THE MORNING PLUM:
The news that Attorney General Jeff Sessions is mulling a special counsel to investigate a series of largely fake Clinton scandals that Republicans have been pushing puts us in potentially dangerous territory. President Trump and his allies have been embroidering this alternative scandal reality not just to distract from the Russia investigation but also possibly to lay the groundwork to shut down that probe. Sessions — wittingly or not — may now be putting the nation’s investigative machinery to work in legitimizing those efforts.
That is not the only interpretation of these latest developments. There are less menacing interpretations. But even if those are right, they raise possible permutations that are just as worrisome.
The latest news comes in a letter that the Justice Department sent to congressional Republicans, which states that Sessions has “directed senior federal prosecutors to evaluate” issues related to Republicans’ previous request for the appointment of a special counsel. Those Republicans, the letter notes, have demanded an investigation into “various matters” involving an alleged relationship between the sale of Uranium One shares to Russia and donations made to the Clinton Foundation. The department’s letter in response says it will determine whether these “matters merit the appointment of a special counsel.”
The Post fact-checking team has already demonstrated why the Uranium One “scandal” is thoroughly bogus. Making this worse, as The Post and New York Times point out, this Justice Department move looks like a response not just to congressional Republicans, but also to Trump’s recent criticism of the department for failing to probe these trumped-up scandals, which happen to involve his chief political enemy, raising questions about the department’s independence from political interference by Trump.
In a smart thread, Lawfare Blog founder Benjamin Wittes offers a nuanced interpretation of the department’s move. Wittes agrees that “dangling the possibility of a special prosecutor to investigate the president’s opponent” could amount to an “egregious abuse of power.” But Wittes also suggests this could be a prelude to a formal determination that these charges by Trump and Republicans don’t form the basis for a special counsel. If so, Sessions — or Deputy Attorney General Rod J. Rosenstein — could dismiss the matter and say the department is “acting on the presumably unanimous recommendation” of “senior career prosecutors.”
But even if this turns out to be right, there is still cause for worry about what precedents this could set and where all this is going. First, as Matthew Miller, a former Justice Department spokesman, told me this morning, the manner in which the department did this is itself problematic. “Whether Sessions ever appoints a special counsel or not, the letter endorses the idea that there might be something here to look at,” Miller told me.
“There is a way to write this letter to say, ‘we will review the issues you’ve raised, and take whatever steps are appropriate,'” Miller said. By contrast, he noted, the letter goes out of its way to say that “prosecutors will decide what steps to take, including the possibility of a special counsel. It affirmatively raises that idea.” Miller noted that the letter effectively “endorses the idea that it may be okay for the president to be telling the attorney general what to investigate.”
The reason this matters: It could become the latest act of enabling Trump in his ongoing obliteration of norms and institutional lines. Trump demanded the loyalty of his FBI director, then fired him when that loyalty was not forthcoming, admitting this was due to anger over the Russia investigation. He raged at his attorney general for failing to protect him from that probe and has seriously mulled an effort to remove special counsel Robert S. Mueller III. Congressional Republicans have not done nearly enough to signal that such a move would be met with a forceful response. Yet those same Republicans are actively helping Trump muddy the waters around that probe by launching their own investigations into the bogus Clinton scandals, and, now, by prevailing on the attorney general to go too far in using prosecutorial resources to validate those story lines.
It’s also worth entertaining what might happen even if the Justice Department concluded that the fake scandals don’t merit a special counsel. As I’ve argued, Trump’s media allies are actively trying to goad him into going full authoritarian against the Mueller probe by using these invented story lines to cast Mueller and the investigation as corrupt and illegitimate and by hammering the narrative that this has created a crisis in this country that leaves Trump no alternative but to close it down.
We don’t know if Trump will end up going full authoritarian or not. But if the department does decline to go the special counsel route, is there any reason to believe Trump would accept this? Instead, it may well torque Trump into a state of rage and grievance over how unfair and illegitimate it is that Clinton isn’t being probed, while his campaign continues to be targeted by an investigation that he claims is nothing but a hoax. That’s exactly what his allies hope will tip him into acting against Mueller. It’s hard to see how this ends well.
* REPUBLICANS FEAR A ROY MOORE VICTORY: The New York Times reports that top Republicans are mulling a scenario in which Moore is expelled by fellow senators and replaced with another Republican by the Alabama governor. But:
Should Mr. Moore prevail, Republicans believe the debate over whether he should be allowed to take and keep his seat could drag on for months. The Republicans’ legislative agenda … could be swallowed in a maelstrom of controversy around Mr. Moore and his fitness to serve. The implications for the 2018 elections could be even graver, Republicans fear, with several party strategists predicting that Democrats would brand them as the party of child sex abuse.
It would not be surprising if Republicans decide it’s worth enduring all this to keep the seat, however.
* WHAT MIGHT HAPPEN IF SENATE EXPELS MOORE: CNN reports that some GOP senators are deferring judgment on whether they’d vote to expel Moore if he wins. Note this:
Sen. Richard Shelby, the senior Republican senator from Alabama, said there should be “due process” before expulsion is raised. “I think before you reach that, you’d be sitting like a juror and you know you’d want to hear the evidence,” he said. “It’d be like voting to convict a president and kicking him out without hearing anything.”
That would be quite the circus, with Stephen K. Bannon and other Moore boosters shrieking about establishment betrayal, just in time for the 2018 elections.
* GOP’S OPTIONS IN ALABAMA ARE DWINDLING: Some Republicans have talked about getting Luther Strange, who lost the primary to Moore, to run a write-in campaign. But Politico reports:
Strange said Monday night that “right now,” he was “highly unlikely” to pursue a write-in bid. “I made my case during the election, now it’s really going to be up to people in our state to sort this out,” Strange said. “A lot of these allegations are new, it’s an unfolding story.”
As it is, top Democrats believe that a write-in candidacy might be tough to pull off, because a chunk of Moore supporters would stick with their guy, splitting the GOP vote.
* AMERICANS BELIEVE CHARGES AGAINST MOORE: A new Politico/Morning Consult poll finds that 60 percent of Americans believe that the reporting is credible on the woman who claimed Moore initiated sexual contact when she was 14 years old.
That includes Republicans, who say this by 49-30. Of course, Moore is running in deep-red Alabama, where Republicans may be more inclined to believe him when he claims the charges reflect a plot between the liberal media, Barack Obama and Hillary Clinton.
* GOP SENATORS ARE SPLIT ON MOORE: ABC News tallies up the reaction among all the senators in the GOP caucus:
ABC News has reached out to all 52 Republican senators for reaction. Eleven of them are calling for Moore to withdraw from the race. Eight have withheld comment. A majority have qualified their remarks by saying if the allegations are true, Moore should step aside.
A majority of GOP senators remain in the “If True” Caucus, which means they’re dodging on the core question of who they believe and whether Moore is fit to be a senator.
* THE GOP TAX PLAN IS CLASS WARFARE: Paul Krugman runs through the ways the GOP plan lavishes benefits on wealthy heirs and the idle rich while setting the stage for deep cuts to government programs that help poor people, and concludes:
This isn’t just ordinary class warfare; it’s class warfare aimed at perpetuating inequality into the next generation. Taken together, the elements of both the House and the Senate bills amount to a more or less systematic attempt to lavish benefits on the children of the ultra-wealthy while making it harder for less fortunate young people to achieve upward social mobility.
Just wait until the plan showers all that prosperity on Appalachia and the Rust Belt, though.
* AND TRUMP KNOWS THAT REAL POLLS SHOW HE’S POPULAR: Good morning, Mr. President. Thinking about our historically awful job approval numbers, are we?
You go with that, Mr. President. It will thrill your dwindling hard core of supporters. We think last week’s results tell the real story.