Friday, September 7, 2018

Why The White House Resistance Is Good For Trump

Most of the talk about yesterday’s anonymous New York Times op-ed in which an author purported to be a senior official in the Trump Administration focuses on the author of the piece. The bigger issue is that the unnamed author confirms a large number of reports from inside the Trump Administration over the past two years.

The author of the piece said that “President Trump’s impulses are generally anti-trade and anti-democratic” and “erratic,” and claimed that a cabal of the president’s advisors is working to “insulate their operations from his whims.”

The sheer volume of similar reports lends credence to the claims in the anonymous piece. The op-ed comes on the heels of blurbs from Bob Woodward’s new book. Among the juicer quotes is one attributed to John Kelly in which the chief of staff reportedly called the president an “idiot.” Although Kelly denied the remark, it is very similar to an alleged comment by former Secretary of State Rex Tillerson who was reported to have called the president a “moron” last year.

It would take many pages to make an exhaustive list of all the disturbing pictures painted of Donald Trump. Suffice it to say that the president’s public actions also lend credence to the anonymous sources. One of the president’s most recent overreactions was to suggest on Twitter that the author the op-ed was guilty of treason.

Whoever the author is, the claim that insiders are slowing the president’s more disastrous impulses rings true. As James Freeman of the Wall Street Journal asks, in light of the positive Trump economy, “Could it be that Donald Trump is not as crazy and ignorant as Mr. Woodward and his media brethren would have us believe?” The answer in the op-ed has long been my suspicion.

President Trump has been moderately successful despite his actions and not because of them. The best thing about the Trump Administration was that it did install a number of small government conservatives who enacted deregulation and tax reform in Mr. Trump’s name while attempting to limit his destructive impulses. In some cases, such as his “reset” with Russia and his pivot toward gun control, they were successful. In the case of tariffs and his war on the media, they were not.

Contrary to what President Trump and his supporters say, this secret resistance is not undermining his presidency. It is attempting to save it.

And my guess for the author of the piece? If it isn’t a low-level aide, I’d lay odds on Mike Pompeo. Pompeo has been with the Administration from the beginning, first as CIA director and then as Secretary of State. The foreign policy side is where Trump has been more erratic and unable to be checked by Congress. Pompeo would have had to deal with that first-hand.

The piece may well be a hoax, but the White House resistance is almost certainly real.


Originally published in The Resurgent

Thursday, September 6, 2018

GOP Lawsuit Attempts To Kill Obamacare (Season 8 Episode 1)

Congressional Republicans no longer seem to be talking about repeal or replacement or reform of Obamacare, but that doesn’t mean that the effort to rid the country of the onerous health insurance law is dead. The latest attempt on the life of Obamacare comes from Texas Attorney General Ken Paxton and early indications are that it may have a better chance at success than previously thought.

The lawsuit is based on the facts that Justice John Roberts’ majority decision preserved the Obamacare mandate as a tax and that Republicans later eliminated the tax penalty for not purchasing health insurance, essentially eliminating the mandate. The Republican plaintiffs argue that the Affordable Care Act is now unconstitutional because the law depended on the mandate to make the system work and the mandate has now been removed.

“There is no real true mandate because the tax is eliminated,” Darren McCarty, special counsel for the Texas Attorney General’s office, argued in federal district court. “The ACA is unconstitutional on its face.”

The Texas lawsuit has been joined by 20 states and the Trump Administration Department of Justice. While the state attorneys general are asking for the court to strike down the entire law, the DOJ is only seeking to invalidate certain portions of the law such as those that deal with coverage for people with pre-existing conditions and limits on how much insurers can charge people based on gender and age.

Defense of the law has been picked up by Democrats who argued that striking down the law would harm the millions of Americans with pre-existing conditions.

“The harm of striking down the ACA…would be devastating,” said Nimrod Elias, a California deputy attorney general defending the law.

The case hinges on whether Congress eliminated the mandate by removing the penalty. While the mandate is still technically part of the law, it will be unenforceable when the penalty expires.

Telltale signals from U.S. District Judge Reed O’Connor give opponents of the law hope for a friendly ruling. Observers said that O’Connor’s line of questioning often echoed the views of the Obamacare critics. The judge also asked questions about severability, whether other parts of the ACA could remain in force without the individual mandate.

O’Connor, who was appointed by George W. Bush, has ruled against the ACA in the past, issuing a temporary injunction against a regulation prohibiting price discrimination based on age and gender in 2016. Judge O’Connor said that he will deliver a ruling as quickly as possible, meaning that a decision before the midterm elections is likely.

Whether the decision strikes down all or part of the ACA or lets it stand, it could have an effect on the midterms. Democrats are using the threat to the law, which has become more popular since Donald Trump took office, to build support for midterm candidates. For their part, Republicans would use a decision against the law to show their base that they are making progress against government encroachment.

Conservatives shouldn’t get their hopes up. Lawsuits against Obamacare that looked more promising have all gone down to defeat and if O’Connor rules against the law, Democrats are certain to appeal. The case could eventually have the Supreme Court rule once again on the constitutionality of Obamacare.

In the meantime, a ruling against the law could not come at a worse time for Republicans. With GOP candidates already battered by association with an unpopular president, a ruling that allows Democrats to paint Republicans as hostile to people with pre-existing conditions would not help the party’s chances of holding Congress.


Originally published on The Resurgent



Let's Face It: Conservatives Are Not a Majority

The news of Colin Kaepernick’s endorsement deal with Nike came as shock to conservatives. It seemed that Kaepernick was a has-been after his departure from the NFL, but suddenly he’s back with a lucrative deal to be the face of Nike. That should be a wake-up call that conservatives do not represent a majority of Americans.

If conservatives were a majority, then selecting the man whose claim to fame lies in taking a knee during the National Anthem as a spokesman would be an act of corporate suicide. In that case, one would expect that the stock would tank and a meaningful boycott would occur. And that’s exactly what many conservative news outlets were reporting.

The truth is a little different.

The deal was announced on Sept. 3. Nike stock closed on the previous day at $82.20 per share. By the close of trading on Sept. 4, Nike stock had indeed plunged… all the way to $79.60, a loss of a little over three percent. On Wednesday, the stock closed just under $79.92, not far under the 52-week high of $83.68. Trading in Nike was much higher than is the norm. 18,548,800 shares changed hands on Tuesday as opposed to an average volume of 7,073,191.

Nike’s stock declined, but it is only slightly off from prior to the announcement. There were a lot of sellers, but there were also a lot of buyers. That observation says a lot about American politics in general.

What’s more, most conservatives have not heard that Nike received an estimated $43 million in media exposure after the rollout of Kaepernick’s ad campaign. Bloomberg reports that almost half of the exposure was positive. Less than a quarter of the media coverage was negative.

The nature of modern communication is that most of us live in an echo chamber. Conservatives read conservative blogs, listen to conservative radio, watch Fox News and talk to other conservatives on Facebook and Twitter. When we don’t have contact with many – or any – people with opposing viewpoints, we lose sight of the fact that not everyone thinks like we do.

The story goes that Pauline Kael, a film critic for the New Yorker, said after the 1972 election, “I can’t believe Nixon won. I don’t know anyone who voted for him.” The story is somewhat apocryphal. The quote has been paraphrased to make Kael seem more out of touch than she really was, but the sentiment is real.

This week it is conservatives’ turn to say, “I can’t believe they hired Kaepernick. No one likes him.” Two years ago, it was the Democrats. Just substitute Donald Trump’s name.

If conservatives are to be successful in the long term, they need to face some hard truths. The first is that conservatives do not represent a majority of Americans. Close on the heels of that bitter pill is the fact that most voters do not like Donald Trump. Finally, some conservative ideas are popular, but some are not.

We can look back at Gallup’s survey of political ideology to see that, for the 30 years that the poll has been taken, conservatives have never represented a majority. The survey, taken in December 2017, actually shows a slight decline in conservative identification since the Tea Party revolution. About 35 percent of Americans now identify as conservative.

How do conservatives win elections then? The good news is that liberals are actually doing worse. About 26 percent currently identify as liberals. This represents a long slow climb from 17 percent in 1992.

The mathematically astute are probably thinking that liberals and conservatives only represent about half of the people polled. They’re right. The third major group in American politics is the moderates. Weighing in at 35 percent, the moderate group is as large as conservatives and larger than liberals. With neither conservatives nor liberals constituting a majority on their own, moderates are the deciding factor in elections.

The problem faced by both parties is that they need moderates to win, but moderates don’t like extremism from either party. Primary voters, on the other hand, love to vote for the candidates that promise to deliver the most change for their respective ideology.

What happens often is that a party will win an election by a slim margin and then proceed to govern as if they have an enormous mandate. It happened to Barack Obama, who answered a Republican offer of compromise with the words “I won,” and it is happening to Donald Trump now.

The Trump Administration is pushing an agenda that many voters are not happy with, but Republican voters are ecstatic with the “winning.” The problem for the GOP is that rather than winning the hearts and minds of voters, they have pushed their advantage with party-line votes and executive actions while ignoring public opinion. This is basically the same strategy that cost Democrats both houses of Congress and more than 1,000 legislative seats under Obama.

There is a disconnect on several core issues between the Republicans and the rest of the country. The most notable achievement of the Trump Administration is the tax reform bill, but Republicans have not sold the new law to the public. Nine months after passage of the law, numerous polls show that the country is split but the tax plan remains slightly more unpopular than popular.

Opinion on the president’s policy of separating families at the border as a disincentive to immigration is not even close. Numerous polls found that Americans opposed the separations by more than a two-to-one margin. However, the opinion of Republicans was just the opposite with an average of about half of Republicans supporting the plan.

On Colin Kaepernick and the anthem protests, opinion is also split. A Wall Street Journal/NBC News poll taken last week before the current brouhaha erupted found that voters felt that taking a knee during the National Anthem was not appropriate by a margin of 54-43 percent. However, a Quinnipiac poll from June showed almost exactly the opposite.

The bottom line here is that the target market for the Nike campaign is not white conservatives. Nike almost certainly test-marketed the Kaepernick campaign before they launched what they had to know was going to erupt into a tornado of fecal material, yet Nike is confident enough that the campaign will make money for them that they did it anyway. The logical answer is that Nike understands that, while millions of people will be angered by the ad, those millions of people are still a minority. In fact, Nike may be banking on conservative outrage to generate more publicity… just as Kaepernick has used the outrage to make his name a household word over the past few years.

The collective clout of American conservatives showing their anger can’t make a mainstream sports apparel company decide against hiring one of the most infamous men in sports because aggrieved conservatives are just one small segment of the population. Nike has apparently determined that angry conservatives don’t buy enough of their merchandise to make a difference. The left learned the same lesson with protests of Chick-fil-a and Hobby Lobby.

What both parties seem never to learn is that in order to propagate real and lasting change, you have to win over the voters in the middle. That isn’t likely to happen by being shrill and calling athletes traitors. If conservatives could find a coherent spokesman for the movement who could reach the moderates in the middle, then maybe one day conservatives will be a majority. Until that day, conservatives do not have the mandate to force their will on the rest of the country. They must remember that or pay the price.



 Originally published on The Resurgent

Wednesday, September 5, 2018

A Tale of Two Treaties

The United States and China are taking a very different approach to international trade. President Trump is intent on renegotiating or canceling American trade treaties such as NAFTA while the Chinese are creating a broad new trade alliance in Asia that excludes the United States.

One of President Trump’s first official acts was to withdraw the United States from the Trans-Pacific Partnership negotiated by the Obama Administration. Trump’s act, which fulfilled a campaign promise, shattered the trade agreement and allowed China to pick up the pieces.

In November 2017, less than a year after Trump’s order withdrawing from the TPP, a summit was held in Manila to negotiate an alternative, the Regional Comprehensive Economic Partnership or RCEP. Talks progressed quickly and the 16 nations are expected to sign an agreement at a November 2018 summit in Singapore. The White House announced this week that President Trump would skip the meeting as well as the Asia Pacific Economic Cooperation forum in Papua New Guinea.

The RCEP includes many of the same Asian nations that would have participated in the TPP. These include Australia, Brunei, Japan, Malaysia, New Zealand, and Vietnam. In addition, it adds a host of others such as Cambodia, India, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, South Korea, and Thailand. The biggest addition to the TPP countries is China.

With the country in a growing trade war with the United States, participation in the RCEP gives China an opportunity to find new markets for exports that would have been sold to the US. President Trump’s tariffs on Chinese goods can be at least partially offset by the free trade agreement that encompasses a large swath of Asia and the Pacific.

President Trump is taking a different approach. The president recently threatened once again to withdraw from NAFTA if he cannot get a “fair deal” from Mexico and Canada. In a Sept. 1 tweet, Trump said that there was “no political necessity to keep Canada in the new NAFTA deal” and added, “Congress should not interfere w/ these negotiations or I will simply terminate NAFTA entirely & we will be far better off….”

Last week, the US and Mexico reached a preliminary agreement on a new trade deal, but negotiations with Canada appear to have stalled. Mr. Trump sent a letter to Congress on Friday announcing his intention to sign a deal with Mexico in the next 90 days. The timeline would allow an agreement to be signed before Andres Manuel Lopez Obrador, Mexico's new left-wing president takes office on Dec. 1.

The Trump Administration is also under pressure to show results before the midterm elections in November. Showing that the Trump approach to trade deals yields results would provide a boost to beleaguered Republican candidates and help to stem chances of a blue wave.

“With goodwill and flexibility on all sides, we can get there,” Canadian Foreign Affairs Minister Chrystia Freeland said. “For Canada, the focus is on getting a good deal and once we have a good deal for Canada, we'll be done.”

The end of President Trump’s tweet shows the fundamental difference between the Trump approach and the Chinese approach. The president, who last month tweeted that “tariffs are the greatest,” seems to see international trade as more of a threat to the US economy than an opportunity for growth. On the other hand, China sees the opportunity to expand international markets as a way to both bring wealth back home and grow Chinese influence around the world.

The irony is that Donald Trump does not see that his retreat from the world, his building of both literal and figurative walls between America and the rest of the world, does not make America great again. To the contrary, Trump’s trade policies not only hurt American companies and consumers, it also diminishes American influence around the world. That is apparent in the new Asian trade deal that will be written for China’s benefit instead of America’s.


Originally published on The Resurgent

Monday, September 3, 2018

How To Skeptically Look At Polls

It’s election season. The time when a political junkie’s fancy turns to polls, polls, and more polls. With so many polls being released, many of the polls will show results that are contradictory from each other, which one do you believe? Should you believe any of them?

Conservatives have long been leery of polls, but that skepticism reached its height after Donald Trump’s surprise victory in 2016. Much of this skepticism lies in a misunderstanding of how to look at polls and what they represent. Some of this misunderstanding is fed by media outlets and politicians that misuse polls.

When considering polls, keep a few simple rules of thumb in mind:

Polls are historical, not predictive. They provide a snapshot of public opinion when they were taken. By themselves, they do not forecast the outcome of elections. Polls are lagging indicators that measure public opinion as it was on a given date.

Look at the trend of all the polls. To see which way public opinion is moving, don’t just look at one poll. Look at similar polls taken over a period of time and compare the results. For example, one poll on Donald Trump’s approval rating isn’t very useful, but if you look at the trend of all polls showing the presidential approval rating you can see whether it has improved or declined.

Real Clear Politics is a useful site that acts as a clearinghouse of polls. You can look up individual poll types such as President Trump’s approval, individual races such as Ted Cruz v. Beto O’Rourke, or generic ballots.

RCP shows all the polls of each particular type, which makes it easy to see trends. For instance, the page of Cruz-O’Rourke polls shows 10 polls going back to April. The trend shows a surge by O’Rourke in which Cruz moved from a double-digit lead to a statistical tie.

Discard the outliers. Politicians and the media often trumpet shocking poll results such as the recent Rasmussen poll that showed President Trump’s support among black voters at 36 percent. Polls that differ wildly from other polls are outliers and should be treated with suspicion.

One way of reducing the effect of outliers is to take an average of polls. Both Real Clear Politics and FiveThirtyEight have pages that show the average of polls asking about President Trump’s approval rating that go all the way back to his inauguration. These are useful tools for getting the big picture of the longterm trends in presidential approval.

Look at the nuts and bolts of the poll. Not all polls are created equal. You can get an idea of how reliable a poll is by looking at who it surveyed. The most accurate polls talk to likely voters. Polls of registered voters are less accurate while those that survey adults are the least accurate.

Pollsters also must make assumptions about who will show up to vote. These assumptions are used to weight the data from the poll, but there is no way to test their validity until Election Day when we find out who comes out to vote. Many polls give information about the weighting and the mix of Democrat and Republican respondents if you read the fine print.

Consider the margin of error. No poll is exact because they all represent only a sample of the population. The accuracy of the poll can be calculated and is usually disclosed as the “margin of error.” A large sample size is more accurate and reduces the poll’s margin of error.

The thing to remember is that the closer a poll is, the less it can be used to predict a specific outcome. For example, the most recent Cruz-O’Rourke poll that showed a one-point race had a 4.4-point margin of error. This is known as a statistical tie. The one-point difference is well within the margin of error so the key takeaway from the poll is that the race is currently too close to call, not that Ted Cruz would win the election by one point.

If a poll shows a large difference discrepancy between two viewpoints, you can be reasonably confident that the general breakdown is correct, even if the specific percentages are not. For example, when 72 percent opposed the Trump Administration policy of separating immigrant children from their parent and only 27 percent were in favor in a June CBS News poll, there was little doubt that Americans strongly opposed the policy.

Consider polling difficulties. The smaller the race, the tougher it is to get good polling. National polls are the most accurate, but state and district polls are more questionable. There might be no public polling at all in some House and Senate races.

The root cause of much of the 2016 polling problem was polling at the state level in a few Rust Belt states. By Election Day, national polls were showing a close race between Donald Trump and Hillary Clinton. The RCP average gave Hillary Clinton a 3.1 point edge, within the margin of error of most polls. In the final tally, Clinton won the popular vote by 2.1 points which was very close to what the polls showed.

Of course, the popular vote does not decide presidential elections and the predicted outcome of elections in key states turned the Electoral College results. An after-action report by the American Association for Public Opinion Research noted that “eight states with more than a third of the electoral votes needed to win the presidency had polls showing a lead of three points or less” and that “polls on average indicated that Trump was one state away from winning the election.”

The outcome in Pennsylvania, Michigan and Wisconsin was the surprise for forecasters that turned the election to Trump, yet the polling in both Michigan and Pennsylvania showed a close race. In both states, the last poll before the election favored Donald Trump. The polls were only substantially off in Wisconsin where the last poll favored Hillary by eight points, but Trump won by less than one point.

In the end, most polls did not capture a late surge by Donald Trump in the wake of FBI Director James Comey’s memo to Congress. The lagging indicators were too far behind to include the rapidly changing landscape but did reflect a very close race in most cases. The AAPOR after-action report also faults an overrepresentation of college graduates in many polls that would have favored Clinton.

Polling is not an exact science. Poll results shouldn’t be considered to be gospel, but neither should they be ignored. By looking beyond the headline, you can determine whether a poll is reliable and how it fits into the big picture of the election.


Originally published on The Resurgent

Sunday, September 2, 2018

Why It Doesn't Matter That There Were No Hearings For Carter Page's FISA Warrant

Judicial Watch raised the hackles of Republicans this weekend when it announced that the Justice Department had said that no hearings were held prior to issuing the FISA warrant for former Trump advisor Carter Page. Many Republicans took this to mean that something nefarious was afoot with the investigation of Page, President Trump’s former campaign advisor, but that isn’t necessarily the case.

“It is disturbing that the Foreign Intelligence Surveillance courts rubber-stamped the Carter Page spy warrants and held not one hearing on these extraordinary requests to spy on the Trump team,” said Judicial Watch President Tom Fitton in the press release. “Perhaps the court can now hold hearings on how justice was corrupted by material omissions that Hillary Clinton’s campaign, the DNC, a conflicted Bruce Ohr, a compromised Christopher Steele, and anti-Trumper Peter Strzok were all behind the ‘intelligence’ used to persuade the courts to approve the FISA warrants that targeted the Trump team.”

The Judicial Watch press release fails to tell the whole story, however.

Aside from mischaracterizing surveillance of someone that the first paragraph of the release refers to as “a former Trump campaign part-time advisor” as “spy[ing] on the Trump team,” the obvious question to ask is how many hearings are normally held on FISA applications. The answer is not many, but that is not proof of any wrongdoing on the part of the FBI or the FISA court.

The fact is that search warrants of all sorts are almost always issued by judges without hearings because the law does not require a hearing. If you have ever watched a television cop show, you’ve seen the process. The police gather preliminary evidence to show probable cause and then take this to the judge to get the warrant. The search warrant is then served, or, in the case of a FISA warrant, surveillance is conducted. The search and/or surveillance are then used to gather more evidence to determine whether an indictment, arrest and prosecution are warranted.

Logically, it makes sense that the law would not require a hearing before a warrant for a search or surveillance is issued. Who would take the opposing side in the hearing? If the suspect were invited to defend himself in a hearing to consider whether his property should be searched or he should be monitored, law enforcement would lose the element of surprise. It would be an extremely dense suspect who did not take the warning and clean out any incriminating items or break off contact with people who could implicate him in a crime.

So, who acts on the behalf of the suspect to prevent law enforcement agencies from abusing their power to search and surveil innocent Americans? The answer is that both the Justice Department and the judge act on their behalf.

In Just Security, former FBI agent Asha Rangapappa described the process of obtaining a FISA warrant in a 2017 article titled, “It Ain’t Easy Getting a FISA Warrant: I Was An FBI Agent and Should Know.” To get a FISA warrant, the FBI first must conduct a threat assessment to determine that there is a national security reason for the warrant. Second, the FBI would have to gather evidence to show probable cause that the target of the warrant was knowingly working on behalf of a foreign entity. Mere fraternization with agents of a foreign power would not be sufficient to meet this requirement. Finally, the warrant application is submitted to Justice Department attorneys who verify the claims made by the applicant and determine whether the evidence is sufficient to present to a judge. The application can be returned to the investigator multiple times until the evidence is both strong enough to meet the legal standard and able to be corroborated.

“It’s true that since its inception in 1978, the FISC has approved the vast majority of the over 25,000 FISA applications it has reviewed – some estimates put the number at over 99 percent,” says Rangapappa. He adds, “But that’s not surprising given the extensive process described above.”

This is confirmed by a 2013 letter to Congress from Reggie Walton, the presiding judge of the Federal Intelligence Surveillance Court, in which the process for approving FISA warrants was discussed. The letter does state that in some cases where there is “special legal or factual concern,” the Court may request face-to-face meetings with law enforcement. The “frequency of hearings varies depending on the nature and complexity of matters pending before the Court at a given time, and also, to some extent, based on the individual preferences of different judges,” the letter says. In many cases, problems or questions about applications are resolved with telephone calls or informal contacts.

“FISA does not provide a mechanism for the Court to invite the views of nongovernmental parties,” Judge Walton wrote. “In fact, the Court's proceedings are ex parte [i.e., without a response from the opposing side] as required by the statute… and in keeping with the procedures followed by other courts in applications for search warrants and wiretap orders.”

The 99 percent approval rate for applications, the letter notes, is based only on “final applications submitted to and acted on by the Court.” About a quarter of applications have “substantive changes” before they are approved. The judge noted that the approval rate for wiretap applications in domestic criminal cases is higher than that of FISA warrant applications.

Andrew McCarthy, a writer for National Review and a former federal prosecutor, agrees that hearings are not a part of the process for getting warrants. On Twitter, McCarthy said, “There generally are no hearings on warrants, and you don’t want there to be because the four corners of the warrant application must state the probable cause. If they don’t, the judge should reject the application, not hold a hearing.”

“In nearly 20 years as a prosecutor, and hundreds of warrants, I never had a hearing to get a warrant,” McCarthy continued in a second tweet. “I had judges tell me ‘no,’ or tell me I needed to beef up this or that allegation with more solid evidence. But never a hearing.”

So, it’s true when Judicial Watch says that there was no FISA hearing before the warrant to surveil Carter Page was granted. It’s also true that it is not a big deal that there was no hearing. The law does not require a hearing and hearings are conducted only in rare circumstances. By making a mountain out of a nonexistent molehill, Judicial Watch has done a disservice to people who trust the organization to expose wrongdoing in the justice system. The press release is an overtly partisan attempt to smear the Justice Department and undermine an ongoing investigation.


Originally published on The Resurgent