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First Drafts, Conversations, Stories in Progress

The Daily Trump: Filling a Time Capsule
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People will look back on this era in our history to see what was known about Donald Trump while Americans were deciding whether to choose him as president. Here’s a running chronicle from James Fallows on the evidence available to voters as they make their choice, and of how Trump has broken the norms that applied to previous major-party candidates. (For a Fallows-led, ongoing reader discussion on Trump’s rise to the presidency, see “Trump Nation.”)

Show 7 Newer Notes

Midterm Time Capsule, 48 Days to Go: Children, the Future, Cancer, Due Process

Border Patrol agents taking a Central American child into custody, this past June, in McAllen, Texas. John Moore / Getty

Here are some items from the news that barely break the consciousness-barrier, amid the Kavanaugh confirmation fight and other chaos, but that I expect will be considered significant in the history of our times:

(1) Children. Starting back in the Clinton administration, U.S. immigration authorities have been under court supervision for handling any children who are caught with parents or other adults during border crossings. Together the rules for treating children are often referred to as “Flores standards” or “the Flores settlement,” after Flores v. Reno, a case filed back when Janet Reno was attorney general.

The rules are complicated, and you can see more here and here. Apparent violations of Flores, along with basic cruelty, were at the heart of the controversy about separating children from parents at the southern border this past summer.

One important part of current Flores standards is that children apprehended along with adults can’t be held for more than 20 days. Having lost a long sequence of court rulings about its “zero-tolerance” approach and other immigration policies, the Trump administration is now proposing essentially to de-impose the Flores limits, through new regulatory guidance. You can read more about what the changes would mean here. (The new approach is likely to be challenged in court, too.)

(2) The future. Human activity produces roughly five times as much carbon dioxide as emissions of methane. But methane is vastly more powerful as an agent of climate change. You can see the details here and here, but as an approximation methane is at least 80 times stronger than CO2 in its short-term climate effect, and as a recent article put it, “its impact is 34 times greater than CO2 over a 100-year period, according to the latest IPCC Assessment Report.”

Statement from the White House, with Donald Trump's order that closely protected secret information be made public. Screenshot from White House Press Office

Because these details tend to get lost in the froth, let’s pause to note two extraordinary steps Donald Trump took in the past 24 hours.

One of them is literally unprecedented; the other is a sharp departure from modern norms. I’m not aware of any member of the governing GOP majority objecting to either of them.

They are:

(1) Declassifying FISA warrants and messages from FBI agents. Presumably because he thinks these messages might embarrass people he considers enemies, on Monday Trump ordered the Director of National Intelligence and the Department of Justice (which includes the FBI) to make public “without redaction” a variety of text messages, reports, and even FISA warrants all involved in the Russian-influence probe.

Why did this matter? Because the FISA warrants, the FBI reports, and these other documents presumably contain details on how the government knows what it knows. Who its sources are, what informants and moles it has developed, which surveillance systems work, which enemy codes have been broken. Recall the familiar (though disputed and even disproved) claim that in World War II Winston Churchill let the Luftwaffe bombing of Coventry proceed — rather than evacuate the city, which could have tipped off the Germans to how much the British knew. Whether or not that story is correct (probably not), as a parable it illustrates how important protecting “sources and methods” can be. And in this case Trump decreed: I don’t care.

The “Gang of Eight” within the Congress is supposed to be the bipartisan bulwark against misuse of the intelligence system. Today a “Gang of Four” — the Democratic half of the full-scale octet Gang — protested bitterly against Trump’s decision, and appealed to the FBI and intelligence establishment to ignore it, or slow it down.

From a cartoon by Kal, of the Baltimore Sun, after the Anita Hill hearings in 1991. Courtesy Kevin KAL Kallaugher, Baltimore Sun

At the moment, in mid-September—with no way of knowing how the midterm elections will go, or what legal entanglements lie ahead for Donald Trump—we do have one possible gauge of how far the politics of 2018 have actually deviated from previous norms.

It involves the prospects for Brett Kavanaugh’s nomination to the Supreme Court.

Through post-World War II political history, there have been distinct moments when a nomination curdles, or sours—and when the assumption shifts from likely approval, which is the starting point for most selections by most presidents, to likely failure.

  • In 1987, Ronald Reagan’s pick to succeed Lewis Powell on the Court, a 41-year-old federal judge named Douglas Ginsburg, withdrew from consideration less than two weeks after he was announced, because of an (unbelievable in retrospect) controversy about marijuana use. The complications of sticking with him were piling up too fast. (Previously Reagan had named Robert Bork for this seat; that nomination went down, after a bitter fight, by a 42-58 vote, with 58 voting against him. After Ginsburg bowed out, Reagan turned to Anthony Kennedy—whose retirement this year opened the seat Kavanaugh would hold.)
  • In 2005, George W. Bush’s pick to succeed Sandra Day O’Connor on the Court, a 60-year-old White House staff official named Harriet Miers, withdrew from consideration three weeks after she was announced, in the face of Democratic criticism about her lack of judicial experience and Republican doubts about her policy views. The fight to defend her seemed not worth the cost. (Samuel Alito was eventually confirmed for this seat. )
  • In 2009, Barack Obama’s pick as the new Secretary of Health and Human Services, former Senate Majority Leader Tom Daschle, withdrew from consideration two weeks after Obama was sworn in, because of (again penny-ante in retrospect) questions about his failure to declare use of a private-car service as taxable income, and related personal-finance issues. Losing him hurt Obama badly, but at the time the fight to keep him seemed likely to hurt more.

Anyone who has been around politics has seen similar episodes, when opposition starts cresting, and one of three outcomes is in view:

(1) A nominee fights bitterly—and hangs on, as Clarence Thomas did for his seat on the Supreme Court in 1991.

(2) A nominee fights bitterly—and loses, as Bork did in 1987.

(3) a nominee sees defeat impending, and decides to get out of the way (or is moved out of the way) to cut losses and minimize the public humiliation.


If these were normal times, we’d say that option (3) is in view for Brett Kavanaugh.

Senator Jeff Flake, of Arizona, shown while seated, but standing up today. Joshua Roberts / Reuters

According to the Washington Post just now, Senator Jeff Flake, of Arizona, who is a Republican and a member of the Judiciary Committee, has said that a vote on Brett Kavanaugh’s nomination to the Supreme Court should be delayed, until his latest accuser (Christine Blasey Ford) can testify.

As the story says:

In an interview with The Post, Flake said that Ford “must be heard” before a committee vote.

“I’ve made it clear that I’m not comfortable moving ahead with the vote on Thursday if we have not heard her side of the story or explored this further,” said Flake, who is one of the committee’s 21 members. Republicans hold an 11-to-10 majority on the panel and Flake’s opposition to a vote could stall the nomination….

“For me, we can’t vote until we hear more,” he said.

Good for Senator Flake. (Assuming he backs this up.)


On the merits, this is not even a close call. As I argued in a long post last night, as David Frum argued today, and as Garrett Epps explained with rich legal-political detail, a rush to judgment is the last thing the Senate should be contemplating with Kavanaugh.

He is being considered for a lifetime appointment to one of the most powerful, and least accountable, roles in American governance. Two very experienced senators (Patrick Leahy and Dianne Feinstein) have directly accused Kavanaugh of lying under oath about his past political activities. If the accusations of sexual aggression are true, then he has lied to investigators and senators about this as well.

I don’t know the underlying truth of any of these matters. But neither do the senators. There is simply no defensible argument, on any front, for rushing to an irrevocable decision whose consequences could last for decades.

(Irrevocable? As I explain in this piece, once a justice is sworn onto the Supreme Court, he or she is effectively above the law. The last impeachment of a justice was in 1805—and that justice, Samuel Chase, stayed on the Court. The evidence about Clarence Thomas has mounted since his rushed confirmation 27 years ago, but it doesn’t matter. Decades? Kavanaugh is 53 years old. Ruth Bader Ginsburg is 85. If he lasts as long as she has, he could be there for eight more presidential races. )

Donald Trump hardly knew Paul Manafort. Except when Manafort was running his presidential campaign. Here they are, with Ivanka Trump, at the Republican convention, in a scene I witnessed personally from the convention floor. Rich Wilking / Reuters

Two days ago, Paul Manafort made his plea-bargain deal with Robert Mueller’s federal investigators. As part of the terms, he says he will cooperate fully and truthfully with the federal team—knowing that his sentencing can be delayed until his “efforts to cooperate have been completed, as determined by the Government.”

As an example of a subject on which he might have useful information to share, I send you back to Trump Time Capsule #71 from the original campaign-cycle series. You see its headline below.

The Atlantic.

What we know now, and could only assume and guess and infer then, was that Manafort was lying — and so were many other people in the campaign.

Justice Thurgood Marshall, first African-American to serve on the Supreme Court, whose retirement opened the seat Clarence Thomas now holds. Thomas J. O’Halloran, via Library of Congress

The most cynical decision George H. W. Bush made as president was to nominate Clarence Thomas to the Supreme Court.

The choice was cynical because of Thomas’s race. In 1991 Bush had a vacancy to fill when Thurgood Marshall—the first African American ever to sit on the Court, the man who had successfully argued the historic Brown v. Board of Education case before the Court as a lawyer for the NAACP—decided to retire.

Clarence Thomas’s views were the opposite of Marshall’s on just about every front, as Juan Williams (then of the Washington Post, now best known from Fox News) explained in an Atlantic profile several years before Thomas’s nomination. But Bush knew that liberal critics of Thomas’s conservative views would be in a bind. If they opposed him—a graduate of Yale Law School, who had started out as a poor child in the segregated South—they would of course be blocking a black successor to America’s first-ever black justice.

Thomas himself left no doubt about this framing of events, saying in his opening statement to the Senate Judiciary Committee that criticism of him had amounted to a “high-tech lynching for uppity blacks who in any way deign to think for themselves.”

Bush’s cynicism came through in his announcement of the Thomas choice,  implausibly claiming that “the fact that he is black and a minority has nothing to do” with the selection. The only reason for the choice, he said, was that Thomas was “the best qualified [candidate] at this time.”

The “best qualified” claim was risible. Thomas was 43 years old and had spent only a year-plus as a judge. In an editorial opposing his confirmation, The New York Times said:

If the Thomas nomination is to be judged on the merits, it fails.

The fault, in the end, is not that of the nominee but of the man who nominated him … By nominating this black conservative, President Bush serves a narrow partisan interest when the public has a right to expect him to nominate a lawyer or judge of proven distinction.”

But of course Thomas made it through a bitter confirmation process. He won approval from the Senate on a vote of 52-48 and took what had been Thurgood Marshall’s seat at age 43. He is only 70 years old now and conceivably could be on the Court through several more presidencies. Already he has been a fifth vote in such history-changing 5-4 decisions as Citizens United in 2010 (which ushered in nearly limitless money in politics); Heller in 2008 (which ushered in the novel concept that Second Amendment protection for a “well-regulated militia” extended to any individual who wanted to own firearms); and Bush v.Gore in 2000 (which ushered in  … )

General Joseph Joffre, in the center, around the time of his successful command of French troops at the First Battle of the Marne in World War I. Behind him is General Philippe Pétain, revered for his service during that war, later reviled for his figurehead leadership of France's 1940s Vichy regime. Marshal Pétain is the guiding spirit of this Midterm Time Capsule series. George Grantham Bain Collection, Library of Congress

As I write, the national news is dominated by the arrival of Hurricane Florence, and the political news has emphasized Donald Trump’s reaction to this event and last year’s Hurricane Maria. Other Atlantic pieces lay out some of the problems with Trump’s response: for instance, one by David Graham here and others by Vann Newkirk here and here. My purpose this evening is to contrast the way this president is reacting to a natural-disaster challenge with what his predecessors have done.

Let’s review the chronology:

  • On Tuesday, September 12, Donald Trump awarded himself “A pluses” for his administration’s hurricane-response efforts in Florida and Texas. In a tweet he also said that his team “did an unappreciated great job in Puerto Rico, even though an inaccessible island with very poor electricity and a totally incompetent Mayor of San Juan). We are ready for the big one that is coming!” That big one is of course Hurricane Florence, which as of this writing is beginning its landfall on the Carolina coast.
    Via Twitter
  • This morning, September 13, Trump sent out Tweets asserting that reports of large-scale casualties in Puerto Rico were hype and faked—and that the fakery was part of a scheme to “make me look as bad as possible.”
    Via Twitter
The famous "Gerrymander" cartoon, drawn by Elkanah Tisdale and published in the Boston Centinel in 1812, showing an unfair districting map drawn by Massachusetts governor Elbridge Gerry. Wikimedia

Back during the 2016 campaign, I put out 152 installments of the Trump Time Capsule series, chronicling what was known about this man at just the time the Republican party was deciding to accept (and then embrace) him as its nominee, and as the states of Michigan, Wisconsin, and Pennsylvania were delivering him an Electoral College win.

I put it that way as a reminder that if a total of under 100,000 votes in those three states had gone the other way—about 44,000 in Pennsylvania, 23,000 in Wisconsin, under 10,000 in Michigan, together totaling about 1/1500th of the national electorate—then the Electoral College result would have matched the popular vote, and Donald Trump would never have taken office. And I emphasize this point to mark an underappreciated political-consciousness shift:

Until November, 2000, no living American had any reason to view the “Electoral College versus popular vote” distinction as anything other than a quaintly antique curiosity, since the most recent time there’d been any difference in results was back in 1888. That was before cars or airplanes had been invented; when not even one U.S. household in 100 had electricity; when most Americans lived on farms; and when the right to vote was mainly limited to white males.

Through modern America’s 20th-century rise, citizens and politicians alike, Republicans and Democrats and others, assumed that, whatever the theoretical oddities of 18th-century drafting, the U.S. would in reality function like the many other democracies it inspired, and base public office on public support. But now this era’s Americans have become inured to a minority-rule system that is outside the historical norms for a country where protection of minority rights was an important founding concern.

Four years ago, the man on the left won 47.2% of the popular vote for president. When all of this year's votes are counted, the man on the right will probably come in slightly below that number. Mike Segar / Reuters

Back in May, I kicked off a Trump Time Capsule series, designed to note what we knew, when we knew it, about the man who was trying to become president. Earlier this month, just before the election, I wound up the series with installment #152.

From the beginning I imagined this as a temporary, moment-in-time project. To be honest, I wasn’t sure whether it would last beyond 10 or 15 entries. Now that the race is over and the reality of the 45th presidency is sinking in, every day I’ve received numerous notes like this one:

I saw a clip of Paul Ryan the other day, blithely dismissing concerns about Trump’s kids running his business and being part of the transition team. The thought occurred to me: This should be in the Trump Time Capsule.

Really, why did the Trump Capsule end? I know it was to record abnormal aspects of his campaign, but it was also a way to pressure and shame Republican leaders, by making them—and the public—fully cognizant of what they were supporting. I feel like we need that now. You’re still mentioning abnormal things that Trump is doing in the transition. I think it’s important for the public to know and to prod Republicans.

Also, if you would seriously consider restarting this, can make a suggestion? What about having a conservative/Republican join you in this? (Think of someone like Alan Simpson.) This would be a booster shot to the project, inoculating it against the liberal bias virus. This could give more authority to your observations. Actually, it’d be great if a group of journalists, politicians, academics from across the political spectrum could band together and speak in one voice on these issues.

Good question. Answer after the jump.

Carlo Allegri / Reuters

Five and a half months ago, as Donald Trump effectively clinched the Republican nomination, I thought it would be worth keeping track day-by-day of what the American public knew about Trump while it was deciding whether he would become its next president. Thus the Trump Time Capsule series, which began with installments #1 through #3 on May 23, and comes to an end with #152 today.

The main idea was to chronicle what was different about Trump: Norm-changing, unprecedented statements or positions or revelations that would have stopped any previous candidate but that did not impede him.

As I look back over these unfolding stories, I see at least 40 or 50 that would have had that campaign-ending potential in any previous year. The mocking of first John McCain and then the Captain Khan family? The “Mexican judge”? The “grab ’em by the pussy” Access Hollywood tape and subsequent complaints? The de-facto admission that he’s paid no taxes, and the trail of fraud and buncombe left by his businesses and “charities”? The refusal to provide tax information at all? The disprovable-even-as-he-said-them series of lies? The ever-more evident intrusions on his behalf by a foreign government? “She should be in jail”? “It’s all rigged folks, I tell you”? I alone?

To put these into perspective, just think back to the comparatively pipsqueak “scandals” of a more innocent time: Whether Sarah Palin really read newspapers. Whether Barack Obama called some people “bitter.” Whether Mitt Romney thought 47 percent of the public might be freeloading. Whether Rick Perry had to leave the race because he forgot one of his talking points in a brain-freeze on stage. Whether Dan Quayle could spell “potatoe.” Whether Al Gore exaggerated his role as a founder of the internet. Whether the young George Bush had had a DUI. The chagrin these episodes caused to their victims is almost touching. The candidates’ embarrassment indicated that they believed there was a standard in public life they needed to live up to.

***

This cycle’s only “scandal” that fits the pre-existing scale is the Hillary Clinton email saga, which has been ludicrously exaggerated by adversary outlets (Breitbart / Fox) and by “mainstream” media (most cable TV, too often the NYT) to the point where many voters assume that it’s on a par with, say, Donald Trump’s reckless comments about nuclear weapons or treaties or rule-of-law, his deceptions about his finances, his long record with women, his numberless provable lies.

Hillary Clinton’s management of her email server was a mistake, which probably reflects something more general about her—just as other similar-scaled mistakes by other candidates in the past reflected more generally on them. But there is no sane argument that it has deserved even one tenth the press attention it has received this year. As Matt Yglesias points out in a new Vox item, TV coverage this cycle, in aggregate, spent more airtime on the email “scandal” than on all policy matters combined.

Presented with minimal elaboration, today’s installment of the “what is Director Comey thinking?” saga:

CNBC report, on Halloween 2016

This story is still in the “unnamed sources say...” category, though it’s by an experienced and reputable reporter, Eamon Javers. Like everything else in these chaotic final days of this unendurable campaign, its full implications are impossible to know while the news is still unfolding.

But at face value the report underscores the depth of the bad judgment that James Comey displayed last week. It suggests that the director of the FBI knew, reflected upon, and was deterred by the possible election-distorting effects of releasing information early this month about Russian attempts to tamper with the upcoming election. Better to err on the side of not putting the FBI’s stamp on politically sensitive allegations—even though, as Javers’s source contends, Comey believed the allegations of Russian interference to be true:

According to the [unnamed former FBI] official, Comey agreed with the conclusion the intelligence community came to: “A foreign power was trying to undermine the election. He believed it to be true, but was against putting it out before the election.” Comey’s position, this official said, was “if it is said, it shouldn’t come from the FBI, which as you’ll recall it did not.”

That was at the beginning of October. But at the end of the month, three weeks closer to the election, he manifestly was not deterred by the implications of his announcement about the Abedin/Weiner emails. And this was even though, by all accounts, he did not know what they contained or even whether the emails  were new. (As opposed to duplicates of what the FBI had already seen.)

The news of this is still in flux. I’m noting here just to mark its appearance more or less in real-time.

***

We all have another week to get through. In theory, James Comey has seven more years in charge of the FBI.

James Comey, who has changed the 2016 election in a way that cannot be undone. Jonathan Ernst / Reuters

The rules in politics haven’t changed that much in recent years. What has changed is adherence to norms, in an increasingly destructive way.

I made that case, using examples different from the ones I’m about to present here, nearly two years ago. The shift in norms is also a central part of Thomas Mann’s and Norman Ornstein’s prescient It’s Even Worse Than It Looks and Mike Lofgren’s The Party Is Over, plus of course Jonathan Rauch’s “How American Politics Went Insane,” our very widely read cover story (subscribe!) this summer.

Today’s examples:

—Before 2006, use of a Senate filibuster to block legislation or nominations was an occasional tool-of-the-minority, not a routine practice. Now it has become so routine and, well, normalized that a story in our leading newspaper can matter-of-factly say, “It actually takes 60 votes to bring a Supreme Court nomination to the Senate floor.” Actually it takes 60 votes only if there is a filibuster, which didn’t use to be normal. Inconceivable as it now seems, three of Ronald Reagan’s nominees—Justices Scalia, Kennedy, and O’Connor—were approved unanimously. Most Democrats in the Senate disagreed with some or all of their views. Not a single Democrat voted against them.

—Before February of this year, the universal assumption was that a sitting president’s nominations for the Supreme Court would be considered, although of course they might be voted down. But before the sun had set on the day of Antonin Scalia’s death, Mitch McConnell had made clear that the Senate would not consider any nomination from the 44th president, and since then John McCain and others have suggested that, depending on who becomes the 45th president, her nominations might not be considered either. (For historic reference you can see an official list here, showing relatively prompt consideration up-or-down of previous nominees.)

—Before this year, the norm through the post-Watergate era was that any major-party presidential nominee would make tax-return information public, in enough time before the election for voters to consider the implications of income sources, debts, donations, and other entanglements. Donald Trump has flatly refused, and his own party’s members barely bother to mention it anymore.

—Before this summer, sitting Supreme Court justices, no matter how evident their partisan leanings, avoided publicly taking sides in upcoming elections. Ruth Bader Ginsburg ignored that norm by saying in July how much she hoped Donald Trump did not become president. To her credit, and in contrast to these other cases, within a few days she belatedly honored the importance of this norm by apologizing for her remarks.

***

The official rules didn’t change in these circumstances. The norms—that is, the expectation of what you “should” do, what you “really have to do,” what is the “right thing” to do, even if the letter of the law doesn’t spell it out—have changed. For its survival, a democracy depends on norms. That’s why the shift matters.

And that is the context in which I think about James Comey’s plunge into electoral politics, with his announcement about whatever “new” Clinton-related email information the FBI may or may not have found.