Feb. 07

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Takeaways from the State of the Union

As you might expect, every publication from the New York Times to the East Cupcake Middle School Reporter has an item on Donald Trump's SOTU address. Here are a few of them, briefly summarized:

New York Times Washington Post CNN ABC News USA Today The Hill Fortune Business Insider

There you have it. The wall, red meat for the base, and ending all the investigations were key themes. Surprisingly few, if any, well-known right-wing news sites had any lists of takeaways. Ann Coulter, who rarely misses a chance to get some PR, did blast Trump with: "This was the lamest, sappiest, most intentionally tear-jerking SOTU ever. Please fire your speechwriter." On the other hand, she was glad he is against childhood cancer, AIDS, and the Holocaust. (V)

The Mess in Virginia Gets Worse

One bombshell just seems to follow the last in Virginia. Consider:

The state is in an uproar. If all three resign or are pushed out, the next person in line to become governor is state House speaker Kirk Cox (R), whose mandate is about as thin as can be. The 2018 race for Virginia House district 94 was embroiled in a bitter dispute over one ambiguous ballot. The judges decided in favor of the Republican, which left the vote count at 11,608 for the Democrat and 11,608 for the Republican. To break the tie, a name was fished out of a bowl and it was the Republican, giving the Republicans a 51-to-49 majority, which led to Cox being elected speaker.

While wearing blackface is now considered totally unacceptable, for many decades it was common in minstrelry and perfectly acceptable (at least to white people). In the 1920s, Al Jolson, who often performed in blackface, was America's most popular and highest-paid entertainer. All of this raises the question of whether people can be judged on behavior that was considered normal at the time but is now out of bounds. If there is no statute of limitations on horrendous behavior, then the state of Washington should really change its name to avoid honoring a man who owned over 100 human beings outright and treated them like his personal property. Surely owning human beings is a far worse offense than appearing in blackface. On the other hand, owning slaves was socially acceptable in Washington's time, while blackface was well out of bounds by the 1980s.

The situation with Fairfax is more complicated than with that of Northam and Herring. He admits to having a sexual relationship with his accuser, Dr. Vanessa Tyson, a professor at Scripps College in California, but he claims that it was consensual, so it is her word against his. During the Senate confirmation battle over now-Justice Brett Kavanaugh, Kavanaugh vigorously denied the accusation of sexual assault levied by Christine Blasey Ford. Democrats said that in situations like this, you should believe the woman. Republicans said there was no evidence that Kavanaugh did anything wrong. Now the shoe is on the other foot. Democrats have a problem, because if they condemn Northam and Herring as racists and believe the woman (Tyson), they could give the Republicans the trifecta in a key swing state just in time to mess around with the 2020 election.

Nevertheless, if the Democrats coordinate their plans, there is a way out for them, albeit a legal rather than a moral or political one. If Fairfax were to resign first—something he might not do since he claims he is innocent—the pro tem of the state Senate, Steve Newman (R), would be empowered to discharge the duties of the lieutenant governor. However, his authority might last only a few minutes because the governor has the constitutional authority to name a new temporary lieutentant, who would serve until a permanent replacement is chosen this November to fill out the rest of Fairfax's term, which ends in Jan. 2022. But if Northam resigned soon after appointing a new lieutentant, then the appointee would become governor and could himself appoint a new lieutenant. Unless the courts decide otherwise, that is. It could get a tad messy if we go down that road. (V)

Team Trump Prepares to Protect His Tax Returns

Donald Trump really, really, really does not want the public to see his tax returns. There are many possible reasons why, like that they may give clues as to potential illegal or unethical behavior or show that he is deep in hock to Russian banks. He knows that the chairman of the House Ways and Means Committee, Richard Neal (D-MA), has the power to request the returns, and plans to exercise that privilege very soon. And so, Team Trump is proactively working on a plan to frustrate the Democrats' demands.

The plan has several elements, most of them fairly obvious, and all of them analogous to what Richard Nixon did when he tried to keep the Watergate tapes secret. The first step, of course, is to delay, delay, delay as much as is possible. At the very least, Treasury Secretary Steve Mnuchin (under whose auspices the IRS operates) will take his sweet time in publicly responding to a demand for the returns, whenever that demand might come. He will also be tasked with selling the administration's spin on the matter, arguing that the Democrats have no serious interest in the returns, and only want them for nakedly partisan reasons. Mnuchin will have some help in making this pitch—Kellyanne Conway is always game for this sort of thing, of course—but the Secretary will have to take the lead. Unfortunately for Trump, Mnuchin isn't very good at this particular task.

Trump's lawyers are also trying to come up with an argument as to why he shouldn't have to share his returns. The problem for them is that the law, specifically U.S. Code 6103(f), is very clear on this matter:

Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.

Apparently, the best that Trump's lawyers have been able to come up with is this: Giving the returns to a member of Congress might potentially facilitate illegal activity, since it would be a felony for a person to leak them without a vote of the whole House. So, Team Trump is going to say they want to avoid the possibility of law-breaking by removing the returns from the equation. This is actually a pretty decent argument...for gun control. It's not a good argument for allowing the President to ignore a long-established statute. So, what's inevitably going to be happen is that Trump, like Nixon, is eventually going to lose and is going to be forced to give up the goods. The only questions are: (1) How long can he drag it out, and (2) Depending on how things go, does Team Trump surrender early, so that the tax returns go public before election season heats up, as opposed to having them go public in the middle of the campaign? (Z)

On Sunday, Klobuchar Will Announce--Something

Sen. Amy Klobuchar (DFL-MN) will hold an event on Sunday and has invited the media to drop by. Maybe she is planning to introduce a bill in the Senate to provide blankets to poor people in states where it gets really cold sometimes, but don't count on it. If she were to announce that she is not running for president, she would have just announced it right then and there, without the fanfare. So the smart money is betting that she is about to enter the fray.

Klobuchar would have a few things going for her. First, she would be the first Midwesterner in the race and would undoubtedly emphasize how important it is for the Democrats to win back that region—for example, by nominating a Midwesterner. Second, she would be the first candidate to claim to be a moderate. In reality, Sen. Cory Booker (D-NJ) is also a moderate, but he is running as a progressive. While young and hip millennials are quite progressive on the whole, with so many progressives in the race, they could divide the vote badly and let someone like Klobuchar win. Third, so far (and likely until the very end), she is from a somewhat rural state that borders Iowa. She can talk dairy farming and hog prices with the best of them and is sure to impress Iowa farmers with her detailed knowledge of issues agricultural as she wanders through the Hawkeye State.

In an already crowded field that is sure to get more crowded as time goes on, each candidate needs a strategy, be it on policy, identity, or whatever. Hers is already clear: She is going to claim she can win back the Midwest and will spend much of her campaign time in Iowa. If she can get the gold, silver, or bronze medal in the Iowa caucuses, she will instantly become one of the top candidates. If she ends up around eighth or so, she's dead meat and will drop out.

The Democratic wing of the Democratic Party won't go for her at first because there are so many more attractive candidates, but if she ultimately gets the nomination, probably most progressive voters will warm to her simply because 2020 could be the year the country finally elects a woman as president.

Here is our profile of Klobuchar. (V)

Landrieu is Out

Amy Klobuchar may be in, but Mitch Landrieu is out. The former New Orleans mayor, who has often been mentioned as a potential Democratic presidential candidate, told CNN yesterday that the field is already packed with great candidates, adding: "A lot of people have asked me that. I never say never, but at this point in time I don't think I'm going to do it." General Sherman it is not, but changing his mind later when the field will be even bigger is going to make him look indecisive. So for all intents and purposes, that's one fewer Democrat in the 2020 mix. (V)

House Intelligence Committee Will Send Transcripts to Mueller

The House Intelligence Committee voted yesterday to send the transcripts of the testimony of dozens of witnesses to special counsel Robert Mueller. If Mueller goes over them carefully and has evidence that any of them lied to Congress, he could prosecute them for perjury. In the previous Congress, there was little appetite for giving Mueller any help, but the shift of power in the House has changed all that.

The Committee's chairman, Rep. Adam Schiff (D-CA), has a few other things in mind in addition to handing Mueller the transcripts. He also broadened the scope of his upcoming probe of Donald Trump to include investigating "whether any foreign actor has sought to compromise or holds leverage, financial or otherwise, over Donald Trump, his family, his business, or his associates." In other words, Trump's business (and possible money laundering) is very much on the table now. Trump instantly lashed out at the congressman, who he calls "Little Adam Schitt," saying: "Under what basis would he do that? He has no basis to do that? He's just a political hack." In reality, Schiff has broad power to investigate anything he thinks might impinge on national security, and a foreign power potentially having leverage over the president would undoubtedly qualify. Besides, Schiff doesn't have to answer to anyone except his committee and the voters in 2020. Since the committee is majority Democratic, and his district (CA-28, just north of Los Angeles) is D+23, he doesn't have too much to worry about. (V)

Cohen's Testimony Is Delayed Again

Donald Trump's former fixer Michael Cohen, who is now officially a felon, was scheduled to testify in camera (which means "in private," and not "on camera") Friday before Adam Schiff's committee, but Schiff has now given Cohen a reprieve. He won't have to testify until Feb. 28, a week before he has to report to prison to serve a 3-year sentence.

Cohen is going to be a busy man for the next month, and may not have much time to enjoy his last bit of freedom for a while. Senate Intelligence Committee Chairman Richard Burr (R-NC) would like to ask him a couple of questions, and so would House Oversight Committee Chairman Elijah Cummings (D-MD). It could always be worse. So far the House Agriculture Committee and Science, Space, and Technology Committees don't seem to have any interest in him. (V)

Poll: Wealth Tax is Overwhelmingly Popular

Although Sen. Elizabeth Warren (D-MA) is reeling from revelations that she once claimed to be an "American Indian" on her membership card for the Texas Bar, her ideas are not reeling at all. In fact, her proposal to tax the assets (not the income) of people with assets above $50 million is extremely popular. A new Hill/HarrisX poll released yesterday shows that 74% of registered voters agree with Warren's idea of a 2% annual tax of assets above $50 million and a 3% tax on assets of above $1 billion. Her proposal attracted the support of all genders, races, and regions of the country. Even Republicans were for it, with 65% agreeing with Warren.

The number of Democratic proposals to tax the rich is astonishing for a party that used to hide under the table at the mere thought of it. In addition to Warren's wealth-tax proposal, Rep. Alexandria Ocasio-Cortez (D-NY) wants a 70% marginal income tax rate and Sen. Bernie Sanders (I-VT) wants a marginal estate tax rate of 77% on estates worth more than a billion dollars. This is a sea change for the Democrats. It is likely that during the Democratic primaries, the candidate will go after each other by claiming they want to hit the rich even more than the other candidates. Nothing like this tax-the-rich frenzy has been around for at least 90 years. But as we have mentioned before, the top marginal tax rate during the Eisenhower administration was 91% and no one saw any problem with that. (V)

T-Mobile Executives Stayed at Trump's Hotel More than 52 Nights

The old saying: "The way to a man's heart is through his stomach" may have to be amended to get a footnote reading: "Unless he is president, in which case it is through his hotel." T-mobile wants to merge with Sprint and needs government approval to do so. What better way to help your case than to have your executives stay at Donald Trump's D.C. hotel for at least 52 nights last year. T-Mobile CEO John Legere wanted a nice room during his stay in the nation's capital, so he picked one at Trump International that costs $2,246 per night. Does this violate the Constitution's emoluments clause? Probably not, since Legere is American, and not king or prince of some faraway land. However, it could raise issues of bribery. At the very least, it doesn't look good. (V)

Thursday Q&A

We had a fair number of SOTU-related questions, and yet none of the ones we received was about the President's actual speech. Does that mean our coverage was so good it left no stone unturned? Or that Trump's speeches aren't interesting to discuss because they rehash the same stuff every time? Something else? Who knows?

Could you comment on California AG Xavier Becerra's Spanish language response to the SOTU? T.P., Monmouth, Oregon

Neither of us speaks Spanish, which means that we are limited to reading a transcript of the speech (as you suggested we do). Just based on the text, it is a very effective speech, in many ways:

And although we can't personally say too much about the delivery, we read a few Spanish-language reviews, and talked to a few Spanish-speaking colleagues, and Becerra got the thumbs up all around. So, it appears to have been a very successful speech, and set the California AG up as another Democrat on the rise. Undoubtedly, a gubernatorial or Senate run is in his future, especially since Sen. Dianne Feinstein (D-CA) is very unlikely to run again.


Who chooses the responder to the President's State of the Union address? Especially this year, when you have multiple Democrats running for President who would love to have the national spotlight shining on them. D.V., O'Fallon, IL

This particular custom only dates back to the 1960s. Specifically, 1966, when the very first SOTU response was delivered by the GOP tag team of Sen. Everett Dirksen of Illinois and Rep. Gerald Ford of Michigan, who were then the minority leaders of their respective chambers. Dirksen was in the twilight of a brilliant career that included, among its highlights, co-authoring the Civil Rights Act of 1964. As to Ford, our research staff is looking into whatever became of him.

We point this out because it means that SOTU responses are still in their infancy, to a large extent, and that the manner in which they are handled is not particularly well-established, either in terms of formal party/Congressional rules, or in terms of tradition. Sometimes, it's been the privilege of the minority leaders. Other times, the parties pretty much allowed anyone who wanted to take a crack a couple of minutes in the spotlight. In 1968, for example, there were no less than 16 responders, among them a wet-behind-the-ears Representative from Texas named George H. W. Bush.

These days, the decision is made primarily by the party's leaders in Congress, usually with some input from members of their caucus and the party's national committee. For example, it was Senate Minority Leader Chuck Schumer (D-NY) who took the lead this year in identifying candidates, getting buy-in from various stakeholders, and extending invites to Stacey Abrams and Xavier Becerra. As the pooh-bahs consider their options, they try to think about which responder will do the party the most good. They also abide by the physician's creed: "Do no harm." So, even if Schumer & Co. could not find someone they could get excited about, there was no way they were going to pick any of the 2020 hopefuls, since they do not want a repeat of 2016, and claims that the Party is favoring some candidates over others.


I did a coffee spit-take this morning when I opened up the news to read that Virginia AG Mark Herring just admitted to wearing blackface in college. After your comment on Tuesday that "...if Herring-related dirt pops up in the next few days, be suspicious," should we be suspicious? C.G., Palo Alto, CA

Yes, we would say so. Not about the veracity of the claims against these three men—Northam and Herring are clearly guilty as charged, and the odds are high that Fairfax is culpable, too. It's the timing that deserves some scrutiny and skepticism.

Consider, for example, the Northam image. How many copies of a medical school yearbook from almost 40 years ago could possibly still be in existence? And what are the chances that someone just happened to be flipping through a decades-old yearbook, saw the image, decided to make a fuss, and found a media outlet to talk to? Occam's razor does not favor this series of events. No, it favors the much simpler explanation: 'Someone was digging for dirt."

Similarly, the Herring story is very...unusual. Just days ago, he slammed Northam for wearing blackface. When Herring made that attack, it must have been the case that: (1) He forgot his own bad behavior, or (2) He remembered, but expected it to remain buried, or to be unprovable (i.e., no photo evidence). What has changed, then? If it's #1, then someone must have refreshed Herring's memory. And if it's #2, then someone must have made clear to him that there is hard evidence, and that its dissemination was imminent. Either way, it points to the involvement of a second party in the last few days. And if that second party merely said, "Hey Mark, don't forget that Kurtis Blow bit we did all those years ago," then the second option from above would presumably have kicked in. That is to say, even if he forgot and than was reminded, Herring likely would have tried to keep it on the down-low, because this is dangerously close to un-survivable, particularly after wagging his finger at Northam. Better to take his chances that the secret stays secret. The only circumstance where admitting it like this makes sense is if Herring knew the leak was imminent, and he wanted to get out ahead of it. So, the whole sequence suggests not only a second party, but a hostile second party.

Then there are the sexual assault accusations against Fairfax. Again, the odds are considerably better than average that he's guilty. However, the fact that the story was published on a fairly minor right-wing website sends up a red flag or two that once again indicates there is a puppetmaster somewhere pulling some strings.

So, each story smells a little (or a lot) fishy when taken individually. For them all to happen in less than a week? It certainly could be a coincidence, but if so, it's a pretty remarkable one.


As Trump's taxes continue to be under investigation, I've been wondering why the State of New York hasn't released his state taxes yet. Surely, much of the information contained in his federal taxes would be in the state tax forms, and the executive branch of New York is mostly Democratic. Is there some law that is stopping them? A.S., White River Junction, VT

The New York Department of Taxation and Finance is bound by a similar set of laws as the IRS is, except without a provision allowing certain key officials to have anyone's taxes they want. In other words, those are confidential documents, and for the state authorities to release them of their own volition would be a felony.

However, if New York AG Letitia James were to launch a criminal investigation of Donald Trump, particularly for tax-related crimes like tax fraud, then the returns would become a matter of public record. In fact, this op-ed from the New York Times argues that the muckety-mucks in New York should do just that. Odds are, it's on James' to do list. Actually, it's a little surprising that she hasn't done it already, but she might be deferring to special counsel Robert Mueller or the U.S. Attorney's office for the moment.


Would you be able to elaborate on when the word "acting" is used in the political spectrum and when not used? For example, let's say Trump loses on election night and resigns in disgust on the next day. VP Mike Pence would then take over, but would only be the President for a little over two months. Would Pence be considered our 46th President or would they just designate him as "acting" President until the inauguration? M.D., San Tan Valley, AZ

The latter part of your question is the easy part, so we will start there. If Donald Trump vacates his office at any time prior to noon on January 20, 2020, and Mike Pence is still VP, then Pence instantly becomes President #46. He doesn't even have to take the oath to assume the office (though he does have to take it before he exercises any of its powers).

As to "acting," it has several different meanings. The first of those, which is used with cabinet officials and the like, is something akin to "substitute" or "pinch hitter." An acting AG or acting Secretary of Defense is expected to do what is needed to keep his or her department running, but is not granted the full powers of the office they (temporarily) hold. The exact line between what an acting secretary can and cannot do is a little fuzzy, but might well get clarified in a hurry if Donald Trump continues to carry a cabinet with half a dozen acting members.

The second meaning, which comes from the 25th Amendment, basically applies only to the vice president. The Amendment specifies that if the president is temporarily incapacitated, the Veep temporarily assumes the full powers of the office, until the president becomes functional again. "But what about the oath?" you might ask. Since the Veep also swears an oath of office, that is considered good enough for "acting" purposes. A total of two VPs have been elevated in this way since the 25th Amendment was adopted; George H. W. Bush after Ronald Reagan was shot, and Dick Cheney twice while George W. Bush was having medical procedures.

And as to the third meaning of acting, well, nobody exactly knows what the third meaning is. That is to say, the Presidential Succession Act, first passed in 1947 and updated since, makes very clear that the VP assumes full presidential powers upon the death or disqualification of the president. However, if the VP is dead, or the office is vacant, then anyone else in the line of succession, from Speaker of the House to the Secretary of Homeland Security is merely promoted to "acting" president. Does this mean they only serve until an emergency election is held? Or that they only have limited powers? Good questions. Maybe shoot an email over to Chief Justice John Roberts to see what he thinks.


My question is about the designated survivor, and his or her path forward. I assume some thought has gone into what the government would look like if the unimaginable happened. We would need more than one cabinet secretary, even a competent one, to govern in what would be the worst event to ever befall our country. Surely there are laws beside the spare language of the Constitution, which was written at a time when such an event wasn't just unimaginable, it would have been impossible? R.C., New Britain, CT

First, let us point out is that the idea of a designated survivor is neither in the original text of the Constitution nor any of its amendments. The concept was first developed during the Cold War, for obvious reasons, and was given the force of law by one of the updates to the aforementioned Presidential Succession Act. The first publicly known designated survivor was Secretary of Education Terrel Bell, who got the honor during Ronald Reagan's first joint address to Congress in February 1981.

Moving on, as regrettable as it sounds, there really hasn't been that much thought about what would happen in the case of the unimaginable. In 2005, the leaders of Congress did start choosing a senator and a representative to join the executive branch's designated survivor, but beyond that there is relatively little clarity. If the worst had happened Tuesday night, would Rick Perry really be able to govern under the circumstances? And would he finish Donald Trump's term, or serve only until a new election was held? How would he staff a government, particularly if a huge percentage of Washington veterans were wiped out? How well would the military function, with the Joint Chiefs having been present at the SOTU (and thus also presumably wiped out)? What would happen with the Supreme Court, given that nearly half the justices were in attendance at the address? What if the designated survivor for the House concluded that all of his (or her) 434 colleagues were dead, that he was now a quorum of one, and he elected himself immediately as Speaker and thus the legal successor to the presidency? And all of these issues would be presenting themselves as the nation was coping with a tragedy many times the scale of 9/11, with the damage possibly unfolding over days or weeks (if there was nuclear fallout, for example).

In short, the country had better hope that the "designated survivor" remains purely symbolic and that, fun TV shows aside, that person is never pressed into service.


Occasionally you or others mention a "faithless" or "rogue" elector. Recently, for example, you noted a "faithless Tennessee Elector" who voted for George Wallace. How are the electors chosen? How many "faithless" electors have there been in U.S. History? Have any of them faced any consequences for their action? T.P., Portland, OR

Electors are usually chosen by the state parties, and the job tends to go either to prominent members of the party, or to long-time volunteers/big-time donors as a thanks for their service.

In U.S. history, there have been a grand total of 179 faithless electors. 71 of those really shouldn't count, though, because the candidate they were pledged to (Horace Greeley in 1872 and James S. Sherman in 1912) was dead by the time the Electoral College met. Another two voted for nobody, and the balance either voted for a candidate they liked better (usually as a form of protest), or else made a mistake.

Only 29 states have laws that attempt to punish faithless electors, either by voiding their votes, or by assessing them a fine. The latter penalty has never once been enforced, and it's not clear it would be legal if a state tried it. Since no presidential result has ever been changed by faithless electors, state authorities in those 29 states have mostly just looked the other way when it happens.


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