Lizza breaks the Trump/Nunes coordination on Russia

In the New Yorker, a most remarkable passage on Nunes’s coordination with the White House:

“The White House and Nunes were clearly coördinating this strategy. A few days before the hearing, Trump seemed to offer a preview of it. In an interview on Fox News, the President said that he “will be submitting things” to Nunes’s committee “very soon,” and “perhaps speaking about this next week,” adding that “you’re going to find some very interesting items coming to the forefront over the next two weeks.”

“Last Monday morning, shortly before the start of the hearing, a senior White House official told me, “You’ll see the setting of the predicate. That’s the thing to watch today.” He suggested that I read a piece in The Hill about incidental collection. The article posited that if “Trump or his advisors were speaking directly to foreign individuals who were the target of U.S. spying during the election campaign, and the intelligence agencies recorded Trump by accident, it’s plausible that those communications would have been collected and shared amongst intelligence agencies.”

“The White House clearly indicated to me that it knew Nunes would highlight this issue. “It’s backdoor surveillance where it’s not just incidental, it’s systematic,” the White House official said. “Watch Nunes today.”

“Sure enough, at last Monday’s hearing, Nunes asked in his opening statement, “Were the communications of officials or associates of any campaign subject to any kind of improper surveillance?” He continued, “The Intelligence Community has extremely strict procedures for handling information pertaining to any U.S. citizens who are subject even to incidental surveillance, and this committee wants to insure all surveillance activities have followed all relevant laws, rules, and regulations.” Nunes made it clear that Trump’s wiretapping claim was false, but he seemed intent on offering the President a fig leaf for the explosive claim. “It’s still possible that other surveillance activities were used against President Trump and his associates,” he insisted. The overwhelming majority of questions from Republicans at the hearing revolved around this issue.

“Last Tuesday evening, Nunes went to a secure National Security Council facility on the grounds of the White House and reviewed intelligence reports, with the assistance of one or more unknown officials. (Michael Isikoff, of Yahoo News, reports that one of the officials may have been Michael Ellis, a former Nunes staffer who now works at the White House. When asked by reporters today, Nunes declined to confirm or deny the report.) The following morning, without informing any other members of the House Intelligence Committee about what he had learned, Nunes went back to the White House and briefed the President on those reports. He held press conferences, one at the Capitol and one outside the West Wing, before and after his meeting with Trump.”


Trump and the Senate GOP just dumped cold water on the House health care bill

Late last night, Trump blamed Ryan for the repeal/replace failure — before it was totally dead. That’s astounding, and it doesn’t help rally House members. But the even bigger news is the Senate GOP, reported by NBC this morning: The Senate GOP leadership has tweeted that the House bill *cannot* evade a Senate filibuster, meaning that there is no way the House bill can become law. That dumps an ice bucket of cold water on every House Republican. Why would the Senate GOP announce this position this morning? They don’t want this bill to pass, because they don’t want to vote on it at all. So why would a Republican House member choose the worst option: casting a “yes” vote for a disastrous and disastrously unpopular bill, and also failing to repeal anyway? See the report:
“Does the Senate want this bill to pass?
That’s the other part of this equation. Don’t miss what Sen. John Cornyn (R-TX), the Senate’s No. 2 Republican, tweeted last night: “FYI: The ‘Byrd Rule’ is actually a law.” Translation for those unfamiliar with Senate arcana: The legislation that House Republicans are trying to pass probably don’t meet the rules that can avoid a Senate filibuster. Think about it, Cornyn is warning his House colleagues that this legislation can’t pass the Senate. And that’s precisely what Sen. Tom Cotton (R-AR) stated earlier this month: “I would say to my friends in the House of Representatives with whom I serve, ‘Do not walk the plank and vote for a bill that cannot pass the Senate and then have to face the consequences of that vote.”

Why should the Democrats filibuster Gorsuch? The endgame…

I’ve heard friends and commentators lament, “Why should we filibuster if the GOP can go nuclear and get rid of the filibuster?”  Below, I lay out one immediate benefit and then three paths, each of which justifies a filibuster.
Gorsuch is too right-wing and lacks the temperament (see my Slate piece today). For a bunch of reasons, I have been persuaded that Gorsuch is probably to the right of Scalia. He has been elusive by any standard in the hearings, but a few things emerged: He signaled to insiders that he will probably overturn Roe v. Wade, as part of the Casey balancing test for overturning precedents (Gorsuch acknowledging that it’s “a precedent” does not save it from being overturned, particularly not in the way he carefully phrased his Casey-minded answer). Corey Brettschneider has analyzed Gorsuch’s writings thoroughly and found evidence suggesting that he might find that the Constitution grants fetuses a right to life, which would lead to a national ban on abortion. Brettschneider also finds a clear indication in Gorsuch’s dissertation that he not only opposed the right to marriage equality, but he demeaned that claim, approvingly of a Scalia passage that put gay marriage in the same category of unprotected claims as bestiality and incest. 
Moreover, beyond the whole unprecedented Garland travesty, there has never been a Supreme Court appointment during a criminal investigation of a president or a presidential campaign.
Let’s first acknowledge the benefits of delaying a fifth vote to uphold Trump’s immigration order (a.k.a., “#MuslimBan”). These cases are expedited, so the case would be argued sooner than usual.
But beyond that, the endgame has three paths, all on balance reasons to filibuster:
1. The GOP goes nuclear and permanently ends the filibuster for SCOTUS. Fine. Then let’s say the rest of the Justices stay on the Court. We take back the White House and Senate in 2020, and they can no longer filibuster a liberal appointment. Or if a seat opens after 2018, maybe we have taken back the Senate and we don’t need the filibuster anymore. (I note that it is an uphill battle to take back the Senate because the Democrats have to defend so many red-state seats, but if Trump is in the mid-30s approval ratings with the same kind of “strongly disapprove” numbers we see now in the mid-40s or more, I like our chances).
2. The GOP fails to nuke, the seat remains open, but meanwhile, the FBI investigation produces an indictment of Manafort, Stone, Flynn, etc., and we have a full blown FBI investigation of the President in 6 months with subpoenas and hearings. I don’t see the GOP moderates going nuclear then, and the seat remains open for a while, maybe past the 2018 elections, maybe until 2021.
3.  The GOP fails to nuke, the seat remains open, but Trump holds off on scandal and indictments of his campaign staffers long enough to make another appointment. Maybe nominee will be less right-wing than Gorsuch. We know Gorsuch is going to be close to Scalia, and perhaps even more conservative overall in areas like abortion/fetal rights, the death penalty and jury rights. He will be a 5th vote to undermine voting rights, and many other rights, including gay marriage. Maybe another nominee will be more moderate, maybe not. Who knows? Let’s cross that bridge when we get to it. If they don’t have the votes to go nuclear for Gorsuch, then I’d guess they’d lack the votes for going nuclear for a clearly more right-wing nominee.
Some have said, “Don’t waste the filibuster now! Use it for the seat that might tip the Court on Roe v. Wade!” First of all, if not now, when? Gorsuch is the nominee now. Who knows if there will be another opening? And moreover, if you’re worried about the Senate GOP going nuclear now, why won’t they go intercontinental ballistic nuclear when they are finally getting their fifth vote to obliterate Roe?  If we don’t filibuster now, there’s not going to be a successful filibuster ever.

Trump firing U.S. Attorneys after retaining them is NOT normal

I’ve seen some expert commentators argue that it is traditional for new presidents to replace U.S. Attorneys. That’s true. But it is entirely untraditional and abnormal to fire U.S. Attorneys after retaining them and allowing them to continue in their offices.

Admittedly, it’s a bit of a gray area because Trump is so early in his term. Nevertheless, every other president made decisions about which U.S. Attorneys to retain or replace immediately in the beginning of their terms. The reason for this tradition is to have a clear marker of turnover to avoid precisely this kind of appearance of interference (or actual interference) in investigations and the administrative justice.

There is only one modern precedent for this conduct, and it is not one to emulate: George W. Bush’s dismissal of seven U.S. Attorneys in December 2006.  The Washington Post reported at the time: “Although Bush and President Bill Clinton each dismissed nearly all U.S. attorneys upon taking office, legal experts and former prosecutors say the firing of a large number of prosecutors in the middle of a term appears to be unprecedented and threatens the independence of prosecutors.” (Gonzales: ‘Mistakes Were Made’). As the story unfolded, the Bush administration had warned these U.S. Attorneys and a handful of others that they weren’t prosecuting enough voter fraud (i.e., Democratic voters) or public corruption cases (i.e., Democratic office holders).  Chris Christie, the New Jersey U.S. Attorney, and Steven Biskupic, the Wisconsin U.S. Attorney, got themselves off the firing list by following the marching orders. Biskupic’s case was particularly scandalous, as the Wisconsin prosecutor won a conviction of a Democratic officer that was later overturned and harshly criticized as baseless by federal courts. The scandal led to Alberto Gonzales’s resignation.

It certainly appears that a similar interference may have occurred on Friday. Bharara has implied as much, tweeting: “By the way, now I know what the Moreland Commission must have felt like.” The Moreland Commission was investigating corruption in New York until Governor Andrew Cuomo suddenly disbanded it. The rumor was that the commission was getting too close to Cuomo for comfort. If Bharara can back up this implication with some solid facts, hold on to your seats. Trump might not hold on to his office, if the right dominoes fall.

To start toppling dominoes with subpoenas or legal discovery, the only solutions now are 1) a special federal prosecutor (don’t expect Trump’s DOJ to allow this);  2) Congressional committee hearings (good luck); and 3) state attorneys general investigating, the most likely option politically.

ACTION: Ask NY Atty Gen to investigate and dissolve Trump Org. 800-771-7755

Now that Trump has fired US Atty Bharara, NY Atty General Eric Schneiderman has the special power and duty under NY Bus. Law 1101(a)(2) to investigate: 1) unconstitutional “Emoluments”; 2) Trump financial records; 3) Russian influence; 4) violations of Foreign Corrupt Practices Act and Iranian sanctions; 5) obstruction of justice.

CALL NY AG Helpline: 1-800-771-7755. Tweet address: @AGSchneiderman.  See Jed Shugerman at

Trump just fired U.S. Attorney Preet Bharara this afternoon, after Trump had decided to keep Bharara on the job in January. Bharara had been very popular with Republicans for his prosecution of corrupt politicians. So why the sudden change?  When Trump asked for Bharara’s resignation yesterday, the N.Y. Times explained:

Last week, several public interest groups, including Democracy 21 and Citizens for Responsibility and Ethics in Washington, called on Preet Bharara, the United States attorney for the Southern District of New York and an aggressive prosecutor of corruption, to investigate the Trump Organization, the New York-based business through which Mr. Trump owns and controls his hotels, golf courses and other holdings. But that effort might not go far because the Department of Justice on Friday asked Mr. Bharara and 45 other United States attorneys appointed by former President Barack Obama to resign.

When Bharara refused to resign, Trump fired him. Coincidence? What was Bharara already investigating? Now that Trump will replace Bharara with his own personal crony to protect his business empire, who else can investigate?

The answer is simple: New York State Attorney General Eric Schneiderman can bring the investigation that Preet Bharara might have.  I have written before about how every state gives its attorney general the power — and the duty — to investigate corporate corruption and law-breaking with the Quo Warranto procedure. In New York, that power is written into New York law. New York’s Business Corporation Law section 1101 grants the attorney general the authority “to bring an action for the dissolution of a corporation” if:

the corporation has exceeded the authority conferred upon it by law, or has violated any provision of law whereby it has forfeited its charter, or carried on, conducted or transacted its business in a persistently fraudulent or illegal manner, or by the abuse of its powers contrary to the public policy of the state has become liable to be dissolved.

N.Y. Bus. Corp. Law § 1101(a)(2). New York courts have explained that violations of federal law are also grounds for dissolution, so Trump’s constant violations of the Emoluments Clause are grounds for this investigation and dissolution or forced divestment. In re People (Int’l Workers Order, Inc.), 199 Misc. 941, 976, 106 N.Y.S.2d 953 (N.Y. Sup. Ct. 1951).

Call, tweet, or write to Attorney General Eric Schneiderman now to get him to start this investigation to understand what Trump and his corporations are doing, how the corporation is a vehicle for foreign “emoluments,” and how these foreign entanglements are endangering the United States.  And if you live in other states, you can contact your attorney general, too.  I’ll update this blog with state-by-state action plans soon.

NY Attorney General Eric Schneiderman’s Twitter address: @AGSchneiderman

NY Attorney General’s General Helpline: 1-800-771-7755

TDD/TTY Toll Free Line: 1-800-788-9898

Mail: Office of the Attorney General
The Capitol
Albany, NY 12224-0341






Did Israel just ban me from visiting?

I wake up this morning with major cognitive/emotional dissonance. On the one hand, I am celebrating Team Israel’s improbable sweep of its round in the World Baseball Classic, with wins over South Korea and the Netherlands, teams loaded with major league stars. I LOVE this story. On the other hand, I just realized that the Israeli Parliament (the Knesset) just banned me from visiting the country where I lived for two years, met my future wife and fell in love, and formed my identity as a Jew.

The ban would apply not only to people who call for boycotting Israel, but also to those who support boycotts of any Israeli institution or any “area under its control,” obviously meaning the settlements.

Although I don’t support full “BDS” (boycott/divest/sanction) of Israel, I do support a boycott and divestment of Israeli settlements and their products. So even though I don’t support full “BDS,” Israel’s govt is boycotting, divesting and sanctioning people like me.

I’m not sure what the next steps are. But if the Israeli government says I may not enter legally, I cannot travel there, so I am cornered into a de facto travel boycott. And even if I didn’t support boycotting of the Israeli settlements, how could I possibly support country with this kind of discriminatory, undemocratic policy?

We just had a meeting this week at our son’s Jewish high school about the school trip to Israel next spring for seven weeks. That night, I was so excited for him to take the adventure with friends and without us, to take a leap into independence. My adventure in Israel when I was 15 was transformative in many ways. I want him to share that experience. Today, I feel worse than ambivalent about Israel, I feel torn and betrayed. If I wanted to visit him there, would I even be allowed to?   This travel ban seems to be a more aggressive turning point. Commentators across the political spectrum have been saying for years that as long as the two-state solution is stalled or dead, Israel cannot be both a Jewish state and a democracy. If Israel wants to claim to be a democracy, the Palestinians cannot live as stateless disenfranchised third-class non-citizens indefinitely. As Israel approaches the 50th anniversary of the Six Day War and seizing control of the West Bank and Gaza, it seems to me that the Knesset has chosen “Jewish state” over “democracy” more aggressively and decisively than ever before. No, it is worse than that: It is actively rejecting the core principles of democracy.

The best piece I’ve seen as a Jewish parent is Peter Beinart’s: “I support boycotting settlements. Should I be banned from Israel with my children?”

His conclusion is most powerful:

“Now, in my long-running battle with Netanyahu for my children’s identity, the prime minister has struck an unexpected blow. The good news is that in a few years they will start going to Israel on school trips without me. I hope they visit many, many times, and come to cherish the place as I do. My mother once told me that my grandfather, for whom my son is named, was never happier than when he was arguing politics on Dizengoff Street. God willing, my son and daughter will pass many days doing that too.

“But if I can’t be there with them, so be it. My parents gave me many gifts, but the most important was their example. They loved South Africa and they opposed apartheid. And when the tension between their lives and their principles grew too great, they chose the latter, and they left. As I child, I sensed their sadness and their isolation. And I felt proud to be their son.

“In my family, we have a tradition. We lose countries but we keep our self-respect.”

Read more:

Update: My friend Rabbi Matt Carl adds:  “Plenty of us said ‘if there’s a Muslim ban, I’ll register as Muslim.’ I’m happy to claim I support BDS for this/analogized purpose.”  Absolutely the right moral response. Count me in.