The Presidency or Prison

What happens if re-election is Trump’s best hope of avoiding an indictment?

Donald Trump — or, as he’s known to federal prosecutors, Individual-1 — might well be a criminal. That’s no longer just my opinion, or that of Democratic activists. It is the finding of Trump’s own Justice Department.

.. . The prosecutors argued that, in arranging payoffs to two women who said they’d had affairs with Trump, Cohen broke campaign finance laws, and in the process “deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election.

.. “While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows,” prosecutors wrote.

.. In other words, lawyers from the Justice Department have concluded that Trump may have committed a felony that went to the heart of the process that put him in office.

.. Trump’s potential criminality in this case, which raises questions about his legitimacy as president, creates a dilemma for Democrats. Assuming prosecutors are right about Trump’s conduct, it certainly seems impeachable; a situation in which a candidate cheats his way into the presidency is one the founders foresaw when they were designing the impeachment process. As George Mason argued at the Constitutional Convention, “Shall the man who has practiced corruption, and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt?”

.. But in our current moment, removing the president through impeachment is essentially impossible, given that at least 20 Senate Republicans would have to join Democrats. Representative Jerrold Nadler, the New York Democrat who will soon lead the House Judiciary Committee, told me he wouldn’t consider impeachment proceedings without at least some Republican support. 

.. Experts on both the left and the right believe that if Trump is voted out of office in 2020, before the five-year statute of limitations on campaign finance violations runs out, he could find himself in serious legal jeopardy.

.. The 2020 presidential election was always going to be extraordinarily ugly, but one can only imagine what Trump will do if the alternative to the White House is the big house. “It’s dangerous,” said Swalwell, who worries that Trump could become even more erratic, making decisions to save himself that involve “our troops or internal domestic security.”

.. Ordinarily, you know that a democracy is failing when electoral losers are threatened with prison. But Trump’s lawlessness is so blatant that impunity — say, a pardon, or a politically motivated decision not to prosecute — would also be deeply corrosive, unless it was offered in return for his resignation.
.. as long as Individual-1 is on the ticket, the 2020 election is set to be a banana republic-style death match. Trump will almost certainly try to criminalize his opponent — crowds at his rallies have taken to chanting “Lock her up” at the mention of virtually any Democratic woman’s name. And Democrats won’t be able to uphold the general principle that in American elections, losing doesn’t mean personal ruination, because for Trump it will and it should.
.. There are ways to lower the stakes somewhat. Nadler told me he plans to introduce legislation that would freeze the statute of limitations for crimes committed by presidents, so they could be charged when their terms end. Such a law would at least mean that Trump couldn’t evade justice forever just by winning re-election.
.. That would mitigate the peril to our democracy, but it wouldn’t come close to eliminating it. Our best hope may lie in the emergence of irrefutable evidence of further presidential crimes, enough to finally test the tolerance of at least some fraction of Republicans.
.. After two years of hearing people say we were all trigger-happy on impeachment, now I’m hearing we’re all constitutional fraidy-cats. Give us a chance to do the fact investigation and figure out what happened.”
.. But if the president has committed felonies, we also have to figure out how Republicans might be induced to care.

Don’t Forget Kavanaugh’s First Hearing

the questions raised about Judge Kavanaugh in his first hearing will be submerged by the onrushing tide of scandal, as they were for Justice Thomas.

.. I do think it’s unfortunate that the cynicism and racial politics that infused the nomination of the underqualified 43-year-old Judge Thomas to a lifetime position in the seat once held by Thurgood Marshall has been erased from public memory.

.. It matters that the man President Bush called “the best man for the job on the merits” was unwilling or unable under the senators’ questioning to deviate an inch from his prepared talking points; that although he was a sitting federal appeals court judge (albeit for only 18 months) his knowledge of recent Supreme Court decisions was shaky at best; or that he made the implausible claim that he had never expressed a view, even in conversation, about Roe v. Wade, a precedent that he then voted, in dissent, to repudiate when the opportunity arose during his first year on the Supreme Court bench.

.. who would turn the constitutional clock back to the 18th century if he ever found four colleagues to agree with him, distanced himself during his confirmation hearing from the extreme conservative views he had spent years espousing in speeches. Those were, he claimed, nothing more than the musings of a “part-time political theorist.” Pressed to explain his position that there was a “natural law” higher than the Constitution, he uttered perhaps the most candid line of the entire proceeding: “I certainly never thought I’d be having this discussion.”

.. What were those earlier vulnerabilities? His work for the George W. Bush White House, many details of which have never been fully disclosed. His willingness last year, as a judge, to delay an undocumented teenager’s access to an abortion to which she was legally entitled, along with the not inconsiderable prospect that he would provide the long-awaited fifth vote to overturn Roe v. Wade. More fundamentally, there is the weighty argument that a president who may not have been legitimately elected, and who had already filled a Supreme Court seat that everyone knows was President Barack Obama’s to fill, had not earned the right to project onto the court a minority constitutional vision and lock it in place, probably for decades.

The Daily 202: Kavanaugh hearing offers an ‘unprecedented’ display of the Senate’s institutional decline

— Judiciary Committee Chairman Chuck Grassley said what was truly “unprecedented” was when Democrats blocked Robert Bork’s confirmation back in 1987. “This is my 15th Supreme Court confirmation hearing since I joined the committee in 1981,” said the Iowa Republican. “Thirty-one-years ago, during my fourth Supreme Court confirmation hearing, liberal outside groups and their Senate allies engaged in an unprecedented smear campaign against Judge Robert Bork.”

Bork, as the solicitor general, conspired with Richard Nixon in 1973 to carry out the “Saturday Night Massacre” and fire Archibald Cox in a scheme to obstruct the special prosecutor’s investigation into the Watergate affair. He did so after then-attorney general Elliot Richardson and deputy attorney general William Ruckelshaus had resigned rather than do so. Bork’s nomination to the high court went down 42 to 58 on the Senate floor, with six Republicans joining every Democrat in opposition. Ronald Reagan subsequently nominated Anthony Kennedy as a more moderate replacement.

.. — Judiciary Committee Chairman Chuck Grassley said what was truly “unprecedented” was when Democrats blocked Robert Bork’s confirmation back in 1987. “This is my 15th Supreme Court confirmation hearing since I joined the committee in 1981,” said the Iowa Republican. “Thirty-one-years ago, during my fourth Supreme Court confirmation hearing, liberal outside groups and their Senate allies engaged in an unprecedented smear campaign against Judge Robert Bork.”

Bork, as the solicitor general, conspired with Richard Nixon in 1973 to carry out the “Saturday Night Massacre” and fire Archibald Cox in a scheme to obstruct the special prosecutor’s investigation into the Watergate affair. He did so after then-attorney general Elliot Richardson and deputy attorney general William Ruckelshaus had resigned rather than do so. Bork’s nomination to the high court went down 42 to 58 on the Senate floor, with six Republicans joining every Democrat in opposition. Ronald Reagan subsequently nominated Anthony Kennedy as a more moderate replacement.

.. Kavanaugh is now up for this seat, which Grassley still resents did not go to Bork. The chairman read at length from an op-ed that ran over the weekend in the Wall Street Journal by conservative legal blogger Mark Pulliam. “By confirming Judge Kavanaugh,” Pulliam wrote, “the Senate can go some way toward atoning for its shameful treatment of Justice Robert Bork 31 years ago.”

.. Sen. Mike Lee (R-Utah), whose father was Reagan’s solicitor general, also complained about Bork being blocked during his opening statement. “It remains something of a rock-bottom moment for the Senate and for the Senate Judiciary Committee,” he said.

.. The chorus of reverent Republican paeans to Bork, whose legacy will always be tainted by his role as the hatchet man in the “Saturday Night Massacre,” were particularly striking against the backdrop of Democratic charges that Kavanaugh would give legal air cover to Trump in the plausible scenario that he moves against Bob Mueller, as well as the continuing unwillingness of congressional Republicans to pass legislation that would safeguard the special counsel.

.. In this vein, Sen. Richard Blumenthal (D-Conn.) argued that holding the hearing is “unprecedented … because [Trump] is an unindicted co-conspirator who has nominated a potential justice who will cast the swing vote on issues relating to his possible criminal culpability, including whether he is required to obey a subpoena or to appear before a grand jury, whether he is required to testify in a prosecution of his friends or associates or other officials in his administration and whether in fact he is required to stand trial if he is indicted while he is president.”

.. — Introducing himself to the committee as reasonable and collegial, Kavanaugh described Merrick Garland as a personal “friend” and a “superb” chief judge on the U.S. Court of Appeals for the D.C. Circuit, where they have served together for more than a decade. “I am proud of that body of work and I stand behind it,” Kavanaugh said.

Perhaps this was meant as an olive branch, but Democrats took it as trolling. Garland, after all, was Barack Obama’s nominee to replace Antonin Scalia in 2016, and Senate Republicans refused to give him a hearing or otherwise consider his nomination. As much as anything else, the GOP’s treatment of Garland two years ago destroyed the last vestiges of comity in the judicial nominations process. Three Democrats cited him during the hearing on Tuesday to call for a postponement.

Kavanaugh’s comment about Garland wasn’t the only thing that rubbed salt in open wounds. Tuesday’s hearing featured sometimes naked displays of brute political force by a party that has just a one-seat majority in the Senate.

.. “You had a chance, and you lost,” Sen. Lindsey Graham (R-S.C.) told the Democrats. “If you want to pick judges from your way of thinking, then you better win an election.”

Sen. Ted Cruz (R-Tex.) claimed that the GOP’s refusal to allow a hearing for Garland actually gives Gorsuch and Kavanaugh “super legitimacy” because voters in 2016 knew that the next president would get to pick at least one justice.By releasing a list of the judges he’d pick from, Cruz said, Trump provided “unprecedented transparency.”

“This is an attempt by the Democrats to relitigate the 2016 presidential election,” Cruz continued.

To be sure, when it looked like Hillary Clinton was probably going to win, Cruz argued that Republicans should consider keeping the seat vacant for her entire term.

.. these same GOP members have also been going to the White House complex for several weeks to participate in mock confirmation hearings with Kavanaugh.

They’ve pretended to be Democratic senators in these moot sessions and coached Kavanaugh on how to deflect expected inquiries from the other side.

.. “It’s mostly a sham,” said Whitehouse. “You know the game,” the senator told Kavanaugh, who looked back at him stone-faced. “In the Bush White House, you coached judicial nominees to just tell senators that they have a commitment to follow Supreme Court precedent, that they will adhere to statutory text and that they have no ideological agenda. Fairy tales!”

.. Last year, McConnell went “nuclear” — in the parlance of the Senate — by changing the rules of the body to allow Supreme Court nominees to be confirmed by a simple majority — instead of 60 votes. Harry Reid shortsightedly changed the rules four years earlier to allow lower-court nominees to be confirmed this way, but he said at the time that the Supreme Court process should stay sacrosanct.

.. Going nuclear means that presidents are more likely to pick ideological nominees when their party controls the Senate, whether from the right or the left, because they no longer need any members of the other party to cross over to secure 60 votes. Kavanaugh can be muscled onto the court with only GOP votes, which makes his confirmation a sort of fait accompli. He does not need to make concessions or agree to recuse himself from certain cases.

.. The result of the rule changes is a Senate that’s become more majoritarian. Members of the minority have fewer prerogatives. This is a recipe for institutional decay. No one who watched yesterday’s circus could credibly call the Senate the world’s greatest deliberative body. It certainly isn’t what James Madison had in mind when he designed the upper chamber as a cooling saucer on the passions of the people’s representatives in the House. Republicans will probably come to regret the rule changes when they again, inevitably, find themselves in the minority and Democrats treat them as they’re now being treated. That probably won’t happen next year, but perhaps in 2021 or 2023.

.. But there’s no going back now. Why would Democrats tie their hands and hold their nominees in the future to a higher standard than Republicans have held theirs? Neither party’s base would tolerate unilateral disarmament.

.. “It was a poisonous session, as acrimonious as I have witnessed since sitting in the committee’s hearing room for the grilling of Anita Hill during the second round of the Clarence Thomas hearings,” writes columnist Ruth Marcus.“And while no dispute over documents, however impassioned, can rival the Hill-Thomas encounter, the Republican majority’s handling of this issue will be even more dangerous for the future of the Senate’s ability to conduct its constitutional duty of advice and consent.
 “Kavanaugh may not become the most conservative member of the court, but his background suggests he would be the most partisan,” Dana Milbank explains in today’s paper. “Democrats say the committee received only 7 percent of Kavanaugh’s White House documents — and some of those have been altered, while half cannot be discussed publicly. Why? They would likely reinforce what is already known about Kavanaugh as a nakedly partisan appointment, solidifying the court’s transition from a deliberative body to what is effectively another political branch. …
..  ‘a cynical view of Kavanaugh’s actions would be that he bases his legal reasoning on his conservative views — that he supports broad powers for a Republican president and circumscribed powers for a Democratic president.’ What has emerged about Kavanaugh — particularly his vulgar plan to humiliate [Bill] Clinton — reinforces that cynical view. This is why Kavanaugh’s defenders don’t want the documents to come out.”

The Cosmic Joke of Donald Trump’s Power

How much power will a president with such tenuous claim to it get to wield? How profound and durable an impact will such a shallow and fickle person make?

.. Donald Trump barely won the White House, under circumstances — a tainted opponent, three million fewer votes than she received, James Comey’s moral vanity and Russia’s amoral exertions — that raise serious questions about how many Americans yearned to see him there.

.. In his heart of hearts, he doesn’t give a damn about rolling back abortion rights. Any sane analysis of his background and sober read of his character leads to that conclusion. Yet this man of all men — a misogynist, a philanderer, a grabber-by-the-you-know-what — may be the end of Roe v. Wade.

.. So many of Trump’s positions, not just on abortion but also on a whole lot else, were embraced late in the game, as matters of political convenience. They were his clearest path to power. Then they were his crudest way to flex it.

.. Now they’re his crassest way to hold on to it. He will almost certainly move to replace Kennedy with a deeply, unswervingly conservative jurist not because that’s consistent with his own core (what core?) but because it’s catnip to the elements of his base that got him this far and could carry him farther.

.. Never mind how much it exacerbates this country’s already crippling political polarization

.. his is a moment, if ever there was one, to set a bipartisan example and apply a healing touch.

.. Trump will gladly cleave the country in two before he’ll dim the applause of his most ardent acolytes.

.. Get ready: He’ll crow and taunt. He’s already crowing and, characteristically, making Kennedy’s retirement all about him.

.. He will bully, both ideologically and tactically. And he will get his way, because — this is part of that cosmic joke — the advantages seem always to cut his way. The obstacles teeter and collapse.

.. Other presidents have had to worry about getting 60 votes in the Senate for Supreme Court nominations to proceed. Not Trump.

.. McConnell used the “nuclear option” once already, for Neil Gorsuch, rendering a Democratic filibuster irrelevant. So the precedent has been set.

.. In fact three of them — Joe Manchin of West Virginia, Joe Donnelly of Indiana and Heidi Heitkamp of North Dakota — supported Gorsuch’s confirmation last year. It’s no accident that North Dakota, which Trump won by nearly 36 points, was the site of his rally on Wednesday night.

..  his sneering, gloating, uncompromising response to that aren’t a familiar combination.

.. It’s impossible to square the roughly 77,000 votes by which he won the Electoral College with the license that he has given himself and the rein that the members of his adopted party have given him.

.. the truth about Trump is the opposite of the story he tells. He points to Robert Mueller’s investigation and to negative media coverage and portrays himself as a modern-day martyr.

.. But he’s the luckiest man alive. Although he savaged the G.O.P. en route to its presidential nomination, he was greeted in Washington by a mum McConnell, a blushing Paul Ryan and a mostly obsequious Republican congressional majority.

.. with a handpicked replacement for Kennedy, he’d probably have “fewer checks on his power than any president in his lifetime

.. “The media, normally the last check on a president with total control of government, has lost the trust of most Republicans and many Democrats, after two years of Trump pummeling.”

.. That doesn’t account for a Democratic takeover of at least one chamber of Congress, the importance of which cannot be overstated.

.. conscience. A better man might shudder somewhat at the division that he was sowing and the wreckage in his wake. Trump merely revels in his ability to pull off what nobody thought he could. Shamelessness is his greatest gift. How unfunny is that?

A Reckoning for the FBI

The House memo reveals disturbing facts about the misuse of FISA.

The memo confirms that the FBI and Justice Department on Oct. 21, 2016 obtained a FISA order to surveil Carter Page, an American citizen who was a relatively minor volunteer adviser to the Trump presidential campaign.

.. The memo adds that former FBI Deputy Director Andrew McCabe told the committee in December 2017 that “no surveillance warrant would have been sought” without the dossier.

.. But the FBI failed to tell the court that Mr. Steele and Fusion were the main sources for that Yahoo article. In essence the FBI was citing Mr. Steele to corroborate Mr. Steele.

.. The FBI retained Mr. Steele as a source, and in October 2016 he talked to Mother Jones magazine without authorization about the FBI investigation and his dossier alleging collusion between Russia and the Trump campaign. The FBI then fired Mr. Steele, but it never told the FISA judges about that either. Nor did it tell the court any of this as it sought three subsequent renewals of the order on Mr. Page.

.. Mr. Steele and Fusion then leaked the fact of the investigation to friendly reporters to try to defeat Mr. Trump before the election. And afterward they continued to leak all this to the press to cast doubt on the legitimacy of Mr. Trump’s victory.

.. No matter its motives, the FBI became a tool of anti-Trump political actors.

.. President Trump should declassify it promptly, along with Senator Chuck Grassley’s referral for criminal investigation of Mr. Steele.

.. note that Democrats aren’t challenging the core facts that the FBI used the dossier to gain a FISA order or the bureau’s lack of disclosure to the FISA judges.

.. As to the claim that the release tarnishes the FBI and FISA court, exposing abuses is the essence of accountability in a democracy.

.. The question of FISA abuse is independent of Mr. Mueller’s work

.. Mr. Trump would do well to knock off the tweets lambasting the Mueller probe

.. Mr. Trump and the White House should consider the remedy of radical transparency.