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What We Learned from the Hearings

Now that the first batch of hearings from the Select Committee are done, we are starting to get "What did we learn?" stories. Slate has one and so does CNN. Slate looked at each hearing to point out the key things we learned from it, as follows:

CNN's take focuses more on the events described in the hearings, rather than the hearings themselves and who spoke when. During his presidency, every time Congress asked for information about something, Trump stonewalled them and gave them nothing but a middle finger. Accountability just wasn't his thing. When the hearings started, he lost control of the narrative. CNN points out that almost all the witnesses, both live and recorded, were conservative Republicans, mostly elected officials or people he himself appointed. They were not partisan Democrats trying to do him in. Even the vice chair, Liz Cheney, is a conservative Republican, a House member who voted with Trump nearly all the time, and a chip off the old block (or the old Dick).

To start with, Trump was told innumerable times in November and December 2020 that he lost. Bill Barr told him that claims of fraud were bulls**t. Many others, including Ivanka, told him as well. There is absolutely no doubt that he was made aware that he lost the election and that it was not stolen. Yet he persisted. After the Electoral College voted on Dec. 14, then-Senate Majority Leader Mitch McConnell (R-KY) declared that Joe Biden was the president-elect. Trump responded by cutting off all communication with McConnell and embracing House Republicans who were prepared to object to the electoral votes on Jan. 6. Eric Herschmann told Trump that his scheme to have Mike Pence throw out electoral votes would cause riots in the streets. Trump didn't care.

In December, Trump convened the "unhinged" meeting at the White House during which the attendees were screaming at each other. At one point, Pat Cipollone told Trump's allies to "shut the f**k up." Fortunately, nobody was injured by a flying lunch plate. Trump was supportive of all the crazy schemes Sidney Powell and others proposed. He only backed down when Jeffrey Rosen told him that if he did these things, the entire top of the Justice Dept. would resign en masse.

Early January was spent plotting with Republican House members about how to decertify electoral votes or throw them out completely. Sen. Ron Johnson (R-WI) was even planning to hand deliver a fake slate of electoral votes to Mike Pence as the votes were being counted. It is not clear whether Trump or Giuliani put him up to this, or it was his own idea.

CNN also notes that the Select Committee reimagined the whole concept of a congressional hearing, no doubt due largely to the input from former ABC News producer James Goldston, who it hired early on. Previous hearings gave each member of Congress 5 minutes to either ask obvious and softball questions or grandstand like hell, depending on which party the member represented. The new format had one or two members weave together a compelling narrative with the aid of live witnesses and some of the thousands of hours of recorded testimony. Each hearing told a story about some part of the coup attempt. There was no dissension due to the fact that House Minority Leader Kevin McCarthy (R-CA) proposed two of the biggest grandstanders in the House to be on the Committee, the Jims Jordan (R-OH) and Banks (R-IN) and Speaker Nancy Pelosi (D-CA) rejected them. If McCarthy had replied by putting up two normal Republicans who were willing to take the investigation seriously, things might have gone differently. But he didn't. Instead, he took his marbles and went home. The result was a series of hearings in which conservative Republicans hit Trump again and again with no one even trying to defend him. (V)

New York Post: Trump Is Unworthy to Be President Again

The New York Post is one of the most conservative newspapers in the country. This is not surprising since it is owned by Rupert Murdoch's News Corp. and his hand-picked editor-in-chief calls the shots. In 2020 the Post endorsed Donald Trump for president.

But its Trumpiness has come to an end. The straw that caused a spinal injury to the proverbial camel was the 187 minutes while the Trump mob was ransacking the Capitol trying to hang the vice president and Trump was smugly watching it unfold on television, ignoring entreaties from his staff, his family, and elected Republican officials to call it off. As we note/remind you above, he refused them all.

Still, it is a bit surprising that an editorial Friday stated: "To his eternal shame, as appalled aides implored him to publicly call on his followers to go home, he instead further fanned the flames by tweeting: 'Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution.'" The editorial ended with: "It's up to the Justice Department to decide if this is a crime. But as a matter of principle, as a matter of character, Trump has proven himself unworthy to be this country's chief executive again." Again, this is The New York Post, not The Huffington Post.

Now what? Is Murdoch one of the rats leaving the S.S. Trump and waiting for the S.S. DeSantis to set sail? Is Fox News going to follow next (more than they already have, with the three-minute video a couple of weeks ago in which a bunch of "random" Republicans on the street said it was time for Trump to be done)? We don't know. We are sure, however, that there is no way the Post would ever have run that editorial without Murdoch's approval. He may not have written it but the paper would certainly have checked with him before publishing it.

The nearly 3,000 comments from the readers are largely opposed to the editorial. It is doubtful many Democrats read the Post. Upscale New York Democrats read The New York Times and working-class Democrats read the city's other tabloid, The New York Daily News. Here is a(n unedited) sample from the Republican grassroots:

And on and on. A few supported the paper, but most didn't. Our conclusion is that even if the Republican elites (say, Murdoch and Mitch McConnell) decide that Trump has to go, the base may not follow like a herd of sheep. In other words, Gov. Ron DeSantis (R-FL) may be stuck in Tallahassee longer than he would like. (V)

Trump Has a Plan for a Second Term

Based on the response of New York Post readers to the paper's editorial (see above), one might conclude Trump is a shoo-in for the 2024 GOP nomination. We don't think that is true because there is a chance he will be a convicted felon in Georgia before the start of the 2024 primaries (see below). That could shake off some of the people who voted for him because they dislike the Democrats, rather than because they love Trump.

Nevertheless, despite Trump's dislike of governing, he is actively working on his plans for a second term, and they are bit scary.

The plans revolved around an executive order called "Schedule F." The effect would be to wipe out employment protection for tens of thousands of federal civil servants all over the country so they can be fired and replaced with Trump's supporters. Andrew Jackson would be proud.

But first a bit of history. After his first impeachment trial, Trump was furious beyond belief and wanted to fire every single last "snake" in the government. His first move was to rehire John McEntee, a young aide who was previously fired by then-chief of staff John Kelly, who himself was also later fired. Trump made McEntee, who has no background in H.R., head of the White House Office of Presidential Personnel. In this position, McEntee began making a list of government officials deemed insufficiently loyal to Trump. The idea was to fire them all. Joe McCarthy would be proud.

McEntee began firing people left and right, often without the consent of the cabinet secretaries in whose departments they worked. Sometimes even without the secretaries' knowledge. Then he recruited die-hard Trump supporters, some just out of college, and most without any of the credentials required for such high positions. A key question in interviews was: "What part of Candidate Trump's campaign message most appealed to you and why?" But if the answer was: "deregulation and judges" that was a red flag suggesting the applicant was a weak-kneed member of the establishment.

McEntee was aided by senior Heritage Foundation lawyer Andrew Kloster, who said: "I think the first thing you need to hire for is loyalty. The funny thing is, you can learn policy. You can't learn loyalty." He wanted people harboring angst, and the bigger the chip on their shoulder, the better. In time, McEntee and Kloster produced an organization chart for Trump's second term that went down to undersecretaries, assistant secretaries, and below down to protected civil servants.

But wait, you are probably thinking: What about the Pendleton Act, which created the civil service? This is where James Sherk, a conservative ideologue, came in. He was on Trump's Domestic Policy Council and gave Trump's orders to civil servants. They often resisted (possibly because the orders were illegal or violated long-standing government policy). His reaction was to start reading the law very carefully. In particular, he was looking for ways for the president to fire civil service workers he found insufficiently supportive of his plans. What he discovered was that 5 U.S. Code 7511 states that civil service employees whose function the president has determined to be a policy-making position can be fired.

Sherk then worked with a small number of Trump appointees to draft what they called Schedule F. It ordered all agency heads to make lists of civil servants in their agencies who influenced policy. These employees could then be reassigned as schedule F employees, which meant they could be fired on a presidential whim and replaced by die-hard Trump supporters. Meanwhile, no career officials knew anything about this new development. The pandemic slowed Sherk down, but on Oct. 21, 2020, Trump signed the EO, and in the heat of the campaign, nobody noticed. Well, except The Washington Post, which ran a story about it 2 days later. Nobody noticed the story either.

Except OMB Director Russ Vought, who immediately assigned 88% of the entire OMB workforce as Schedule F employees. That's basically everyone except the janitors, the deputy janitors, the assistant janitors, and the alternate janitors. They were now all potentially fireable for the offense of not being sufficiently Trumpy, even if they did all their work correctly and obeyed all laws and regulations.

Actually, there were also a couple of other people who noticed it. Rep. Gerry Connolly (D-VA), who chairs the House subcommittee that oversees government operations, noticed and so did Everett Kelley, president of the American Federation of Government Employees. Kelley said: "President Trump has declared war on the professional civil service by giving himself the authority to fill the government with his political cronies who will pledge their unwavering loyalty to him—not to America." Trump was delighted and sent Sherk a signed copy of the WaPo story.

Joe Biden rescinded Schedule F on Day 3 of his administration. Sherk is now working for a right-wing think tank. If Trump wins another term, Sherk (and McEntee) will remind him of it and he will instantly sign an EO reinstating it. Jim Jordan is wildly enthusiastic about mass firings in a second Trump term. He said: "Fire everyone you're allowed to fire. And [then] fire a few people you're not supposed to, so that they have to sue you and you send the message. That's the way to do it."

And there you have the outline of a key part of Trump's second term: Fire vast numbers of civil servants who have not done anything wrong, but who simply proved by their actions that they are not gung-ho Trumpists. Then replace them all with Trump's most loyal followers, whether or not they are competent for their new job. If this completely wrecks the federal government, so much the better!

Axios' Jonathan Swan and Mike Allen have been writing about Schedule F here, here, and here. Here is the order itself. (V)

Select Committee May Subpoena Ginni Thomas

Yesterday, Liz Cheney appeared on CNN's "State of the Union" and said that the Select Committee has politely asked Ginni Thomas, conservative activist and wife of Supreme Court Justice Clarence Thomas, to appear before the Committee. Cheney knows that Thomas' lawyer has already said she is not coming, and so added that if need be, Thomas could receive a subpoena to appear. Maybe she would ignore it though, claiming judicial privilege. That doesn't really apply here, but coming up with fantastical interpretations of existing law is something of a family talent.

Thomas' testimony could be useful because in January 2021 she had considerable contact with John Eastman, and the Committee wants to know more about that. Eastman may have broken various laws and the Committee wants to know what she has to say about that. Of course, she may also have broken laws, which is probably why she is not interested in testifying. Cheney also noted that, in recent weeks, the Committee is being flooded with new information and new people coming forward asking to talk to it. She also said that the Committee might make criminal referrals, but that hasn't been decided yet.

Finally, Cheney was asked if being on the panel was worth losing her seat in Congress and she said that trying to protect the Constitution made it worthwhile. What she didn't say is that if Trump falls out of favor in the next months—for example, by being convicting of a crime somewhere—the people who risked their careers to oppose him may come out looking like... presidential candidates. She was asked about that and said she hadn't decided yet.

Rep. Adam Schiff (D-CA) appeared on CBS' Face the Nation and was asked abut Cheney's comment about a subpoena. He noted that Congress subpoenaed documents that might have implicated Ginni Thomas in some lawbreaking and the Supreme Court voted 8-1 that Congress had a right to the documents. The "1" was Clarence Thomas. That vote looks very fishy, at best. Normally, Thomas votes the same way as Justice Samuel Alito. (V)

Fani Willis Is Building a Broad Case

What started with a phone call between Donald Trump and Brad Raffensperger has ballooned into a sprawling investigation in Georgia that could soon catch not only Trump but many of his enablers in its web. Fani Willis, the Fulton County district attorney, seems determined to do precisely that. She has issued a flurry of subpoenas and target letters aimed at catching the numerous people who may have tried to undermine the election, possibly with the notion of going after them on state racketeering charges.

Prof. Anthony Kreis of the Georgia State University Law School suggests "she's building this broader case for conspiracy." The Georgia RICO Act is broader than the federal one and can be used whenever multiple people plot to commit any crime and take overt steps to carry it out. In the case of Trump, co-conspirators could be Rudy Giuliani, Sen. Lindsey Graham (R-SC), and Rep. Jody Hice (R-GA), along with multiple lawyers they worked with.

Willis is working on knitting together multiple strands:

Legal experts say there are few impediments to Willis and the bar is possibly even lower than the bar for a federal indictment because of the breadth of the Georgia RICO law. Norman Eisen, special counsel to the House Judiciary Committee during the first Trump impeachment, said that if Willis indicts Trump, Giuliani, and others under the RICO Act, that could be the most significant use of any RICO Act in U.S. history.

Republican politicians are trying to get Willis dismissed from the case, but their argument is extremely weak, namely that Willis, who ran for D.A. as a Democrat, once helped other Democrats running for office. There is nothing in Georgia law preventing a candidate running for office helping another candidate running for office. It is not as if Georgia D.A.'s are supposed to be nonpartisan and helping a Democrat is iffy. Georgia D.A.candidates run as Democrats or Republicans and which party they belong to is public information and on the ballot. (V)

Democrats Have Interjected Themselves into GOP Primaries

As was noted yesterday in the mailbag, Democrats have engaged in a little ratf**king this year. Actually, it is not a little, but a lot of ratf**king. As in, tens of millions of dollars worth of it. Here are just four of the races where Democrats insinuated themselves:

But in some cases, especially Arizona, the Democrats are playing with fire. In a state like Maryland, probably any Democrat could win. Hogan was a special case since he really is kind of a RINO. However, if Democrats get their wish in Arizona, Lake could certainly win the general election. Coupled with a Republican legislature, they could abolish absentee voting, which more than half the voters generally use, decide that there should be only one polling station for all 4.7 million voters in Maricopa County, and engage in other voter-suppression activities. It's a dangerous game. On the other hand, if it works, Secretary of State Katie Hobbs (D) will be elected governor and will be able to block the legislature on everything. (V)

Voter Registration Is Catching Up with Elections

Sometimes pundits use voter registration to try to predict elections. If there are, say, a quarter of a million more Democrats than Republicans in a state, then Democrats ought to win elections there easily, right? Actually, no. Voter registration hardly correlates with election results at all, weird as it may sound. In 2016, there were 325,000 more registered Democrats than registered Republicans in Florida and Donald Trump won the state. In 2020, there were 240,000 more Democrats than Republicans in Florida and Trump won again. In 2016, there were 400,000 more Democrats than Republicans in Kentucky and Trump beat Hillary Clinton by 600,000 votes. In 2020, the Democrats still had an edge of 186,000 voters and Trump still carried the state by 550,000 votes. The same holds in many other states. What gives?

In many states, voter registration is a lagging indicator. When people changes parties, they first start voting for the new party and only years (or decades) later actually change their registration to reflect their new choice. Those changes in registration are now starting to show up and reflect the actual number of partisans in some states.

Not all states register people by party. Here is a map of the country showing the dominant party in the states that register by party as well as the states that don't do it:

California, Nevada, New Mexico, Louisiana, DC, Maryland, Delaware, Pennsylvania, New Jersey, New York, and Maine have a
plurality of Democrats. Idaho, Utah, Arizona, Wyoming, South Dakota, Nebraska, Kansas, Oklahoma, Iowa, Kentucky,
Florida, and West Virginia have a plurality of Republicans. Arkansas has a plurality of independents, and more
Republicans than Democrats. North Carolina, New Hampshire, Rhode Island, Connecticut and Massachusetts have a plurality
of independents, and more Democrats than Republicans. All the other states don't register by party. No state has an
outright majority for one party or the other.

In many states, registration is finally catching up with reality. Florida was D+455,000 as recently as 2014, but it's been downhill for the Democrats ever since. Now it is R+176,000, the first time in modern history that there are more registered Republicans than Democrats in the Sunshine State. Kentucky was D+589,000 in 2008, but is now EVEN. Oklahoma was D+222,000 in 2008 but is now R+446,000. West Virginia was D+317,000 in 2008 but is now R+62,000. These changes represent how the state actually votes. So what is happening is that people are changing their registrations to match how they actually vote rather than changing how they vote.

A lot of the changes are occurring in the once-solid South, where the Democrats could nominate a yellow dog and it would win. Those days are long gone, aligning the registrations with how the voting has been going for decades.

So even though registrations are a lagging indicator, do they matter? Not in terms of voting, but they matter in terms of psychology. It is encouraging for Florida Republicans to know that they outnumber Democrats by 175,000 now and dispiriting for the Democrats. Of course, that simply reflects how the votes have been going for years. Nothing has really changed except how people are registered, not how they vote.

In some states the margins go up and down wildly. Pennsylvania was D+550,000 in 2006. In the Obama years, it was D+1,000,000. Now it is back to D+540,000. Yet the actually votes haven't swung nearly that much.

Nationally, the Democrats have a huge lead, but that is because Texas and most of the South don't register voters by party. If they did, much of the national lead would vanish. The article linked to above has many tables with a detailed analysis of changes in many states.

Comparing voter registrations across states is tricky. Some states publish registration data daily and others do it annually. Some states report on every voter and others only on active voters—that is, voters who have voted in recent elections. The number of inactive voters is typically 10-20%. Also, states have different policies on purging deadwood (people who don't vote, possibly because they are dead or now living in California). Nevertheless, the bottom line here is that voter registration appears to be catching up with how people actually vote rather than indicating a shift in voting patterns. (V)

The Bill about Same-Sex Marriage is Scaring Republicans

Political parties love to force votes on bills that raise the sort of wedge issues that split their opponents' voters. One such bill that is pending now in the Senate is one that will make same-sex marriage legal in the entire country, even if the Supreme Court were to rule that there is no constitutional right to it. The bill has already passed the House.

The Republicans' problem is that their base is wildly against it but large majorities of the country (roughly 70%) are for it. Voting for it will kill them with Republicans; voting against them will kill them with independents. They would prefer the bill just goes away and leaves them alone, but Majority Leader Chuck Schumer (D-NY) apparently has no such plans. He very much wants to force Republicans to vote on it so Democrats can hold this against the naysayers in a number of races, in particular, Sen. Ron Johnson (R-WI).

One strategy Schumer could take to get to the 60 votes needed to break a filibuster is to see if he can find a handful of Republicans who are fine with the bill, such as Sens. Rob Portman (OH) and Susan Collins (ME) plus a few more who are retiring or aren't up again until 2026, by which time it will be forgotten. But even if he finds 10 Republican supporters, the other 40 will have to make a vote they don't want to.

Reporters have asked every senator how they stand on it. Nearly all of them fudged, saying they haven't had time to read the bill yet, even though the bill, H.R. 8404, is posted on the house Website for all to read. In an era where 2,000-page bills are common, this one is extremely short, only 514 words. The main point is made in one sentence: "No person acting under color of State law may deny (1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals..."

The bill does not force all states to pass laws that allow same-sex marriage. It just says that if a marriage was legally done in one state, all states must honor it. This makes the law about interstate commerce, which Congress has the unquestioned power to regulate. So if a gay couple in Idago wants to get married, they can just zip down to sunny California, get married there, and have a nice honeymoon on the beach. When they return, Idaho has to honor the California marriage.

Although the action is now in the Senate, it could also affect House races since 153 House Republicans voted against the bill. Some of those districts are at least somewhat competitive and that vote could be used against them there. (V)

The Case for Term Limits for the Supreme Court

Depending on the poll, the Supreme Court has an approval rating of somewhere in the range of 20-30%. That is not good for an institution that is supposed to be devoted to the Constitution and the law, rather than the personal political preferences of its members. There have been various proposals made to reform the Court. Some Democrats want to expand it. With 13 justices, Democratic appointees would have a majority. Then the next time the Republicans got the trifecta they would expand it to 15. Then the Democrats would go to 17 next time they got the chance. Pretty soon you could field two football teams to bash each other's brains out and have a couple of spares. This road won't get rid of the partisanship, just make it worse.

Another problem with the current system is that from now on, justices will only retire when the White House and Senate are controlled by their favorite party. Ruth Bader Ginsburg didn't get the memo, but all the current sitting justices certainly did. There needs to be a fix here. No public good is served by justices hanging on way beyond their use-by date waiting for a president they like.

A professor at the Stanford Law School, Jeffrey Fisher, has made the argument that the best fix is term limits for the justices. This requires a constitutional amendment, but if done right, in the long run it doesn't favor either political party, so it has a chance of getting passed and ratified.

The core idea is that justices would serve 18-year staggered terms with no possibility of reappointment. Every 2 years, the longest-serving justice would get a gold watch and a nice bouquet of pretty flowers and told to go write a memoir or find a job on some law faculty teaching constitutional law. This way every president would be guaranteed one nomination right after election and one two years later. A two-term president would then get four picks, making it unlikely that the Court would get too far out of step with public opinion.

The amendment could also say that nominees were automatically confirmed after 90 days unless a majority of the Senate voted them down within this period, thus prohibiting the future Garlanding of nominees. In this scheme, a party wanting to control the Court would have a clear path: win presidential and Senate elections. This is better for democracy than praying for the death of carefully selected justices within a certain time frame.

An extra benefit of 18-year terms is that presidents would not always seek out judges around 50 in the hope they will last 40 years. This might lead to older and more experienced picks.

One of the earliest proponents of this idea was Steven Calabresi, who co-founded the Federalist Society. No one would mistake him for a lefty. Since then, both conservatives and liberals have supported the idea. Also on board are Justices Elena Kagan and John Roberts, along with former Justice Stephen Breyer. Furthermore, every state except Rhode Island has either term limits or a mandatory retirement age for state supreme court justices. So do most other countries.

One point the article does not address is what to do about vacancies through death or retirement. If the president got to fill them, justices might still strategically retire when they liked the current president. One solution might be an interim appointment valid only until Jan. 20 following the next presidential election. Judges with senior status on the appeals courts might consider taking an interim appointment since they are already semi-retired. This way partisans who wanted to grab the seat would have a way: Win elections. Alternatively, the vacant seat could remain vacant until after the next presidential election.

Finally, if presidents can serve only two terms with a maximum of 10 years, why should justices get lifetime appointments? That provision was put in the Constitution when there was relatively little chance a justice would serve 30-40 years. This change is fundamentally nonpartisan and might have a chance and would probably work out better than continual expansion of the Court every time the trifecta switched. (V)

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