What McConnell Is Up To

Last week, we had an item headlined "What Is McConnell up To?" Although it was technically phrased as a question, we had a pretty good idea as to the answer. It turns out that The New York Times has a pretty good idea, too, and theirs is basically the same as ours: McConnell is working feverishly behind the scenes to try to take Donald Trump down.

While our focus has been primarily on the rhetoric of McConnell and his allies, and their increased willingness to call 1/6 an insurrection and to push back against "Stop the Steal," the Times piece is focused primarily on the Senate Minority Leader's efforts to recruit Trump-hostile Republican Senate candidates, in hopes of populating the Senate with enough anti-Trumpers to break the former president's hold over the upper chamber. McConnell surely knows there are plenty of anti-Trump members already, but who aren't willing to say so loudly. The more members he can find who are willing to speak out against Trump, the easier it will be for the other anti-Trump members to out themselves.

That said, while the theory is good, it's not working out so well in practice. Trump has managed to find a fanatic to support in just about every major Senate race. Many of them are lousy candidates, and could prove strong enough to win the primary, but weak enough to lose the general (say, like Herschel Walker in Georgia or Ted Budd in North Carolina). McConnell, for his part, has largely failed to land the star candidates he has targeted, including Govs. Chris Sununu (R-NH), Larry Hogan (R-MD), and Doug Ducey (R-AZ). The only real luck McConnell has had is in protecting some of his members from serious primary challenges (for example, John Thune in South Dakota).

Watching this game of 3-D chess is going to be fun for politics junkies this year. What will McConnell do when and if a bunch of wacky Trumpers advance to the general election? On one hand, the Senator is a loyal party man, and tends to back whichever nominees Republican voters choose. On the other hand, the Senator knows how to play the long game, and may decide that a crash-and-burn midterm election will be needed to purge Trumpism from the Party. On the third hand, McConnell is 79 years old, and doesn't have much long game left in him. He's running out of chances to reclaim his majority leader's gavel.

And before we table this topic for now, let us remind you of something we wrote back on January 11, after Sen. Mike Rounds (R-SD) appeared on This Week to push back against The Big Lie, and then was vocally backed by Sen. Mitt Romney (R-UT) on social media:

So, instead of a somewhat random case of a senator or two popping off, we wonder if we might not be seeing the first salvos of an anti-Trump campaign from within the Republican Party. It could be that they are merely concerned with "Stop the Steal" rhetoric, which isn't good for the country, and might also serve to keep Republican voters from bothering to show up at the polls in 2022. Or it could be that as Trump sinks deeper and deeper into conspiratorial thinking, and legal exposure, and willingness to prioritize his needs over those of the party, the GOP pooh-bahs have decided they have a cancer that really needs to be excised, and are taking steps to begin chemotherapy, with the party members who are safest taking the lead.

Sometimes, when we see a wisp of smoke and write about it, it's just a wisp of smoke. But sometimes, that wisp proves to be the first sign of a big fire. The anti-Trump maneuvering in the Senate, with McConnell pulling the strings, has now been going on for a month, and things are already getting tense. By this time in March, or April, things could be really ugly. (Z)

Rats Desert Sinking Ship

Donald Trump and his company have long used the accounting firm Mazars, largely because Mazars is the only one who will do business with TrumpWorld. Or, at very least, Mazars is the only one who will do business with TrumpWorld and look the other way when necessary. But not anymore; yesterday the firm told Trump, in so many words: "You're fired!"

To hear Mazars' attorneys tell it, the investigation launched by New York AG Letitia James, and the one launched by then-Manhattan DA Cyrus Vance Jr., tipped them off that something might be awry with Trump's financial statements. And so, Mazars launched their own investigation and audit. And they found, to their shock and horror, that there were discrepancies. Undoubtedly, when this news was revealed at the BoD meeting, dozens of fainting couches and gallons of smelling salts were needed. So, they are advising anyone and everyone who might have relied on Trump's financial statements from the past 10 years (the period Mazars reviewed) not to do so anymore. For example, it is within the realm of possibility that one or more banks were misled as to the true value of Trump's properties.

One can only guess what prompted this move from Mazars after all these years. At very least, they surely guessed that they wouldn't be collecting much more in the way of fees from the family Trump. The firm is probably also looking to limit the PR and/or legal damage to them once the financial sh*t really hits the fan. It's also possible that Mazars wants to be as free as is possible to turn state's evidence so as to protect their own bacon. In any event, those who think Trump is likely to skate here should take note that he's never had his accountants run for the hills like this before, while simultaneously poking him in both eyes (and in other places). (Z)

Eastman Has Many Secrets (or So He Claims)

Lawyer, former law professor, associate of Donald Trump, and fomenter of insurrection John Eastman has close to 100,000 pages of e-mails the 1/6 Committee would like to take a look at. And when he refused their invitation to fork those e-mails over, federal judge David O. Carter got involved, and said that Eastman had no choice, excepting those documents covered by privilege. Carter set a fairly tight timeline for Eastman to go through the correspondence and decide which documents he wants to claim should remain hidden.

Yesterday, Carter got his first status update from Eastman. Thus far, 46,000 pages of e-mails have been examined. Of those, 27,000 pages have been set aside as generic boilerplate stuff (like announcements sent to mailing lists), 8,000 are to be given to the Committee, and 11,000 are covered by various forms of privilege, according to Eastman.

We are not lawyers, as we have noted often, and we are certainly not experts in the nuances and subtleties of lawyer-client privilege. On top of that, we have no idea what's in these particular documents. That said, nearly every outlet who covered this story adopted a tone that said "eye roll." Certainly, 11,000 out of 19,000 non-spam pages of e-mail seems a very high figure. And it is doubtful that the judge will regard this as a good-faith effort by Eastman. We foresee the appointment of a special master to go through everything again.

One also wonders exactly where the line between "attorney" and "political activist who happens to be an attorney" is located. If Eastman was developing legal theories that justified the overturning of the election, and sharing those theories with Trump, and Chief of Staff Mark Meadows, and Jared Kushner, and all the other folks in the inner circle, then was Eastman really acting as "counsel" in a manner covered by attorney-client privilege? It will be interesting to see how this unfolds. (Z)

Palin Loses Once--Do We Hear Twice?

Speaking of dubious legal arguments, Sarah Palin and her attorneys have been making one in her defamation case against The New York Times. At least, we think so, and all the attorneys who have followed the case seem to think so, too. And as it turns out, her case is so weak that she's not only lost, but she might well lose again today. Not easy to go 0-2 in the span of 2 days on the exact same cause of action, but Palin has always been one to buck the odds, right?

When we wrote about the case this weekend, we focused primarily on one problem, namely that to make a defamation case, you have to show damages. This is true whether you are a public or private citizen. And we were skeptical that Palin would be able to show she had been materially harmed by the Times' op-ed that gave her the sads. She did not help her case with not terribly compelling testimony about how hurt her feelings were.

There is another big hole in the case that we did not address, primarily because of the question we were answering. But because Palin is a public figure, there's an extra element to a defamation claim: The plaintiff has to show that the slanderous/libelous material was the result of malice. A mere screw-up, even one that is grossly negligent, isn't enough. And, by all indications, the staff of the Times regretted the error and was not motivated by malice.

Certainly, this is how Judge Jed Rakoff assessed the evidence. While the jury in the case was sequestered away, trying to reach a verdict, he announced his ruling: The case will be dismissed because the plaintiff failed to make the elements. "I think this [was] an example of very unfortunate editorializing on the part of the Times," the judge opined. "The law here sets a very high standard [for actual malice]. The court finds that that standard has not been met."

Rakoff believes, with good reason, that an appeal is coming, and so is acting with that in mind. Consequently, the jury was allowed to keep deliberating, and Rakoff issued orders that the members were not to be told of his decision. Undoubtedly, the judge is hoping that if a judge sees no case here, and a jury sees no case here, then that might just give Team Palin pause, and cause them to conclude that maybe there's no case here. What he's forgetting, though, is that you don't get to be mayor of a place like Wasilla, AK, if you give up at the first sign of adversity. Anyhow, the jury will probably have its decision by today. (Z)

Manchin Would Definitely Probably Maybe Possibly Support a Second Supreme Court Nominee

Sen. Joe Manchin (D-WV) must enjoy being a riddle, wrapped in a mystery, inside an enigma, because when he's not driving people to distraction with his zigs and zags on voting rights or Build Back Better, he's finding other issues with which to confound and amaze politics-watchers. That includes issues which don't actually exist yet, and where it's not necessary for him to stake out a position, such as what the Senator will do if Joe Biden gets to make a second Supreme Court appointment.

In fairness to Manchin, he was asked about approving a second justice, and so he answered. On the other hand, he could have said, "I can't speak to that situation until it comes to pass." In other words, apropos to the day after the Super Bowl, he could have punted. But that is not what he did. Instead, Manchin declared that he would not support filling a seat if it becomes vacant shortly before the midterms. "If it comes a week or two weeks before like it did with our last Supreme Court nominee, I think that's a time it should go to the next election," were his exact words.

If he was surprised that this news spread like wildfire, he should not have been, as it would mean he was willing to risk a Supreme Court seat remaining open for 2+ years, and potentially going to a Republican rather than a Democrat, in service of (some) principle. Given that the alleged basis for the "McConnell Rule" is that the people should get to weigh in on the president who will fill a vacant SCOTUS seat, at least when the presidency is potentially about to change hands, it makes zero sense that the midterms should matter. Joe Biden will be president before the midterms and will be president after.

Later in the day yesterday, after the furor had reached something of a crescendo, Manchin clarified that he was referring only to the presidential election of 2024, and not this year's election, and that his concern is that he would not want to be "hypocritical." Manchin opposed the rapid, late-in-the-presidential-term appointment of Amy Coney Barrett, and apparently feels that he would be wrong to take a different position if the shoe was on the other foot.

Perhaps some will admire the Senator's commitment to consistency. Very well, but playing by "unwritten rules" that the other party does not adhere to is not a great recipe for success in politics. More significant, however, is that the "McConnell Rule" is barely a thing, and even if it is a thing, it's only existed for about 6 years. In other words, it's hardly a Senate tradition. So, it raises the question of how Manchin can adapt to new and different circumstances when it comes to Supreme Court appointments, but not when it comes to the filibuster. Either tradition matters or it doesn't. And standing with one foot on either side of that line, as Manchin so often does, seems, well, a bit hypocritical. (Z)

But Her E-mails, Vol. CCXLV

Special counsel John Durham was appointed by then-AG William Barr to look into the various investigations of Donald Trump's ties to Russia. Current AG Merrick Garland could theoretically fire Durham, but it would look politically motivated, and would make it seem as if someone—the Democrats, the Biden Administration, Hillary Clinton, the Deep State, the Cincinnati Bengals' offensive line, the original cast of "South Pacific," the guy who invented the Pet Rock, etc.—has something to hide. So, better to let Durham keep going and hope he will reveal himself to be a pettifogger. That moment might have arrived yesterday, as his latest filing in federal court was made public.

The actual filing bends over backwards to make mountains out of what certainly seem to be molehills. It points out that:

1. Hillary Clinton was the presidential candidate of the Democratic Party in 2016
2. The Democratic Party employs lawyers
3. One of those lawyers is Michael Sussmann
4. Sussmann had information suggesting Russian-made phones were used by the Trump campaign
5. Sussmann passed the information on to the CIA in hopes of getting them to investigate
6. The CIA apparently did not take the matter seriously, and did not follow up

It's true that Sussmann is facing trial on the charge that he lied to the FBI, and that Durham is looking for anything he can find in order to nail Sussmann to the wall. That said, we are not seeing any real wrongdoing here—certainly nothing criminal. It's common to go to the CIA, FBI, etc. with dirt on one's opponents, and to hope that the G-Men run with it. And the right-wing folks who are gnashing their teeth and rending their garments right now, and lamenting how sleazy and underhanded the Democratic campaign was in 2016, are conveniently forgetting the whole purpose of the Hillary Clinton e-mails line of attack (if you need a reminder, here's a hint: "Lock her up!").

There's also more to this story. Either Durham just writes sloppy briefs, or he was deliberately trying to feed the right-wing outrage machine—whatever it is, he put stuff in the Sussmann brief that has Fox, et al., frothing at the mouth. It's rather complicated, but the executive summary is that the brief points out that Sussmann got the data for the Russian phones claim from a company called Neustar. And elsewhere, the brief notes that since 2015, Neustar has aided the federal government in trying to unravel Russian cyberattacks and to prevent future ones, including attacks against the White House and its computer servers.

From these scattered bits and pieces within the brief, the right-wing media concluded that the real story here is that the Hillary Clinton campaign paid someone to infiltrate a White House computer server. This makes no sense, of course—recall that when Clinton was campaigning, Barack Obama was in the White House. Why would she want or need to infiltrate a server there? But beyond that, this assertion requires several leaps of logic that are not present in Durham's actual briefing. The Clinton campaign paid for none of this and, besides, Neustar's work on the White House servers actually took place in 2015, before Donald Trump was even a candidate for president, much less the actual president.

Perhaps the most unhinged ranting and raving came from Fox entertainer Jesse Watters, who decreed:

Durham's documents show that Hillary Clinton hired people who hacked into Trump's home and office computers before and during his presidency, and planted evidence that he colluded with Russia.

Yeah. You heard that right. Hillary broke into a presidential candidate's computer server and a sitting president's computer server, spying on them. There, her hackers planted evidence, fabricated evidence connecting Trump to Russia, then fed that doctored material to the feds and the media.

Literally not one iota of that is actually in the filing. The first link above is to the filing itself; you can check for yourself, if you wish. It's badly written, so it might take you a while to slog through it, but you'll see it says none of these things.

In any event, Durham has now used up whatever remaining credibility he had as a special counsel and a former U.S. Attorney. Either he's a sloppy lawyer or a partisan hack (or both). Further, he's spent about 2 years and has come up with almost nothing. Maybe he'll dig up something yet, but we have our doubts. (Z)

Abbott Is a Beto Blocker

There hasn't been a lot of polling of the Texas gubernatorial race, for the obvious reasons, namely that it's early in the cycle and polling costs money. Still, what polling there has been has largely been good for likely Republican nominee Gov. Greg Abbott and bad for likely Democratic nominee Beto O'Rourke. In December, a poll from Quinnipiac had Abbott up 15 points (52/37). In January, a poll from the University of Texas/Texas Politics Project had Abbott up 11 (47/36). And the newest poll, again from the University of Texas/Texas Politics Project, reveals that February will be the third consecutive down-double-digits month for O'Rourke, as he's down 10 to Abbott (47-37).

O'Rourke's fundamental problem is that, in addition to the state's Democratic voters, he needs the lion's share of the independents, and he's not getting them. In fact, Abbott leads about 2-to-1 among independents. This isn't too much of a surprise; as we've pointed out many times, most independents have a "lean," and we would expect Texas independents to lean Republican more often than they lean Democratic. Further, the independent vote is where we would expect O'Rourke to be hurt by his past anti-gun statements. It is likely that for a lot of independents, particularly in the Lone Star State, any sort of "limits on the Second Amendment" talk is a deal-breaker.

All is not lost for the would-be governor, however. He did much better in polling in fall of last year, when Abbott was often in the news for things that divided Texas voters. The abortion law could come back to haunt Abbott, and sap him of some of his support. Further, O'Rourke is facing no serious opposition right now, and so is largely cooling his jets. Once the general election arrives, he will implement his campaign strategy—whatever it is—and will surely chip away at Abbott's lead, at least some. Further, Beto isn't afraid to gamble, and to say something bold if he thinks he needs to. Most politicians are so risk-averse, they won't rock the boat, even if they are clearly about to sink. Anyhow, we can't declare this one to be over quite yet, even with the not-very-close polls. (Z)

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