Crises have a way of separating the leaderlike wheat from the opportunistic chaff. Coronavirus is the crisis of our time, and the political winnowing is something to behold.
Example: The Trump administration spent this week distributing ventilators, standing up small-business loans, dispatching hospital ships, erecting alternate care facilities, explaining virus modeling, revamping regulations to keep truckers on the road, and plastering the airwaves with information about hygiene and social distancing. Speaker Nancy Pelosi spent this week setting up a new House committee to investigate Donald Trump.
Nothing separates the shallow from the serious faster than high-stakes moments. At the federal level, Americans are seeing the serious in the White House task force briefings that provide daily updates on the government’s actions. When this is all over, we will find that the federal response was far from perfect. But we’ll also see that once the executive branch grasped the enormity of the problem, it moved with soberness, speed and a spirit of cooperation.
Mr. Trump is at the head of this operation, and while his leadership style isn’t for everyone, he’s certainly leading. He addresses the virus in stark terms but also insists on optimism—something that’s important from leaders in tough times. While punching back at some critics, he’s also reached across the aisle. He embraced Democratic calls for more-stringent corporate rules in Congress’s relief bill. Asked about the $25 million Democrats slipped in for the Kennedy Center, he defended it: “I really believe that we’ve had a very good back and forth.” He’s rushed to the aid of blue-state governors, and has praised Democratic state leaders, including New York Gov. Andrew Cuomo and California Gov. Gavin Newsom, for their efforts.
And at least some of those Democratic state leaders are reciprocating, proving neither party has a monopoly on character. CNN’s Jake Tapper this week practically begged Mr. Newsom to recant his recent praise for the president, suggesting the Democrat had given it only out of fear that Mr. Trump would “punish” his state’s citizens. Mr. Newsom was having none of it. “The fact is, every time I’ve called the president he’s quickly gotten on the line,” he said. “There’s just too many Americans—40 million that live in this state—that deserve us to get together and get along.” Mr. Cuomo has taken the same approach, saying of president: “His team is on it. They’ve been responsive.” He added: “I want to say thank you.” This week he chided partisans: “Not now,” he said. “The virus doesn’t attack and kill red Americans or blue Americans—it attacks and kills all Americans.”
Contrast this with Mrs. Pelosi, who seems to view the pandemic as one big political opportunity. She held up last week’s relief bill for days, attempting to cram into it unrelated election and climate provisions. She used a Sunday CNN appearance to accuse Mr. Trump of killing Americans. This week she announced a new special House committee that will “examine all aspects of the federal response to the coronavirus” and will have subpoena power. This is yet the latest Democratic machinery for investigating Trump and ginning up scandals.
Or contrast the governors with the guy carping from his Delaware basement. Joe Biden might have used this moment to buttress his claims to be the more dignified candidate by throwing his support behind the federal effort and making clear he’d save his policy disputes for later. He instead spread the false claim that the president had called the virus a “hoax.” Mr. Biden has bashed Mr. Trump on testing and on the use of the Defense Production Act. He’s accused the president of “failing to prepare our nation” for a pandemic (never mind the Obama-Biden role in any such failure). He even blames Mr. Trump for soaring unemployment numbers.
Or contrast the governors who are leading with the one who is using today’s crisis as an audition to be Mr. Biden’s running mate. For every Mr. Cuomo there is a Gretchen Whitmer. The Michigan Democrat has spent weeks accusing the administration of failing to have a “national strategy,” and of “cuts to the CDC” that put us “behind the eight ball.” She’s insisted “we’re still not getting what we need from the federal government,” and even insinuated the administration was directing suppliers to withhold equipment to her state—a ludicrous suggestion.
Democratic partisans are playing a risky game here. Mr. Trump is currently clocking the best approval ratings of his presidency, and a late March Gallup poll found 60% of respondents approve of his virus response. Americans have traditionally looked dimly on those who undercut presidents and other elected leaders in time of crisis. Some on the left are making it easy to separate the politicians who are fighting for their people from the politicians who are fighting for their self-interest. That may come back to haunt them in November.
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It is almost shocking that the press is not calling this out, even though its “one of their own” who is the perpetrator.
Fanatics can justify any action, and House Intelligence Chairman Adam Schiff this week demonstrated where that mindset leads. In his rush to paint Donald Trump as a lawbreaker, Mr. Schiff has himself trampled law and responsibility.
That’s the bottom line in Mr. Schiff’s stunning decision to subpoena the phone records of Rudy Giuliani and others. Mr. Schiff divulged the phone logs this week in his Ukraine report, thereby revealing details about the communications of Trump attorneys Jay Sekulow and Mr. Giuliani, ranking Intelligence Committee member Devin Nunes, reporter John Solomon and others. The media is treating this as a victory, when it is a disgraceful breach of ethical and legal propriety.
If nothing else, Mr. Schiff claims the ignominious distinction of being the first congressman to use his official powers to spy on a fellow member and publish the details. His report also means open season on members of the press. Mr. Giuliani over months has likely spoken to dozens of political figures and reporters—and the numbers, dates and length of those calls are now in Democrats’ hot little hands. Who gets the Schiff treatment next? If you think politics is ugly now, imagine a world in which congressional partisans routinely track and expose the call lists of their political rivals and disfavored media.
If we’ve never had a scandal like this before, it’s in part because it is legally dubious. Federal law bars phone carriers from handing over records without an individual’s agreement. The statute makes some exceptions, including for federal and state law-enforcement agencies.
But not for lawmakers. “There does not appear to be any basis to believe that a congressional committee is authorized to subpoena telephone records directly from a provider—as opposed to an individual,” former Attorney General Michael Mukasey tells me.
Maybe that’s because no one would have conceived of Congress needing to peruse private phone records. Its mission is writing laws. Or it might have been in recognition that Congress has no outside check on its subpoena powers. Law-enforcement subpoenas generally entail court supervision, helping to ensure they have a valid purpose. Mr. Schiff, working in secret, unilaterally decided he was entitled to see the phone records of private citizens.
Mr. Mukasey notes that the legal problem is “compounded,” in that going after Mr. Giuliani “raises questions of work-product and attorney- client privilege.” Whatever his role in the Ukraine affair, Mr. Giuliani remains the president’s personal lawyer. Law enforcement must present a judge with powerful evidence to get permission to vitiate attorney-client privilege. Mr. Schiff ignored all that, and made himself privy to data that could expose the legal strategies of the man he is investigating.
Obtaining phone logs of political rivals is a stunning abuse of congressional power.
Mr. Giuliani did have notice that Democrats wanted some of his phone records. The Intelligence Committee sent a subpoena on Sept. 30, and gave him until Oct. 15 to comply. Yet before Mr. Giuliani even had an opportunity to respond, Mr. Schiff separately moved to seize his records from a phone carrier, sending his subpoena to AT& T on Sept. 30 as well.
Mr. Schiff purposely kept that action secret. This guaranteed that the only entity involved with a decision over whether to release the records was AT& T. And that gave Mr. Schiff all the cards, since companies fear political retribution far more than violating their customers’ privacy.
The question is whether Mr. Schiff, in his zeal to bring down Mr. Trump, has made himself legally vulnerable. In Kilbourn v. Thompson (1881), the U.S. Supreme Court held that “a congressional investigation into individual affairs is invalid if unrelated to any legislative purpose.” Mr. Schiff might argue he has wider powers in an impeachment inquiry. But the House didn’t approve the inquiry until Oct. 31, a month after he issued his main AT& T subpoena.
“The subpoenas aren’t related to legitimate congressional oversight,” says constitutional lawyer David Rivkin. Because there’s “no conceivable legislative purpose to obtaining these call logs and publicly disclosing this information, Mr. Schiff would not be able to benefit from the Speech and Debate Clause immunity that otherwise protects members of Congress from civil and criminal liability.” Mr. Rivkin adds that any of the targets could sue Mr. Schiff under state law for invasion of privacy or intentional infliction of emotional distress, and potentially even compel Mr. Schiff to turn over documents in discovery.
Mr. Nunes has already said he’s weighing his legal options. Since House Democrats obviously won’t hold Mr. Schiff accountable for his abuses, let’s hope at least one of the targets demands a court review his tactics. No one should want to live in a world where Adam Schiff has unfettered power to spy on Americans.
Kimberly Strassel WSJ 11/15/2019
Democrats have already lost their impeachment battle. That’s the takeaway from Wednesday’s first public hearing. What was meant to be a moment in history turned out to be business as usual.
Democrats laid out their best case for removing Donald J. Trump from office, repeatedly using words like “extortion,” “bribery” and “abuse of power.” Mr. Trump was accused of “presidential misconduct,” of a “shakedown scheme” and of “corruption.” He was said to have broken the law and violated the Constitution. Texas Rep. Joaquin Castro analogized the president’s actions to “attempted murder.”
What else is new? The left has been leveling similar claims since before Mr. Trump was elected. When a party spends three years baselessly accusing a president of everything from being a Russian mole to obstructing justice, from profiting off the presidency to abusing security clearances and cheating on his taxes, that party loses the credibility to say: Really, this time, we mean it. Democrats didn’t lose the war for hearts and minds on Wednesday. They lost it three years ago.
Those hearts and minds are the only prize here. The media will continue to imbue this event with gravity, to report every bit of testimony as more “bombshell” evidence against Mr. Trump. But impeachment is a political process, so the measure of its “success” is whether its supporters can convince a bipartisan majority of the country that Mr. Trump took an action worthy of removal from office. Nothing in Wednesday’s hearing came close, and the Democrats took their best shot.
The FiveThirtyEight blog offers a useful polling tracker that broadly sums up public opinion on impeachment. Aside from a bump in favor in late September, when Speaker Nancy Pelosi announced her semiformal impeachment inquiry, the ensuing weeks of testimony and leaks have barely moved the needle. Instead positions have hardened. Democrats overwhelming support impeachment; Republican overwhelmingly oppose it. A majority of independents continue to oppose it. And a Politico/Morning Consult poll this week found that 81% of voters say there is no or little chance they will change their minds about the proceedings.
As for the 8% of respondents who say there is “some” chance they could be persuaded, what did Wednesday’s hearing provide them? Not much new. The Democratic strategy of holding depositions in secret and leaking nuggets meant they’d already handed out their best info to the public. The hearing was a repeat, only this time with Republican push-back.
For the most part, it was a five-hour slog through the minutiae of U.S. policy toward Ukraine. Even political junkies had a tough task trying to keep track of dates, meetings and the long, dizzying cast of bureaucratic players. Two State Department officials, William Taylor and George Kent, laid out their concerns over the temporary delay in security aid to Ukraine and their belief that it was driven by domestic politics.
At the same time, viewers watched the Democrats’ two star witnesses acknowledge that they had no firsthand knowledge of White House decisions on the aid. They were reminded that Ukraine got the money without launching an investigation into Hunter or Joe Biden. And they watched Republican congressmen make a persuasive case that Democrats are abusing the process by blackballing White House counsel from hearings and refusing to call witnesses from the Republican list.
A Roll Call story this week about voter sentiment on impeachment in Washington state quoted Mark Stephan, a political science professor at Washington State University Vancouver. He said most voters “are either not exactly tuned to it closely, or . . . they’re just like, ‘I can’t make anything of this. This all seems like a Washington, D.C., mess.’ ” That’s a Democratic failure by any measure, and it is hard to see how that dynamic could change as the hearings progress. Friday’s hearing is with a former U.S. ambassador to Ukraine, who left that post two months before the disputed phone call. Next week’s hearings will include more critics but also witnesses such as Kurt Volker, former special representative to Ukraine, and Gordon Sondland, the U.S. ambassador to the European Union, who will likely defend the administration’s actions. Democrats have meanwhile abandoned efforts to get testimony from central players, including former national security adviser John Bolton. Such testimony would arguably be most important, but Democrats have decided the process would take too long. They want a quick vote, not a thorough probe.
Given the current dynamic, it’s also hard to see how impeachment redounds to either party’s benefit. Both sides are already claiming victory and will use it as a voter-turnout tool in 2020. Impeachment is meant to be a big deal, but Democrats and the media have accomplished the disturbing feat of turning it into day-to-day partisan warfare. And the public is understandably treating it as just that: Washington as usual.
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Let’s not confuse anyone with the facts…
To believe most media descriptions of Justice Department lawyer Bruce Ohr, he is a nonentity, unworthy of the attention President Trump has given him. This is remarkable, given that Mr. Ohr spent Tuesday confirming for Congress its worst suspicions about the Federal Bureau of Investigation’s abuse of its surveillance and sourcing rules.
If Mr. Ohr is only now under the spotlight, it’s because it has taken so much effort to unpack his role in the FBI’s 2016 investigation of the Trump campaign. Over the past year, congressional investigators found out that Mr. Ohr’s wife, Nellie, worked for Fusion GPS, the opposition-research firm that gave its infamous dossier, funded by the Hillary Clinton campaign, to the FBI. They then discovered that Mr. Ohr had numerous interactions of his own with Fusion chief Glenn Simpson and dossier author Christopher Steele, and that he passed on information from these talks to the bureau. So the G-men were being fed the dossier allegations from both the outside and the inside.
This week’s news is that Mr. Ohr’s deliveries to the FBI came with a caveat. Congress already knew that Mr. Ohr had been aware of Mr. Steele’s political biases. In notes Mr. Ohr took of a September 2016 conversation with Mr. Steele, he wrote that the dossier author “was desperate that Donald Trump not get elected and was passionate about him not being president.” Congressional sources tell me that Mr. Ohr revealed Tuesday that he verbally warned the FBI that its source had a credibility problem, alerting the bureau to Mr. Steele’s leanings and motives. He also informed the bureau that Mrs. Ohr was working for Fusion and contributing to the dossier project.
Mr. Ohr said, moreover, that he delivered this information before the FBI’s first application to the Foreign Intelligence Surveillance Court for a warrant against Trump aide Carter Page, in October 2016. Yet the FBI made no mention of this warning in the application, instead characterizing Mr. Steele as a “reliable” source. Nor does the application note that a senior Justice Department official’s spouse was contributing to the dossier and benefiting financially from a document the FBI was using in an investigation. That matters both because the FBI failed to flag the enormous conflict and because Mr. Steele’s work product potentially wasn’t entirely his own.
No reference to Mr. Ohr—direct or cloaked—can be found in any of the four applications for Page warrants, according to those who have seen them. This despite his more than a dozen conversations with FBI agents over the course of the probe that addressed the content in and sourcing behind the surveillance applications. I’m told Mr. Ohr made clear that these conversations variously included all the heavyweights in the FBI investigation—former lead investigator Peter Strzok, former FBI senior lawyer Lisa Page, and former Deputy Director Andrew McCabe. So senior people were very aware of his role, information and conflict.
All this is what Republicans are referring to when they hint that the Ohr interview provided solid evidence that the FBI abused the Foreign Intelligence Surveillance Act. “Before yesterday, we thought the FBI and DOJ had not disclosed material facts they were aware of in the FISA application. If Bruce Ohr testified truthfully, we now know that to be the case,” Rep. John Ratcliffe of Texas tweeted Wednesday. (The Justice Department declined to comment, citing an inspector-general investigation.)
As for Mr. Ohr’s interaction with the FBI, he told congressional investigators this week that while initially he reached out to the FBI, the bureau also later came looking for information about Mr. Steele. That outreach happened after the FBI had terminated Mr. Steele as a source in October 2016 for violating bureau rules about talking to media. So even after having been warned of Mr. Steele’s motivations, even after having fired him for violating the rules, the FBI continued to seek his information—using Mr. Ohr as a back channel. This surely violates the FBI manual governing interaction with confidential human sources.
That Mr. Ohr came shopping the Steele info should have on its own set off FBI alarm bells. Mr. Steele was already in direct contact with the FBI by early July. Why would Mr. Steele then go to work on a Justice Department source, and refunnel the same allegations to the bureau? The likely answer is that the Fusion crowd wanted to exert maximum pressure on the FBI to act. Had the FBI bothered to try to find out what was behind such a pressure campaign, it might have stumbled upon the obvious answer: politics.
Unless it didn’t care. The evidence continues to mount that the FBI didn’t want to know about bias, or about conflicts of interest, or about the political paymasters behind the dossier—and it certainly didn’t want the surveillance court to know. It wanted to investigate Donald Trump.