THE MORNING PLUM:
If there is one thing we have discovered from some of the revelations in recent days, it’s that we have no idea what special counsel Robert S. Mueller III has established thus far. But will the rest of us ever learn what he has learned?
That question is about to come to a head. The Senate Judiciary Committee is set to debate and vote on a measure this week — called the Special Counsel Independence and Integrity Act — that would protect Mueller’s investigation from any effort by President Trump to quash it.
One big question being debated behind the scenes is this: Will the Mueller protection bill include a provision that requires disclosure of his findings at the end of the investigation?
According to sources familiar with the situation, senators on the Judiciary Committee are debating a provision that would do just that. However, some complications have developed that could also lead to a bad outcome — one that could help congressional Republicans micromanage Mueller’s investigation in the name of oversight.
I’ve obtained the relevant language. Charles E. Grassley (R-Iowa), chairman of the Judiciary Committee, is backing an amendment to the Mueller protection bill that requires the special counsel to prepare “a report detailing the factual findings of the investigation,” after it is over, to the attorney general and to the bipartisan leaders of the House and Senate Judiciary Committees.
This goes farther than the current regulations governing the special counsel, which merely call for Mueller to provide a “confidential” report to Deputy Attorney General Rod J. Rosenstein (who is overseeing the Mueller probe because Attorney General Jeff Sessions has recused himself) and provide for Rosenstein to then explain the decision to end the probe to Congress.
Those current regulations, then, give the deputy attorney general great discretion over what to reveal, setting up the possibility that Trump could remove Rosenstein and replace him with a loyalist who would send a very limited explanation to Congress that keeps most of Mueller’s findings secret. But the new amendment would change this.
“The Grassley amendment effectively cuts the deputy attorney general out of the process of deciding which reports by the Special Counsel get shared with Congress,” Stephen Vladeck, a law professor at the University of Texas at Austin, tells me. “That would prevent even a Trump loyalist from burying potentially adverse findings by Mueller.”
Here’s the problem
But there’s a problem. The Grassley amendment also contains language that would require the special counsel to notify the heads of the Judiciary Committee whenever “any change is made to the specific nature of scope of the investigation.” The problem here, Vladeck says, is that this language is so loosely worded that it could require Mueller to give Congress new information whenever minor investigative decisions are made. This, Vladeck says, could lead to selective leaking and other mischief along the lines of what we’ve already seen from House Intelligence Committee Chairman Devin Nunes (R-Calif.).
“The question is whether the bill can be crafted to strike a balance between keeping Congress in the loop while preventing it from micromanaging the investigation,” Vladeck says. Sources say Democrats are privately objecting to this provision on these grounds, something that Politico also reports.
It’s important to stress that the provision requiring the special counsel to report the “factual findings of the investigation” to Congress is good — and really could prevent a Trump loyalist from burying Mueller’s findings.
But the amendment sets up several ways Republicans could actually prevent that from happening or do damage to the investigation in other ways, on Trump’s behalf. If Republicans continue to insist on the measure that facilitates micromanaging by Congress, that could drive away Dems and tank the amendment, killing the aspect of it that is salutary. Or, if the amendment does pass in this form, it actually could end up facilitating such GOP micromanaging.
Separately, Senate Majority Leader Mitch McConnell (R-Ky.) and House Speaker Paul D. Ryan (R-Wis.) have both said they will not allow a vote on a Mueller protection bill at all. While it remains to be seen whether that’s true, this, too, would prevent the provision requiring disclosure of Mueller’s findings from becoming law. And that could enable Trump to bury those findings.
* ARIZONA RESULT SIGNALS TROUBLE FOR GOP: Republican Debbie Lesko hung on to win a special election Tuesday night by only six points, 53-47, in an Arizona House district that Trump carried by over 20 points. Elena Schneider comments:
Lesko’s single-digit margin is the latest evidence that Republicans face a punishing midterm environment. … “Republicans shouldn’t be hitting the alarm, they should be slamming it,” said Mike Noble, a GOP pollster based in Arizona. … Dan Eberhart, a major Republican donor from Arizona, said … GOP candidates need to be on high alert this fall. “These election results are a wake up call to Republicans in Arizona and nationally,” Eberhart said.
This margin bodes well for Democrats in the battle for the House and suggests they have a shot in the Arizona Senate race, which is key to any Dem Senate takeover.
* DEMS OUTPERFORMING IN TOUGH DISTRICTS: Dave Wasserman produced this useful chart, which shows Dems substantially outperforming Cook Political Report’s Partisan Voting Index, or PVI, which measures districts’ partisan lean, in special elections:
In other words, Tuesday night continues this pattern of Dems outperforming the PVI in all these districts by more than enough to win the House.
* DEMS ENJOY BIG ENTHUSIASM EDGE: The New York Times looks at that broader swing toward Dems in special elections and sums up its meaning beyond the Arizona results:
Multiple forces are behind the swing: Republican voters appear demoralized while Democrats are fired up, and some voters who typically lean Republican have been shifting away from the party. … Mr. Trump’s party will have to compete in dozens of more closely divided districts in November. If Democrats enjoy the same enthusiasm gap in those races, Republicans’ control of the House and Senate could be in jeopardy.
Indeed, as Wasserman adds, there are 147 seats that are less Republican than the Arizona seat, and “it’s time to start rethinking how many of them are vulnerable.”
* DEMS FLIP 40TH STATE LEGISLATIVE SEAT: Democrat Steve Stern won last night in New York’s 10th Assembly District, making this the 40th state legislative seat Democrats have flipped from red to blue, according to Daily Kos’s count.
This, too, bodes well: While Democrats have an enormous amount of ground to make up at the state-legislature level, anywhere they can take control of chambers could give them a seat at the table for the next decade’s redistricting.
* EMBATTLED SENATE DEMS OUTRAISE OPPONENTS: Senate Democrats facing tough races have outraised their GOP opponents, who are burning through cash in primaries, according to a new Bloomberg News analysis:
The 10 Democratic incumbents … from states won by President Donald Trump raised a combined $24.4 million in the first three months of the year, while the Republicans with at least $50,000 in their bank accounts in those states — 20 in all competing in eight contested primaries — raised $9.4 million.
As one expert puts it, the question is not “whether there will be a wave, but how big it will be.” Given the Senate map, Dems will need a wave to avoid losing seats and have a shot at a takeover.
* AND REPUBLICANS WORRY ABOUT TRUMP’S ‘NIGHTMARE’: Axios reports that some Republicans worry that not just the House but also the Senate is at risk:
Some well-wired operatives now tell Axios that President Trump may face his real nightmare: losing the Senate, giving Democrats both ends of the Capitol, and one-third of the government. … It’s not just that Democratic dominance at the Capitol would speed impeachment proceedings and trap the White House in a thicket of oversight probes and hearings. Twin losses would be a massive repudiation of Trump and his brand of Republicanism, just as he embarks on his reelection.
Yes, real oversight — which will be possible only if Democrats take back one or both chambers — probably would be a “nightmare” for Trump.