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Republicans Resist Calls for a Special Prosecutor

While there are certainly analogies between President Donald Trump's firing of former FBI Director James Comey and Richard Nixon's firing of Archibald Cox, there are also some enormous differences. For starters, then-Attorney General Elliot Richardson was a Boston Brahmin with ties to Kennedy clan and no love for Richard Nixon. It wasn't hard for him to appoint a special prosecutor, especially since the Watergate hearings had been going on for nearly a year. Also, back then the Democrats controlled the Senate; now the Republicans do. Finally, the media were uniformly critical of Nixon then. There was no Fox News or Breitbart News to defend the President. Consequently, it is not surprising that most Republicans now see no need for a special prosecutor. Basically, no one can force them to do it, so why do it?

In particular, Senate Majority Leader Mitch McConnell (R-KY) clearly stated his opposition to a special prosecutor yesterday. McConnell's position is that a Senate committee headed by Sen. Richard Burr (R-NC) is looking into the Trump-Russia connection and he sees no need to interfere with Burr's work. Even Sen. Susan Collins (R-ME), probably the least conservative Republican in the Senate, didn't see the need for a special prosecutor. In fact, the only Republican senator to call for a special prosecutor is John McCain (R-AZ), and McConnell regards him as a bit of a hothead and rarely takes his advice. So unless a smoking gun turns up, it is unlikely there will be a special prosecutor. In case anyone missed it, elections have consequences. The Republicans control the whole show and are acting accordingly. (V)

Just Before He Was Fired, Comey Asked for More Money to Expand the Russia Probe

The New York Times is reporting that just days before he was fired, former FBI Director James Comey asked Deputy Attorney General Rod Rosenstein for more money for the Bureau's investigation of Donald Trump's connection to Russia. The response was: "You're fired." Coincidence? Who knows? Comey knew that Rosenstein has a reputation as a straight shooter who follows the law and lets the chips fall where they may. He probably expected Rosenstein to say yes. Oops, bad guess. (V)

Trump's Biggest Mistakes

Outside of the right-wing media, there is general consensus that the Trump administration botched the firing of James Comey. This is the case on many levels, from timing, to messaging, to the actual handling of the termination itself. CNN's Chris Cillizza has identified what he sees as the President's four biggest missteps:

  • Misjudging the Democrats' Response: When it comes to his understanding of human nature, Donald Trump tends to see things in black and white, rather than shades of gray. And so, he did some fairly simple calculations: The Democrats hate James Comey, so when I fire Comey, they will be happy (or, at least, silent). What this overlooked was that while the Democrats do hate Comey (many of them), they hate Trump even more. Further, they know a chance to score political points when they see one. And finally, many prominent Democrats are institutionalists and actually do harbor some concern for the sanctity and integrity of the federal government. There may be nobody whom this describes more fully than Senate Minority Leader Chuck Schumer, who definitely hates Trump, definitely knows how to accrue political capital, and is definitely an institutionalist. When Comey's firing was announced, the Senator was quite ready to lead the angry mob. So much so that he inspired a nasty tweet from Trump (who has been cranking out quite a few of them in the last 24 hours):

    Sens. Richard Blumenthal (D-CT) and Bernie Sanders (I-VT) were also targeted for Trump salvos, as were the Democrats in general.

  • Misjudging the Republicans' Response: The President expected his party to unify behind him. He apparently has not yet fully grasped that a lot of them don't like him either, and don't see him as an actual member of the GOP. So, he came in for a lot of unwanted "friendly fire" on Tuesday and Wednesday, particularly from Sens. John McCain (R-AZ), Bob Corker (R-TN), and Jeff Flake (R-AZ). Flake's response on Twitter was particularly lethal:

    This should be very concerning for the administration, because Flake faces a tough re-election bid in 2018. If he has decided that the key to victory is to become a leader of the anti-Trump Republicans, like Rep. Jason Chaffetz (R-UT), that could mean the loss of a crucial Senate vote that the GOP cannot spare.

  • Deploying Clinton: Trump and his team tried to justify Comey's firing based on his ill treatment of Hillary Clinton and her e-mails. The problem is that this excuse is not remotely plausible. First of all, the Trump administration's disdain for the former Secretary of State is well known. Second, Trump has praised Comey in the past for the exact same behavior. For example, on October 31 of last year, the then-candidate said:
    I really disagreed with (Comey in July when he publicly ended the probe), I was not his fan. But I'll tell you what—what he did, he brought back his reputation. He brought it back. He's got to hang tough because a lot of people want him to do the wrong thing. But what he did was the right thing.
    With a better-crafted explanation for the firing, the administration might have danced around this, but that is not what happened.

  • Involving Sessions: There are two sets of people: Those who believe Trump's actions were legitimate, and those who believe they were not. In an effort to get as many people into the "legitimate" group as possible, the President made a big point of noting that he was acting on the recommendation of Attorney General Jefferson Beauregard Sessions III. The problem here is that everyone knows that Sessions has been in the bag for Trump since day one, and is not the neutral voice of reason that the AG is supposed to be. This being the case, invoking Sessions does nothing to win over doubters, and so does nothing to move people from the "not legitimate" camp into the "legitimate" camp. What it does do, however, is further politicize the Department of Justice and further erode confidence in the credibility of the Department.

From a purely strategic perspective, then, there is really no way around the conclusion that the administration dropped the ball very badly on this one. Perhaps the best that can be said, since Watergate comparisons are all the rage these days, is that the vastly more experienced and shrewd political operator Richard Nixon made many of the same errors, so Trump has some company. (Z)

Do We Have a Constitutional Crisis?

Some people think that Donald Trump's decision to fire FBI Director James Comey is the end of the Republic. Others think it is normal for the president to choose his own team. Politico decided to ask some experts on constitutional law whether we have a constitutional crisis underway. Here are brief summaries of their views:

  • If Trump really wants to restore trust in the FBI it is OK, if he is obstructing justice it is alarming
  • The rule of law will disintegrate
  • Trump's actions were entirely constitutional
  • Trump made the only legally correct call by following the advice of Sessions and Rosenstein
  • It is a deeply unsettling moment
  • We are not at a crisis yet
  • It's a constitutional crisis
  • James Comey needed to be ousted
  • We should reserve judgment
  • We really don't know ... until we know who Trump nominates
  • Not a constitutional crisis, but it might turn into a political crisis
  • It may not be a constitutional crisis yet, but it probably will be soon
  • I nominate Merrick Garland for FBI director
  • The real cause of concern is not so much Comey's departure as his potential successor
  • There is good news and bad news

In other words, the opinions are all over the map. Politico gave the name and affiliation of the person making each comment, but not their favored political party, which might shed some light on the pattern. One thing that is clear is that no one objected to the firing of Comey per se. A number of the experts think he deserved it due to how he handled the Clinton e-mail case. But the real question is whether Trump fired him due to that or to stop an investigation of himself. Many of the lawyers said the proof in the pudding will come when we know who Comey's successor is. If it is an incorruptible, independent prosecutor who is known for speaking truth to power or a highly respected judge, then the firing was probably legitimate. However, if the new director is a yes-man who is subservient to Trump (think: Rudy Giuliani), then we will be in a full-fledged constitutional crisis unless Deputy Attorney General Rod Rosenstein appoints a powerful special counsel with subpoena powers and a budget adequate to do the job. A crisis could also be averted if Congress does its job and conducts a serious investigation, but that seems very unlikely. Archibald Cox and Leon Jaworski, the Watergate prosecutors, are long dead. Trump could no doubt find a living prosecutor (say, Preet Bharara) who is willing to stand up to him, but appointing someone like that doesn't seem to be his style. A lot may hinge on how the Senate handles the confirmation and what Rosenstein does. (V)

Senate Intelligence Committee Subpoenas Flynn

On Tuesday, a federal grand jury began poking its nose into the business of former National Security Adviser Michael Flynn, issuing subpoenas for some of his records. On Wednesday, the Senate Intelligence Committee decided to get in on the action, too, and issued their own subpoenas to Flynn.

With the caveat that asking questions is pretty far removed from convictions or other sanctions, this is not good news for Flynn or the administration. While grand juries tend to hand out subpoenas like they're going out of style, the Senate Intelligence Committee does not. The last time they used their subpoena power was after the 9/11 attacks, and the last time they subpoenaed documents was 40 years ago. So, they must see the smoke, and strongly suspect that there's fire to be found somewhere. And the greater the pressure is on Flynn, the more likely he is to sing like a canary, kind of like John Dean did during the Watergate crisis.

Incidentally, depending on where and how far this goes, there's another person who could eventually find himself subpoenaed to share his insights: Barack Obama. He is, after all, a firsthand witness to Trump's decision to ignore all Flynn-related red flags. While Number 44 is probably too cool a customer to show his true feelings, it would surely give him great pleasure to stick a knife or six in the side of the Trump administration. (Z)

Old Senate Custom for Confirming Judges Could Be on its Way to Extinction

The Senate has a lot of fusty old rules and customs that make it a more civil body that the House. The filibuster on presidential nominations was one of them, but that is now gone forever. Another old custom applies specifically to judicial appointments. Traditionally, when the president proposes a potential nominee to a federal district or appeals court, it is first run by the senators from the state where the appointee would work. These senators had a kind of informal veto power. In principle, the Senate could overrule the two senators in question, but this rarely, if ever, happened. That custom is now on the endangered species list as the Senate prepares to take up the confirmation of 120 judicial vacancies that could shape the federal courts for decades to come. Some of the vacancies are in states with a Democratic senator who could try to block an appointment. Sen. Chuck Grassley (R-IA) could ignore the century-old custom and proceed to approve nominees the home-state senators rejected, if he so chooses. Of course, he knows that some day the shoe may be on the other foot, but the temptation to get the 120 vacancies filled with conservatives may be so overwhelming that he is willing to take his chances on the future. The large number of vacancies is in part due to foot dragging by the Republicans when Barack Obama was president. Besides, since Grassley is 83, he may not be part of the future and may not care about what happens then.

One of the first tests may come in Minnesota. A likely nominee for the U.S. Court of Appeals for the Eighth Circuit is David Stras, a member of the Minnesota Supreme Court and a conservative favorite. But both senators from Minnesota are Democrats: Al Franken and Amy Klobuchar, and they both dislike Stras. Another early test will be Michigan Supreme Court Justice Joan Larsen, another conservative favorite, whom Trump wants to nominate for a vacancy on the Michigan-based Sixth Circuit. Both Michigan senators, Debbie Stabenow and Gary Peters, are also Democrats. What if all four refuse to turn in the blue slip approving the nominee? Will Grassley unilateral abolish the custom? If he does, he can probably get all the nominees through at the price of a Senate even more bitterly divided than it now is. (V)

Sean Spicer Could Be on His Way to Extinction

At the moment, Sean Spicer is fulfilling his responsibilities to the naval reserve. That means that, during one of the most crucial moments of the Trump presidency, the face of the administration has not been ol' Spicey, but instead Sarah Huckabee Sanders.

There's a lot of bad news here for the White House Press Secretary. To start, he offered to defer his naval service so that he would be available in the event of a Comey firing, and was told "no thanks." Even worse for him, the President has been making no secret of the fact that he views this week as an audition for Huckabee Sanders to take over as WHPS, and has been asking around the White House for peoples' opinions and reviews. The only silver lining for Spicer is that Huckabee Sanders stepped in it pretty badly on Wednesday when she accused James Comey of "atrocities" while in office, as if he was a war criminal or a serial murderer. This caused some in the White House Press Room to laugh openly at her, and others to take offense. If this serves as evidence that she's not ready for the big time, then it could save Spicer's job, at least for a little while. (Z)

Four Potential Deal-breakers that Could Kill the Senate Healthcare Bill

It's hard to imagine that the healthcare bill is hardly even news any more (due to the Comey firing), but remember that in politics a week is a long time. Soon, the gang of 13 senators is going to start crafting a new healthcare bill. Their margin for error is extremely small since it takes only three Republican senators to kill the bill and on a number of make-or-break issues, at least two senators are already on record opposing the House bill. These issues and senators are:

  • Deep cuts to Medicaid are opposed by Senators Portman (OH), Murkowski (AK), Capito (WV), and McCain (AZ)
  • Fewer protections for people with pre-existing conditions are opposed by Senators Cassidy (LA) and Collins (ME)
  • Defunding Planned Parenthood is not going to happen if Senators Collins and Murkowski get their way
  • The age tax is a nonstarter with Senators Collins and Thune (SD)

This opposition means that killing Medicaid is probably already dead in the water, and the others are on life support since it would take only one more senator to kill any of them. But if the Gang of 13 gives in on all these points, the resulting bill will have no chance of passing the House. The Gang is going to have to work hard at threading the needle. (V)

Betting Markets Grow Bearish on Trump

Overseas betting markets are doing a thriving business in wagers on American politics, and it's always interesting to check in with them once in a while. Right now, there's a lot of movement on the boards in response to Donald Trump's firing of James Comey.

To start, PaddyPower has downgraded Trump's chances of making it to the end of his term unscathed. They now have it at 3/1 (25%) that he'll be impeached this year, and 4/6 (60%) that he'll be impeached at some point before 2020. The site seems to view that as the equivalent of being removed from office, apparently unaware that a Senate conviction would also be needed. They think the most likely reason for an impeachment will be tax evasion, at 4/1 (20%), though treason is a close second at 6/1 (14.2%). They're also taking bets on who will replace Comey, and have Acting FBI Director Andrew McCabe as the favorite at 9/4 (30.7%), followed by National Security Agency Director Mike Rogers at 3/1 (25%) and lawyer and former Bush adviser Ken Wainstein at 4/1 (20%). Though Rudy Giuliani's name is floating around, PaddyPower isn't buying it, and has him at 100/1 (1%). That's only marginally better than the odds you'll get on Chief Wiggum at 500/1 (0.2%). A little embarrassing for the former NYC mayor, since Wiggum is not only an utterly incompetent policeman, he's also fictional.

Moving on to Bovada, they have a different (and less robust) set of wagers available. Using American-style odds, they have it at +350 (22.2%) that Trump leaves office this year, and -130 (56.5%) that he makes it through his full term. They have the Democrats' chances of winning the presidency in 2020 at -155 (60.8%), which is quite high for an unknown candidate against an incumbent. So, anyone who thinks they can see the future in their political crystal ball has a chance to make some decent money here. Probably best not to bet on Chief Wiggum for FBI Director, though. (Z)

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---The Votemaster and Zenger
May10 Trump Fires Comey
May10 Flynn Subpoenas Issued
May10 McConnell Downplays the Absence of Any Women in the Healthcare Group
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