It's a Monday Night Massacre

As we have noted, quite a few members of Barack Obama's administration agreed to stay on the job until they could be replaced by Donald Trump appointees. That included Sally Yates, a 30-year Department of Justice employee, who was serving as interim attorney general until Sen. Jeff Sessions (R-AL) is (presumably) confirmed. In that capacity, she decided that Trump's order barring immigration from seven majority-Muslim countries was not constitutional, and wrote a memo to DOJ staff telling them not to defend it: "At present, I am not convinced that the defense of the executive order is consistent with these responsibilities nor am I convinced that the executive order is lawful." Trump's response—which Yates surely expected—was to fire her early Monday evening. The White House followed this with a statement, one that included rather more editorializing than is typical in such cases:

The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. This order was approved as to form and legality by the Department of Justice Office of Legal Counsel.

Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration.

It is time to get serious about protecting our country. Calling for tougher vetting for individuals traveling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country...

It's unclear how much Trump and his staff know their U.S. history, so it's hard to guess whether they do not recognize or simply do not care about the Nixonian overtones to Monday night's events. In Tricky Dick's case, he wanted the actual AG, Eliot Richardson, to fire special prosecutor Archibald Cox because Cox was asking too many uncomfortable questions about the ongoing Watergate scandal. Richardson declined, so he was ordered to resign, and the job was given to Deputy AG William Ruckelshaus. He also refused to do Nixon's dirty work, and so he too was relieved of duty. Finally, Solicitor General Robert Bork agreed to be the hatchet man, and Cox was canned. Because this all happened on a Saturday night, so as to minimize press coverage, it was called the Saturday Night Massacre. With this incident, public opinion turned definitively against Nixon.

The good news for Trump is that his scandal is just days old, as opposed to the year-plus that Nixon had already been mired in the Watergate quagmire. Further, it took The Donald only one phone call to find someone willing to do his bidding—Dana Boente, US attorney for the Eastern District of Virginia, will take over as interim AG. He has already issued an order to DOJ staff to defend Trump's position. So, crisis apparently averted. And once Sessions takes office, if confirmed, then he will undoubtedly be happy to enforce Trump's order. In person, if needed. (Z)

Congressional Staffers Helped Write the Muslim Ban

Senior staff members on the House Judiciary Committee helped write the executive order banning people from seven majority-Muslim countries from entering the U.S. They did their work secretly, not telling Committee Chairman Bob Goodlatte (R-VA), Speaker Paul Ryan (R-WI), or anyone else in the Republican leadership, none of whom are likely to be happy campers today. While all the details still haven't come out, most likely the main ideas came from Steve Bannon and the Judiciary Committee staffers were called in to write the actual language due to their extensive experience with the actual language of immigration legislation.

The fallout from this incident is twofold. First, Trump and his team are going to learn that there are no secrets in Washington. Everything leaks eventually and nondisclosure agreements don't help much. Second, Republican leaders in Congress are undoubtedly furious with Trump for not letting them know in advance the ban was coming and giving them the opportunity to comment on it before it was rolled out. All this cannot improve Trump's relationship with Hill leaders, something he is going to need shortly, as it is not possible to govern entirely by executive order.

Ryan, especially, is going to be a problem for Trump. Steve Bannon, who is probably Trump's closest adviser, detests Ryan and published a string of articles attacking him when he (Bannon) was CEO of Breitbart News. Ryan knows this. Now Trump used congressional staffers to help write an order that Ryan didn't especially want and did it behind his back as well. Relations between Trump and Ryan, which were already frosty, aren't going to be improved much by this. (V)

Obama Speaks Out Against Immigration Ban

Customarily, retired presidents keep their opinions to themselves, so as to avoid cutting their successors off at the knees. At the same time, sitting presidents do not customarily try to rewrite immigration policy with one hasty stroke of the pen. Point is, we're in a world where past precedent seems to have little relevance, and so all bets are off. Consequently, Barack Obama issued a statement on Monday condemning Donald Trump's actions, declaring that he (Obama), "fundamentally disagrees with the notion of discriminating against individuals because of their faith or religion." The former president also expressed his solidarity with and support for those who are protesting Trump's order.

Again, it is unprecedented for a former president to criticize his successor (even in relatively mild language) just 10 days after leaving office. If there's another example, we're certainly not aware of it. It's a byproduct of highly unusual circumstances; a president that takes bold but widely-unpopular and hastily-executed actions, and an opposition party that has a vacuum at the top. By all indications, Obama hoped to enjoy his retirement, and to remain above the fray, at least for a little while. Now, it seems pretty evident that won't be happening, and that we're going to hear from him much more than anyone expected. (Z)

Trump Supporters Feel Safer, Probably Aren't

Most of the attention this weekend has been paid to the fallout from and the opposition to Donald Trump's immigration ban. But, in the interest of covering all sides, most major outlets have done at least one item on the Americans who support Trump's actions. CNN, for example, talked to several individuals who cheered the move. "We are just thrilled that President Trump has issued this ban and he's taking measures to protect us," said one. "Just as people came way back when and came through Ellis Island -- they were vetted," opined another. "I do feel safer," declared a third. "Nobody's angry with ... (immigrants), nobody hates them. We just need to protect ourselves."

Leaving aside some of the incongruities in these individuals' opinions, they are almost certainly incorrect that Trump's actions have made them safer. As we and others have noted many times, the various Muslim perpetrators of terrorist acts within the United States would not have been affected by this weekend's order, since most were American citizens, and all came from countries other than the seven on the list. The individuals quoted above are more likely to be killed by falling out of bed (450 Americans/year), a dog bite (34), a falling icicle (15), having a vending machine fall on them (3), or being in a roller coaster accident (2) than they are by a Muslim-immigrant-turned-terrorist.

Meanwhile, Trump's order has already been a recruiting boon for ISIS, Al-Qaeda, and other unfriendly groups. Pro-Islamic State social media accounts declared it a "blessed ban," and said that it, "clearly revealed the truth and harsh reality behind the American government's hatred toward Muslims." For this reason, Robert Richer, who oversaw the CIA's Near East division during the George W. Bush administration, said:

This was a win for jihadists and other anti-U.S. forces. It fuels the belief out there that Americans are anti-Islam. Otherwise, it accomplishes nothing, because the ones we are most concerned about can still get to the United States.

So, there we have it. The stated goal of the Trump administration (which may be different from their actual goal; see below) was to make America safer. If so, then the available evidence suggests that they have actually achieved the opposite. (Z)

Trump Signs New Executive Order to Reduce Regulations

Yesterday, President Trump signed an order to reduce the number of regulations the federal government has on the books. Specifically, it states that for every new regulation promulgated, two old regulations must be rescinded. At the signing, he said that he wants to make life easier for small businesses.

The order goes beyond the number of regulations and also deals with what they cost. Starting in 2018, the director of the OMB will give each agency a budget of how much it can increase or decrease regulatory costs. Of course, determining how much a regulation costs is not easy, and a lot of arbitrariness is going to creep in. For example, Trump is strongly against the Dodd-Frank law, which imposes many regulations on banks. Just as one example, Title X of the law creates an office charged with improving the financial literacy of bank customers over 62, some of whom might be gullible enough to buy financial products wholly inappropriate for them, but very profitable for the bank. How much of a cost does the bank incur by having a government office trying to teach older consumers how to avoid scams? Multiply this one small example by thousands of others and you begin to see the complexity of this new rule. (V)

Trump Expected to Name Supreme Court Justice Today

Donald Trump has moved up his timeline for making a Supreme Court nomination—perhaps, as some suspect, to draw attention away from the immigration ban fallout. Last week, we had a rundown of the most likely Supreme Court picks. Insiders say that not much has changed since we published that story. Briefly summarizing the top picks, we have:

• Neal Gorsuch (49) is a reliable conservative who writes clearly and whose mother once ran the EPA
• Thomas Hardiman (51) is strong on gun owners' rights and serves with Trump's sister on the 3rd circuit
• William Pryor (54) is Jeff Sessions' protégé and would create a firestorm of Democratic opposition

A group of experts tried to determine which of the three is the most Scalia-like. Gorsuch and Pryor came out on top, roughly tied. If Trump wants a Scalia clone who would have the easiest time of getting confirmed, the best choice would be Gorsuch, but Trump may have very different criteria in mind, so anything is possible.

Also a factor here is how evangelical voters will react to the appointment. Trump, a twice-divorced philanderer and casino magnate who never goes to church got a larger percentage of the evangelical vote than did Mitt Romney, a deeply religious man. The reason Trump did so well with them is their fear that Hillary Clinton would appoint a strong supporter of abortion rights to the Supreme Court. If Trump gives these voters a dedicated opponent of abortion, such as Pryor or Gorsuch, they will be happy. Hardiman is probably somewhat less conservative than the other two, but would face weaker opposition in the Senate. By this afternoon, we will probably know who the nominee will be and how strongly the Democrats will oppose him. (V)

Could Trump Put the House in Play in 2018?

The president's party has lost House seats in 18 of the last 20 midterm elections. And, it is already crystal clear that the 2018 elections will be a referendum on Donald Trump. One should keep in mind that a substantial part of Trump's victory in the Electoral College, despite a loss in the popular vote, was that many people disliked Hillary Clinton more than they disliked Trump. Clinton will not be on the ballot in 2018, and people who dislike him but voted for him just to stop Clinton may vote Democratic in 2018, especially if he continues to do controversial things for the next 2 years.

Democrats need to pick up 24 seats to take back the House. Could they flip that many? Since 2016 was such a strange election with two very unpopular candidates, it might be better to examine 2012 as a more normal election. Currently, 27 House Republicans are in districts where Mitt Romney failed to get 50% of the vote in 2012 and in another 19, he got less than 52%. That is enough that if Trump's approval rating is very low in 2018, the Democrats might be able to pull it off. Of course, in some cases, the representative is personally popular and could survive despite partisanship. For example, In FL-27, Rep. Ileana Ros-Lehtinen (R-FL) was reelected with 55% of the vote in a district where Romney won 46% and Trump won only 39%.

Even having a popular president doesn't guarantee that the president's party will do well, though. Ronald Reagan was an exceptionally popular president, winning 44 states and 489 electoral votes in 1980. Two years later, Republicans lost 26 House seats. Of course, Democrats need to find strong challengers, raise boatloads of money, and get better organized, but history shows that even a popular president can sustain serious losses in a midterm and Trump is (currently) not a popular president. Of course, that too could change in 2 years. (V)

Does Steve Bannon Want a Constitutional Crisis?

Steve Bannon has been a key figure in most of the actions Donald Trump has taken so far, including picking much of the cabinet. Much of what he has done has been controversial, but he may have even bigger fish to fry. Bannon has an MBA from Harvard. His career includes stints as an officer in the Navy, a Goldman Sachs banker, and a savvy investor. He is no dummy. He had to know that a ban on Muslims was going to end up in the Supreme Court sooner or later. It is entirely possible that this is his goal. His hero is Andrew Jackson and he knows that when Supreme Court Chief Justice John Marshall handed down a decision Jackson didn't like, Jackson said: "John Marshall has made his decision; now let him enforce it."

Jackson hated the courts and made several attempts to limit their power or nullify their rulings. He believed that the popularly elected president's views should take precedence over those of the courts. It is entirely possible that Bannon has precisely the same view and picked a fight (a Muslim ban, including green-card holders) precisely to get a Supreme Court ruling that the administration would simply ignore, thus changing the balance of power between the executive and judicial branches once and for all. If that ploy worked, the administration could do whatever it wanted to from that point on with near impunity.

However, the plan could also backfire spectacularly. Many Republicans in Congress dislike Trump but like Vice President Mike Pence, a former congressman, a lot. If Trump were to ignore a Supreme Court decision, that could be an excuse for the House to impeach and the Senate to convict a president Republicans don't like and replace him with one they do like. And the good news here is that since nominally, the impeachment process would be about Trump flouting the Supreme Court, most of the country would support the impeachment and cheer the Republicans on. If Bannon's game plan is to get a definitive Supreme Court ruling with the intention of ignoring it to enhance the power of the executive, he is playing with fire.

It should be noted, however, that changes in the power relationships between the branches of government have happened before. For example, nothing in the Constitution gives the Supreme Court the power to nullify laws Congress has passed. In the 1803 Marbury v. Madison case, the Supreme Court simply declared a law Congress had duly passed unconstitutional. The ruling stuck and the Court has been throwing out laws ever since. If the executive branch were to defy the Court, it would be a clear power grab, but only Congress could stop it (by impeaching and convicting the president). We would definitely be in uncharted waters at that point. (V)

Does Steve Bannon Have a Fundamental Philosophy?

If Steve Bannon is indeed trying to pick a fight with the Supreme Court, as described above, one might ask if he has some coherent philosophy behind this. A piece in Vox yesterday by Daniel Kreiss sheds some light on Bannon's philosophy. Kreiss has carefully studied many of the articles published during the campaign by Breitbart, when Bannon was CEO (and a virtual dictator) of the company. His conclusion is that Bannon clearly rejects multiculturalism, cosmopolitanism, and globalization, and supports the triumph of white, Christian, populist nationalism.

The most common theme in the Breitbart articles published during Bannon's tenure there were about "taking our country back," which oddly enough was Howard Dean's 2004 campaign slogan, although Dean wanted to take it back from big corporations. Bannon wants to take it back from a list of explicit targets, including Democrats, the socialist left, the media, people of color, women, immigrants, and establishment Republicans, among others. The articles all specifically reject the three pillars of multiculturalism, cosmopolitanism, and globalism that Bannon sees as the essence of Barack Obama's presidency. (V)

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---The Votemaster and Zenger