This wasn’t good enough for Democrats, and on April 19, Nadler issued that subpoena to Barr for everything. But grand jury material is protected by federal law and restricted in its viewing public to government attorneys involved in cases. Congress is nowhere on the list of those entitled to access. Only courts can grant Congress this information. Barr would have had to break the law to comply with Democrats’ subpoena. Unable to accede to the subpoena’s demands, Barr missed Congress’s deadline.
Democrats rushed to hold Barr in contempt, a criminal offense that in theory allows a court to impose jail time and a significant fine.
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Why the hurry? Mueller’s report had handed Democrats an “obstruction” theme, and in the weeks following, Democrats warmed to a new claim: Trump hadn’t just obstructed justice, he was obstructing Congress. Nadler’s every interaction with Barr looked designed to further stoke this narrative. Nadler claimed that all he wanted was “evidence” as part of his “investigation” into “abuses of power” by Trump. Yet every day Nadler did his level best to ensure he did not obtain information.
He rejected, for instance, Barr’s offer to see a less-redacted report. At the time of Nadler’s contempt vote against Barr, not a single Democrat had visited the DOJ to look at the additional information. His subpoena meanwhile contained that poison pill—the demand for grand jury information. Nadler could have issued a subpoena that gained him tons of new material; he deliberately issued one that assured him none. In the wake of the subpoena, Barr’s office went into negotiations with House Democrats, to try to find a solution. Nadler turned down offer after offer. Justice offered to expand the list of Democrats who could read the minimally redacted report, and even offered to bring the material over to Congress. It also offered to accommodate prioritized requests for additional documents, based on a committee review of the less-redacted report. Nadler said no every time.
In the run-up to the contempt vote, Barr offered to testify in front of Nadler. The Judiciary chairman deliberately attached an unprecedented demand. He insisted that Barr be grilled by congressional staff members. No cabinet member had ever been subjected to such treatment in the Judiciary Committee’s 206-year history, and Barr quite rightly refused. As Nadler presumably wanted. Nadler could have asked Barr all manner of questions; he purposely set the stage so that it wouldn’t happen.
Most revealing was the rush with which Nadler held Barr in contempt. It was the opposite of how Congress normally obtains information. Republicans spent more than a year using contempt threats to pry documents out of the DOJ about the FBI’s Russia investigation. They never got all they wanted, but they got a lot. Nadler’s contempt resolution was the first step toward a protracted court fight, which could continue for months, if not years. It spoke volumes that Nadler chose that night after the vote to explain this most serious of contempt actions on that most unserious of Resistance cable TV slots—The Rachel Maddow Show.
Nadler played a similar game with senior White House advisers, including former White House Counsel Don McGahn and his chief of staff, Annie Donaldson. Nadler sent McGahn a subpoena in late April, demanding he appear to talk about episodes recounted in the Mueller report. The White House invoked executive privilege and ordered McGahn not to appear at the hearing. The White House Office of Legal Counsel also issued a memo pointing out that for more than thirty years, the executive branch had claimed absolute immunity with regard to testimony of close presidential advisers, and pointing out that even the Obama administration had taken that position.
As Nadler well knew, this is a legitimate point of contention. The Supreme Court has never clarified the question of whether presidential communication with advisers is entitled to absolute immunity. But some cases along the way have backed up White House claims that as a co-equal branch of government, neither the president nor those who closely advise him can be compelled to appear in front of Congress (just as a president cannot compel congressmen to appear at the White House). Yet Nadler refused to negotiate with McGahn or the White House about the boundaries of his testimony, or the timing, or the setting. And Nadler ignored the fact that McGahn was bound as former counsel to respect the office of the presidency and not testify. When McGahn failed to appear, Nadler also threatened him, and several other former White House advisers, with contempt proceedings.
The contempt votes were stunts—designed to further a Democratic narrative, not to send any serious message. None of those subject to the votes had, in fact, showed any real contempt for Congress; Nadler set them up to fail. This made a mockery of an important congressional tool, and at a time when Congress had been struggling with real questions about its authority and its lack of enforcement ability. The vote diluted the seriousness of contempt, making it more likely that future White Houses would flout even legitimate document demands.
And Resistance members made themselves look even weaker when—after the Barr vote—they dramatically called for House leaders to send the House sergeant of arms to arrest the AG. How concerned was Barr by this threat? At an event not long after his contempt vote, Barr walked up to Pelosi, grinned, and asked her if she’d brought her handcuffs.
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At least House Democrats are pretending to operate within norms—even if they are not. The 2020 Democratic presidential contenders openly propose to destroy those norms.
The haters love to chant the fact that Hillary Clinton won “the popular vote”—even though it is a meaningless fact. The Founders put an extraordinary amount of thought into the Electoral College, and it is genius. The Electoral College is a recognition that we are a republic of fifty states. It’s designed to require presidential candidates to earn support all over the country. It weeds out ineffective candidates, usually narrowing the field to two contenders, growing the likelihood that the final winner has a decisive victory—which increases legitimacy. And it speeds up election results, by turning over vote counting to the states. If you thought the 2000 hanging-chad debacle in Florida was bad, imagine sitting through a nationwide recount for the presidency. The Electoral College has endured for 230 years and hasn’t missed a lick.
Yet in March 2019, presidential candidate and senator Elizabeth Warren called for its abolition. She complained that most presidential candidates do not routinely campaign in her home state of Massachusetts, since it isn’t a battleground area. What she failed to note is that in a majority-rules system (as she favors) most presidential candidates wouldn’t campaign in most states. They’d focus only on high-population areas. Warren would love nothing more than to have the residents of Boston, New York City, and Los Angeles pick our president every four years. Most of the rest of America wouldn’t find this very American. Since Warren’s comments, candidates including Kamala Harris, Beto O’Rourke, and Pete Buttigieg have expressed support for the idea.
Post-Kavanaugh progressives also adopted a new litmus test: that presidential candidates promise to forcibly change the Supreme Court to their liking. A new group called Pack the Courts wants a Democratic president to expand the number of justices, to put liberals back in the majority. Other Resistance groups are backing a proposal in which Republicans pick five justices, Democrats the other five—while the justices themselves pick five more “independent” members. (For the record, there have been nine justices since 1869.) The last time a president nakedly called to politicize the judicial process was in the 1930s. FDR, angry that the Supreme Court kept striking down his New Deal legislation, proposed a “court packing” bill that would have let him pick his own justices. The country was not impressed by his attempted end run of justice. Even his own Democratic Party was embarrassed and refused to move the legislation.
Yet Warren, Harris, Buttigieg, New Jersey Senator Cory Booker, and New York Senator Kirsten Gillibrand are all open to changing the Court if they become president. At least getting rid of the Electoral College would require a constitutional amendment—a tough slog. The Court-packing provision could be done with simple majoriti
es in both the Senate and the House.
When Nancy Pelosi suggested lowering the voting age to sixteen, Twitter had a field day. People started posting examples of their own sixteen-year-old judgment. “When I was 16, my friends and I bought a live lobster, put it on a leash, and walked it around the neighborhood at 2 a.m.,” wrote one. “When I was 16, I sucked a drinking glass to my face for 10 minutes and gave my lower face a giant hickey that took 3 weeks to heal,” wrote another. (These were quoted in a hilarious Washington Examiner piece.) Many people passed around the infamous video of the teenager who sets his buddy on fire while they attempt to do a cool skateboard stunt. And yet Democratic presidential contender Andrew Yang embraced the proposal. And 125 House Democrats voted for such a change in March 2019.
Here’s what unites all the proposals: They aren’t aimed at “fixing” a problem. Serious Washington people do discuss serious structural problems. An example is gerrymandering. Republicans and Democrats alike understand that gerrymandering is an issue. They debate it endlessly, and some states have moved to change the way they carve up voting districts.
These Democratic proposals are not about improvement; they are about power. A majority-rules voting system would not be more “fair”; but it would undoubtedly ensure a Democratic president for decades to come. Few parents would ever advocate giving their muddle-headed teenagers the right to vote; Democrats only want it because they know the young are more susceptible to liberal, utopian ideals and would help guarantee them permanent congressional majorities. Question: What is the difference between thirteen Supreme justices versus nine? Answer: the person who gets to appoint them. Warren claims more justices would depoliticize the Court, but note that she isn’t suggesting that change come right now. Quite the opposite. If Trump announced that he intended to expand the Supreme Court and appoint another six conservatives, Elizabeth Warren would call it the end of the Republic. The only things that bind these proposals together is a liberal fury over its losses and a liberal attempt to ensure its side has permanent control. This mirrors the approach of the crazy Pelosi House. House Democrats are pushing impeachment against Trump on charges (obstruction) for which the Justice Department has already declared there is no compelling evidence. They have used the threat of contempt against officials for failing to comply with impossible demands. This crosses a Rubicon. It turns impeachment and contempt into partisan and political weapons, when both were designed to be serious tools for imposing accountability in grave circumstances. Where will a future Congress take this? It will get worse, not better.
One further observation: As Democrats released their proposals to demolish the U.S. system as we know it, a funny thing happened. The same media outlets that had spent the prior two years lambasting Trump for undermining the “norms” of governance applauded the Democratic contenders for thinking so far “out of the box.” They also labored to explain why these Democratic proposals—which would overthrow our traditional system—had legitimacy and merit. Surprise, surprise.
Chapter 11
Press Gang
I’ve never engaged much in media criticism, for two simple reasons.
First, it’s almost too obvious. Yes, the mainstream media is liberal. Always has been. And—just as important—always will be. Mainstream journalism tends to attract do-gooders who are out to save the world. Researchers from Arizona State University and Texas A&M University in 2018 surveyed 462 financial journalists. More than 58% admitted to being “very liberal or somewhat liberal.” Another 37% described themselves as “moderate.” Precisely 4.4% said they leaned right of center.
More important, journalism tends to attract people who all come from the same walk of life, attend the same schools, live in the same neighborhoods, and share the same worldview. This latter point is what is really behind “bias.” I’ve worked in journalism now for twenty-five years, alongside many good news reporters. I can honestly say that I can count on one hand the number who were overt partisans and who knowingly used their positions to advance political views. Bias comes from something worse: insularity. Most reporters don’t even know they are biased; everyone they socialize with holds the same left-of-center views. For all our modern talk of the need for more “diversity,” newsrooms continue to ignore that which would provide the biggest benefit to their coverage: diversity of viewpoint.
Second, media criticism never gets you far, because it is so subjective. Conservatives can spot media bias from a mile away, in terms of the type of stories a newspaper or cable station runs, the language, the people they target, the “analysts” they employ. But those newspapers and stations always have an argument for why they did what they did. It was an important subject. It was a fair description. We ran something similar to this about the other side fifteen years ago, on page 37B. And look, we quoted one conservative. See? We are all about presenting both sides.
It is nonetheless impossible to ignore media problems in the age of Trump. Not because of press bias—which admittedly has become extraordinary, overt, and shameless. The Washington press corps is almost uniformly part of the Resistance; it hates Trump, no longer bothers to hide it, and works every day to undermine his administration. That’s clear.
What’s a bigger problem has been the press’s willingness to act on its bias. The past few years have seen the greatest disintegration of press standards in modern history of the industry. The media has published evidence-free accusations, a new and alarming low. It has sourced its stories from people with clear political axes to grind, even as it has worked to hide those motivations from its readers. It’s run with flamingly incorrect pieces and never bothered to acknowledge the errors. It has acted as a scribe for government agencies, dictating their version of events—a position that once would have earned reporters industry-wide shame. Most corrosive of all, it has closed its eyes to clear abuses, because those abuses do not fit with their anti-Trump narrative. This isn’t bias; it is the destruction of press norms. Does Donald Trump fan the flames with his attacks on the press as “fake” and an “enemy” of the country? Sure. But the media has done a bang-up job all its own of providing Americans good reason to distrust it.
Add to this the financial benefit many media outlets have realized in presenting Trump as deranged. Ratings and revenues in the initial few years of Trump were nothing short of fantastic. Russian “collusion” stories and impromptu Trump press conferences were a godsend for a media industry that had at times been struggling. Television ad revenues held steady, even as many Americans cut the traditional cable cord. Newspaper subscriptions went up, despite reader dislike of having to pay for subscriptions. The media understands that the juicier and more outrageous the story, the more the clicks, views, and revenue. And Trump is juicy stuff.
Yet it has had terrible consequences for the industry and for the country. Gallup since the 1970s has been tracking American trust in the media, which reached a high in the mid-1970s following Watergate reporting. In 2016, U.S. opinion that the media reported news “fully, accurately and fairly” hit an all-time low—32%. It was an eight-point drop from just the year before. (It has since crept up but remains well below what it was in the 1990s.) And for the record, that approval rating was significantly lower than Donald Trump’s. In Gallup’s 2018 poll, only 21% of Republicans reported trust in the media, compared to 76% of Democrats.
Meanwhile, a Monmouth University poll in early 2018 found that a whopping 77% of Americans believe traditional TV and newspaper outlets report “fake news.” And 42% of respondents said they believed outlets did this specifically to promote a political agenda. These kinds of numbers are alarming for civil society. The press is supposed to play an integral role in holding officials to account and helping the public make informed decisions. The more Americans are turned off from traditional news, the more they turn to social media and other truly dubious sources of information. It also creates a world in which Americans self-select their news sources, meaning they increasingly read or listen to only things with w
hich they agree. America is growing more radical and polarized, and the press in recent years has played a big role in that change.
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A truly dogged media critic would need an entire book just to catalog the media meltdown that started in the run-up to the Trump presidency. For the point of this chapter, it’s enough to provide a few key examples of how the press abandoned basic standards.
One particularly huge mistake helped drive all the rest: The press became willing advocates for government officials and agencies (at least the ones they liked). This is the reverse of the role the press is supposed to play. The media exists to be a government watchdog; the public depends on it to expose corrupt behavior.
When it has come to Trump administration actions, the press has done that with great energy, riding herd on every fact and issue. But when it has come to former Obama officials (Comey, Clapper, Brennan) and FBI and DOJ whisperers, they have served as willing scribes. They not only swallowed everything they were told, they also fought on those officials’ side. It’s hard to explain just how big a dereliction of duty this is. Reporters learn on day one that government officials exist to spin and lie, and that they do so with impunity. And the FBI’s Trump-Russia investigation fell so clearly into the government-abuse-of-power stories that the press usually exists to expose—spying on a presidential campaign, wiretapping U.S. citizens. That story also came laden with facts that the press would normally view as glaring red flags—opposition research from the rival campaign, backdoor channels at the DOJ. And yet anything the people in power told it to write, the press wrote.
The best example is that infamous New York Times “origin” story. When Nunes finally looked about to win his battle with the DOJ to see the dossier documents in January 2018, the FBI protectors panicked. They knew how terrible it would look that they had used oppo-research from the rival campaign to spy on a Trump person. So someone called the New York Times for help in getting ahead of the story. On December 30, 2017, it published: “How the Russia Inquiry Began: A Campaign Aide, Drinks and Talk of Political Dirt.” The story was, of course, all about how George Papadopoulos had inspired the FBI’s probe, and it flat-out narrated what would become the Comey-McCabe line. It also flatly dismissed the dossier. The Papadopoulos tale “answers one of the lingering mysteries of the past year: What so alarmed American officials to provoke the F.B.I. to open a counterintelligence investigation into the Trump campaign months before the presidential election? It was not, as Mr. Trump and other politicians have alleged, a dossier compiled by a former British spy hired by a rival campaign.” The Times cited nobody in its story other than anonymous “American and foreign officials.”
Resistance (At All Costs) Page 22
