going to go smoothly. A case was already pending in a lower court, but in an unusual move the state Supreme Court just took the case away from the lower court. The reasoning was that the Pennsylvania Supremes were going to get the case anyway, so why wait with the primary on May 17? The Supreme Court immediately appointed Commonwealth Court Judge Patricia McCullough as a special master to produce a new map by today. All the parties will have until Valentine's Day to say how much they love it. Then, armed with all the feedback, the Supreme Court will hold a hearing on Feb. 18 to listen to all the arguments. Currently, Democrats hold a 5-2 majority on the Court. The current congressional delegation is 9D, 9R and Pennsylvania is losing a House seat, so the new delegation might well end up 9D, 8R, which would be an honest reflection of the electorate.
  
  
• Texas: Eight cases are already pending in the courts over the Texas map. They all allege that the state legislature is continuing a long history of racial discrimination by packing and cracking minorities. Nearly all the growth in the past 10 years, which enabled the state to get two more House seats, has been among minorities. Yet they won't get any new seats under the map the legislature drew.
  

Clearly the main ones to watch in the coming weeks are Ohio, North Carolina, and Pennsylvania, but there could always be surprises elsewhere, such as Texas gaining another minority-majority district. (V)

Republicans Try to Kill Off Absentee Voting in Key States

Republicans have filed lawsuits in Pennsylvania and Wisconsin trying to kill off absentee voting, which they believe helps the Democrats. The cases have now reached the states' respective Supreme Courts after conservative victories in the lower courts.

In Wisconsin, in January, a judge banned drop boxes for returning ballots. After all, voters could always mail them back, even if the USPS takes a couple of weeks to deliver many of them and loses the rest. In Pennsylvania, the Republicans are shooting for the moon, trying to overturn the state's new law allowing anyone to cast an absentee ballot just because they want to. In 2020, more than 2.6 million voters—about two-thirds of whom voted Democratic—did precisely that. Those data give a concise summary of why the Republicans want to ban the practice.

It would have been easier for the Republican-controlled legislatures of both states to simply pass laws to achieve their goals were it not for the inconvenient fact that both states have Democratic governors. Hence the appeal to the courts to attempt to achieve from sympathetic justices what they could not achieve through the legislative process.

In the Pennsylvania case, each side is pointing to a different provision of the state Constitution to claim it is right. Donald Trump, a well-known constitutional lawyer, has been egging the Republicans on in Pennsylvania, claiming that absentee voting is indeed unconstitutional. However, Trump may not be so happy when a decision is rendered, since, as noted above, Democrats outnumber Republicans on the Pennsylvania Supreme Court 5-2. That shouldn't say anything about the final decision, but in reality it says nearly everything. Of course, if the Republicans lose at the state level, they could appeal to the U.S. Supreme Court, which might or might not take the case, since it is entirely about the meaning of a state constitution.

In Wisconsin, the situation is different. There Republicans have a 4-3 majority on the state Supreme Court. However, Justice Brian Hagedorn, who was elected with Republican support in 2019, sometimes votes with the Democrats in close cases. Trump has also interfered in Wisconsin, with the effect that it scared off Republicans from trying to change state law. (V)

Arkoosh Goes Whoosh

And she's out of there. Montgomery County Commissioner Val Arkoosh (D) really had no business running for the Democratic Senate nomination against well-known liberal giant Lt. Gov. John Fetterman (D-PA) and Rep. Conor Lamb (D-PA). They have different coalitions behind them, but both are heavyweights with broad support. She never had a chance and should have known that from the start. Now she has figured it out and dropped out. In the understatement of the month, she said: "It's become increasingly clear over the last month or two that I'm unlikely to be the Democratic nominee." She also attacked the Republicans in the race, but Pennsylvania Democrats don't need her to fend them off. Both Fetterman and Lamb should be able to handle the job.

Now there are three. Besides Fetterman and Lamb, state Rep. Malcolm Kenyatta (D) is also running for the nomination. He has virtually no chance of getting it, but as a Black candidate from the state's largest city, he could pull enough votes from Fetterman to give Lamb the nomination. Kenyatta is from Philadelphia, whereas Fetterman and Lamb hail from the Pittsburgh area.

On the Republican side, television quack Mehmet Oz, who lives in New Jersey, is battling Connecticut-based hedge fund manager David McCormick for the Republican nomination to represent Pennsylvania in the U.S. Senate. Over the weekend, the Pennsylvania Republican Party met and decided it didn't want to choose between New Jersey and Connecticut, both lovely states, so it won't endorse either candidate, or any of the dozen or so less-well-known and less-well-funded candidates. Also, the state party is afraid that Trump might jump in and pick someone other than their endorsee, making them look silly. (V)

RNC Convention Site Choices Narrow

Officially, four cities are under consideration to host the 2024 Republican National Convention: Milwaukee, Nashville, Pittsburgh, and Salt Lake City. At the RNC meeting in Salt Lake City, the potential host went all out to impress the 168 members of the Committee. There were helicopter rides, Wagyu steaks, and tours of the facilities. The local weatherman came to talk about how pleasant the weather is in SLC in the summer.

In the coming weeks, the Committee will visit Nashville and Milwaukee, but not Pittsburgh. Pennsylvania Democrats are pressuring Pittsburgh Mayor Ed Gainey to drop out of the race. He responded by bringing up his concerns about COVID-19 and safety. It sounds like he will do what is needed to scuttle the bid, leaving only the other three.

At the RNC meeting, there was a lot of buzz about Nashville, despite it being located in a decidedly swingless state (in contrast to, say, Milwaukee). On the other hand, although the mayor of Nashville is a Democrat, the governor of Tennessee is a Republican. Nashville also has logistics going for it, as a number of large downtown hotels are currently under construction. That is important for an event expected to draw 50,000 people. Also important is that in Tennessee, the moonshine will flow, whereas alcohol sale and consumption in Mormon Utah are heavily regulated. A decision is expected in the summer. (V)

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