Governing is hard.

January 31, 2023

          Governing is hard, and the GOP majority in the House is about to be reminded of that truth in a painful way. Among the many urgent stories vying for our attention, the negotiations over the debt limit may have the most immediate (and long-lasting) effect on the well-being and security of tens of millions of Americans. Over the weekend, Republicans began to shift their position as they bumped up against the realities of governing. Let’s take a look.

          To secure the Speakership, Kevin McCarthy promised to balance the budget by using the debt ceiling as a hostage. Because the House originates appropriations bills, McCarthy and friends must now specify which federal programs they propose to cut. When McCarthy was in campaign mode for the Speakership, he promised to cut Social Security and Medicare (and maybe defense, maybe not). On a Sunday talk show, he took the option of cutting Social Security and Medicare “off the table”—which leaves defense as the prime target for reductions. But McCarthy has promised some members of his caucus that he would not cut defense spending below 2022 levels, which leaves . . . what?

          That’s the $64,000 question: What to cut? Having promised not to cut defense, Social Security, and Medicare, there is almost nothing left that is big enough to balance the budget. The GOP’s dilemma of making contradictory promises is explained in a recent Politico analysis:

Passing a budget is guaranteed to be a painful test for the new majority. It’s one thing to call for fiscal responsibility — it’s another to be the political face of program cuts. GOP leaders will have to thread the needle between members loath to cut Pentagon funding and conservatives . . . who say military cuts must be on the table.

At the same time, party leadership will have to ensure steep domestic cuts won’t hurt moderates back home, bruising members in vulnerable districts and threatening an already slim House majority.

          Democrats have been proactive in their resistance to McCarthy’s hostage-taking. Both Hakeem Jeffries and Chuck Schumer have demanded that Republicans produce a budget bill showing which programs they propose to cut. As Schumer recently said,

[Republicans] have to show us their proposal. They have to show us their plan. Plain and simple. . . . Democrats are united: Show us the plan. That’s the first step.

          That dynamic will drive the negotiations over the debt ceiling crisis: Republicans will demand cuts, and Democrats will say, “Tell us what you want to cut.”

          President Biden and Kevin McCarthy are set to meet on Wednesday of this week, although Biden is already setting a tough tone in advance of the meeting. The White House said,

The President will ask Speaker McCarthy if he intends to meet his Constitutional obligation to prevent a national default, as every other House and Senate leader in U.S. history has done.

          Ouch! McCarthy responded by saying that he will ask, “before you raise the debt limit . . .  tell us where you want money for.” That statement demonstrates McCarthy’s fundamental ignorance about what the debt limit is and the role of the House in passing spending bills. The debt limit relates to funds already appropriated by Congress—not “new spending.” But even if it did, the Constitution requires that spending bills originate in the House—currently controlled by McCarthy.

The ball is in Kevin McCarthy’s court. He wishes it were otherwise. Governing is hard. McCarthy better get used to that fact . . . or get out of the way.

The implications of the Manhattan District Attorney’s grand jury investigation into “hush money” payments by Trump before the 2016 election.

          The New York Times is reporting that the Manhattan District Attorney’s office has convened a grand jury to examine Donald Trump’s potential crimes in paying and concealing “hush money” to adult film entertainer Stormy Daniels. See NYTimes, Manhattan Prosecutors Begin Presenting Trump Case to Grand Jury.

          The Manhattan grand jury development is important for three reasons: (1) It may result in a “relatively” easy-to-prove state felony charge against Trump for financial crimes; (2) it highlights the corruption of Bill Barr in attempting to quash an earlier federal investigation into Trump’s campaign finance violation; and (3) it raises the question of why current federal prosecutors are not pursuing charges against Trump for the same crime.

Trump’s criminal liability for campaign finance violations that sent Michael Cohen to prison.

          The Manhattan District Attorney is a state-level prosecutor. Recall that Trump’s attorney, Michael Cohen, pleaded guilty in a federal prosecution to campaign finance violations admitting that he concealed payments intended to influence the 2016 election. According to the DOJ’s charging document,

Cohen caused and made the payments described herein in order to influence the 2016 presidential election.  In so doing, he coordinated with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments.  As a result of the payments solicited and made by Cohen, neither Woman-1 nor Woman-2 spoke to the press prior to the election

          Cohen was sentenced to three years in prison for a crime committed for the benefit of and at the direction of Donald Trump, who was identified in the federal charging document as “Individual 1.” A draft of the charging document was filled with allegations regarding Trump’s involvement, but Bill Barr’s assistant demanded that the publicly filed version remove all references to Trump. See CNN, Federal prosecutors discussed charging Trump in Stormy Daniels case when he left office, book says. That draft charging document still exists; it would be an easy matter to dust it off and present it to a new grand jury. Charging Donald Trump for the same crime that sent Michael Cohen to prison is the obvious next step.

          Bill Barr’s interference in the federal investigation of Trump for campaign finance violations.

          Trump was not charged at the same time as Michael Cohen because of the DOJ’s policy against indicting a sitting president. But nothing prevented the DOJ from investigating Trump or preparing charges against Trump after his departure from office. Nothing that is, except Bill Barr, who actively intervened to “water down” the charging document against Cohen to remove references to Trump (as Individual “1”). As later revealed by the then US Attorney for the Southern District of New York (Geoffrey Berman), Barr ordered the US Attorney in the SDNY to stop all further investigations of Trump’s criminal liability for campaign finance violations. See NYTimes, Inside William Barr's Effort to Undermine N.Y. Prosecutors.

          Barr’s corruption in running “political interference” for Trump is palpable. The Senate Judiciary Committee is investigating the allegations of misconduct by Barr outlined in Berman’s book. See The Guardian, Berman book prompts Senate panel to investigate Trump DOJ interference. Bill Barr was the worst Attorney General in our nation’s history. In the accounting of the crimes committed during the Trump era, the corruption of justice by Bill Barr should be at the top of Merrick Garland’s list.

Merrick Garland’s inaction.

          The charging document against Michael Cohen was filed in August 2018. At that time, Trump’s criminal complicity was fully exposed. Trump left office in January 2021 and was then subject to indictment. Geoffrey Berman published his revelations regarding Barr’s corrupt effort to derail the criminal investigation of Trump in September 2022, although details of Barr’s interference were reported in the NYTimes in June 2020. Under the most charitable timeline, it has been two years since Trump has been susceptible to indictment and three years since knowledge of Barr’s corrupt interference in the effort to indict Trump has been known.

          There is no indication that the DOJ is moving against Trump for the crime that resulted in a three-year prison sentence for Michael Cohen—a crime for which Trump is equally culpable. Once again, like in Georgia, it appears that state prosecutors are moving ahead of federal prosecutors in pursuing crimes that seem relatively easier to prove than insurrection and plotting a coup. [And yes, I recognize that any prosecution against a president will be difficult. I am making a relative judgment, not an absolute one.]

          I hope that the actions of the Manhattan District Attorney are not another disappointing distraction. A previous NY District Attorney, Cyrus Vance Jr, opened an investigation into Trump’s campaign finance violations in 2018—five years ago. As a reader posted in the Comments section today,

Every morning I open my device to read this newsletter, Letters from an American, and others.

The thoughts I have as I embrace that first slug of coffee: “Is today the day that Jack Smith will make his recommendation to Merrick Garland? Is today the day that Fanni Willis' grand jury will indict the Mar A Lago Monster?” And another day passes. Nothing.

Everyone with an ounce of intelligence has all the information required to know that Trump made multiple attempts to install himself as President/Dictator. And yet . . . we wait, we wait.

          It is not wrong for Americans to expect that accountability will be dispensed in a timeframe appropriate to protect the rule of law and vindicate the interests of justice. That time is rapidly expiring.

Commentary on the killing of Tyre Nichols.

          There has been an understandable outpouring of analysis regarding the causes of the killing of Trye Nichols. A reader recommended an essay by Jonathan V. Last in the Bulwark, If You Just Do What The Police Tell You . . . This is an important essay, and I recommend it to your attention.

          Like many commentators, Last notes that “just doing what the police tell you” is no guarantee of safe passage for many Americans. But unlike most commentators, Last pursues the analysis further by discussing a root cause of police mishandling of confrontations with unarmed citizens—woeful understaffing and limited training compared to police departments around the world. Take a look at the charts in Last’s article, but here is his commentary:

That’s right. Your average cop gets about 1/6 the amount of training as your average cosmetologist.

The result is entirely predictable. Here’s the per capita number for civilians killed by police [a chart showing a correlation between lack of training and civilians killed.]

If you take a bunch of guys who are not especially educated, give them a small amount of instruction, hand them guns, and then insert them into institutions where bad behavior is routinely covered up by superiors—and then provide them with a separate institution designed to protect them from accountability . . . well what the **** do you think is going to happen?

This is a system designed to fail.

          To state the obvious, Last is not talking about all police officers. But a problem that seems to be uniquely American in size correlates strongly to lack of police training and understaffing.

Concluding Thoughts.

          Despite my obvious continued frustration with the pace of investigations into Trump’s criminal conduct, a reasonable observer should conclude that Trump will be indicted at least once—and likely three times—in 2023. That will help restore a sense of equilibrium that has been missing in the American justice system for six years.

But justice must extend beyond Trump. It must include senior advisers who facilitated his criminal conduct, Bill Barr and senior members of the DOJ who obstructed investigations into Trump’s crimes, and rogue agents in the FBI and the Secret Service. Only then can Americans have a sense of confidence that their top justice and security agencies are serving the American people—rather than their political patron.

          When Trump is indicted in 2023, it will roil the GOP presidential primary. But Trump will not withdraw no matter how many indictments he collects. He will continue to pursue the presidency as his only hope of salvation. He will view his GOP competitors as threats to his continued life outside of prison—and will be vicious in his attacks on his fellow Republicans. It will be an ugly day of reckoning for the GOP, but one that it signed up for when it began to excuse, rationalize, and embrace Trump’s toxic mixture of division and hate.

          While it will be satisfying to see justice prevail, there should be no joy in the reckoning that is coming. We are emerging from a dark period that transcends politics. Bedrock institutions of our democracy were compromised and corrupted with surprising ease. Dispensing justice to those who betrayed the Constitution is the first step toward rehabilitation. But it is hardly the last. We must use the coming period of prosecutions to reinforce the institutions that were badly damaged by MAGA extremism. That is somber work that we should undertake with a seriousness of purpose that leaves no room for partisan celebration.

Talk to you tomorrow!