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Defying the Odds

Defying the Odds
New book about the 2016 election.

Sunday, February 17, 2019

Retribution

In Defying the Odds, we discuss Trump's dishonesty and his record of disregarding the rule of law.  In our forthcoming update, we bring the story up through the 2018 election.

 
In his 2019 State of the Union, he said:  "But we must reject the politics of revenge, resistance, and retribution, and embrace the boundless potential of cooperation, compromise, and the common good."

But seriously ... Trump is into retribution.

Hail Caesar

In Defying the Odds, we discuss Trump's place in the American constitutional system

Lloyd Green at The Guardian:
A shutdown averted, a constitutional crisis born. On Friday, Donald Trump declared a national emergency to gain additional funds for his much promised border wall, bypassing Congress and raiding the Pentagon for $3.6bn, already a legally dubious proposition in the eyes of the justice department. So much for Mexico paying.
Once upon a time, Trump and his legal minions brayed against unilateral executive actions, calling them tyrannical. Not any more. Barack Obama is out of the White House.
Hail Caesar, hello his praetorian.
Take Jay Sekulow, Trump’s personal lawyer. In April 2016, in a brief to the supreme court attacking Obama’s unilateral expansion of the Deferred Action for Childhood Arrivals (Daca) program, Sekulow painted Obama as a despot.
Echoing James Madison, founding father and fourth president, Sekulow thundered that the “accumulation of all powers, legislative, executive and judiciary, in the same hands … may justly be pronounced the very definition of tyranny”. He also compared Obama and his executive order to Harry Truman’s unconstitutional seizure of America’s steel mills during the Korean war.

According to Sekulow, Truman “violated controlling precedent and abdicated [his] constitutional duty to faithfully execute the law”.
In other words, by expanding Daca without a congressional green light, Obama had committed an impeachable offense.
 Justice Robert Jackson Concurring opinion, Youngstown v. Sawyer, 343 U.S. 579 (June 2, 1952)"
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. [Footnote 4/4] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Saturday, February 16, 2019

Trump Lies About Border Data, Praises Dictator Justice

In Defying the Odds, we discuss Trump's dishonesty and his record of disregarding the rule of law

Katie Bo Williams and Marcus Weisgerber at Defense One:
He rejected the claims by Democrats — and data from his own U.S. Customs and Border Protection — that most drugs seized at the border are being caught at ports of entry, not on unguarded frontiers.
“It’s wrong, it’s wrong. It’s a lie. It’s all a lie,” he said.
According to U.S. Customs and Border Protection statistics, 90 percent of heroin, 88 percent of cocaine, 87 percent of meth and 80 percent of fentanyl seized along the border in the first 11 months of 2018 was intercepted at legal crossing points.
Asked where he gets his statistics, the president said, “I get many stats.”
But there remains little evidence of any crisis the wall could solve. Illegal border crossings haven’t been as low since 1971; most illegal drugs are smuggled through ports of entry, not hauled across the open border; and there’s no evidence that undocumented immigrants commit more crime than native-born Americans. Meanwhile, the nation’s intelligence chiefs didn’t mention border crossings among the major threats to national security in their January congressional testimony.
Trump also appeared to suggest that he believed the perceived problem of drug smuggling into the United States could be resolved by more liberal use of the death penalty.
“When I asked [Chinese president Xi Jinping], I said you have a drug problem? ‘No, no, no.’ I said you have 1.4 billion, what do you mean you have no drug problem? ‘No, we don’t have a drug problem.’ I said why? ‘Death penalty. We give death penalty to people that sell drugs.’ End of problem.”
A 2016 report from Brookings Institution found that despite more than 500 Chinese laws regarding illegal drugs, these “’relentless and draconian countermeasures’ have been relatively ineffective against the country’s drug problems.
Last year, Trump said of the Chinese president: "He's now president for life. President for life. No, he's great. And look, he was able to do that. I think it's great. Maybe we'll have to give that a shot some day."

Trump Emergency

In Defying the Odds, we discuss Trump's place in the American constitutional system

David French at National Review:
One thing that is abundantly clear from reading the full text of President Trump’s declaration of a national emergency on the southern border — he’s barely even deigning to explain why there is a particular crisis today, or why that crisis is so grave that it requires the military to combat it. At its heart it’s a contemptuous document. It’s the proclamation of a monarch, not an argument by a president. And it should fail in court.
...
Before today, legal writers were guessing at the statutes the president would use to justify defying the will of Congress and using the military to build his border wall. Now we know. In his declaration, he’s exclusively using 10 U.S.C. 2808 to reallocate up to $3.6 billion from Department of Defense construction projects — more than double the amount that Congress allocated for wall construction in its border compromise. (He intends to use other funds as well for wall construction, but those aren’t applicable to the emergency declaration.)
...
The intent is clear — to grant the military the power to build out military installations, and a “military installation” is a “base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department or . . . without regard to the duration of operational control.” Each of the precisely described forms of installation represents facilities that support the troops. Under basic rules of statutory construction, the “other activity” must also fulfill that same purpose. As the Supreme Court held in Circuit City Stores v. Adams, when “general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.”

A border wall, by contrast, is a civilian structure to be manned by civilian authorities to perform a civilian mission. The troops would not be creating a military fortification for military use. Not only is it not “military construction,” it’s also not “necessary” in order to support the use of the armed forces — unless one wants to make the fantastical argument that the wall somehow “protects” the troops who are building the wall. They are not defending the border from actual invasion as defined by the law of armed conflict or relevant American law. They are assisting in a law-enforcement mission that is mainly designed to prevent the commission of federal misdemeanors, not to stop an army that intends to take and hold American territory

At Lawfare  Scott R. Anderson abd Margaret Taylor acknowledge that a president has discretion to call a national emergency, but:
Can § 284’s authorization to build a “fence” to “block drug smuggling corridors” really be used to build a wall across the entire southern border? Is the wall really a “military construction project” of the sort authorized by § 2808? Does the president’s declaration of national emergency really “require[] the use of the armed forces” as required by § 2808? The patchwork of legal authorities on which the Trump administration is relying exposes the administration to a wide array of these challenges. One possible outcome may be a partial victory and partial defeat, in which the Trump administration is able to rely on some authorities and associated funding but not others. Regardless, plaintiffs are likely to seek—and federal courts seem likely to grant—injunctions that stop the federal government from taking any irrevocable steps towards building the wall while these legal challenges are resolved. In this sense, the primary function of these challenges may be to buy time until Congress is able to impose new limitations on the use of these funds and authorities, or even until a new Congress or a president is elected in 2020 who no longer wishes to pursue this agenda.

Friday, February 15, 2019

Defeat, Then Blunder


Robert Costa et al. at WP:
After three weeks of pained negotiations to keep the federal government open, President Trump almost blew the whole thing up again on Thursday.
Headed for another defeat on his signature promise to make Mexico pay for a southern border wall, the president was frustrated after a briefing by Homeland Security Secretary Kirstjen Nielsen and others on details of the final deal to avoid a shutdown, according to officials involved in the discussions. Trump threatened not to sign the legislation, the officials said, putting the government on the brink of another damaging shutdown.
Senate Majority Leader Mitch McConnell (R-Ky.) was on the phone with Trump at least three times during the course of the nerve-racking day, pressing him to stay the course and asserting that Democrats had actually lost the spending fight, two people familiar with the conversations said.

“We thought he was good to go all morning, and then suddenly it’s like everything is off the rails,” said one senior Republican aide.
By midafternoon, however, Trump was back on board — agreeing to sign the legislation with the caveat that he would also declare a national emergency in an attempt to use existing government funds to pay for wall construction. It was an option that Republican leaders had urged him to avoid but eventually accepted as necessary to escape the corner in which Trump — and his party — were trapped. McConnell promised Trump he would encourage others to support the emergency in a bid to get the president to sign, according to people familiar with the conversations.
Trump refused to sign the bill Thursday until the White House Counsel’s Office convinced him it would not preclude him from declaring a national emergency, two senior administration officials said. The president is expected to declare the emergency and sign the bill Friday morning, a senior White House official said.

Though White House officials insisted Thursday that Trump was acting in a defiant and assertive way, few Republicans, including the president’s closest allies, were pleased with the ending: $1.375 billion for fencing and other expenditures, plus an emergency gambit that many conservatives view as an executive overreach.

Thursday, February 14, 2019

Left Brain

In Defying the Odds, we discuss the Sanders candidacy and the leftward drift of the Democratic Party.

At Axios, Sam Baker and Ben Geman repot on new left-wing think tanks.
The universe of new or newly prominent progressive groups includes Data for Progress and New Consensus, who both worked with the Sunrise Movement, a group that's providing a lot of the advocacy muscle behind the Green New Deal.
  • The Green New Deal is now well on its way into the Democratic mainstream (though it remains vague), thanks largely to the mutually reinforcing combination of outside legwork and Ocasio-Corteznearly unrivaled abilityto drive the political conversation.
  • Data for Progress cofounder Sean McElwee also helped popularize the hashtag #AbolishICE, which then gained steam on the left, and then became part of Ocasio-Cortez’ platform, and then won its first endorsement from a senator — Kirsten Gillbrand — two days after Ocasio-Cortez won her primary.
Individual experts are also playing a big role as Democrats’ 2020 candidates look beyond the familiar left-of-center policy framework.
  • Multiple Democrats have sought the counsel of economist Stephanie Kelton, a former aide to Sen. Bernie Sanders who has helped popularize Modern Monetary Theory.
  • A pair of left-leaning economists from the University of California at Berkeley reportedly helped Sen. Elizabeth Warren craft her proposed wealth tax.
  • Economists Sandy Darity and Darrick Hamilton consulted on Sen. Cory Booker's "baby bonds" proposal and Sen. Kamala Harris' middle-class tax cut.

Wednesday, February 13, 2019

Farmers Not Winning

 In Defying the Odds, we talk about the social and economic divides that enabled Trump to enter the White House.  Those divides, however, are now working against him. Despite reports of robust economic growth, Trump's approval rating is sagging and some indicators are breaking bad.

Ryan McCrimmon at Politico:
President Donald Trump’s trade war is magnifying some of the toughest farm conditions since the crisis that bankrupted thousands of farmers in the 1980s — and threatening a constituency crucial to his reelection hopes.

The president’s trade policies have sent U.S. agricultural exports plunging, exacerbating already difficult economic conditions facing farmers. Average farm income has fallen to near 15-year lows under Trump, and in some areas of the country, farm bankruptcies are soaring.

...The Federal Reserve Bank of Minneapolis warned in November of rising Chapter 12 bankruptcies, used by family farmers to restructure debt. The Fed said that the strain of low commodity prices “is starting to show up not just in bottom-line profitability, but in simple viability.” The increase was driven by woes in Wisconsin’s dairy sector, which shrunk by about 1,200 operations, or 13 percent, from 2016 to October 2018.
Jesse Newman and Jacob Bunge at WSJ:
A wave of bankruptcies is sweeping the U.S. Farm Belt as trade disputes add pain to the low commodity prices that have been grinding down American farmers for years.
Throughout much of the Midwest, U.S. farmers are filing for chapter 12 bankruptcy protection at levels not seen for at least a decade, a Wall Street Journal review of federal data shows.

Bankruptcies in three regions covering major farm states last year rose to the highest level in at least 10 years. The Seventh Circuit Court of Appeals, which includes Illinois, Indiana and Wisconsin, had double the bankruptcies in 2018 compared with 2008. In the Eighth Circuit, which includes states from North Dakota to Arkansas, bankruptcies swelled 96%. The 10th Circuit, which covers Kansas and other states, last year had 59% more bankruptcies than a decade earlier.
States in those circuits accounted for nearly half of all sales of U.S. farm products in 2017, according to U.S. Department of Agriculture data.

Tuesday, February 12, 2019

CA 2018

In Defying the Odds, we discuss state and congressional elections as well as the presidential raceThe forthcoming update will include a chapter on the 2018 midterms.  California is an important part of the story.

Paul Mitchell at Capitol Weekly:
—Turnout was high, but not presidential level high. At 65%, the electorate was about 10 points higher than we have seen in recent similar gubernatorial elections, but still about 12 points lower than what we expect to see in 2020.
—The partisanship of the electorate was a key factor in the outcomes. It will surprise many that despite higher raw Democratic votes, the Democratic share of the votes cast was the same as it has been in similar elections going back to 2002. What changed significantly was a spike in non-partisan voting to a record high, and a drop in the Republican share of the votes cast to a record low.
–The electorate was significantly more Latino than we have seen in similar elections. In raw numbers, Latinos exceeded many expectations. Over 2.6 million Latinos voted, more than double the 1.1 million that voted in 2014, and among Latinos aged 18-34, there was a 400% increase, from 214,000 in 2014 to 838,000 in 2018. All that said, Latinos were still under-performing relative to their rate of registration. Statewide, 21% of votes cast came from Latinos, compared to the 26% share of the voter file that was Latino.
–-Age was a significant factor. Turnout by voters aged 18-24 grew 30 points, from 16% in 2014 to 46% in 2018. Among those 25-34, it grew by 33-points, from 17% to 50%. The raw numbers are staggering: In 2014, only 282,000 voters aged 18-24 voted, while in 2018 it was 948,000 – more than tripling the total votes by this traditionally low-turnout population.
John Wildermuth at SF Chronicle:
The blue wave that drowned California Republicans in the November election had a distinctly greenish tinge.

Six of the seven Democrats who flipped GOP-held House seats out-raised their Republican opponents, some by an order of 3 to 1, newly released federal campaign finance reports show. Long-entrenched Republican incumbents and first-time office-seekers alike were confronted by Democratic challengers with unusually large cash advantages, fueled by a party base eager to knock President Trump’s allies out of Congress.

And that doesn’t even count the tens of millions of dollars independent expenditure groups pumped into those Democratic races. According to figures assembled by Open Secrets, a nonpartisan campaign finance website, outside groups spent more than $41 million on Democratic campaigns for those seven seats — about $3 million more than comparable groups raised for Republicans.

Monday, February 11, 2019

Anti-Semitism on Capitol Hill

In Defying the Odds, we discuss troubling strains of extremism in both parties.

Caleb Ecarma at Mediaite:
After criticizing the pro-Israel lobby in American politics, Rep. Ilhan Omar (D-MN) retweeted a post accusing her of antisemitism Sunday night. 
Omar’s initial tweet, accusing U.S. politicians of being beholden to Israeli money, drew criticism for what many saw as anti-Semitism.



“I’m one of those American Jews who opposes the occupation, laments Israel’s anti-democratic drift, and doesn’t regard the country as especially central to my Jewish identity,” wrote Politico Magazine editor Joshua Zeitz in response. “And I know exactly what the congresswoman meant. She might as well call us hook-nosed.”
Omar retweeted that criticism, before quickly removing it, but a screenshot of the shared post was caught by several Twitter users.

Sunday, February 10, 2019

Oppo 2020

In  Defying the Oddswe discuss opposition research.

Mike Allen at Axios:
America Rising Corp., the GOP oppo factory that works with the Republican National Committee and President Trump's super PAC, has already deployed cameras in early states to track Democratic candidates' appearances.
  • Now on American Rising's homepage ... "AUDIO: Kirsten Gillibrand: Eliminating Private Insurance Is An Urgent Goal" ... "VIDEO: Warren Won’t Admit That She Would Eliminate Private Insurance" .... "Booker Dodges" in radio interview.
  • "These are the most unknown 'known' candidates," said Joe Pounder, CEO of America Rising Corp. "They're all fair game — no one gets a free pass."
Another dynamic inflicting pain on the infant campaigns is the aggressive, competitive news environment.
  • An operative for one 2020 contender told me: "Out of the gate, the media has made these candidates eat their records in a way that has been different."
  • The Washington Post reported that "an open records request during a general inquiry" had surfaced the Texas document on which Sen. Elizabeth Warren wrote her race as "American Indian."
  • And lots of digging went into back-to-back stories this week documenting longtime Senate talk of tyrannical treatment of her staff by Sen. Amy Klobuchar of Minnesota — who announces her 2020 plans at a rally today.

Saturday, February 9, 2019

Scandalabra, February 2019

In  Defying the Oddswe discuss  Trump's record of scandal

Megan R. Wilson at Bloomberg:
President Donald Trump’s businesses received nearly $3.8 million from political committees during the two-year 2018 campaign cycle, according to the latest disclosure reports. The top political customers: Trump’s re-election campaign and the Republican Party.
Trump’s campaign committee spent more than a million dollars at Trump businesses during the midterm elections, including renting space at the Trump Tower in New York City, according to disclosures filed with the Federal Election Commission.
Throughout 2017 and 2018, Trump hotels in Chicago, Las Vegas, and Washington and golf clubs in Virginia, Los Angeles, Miami and Bedminster, N.J., cashed in as well, as venues for events by political groups large and small. Candidates and political operatives also billed hotel stays to Trump’s network of luxury resorts.
At Vanity Fair, Emily Jane Fox writes about the inaugural committee:
In December, The Wall Street Journal and The New York Times reported that prosecutors are examining the committee’s spending, and investigating whether foreign donors from nations including Saudi Arabia, Qatar, and the United Arab Emirates funneled money to the committee in an effort to influence U.S. policy. On Monday, the inaugural committee received a subpoena from the S.D.N.Y. requesting documents related to spending and donors, vendors, and benefits handed out, as well as documents related to a wealthy donor who had once registered as a foreign agent working on behalf of the Sri Lankan government. The Journal reported that prosecutors have asked Gates about the inaugural fund’s spending and its donors.
The Washington Post spoke with 16 men and women from Costa Rica and other Latin American countries, including six in Santa Teresa de Cajon, who said they were employed at the Trump National Golf Club Bedminster. All of them said that they worked for Trump without legal status — and that their managers knew.
The former employees who still live in New Jersey provided pay slips documenting their work at the Bedminster club. They identified friends and relatives in Costa Rica who also were employed at the course. In Costa Rica, The Post located former workers in two regions who provided detailed accounts of their time at the Bedminster property and shared memorabilia they had kept, such as Trump-branded golf tees, as well as photos of themselves at the club.
Brad Heath at USA Today writes about the Mar-a-Lago connection:
Since he took office, Trump has appointed at least eight people who identified themselves as current or former members of his club to senior posts in his administration. USA TODAY identified five of those appointees in mid-2017, prompting criticism from ethics watchdogs that the selections blurred the boundary between his public duties and his private financial interests
Jonathan O'Connell, David A. Fahrenthold and Mike DeBonis at WP:
Executives from the telecom giant T-Mobile — which last year asked the Trump administration to approve its megamerger with Sprint — have booked at least 52 nights at President Trump’s hotel in the District since then, even more than previously reported, according to newly obtained records from the hotel.
The revelations come as political scrutiny of the proposed deal is mounting on Capitol Hill. On Wednesday, Sen. Elizabeth Warren (D-Mass.) and Rep. Pramila Jayapal (D-Wash.) issued letters demanding information about the T-Mobile executives’ stays and whether Trump was informed of them. The issue is likely to come up at House subcommittee hearings on the merger next week.
Last month, The Washington Post reported that “VIP Arrivals” lists — issued by the Trump International Hotel daily to its staff — indicated that T-Mobile executives had stayed repeatedly at Trump’s hotel. On the day after the merger was announced, for instance, the lists showed nine T-Mobile executives were expected to check in.
Now, The Post has obtained VIP arrivals lists for additional days last year, which showed five more bookings at the hotel by T-Mobile executives, including chief executive John Legere. Those bookings — in October and December of last year — added 14 nights to the 38 previously reported.
In addition, another Trump hotel document gave the first indication of the rates that T-Mobile executives paid for their rooms.
This document showed that when Legere stayed at Trump’s hotel for two nights last month, his room had a rate of $2,246 per night.



Friday, February 8, 2019

Trump and the Rule of Law


At the Daily Beast, Lloyd Green notes that Solicitor General Noel Francisco and Trump lawyer Jay Sekulow once attacked executive overreach.
Back in November 2014, in the face of an impasse with Congress over immigration, Barack Obama announced his own “Immigration Accountability Executive Action,” and Citizen Trump would have none of it, tweeting that “Repubs must not allow Pres Obama to subvert the Constitution of the US for his own benefit & because he is unable to negotiate w/ Congress.”
Obama’s efforts were finally blocked by the courts, in part thanks to the efforts of Sekulow, whose clients included about two dozen Republican senators—Sen. Mitch McConnell among them —Republican congressmen, and conservative interest groups. In an amicus brief to the U.S. Court of Appeals for the Fifth Circuit, Sekulow compared Obama’s actions to Harry Truman’s steel seizure during the Korean War, while also hinting that Obama was a tyrant.
Sekulow wrote: “The founding fathers intentionally separated these powers among the branches, fearing that a concentration of power in any one branch, being unchecked, would become tyrannical.”
They also argued against Obama's abuse of recess appointments.
Francisco argued to the Supreme Court that “As much as Presidents may desire an escape-hatch from Senate confirmation, the Constitution does not provide one.” He also stressed that the separation of powers “‘protects against the abuse of power”’ that ‘is critical to preserving liberty.’”
As for Sekulow, he contended that “Under the Separation of Powers Doctrine, the Executive and Legislative Branches of Government Are Co-Equal and the President Has No Authority to Overrule Congress’s Determination that It Is in Session.” For their part, McConnell and 44 Republican Senate colleagues repeatedly accused Obama of seeking to “usurp” their powers.

Thursday, February 7, 2019

Trump Toxic for the CA GOP

In Defying the Odds, we discuss state and congressional elections as well as the presidential raceThe forthcoming update will include a chapter on the 2018 midterms.  California is an important part of the story.

Joe Garofoli at SF Chronicle:
Catharine Baker was the only Republican representing the Bay Area in either the Legislature or Congress, until she lost her re-election bid to the Assembly in November. Now there is none.
The two-term incumbent practically ran as a Democrat, and still lost to a political neophyte. That raised the question: If Baker can’t win in the Bay Area, what Republican can?
The answer Baker found after spending weeks combing through post-election data and campaign trail anecdotes should be a red flag for Republicans in the Bay Area and beyond in California, heading into President Trump’s 2020 re-election campaign.

“Ninety percent of the feedback we received was, ‘I can’t vote for you because you’re Republican,’” Baker said. “That message to Republicans is, ‘Your brand is toxic in this state.’ That’s why the party has a very faint pulse right now.”

At LAT, John Myers reports on a Berkeley election conference :
“It’s time to look at another path,” former Assembly GOP leader Kristin Olsen said to those who believe in traditional Republican principles. She told the Berkeley audience that it’s unclear “if the [state] party can outlast Donald Trump’s presidency.”

The once-powerful Republican brand — which helped elect all but three governors in the 20th century — has steadily weakened over the past 25 years, with Wilson —fairly or not — blamed for embracing the 1994 ballot measure aimed at curbing the costs of illegal immigration. The schism between Republicans and the state’s rapidly diversifying population widened with the passage of a 1996 statewide ballot measure attacking affirmative action and another in 1998 to limit bilingual education. A generation of Californians never forgot.

“The political forces that form your opinion when you’re young carry on,” said Mark DiCamillo, director of the UC Berkeley poll.

California voters raised on the memories of 2018 could carry today’s political views for decades. And they’re already engaged: People 34 and younger cast ballots at a much higher rate in 2018 than in previous midterms, according to a new analysis by the for-profit research firm Political Data.

Perhaps just as consequential are those turned off by the Trump era. Political Data’s report found a number of young Republicans — generally more reliable voters than their Democratic-leaning peers — failed to show up in 2018. And broadly speaking, GOP voters in several key congressional races either didn’t vote or, as political strategist Mike Madrid pointed out, made the once-unthinkable decision to vote for a Democrat.
“I don’t think that will be healed for many election cycles to come,” Madrid, a former political director of the California Republican Party, told the Berkeley audience.