James.galbraith

Why Senate Republicans will probably help carry Trump's coverup to completion.

Arizona state Rep. Jay Lawrence, according to the Arizona Mirror, told people at a political event on January 16 that refugees were a problem. But not a “problem” in the way one might consider the plight of human beings needing a home because of famine or war or oppression or violence, no, more of a problem because state Rep. Lawrence is a bigot.

Explaining his enlightened position to Arizona tea party folks, Lawrence told the audience that refugees take resources out of the community and “make for lower wages for us,” while making emergency rooms more expensive (and schools too). It’s as rambling as it sounds. But, Lawrence finished strong saying he would fight any relocation of refugees into Arizona: “Call me a bigot, whatever you want, I just think it’s best for the state of Arizona.”

You, Mr. Lawrence, are a bigot.

According to the AZ Mirror, Mr. Lawrence’s wife, Judy, was at this tea party discussion and at one point melded refugees and immigrants together to show how robust her and her husband’s bigotry really is, saying that “I think it’s irresponsible to not have some sort of limit, because we are close. We are a border state, and we have already absorbed so many illegals, it’s changed the dynamics of this state immeasurably, and I think we need to be very careful how we handle that.” 

State Rep. Jay Lawrence is a big Second Amendment guy and to be clear, his “bigotry” extends past refugees, to people of color living in America already—you know, citizens. This past September, Lawrence explained that the important thing to do to control gun violence was to target people of color because they have too many firearms. So, let’s call Jay Lawrence a racist and a bigot.

Unpopular President Donald Trump had one of the most poorly attended inaugurations in recent memory. Of course, while Trump’s ego was subsequently stroked by his minions lying about the throngs of people who were supposedly excited to see him, the really important event attendees were wealthy and willing to pay for access to the newly elected white supremacist in chief. WNYC and ProPublica report that a new lawsuit claims that both Ivanka and Donald Trump were aware that their personal businesses were improperly making money by price-gouging the Trump inaugural committee.

The civil complaint, filed on behalf of the District of Columbia by D.C. Attorney General Karl Racine, details the objections of staffers to exorbitant pricing for the use of Trump’s Washington, D.C., hotel ballroom space—specifically event planner Stephanie Winston Wolkoff’s concerns, which were allegedly brought directly to then President-elect Trump and his daughter. According to the document, Donald Trump said Ivanka would handle everything and make it right.

Wolkoff’s concerns and warning via email to the Trumps—“These events are in [the president-elect’s] honor at his hotel and one of them is for family and close friends. Please take into consideration that when this is audited it will become public knowledge”—were not heeded. On Jan. 10, 2017, Trump’s inaugural committee agreed to a contract that would enrich the Trumps at a rate of $175,000 per day—more than twice the amount per day that Wolkoff told Ivanka and Rick Gates, the deputy to the inaugural chairman, should be paid—for the use of their own space. According to the lawsuit, the charges included rental fees for days when the Trumps weren’t throwing any events.

Donald has said he was too busy dealing with the transition to worry about the inauguration, and Ivanka has said she was only around for an initial meeting, but Racine has email receipts showing that Ivanka was very much privy to Wolkoff’s concerns.

The stories of financial fraud carried out by Trump and his inaugural committee have slowly dribbled out over the past couple of years. Big-ticket items are being investigated by federal prosecutors in New York, with subpoenas getting sent out as investigators try to figure out how all of this money, around $107 million from private “donors,” was being spent, and who was pocketing it. 

The complaint asks that at least one million dollars be put into a trust and “be restored to a proper public purpose by directing the funds to another nonprofit entity dedicated to promoting civic engagement of the citizens of the United States of America.”

A Central American migrant mother cares for her baby in an Annunciation House facility for migrants on May 15, 2019, in El Paso, Texas. | Mario Tama/Getty Images

“People will die because of this,” a State Department official told Vox.

The State Department has told US embassies across the world to deny visas to people they suspect are coming to the US to give birth, according to diplomatic cables obtained by Vox — guidance that gives broad discretion to consular officers and could prove dangerous to pregnant people seeking medical care.

The cable, sent Wednesday afternoon and marked “sensitive but unclassified,” turns a suspicion among immigration restrictionists that people are trying to game America’s visa system into official US policy, starting on Friday, January 24. The apparent goal is to clamp down on foreigners giving birth to children in the US who become, by birth, American citizens.

A draft of the State Department guidance was first reported on by BuzzFeed on Tuesday.

The guidance would create new barriers for pregnant people at consulates abroad applying for B visas, which are offered to short-term visitors, including tourists, business travelers, and people seeking urgent medical care.

The government does not track how many pregnant travelers come to the US on B visas, but 2017 data from the Centers for Disease Control and Prevention suggests that the new guidance would likely affect roughly 10,000 people annually.

According to one State Department official, pregnant people applying for these kinds of visas may not receive the kind of care they need in their home country or have the money to get better care in the US.

“People will die because of this,” the official, who spoke on the condition of anonymity to discuss a sensitive matter, told Vox.

Secretary of State Mike Pompeo signed off on the cable, drafted by a staffer who works on consular affairs. The State Department didn’t immediately reply to a request for comment.

Pregnant people will face new scrutiny when applying for visas

According to the cable, a US consular officer can’t ask a visa applicant if they are pregnant or intend to become pregnant. However, “if you have reason to believe the applicant will give birth during their stay in the United States, you are required to presume that giving birth for the purpose of obtaining U.S. citizenship is the applicant’s primary purpose of travel,” the cable reads.

An applicant can overcome that suspicion, according to the cable, if they demonstrate “a different and permissible primary purpose of travel,” including having already arranged for specialized medical treatment in the US. But even then, that might not be enough.

“The fact that an applicant has an arranged birth plan with a doctor or medical facility in the United States or simply expresses a preference to give birth in the United States over other locations is not sufficient to rebut the presumption that their primary purpose of travel is obtaining U.S. citizenship for the child,” the cable states. “One key factor you should consider is whether the applicant has access to reasonable medical care in or near the country where the applicant resides.”

The cable also says that a visa applicant “seeking medical treatment in the United States must demonstrate to the consular officer’s satisfaction that they have both the means and the intent to pay for all treatment-related costs.”

If someone can’t show they have the funds — a judgment ultimately made by consular officers, who are not experts in the cost of health care — it’s possible they will have their request rejected.

Subverting birthright citizenship — the constitutional guarantee to all children born in America, regardless of their parents’ nationality — has long been a goal for some of the Trump administration’s immigration hawks, including White House senior adviser Stephen Miller.

There are about 4.1 million children who are US citizens and have unauthorized immigrant parents living in the US, according to the Migration Policy Institute, a nonpartisan think tank. But in the vast majority of those cases, the pregnancies happened after the immigrants’ arrival in the US: About 90 percent of noncitizen mothers with US-citizen children gave birth two years after coming to the country or later, according to a 2011 study by the Pew Research Center.

But rather than immediately try to tackle birthright citizenship head on, the State Department cable suggests, the Trump administration is trying to stop people who might give birth in the US from entering in the first place.

The D.C. press corps is filling in where the cameras that Mitch McConnell refused to allow into the impeachment trial are absent. So we know just what a farce Republicans consider this exercise to be. And precisely why McConnell made sure the American people don't see it.

Reporter Michael McAuliff tweeted that, a few of hours into Rep. Adam Schiff's presentation "21 empty seats on the GOP side of the Senate, 2 on the Dem side. […] Some are just stretching their legs, but most are not in the chamber. Some of them have been out of there for a while." Those who were out for "for a long time"—Republicans Lindsey Graham, Jim Risch, and Bill Cassidy. Reporter Paul McLeod tweeted about McConnell's histrionics toward the end of Schiff's presentation when "McConnell threw his hands down and made a clear 'are you kidding me?' face." Republican Rand Paul, Ben Jacobs tweeted, decided to occupy his time working on a crossword puzzle. That's how much they care about the process; how much they care about their singular role in our republic.

As for Chief Justice John Roberts, it shows how seriously he's taking this whole thing, too. Because it's his job to enforce the rules, which tell them they have to give up electronic devices and stay silent and are "requested to remain in their seats at all times they are on on the Senate floor" during the proceedings.

They're all taking this about as seriously as they took that oath they swore to at the outset, to provide impartial justice.

It looks like the accurate characterization of Republican plans for the impeachment trial of Donald Trump as a cover-up is getting under some Republican skin. After Rep. Jerry Nadler dared to call a cover-up a cover-up on the Senate floor late Tuesday night, Republicans are clutching their pearls and declaring themselves offended in a blatant effort to change the subject from the cover-up to how Democrats are mean.

“It was so insulting and outrageous it was a shock to all of us,” Sen. John Cornyn huffed to CNN producer Ali Zaslav.

”They're on a crusade to destroy this man, and they don't care what they destroyed in the process of trying to destroy Donald Trump... I'm covering up nothing. I'm expose your hatred of this president, to the point that you would destroy the institution,” Sen. Lindsey Graham ranted.

Sen. Lisa Murkowski declared herself “offended.” Sen. Ron Johnson said Nadler was “insulting” and “completely inappropriate.” Senate Majority Whip John Thune called it “not helpful to [the Democrats’] cause,” a classic claim from Republicans: It’s not that they’re strenuously trying to change the subject from the facts of the case with an attack on Democrats; it’s that Democrats committed an unforced error.

Get them their fainting couches and smelling salts, now. Members of a historically norm-breaking, institution-dismantling party are just overcome with shock at someone daring to identify their actions for what they are. Or it’s all a strategy of distraction. Hmmm ...

Supreme Court Chief Justice John Roberts presides over impeachment proceedings against President Donald Trump in the Senate on January 21, 2020. | Senate Television via Getty Images

A big case about whether states must fund religious schools could go up in smoke.

Espinoza v. Montana Department of Revenue is a case about two provisions of the First Amendment that are in tension with each other: The Free Exercise Clause limits the government’s ability to deny some benefits to people of faith. The Establishment Clause restricts the government’s ability to advance religion.

The Court, as it acknowledged in a decision written nearly a half a century ago, has “struggled to find a neutral course between the two Religion Clauses.” Both are “cast in absolute terms,” Chief Justice Warren Burger wrote in Walz v. Tax Commissioner (1970), and both of them, “if expanded to a logical extreme, would tend to clash with the other.”

This clash is front and center in Espinoza, which involves a Montana program that provides tax credits to people who donate to a scholarship program for private schools. The overwhelming majority of this money went to religious institutions.

The Montana Supreme Court struck down the entire program, holding that it violates a provision of Montana’s state constitution which prohibits the state from making “any direct or indirect appropriation or payment from any public fund or monies” to churches or other religious institutions. This state supreme court decision is now being challenged before the Supreme Court of the United States.

The purpose of the state constitutional provision was hotly contested at oral arguments on Wednesday. The state claims that it was enacted to prevent the very kind of state entanglement with religion that the federal Establishment Clause warns against. According to the state’s defense of its supreme court’s decision, a ban on government funding of religious institutions serves to prevent “the government from gaining undue influence over religious schools, preserve funding for public schools, and protect the rights of taxpayers with religious objections to state aid.”

The Court’s right flank argued that this state constitutional provision was enacted for a much more nefarious purpose — in Justice Brett Kavanaugh’s words, to advance “grotesque anti-Catholic bigotry.”

For the most part, the justices seemed to retreat into familiar ideological corners during Tuesday’s oral argument. All four Democratic appointees appeared likely to side with the state in its effort to shut down the scholarship program. Justices Samuel Alito, Neil Gorsuch, and Kavanaugh, meanwhile, all appeared to view the Montana Supreme Court’s decision as an act of discrimination against religious people. (Justice Clarence Thomas, as is his ordinary practice, did not ask any questions.)

Significantly, however, Chief Justice John Roberts appeared genuinely conflicted by this case. Though he did ask one question that appeared sympathetic to his most conservative colleagues, he also suggested at one point that the case should disappear because it wasn’t brought by the proper plaintiff. He also appeared bothered by Justice Stephen Breyer’s suggestion that a victory for the Espinoza plaintiffs could fundamentally undermine public schools.

It’s impossible to predict with certainty how Roberts will approach this case, but it seems possible that he will join his liberal colleagues to say that his Court lacks jurisdiction to hear it. If the Court does claim jurisdiction over the case, Roberts’s questions at oral argument make him appear likely to side with his fellow conservatives — but on narrow grounds.

Much of the plaintiffs’ argument rests on an anachronism

The plaintiffs’ lawyers repeatedly referred to the Montana constitutional provision at issue in this case as a “Blaine Amendment.” According to the Institute for Justice, the libertarian law firm behind this case, Blaine Amendments are “controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their purpose was to prevent the government from funding Catholic schools.”

Thus Kavanaugh made the claim that the Montana Constitution is rooted in “grotesque anti-Catholic bigotry.”

But this claim is anachronistic. There was, indeed, a movement in the 19th century to restrict funding for Catholic schools, but the state constitutional provision at issue in this case was enacted in 1972.

Kavanaugh’s argument is also hard to square with the Supreme Court’s decision in Abbott v. Perez (2018).

Perez involved an unusual set of circumstances where the state of Texas enacted a legislative map that, according to a federal court, was an illegal racial gerrymander. Two years later, the state enacted a new map that kept many of the gerrymandered districts in place.

Nevertheless, the Supreme Court upheld this new map. “The only direct evidence brought to our attention suggests that the 2013 Legislature’s intent was legitimate,” Justice Alito said in his majority opinion. “It wanted to bring the litigation about the State’s districting plans to an end as expeditiously as possible.” So even if state lawmakers acted with illegal animus when they enacted a particular law, courts should not strike down a later, similar law if the new law wasn’t enacted with impermissible motives.

In other words, even if Montana previously enacted a “Blaine Amendment” for anti-Catholic reasons in the 19th century, as the plaintiffs’ claim, Perez suggests that this prior motive is irrelevant. All that matters under Perez is whether the individuals behind the 1972 constitutional provision were motivated by anti-Catholic bigotry.

The liberal justices want this case to go away

There are two fairly strong arguments that the Supreme Court lacks jurisdiction to hear this case, and many of the liberal justices spent a great deal of time pressing them.

As a general rule, federal courts may not hear a case unless the plaintiff has been injured in some way by the law that they are challenging, and unless there remains an active dispute between the plaintiff and the defendant.

The plaintiffs in this case are parents who wish to send their children to a private, Christian school. They claim that their children would receive a scholarship through the state-subsidized program if that program were still in effect, but they can’t because the Montana supreme court struck down the program.

Significantly, however, the state supreme court did not hold that the state may offer scholarships at secular private schools but not religious schools. On the contrary, the Montana court held that the program must be struck down in its entirety — meaning that secular schools also will not receive funding.

As a general rule, the Free Exercise Clause prohibits discrimination on the basis of religion, but, as Justice Elena Kagan emphasized, “there is no discrimination” now that the entire program was struck down. All private schools, whether secular or religious, are now ineligible for scholarships.

There are two remedies for discrimination. In Justice Ruth Bader Ginsburg’s words, a state may “level up” and apply a previously discriminatory program to everyone. Or it may “level down” and apply it to no one. In either event, the state is no longer treating people of faith differently than other people.

So it’s arguable that this case is moot because there’s no longer an active dispute between the plaintiffs and the state: Any discrimination no longer exists.

Justice Sonia Sotomayor raised another jurisdictional problem: A plaintiff must show that they were injured in some way to challenge a law in federal court. But in this case, the scholarships are paid directly to the schools themselves and not to individual students. Thus, she argued, it’s far from clear that the injured party brought this lawsuit.

Under Sotomayor’s approach, this case could wind up before the justices again, but only after a school files a lawsuit.

Significantly, Roberts asked one question that appeared sympathetic to Sotomayor’s view — he said that “the injury flows through the school.” As Roberts noted, “the money would go to the schools, not to the parents. And we don’t have a school in this case.”

That may be a sign that he’s inclined to make this case go away, for now.

The Court appears unlikely to accept the plaintiffs’ most radical argument

In their brief, the Espinoza plaintiffs took a deeply radical position.

The problem with a legal rule that allows the government to subsidize secular private schools but not religious ones, they claimed, is “this means that the student may be forced to choose between attending a school that accords with her beliefs or receiving thousands of dollars in government benefits.” States, they claim, “cannot condition an individual’s receipt of public benefits on her ceasing religiously motivated conduct.”

Taken to its logical extreme, this argument would undermine public education. A student faced with a choice between attending a public school or paying tuition at a religious private school may also have to “choose between attending a school that accords with her beliefs or receiving thousands of dollars in government benefits.” According to the US Census Bureau, states spend an average of $11,392 per year on each public school student.

The radicalism of this argument did not escape Breyer, who spent much of the argument warning that a ruling for the plaintiffs could lead to mandatory state funding of religious schools. Significantly, Roberts also expressed similar concerns, at one point asking the lawyer for Montana to speak to Breyer’s worries.

At another point in the argument, Sotomayor asked plaintiffs’ attorney Richard Komer whether “states are forced to give money both to secular and religious schools.” In response, Komer seemed to abandon the radical argument advanced by his brief, telling Sotomayor that “no” states are not forced to fund private education.

The outcome in Espinoza is uncertain, but there is a decent chance that this case will be dismissed on jurisdictional grounds, with Roberts crossing over to join the liberals.

Should the Court hold on to the case, the plaintiffs appear likely to win. But that victory is likely to be small. Roberts appeared to agree with Breyer that a decision mandating public funding of private schools would be untenable.

The plaintiffs, in other words, may win a decision saying that if a state decides to subsidize private schools, it must include religious schools in that program. That’s a victory for the religious right, but a much smaller one than the Espinoza plaintiffs appeared to seek in their brief.

[The Judicial Conference Doesn't Want Judges to Be Members.]

Democratic presidential candidate Pete Buttigieg makes a campaign stop in a school gymnasium on January 16, 2020, in Sioux City, Iowa. | Spencer Platt/Getty Images

Some LGBTQ voters wonder if he really represents them.

Chasten Buttigieg, husband of presidential hopeful and former South Bend, Indiana, mayor Pete Buttigieg, was slated to host a fundraiser at an LGBTQ nightclub in Providence, Rhode Island, last week.

But the campaign moved the event, scheduled for Friday night, due to concerns over a “dancing pole” at the club, according to the venue’s manager.

Campaign staff first asked workers at the club, called the Dark Lady, to remove the pole, but they refused, manager Buck Asprinio told WPRI. “It’s been here since we opened and it’s not going anywhere,” Asprinio said. “The dancer pole is part of who we are.”

Ultimately, the campaign directed would-be attendees to another event hosted by Chasten at a nearby hotel, leading to criticism from the Dark Lady’s staff.

“We guess this is what the gay candidate does to the gay community!” staff posted on the club’s Facebook page after the event was moved. “We’re open, we’re here, we’re queer, get over it!”

The Buttigieg campaign has confirmed the event was relocated but has not commented specifically on the reason. “Pete and Chasten know first-hand how important it is for members of the LGBTQ+ community to have a safe space to gather and our campaign would never do anything to intentionally disrespect such a space,” the campaign said in a statement to Vox.

But the controversy highlighted a challenge Buttigieg has faced as the first openly gay man to launch a major campaign for president: how to show solidarity with LGBTQ voters while also courting Americans who express skepticism about a gay president. Buttigieg has told his coming-out story often on the campaign trail, and he’s released an ambitious LGBTQ rights plan that includes policies to address violence against trans women of color and a national mentorship program for LGBTQ young people. But the former mayor has also been criticized for a perceived slowness to sign on to LGBTQ events or address issues affecting LGBTQ people of color — and some wonder whether a Harvard-educated, white, cisgender man will fight for the interests of people in the LGBTQ community who are none of those things.

Meanwhile, in an October poll, more than a third of voters said they were either definitely or probably not ready for a gay commander in chief. And Buttigieg continues to face the same kinds of questions about “electability” that have dogged female candidates.

“Every time a barrier is broken by some community that has never achieved X, the skepticism is there,” Annise Parker, a former mayor of Houston and president of the Victory Fund, a nonpartisan political action committee devoted to electing LGBTQ leaders, told Vox. “The only way to overcome the skepticism is to win.”

Whether Buttigieg is able to get the nomination or not, many of his supporters see in him an ability to reach out to Americans on the center and even the right who may not be well-educated on LGBTQ rights. But for others, the question is whether he’d use that ability to lift up the interests of those less privileged than him — or whether he’d leave them behind.

The Buttigieg campaign has inspired concern among some LGBTQ voters

Buttigieg has won support from some LGBTQ groups and leaders, including the Victory Fund, which endorsed him in June. “He is the definition of our mission statement,” Parker said.

But he’s also long faced questions over whether, as president, he would really represent all LGBTQ voters. His campaign was late to RSVP to the LGBTQ Presidential Forum in Cedar Rapids, Iowa, in September, BuzzFeed News reported, leading some to ask whether he would prioritize LGBTQ rights in his campaign.

“I thought he’d be the first on the list,” Iowa LGBTQ activist Elizabeth Medina told BuzzFeed. “That infuriates me. You don’t want to come to something that’s part of your community?”

Meanwhile, some have wondered whether Buttigieg has tailored his public image to appeal to straight voters, especially those who feel threatened by the idea of a gay candidate. In December, BuzzFeed’s Shannon Keating wrote of “the way Buttigieg’s campaign has packaged the world’s most straight-palatable gay narrative: He is a practicing Christian who, according to an op-ed he wrote in 2015 for the South Bend Tribune, believes being gay is no more significant an identity marker than ‘having brown hair,’ and who is safely and monogamously partnered with the first guy he ever dated (whom, he’d like you to know, he met on Hinge — not Grindr).”

Ultimately, for Keating and others, the question is how much having a gay president would matter if he didn’t challenge the biases that still leave many LGBTQ people marginalized. His candidacy is “a significant representational milestone for LGBTQ equality,” Keating writes, “but one that, behind the symbolism, offers more of the same limited promises hawked by the marriage equality and visibility movements: that one white guy’s win will be a win for us all.”

The Dark Lady controversy revives the worry that Buttigieg is trying to be palatable to straight voters

The controversy over Chasten Buttigieg’s canceled appearance at the Dark Lady played into concerns that the Buttigieg campaign was trying to portray the candidate as the kind of gay man who could win over homophobes: someone wholesome and monogamous whose husband would never be photographed near a stripper pole.

For Parker, canceling Chasten’s appearance was the wrong move, because it fed criticism of Buttigieg as “not gay enough, whatever that means.”

But she pushed back against such criticisms. “There is no such thing as a gay candidate or a lesbian candidate or a way you’re supposed to be,” she said. “They’re all individuals, and they’re running to represent their community.”

She also argued that in appearances before small groups and large audiences alike, Buttigieg “is so matter-of-fact about who he is, about the fact that he’s married to a man, it becomes subversive in his own way.”

For voters, an openly gay major candidate is, if not always subversive, then certainly new — while Fred Karger, who is gay, ran for the Republican nomination in 2012, his candidacy was not nearly as high-profile as Buttigieg’s and he did not appear in debates.

And there are indications that homophobia remains a significant force in the American electorate, with 37 percent of voters saying in an October Politico/Morning Consult poll that they weren’t sure they were ready for an openly gay president (50 percent said they were ready). In the same poll, 45 percent of voters said the country was not ready for a gay president, while 40 percent said it was.

Some voters have expressed an attitude familiar to many women who have run for office — that while they personally have no problem voting for a gay candidate, their neighbors might.

“I feel bad, because it doesn’t bother me,” one Iowa voter told Politico’s Michael Kruse in November, “but I’m sure there’s people—about Pete’s sexuality—that it’ll affect their vote.”

“Are we really ready for a gay president?” another asked. “Like, were we ready for a woman? I thought we were, but clearly we weren’t, you know?”

Supporters say Buttigieg isn’t trying to be palatable to anyone — he’s just being himself

Buttigieg’s supporters acknowledge the existence of these attitudes. “People say, ‘I have no problem with Pete, but so many other people will,’” Parker said. But the only way to test that, she said, is to “go out and win the race.”

And while critics may see Buttigieg as trying to assuage straight people’s concerns about a gay candidate — and, perhaps, becoming a kind of straight person’s gay candidate in the process — others see something more complex.

Buttigieg has used “his own personal life experience as a white gay man who carries with him a lot of privilege but also who knows the sting of stigma” as a way “to make space for all of us, not only politically but socially as well,” David Johns, executive director of the National Black Justice Coalition, which works to empower black LGBTQ people, told Vox.

For Johns, who consulted on Buttigieg’s LGBTQ rights plan as well as those of other candidates, the former mayor’s campaign still has some work to do. It has done a good job of addressing the murders of black trans women, as well as the disproportionate impacts of HIV criminalization laws on black Americans, he said. But Buttigieg’s team continues “to do a number of events in safe white spaces and safe white gay spaces.”

“They need to not only talk about the issues affecting black LGBTQ people, black trans women in particular, but to show up in partnership and relationship to them,” Johns said.

However, to the question of whether Buttigieg is “attempting to be anything other than he is,” he said, “the answer for me is no.”

The Buttigieg campaign, he noted, was one of just two presidential campaigns to show up last week at Creating Change, the top LGBTQ conference in the country (the other was Sen. Elizabeth Warren’s campaign). At the conference, Johns said, an attendee said that “they’re ready for someone to write the story about Buttigieg being the gay JFK.” Indeed, for many who are impressed with Buttigieg’s candidacy, he has a JFK-like quality, a personal charisma they believe can win over voters across demographic and ideological lines.

At the church in Houston she attends with her mother on Sundays, Parker said, “I don’t know a single other LGBT person.” But fellow congregants keep coming up to her to talk about Buttigieg.

“These little blue-haired ladies in the church who are impressed with his demeanor and his vision,” Parker said, “they’re talking to me because they clearly know that he’s gay, but that’s not the most interesting thing about him to them.”

Whatever happens with the nomination, it’s undeniable that Buttigieg has been able to use his skill as a communicator — and, some would say, his privilege — to build coalitions with straight voters who might not think a lot about issues affecting LGBTQ Americans. The question for some LGBTQ voters may be whether those coalitions also have space for them.

Protesters gathered at Boston’s Logan International Airport Monday after hearing that a foreign student was being detained and facing potential deportation. Mohammad Shahab Dehghani Hossein Abadi, a Northeastern University student, was detained and denied entry by U.S. Customs and Border Protection shortly after returning from Iran for the spring semester. Despite having a scheduled immigration hearing Tuesday and a court order to delay his removal for at least 48 hours, the 24-year-old was deported to France overnight, the American Civil Liberties Union of Massachusetts confirmed. 

“This is a young man who was given a visa,” ACLU of Massachusetts executive director Carol Rose said.  “He is a Northeastern University student. He’s trying to come back to go to school and why he’s suddenly detained and being held without access to his lawyers who are trying to reach him is really of concern.”

Abadi, also known as Shahab Dehghani, was traveling on a valid F-1 student visa, and the reason he was detained is unknown, attorneys said. “It is unclear why defendants would now decide, after conducting a full visa issuance process, that plaintiff’s student visa should be revoked,” attorney Kerry Doyle wrote in the lawsuit she filed Monday, MassLive reported. According to his attorneys, Abadi attended school for two years before returning to Iran to visit his family. While abroad, he renewed his visa, which took about a year to process; he received his current visa in 2019 and was returning to the United States for the spring semester.

Northeastern University is aware of the situation and is working to help Abadi. “We have been in touch with federal officials to learn more about this case and to provide our student with the appropriate assistance to facilitate a successful return to Northeastern,” a university spokesperson told MassLive in a statement.

A federal judge issued an emergency stay Monday on the basis that Abadi’s removal should be delayed pending a hearing in federal court in Boston on Tuesday, WBUR reported. His attorneys hoped the hearing would help them learn more from CBP on its decision to removal Abadi despite the court stay, but since Abadi was deported prior to the hearing, Judge Richard Stearns said the case is now moot. Doyle asked Stearns to reconsider, arguing that Abadi’s flight did not leave until after the stay order was issued. 

x

UPDATE: JUDGE ORDERED client to remain in the US at 9:27 p.m. According to @SenMarkey office, he was removed from the US at 10:03 p.m. CBP officers told MULTIPLE attorneys that he was removed from the plane at 9:30/9:40 p.m. THEY LIED . The Federal Judge will handle this now

— Susan Church (@SusanBChurch11) January 21, 2020

Unfortunately, the case was dismissed under a ruling that the court did not have jurisdiction to order the student to be returned to the U.S. When asked for a statement, a CBP spokesperson told CBS that the Privacy Act did not give them the “liberty to discuss an individual’s processing.” The agency spokesperson added that “CBP officers are charged with enforcing not only immigration and customs laws, but they also enforce over 400 laws for 40 other agencies and have stopped thousands of violators of U.S. law.”

Abadi’s case is not an isolated one: According to The Guardian, at least 10 students have been deported back to Iran upon arrival to the U.S. since August. “Seven of those 10 students had flown into Logan International Airport in Boston, where some of them allege serious infractions by CBP, including multiple complaints about an individual officer,” The Guardian reported. Earlier this month, Daily Kos reported that Washington Rep. Pramila Jayapal planned to open an investigation into the detaining and interrogation of Iranian Americans at the U.S.-Canada border.

So while it might be easy to blame Abadi’s troubles on the recent relationship between Iran and the U.S., it’s clear that many of these issues go back as far as August.  Additionally, the Trump administration’s “Muslim Ban,” signed by Trump in 2017 and modified in 2018, included Iran. Bear in mind that just a few weeks ago, Donald Trump ordered a strike killing Iranian Maj. Gen. Qassem Soleimani, escalating tensions between Iran and the U.S. While most Americans do not agree with Trump’s handling of that situation, Trump made statements that the action was taken in the country’s best interest. In the face of escalating tensions, things might only get worse for Iranian students and others who appear to be on the administration’s travel ban list.

“Given the Trump administration’s xenophobic policies and Logan Airport’s troubling practice of sending students back to Iran, we are deeply concerned that Shahab was detained," the ACLU of Massachusetts said in a statement. "The ACLU supports the attorneys Kerry Doyle and Susan Church in their emergency lawsuit and are working closely with them to ensure due process and justice for students with valid visas to come study in Massachusetts.“

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Lawyers in Boston after learning their client was put on the plane and deported despite the judges order to halt removal. CBP says he was already on the plane when the order came in. pic.twitter.com/J02DjvLCnZ

— Bahman Kalbasi (@BahmanKalbasi) January 21, 2020

Bush's torture program, Trump's impeachment, and the GOP's long moral descent.

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Today's News:

Being in the gold-plated, billionaire-infused reaches of Davos clearly makes Donald Trump comfortable. At an early-Wednesday press shindig, Trump scoffed at the impeachment trial that opened in the Senate on Tuesday afternoon. In particular, Trump was amused by the idea that the legislature might actually want the information he’s been withholding from both the House and the Senate—an action that’s the second article of Trump’s impeachment.

"Honestly, we have all the material," said Trump. "They don't have the material." That’s right: Trump isn’t just admitting that he’s blocking the Congress and the public from seeing critical information that reveals the truth behind the charges. He’s doing it with a big, proud middle finger delivered from a meeting of the world’s wealthiest.

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The second article of impeachment was for obstruction of Congress: covering up witnesses and documents from the American people.This morning the President not only confessed to it, he bragged about it: "Honestly, we have all the material. They don't have the material." pic.twitter.com/DPAEFHIDjS

— Rep. Val Demings (@RepValDemings) January 22, 2020

In a midnight squeaker, the Office of Management and Budget decided to obey a federal court order and produced nearly 200 pages of documents directly related to the withholding of U.S. military assistance from Ukraine. The collection of emails was turned over in response to a FOIA request from the website American Oversight, which made the information public even as the Senate was debating an amendment to seek other information from the OMB.

The emails obtained show that OMB officials were already aware of Donald Trump’s plans to suspend Ukraine aid before his “perfect” call to the president of Ukraine. Included is a planning document from political appointee Michael Duffey—one of the four people Sen. Chuck Schumer has sought to subpoena for Trump’s Senate impeachment trial—that show that the OMB was planning to bring down the hammer on Ukraine assistance even before Trump put in a demand for “a favor” in the form of political investigations.

The FOIA request had a midnight deadline. OMB avoided further court action by turning over the redacted emails with just two minutes to spare.

Included is a document prepared on the evening of July 24, hours before Trump’s phone call to Ukrainian President Volodymyr Zelensky. This "Ukraine Prep Memo" was sent to Duffey, but just what it says isn’t clear—because almost all of the email is hidden behind redactions. Which shows that, important as these FOIA requests may be, they’re no substitute for a subpoena.

What can be seen is that Duffey responded to a Department of Defense announcement in June and communicated with OMB official Mark Sandy to discuss Ukraine assistance. And the two of them said … redacted. Duffey spent some time reviewing public announcements of DOD’s approval of Ukraine assistance, and the announcement that it was prepared to provide material to Kyiv. Then he and Sandy discussed the topic again, saying … redacted. They worked out a draft of a note to go back to DOD, the contents of which are … redacted. And all through the day of Trump’s call, they passed versions of their note around the OMB—a note that remains fully redacted. With the names of most of those who received the note also redacted. In all, there are more than a dozen emails zipping around the OMB on July 25 alone, with Duffey seeking to meet with the general counsel’s office and dispatching notes to unknown recipients. But the contents of those emails is completely—completely—redacted.

Which isn’t so much a FOIA response as it is a teaser reel. It’s possible to see that Duffey was keeping an eye on Ukraine issues in the days before Trump’s call, and that he reviewed what appears to be every public release of information from the DOD, as well as how that information was being reported in the press. Then, in the period directly around Trump’s call, Duffey opened a floodgate of communication on the Ukraine topic to every point of the OMB compass and to other officials in unknown agencies. With even most of the recipients of the emails redacted, it’s impossible to tell which higher officials were in the chain.

And, while it’s certainly easy to guess that Duffey was telling everyone to stay quiet on Ukraine as Trump began an illegal hold on assistance, none of that really leaks past the black boundaries, as every single word of substantive content at this point is hidden.

The pattern continues into August, with every substantive word and most of the recipients in the exchanges still redacted. However, Duffey continued to send dozens of notes, and to complain about the “challenges” he was facing on the Ukraine issue. And while the redaction hides any recipients of the notes within the DOD, one in-the-clear line notes that Duffey had some questions from the DOD, showing that the department was involved in the back-and-forth.

There is some information from a presentation available deep in the exchange. It shows that Duffey was communicating with the DOD about shifts in both the “commitment date” and the “obligation date” for the assistance to Ukraine. It also shows that everyone was aware that deadlines were looming that would render the assistance legislation moot. But much of this presentation has been blacked out to leave nothing but the dates, disguising real topics of concern.

Sixty-four pages in, there is a document from Duffey indicating that “we have no interest in delaying any action up until just before the obligation date,” but the statement is made in response to a request that’s been redacted, and the remainder of the sentence is redacted. It appears that Duffey is saying that the DOD should continue to prepare as if the aid would be provided … but it is far from clear. Similarly, there’s an indication in one email that funds “will go into the system” and be obligated on Aug. 19, but since Duffey’s reply to that statement is redacted, it’s impossible to tell if he agrees with that move or acts to stop it. In fact, looking at the connection between that note and another on Aug. 17, it seems possible that the funds under discussion are not even allocated to Ukraine.

Overall, what can be learned from the emails is that Ukraine was the subject of a furious exchange on the day of Trump’s phone call and was a frequent target of Duffey’s concern from June right up until the whistleblower report on the issue was made public. Duffey’s clear interest in the DOD announcement and his review of publications that followed the announcement show that he was looking at how much information had been released, which fits with other information showing that he not only helped clamp down on the assistance, but also told military officials to go quiet on the subject of Ukraine.

However, the biggest thing that can be learned from the FOIA response is that Duffey and the OMB absolutely thumbed their noses at the federal order. Technically they’ve “responded” to the request. Practically, they’ve done so by releasing no more than a collection of email headers and occasional sentences that reveal more about when Duffey was having lunch than about Ukraine assistance.

President Donald Trump said today the U.S. has a deadly Chinese coronavirus “totally under control” and there are no worries of a pandemic.

The virus, which sickened more than 400 people and killed at least 17 since December, has spread to four countries including the U.S., where the first case was reported in Washington state on Tuesday. Much is unknown about the contagion, but U.S. officials confirmed Tuesday it can be spread from human-to-human contact.

“We have it totally under control. It's one person coming in from China,” Trump said on CNBC's "Squawk Box." “It’s going to be just fine.”

The Centers for Disease Control and Prevention anticipate more cases of the virus both in the U.S. and globally, Nancy Messonnier, director of CDC's National Center for Immunization and Respiratory Diseases, told reporters Tuesday. Still, she said U.S. officials believe the risk to the American public at large is low.

The World Health Organization is convening an expert panel today to discuss whether the Wuhan virus should be designated "public health emergency of international concern," a rare step aimed at getting more money and resources from global donors to fight an outbreak.

The emergency designation has been used just five times: against polio, the swine flu, the Zika virus and two recent Ebola virus outbreaks in Africa.

European regulators today bumped the risk of importing the virus to the region up from “low” to “moderate” after experts confirmed it can be spread from person to person.

The presidential impeachment trial now underway in the Senate—only the third in U.S. history—is, at its heart, a referendum on the constitutional powers of the executive branch: Did Donald Trump abuse his presidential powers by seeking dirt on a political opponent in exchange for foreign military aid and then block the subsequent investigation? But in some respects, Congress is also on trial—not for overstepping its constitutional powers but for undervaluing them.

Ever since Trump took office and he began to push the boundaries of constitutionally permissible behavior—beginning with the Muslim ban and the firing of his FBI director, right up to declaring a state of emergency to fund his border wall—people have asked versions of the question: Can he do that?

But it’s the wrong question. The right question is: When he does that, what’s the consequence? If the answer to the second question is “nothing,” then the answer to the first question is “yes.” Without actual enforcement and consequences, then rules—even ones laid down in a document as revered as the Constitution—become meaningless.

There are two branches of government that can apply those consequences—Congress and the courts. But like a parent who fails to discipline an unruly child, Congress has allowed its own authority to lapse or crumble—on impeachment, on war powers, on oversight and on budgetary matters. And that squandered power has shifted to the executive branch. Indeed, one can argue that Congress, by failing to enforce its own prerogatives, is effectively rewriting the Constitution. These de facto constitutional amendments, largely occurring without the public’s awareness, are of staggering importance. And they may well turn out to be just as permanent as if they had been ratified by three-quarters of the states.

Many people blithely expect that things will simply go back to normal when, inevitably, a new president is elected. Democrats assume a return to discipline with a new president, and Republicans assume that a Democrat in the White House will cower in the face of renewed oversight. But that is not the way this works. Presidents, even well-meaning ones, generally don’t give back power that they have inherited; they expand on it. The prospect of what a president with evil intentions might do with unlimited power should concern us all, no matter our political allegiances.

This crisis has been a long time coming. Abraham Lincoln used his wartime authority to call out a 75,000-person militia, close post offices to perceived traitors, spend millions of dollars without congressional appropriation and change the legal status of enslaved African Americans in Confederate states by executive order, a move known as the Emancipation Proclamation. On his first day in office, President Franklin D. Roosevelt began regulating the economy by declaring a “bank holiday” to prevent runs on cash deposits. With the New Deal, Congress for the first time delegated massive swaths of legislative authority to regulatory agencies housed within FDR’s executive branch. Harry Truman used his presidency to enlarge the national security apparatus. And the pace of the erosion has again picked up in the past two decades, beginning with post-9/11 concessions and continuing through the Obama years.

But a quarter-century of intensifying partisanship and party-first thinking has brought us to a moment of historic peril in which presidential overreach and congressional deference have combined in ways that seem to affect almost every aspect of the interrelationship of the legislative and executive branches. Impeachment, of course, is foremost among the constitutional friction points the government is confronting, but given the continuing tensions in the Middle East, war powers is easily a close second place. There are at least another four fundamental areas in which Congress’ has failed to vigorously defend its own enumerated powers: emoluments, advice and consent on appointments, budget appropriations, and even the basic power to pass legislation with the force of law. In each case, Congress, either slowly over time or in a sudden collapse, has acted in a way that has redefined a government that increasingly exists only in textbooks.

‘The sole power of impeachment’

Indictments and criminal trials of presidents aren’t permitted—not because the Constitution says so but because the Department of Justice does.

The DOJ’s memos are essentially statements of an internal policy directing federal prosecutors to ignore presidential criminality on the rationale “that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” The first DOJ memo surfaced while President Richard Nixon was under scrutiny for crimes that ultimately led to his resignation. The second expanded upon the original memo’s legal rationale on behalf of President Bill Clinton—one of three presidents in the history of the United States to be impeached by the House of Representatives—concluding that the burdens imposed on a president are too weighty to sustain the distractions of a criminal trial.

The memos mean that the only way to hold a president accountable while in office is through impeachment. And this is where Congress has managed over the past two decades to effectively disarm its most powerful weapon of presidential oversight.

The Clinton narrative is familiar by now. He lied in a civil deposition and, later, to a grand jury about his extramarital affairs. Clinton’s articles of impeachment cited perjury and obstruction of justice, which are crimes under federal and state law. But his lies did not operate to enhance his own power or his ability to hang on to power in the next election. Clinton’s infidelity and cover-ups were not exactly a “violation of some public trust,” as Alexander Hamilton described the political offenses that would justify impeachment. The Clinton impeachment thus established a constitutional precedent that a crime without an abuse of office is insufficient to justify removal from office.

For Trump, the very opposite is in play: an alleged abuse of power—and thus the public trust—by withholding a White House meeting and $391 million in Senate-approved aid to Ukraine unless and until President Volodymyr Zelensky announced an investigation into Joe Biden. The Government Accountability Office announced Thursday that withholding this congressionally approved aid was illegal.

Although obstruction of Congress is a crime, the second of two articles of impeachment approved by the House of Representatives does not expressly charge it as such. If Trump—like Clinton—is acquitted after a Senate trial, as expected, the affair will set a precedent that an abuse of office and actions that likely amount to a crime are likewise insufficient to justify removal of a president from office.

There was an alternative path that House Democrats could have pursued that would have asserted their rightful powers. They should have moved to compel Trump’s compliance with their information requests by using the third branch of government: the judiciary. By sleeping on Congress’ legal right to information bearing on impeachment, House Democrats failed to enforce the impeachment prerogative in the Constitution itself. The result is a feckless arm of presidential oversight and a message to future presidents that the Constitution’s impeachment clauses are unenforceable and therefore meaningless.

If the public cannot see justice done through the judicial branch because of a DOJ memo, then impeachment must be available. But without access to underlying facts by virtue of presidential obstruction, impeachment is effectively unavailable as well. The Trump administration’s intransigence does not excuse Congress for failing to exercise its independence. Senate Majority Leader Mitch McConnell’s announcement that he works for the president—not his colleagues in Congress—when it comes to the Senate’s Article 1 impeachment prerogative only seals the fate of impeachment itself as a meaningful check on the presidency.

A chicken-and-egg quandary

Donald Trump’s targeted killing of Iranian Major General Qassem Soleimani this month was done without congressional knowledge, let alone consent—reviving a chicken-and-egg quandary that has hovered around the constitutional war powers for many decades. A plain reading of Article 1 suggests that, by giving Congress the power to declare war, the framers of the Constitution explicitly denied the president that power.

But time and precedent, not to mention the formation of a gargantuan standing military unimagined by the framers, have conspired to shift war-making power to the White House.

In the Soleimani strike, Trump complied with the law but kept the notification classified, prompting House Speaker Nancy Pelosi to complain that “this initiation of hostilities was taken without an [authorization of the use of military force] against Iran, without the consultation of the Congress and without the articulation of a clear and legitimate strategy to either Congress or the public.” Democrats in the House and the Senate have introduced legislation to prevent funding for military efforts in Iran or to require approval from Congress for additional hostilities, but such measures are no match for the weight of history.

Since 1789, Congress has declared war 11 times—not including the Civil War, which happened at Lincoln’s direction—most recently against Bulgaria, Hungary and Romania in World War II. Since then, the United States has entered into numerous significant conflicts—including in Korea, Vietnam and Iraq—without official declarations of war by the U.S. Congress. For the Korean War, Congress did weigh in by approving funding and extending the draft. More recently, Congress enacted broadly worded authorizations for use of military force to legalize presidential military campaigns. In 2004, a plurality of the Supreme Court in Hamdi v. Rumsfeld treated Congress’ AUMF in response to the Sept. 11 attacks as constitutionally sufficient to justify President George W. Bush’s pursuance of the second war in Iraq, which wound up having nothing to do with avenging 9/11.

But while history has tolerated presidents’ initiation of military conflicts without formal declarations of war by the legislative branch, Congress is not out of the war-making picture. It is significant that the Constitution gives Congress the power to appropriate money to the military, as there was no standing army or navy at the time the Constitution was ratified. A president of the early 1800s would have had to consult Congress to use significant military force, therefore, with or without a formal declaration of war.

Congress underscored its oversight role in 1973, when—over Nixon’s veto—it passed the War Powers Resolution “to fulfill the intent of the framers of the Constitution ... and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities.” The statute requires the president to report to Congress within 48 hours of taking military action “the circumstances necessitating the introduction of United States Armed Forces.” Congress then gets 60 days to approve or reject it. But Congress has never once exercised its prerogative to suspend military actions it found imprudent.

Citing prior presidents’ uses of force, a Bush-era memo from DOJ’s Office of Legal Counsel took the position that the president can order military action “as Chief Executive and Commander in Chief” without the consent of Congress. Under the same authority granted President George W. Bush, President Barack Obama conducted military actions in Afghanistan, Iraq, Pakistan, Yemen, Syria, Somalia and Libya—including against ISIS, a group that did not even exist when Bush signed the AUMF into law on September 18, 2001 . Although Obama asked Congress to update the authorization, nothing happened. The request was too polarizing and politically risky for lawmakers.

According to a study conducted at Brown University, the United States has “spent and obligated” nearly $5.9 trillion in post 9/11 wars , which have contributed to approximately 500,000 civilian and military deaths. The U.S. military has been fighting al Qaeda in Afghanistan without interruption for 18 years and while its counterterrorism activities have expanded to 39 percent of the world’s nations. Congress has let this happen without calling significant public hearings—similar to the Fulbright hearings on Vietnam in 1966—on how the wars were justified and carried out.

Short of starving the military of funding through its appropriations power—which is unrealistic because it would expose the United States to untold danger—Congress has scant power over the president when it comes to military conflicts anymore.

The Power of the Purse

Congress has also belittled itself by allowing the president to flout its appropriations power.

Just last week, the nonpartisan U.S. Government Accountability Office issued a decision declaring illegal Trump’s directive to withhold funds appropriated by Congress to the Department of Defense for security assistance to Ukraine. Because “the President is not vested with the power to ignore or amend any such duly enacted law,” the GAO reasoned, the deferral of funds was improper as a matter of law. “Here, there was no external factor causing an unavoidable delay. Rather, [the Office of Management and Budget] on its own volition explicitly barred DOD from obligating amounts.”

Setting aside whether such conduct warrants removal from office, it’s astonishing in its own right that congressional Republicans backing the president have no qualms with decommissioning a key lever of their own legislative oversight authority under the Constitution: the power to decide, on voters’ behalf, how the other branches get to spend taxpayers’ money.

By the same token, Trump tried—and failed—to get Congress to appropriate money to build his promised wall at the southern border. His failure marked an affirmative “no” from Congress on the use of federal dollars for that purpose.

But Trump went around Congress, declared a national emergency, and then diverted funds appropriated for other purposes to build his border wall. The Trump administration engaged in some legal gymnastics to justify this switch, but that’s beside the point. A majority of both chambers voted in favor of a resolution to end the emergency. But by a 36-53 vote, the Senate failed to override Trump’s veto. Once again, Republican lawmakers undermined their own branch’s constitutional authority by backing Trump on this.

To be sure, in most instances, Congress will still decide where dollars go. But when there’s a conflict between Congress and the White House, the Trump precedent means that presidents might simply ignore the Constitution’s mandate that Congress decide how money is spent and do as he or she pleases.

Blocking pay-to-play schemes

Before Trump, most people had never heard of “emoluments.” But the Constitution actually contains two emoluments clauses—one foreign and one domestic—whose purpose is to ensure the presidency doesn’t become a pay-to-play enterprise. Boiled down, the foreign emoluments clause means presidents can’t accept goodies from foreign governments absent Congress’ approval, period.

But as we know, Trump is the first president in history to refuse to legally separate himself from his business interests—including his branded luxury hotel chain and related enterprises— to avoid conflicts of interest, both literal and perceived. President Jimmy Carter put his family peanut farm business in a blind trust, Nixon sold most of his assets when he assumed office, and President John F. Kennedy put relevant portions of his sizable fortune into a blind trust. Although federal laws banning officeholders’ financial conflicts of interest do not bind presidents, pre-Trump presidents behaved as if they did. Up until now, moreover, Congress seemed to agree. In 1979, Republicans even hired a special prosecutor to investigate whether Carter had misused the family peanut farm as president, albeit to no avail.

A number of emoluments-related lawsuits against Trump have been threading through the federal court system—including one filed by over 200 House Democrats—with varying success. Courts are loath to get involved in disputes between the political branches that smack of pure politics, particularly when, as now, Congress has failed to use its constitutional powers to enforce the Constitution.

No proposed legislation has emerged from either chamber as a result of Trump’s self-dealing through holdings that include the Trump International Hotel in Washington—which Lev Parnas, an associate of personal Trump lawyer Rudy Giuliani, recently called “a breeding ground” and “one big cesspool” for those seeking access to the president, including members of Congress. In October, a House Rules Committee resolution disapproving of Trump's emoluments was scrapped once he stepped back plans to hold the next G-7 summit at the Trump National Doral Resort in Miami. Although the viability of the emoluments clauses remains a battle worth waging in the courts, if it goes nowhere, the Constitution’s express emoluments bans will become obsolete, if they aren’t already.

Loyalty to president, not the public

The Constitution’s “advice and consent” clause implicates a less often discussed aspect of Ukraine-gate: Trump hand-picked his personal lawyer, Giuliani, to engage in foreign policy toward Ukraine.

Giuliani was not nominated for a State Department post, let alone confirmed by the Senate. Unlike Senate-confirmed appointees, Giuliani did not take an oath of office to uphold the Constitution and the laws of the United States. Neither is he under contract with the federal government, which would permit him to be dismissed or sued for failing to comply with the contract terms.

After voting on the articles of impeachment, House Democrats publicly released a letter produced by Parnas confirming Trump’s outsourcing of the State Department to his private fixer. In the letter, Giuliani requests a meeting with the Ukrainian president “as personal counsel to President Trump and with his knowledge and consent.” This news is unsurprising. Giuliani has long made clear that he does not work for the American people. His sole loyalty is to a single man: Donald Trump.

Although presidents have utilized private emissaries in the past (FDR famously tapped Harry Hopkins as an envoy to Josef Stalin and Winston Churchill during World War II), what’s different about Giuliani is the very reason that Trump was impeached by the House in the first place: Giuliani’s “diplomacy” operated to the exclusive benefit of Trump-the-man and was in fact at odds with the interests of the United States as reflected in decades of established policy toward Ukraine. What’s best for the United States is to promote democracy in Ukraine by staving off Russian aggression. What Giuliani did (and apparently continues to do) for Trump was in fact good for Russian President Vladimir Putin, not the American people.

Had Giuliani been duly nominated and subjected to Senate confirmation hearings, the American people would have had a chance to hear and weigh in on whether this is the kind of person and policy they want representing them. By allowing Trump to select a crony to conduct a shadow foreign policy that conflicts with America’s interests, Senate Republicans are poised to destroy their own constitutional power to check presidents’ appointments of principal officers within the executive branch.

Laws aren’t optional

In a rule-of-law system in which no one—including the president—is above the law, the assumption is that individuals and institutions comply with federal laws passed by Congress or face the consequences. For most people, those consequences may include monetary fines, a loss of a government benefit, prison or even execution. But under Trump, Congress’ power to make laws that are heeded by the president is also under siege.

Consider the Ukrainian scandal itself. A whistleblower lodged a legal complaint. That complaint was investigated by federal authorities, and those authorities recommended that the complaint be sent to Congress. The relevant statute states that the director of national intelligence “shall” turn the complaint over to Congress if the intelligence agencies’ inspector general deems it credible and a matter of “urgent concern.” Those criteria were unequivocally met here. Yet after consulting with the White House and DOJ, the office of the director of national intelligence decided not to reveal it to Congress. Trump’s team treated the federal law as optional, but so far Congress has taken no steps to probe that offense, which would at a minimum entail hearing directly from the people within the president’s chain of command—including Attorney General William Barr—who made the decision to disregard federal law. There’s no reason to expect that Trump—and his successors—won’t do it again.

The constitutional question of the moment is this: What tools—if any—remain available as a check on the office of the presidency? The text of the Constitution itself does not have the answers, but history suggests that the number is very few. Americans need to know this. Whether we do anything about it is another matter.

At the end for Richard Nixon, after all the mounting evidence in the Watergate scandal, after both special prosecutors, after all the White House indictments, after the guilty pleas, after the obstruction efforts fell apart, after all the court fights, after all the damaging revelations in outlets like the Washington Post, Time and the Los Angeles Times, after all the impeachment hearings, it all came down to Barry Goldwater.

It’s easy, nearly 50 years after Watergate, to forget that Nixon’s ignominious departure from the White House was hardly a foregone conclusion. The Republican Party had stuck closely with Nixon even through the darkest days of the Watergate scandal; even as its lawmakers whispered behind closed doors about his guilt and even as public opinion polls showed Nixon dragging down their party, they had toughed it out—past the indictments of his top aides, past the courts batting back one attempt at obstruction after another, even after Nixon’s attacks on and ultimate firing of the special prosecutor targeting him.

It wasn’t until August 6, 1974, at the regular Senate Republican Conference lunch that Barry Goldwater fumed to his colleagues: “There are only so many lies you can take, and now there has been one too many. Nixon should get his ass out of the White House—today!”

Hours later, he ventured to the White House to tell Nixon to resign.

And, amazingly, Nixon did. For Nixon knew that when Goldwater threw in the towel, it really was over.

Examining this critical turning point in Nixon’s presidency and the arc of the larger Watergate scandal carries with it today important lessons about the impeachment trial President Donald Trump is now undergoing. It also raises the all-important question of whether there’s a Barry Goldwater moment ahead in Trump’s future. Is there even a figure in the GOP left today to carry such a message to a White House under siege? Is there even a figure in the GOP whom Trump respects enough to listen to?

Goldwater arrived at the White House with sufficient gravitas, along with the minority leaders of the House and Senate, two other top Republicans, to convince Nixon it was over.

Goldwater’s journey carried such weight because, of course, the former standard-bearer of the GOP was no RINO. As the presidential nominee for his party in 1964, his bellicose rhetoric at the height of the Cold War had led Lyndon Johnson to run one of the most devastating and famous political ads of all time against him—the famed “Daisy” ad, which juxtaposed a young girl counting petals in a field of flowers with the ominous voice of a nuclear launch countdown before the whole scene was engulfed in a spreading flash and mushroom cloud. The ad played on voters’ fears that Goldwater would lead the nation into nuclear Armageddon, and it helped contribute to Goldwater’s loss by what was then the largest margin in history. The two men had quite a history; at the 1964 convention, Nixon had introduced Goldwater to the roaring crowd as “Mr. Conservative,” and Nixon had campaigned for the GOP nominee across the country that fall. Despite what was clearly going to be a landslide loss, Nixon had stood by Goldwater. He knew he was the heir to Goldwater’s supporters and did not want to alienate them. Indeed, they flocked to him four years later in his own presidential run.

Goldwater’s words to Nixon carried weight too, because the Arizona senator at first had not been particularly troubled by the Watergate break-in. It wasn’t until spring 1973 that he first expressed his misgivings about Nixon’s handling of the case to the president—urging him to mount a stronger defense and be up front about what had happened. In April 1973—with still more than a year of the scandal to go—Goldwater had said in an interview with the Christian Science Monitor that even though Nixon was doing a “hellova job” in the White House, the scandal was beginning to stink. “There’s a smell to it,” he said. “Let’s get rid of the smell.” In private, he was even more blunt: Writing to a friend in May, he said, “I am so fed up with Watergate and all the lies.”

By the end of the year, as the president’s stonewalling had continued and his political position deteriorated, Goldwater had more choice public words for Nixon. “He chose to dibble and dabble and argue on very nebulous grounds like executive privilege and confidentiality when all the American people wanted to know was the truth,” he again told the Monitor. “I hate to think of the old adage ‘Would you buy a used car from Dick Nixon’ but, that’s what people are asking around the country.”

Still, even as some leaders complained about Nixon in the press, the GOP largely gave Nixon every benefit of the doubt it could—partly because Nixon’s conservative base had stuck with him. In words that will ring true for today’s proceedings as well, historian David Greenberg outlined in his book Nixon’s Shadow how personally the president’s supporters viewed the impeachment proceedings. “During the upheaval of the late Sixties and early Seventies, millions of Americans believed that their time-honored values were being swept away by an insurgent left. Impeaching a president … was to Nixon’s supporters a metaphor,” Greenberg explained. “To them, the attack on Nixon was an attack on their mores and way of life.” It was a message reinforced each day by the White House, as Ron Ziegler and the press operation made the case that Richard Nixon was Victim No. 1.

That loyalty from the base to Nixon had caused the GOP to stand strong in the face of Watergate, even as the news worsened, the indictments piled up, and the “smell” worsened. The most loyal even created the National Citizens’ Committee for Fairness to the Presidency (NCCFP), the day’s equivalent of a super PAC, to promote the president’s defense in ads.

The Saturday Night Massacre, when Nixon ordered the firing special prosecutor Archibald Cox and precipitated the resignation of his attorney general and deputy attorney general, actually fired up and solidified his base, even though a majority of Americans disapproved. Even as the House Judiciary Committee moved to begin formal impeachment hearings in the wake of Cox’s firing and his Arizona congressional colleague Morris Udall called for Nixon’s outright resignation, Goldwater said that he thought Cox’s investigation “was getting little far afield” and that he wasn’t yet troubled by the president’s behavior himself: “I can’t see anything that’s happened that would cause either [the House or Senate] to vote for impeachment.”

In January 1974, Goldwater lashed out at the “liberal communists” and the media, saying, “[They’re] trying to egg me into saying, ‘Resign, Mr. President,’ and I’m not about to do it.” As Goldwater said, “I don’t want to go down in history that way.”

Goldwater admitted that Nixon and Watergate might be disastrous for Republicans in the 1974 election—shaving off perhaps 10 percent of the GOP vote, by his estimate—but that the party still had to stand with its leader. (The political headwinds for the party proved real: The GOP lost four of the five special congressional elections as the year unfolded.)

It wasn’t until the Nixon tapes began to seep out, both by court order and through the White House’s own attempts to publish cleaned-up transcripts, that the GOP’s support of Nixon began to seriously erode. And yet Goldwater and his fellow GOP leaders still wavered; as late as May 1974, he attended a Nixon rally in his home state where the president declared, “The time has come to get Watergate behind us and get on with the business of America.” The 14,000 fans—the Nixon base—in the arena cheered.

Yet as the summer unfolded, it became clear Nixon was a lost cause. On July 27, the House Judiciary Committee passed its first article of impeachment. Two days later, it passed a second, then the next day, a third.

And then the end—on August 5, 1974, under court pressure, the White House released the transcript of what came to be known as the “smoking gun” tape, conversations from June 23, 1972, just days after the Watergate burglary, that made clear that Nixon had tried to cover up the bungled bugging attempt. The Republican members of the House Judiciary Committee who had earlier opposed the impeachment articles announced they would support it on the House floor.

Goldwater, too, was personally angered by the way the president had betrayed his party—asking for their support even as he lied about the revelations to come. But even as he assumed the role of signing Nixon’s presidential death warrant, Goldwater was not happy about his duty; before he left for the White House, he went to the Senate floor and raised his fist to the press gallery above, exclaiming, “You are a rotten bunch!”

Goldwater, with the House and Senate minority leaders, entered the White House basement and arrived at the Oval Office around 5 p.m. on August 7. “Mr. President, this isn’t pleasant, but you want to know the situation and it isn’t good,” Goldwater said. The congressional leaders estimated that in the Senate, just 15 to 18 GOP members would vote to acquit Nixon in an impeachment trial. That level of support wasn’t even necessarily firm, they cautioned. It could get worse. The message was clear: It was time to resign—or he’d likely face removal in a Senate trial.

“Damn grim,” Nixon said.

At 5:42 p.m. Goldwater walked outside to the press cameras at the White House and reported, “Whatever decision [Nixon] makes, it will be in the best interests of our country.”

The next evening, Nixon announced his resignation in an address from the Oval Office. The long national nightmare was over.

As the impeachment trial opens for Trump in the U.S. Senate, it’s worth wondering how and when—and if—such a dramatic moment could unfold today.

Three things auger against the idea that a Goldwater exists today or that a similar moment awaits us in the weeks ahead: First, while Nixon may appear to be similar to Trump—a lonely, brooding, solitary figure—he was at the same time a creature of his party and of Capitol Hill, a man who had learned and worked the levers of power in Congress and grown up alongside the representatives who now sat in judgment on him. Nixon was so central to the GOP, in fact, that Goldwater’s 1964 run had been the only presidential campaign ticket between 1952 and 1972 that Nixon did not appear on himself. Thus, when Goldwater and the House and Senate minority leaders made that journey to the White House in early August, Nixon was talking to people he fundamentally respected. It’s hard to think of any member of the GOP in the House or Senate today that could elicit the same level of respect from Trump.

If Mitt Romney shows up at the White House and demands Trump’s resignation, does anybody—least of all Mitt—think Trump would listen or care?

Second, the Republican Party itself is deeply different than it was in 1972. It is more uniformly conservative than the GOP of the 1970s, and allegiance to Donald Trump is the sine qua non of GOP membership. Today, the moderates are gone in both parties. Trump has already chewed up and spat out of the party the #NeverTrumpers and the “elder statesmen”—types like former Tennessee Sen. Bob Corker. Not even electorally vulnerable senators like Susan Collins have had meaningful breaks with Trump on key votes. Even more importantly, the GOP was fully a minority party in 1974, controlling neither the House nor the Senate, whereas Mitch McConnell as Senate majority leader has a much stronger hand to play in the trial as it unfolds. McConnell can tamp down and de-emphasize the impeachment trial as much as he wants.

Third and perhaps most definitively, resignation was already in the air by the time Goldwater threw in the towel himself. In 1974, party leaders like Republican Sen. Howard Baker felt they had a duty to take the impeachment inquiry seriously—and, as time passed, expressed their own doubts—in sometimes halting terms—about whether Nixon was truly innocent. Since the end of 1973, aides and members of Congress—even Nixon’s own lawyers—had repeatedly told Nixon that they believed his position, presidency and moral authority were growing increasing untenable. The seeds had already been planted.

For all of the whispers of the 25th Amendment, from Rod Rosenstein or others, for all of the high-profile insult-laced tirades and verbal sparring matches Trump has gotten into with aides, staff and Cabinet secretaries, there have been no reports that resignation has ever been an option formally suggested to Trump.

As Trump’s circle has tightened and he’s expelled heavyweights like John Kelly, Jim Mattis, H.R. McMaster and Rex Tillerson, replaced them with ultraloyalists like Mike Pompeo and Bill Barr and downgraded and sidelined voices like Mick Mulvaney, it’s not clear that any outside adviser could or would offer any hard, straight talk to the president about the ongoing damage he could cause the country. And it seems clear that Trump’s family remains fully in his corner, too. Similarly, his announcement Friday that his impeachment legal team would include Ken Starr, Robert Ray, Pam Bondi and Alan Dershowitz seems to make clear that the president is surrounding himself with public pugilists rather than sober legal minds with the nation’s best interests in mind.

Moreover, and perhaps most troubling, while at the end of the day, Nixon cared about the office of the presidency as a historical institution and moral force in America, there is no sense today that Trump separates his own interests from the office he holds.

As Goldwater hinted to the cameras after their Oval Office meeting, Nixon understood that the presidency was an office one held for only a period of time, a role that had begun long before he arrived at the White House and one that he hoped would continue long past his two terms.

Unfortunately, it’s not clear that Trump cares what shape the presidency is in when he leaves office, whenever that will be.

Read 8 remaining paragraphs | Comments

The impeachment trial of Donald Trump started on Tuesday with debate on trial procedures—namely, Senate Majority Leader Mitch McConnell's carefully planned cover-up. The debate has been conducted by the House impeachment managers and Trump’s defense team. On Tuesday McConnell released a slightly relaxed version of the dark-of-night procedure he initially proposed, but make no mistake that he and Trump’s team continue to press for a cover-up.

Republicans have voted down one Democratic amendment after another. The House impeachment managers have been eating the Trump defense team’s lunch on both substance and style, but Republican senators do. not. care.

Wednesday, Jan 22, 2020 · 3:13:42 AM +00:00 · Barbara Morrill

Ongoing coverage can be found here.

Wednesday, Jan 22, 2020 · 2:14:32 AM +00:00 · Mark Sumner

Cipollone sets up jeffries with a “do nothing Dems” comment, which allows Jeffries to bomb the Senate chamber with the number of bills that have been sent to rot on McConnell’s desk.

Then Jeffries picks up on a “why are we here” comment from Sekulow and uses it to rip him a new one. By God that was satisfying.

Wednesday, Jan 22, 2020 · 2:19:42 AM +00:00 · Mark Sumner

Schiff up again. As the day goes on, the lopsidedness of the recitation of facts on the Democratic side, and the sluggish repetition of the same debunked talking points on the Republican side only seems to become more apparent.

And while Schiff seems fresh, Sekulow seems ready to topple off the stage.

Wednesday, Jan 22, 2020 · 2:21:33 AM +00:00 · Mark Sumner

x

Hakeem Jefferies ends his comments by quoting by quoting Christopher Wallace:"If ya don't know, now you know."

— Tim Mak (@timkmak) January 22, 2020

Wednesday, Jan 22, 2020 · 2:24:08 AM +00:00 · Mark Sumner

McConnell searches for what he’s supposed to say … remembers that he’s asking to table the motion on Mulvaney. And here we go again with a vote.

BTW, we may not be down to just witness subpoenas. Schumer may ask for documents from still more departments. They’ll have this whole case laid out before the night is over.

Wednesday, Jan 22, 2020 · 2:31:30 AM +00:00 · Mark Sumner

McConnell tries to get Schumer to stack his requests, asking them all at once. Schumer makes it clear that he’s willing to move some votes to tomorrow, but won’t submit them in a heap. Schumer suggests they could continue tomorrow (Yes, please).

McConnell forces a quorum vote.

Wednesday, Jan 22, 2020 · 2:33:47 AM +00:00 · Mark Sumner

Schumer is standing by with a request for documents from the Defense Department along with requests for more individual subpoenas. Justice Roberts has a case to hear in the morning. It will be interesting to see if McConnell agrees to continue tomorrow afternoon.

Wednesday, Jan 22, 2020 · 2:39:38 AM +00:00 · Mark Sumner

It would be great to listen in to Schumer and McConnell at this point. McConnell is clearly frustrated, because Trump’s team is unprepared, the Democrats in House and Senate are working together well, and this day has turned into free presentation time for the House impeachment team without taking even a scratch.

Wednesday, Jan 22, 2020 · 2:47:12 AM +00:00 · Mark Sumner

There is apparently no joy in McMudville. Schumer goes back to proposing amendments, starting with a request for subpoenas for documents held by the Defense Department.

And you can bet that by a total non-coincidence, a member of the House team is standing by to address this specific topic in detail. Get ready for quotes from Laura Cooper.

Wednesday, Jan 22, 2020 · 2:49:30 AM +00:00 · Mark Sumner

Mitch McConnell has the reputation of being the guy with a encyclopedic knowledge of obscure Senate rules that allow him to dominate this kind of thing. But so far in this hearing, Chuck Schumer has beaten him like a drum. A sad, wrinkly drum.

Wednesday, Jan 22, 2020 · 2:51:30 AM +00:00 · Mark Sumner

Rep. Jason Crow has stepped up again for the debate over obtaining documents from the Department of Defense. Crow, a veteran, starts by comparing the complaints about working until 9:30 in a nice comfy Senate chamber vs. the troops out in the field.

“I don’t think any of those folks want to hear us talk about how tired we are or how late it is.”

Wednesday, Jan 22, 2020 · 3:02:17 AM +00:00 · Mark Sumner

I'm not sure there's been a weak spot in the Democratic line-up today. They've had differences in their approaches, but they've all been sharp and compelling.

Crow is doing a very good job in his second appearance.

Wednesday, Jan 22, 2020 · 3:04:18 AM +00:00 · Mark Sumner

By God … it’s almost like they took that time Pelosi gave them and spent it putting together strategy, practicing their speeches, and planning how it all fits.

Senate Majority Leader Mitch McConnell's first cover-up vote in Donald Trump's impeachment trial occurred Tuesday afternoon, when he moved to kill Sen. Chuck Schumer's amendment to the organizing resolution to subpoena certain documents and White House records by tabling it. The vote was 53-47, entirely party-line.

Every Republican—including Sen. Susan Collins, who says she really, really wants to have more documents and witnesses, maybe, but later—voted with McConnell.

A preview of how bad it will get when GOP Senators sell Trump's acquittal.

Sekulow (L) and Cipollone (R) arrive at the US Capitol on Tuesday. | Oliver Douliery/AFP via Getty Images

The opening statements from Trump’s lawyers indicated that gaslighting will be a key part of their strategy.

The opening debate of the Senate impeachment trial on Tuesday afternoon was supposed to be merely about the trial rules. But in quintessential Trump fashion, members of President Donald Trump’s legal team wasted no time telling a number of lies before things really got going.

Though getting facts wrong might be somewhat understandable in the context of extemporaneous statements, these falsehoods came in the context of prepared remarks read by White House counsel Pat Cipollone and personal Trump attorney Jay Sekulow. And if that approach is indicative of how the rest of the trial will go, casual watchers may end up with an understanding of the timeline of Trump’s Ukraine dealings and ensuing impeachment that’s at odds with reality.

Falsehood No. 1: Trump’s lawyers claimed Republicans didn’t have access to key information during House impeachment inquiry

As part of an effort to portray the process that resulted in Trump’s impeachment and trial as a partisan witch hunt, Cipollone at one point complained that “not even [House Intelligence Committee chair and impeachment manager Adam] Schiff’s Republican colleagues were allowed into the SCIF,” or Sensitive Compartmented Information Facility, which is basically the secure facility that members of Congress used to review classified information pertinent to the impeachment inquiry.

This assertion is not true. As a number of reporters pointed out, not only did Republicans involved in the impeachment have access to the SCIF, but many of them also used it.

As part of a made-for-TV stunt, House Republicans did storm a SCIF in October to protest Democrats not providing Republicans who were otherwise uninvolved in the impeachment inquiry with access to closed-door depositions. However, Republicans who are members of one of the three committees involved in the process had the same access as Democrats.

When the trial resumed after a brief pause following Sekulow and Cipollone’s statements, Schiff noted that Cipollone made “a false statement” about access to the SCIF, saying, “I will tell you this: He’s mistaken. He’s mistaken ... [Republicans] got the same time we did.”

Falsehood No. 2: Schiff “manufactured” Trump’s comments during the July Zelensky call

That wasn’t the only easily refutable lie pushed by Cipollone during his opening remarks on Tuesday. At another point, he alluded to Schiff’s paraphrasing of Trump’s now-infamous July phone call with Ukrainian President Volodymyr Zelensky: “When Mr. Schiff saw that his allegations [about Trump abusing his power] were false, and he knew it anyway, what did he do? He went to the House and he manufactured a fraudulent version of that phone call. He read it to the American people, and he didn’t tell them it was a complete fake,” Cipollone said, echoing a talking point that Trump has incessantly used to discredit the impeachment inquiry.

But those comments are a gross mischaracterization of what Schiff did. Schiff paraphrased the phone call for dramatic effect and made clear he was doing so. Though his decision may have been ill-advised — I criticized it at the time because it provided Trump with grist to diminish the proceedings — in no way did Schiff try and bamboozle people into believing Trump said things he didn’t say.

And there was more

Cipollone wasn’t alone in getting basic stuff wrong. Sekulow’s opening statement, which served as an extended complaint about process, also managed to mangle the facts (he claimed House Democrats delayed transmitting the articles of impeachment to the Senate for a longer period of time than was actually the case) and mischaracterize the impeachment process (he said Trump “was denied the right to cross-examine witnesses” during the House inquiry when, in fact, the White House declined to do so).

Although most of the impeachment trial is still to come, the way Cipollone and Sekulow handled their opening statements suggests the White House is confident they have little to worry about from Senate Republicans, some of whom have indicated they would like to hear from witnesses as part of the process.

Facts, not to mention a sense of shame, will not get in the way of the narrative that Trump’s legal team intends to push about Democrats having it out for the president — and Cipollone and Sekulow are betting that the American people will either agree with them or won’t be able to see through it.

Schiff made clear that he also views Cipollone and Sekulow’s false claims as part of a strategy. After the aforementioned break, he mentioned a number of the lies and said, “Why don’t they have a better argument to make on the merits?”

When Schiff wrapped up, the next speaker — Rep. Zoe Lofgren (D-CA) — also devoted some time to debunking the false claims Cipollone made about both Trump and executive privilege.

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The news moves fast. To stay updated, follow Aaron Rupar on Twitter, and read more of Vox’s policy and politics coverage.

"It's not the crime, it's the coverup"? Not anymore.

GOP senators who vote against new witnesses are carrying out Trump's coverup.

Republican Senate Majority Leader Mitch McConnell has delivered his resolution proposing the rules by which Donald Trump’s impeachment trial will be conducted. And it’s not as bad as many expected—it’s far worse. McConnell has not only set up Trump to receive a hasty, perfunctory process that offers no opportunity to interview witnesses, introduce documents, or seriously discuss the issues— the man who denied a single Senate hearing to Merrick Garland has also drawn up rules intentionally designed to hide the evidence of Trump’s crimes by squeezing the case into the wee hours of the morning.

Under the proposal put forward by McConnell, each side has 24 hours to argue the case for and against Trump. On the surface, that matches the rules of Bill Clinton’s impeachment. However, while in Clinton’s case those hours unfolded in prime time over the course of a week, McConnell is requiring that the case in the Trump trial be made in just two days. And if that sounds bad, it’s actually much worse. Chief Justice John Roberts, who will preside over the trial in the Senate, has already informed McConnell that he needs to be at the Supreme Court in the mornings. So each session in the Senate will begin no earlier than 1 in the afternoon.

This means that, even if there was not a single break or a moment of process, each day of hearings will carry on until at least 1 a.m. More likely, House managers would be delivering the case against Trump in the hours more commonly associated with heart attacks and robberies. Forget bills that are passed at midnight; midnight will come in the middle of these hearings.

As appropriate as it may be that Trump’s crimes are outlined during the same hours that saw the arrival of Scrooge’s ghosts, McConnell’s proposed rules ensure that the case will be conducted with the least possible scrutiny. It’s a proposal that extends the cover-up of Trump’s extortion scheme directly into the rules of the Senate trial. And the hours in which the case will be conducted are far from the only way in which McConnell has tossed a blanket over Trump’s guilt.

Because McConnell does something utterly unique, and arguably unconstitutional, by refusing to take the most basic step of any impeachment: accept the case from the House. Instead, McConnell would require senators to vote on the acceptance of each plank of the House case. This makes it likely that Republicans will simply exclude everything the House has assembled, meaning that those late-night hours are likely to be filled not with discussion of the evidence against Trump, but with Republicans objecting that none of that information is actually in evidence for the Senate trial.

McConnell has crafted a resolution in which the Republican-dominated Senate has to agree on what evidence it’s going to let in. That doesn’t mean just blocking the testimony of additional witnesses; it also means blocking admission of facts learned from witnesses who have already testified before the House. Under these rules, Republicans can literally pick and choose which evidence they accept.

When it comes to witnesses, there’s an obstacle course of stages embedded in the brief proposal. First, Republicans get a chance to simply vote down the idea of hearing any witnesses. If that doesn’t stop the process at the outset, they then get to secretly depose any witnesses before testimony. And, with that deposition in hand, they will vote again on whether witnesses will be allowed to speak. It’s a process that seems tailored to filter out anyone with less than whole-throated praise for Trump.

When everything is done, senators will get 16 hours for questioning—in a session that also begins at 1 p.m. So expect the final announcement to be accompanied by the sound of senatorial snoring.

But of course, none of this may matter. Because McConnell’s proposal also gives the Senate another option: vote to dismiss the whole impeachment. Confronted with a week of zero-dark-hearing cover-ups, Republicans could well decide to simply show their allegiance by throwing the Constitution out wholesale. In a way, that’s probably more honest.

Remember the scandal that erupted last year when the entire junior boys class at Baraboo, Wisconsin, was photographed giving the Nazi salute? Remember how the school district wound up just dismissing those concerns, claiming that the teenagers’ real intent was impossible to discern?

What’s now clear is that the coddling of the students became a gigantic green light for white boys to just be as racist as they want to be. The story that emerged this week of a black girl’s experience at the school is just the stuff of any decent parent’s nightmares. According to the lawsuit filed by 17-year-old Dasia Banks against the district, her experience at Baraboo High School was an endless parade of bigotry, threats, bullying, violence, and sexual assault. Students shoved her in the hallways, paraded Confederate flags in her face, called her the N-word, and left threatening notes in her locker.

At one point, a student asked another in Banks’ presence: “Is it a hate crime if you slap a black girl?”

“I voiced my opinion and stood up for myself, but it got to the point where it just felt like there was no point in me saying anything,” Banks told The Daily Beast. When Banks complained to school officials, they declined to investigate her complaints, refusing to review the video files that would have corroborated her story.

This is similar to the response of school officials over the Hitler-salute photo. Jordan Blue, one of the few students in the photo who declined to join in on the salute, told a local newspaper that his classmates were trying to make an “upsetting” joke. The salute apparently occurred at the photographer’s encouragement. One of the people present said the students spent “about five minutes taking pictures and laughing” about their salute.

Superintendent Lori Mueller sent a letter to parents explaining that the district was “not in a position to punish the students for their actions” because of their First Amendment rights. “As previously stated, we cannot know the intentions in the hearts of those who were involved,” she wrote.

The problems in Baraboo, clearly, run much deeper than just the photo.

Among the leading contenders for the Democratic presidential nomination, both Sens. Elizabeth Warren and Bernie Sanders hail from states where GOP governors could appoint a Republican replacement to the Senate. That outcome would not only defy the will of voters in Massachusetts or Vermont, but it could also cost Democrats a key vote during the critical first months of a potential Sanders or Warren presidency.

However, there are two ways to lessen this risk dramatically, including one option that would permanently make Senate successions much fairer—and should, in fact, be adopted by every state.

If Warren were to win the White House in November and not leave her current post until Inauguration Day on Jan. 20, 2021, Massachusetts' Gov. Charlie Baker could tap a Republican replacement who’d serve until a special election that wouldn’t be held for about five months. In Vermont, meanwhile, Gov. Phil Scott, if he wins re-election this fall, could name a Republican to succeed Sanders, who similarly would hold the post until a special election that likely wouldn’t take place for another six months.

Either outcome would be unfair: Voters in both states rejected Republican Senate candidates little more than a year ago.

But there’s a simple way to avoid this problem. Democratic legislators can change the law to require the governor to swiftly appoint a temporary replacement from the same party as the outgoing senator (while allowing independents to designate a preferred party). And because Democrats hold supermajorities in both states, they’d be able to override any gubernatorial vetoes.

Half a dozen states, both red and blue, already have a same-party requirement in place for Senate successors. And to prevent an opposite-party governor from picking a Democrat or Republican in name only, all but one of them mandate that the governor choose from a shortlist compiled by the departing senator’s state party committee. That system best honors the wishes of a state’s voters and alleviates any worries over the partisan implications of a senator seeking another office.

Most importantly, it applies equally to both parties: Same-party succession would protect the will of voters whether they elect a Republican to the Senate while a Democrat sits in the governor’s mansion, or a Democratic senator under a Republican governor.

If Democratic lawmakers won’t act, though, both Sanders and Warren have another alternative: resigning early.

It's likely that the contest for the presidential nomination will be effectively over several weeks or even months ahead of the Democratic National Convention, which begins on July 13. If Warren, as the presumptive nominee, were to vacate her seat by June 23, a special election could take place simultaneously with the regularly scheduled November general election.

A concurrent election would ensure that Democrats would be favored to hold her seat, since Massachusetts is certain to go blue at the top of the ticket. It would also avoid the pitfall of low turnout that could plague a special election held on a different date, as we saw in the race that elected Warren’s predecessor, Republican Scott Brown, in January 2010.

Similarly, Sanders could resign early enough to trigger a special election concurrent with the November elections. It’s unclear by what exact date Sanders would have to leave (Vermont’s statutes are vaguely worded, and there’s no relevant precedent). But we do know that a special primary would, by law, take place 60 to 66 days before the Nov. 3 general election, and the earliest possible candidate filing deadline for such an election would be July 28.

If Sanders were therefore to resign by late May or early June, that would likely allow enough time for election officials to make all the necessary preparations to hold a simultaneous special election in the fall.

However, voters shouldn’t have to ask senators to give up their seats in such circumstances, and senators shouldn’t have to give them up. What’s more, there’s always the chance that we won’t know who the nominee is by June.

Legislators in Massachusetts and Vermont should therefore take action to remedy the situation immediately—and their colleagues across the nation should follow suit.

Senate Majority Leader Sen. Mitch McConnell walks to the Senate floor as House managers deliver the Articles of Impeachment against President Trump on January 16, 2020. | Brendan Smialowski/AFP via Getty Images

A Senate impeachment trial should be a solemn affair. It won’t be with McConnell at the helm.

As President Trump’s impeachment trial kicks off in the Senate on Tuesday, you’re going to hear a lot about Mitch McConnell, the Republican majority leader from Kentucky.

With the full support of his caucus, McConnell has a ton of control over how the process will unfold, and he’s likely to influence the course of the trial as much as anyone.

And if you don’t know anything else about McConnell, know this: He’s arguably the most ruthless political operator in American politics and has almost single-handedly broken the Senate. All of this matters because, in theory, a Senate impeachment trial is a solemn affair. After all, it’s 100 senators deciding whether the president should be removed from office — something that has not been done before.

McConnell has reportedly said in private that he wants a short trial with no witnesses called to testify, and he’s said publicly that the outcome of the trial is basically already determined. Given what we know about McConnell, this isn’t surprising.

As McConnell strides onto center stage, it’s worth pausing to reflect on his philosophy and the role he’s likely to play. So I contacted Alec MacGillis, author of The Cynic: The Political Education of Mitch McConnell. MacGillis knows McConnell as well as anyone, and I asked him to explain McConnell’s approach to politics and his broader impact on the Senate and potentially on the upcoming impeachment trial.

A lightly edited transcript of our conversation follows.

Sean Illing

What do you think is the most important thing people should know about McConnell?

Alec MacGillis

That he really exemplifies more than anyone else in Washington the permanent campaign mindset, where everything is about winning the next election and nothing else matters. For McConnell, it’s not really about what he does while he’s in power to address problems or purse his party’s policy goals, whatever they might be. It’s really only about setting himself up to win the next race, the next election.

That’s the only game he’s playing.

Sean Illing

Has he always been that way?

Alec MacGillis?

Yes, going all the way back to when he was a teenager in high school desperate to win the student elections. He’s always seen politics as a sport to conquer. He sort of embodies this uniquely American character that delights in politics as sport. That’s not necessarily a bad thing — it’s an American tradition in a weird way.

But if the desperation to win carries you in the wrong direction, if it overwhelms everything else, as it has with McConnell, then it becomes something else.

Sean Illing

Does McConnell have an ideological core?

Alec MacGillis

I found it really hard to discern any ideological core as I was doing the book. It was remarkable to discover just how superficially moderate and even liberal a Republican he was when he was starting out in the ’60s and ’70s. Mitch was outspoken for civil rights when he first ran for office in Louisville for the county executive job there. He was pro-union, pro-environment, and pro-abortion rights. But then that all started to shift very suddenly once he got in the Senate.

In 1984, he won his first race for the US Senate, but barely won it. He won by only 5,000 votes in the year that Ronald Reagan won in Kentucky by almost 300,000 votes. He sort of rode the coattails of Reagan. And the lesson he took from that was that he was going to have to win reelection in years to come and climb in this new Republican Party. He was going to have to shift sharply to the right to catch up with where the Republican Party was heading.

Sean Illing

How would you characterize McConnell’s broader impact on the Senate?

Alec MacGillis

Oh, it’s been enormous. He’s undermined the institution in so many ways. There was this idea of the Senate as having a higher purpose and more collegiality than the House, and he’s just completely blown that up. He had help, of course, but he’s played such an essential role.

And what’s remarkable about it is that he has managed to do that, to undermine the institution, while at the same time continuing to be upheld as a great institutionalist by many pundits in Washington simply because he has a grasp on the fine points and all the rules of the Senate.

Sure, he understands the institution very well, there’s no debate about that. But he’s done grave damage to it with a degree of partisanship and obstructionism that is genuinely rare.

Sean Illing

What do you think his first priority will be in the upcoming Senate impeachment trial?

Alec MacGillis

It’s pretty clear that his goal is to shut it down and get it over with as fast as possible, even if that means completely breaking from the way that we’ve done trials in the past. He’s been totally brazen about his collaboration with the defendant, with the White House. And my guess is that he’ll once again be hailed as a great tactician for having pulled this off.

But calling him a brilliant strategist, or pretending that he’s more clever than his counterparts on the other side, overlooks the fact that it’s easy to win if you’re willing to blow up the rules, if you don’t care about the institution you serve.

There was nothing “brilliant” about his decision to block President Obama’s Supreme Court nominee Merrick Garland. He just didn’t care about the rules or the norms that govern the Senate.

Sean Illing

Is there anything Democrats could appeal to get to him to break his allegiance, or is it just partisan warfare all the way down?

Alec MacGillis

The only thing that would lead Mitch McConnell to hold a serious impeachment trial would be the belief that it was better for him and his party to do so. If he thought it was better for the GOP to have [Vice President] Pence replace Trump, he’d do it. If he made that calculation, he’d have no compunction about holding a legitimate trial. I honestly don’t think there’s any other reason he’d do it.

Sean Illing

So he’s a nihilist with respect to everything except winning?

Alec MacGillis

That’s a perfect way to put it.

Sean Illing

Are you surprised at all by how McConnell has navigated the Trump presidency so far?

Alec MacGillis

I’ve thought a lot about how he brought us Trump and all the different ways that he’s contributed to the climate that made Trump’s election possible. But in terms of how he’s managed Trump’s presidency, I would’ve expected to see him try harder to preserve his party in the post-Trump world and maybe maintain enough distance from Trump to reduce the reckoning that seems likely to follow when Trump’s gone. But he’s made a very different calculation.

Sean Illing

Do you have any sense of how McConnell actually feels about Trump? Is there a genuine relationship there or is it a purely transactional relationship?

Alec MacGillis

There have been a few moments in the last few years where you’ve seen glimmers of discomfort from McConnell — but nothing that even rose to the level of Paul Ryan’s criticisms of Trump. There were at least flashes of real disapproval from Ryan. But that’s partly because Ryan, far more than McConnell, actually does believe in things, apart from winning. I’m just not sure that’s true of McConnell.

Sean Illing

Can you imagine McConnell, under any circumstances, taking a stand against Trump if there was even the slightest risk of party disunity?

Alec MacGillis

Well, we haven’t seen it yet. And there have been so many opportunities to take a principled stand. It’s just hard to imagine McConnell ever rising to the moment in that way. I just don’t see it.

Apple dropped plans to let iPhone users fully encrypt backups of their devices in the company's iCloud service after the FBI complained that the move would harm investigations, Reuters reported on Tuesday, citing six sources familiar with the matter. From the report: The tech giant's reversal, about two years ago, has not previously been reported. It shows how much Apple has been willing to help U.S. law enforcement and intelligence agencies, despite taking a harder line in high-profile legal disputes with the government and casting itself as a defender of its customers' information. The long-running tug of war between investigators' concerns about security and tech companies' desire for user privacy moved back into the public spotlight last week, as U.S. Attorney General William Barr took the rare step of publicly calling on Apple to unlock two iPhones used by a Saudi Air Force officer who shot dead three Americans at a Pensacola, Florida naval base last month. U.S. President Donald Trump piled on, accusing Apple on Twitter of refusing to unlock phones used by "killers, drug dealers and other violent criminal elements." Republican and Democratic senators sounded a similar theme in a December hearing, threatening legislation against end-to-end encryption, citing unrecoverable evidence of crimes against children. Apple did in fact did turn over the shooter's iCloud backups in the Pensacola case, and said it rejected the characterization that it "has not provided substantive assistance." Behind the scenes, Apple has provided the U.S. Federal Bureau of Investigation with more sweeping help, not related to any specific probe.

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