Senate page     Feb. 11

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Sorry it's extra late. Writing with a bad back turns out to slow things down a lot.

Papersgate Becomes Toilet Papersgate

If you had to predict the most likely setbacks to befall Donald Trump in 2022 (and, indeed, many readers gave it their best shot), you probably would have gone with something related to obstruction, or sedition, or sexual misconduct, or financial misdeeds. But "he gets in hot water for his mishandling of official paperwork"? Presumably, that wouldn't even have made the top ten. Maybe not the top fifty. And yet, the story just keeps on keepin' on, with several new developments yesterday.

Let's start with the biggest one (we would say). There's no indication that the Department of Justice is ready to look into this matter, but the House Oversight Committee certainly is. Rep. Carolyn Maloney (D-NY) had sent a letter to Archivist of the United States David S. Ferriero asking for details on "the extent and impact" of Trump's violations of the Presidential Records Act. Maloney wants to know about records that were destroyed, records that were illegally transported to Mar-a-Lago, and records that seem to have vanished.

And that brings us to the next big story. Though some of the documents that Trump took home could understandably (if incorrectly) regarded as personal, there is new reporting that some of the documents that made their way to Florida were Top Secret, and were labeled as such. The birthday card from Kim Jong-Un? Ok, maybe Trump and his people didn't know that belongs to the U.S. government. The report on Russian defenses that is stamped with "TOP SECRET" in bright, red letters? A bit harder to claim ignorance.

And speaking of ignorance, that brings us to yet another new development. In general, ignorance of the law is no excuse. With federal records, it is, because Congress did not want, say, a janitor to pick up a folder off the floor, toss it in the trash, and all of a sudden be guilty of a felony. So, you have to be aware that what you're doing is illegal in order to get popped. If Trump does try to defend himself with "I didn't know," as we pointed out yesterday, then there are people out there—like former Trump chief of staff John Kelly—who will be able to say they advised the former president that he was not allowed to tear records up. And yesterday, even more compelling evidence presented itself, as there's footage of Trump attacking Hillary Clinton for—wait for it—violating the Presidential Records Act. There's also footage of him saying much the same about Speaker Nancy Pelosi (D-CA) after she tore up his State of the Union Address: "It's an official document, you're not allowed, it's illegal what she did, she broke the law."

Finally, The New York Times' Maggie Haberman has a new book coming out, and the first juicy excerpt dropped yesterday. In it, Haberman relates something she learned from the White House plumbers (actual plumbers, not the Richard Nixon type): the presidential toilet was often clogged with torn up pieces of paper. The presumption is that the former president was the responsible party, since who else has access to that bathroom and has a habit of tearing up documents?

Donald Trump's life has often centered on toilets. The golden ones in his residence. The low-flow ones that he rails against at rallies. The ones that don't exist in some poor countries, forcing them to use sh**holes. But trying to flush the official business of the federal government and yet failing? Boy, if that's not a metaphor for the Trump presidency, we don't know what is.

Ultimately, it's clear that there's enough smoke here to warrant an investigation, and probably a prosecution. But will it actually happen? On one hand, if Trump doesn't get in any trouble here, then what is the point of even having a Presidential Records Act? On the other hand, if Trump is punished (and one of the possible sanctions is disqualification from future officeholding), then his supporters are going to go nuts and declare it to be deep-state shenanigans. This is one reason that AG Merrick Garland has a really tough job. (Z)

Ukraine Might Soon "Go Crazy" (or Not)

There have been a number of indications in the last 24 hours or so that Vladimir Putin is getting ready to make a move of some sort in Ukraine. New satellite images show further buildup of Russian forces along three sides of Ukraine. There's been increased traffic on the networks that might be used for a cyberattack. And, in perhaps the most important indicator of all, Putin's super yacht departed Hamburg before needed repairs were completed. That sure looks like someone who doesn't want to lose his favorite toy to sanctions from the west.

Acknowledging that things may well be heating up, Joe Biden told NBC News last night that things "could go crazy quickly." He also strongly encouraged any Americans who are in Ukraine to leave now, because the U.S. will not be able to send troops in to rescue them. "That's a world war when Americans and Russia start shooting at one another," he explained.

There is some supposition that the opening salvo, if it comes, will be some form of cyberattack. The Russians are very experienced at that, and it's a low-risk/high-reward kind of play. Further, there may be some PR benefit. If a country bombs Pearl Harbor or invades Poland, it's pretty clear who was the aggressor. Maybe the world will not view a cyberattack, even a bad one, in the same way.

So, there are a number of ways in which things are looking grim. With that said, the White House had previously described a Russian invasion of Ukraine as "imminent," and now it has dialed that back. So, there are at least some indications that a peaceful solution is possible. As we've noted several times, it is none too easy to keep an army of that size in the field without making a move. So, Putin will presumably decide to shake things up, or else to stand down, relatively soon. (Z)

Iran Nuclear Deal En Route to Being Resurrected

Depending on your belief system, it's been a couple of thousand years since the Near East had a good resurrection, so maybe a second one is overdue. And it looks like Team Biden could deliver. Diplomats from around the world are in Vienna this week to try to try to work out a resumption of the Joint Comprehensive Plan of Action (JCPOA), a.k.a. the Iran Nuclear Deal. And reportedly, talks are in the "final stretch," and an agreement could be finalized anytime.

Donald Trump, of course, withdrew the U.S. from the agreement in May of 2018. He said it was in order to allow him to negotiate a better deal. If so, well, he didn't succeed, and he really didn't even make an attempt. The rather more plausible explanation for Trump's choices are his beliefs that: (1) Iran is bad, and (2) anything Barack Obama did is bad. In his view, and that of many of his advisors, the former president got a two-fer by withdrawing; poking Iran in the eye with one hand, and poking Obama in the eye with the other.

Unfortunately, according to intelligence sources in the U.S. and elsewhere, Iran has made substantial progress toward building a viable nuclear device. If the JCPOA is not revived in short order, it will be too late, and the time will come for sanctions and other onerous measures. So, the Biden administration is trying very hard to pull this one off. If and when it comes back to the U.S. for ratification, he might even get some bipartisan support. First, after a briefing yesterday, senators on both sides of the aisle were reportedly mortified at how very much progress the Iranians have made in such a short time. Second, Republican leadership in the Senate isn't stupid, and knows—even if Trump doesn't—that a treaty that leaves both sides unhappy is better than no treaty at all. Third, and finally, this would be an opportunity to put further daylight between the McConnell wing of the Republican Party and the Trump wing of the Republican Party. Anyhow, we are going to find out soon how this will end. (Z)

All the Way with the ERA?

David Ferriero has been the Archivist of the United States since 2009. Like Senate Parliamentarian Elizabeth MacDonough, he's supposed to be someone whose name you don't know. And like MacDonough, given the nature of politics in the year 2022, with the parties probing every soft spot in the system, he's in the news all the time. There are the Donald Trump shenanigans, of course (see above). And on top of that is the Equal Rights Amendment. Ferreiro is retiring in April, and supporters of the ERA would like him to publish the amendment, theoretically making it a part of the Constitution, on his way out the door.

Now, the operative word in that last sentence is "theoretically." There is an argument that Ferreiro does have the power to amend the Constitution with a stroke of his pen. The ERA has now been passed by the requisite 38 states, with Virginia becoming the 38th in the year 2020. So, done and done, right? After all, the Twenty-Seventh Amendment took more than 200 years to be ratified (1789-1992). So, the 48 years from the passage of the ERA in 1972 to ratification #38 in 2020 is positively speedy, right?

Not so much. We've written about this before, but there are two rather significant legal issues. The first is that amendments 200 years ago did not have an expiration date written into them. Starting about 100 years ago, expirations began to be added. And the one in the ERA declares it to be dead if not approved by 1977 (later extended to 1982). The second issue is that several states that approved the ERA have voted to rescind their ratification votes.

The Constitution spells out the amendment process only in very broad terms, and it has nothing about whether deadlines (or extensions to deadlines, for that matter) are legal. It also says nothing about whether states can withdraw their approval once they've approved an amendment. There's been no definitive ruling (i.e., nothing from the Supreme Court), but the courts that have weighed in have said the ERA is dead, dead, dead. The Department of Justice has also issued an opinion, and it agrees.

But again, there is at least an argument that all the necessary steps in the amendment process have been completed, and that these various barriers are extraconstitutional and invalid. So, Ferreiro could declare the ERA to be ratified. Because that's not impossible, three senators—Rob Portman (R-OH), Mitt Romney (R-UT), and Ron Johnson (R-WI)—sent the Archivist a letter this week imploring him not to try it. They recognize, quite rightly, that some states and people would recognize the new amendment as valid, others would not, and the result would be, at very least, a mini-constitutional crisis.

Ferreiro has given no indication that he's thinking about it. And the type of folks who become National Archivist—in other words, librarian numero uno—are not generally known for their rebelliousness and their willingness to throw caution to the wind. We don't know for sure what kind of car Ferreiro drives, but we'd be willing to bet it's a Toyota Camry. Or maybe a Honda Accord. Definitely not a Ferrari.

There is one other possibility, though. Although there's zero chance of getting two-thirds of both chambers of Congress, and three-fourths of the states to re-vote for the ERA, the House and the Senate could pass a resolution extending the deadline for passage to 2022 (or wiping out the deadline entirely). Again, it's not clear whether or not this would be legal, but Nancy Pelosi and Senate Majority Leader Chuck Schumer (D-NY) could roll the dice. Even if they lose in court, just the attempt could impress some voters. (Z)

Susan Collins May Have Some Trouble on Her Hands...

Think of all the money that people donated to U.S. Senate candidate Sara Gideon (D) in hopes of bringing down Sen. Susan Collins (R-ME). Maybe they took the wrong approach. Perhaps what they should have done is donate their funds to Collins, but in a manner that violates campaign finance law. That might actually have a better chance of unseating the Senator from Maine.

At least, that's what three Hawaiian gentlemen—Martin Kao, Clifford Chen, and Lawrence 'Kahele' Lum Kee—did. They weren't trying to derail Collins, mind you; they were just trying to get around campaign finance laws. So, they ran a somewhat elaborate scam, setting up a shell company in order to funnel money to a pro-Collins super PAC. This was illegal because all three of those men are employed by defense contractors. Defense contractors can't make contributions to federal campaigns, so that they can't exert undue influence over the spending decisions of U.S. Senators. Especially those who serve on the Senate Committee on Appropriations, as Collins does.

Collins' office issued a statement asserting that neither the Senator nor anyone on her staff was aware of the scheme. There is no evidence indicating otherwise, and the criminal complaint against the three men does not name any other people as co-conspirators. That said, we would be remiss if we did not point out that a bribe... er, a campaign contribution of $25,000+ isn't much of an investment unless the recipient knows who the money came from and what it was meant to encourage. So, it's at least possible there could prove to be some funny business here. Undoubtedly, at the moment, Collins is concerned. (Z)

...While J.D. Vance May Have a Different Kind of Trouble on His

Forgive us for being blunt (a bad back will do that), but Ohio Senate candidate J.D. Vance has been a big phony for his entire career as a public figure. Yes, he was born and raised in a fairly poor part of Ohio, but his family was relatively well off, and he managed to get an undergrad degree from Ohio State and a law degree from Yale. Despite his extremely atypical experience, he managed to persuade the world that he is the Hillbilly Whisperer, courtesy of his memoir-of-dubious-veracity Hillbilly Elegy.

In the past couple of years, with his eye on the U.S. Senate seat being vacated by Rob Portman (R-OH), Vance has endeavored to reinvent himself again, into Donald Trump's #1 fan. It's understandable, since he's running in a Republican primary where everyone involved is trying to out-Trump each other in a race to the top. Or is it the bottom? In any event, Vance has been pouring the Donald love on pretty thick, to any Trumpy voter who will listen.

There is one small problem, however. Vance was once an outspoken anti-Trumper. And he was outspoken on video, and on audio, and those recordings still exist. This turns out to have been, well, impolitic for someone running the kind of campaign Vance is now running. PACs backing his main opponent, Josh Mandel, started airing commercials that featured Vance's past attacks on Trump. And, according to detailed polling data collected by Trump pollster Tony Fabrizio, the attacks landed, noticeably reducing the candidate's support among Trump voters.

This certainly brings up an interesting question about how some phonies get away with it and others don't. Trump himself is the king of phonies; he gives zero craps about anyone not named Trump, and yet he has persuaded 40% of the American people that he understands them, that he feels their pain, and that he will solve their problems. Sen. Lindsey Graham (R-SC) is just as phony, and is a former anti-Trumper to boot, and yet he won reelection easily in 2020, collecting essentially all of the Trump vote. And yet, with Vance, the Trumpers are on to his faux MAGAness (you might say he's a faux MAGAnon) like white on rice. Are Trump and Graham just better actors? Are Ohio Republicans just a little more cynical than the ones in South Carolina? Or a little smarter? Dissertations are going to be written about this one day.

In any case, the ultimate conclusion of Fabrizio's polling and analysis is that the Trumpers don't buy what Vance is selling, but the never Trumpers like him very much. And in these Ohio primaries, there really isn't a major Republican in the never Trump/moderate lane. So, maybe the candidate needs to get to work on J.D. v.4.0 (which is really just a rollback to J.D. v.2.0). If Vance does that, he'll never get Trump's endorsement, but he might just get Senate Minority Leader Mitch McConnell's (R-KY). (Z)

This Week in Schadenfreude

We had quite a few candidates this week, but a message from B.C. in Walpole, ME helped us decide. B.C. writes: "I just feel that if there is ever an opportunity to do a schadenfreude piece on Sarah Palin, well, we just owe to our fellow citizens to pursue it." Since she played a sizable role in the degradation of American political discourse, in particular by introducing to presidential politics the notions that expertise, experience, and facts don't particularly matter, we find B.C.'s argument persuasive.

Palin's schadenfreude moment(s) came during her testimony on Thursday, as she tries to win a libel suit against The New York Times. For those who have not followed the case, in 2010, Palin's PAC circulated this graphic shortly before then-Rep. Gabby Giffords was shot:

A map of the U.S. with about 20 crosshairs
symbols imposed upon it, and a list of members of Congress below who clearly correspond with the symbols

In 2017, a bit more than 6 years after the Gifford shooting, the Times ran an editorial under the headline "America's Lethal Politics," in which they lamented the emergence of violent rhetoric in American politics, arguing that such rhetoric has real consequences. The original version of the editorial used the Palin graphic as an example, declaring that it put the crosshair on Giffords herself (as opposed to her district), and that the shooter might have been influenced by the graphic (though there's no evidence he was, since he's not mentally competent enough to say). Palin and others pitched a fit, and the Times ran a correction the next day:

An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.

The paper also amended the online version of the editorial to be accurate. Still, Palin says she was irreparably damaged, and so she has sued.

When the former governor began her testimony yesterday, she was the now-polished media personality who knows how to put on a good show, and she impressed those watching in the gallery. However, Foxers gotta Fox, and eventually that version of Palin presented itself. This is when things went downhill, since judges and defense attorneys are just a wee bit more likely to challenge obvious B.S. than are the entertainers who host shows on Fox.

The moment where things really went off the rails was when Palin—not content to carp about the incident that is the basis for the suit—accused the Times of having done this multiple times. Palin's attorney tried to fix that for her, asking her to confirm that what she meant was something like "They've been unfair to you several times." You can practically see counsel nodding as he said this, trying to communicate that she really, really needed to agree with him. Palin did not take the life preserver that was proffered, however, and insisted that this exact claim had been published by the Times on more than one occasion. If so, that would be very interesting, and would raise questions about why it was not noted in the original complaint. Of course, it's not true, and when asked for specifics, Palin hemmed and hawed and said she didn't have citations in front of her. It was almost like Katie Couric had just asked Palin what magazines she reads.

That was the lowest of the lowlights, but there were other less-than-shining moments. Palin got caught in something of a lie when asked about whether she followed coverage of her 2008 vice-presidential campaign. Initially, she said she did not, but then moments later referred to the way in which specific parts of that coverage shaped her campaign approach. She also did a poor job of selling the core element of her case, namely that she was devastated by the Times' editorial. Under examination, she admitted that she did not seek any sort of medical treatment or counseling, did not speak to a pastor or trusted friend, and otherwise did not do any fo the things that people who are truly devastated tend to do as part of their recovery. Palin also managed to make herself the object of some derisive laughter in the courtroom when, being faced with questions she did not like, she attempted to object. The judge had to explain that witnesses are not allowed to object.

Palin had gotten much fame, and made much money, from saying things that she wants to be true, even if they are not. And so, when the day comes that she finally gets called to the carpet for such nonsense, that's cause for at least a dollop of schadenfreude. (Z)

Someone's Gonna Get Killed

The Super Bowl is this weekend. It is not clear if anyone will bother to tune in, since the Green Bay Packers are not playing. However, if anyone does, and if they live in Arizona, they are going to be shown an advertisement from Senate candidate Jim Lamon (R)—one that is both incredibly cheesy and entirely reprehensible. Here it is, if you want to see it:

If you don't care to watch, it shows an Old West-style shootout in which the candidate is confronted by three masked "bandits" who, through the use of nasty nicknames, are identified as Sen. Mark Kelly (D-AZ), Joe Biden, and Nancy Pelosi. Lamon fires shots at each member of the trio, and disarms them.

The angle that is getting all of the attention, rightly, is that Kelly's wife is Gabby Giffords, who, as we remind you in the item above, was shot, nearly fatally, while acting in her capacity as a member of Congress. To shoot at her husband, even in a cartoonish situation, is in very poor taste. Not that the would-be senator has any intention of backing down.

Meanwhile, there are way too many Republicans out there—from Sarah Palin to Donald Trump to Rep. Paul Gosar (R-AZ), to Lamon—who feel it's OK to suggest in a joking-not-joking fashion that their opponents are worthy targets of extreme violence. It is true that the vast majority of people will see a commercial like this one, and will not be tempted to act on the implied suggestion. But there is also a small minority who can and will be prompted to action, particularly if they are hit with similar messaging over and over. Do these Republicans not realize this? Or have they spent so much time parroting NRA talking points that they really believe there are no dangerous gun owners? Or do they know, and just not care if a Democrat (or a Republican opponent) gets shot? Whatever it is, it's absolutely beyond the pale. (And speaking of pale, can you imagine what would happen if a Black candidate had a commercial like this, in which the shooting of political opponents was hinted at? It's all Fox would talk about for weeks. Oh, and that Black candidate would absolutely be taking his life into his hands.) (Z)

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