Fair and Unbalanced

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Mike Littwin

"The pump don't work 'cause the vandals took the handles."

Excuse me if I take the local angle on the huge national story, in which Democrat Doug Jones shocked the political world by getting himself elected in, of all places, Alabama.

But it’s as good a place to start as any. You see, it seemed as if Jones’ upset victory would be a huge break for Colorado’s own Cory Gardner, who was among the most vocal (although not all that vocal) opponents of Roy Moore from the establishment wing of the Republican Party. And in being so vocal (although, in truth, maybe not as vocal as you’d think), Gardner had put himself squarely in the expel-Roy-Moore-if-he-wins camp — which was not Donald Trump’s camp at all.

And yet, if Moore’s defeat was a break for Gardner, who must have been desperately plotting how to avoid clashing with Trump, you couldn’t tell it from Gardner’s bizarre response to Jones’ victory, which was to say that Jones should vote with — wait for it — Republicans. Because, you know, Alabama is a red state.

No, really. I don’t know if it’s desperation or just what comes of late-night tweeting, but here’s the quote: “I hope Senator-elect Doug Jones will do the right thing and truly represent AL by choosing to vote with the Senate Repub Majority.”

OK, the logic doesn’t exactly hold unless Gardner believes that since Colorado leans bluish, he should vote with the Dems, say, 55 percent of the time. Or, for that matter, ever. If memory serves, Gardner just voted to kick millions off Obamacare to hand billions over to corporations. Wonder if that’s a Colorado position.

But it’s even weirder than that. Ronna (née Romney) McDaniel,  the Republican National Committee chair,  said something strangely similar. Gardner, as chair of the National Republican Senatorial Committee, officially made it a GOP bizarro-world theme going forward.

The problem for Gardner, and Republicans, is that they didn’t really catch a break. The night was a disaster for Republicans, who couldn’t possibly lose in Alabama unless they had managed to nominate a homophobic, anti-Muslim, slavery-nostalgic, (alleged) child-molesting sexual predator.

It’s fair to say Republicans didn’t know what to do with Moore. Gardner said Moore was unfit to be a senator. Mitch McConnell said it was up to Alabamians if they wanted to elect a pervert. Donald Trump, who campaigned for Moore, insisted Moore’s vote was desperately needed in Washington. The RNC, deciding at Trump’s urging to back the alleged pervert, made a late push for Moore. Steve Bannon, meanwhile, said a Sen. Moore would be at the forefront of the anti-McConnell Trumpian revolution.

And when it was all over, Moore refused to concede, saying God would point the way to a recount. So, even God couldn’t catch a break.

The analysts didn’t need divine help to explain what had happened. Alabama’s African-American voters, who saw in Moore a straight-up surrogate for Trump, came out in even greater numbers than they had for Barack Obama in 2012. They made up 29 percent of the electorate and gave Jones 96 percent of their vote. Millennials, as they have in all recent elections, abandoned Republicans en masse. Jones lost college-educated white women by seven points. In 2012, Obama lost them by 55.

These numbers look a lot like what happened in the recent gubernatorial elections in Virginia and New Jersey. In other words, you can spot a trend here. And so can Gardner, who has taken on the job of trying to hold the Senate for Republicans in 2018. That was once seen as a slam dunk. Now it’s more like a slightly off-balance three-pointer. Even though the Senate map heavily favors Republicans, the math moves the 2018 election ever closer to a toss-up. In the House, Democrats are probably a very slight favorite to regain the majority.

Maybe the most telling exit-poll numbers from Tuesday night were that 91 percent of Republicans voted for Moore and that 93 percent of voters who disapprove of Trump voted for Jones.

The 91 percent show that the Trump base is still the Trump base, but that for Moore to have lost, many Republicans had to have chosen to stay home. The 93 percent number shows, as Ron Brownstein pointed out in The Atlantic, how critical the anti-Trump vote will be for Republicans in 2018. If Trump’s approval numbers remain in the 30s or low 40s, it’s going to be a difficult midterm election. Democrats won 82 percent of the anti-Trumpists in New Jersey and 87 percent in Virginia.

Moore was, of course, a special case. Even with Bannon’s determined help, Republicans won’t nominate anyone like him in the near future. But Alabama is a special case, too. Democrats don’t win in Alabama. Ever.

To understand the fix Republicans find themselves in, you just had to take in the big Trump-generated news of the day on Election Day. The last thing Republicans needed was to remind everyone of Moore’s, uh, mall-stalking issue. And yet, in response to New York Sen. Kirsten Gillibrand’s comments that Trump should resign in light of the many women who had accused him of sexual harassment or worse, Trump tweeted that Gillibrand “would do anything” for campaign contributions and had once come “begging” to him.

The reaction was just what you’d expect. In other words, as the normally mild-mannered USA Today editorial board would write in a notably bipartisan slam: “A president who’d all but call a senator a whore is unfit to clean toilets in Obama’s presidential library or to shine George W. Bush’s shoes.”

The outrage was fairly universal, if you don’t count Sarah Huckabee Sanders. Although I don’t recall Gardner, McConnell, Bannon or even Moore saying a word about it.

Photo by FolsomNatural via Flickr:Creative Commons

Now that Al Franken has resigned, it is fair to note that while this was the right to thing to — and not just so Democrats could claim the moral high ground — the loss of Franken, a good and important senator, is not without cost.

Look, if it doesn’t cost anything, it’s no great feat to take the high ground. Or course there’s cost. And, of course, as Franken pointed out in his resignation speech, there is irony that he is resigning while the self-admitted pussy grabber remains unmolested in the White House and an alleged sexual predator is running for the Senate from Alabama, and with the full embrace of Trump and the Republican National Committee.

As a few people have rightly pointed out, it is actually less ironic than it is outrageous. But there is also the fact of eight Franken accusers (I know, Trump has 16 ) and that this isn’t about whataboutism, but about a long, ugly and tortured history.

It’s not a particularly high standard to say our leaders shouldn’t cop feels, squeeze bottoms or thrust tongues where they’re not wanted. It’s not a particularly high standard, as Franken agrees, to say that women must be heard and believed and not shamed and discarded, even if his resignation speech seemed to suggest he didn’t completely understand it.

The point is, you don’t have to be Harvey Weinstein, or Roy Moore, to be held to account. And as Franken accusers kept coming forward with similar stories, an increasing number of Democratic women in the Senate could no longer accommodate a friend and an ally. They’d have to act.

Franken, who notably didn’t apologize in his speech on the Senate floor and instead said he believes he would have been cleared by the Senate Ethics Committee, resigned because the female senators demanded that he resign, and because so many Democrats followed. He had no choice. It was, without question, a watershed moment in American — and sexual — politics.

And for those who think it was all about politics, it’s true that the Democratic governor of Minnesota will appoint a Democrat to replace Franken. But it’s not as simple as that. Franken’s resignation means the seat is open again in 2018. And Minnesota, like Colorado, is very much a purple state. There’s no guarantee that this doesn’t become a Republican pickup next year in the closely divided Senate.

In a brilliant piece in Slate, Dahlia Lithwick takes the politics a step further. She writes that Franken’s resignation only proves that Republicans have successfully forced Democrats to accept an uneven playing field when it comes to morality.

Franken and Conyers go. Trump stays. Texas Rep. Blake Farenthold, who cashed in $85,000 of taxpayer money to settle a sexual harassment claim, stays. Moore, who is accused of sexually assaulting teenagers, stays in the race. You can spot a trend here, although, as I’m writing this, sources are saying that Trent Franks, an Arizona Republican congressman, is resigning — something about surrogacy, something, it seems, I don’t even want to know.

Yes, people like Cory Gardner condemn Moore and say he should be expelled if elected, but that’s as easy for Gardner as reading Colorado poll numbers. Don’t hold your breath waiting for Gardner to condemn Trump’s support for Moore or to insist that the Republican National Commitee stay out of the Alabama race. Gardner won’t condemn Mitch McConnell for shifting ground to say that it’s up to Alabama voters to decide, even as the president is saying that Alabama voters should elect Moore.

What Gardner and others want is to try to claim a small piece of the high ground. But there is no moral high ground when those in the RNC actually believe Moore’s accusers and still want to help him win. That’s right. They’re pushing hard for the mall stalker who allegedly called a girl out of her trig class and writes notes in high school yearbooks and who is accused of molesting a 14-year-old.

And so Lithwick writes: “Unilateral disarmament is tantamount to arming the other side. That may be a trade worth making in some cases. But it’s worth at least acknowledging that this is the current calculus. It’s no longer that when they go low, we get to go high. They are permanently living underground. How long can we afford to keep living in the clouds?”

What we know is that Democrats and Republicans are playing by different rules. That’s in part because their constituents demand it. In a recent Quinnipiac poll, 77 percent of Democrats said an elected official should resign if he is accused “by multiple people” of sexual harassment or assault. Only 51 percent of Republicans agreed.

It’s not clear what happens next. Sen. Lindsey Graham says that if Moore is elected, the stain will be carried by every Republican running in 2018. That’s certainly the way Democrats will play it. But it won’t stop there. The Moore question won’t go away. And now that Democrats have lost Franken, angry Democratic voters will want to avenge that loss.

In fact, not moments after Franken’s resignation, there were already calls for Senate Democrats to demand an investigation into the women’s accusations against Trump. Gaining the high ground is one thing. But doing something with it is another thing altogether.

Photo by John Taylor, via Flickr: Creative Commons

A man and a woman walk into a bakery and ask the baker to make them a wedding cake.

The baker asks the couple if they’ve had premarital sex.

The man and woman tell him it’s none of his business.

The baker says his religious beliefs prevent him from using his artistry to make a wedding cake for people who have had sex outside marriage. They can buy brownies or cupcakes or upside down cakes, but unless he knows they haven’t had sex outside marriage, he won’t bake them a wedding cake.

Farfetched? Of course, it’s farfetched. It’s absurd.

A mother and her 13-year-old son walk into a bakery and ask the baker to make them a cake for a bar mitzvah.

The baker says that his religion teaches him that Jews killed Christ. He can’t, therefore, use his artistry to make a cake for them celebrating a Jewish rite, even if the mother and son just want him to do a Rockies-themed cake showing Nolan Arenado making a play at third base. He said he can sell them brownies or cupcakes or upside down cakes.

Farfetched? In my long-ago youth, the whole Christ-killing belief was a thing, and it wouldn’t have been farfetched at all.

Two women walk into a bakery and ask the baker to make them a cake celebrating their daughter’s adoption.

The baker says he’s sorry but his religious beliefs prevent him from using his artistry to bake a cake for same-sex couples who adopt. But he’s happy for the little girl to have a cupcake. Heck, he’ll even give her one on the house.

Farfetched? Not so much. Still absurd, though.

A black man and a white woman walk into a bakery and ask the baker to make them a wedding cake.

The baker says his religion teaches him that miscegenation is a sin and so he can’t use his artistry to make them a wedding cake. He is not a racist, he tells them. He has nothing against anyone from any race or religion, but beliefs are beliefs, and his must be respected. He’s happy to sell them brownies or cupcakes or, hey, how about one of those black-and-white cookies.

Farfetched? Not really. Fifty years ago it was illegal in 16 states for mixed-race couples to marry, just as a few years ago, it was illegal in most states for same-sex couples to marry.

If it sounds like I’m pounding you on the head with this, I apologize. But I just don’t see where the Masterpiece cake case argued today before the Supreme Court is much different from any of the other examples. I’m not an expert on the law, but I know discrimination, like pornography, when I see it. And I understand the concept of public accommodation. It’s the concept that changed the Jim Crow laws in the South.

In the Masterpiece case, baker Jack Phillips refused to make a wedding reception cake for Charlie Craig and David Mullins. This was 2012. Same-sex marriage was not yet legal in Colorado, so they were going to Massachusetts to get married — a marriage that wouldn’t be recognized in Colorado — and come home for the reception. In Colorado, importantly, LGBTQ was a protected class against discrimination.

Mullins and Craig and Craig’s mother walked into Masterpiece Cakeshop with a book of potential designs for the cake. But after 20 seconds — everyone agrees to the timeline — Phillips told them he didn’t make cakes for same-sex weddings. He also doesn’t sell cakes for Halloween or, for that matter, for divorce celebrations, which may or may not be a major issue.

They didn’t discuss a design. It wasn’t about what message would be on the cake. There could have been no message on the cake. It was simply that Phillips wouldn’t make any cake, with any design, for a same-sex wedding because he was religiously opposed. And his artistry, his lawyers would argue, made it a free-speech issue. By making a cake for a reception — regardless of the cake’s message — he would be forced to use his artistic talents to endorse same-sex marriage.

Mullins and Craig took the case to the Colorado Civil Rights Commission, which ruled in their favor. And Phillips, standing up for principle, chose not to make any wedding cakes if it meant he had to make them for same-sex weddings.

I read the transcript of the oral arguments, which seemed to rest on two things. The first was whether making a cake is speech, even a cake with no message on it. The second was the always difficult question of when and how to make exceptions for religious beliefs in the public square.

Phillips says he is an artist, like, say, Picasso. And therefore his freedom of expression is protected. In my view, baking a cake is, well, baking a cake. I’m sure it’s hard. I once made a cake for my wife’s birthday from scratch, and it was a disaster, and I only tried two layers. But artistry? Let’s just say in most museums, the only place to find a cake is in the cafeteria.

As the argument went before the justices, Elena Kagan asked how the artistry in baking a cake differed from the artistry in hair styling or flower arranging or a chef preparing a wedding meal. The list goes on, of course. It’s hard to see how bakers are unique in this instance and why a ruling for Phillips wouldn’t open dozens, maybe hundreds, of similar cases for butchers, bakers and certainly candlestick makers. The question isn’t whether Phillips is a bigot, but whether this case would enable bigotry.

As Stephen Breyer put, it would almost be impossible to write a ruling in favor of Phillips that didn’t “undermine every civil rights law” protecting minority rights.

From reading the transcript and from reading court observers, it looks like the usual 4-4, liberal-conservative split with Anthony Kennedy set to cast the deciding vote, just as he did in making same-sex marriage legal. Kennedy seemed first to lean toward the gay couple and then toward the baker. Kennedy and others on the court were worried that the Colorado Civil Rights Commission hadn’t been sufficiently tolerant of religious beliefs in its ruling against Phillips.

Is that really where we are? If the issue is tolerance, I just don’t know how the court could rule against a gay couple that wanted nothing more than a cake to celebrate their love.

Photo byTed Eytan via Flickr: Creative Commons

We interrupt our continuing coverage of the not-strictly-criminal tax-cut bill — although in whatever final form the bill takes, we know it will take money from tens of millions of Americans to give to the rich — to return to our continuing coverage of the now-official criminality tied directly to the White House.

Now that former National Security Adviser Michael Flynn has pleaded guilty to lying to the FBI about his contacts with Russian Ambassador Sergey Kislyak, that takes us and him and, most significantly, the Mueller probe to a whole new place, including the doorstep of someone described in the “Statement of the Offense,” as agreed to by Flynn,  as “a very senior member” of the Trump transition team.

Sources tell The Washington Post that the “very senior member” is Jared Kushner. Let that sink in. Flynn has told Mueller’s team that the “very senior member,” who was at that moment at Mar-a-Lago with Donald Trump and other key members of the team, directed and approved his Dec. 29 call to discuss Obama’s Russian sanctions — announced just the day before — with Kislyak. When Flynn heard that Vladimir Putin had agreed to be restrained in his response to the sanctions, he again talked to “senior members” of the transition team.

So, when it comes to asking who knew what and when he/she knew it, we wouldn’t be talking only about Trump, but potentially people very close to Trump. Now let that sink in.

We’ve long known about these calls and other meetings. We’ve known that the Trump transition team was basically conducting foreign policy, which is against the law, but not a law anyone ever gets charged with. We know all this because it has all been faithfully reported by the, uh, fake news.

The Dec. 29 call was the one that got Flynn fired for lying, although not for 17 days after Sally Yates — you remember Sally Yates — had warned the White House that Flynn was vulnerable to blackmail for having lied to the FBI. It wasn’t until four days after The Washington Post publicly revealed all this that Trump finally fired Flynn.

Why did Flynn lie to Pence? Here’s a guess: Maybe because “very senior members” in the Trump transition team were covering up the Russia contacts.

Why did Flynn lie to the FBI, which he knew was a very serious offense that could send him to prison? Here’s a guess: See above.

What’s clear is that Flynn, who has said publicly that he will cooperate with the Mueller investigation, has been flipped. The fact that he is facing only one charge — and there are a long list of potentially very serious charges against him and also against his son — is a very large hint that he had flipped. Every legal expert, and also the rest of us, could see that much.

Flynn, who was introduced to much of America as the “lock-her-up” guy at the Republican convention, is facing up to six months — but it could have been much longer. I guess he knew that. He must have when he said at the GOP convention if he “did a tenth, a tenth of what (Hillary Clinton) did, I’d be in jail today.”

OK, we know how that turned out. Flynn won’t be in jail for at least a while because he’ll be busy cooperating with Mueller, which, according to the agreement, could mean everything up to and including testifying before a grand jury or at trial. What we don’t know is what else Flynn knows. When legal experts weigh in, they assure us that Flynn wouldn’t have walked away with a single charge unless he has a lot more to offer.

That is what has to be scaring everyone in the Trump White House, not to mention anyone who has ever been near the Trump White House. The Trump team could try to say that Paul Manafort, the former Trump campaign manager who has also been charged by Mueller, wasn’t central to the Trump campaign. They got laughed at when they said it, but there’s no getting around Flynn, who was a trusted key adviser before he got the national security job and, apparently, even after he was fired.

Collusion, after all, isn’t the only question for the Mueller probe. What Flynn knows could lead directly to what Kushner knows or to what Trump knows. Which leads directly to the question of why Trump was working so hard to protect Flynn, which, as has been widely noted, doesn’t seem to be very Trump-like behavior. Which leads directly to why Trump asked then-FBI Director Jim Comey if he could let Flynn off easy. Which leads directly to the question of why Trump fired Comey, who had refused.

And that leads directly to Mueller’s appointment as special counsel. Trump himself admitted he was thinking about the Russia “thing” when he fired Comey, but he didn’t say what part of the Russia thing. That may be the biggest question possibly answered by Flynn.

If it turns out that Trump was protecting himself, or some “very senior member,” in firing Comey, that sounds a lot like obstruction of justice, which, even in that scenario, probably wouldn’t give a Republican Congress much pause. But who knows if that scenario is even the dreaded worst-case scenario?

We know Trump and his lawyer have been saying the Mueller probe could be wrapped up by Christmas. But, for the White House, you have to believe it won’t be a very happy holiday.

Photo by Gage Skidmore via Flickr: Creative Commons. Retired U.S. Army lieutenant general Michael Flynn at a campaign rally for Donald Trump at the Phoenix Convention Center in Phoenix, Arizona.

And if there was collusion with the Russians during the 2016 campaign, presumably Flynn, who is cooperating, and Paul Manafort, the one-time Trump campaign manager who has been charged, would know.

I’m distracted. I admit it. You can’t help but be distracted — also appalled — when the president of the United States retweets far-right, anti-Muslim videos from a British fringe group and his spokesperson says it doesn’t really matter that the videos might be fake because “the threat is real.”

You can’t help but be distracted by Trump’s use of Pocahontas as a racist slur at an event honoring World War II-veteran Navajo code talkers. Or by his use of the firing of the apparently slimy Matt Lauer to slime Joe Scarborough. Or by the New York Times and Washington Post stories that Trump is privately saying his vulgar Access Hollywood tape is phony and, even now, that the Obama birth certificate is fake.

I don’t know if Donald Trump’s outrages and lies are strategic or simply signs that he has lost it, but either way, they confirm what most Americans must understand by now — that he is a danger to American democracy.

The problem with the “distractions” is that to call them distractions is to minimize how thoroughly they diminish the country Trump insists he wants to make great again.

And yet. And yet.

I came here today to write about the horrendous tax bill that Republicans are rushing through Congress. There’s no secret about the reason for the no-hearings, no-testimony speed legislating. The parts are moving so quickly that it’s hard to keep up with the lie at the heart of the bill. As everyone must know,  it’s not really a cut for working people, but rather the expected giant transfer of wealth to the already rich.

There’s so much wrong with the bill, but let’s start with the front-loading strategy that has middle-class cuts, averaging $1,000 a year, kicking in right away and then, as if by magic, disappearing altogether. By 2027, the average family making under $75,000 actually pays more in taxes. Or to put it another way, as the Joint Committee on Taxation and the CBO do, those making between $40,000 and $50,000 would pay a combined $5.3 billion more in taxes while those making at least $1 million a year receive a $5.8 billion cut. You can draw a straight line for money taken from poor and given to rich.

But you get all that. That’s why the many versions of the tax cut are so wildly unpopular. You have to do real work to make a tax cut that unpopular, but you’ve seen the polling. People see it’s a huge corporate tax cut with a few added benefits like the repeal of the estate tax. Who’s fooled by that?

Nearly all the CBO scoring on the bill shows the deficit blowing up and poor people getting hurt. Most economists expect that most of the money corporations save by slashing the corporate rate will go to shareholders and not to workers. The louder Republicans scream about middle-class savings, the more you know they’re not telling you the truth.

This is an old argument made fresh by the fact of the tax bill. If anyone still truly believes in trickle-down, that’s not a problem we’re going to solve today.

But here’s what we have been distracted from. The Senate, with the Trump administration’s encouragement, decided to spice up the bill by dismantling the Obamacare mandate. As the Democratic talking point goes — one that Michael Bennet used in a news conference Tuesday — if the Obamacare repeal bill was a tax cut in disguise, as it was, this tax-cut bill is actually an Obamacare-repeal bill in disguise, which it is.

If you’re confused why Republicans added the Obamacare mandate repeal to a tax bill, I can think of at least four possibilities.

One, the mandate has been especially unpopular and presumably remains so even as support for Obamacare itself has risen significantly. So, you pretend that repealing the mandate is just about repealing the mandate instead of its real purpose, which is one more try at destroying Obamacare.

Two, repealing the mandate would save something more than $300 billion because, without the mandate, the CBO estimates that 13 million people would no longer have coverage. And by not having to pay the $300 billion in subsidies, that allows the bill to fit into the required $1.5 trillion framework— a Senate-rules gimmick that allow a bill to pass with 51 votes instead of 60 — and to give the money to, yes, the rich. By the way, if the bill passes as currently written, Medicare would face an automatic annual cut of — wait for it — $25 billion. This is not fake news.

Three, even Republican lawmakers are distracted by that shiny tax-cutting object. The three senators — Susan Collins, Lisa Murkowski and John McCain — who voted down the Obamacare repeal may be so tempted to pass a tax cut, even one as flawed as this one, that they may have forgotten about the 13 million Obamacare losers. McCain has already said he’s a yes.  If combining Obamacare repeal with the tax cut works, it will seem like genius, if really, really evil genius.

Four, Trump can’t stand that it keeps getting thrown in his face how badly he failed in the Obamacare repeal.

So that’s where we are. Trump goes to Missouri to tout the cuts while the Senate votes to move to debate the final bill, which presumably we’ll eventually see. Obamacare repeal got to this point and still was turned back. What happens to the tax bill remains uncertain.

But no one can still have doubts what the bill is really about. All you had to do was listen to Trump’s 11th-hour sales pitch in which he unblinkingly told the Missouri audience, “This is going to cost me a fortune, this thing. Believe me. This is not good for me.”

Believe him? It’s the only way you could possibly think the bill is good for the rest of us.

Photo by Gage Skidmore, via Flickr: Creative Commons. Donald Trump speaking at CPAC 2011 in Washington, D.C.