With Mariana Alfaro

THE BIG IDEA: “Wow,” Judge Beryl Howell said in her courtroom on Tuesday.

A lawyer representing President Trump’s Justice Department had just made the audacious argument that the courts erred in 1974 by allowing Congress to review materials from the Watergate grand jury. Without that “road map,” which formed the backbone of the House impeachment hearings, the depths of Richard Nixon’s corruption might never have been known. Nixon probably would have served out his full second term.

The House Judiciary Committee has been trying to secure some of the grand-jury materials that former special counsel Bob Mueller relied upon to prepare his report on Russian interference in the 2016 presidential election. Attorney General Bill Barr’s team is fighting tooth and nail to keep them secret. Their latest gambit is to claim that the landmark ruling 45 years ago by John Sirica, which was upheld on appeal, relied on an “ambiguous” interpretation of law that no longer is valid. Howell, who is now the chief judge of the same federal court, seemed taken aback. During a two-hour hearing, she described this as one of several “extreme” arguments that the DOJ has staked out in this case.

Remarkably, this was not actually the Trump administration’s most brazen claim of executive power on Tuesday. Not even close.

The day started with the State Department blocking Gordon Sondland, the U.S. ambassador to the European Union, from appearing for a scheduled deposition to discuss his role in the Ukraine scandal. The directive apparently came via a voice mail left for Robert Luskin, the ambassador’s attorney, at 12:30 a.m. Luskin said that his client flew in from Brussels and was willing to testify but that he felt obligated to follow the order to not show up.

A few hours later, Trump’s personal attorney Rudy Giuliani announced that he will disregard a House subpoena for documents related to his efforts in Ukraine. “Let them hold me in contempt,” Giuliani declared.

Tuesday ended with White House counsel Pat Cipollone announcing that Trump will not cooperate in any way with the House’s impeachment inquiry. In a fiery eight-page letter to Nancy Pelosi that sounded more like Trump’s tweets than serious legal analysis, Cipollone said the president has done nothing wrong, called the proceedings against him illegitimate and accused Democrats of trying to overturn the results of the 2016 election. “To fulfill his duties to the American people, the Constitution, the executive branch, and all future occupants of the Office of the presidency, President Trump and his administration cannot participate in your partisan and unconstitutional inquiry under these circumstances,” Cipollone wrote.

Trump has demonstrated a consistent disdain for the rule of law since taking office, from declaring a national emergency to divert money from the military construction budget for his border wall to musing that guns should be taken away from people without due process. But Tuesday’s frontal challenge to the fundamental system of checks and balances takes the cake.

-- The absolutist position articulated in Cipollone’s letter follows Trump’s increasingly provocative assertions of his own power. “Article II allows me to do whatever I want,” Trump said this summer. The president was making the point during an interview with ABC News that he could have fired Mueller and ended his probe if he wanted to do so. He’s made variations of this statement several times in the past few months, from a gaggle on the White House lawn to an 80-minute speech at a conference for pro-Trump students. I have to the right to do whatever I want as president,” Trump told the kids.

Article II enumerates several specific powers for the president but by no means gives him total power. Quite the opposite. In fact, the impeachment clause is in Section Four of Article II. Removing a president for “treason, bribery, or other high crimes and misdemeanors” is literally, by definition, a constitutional act.

-- Substantively, many legal experts agree, the arguments in the White House’s latest letter are specious. Impeachment is literally a constitutional remedy. It cannot be “unconstitutional,” as Cipollone claimed in his letter. Several prominent attorneys, including conservatives, rebuked the White House counsel for putting his name on such an incendiary letter.

“This letter is bananas,” said Gregg Nunziata, who previously served as general counsel for Marco Rubio and, before that, the chief nominations counsel for Republicans on the Senate Judiciary Committee. “A barely-lawyered temper tantrum. A middle finger to Congress and its oversight responsibilities. No Member of Congress should accept it, no matter his or her view on the behavior of Pelosi, Schiff, or Trump. Things are bad. Things will get worse.”

“I cannot fathom how any self-respecting member of the bar could affix his name to this letter. It’s pure hackery, and it disgraces the profession,” added conservative legal luminary George Conway, who worked for Ken Starr during the investigation that led to Bill Clinton’s impeachment. He is married to counselor to the president Kellyanne Conway but has emerged as an outspoken Trump critic.

-- “He is shaking the foundations of the republic,” said Kerry Kircher, the House counsel for the Republican majority between 2011 and 2016. “He is poking his fingers into all of the places where we have norms and traditions and things that both parties have respected for years, and he has blown all of those out the window,” Kircher explained earlier this week, before the Cipollone letter, to Seung Min Kim and Rachael Bade.

-- The president has left little doubt that he’s personally behind the decision to stonewall and to try running down the clock. He indicated on Twitter that it was his call to gag Sondland. “I would love to send [him] to testify, but unfortunately he would be testifying before a totally compromised kangaroo court,” the president tweeted on Tuesday.

Trump has regularly told White House officials that he does not want to cooperate with the House committees conducting oversight,” sources tell Karoun Demirjian, Josh Dawsey, Shane Harris and John Wagner. “He was livid last week after the release of text messages from Kurt Volker [special envoy to Ukraine] and news accounts from testimony that seemed to undercut his administration’s case,” a White House official said on background.

-- Trump may be our most litigious president ever, but he’s not a lawyer. For that reason, the White House’s announcement that it won’t cooperate ought to be viewed more as a political strategy than a legal one. He’d much rather duke it out with Democrats over something like document production, which can make people’s eyes glaze over, than answer for his underlying conduct at the heart of the impeachment inquiry. He knows that not cooperating will make it harder for investigators to get to the bottom of what really happened, specifically how directly involved he was.

-- Pelosi responded that Democrats won’t be deterred. She promised that House investigators will keep looking into Trump’s alleged efforts to coerce a foreign country to dig up dirt on a domestic political rival while simultaneously holding up vital assistance that Ukraine needed to fend off the ongoing Russian invasion. “The White House should be warned that continued efforts to hide the truth of the President’s abuse of power from the American people will be regarded as further evidence of obstruction,” Pelosi said in a statement. “Mr. President, you are not above the law. You will be held accountable.”

-- The bigger picture: Under Barr, the Justice Department has increasingly intervened on Trump’s behalf, including when he sues other people. The Barr Justice Department has pushed for a breathtaking expansion of presidential immunity, even as Trump’s lawyers make sometimes contradictory arguments in legal filings. “In the most recent instance, [last] Wednesday, the department took Trump’s side in a federal lawsuit against the Manhattan district attorney. In that case, Trump has sought to block a subpoena for his tax returns — using the precedent-shattering argument that a sitting president shouldn’t be investigated by any prosecutor, for any reason, anywhere,” David Fahrenthold, Ann Marimow and Robert Barnes report:

“During Trump’s term, federal lawyers have defended him against three lawsuits alleging he is violating the Constitution by continuing to do business with foreign governments through his family business. … In two other cases, the Justice Department has supported Trump as he seeks to block congressional investigations of his finances — by suing the committees investigating him and suing the companies the committees subpoenaed for records. … In both cases, Trump said the subpoenas are invalid because they lack a ‘legitimate legislative purpose’ — that is, they’re not tied to pending legislation. The argument is that Congress should not investigate the president’s conduct; that’s a job for prosecutors. …

“The Justice Department also advised the Treasury Department to refuse a request from the House Ways and Means Committee to inspect Trump’s tax returns. The law says the returns must be turned over when requested. But the Justice Department still said no: Its reasoning was again that there was no ‘legitimate legislative purpose’ behind the request, so it was not valid. …

“In the Manhattan district attorney suit, Trump’s private attorneys have turned their arguments from those other lawsuits inside out. Before, they said Congress should not obtain Trump’s records because that job was reserved for prosecutors. In this separate case, Trump’s private attorneys have said prosecutors shouldn’t obtain them. That job, they said, was reserved for Congress. ‘The Framers eliminated this possibility, and assigned the task to … Congress’ by creating the impeachment process, Trump’s private attorneys wrote.”

The White House is now arguing, with the Cipollone letter, that the impeachment process – cited in New York as a reason why prosecutors shouldn’t get Trump’s tax returns – is illegitimate.

-- On Monday, the federal judge in the New York case dismissed Trump’s lawsuit seeking to block the Manhattan district attorney from obtaining his tax returns. Judge Victor Marrero broadly rejected Trump’s claim that a president cannot be investigated by any prosecutor, anywhere, for any reason. He said this position it “repugnant” to the concept that no man is above the law. “The Court cannot square a vision of presidential immunity that would place the President above the law with the text of the Constitution, the historical record, the relevant case law” or any other authority, the judge wrote in a 75-page ruling. “This Court cannot endorse such a categorical and limitless assertion of presidential immunity from judicial process.” The U.S. Court of Appeals for the Second Circuit has issued a stay of the subpoena, pending Trump's appeal.

-- It’s not just Marrero and Howell: Trump’s over-the-top claims of absolute executive power have been rejected by other federal judges, as well. In May, for example, U.S. District Judge Amit Mehta of the District of Columbia compared Trump to James Buchanan who claimed in 1860 that the House didn’t have the power to investigate him. “Buchanan feared that, if the House were to exercise such authority, it ‘would establish a precedent dangerous and embarrassing to all my successors, to whatever political party they might be attached,’” Mehta wrote in his 41-page opinion. “Some 160 years later, President Donald J. Trump has taken up the fight of his predecessor.”

Mehta rejected an effort by Trump’s lawyers to quash a subpoena from the House Oversight Committee for records from the president’s accounting firm. He offered a meaty history lesson for a president who has never cared much for the discipline, citing Woodrow Wilson, Warren Harding, Nixon and Clinton as he outlined why the House is entitled to records it seeks. After recounting the Whitewater, Watergate and Teapot Dome investigations, Mehta concluded: “This court is not prepared to roll back the tide of history.”

But such rebukes have not stopped Trump and his team from defiantly trying to roll back the tide of history anyway.

-- It seems increasingly inevitable that the Supreme Court will be forced to adjudicate some of these disputes. Perhaps Trump is counting on the five justices appointed by Republican presidents, including his picks Brett Kavanaugh and Neil Gorsuch, to protect him. When Nixon’s refusal to turn over White House tapes got to the high court in 1974, he lost unanimously in U.S. v. Nixon.

“Maybe Nixon was wrongly decided,” Kavanaugh once said, “heresy though it is to say so.”

THE LATEST DEVELOPMENTS ON IMPEACHMENT:

-- CNN reports that Trump personally urged Secretary of Energy Rick Perry, as well as Sondland and Volker, to deal directly with Giuliani when the Ukrainian president sought to meet with him: Trump “said that if President Volodymyr Zelensky wanted to meet with him, Giuliani would have to be convinced first, one source said. ‘If they can satisfy Rudy, they can satisfy the President,’ a person familiar with the meeting said.” Needless to say, this is a clear circumvention of official channels.

-- Sondland revealed during a July interview with an English-language Ukrainian television network that he spoke with Trump just before the president called Zelensky. Philip Bump reports: “A call between Sondland and Trump shortly before the Trump-Zelensky call could be significant, given one of those newly released text messages. At 8:36 a.m., Volker texted a Zelensky aide named Andrey Yermak. ‘Heard from White House,’ Volker wrote. ‘Assuming President [Zelensky] convinces trump he will investigate / ‘get to the bottom of what happened’ in 2016, we will nail down date for visit to Washington. Good luck!’ … Sondland’s reference to speaking to Trump around the same time hints at the possibility of a more direct line from Volker’s offer through Sondland to Trump. In the July 26 interview, Sondland emphasized his close working relationship with Volker and Perry on Ukraine issues. He described the three as the ‘three amigos’ and said that they had ‘been tasked with sort of overseeing the Ukraine-U.S. relationship between our contacts at the highest levels of the U.S. government and now the highest levels of the Ukrainian government.’”

-- House Democrats are still trying to negotiate terms to secure the initial whistleblower’s closed-door testimony. From Karoun, Josh, Shane and John: “The whistleblower wrote in a two-page memo that the intelligence community’s inspector general provided last week to the congressional intelligence committees that a White House official called the substance of the July 25 call ‘crazy’ and ‘frightening’ and suggested that Trump may have violated federal election laws by asking Zelensky for a ‘favor’ of investigating the Bidens. A person familiar with the memo added that the White House official also thought it was improper that the record of the call was moved to a highly classified server. … The House panels are also expected in the days ahead to issue subpoenas for three Soviet-born operatives — Lev Parnas, Igor Fruman and Semyon Kislin — who assisted Giuliani in Ukraine and have thus far resisted congressional summonses.”

Looking to bolster his defense team, Trump is also likely to add former congressman Trey Gowdy (R-S.C.) to serve as an outside lawyer for the impeachment process, senior White House officials said. Gowdy led the House’s select committee that investigated the 2012 attacks in Benghazi, repeatedly demanding witnesses and documents from the Obama administration.

-- Former national security officials are fighting back as Trump claims that impeachment is the result of a “deep state” conspiracy against him. David Nakamura reports: “Those who have come forward since the Ukraine impeachment inquiry was announced said they are determined to make clear that Trump’s conduct falls well outside the institutional boundaries of the presidency. ‘What is happening currently is not normal,’ said Andrea Kendall-Taylor, who served as a U.S. intelligence officer on Russia and Eurasia before stepping down in 2018. ‘This represents a deviation from the way that these institutions regularly function. And when the institutions don’t work, that is a national security threat.’ She was among 90 national security veterans who signed an open letter published Sunday in support of the anonymous whistleblower who filed a complaint that Trump had acted improperly in asking the Ukrainian president to investigate [Joe] Biden in a July phone call. …

  • Roberta Jacobsen, who stepped down as U.S. ambassador to Mexico in 2018, conceded that ex-career officials publicly opposing Trump could contribute to a broader perception of partisanship. But she signed onto the open letter because Trump’s conduct ‘so violates the rules that you were brought up on and because you think it’s just dangerous for the United States.’”
  • Bryan McGrath, a retired naval officer who helped organize the first ‘Never Trump’ letter in 2016, said GOP national security veterans are deliberating over how to ‘reengage in a big way’ ahead of the 2020 election. During his time in the Navy, he was trained that his commander ‘was to be obeyed,’ and current officers have a similar responsibility, he said. But now out of uniform, McGrath said he feels compelled to speak out. ‘This is a unique, deep and long-lasting threat,’ he said.”

-- Democrats want to take a fresh look at whether the sale of anti-tank missiles to Ukraine last year was in any way connected to the country’s decision to halt investigations into Trump campaign chairman Paul Manafort. From Politico: “‘I think that’s all part of the fact finding that members of the six committees need to pursue, and as a member of the Foreign Affairs Committee, it’s something that I’m very interested in,’ said Rep. Jim Costa in an interview. House Foreign Affairs Committee members Rep. Gerry Connolly and Tom Malinowski are also interested. … The U.S. completed its shipment of Javelin anti-tank missiles to Ukraine in May 2018, finalizing a sale that was pushed by lawmakers in both parties and reluctantly approved by Trump in November 2017. In April 2018, then-Ukrainian President Petro Poroshenko ordered Ukraine’s top anti-corruption prosecutor Yuriy Lutsenko—who’d been tasked with investigating corruption that occurred under former Ukrainian President Viktor Yanukovych—to stop cooperating with special counsel Robert Mueller.”

-- China publicly rejected Trump’s call to investigate Joe Biden and his son. From the South China Morning Post: “‘China has long pursued the principle of non-interference in the internal affairs of other countries,’ foreign ministry spokesman Geng Shuang said on Tuesday. ‘We have no intention of intervening in the domestic affairs of the United States. Our position is consistent and clear.’ … In addition to maintaining the non-interference principle, a Chinese investigation into the Bidens would be likely to offend both Democrats and Republicans, further intensifying concerns that China is interfering in U.S. presidential election.”

-- Trump loyalists in the House were blindsided when the White House blocked Sondland from testifying. They're now pressing for better coordination as impeachment moves forward. From Bloomberg: Ohio Republican Rep. Jim Jordan, “who is the senior Republican on the Oversight and Reform Committee, expressed regret that the panels wouldn’t hear from Sondland on Tuesday. But he said he understands why the State Department blocked the deposition ... House Republicans are holding almost daily strategy sessions led by Minority Leader Kevin McCarthy to combat the Democratic impeachment effort. Tuesday’s episode was the latest in what some Republicans have complained is the less-than-tight coordination between the White House and Trump’s Republican defenders in Congress.”

-- Rep. Ralph Abraham, the Republican candidate for governor of Louisiana, introduced a resolution to expel Nancy Pelosi from the House, calling her efforts to investigate the president a “vicious crusade” and “nothing more than a politically-motivated witch hunt.” The resolution, which stands no chance of passing, hasn’t secured many Republican co-sponsors, per Fox News. But it's a reminder of the politics of impeachment in a place like Louisiana.

-- Former U.S. attorney Joseph E. diGenova, a frequent Trump defender, called whistleblowers “suicide bombers” and accused Democrats of “regicide” during a Fox News interview with Giuliani and Laura Ingraham. “This is regicide by another name, fake impeachment,” diGenova said as Giuliani sat next to him. “The Democrats in the House want to destroy the president.” Last month, Fox News's Chris Wallace reported that diGenova and his wife helped Giuliani get “oppo research” on Biden. During the interview with Ingraham, diGenova refuted the report as “absolutely false.” (Allyson Chiu)

-- Notable commentary:

The Daily 202's BIG IDEA> Get James' insight into Washington every weekday on your smart speaker or favorite podcast player.
Subscribe on Amazon Echo, Google Home, Apple HomePod and other podcast players.
 
Welcome to the Daily 202, PowerPost's morning briefing for decision-makers.
Sign up to receive the newsletter.

WHILE YOU WERE SLEEPING:

-- The developers of the rechargeable lithium-ion batteries received the Nobel Prize in chemistry. Ben Guarino reports: "Rechargeable lithium-ion batteries provide energy to mobile phones, pacemakers and electric cars. ... These batteries are increasingly used to store power from sources that fluctuate, such as solar and wind energy. The scientists [John Goodenough, M. Stanley Whittingham and Akira Yoshino] tamed the element lithium, a soft, silver-white metal that was formed in the first few minutes after the Big Bang."

-- A major milestone: Montgomery, Ala., once the cradle of the Confederacy, elected its first African American mayor. Steven Reed, a county probate judge, beat television station owner David Woods in a runoff. Half the capital city’s population is black, but whites have continued to maintain a tight grip on power. “Montgomery is one of only three cities in six Deep South states with a population of 100,000 or more that had not previously elected an African American as mayor,” the Montgomery Advertiser notes. “Reed was the first African American elected as the county's probate judge in 2012. In 2015, he was the first probate judge in Alabama to issue same-sex marriage licenses. … Reed said he wants to invest in public transportation and address the issue of brown water and food deserts in some of Montgomery's communities.”

Times have been changing in the city, where George Wallace once ruled with an iron fist and Jefferson Davis took the oath of office to become the Confederacy’s first president. Last year, a museum to highlight the dark history of lynching opened across from where the city’s slave market used to be. “Montgomery is a city with limitless potential, a city that has no limits outside of our imagination,” Reed said in his victory speech. “The only thing that can hold us back is our fears. When we come together, there's nothing that we can't accomplish.”

-- The Mystics lost to the Connecticut Sun 90-86, keeping the WNBA title just out of Washington’s reach and bringing a decisive Game 5 to the city. Ava Wallace reports: “Game 4 was a tidy microcosm of a series that has been defined by wild swings of momentum. The Sun led twice by large margins — 18 points in the first quarter and 16 in the third — only to see its leads disappear at the hands of the sharpshooting Mystics. Leading by one point with less than a minute to go, the Sun survived by keeping Washington from getting a clean look in the game’s final seconds.”

THE NEW WORLD ORDER:

-- President Recep Tayyip Erdogan announced today that Turkey’s military has launched a long-expected offensive into northeastern Syria targeting U.S.-allied Syrian Kurdish fighters who have played a central role in battling the Islamic State militant group. (Developing.)

-- Syrian Kurds are mobilizing civilian defenses. Kareem Fahim, Karen DeYoung and Asser Khatab report: “The Autonomous Administration of North and East Syria announced three days of ‘public alarm’ and urged people to ‘go to the border region adjacent to Turkey to carry out their moral duty and show resistance.’”

-- Pentagon officials said the U.S. won’t take over Islamic State prisons if Kurdish forces withdraw. Missy Ryan and Liz Sly report: “Kurdish officials said that guards were still in place at the more than 20 prisons and camps under their control but were prepared to move, raising the possibility that about 11,000 militants and their families could escape. U.S. officials … said the Pentagon did not have enough forces to oversee the prisons if those facilities were left unguarded, nor a mandate to do so. … The potential for a battle between two American allies in Syria has intensified the Trump administration’s struggle to find a solution for the detainees and about 70,000 displaced women and children housed in separate camps, some of whom are militant supporters.”

-- The furor over the decision to pull American troops out of northeastern Syria began with the poorly conceived White House statement about a phone conversation between Trump and Erdogan. “The results have been rapid and remain unpredictable — and, in the view of critics, amount to the abandonment of America’s Syrian Kurdish allies to a massive Turkish military assault," Karen DeYoung and Kareem Fahim write at the top of a lengthy tick-tock on the SNAFU. "National security aides — most of whom had not seen the call announcement the night before — quickly mobilized to repair the damage, and the presidential tone changed. ...

An administration official said Mazloum Kobane Abdi, the commander of the Kurdish-dominated Syrian Democratic Force, sent a message to U.S. forces in Syria saying he knew that the recent decisions were not theirs and that they would always be brothers. … Early Wednesday morning, the Islamic State sought to take advantage of the focus on the border to the north by staging an attack shortly before 2 a.m. in the group’s former capital, Raqqa, according to a statement from the SDF. Three suicide bombers attacked SDF military positions in the city and a gun battle erupted with an unknown number of militants nearby, the statement said. As allies and regional actors try to unscramble the president’s conflicting statements, Erdogan’s government has remained on message, insisting that the invasion is a certainty and that its target, the SDF, is an imminent threat to Turkey’s national security.”

-- Joseph Votel, who oversaw the campaign against the Islamic State in Iraq and Syria as the leader of U.S. Central Command, and counterterrorism expert Elizabeth Dent, who worked with the State Department’s Global Coalition to Defeat ISIS, argue in a must-read piece for the Atlantic that Trump's decision threatens to undo years of gains: “Over four years, the SDF freed tens of thousands of square miles and millions of people from the grip of ISIS. Throughout the fight, it sustained nearly 11,000 casualties. By comparison, six U.S. service members, as well as two civilians, have been killed in the anti-ISIS campaign. Key to this effective relationship was mutual trust, constant communication, and clear expectations. The partnership was not without its difficulties. That included working through the December 2018 announcement of our sudden departure and our subsequent agreement with Turkey to pursue a security mechanism for the border areas. But each time, the strong mutual trust built on the ground between our military members and the SDF preserved our momentum. The sudden policy change this week breaks that trust at the most crucial juncture and leaves our partners with very limited options."

-- Foreign affairs columnist David Ignatius is hearing that the Russians are working in cahoots with Ankara:

--  A veteran Republican consultant, who served as chief strategist on Mitt Romney's 2012 presidential campaign, is praying for the Kurdish Christians and for Trump's evangelical supporters to say something before it's too late:

-- A bipartisan panel of senators called for a sweeping effort to prevent Russian interference in the 2020 election after publishing a report about the weaknesses Russian operatives exploited in the 2016 election. Craig Timberg and Tony Romm report: “The Senate Intelligence Committee, a Republican-led panel that has been investigating foreign electoral interference for more than 2½ years, said in blunt language that Russians worked to damage [Hillary Clinton] while bolstering [Trump] — and made clear that fresh rounds of interference are likely ahead of the 2020 vote. … Though the 85-page report itself had extensive redactions, in the visible sections, lawmakers urged their peers in Congress to act, including through the potential adoption of new regulations that would the disclosure of ad buyers more transparent. The report also called on the White House and the executive branch to adopt a more forceful, public role, warning Americans about the ways in which dangerous misinformation can spread while creating new teams within the U.S. government to monitor for threats and share intelligence with industry.

The recommendations call for Silicon Valley to more extensively share intelligence among companies … The committee report recounts extensive Russian manipulation of Facebook, Instagram, YouTube, Twitter, Google and other major platforms with the goal of dividing Americans, suppressing African American turnout and helping elect Trump president. … [The] report described how efforts to manipulate Americans over social media operated in multiple steps. Fake accounts operating from Russia started by ingratiating themselves into online conversations using nonpolitical comments, then switched to overtly partisan content. … The report also noted that the paid advertisements on Facebook, Instagram and other platforms were much less important than the free viral context created by teams of Russian disinformation operatives working across multiple platforms.”

-- A top secret unit within the Russian intelligence system skilled in subversion, sabotage and assassination is attempting to destabilize Europe, security officials say. Michael Schwirtz reports in the New York Times: “The group, known as Unit 29155, has operated for at least a decade, yet Western officials only recently discovered it. Intelligence officials in four Western countries say it is unclear how often the unit is mobilized and warn that it is impossible to know when and where its operatives will strike. … Hidden behind concrete walls at the headquarters of the 161st Special Purpose Specialist Training Center in eastern Moscow, the unit sits within the command hierarchy of the Russian military intelligence agency, widely known as the G.R.U. … In the months before the 2016 presidential election, American officials say two G.R.U. cyber units, known as 26165 and 74455, hacked into the servers of the Democratic National Committee and the Clinton campaign, and then published embarrassing internal communications."

-- The Taliban vowed to launch massive attacks on Afghanistan’s election day. The chaos was relatively small. Susannah George reports: “The relative calm on election day is a rare success for the country’s military and police forces, which have struggled in combat with the Taliban. Afghan and American officials attribute the low toll to aggressive planning and coordination, after months of intense military pressure on Taliban strongholds."

-- A new U.N. report details dozens of civilian deaths – including 14 children -- in U.S. airstrikes against Taliban drug labs. (Sayed Salahuddin)

-- American companies are scrambling to avoid fallout with China over Hong Kong. Jeanne Whalen, Ben Golliver and Steven Zeitchik report: “Tiffany & Co., which relies on the Chinese market for double-digit revenue growth, scrapped a global advertising image that some in China perceived as supporting Hong Kong protesters, even though the company said the image was taken weeks before the demonstrations began. Blizzard Entertainment, the Irvine, Calif.-based video-game giant, suspended a professional player for one year for reportedly shouting ‘Liberate Hong Kong!’ during an interview. … With Hong Kong in its fourth month of street protests, China is increasingly imposing the same strictures on what’s said about it beyond its borders.”

-- In an internal memo, ESPN ordered that any discussion of Houston Rockets’ General Manager Daryl Morey avoid political discussions about China or Hong Kong and instead focus on basketball, per Deadspin.

-- An anonymous official in Boris Johnson’s office said negotiations with European leaders over Brexit were “essentially impossible” after the British prime minister concluded a phone call with German Chancellor Angela Merkel. Loveday Morris and William Booth report: “European officials hit back that Johnson was trying to blame them for a breakdown in talks. ‘What’s at stake is not winning some stupid blame game,’ tweeted European Council President Donald Tusk. ‘At stake is the future of Europe and the UK as well as the security and interests of our people. You don’t want a deal, you don’t want an extension, you don’t want to revoke, quo vadis?’ Tusk challenged Johnson, mimicking the prime minister’s frequent use of Latin. ‘Quo vadis?’ means ‘Where are you going?’”

-- Ecuadoran President Lenín Moreno moved the government out of the capital of Quito as protests grow. Rachelle Krygier reports: “Leonidas Iza, president of the Indigenous Farmers Movement of Cotopaxi, said the protesters weren’t trying to oust Moreno but to pressure him to reverse his policies.”

THE DOMESTIC AGENDA:

-- Trump’s nominees could play a pivotal role as the Supreme Court decides on protections for gay and transgender workers. During its first day on the case, the court appeared divided. Robert Barnes and Ann E. Marimow report: “Chief Justice John G. Roberts Jr., whose questions in court gave no signal about his views on the case, was careful with pronouns, at one point using the neutral ‘they’ to refer to an individual. Lawyers for the gay and transgender individuals challenging their firings seemed to pitch their arguments to Justice Neil M. Gorsuch, a conservative who advocates a close textual reading of statutes. During the sexual orientation arguments, he pushed lawyers for the government and the employers to acknowledge that sex seemed to be at least a ‘contributing cause’ to the terminations. But during arguments in the transgender case, he wondered if ‘when a case is really close,’ courts should make decisions that might cause ‘massive social upheaval’ rather than leave it up to Congress. [Kavanaugh], the court’s newest member, kept a low profile during the two hours of argument, asking only one question. There seemed little doubt that the court’s four liberal members would find that Title VII covered gay and transgender workers. But one of the court’s five conservatives would have to join them to form a majority.”

-- A federal judge said the FBI’s searches for information on Americans – including its own personnel – violated the law. Ellen Nakashima reports: “Court opinions disclosed Tuesday by U.S. intelligence officials also show that, despite concerns raised by the Foreign Intelligence Surveillance Court (FISC), the FBI resisted for nearly a year to change its procedures for tracking its queries for the data of Americans. … In the most noteworthy violation disclosed Tuesday, the FBI in March 2017 conducted queries on databases using more than 70,000 email addresses or phone numbers of FBI employees or contractors. The bureau proceeded with the queries despite the advice of its general counsel, though it did not review the results, according to an October 2018 court opinion.”

-- Nearly one million migrants were arrested along the Mexico border in the 2019 fiscal year, the most since 2007. Nick Miroff reports: “Mark Morgan, the acting CBP commissioner, told reporters at a White House briefing that more than 52,000 migrants were taken into custody in September at U.S. ports of entry and between them, a decline of 18 percent from August. Overall, U.S. border authorities made 977,509 arrests during fiscal 2019, up 88 percent from last year and the highest total since 2007. Morgan called it a ‘staggering’ increase. Arrests by U.S. border agents reached an all-time high of 1.6 million in 2000, but Department of Homeland Security officials insist that the migration wave they faced this year is unlike anything in the past.”

-- Seven Ivy League schools, plus Stanford, Northwestern and 10 other elite schools, filed an amicus brief with the Supreme Court opposing the Trump administration’s effort to roll back the Deferred Action for Childhood Arrivals program, per the Stanford Daily.

-- Last year, for the first time in history, U.S. billionaires paid a lower tax rate than the working class. Christopher Ingraham reports: “‘The Triumph of Injustice,’ by economists Emmanuel Saez and Gabriel Zucman of the University of California at Berkeley, presents a first-of-its kind analysis of Americans’ effective tax rates since the 1960s. It finds that in 2018 the average effective tax rate paid by the richest 400 families in the country was 23 percent, a full percentage point lower than the 24.2 percent rate paid by the bottom half of American households. In 1980, by contrast, the 400 richest had an effective tax rate of 47 percent. In 1960, their tax rate was as high as 56 percent. The effective tax rate paid by the bottom 50 percent, by contrast, has changed little over time."

-- Trump is considering weakening Obama-era rules that curb corporate inversions. From Bloomberg: “The Treasury is looking at regulations intended to prevent American firms from lowering their U.S. tax bills by shifting income to their offshore branches that they can loan to their domestic branches and deduct the interest off their Internal Revenue Service bills. The department is also contemplating repealing them entirely to replace them with something more business-friendly."

-- Education Secretary Betsy DeVos faces potential sanctions or a finding that she’s in contempt of court for continuing to collect on the debt of former students at the bankrupt Corinthian Colleges. From Bloomberg: “‘I’m not sure if this is contempt or sanctions,’ U.S. Magistrate Judge Sallie Kim told lawyers for the Education Department at a hearing Monday in San Francisco. ‘I’m not sending anyone to jail yet but it’s good to know I have that ability.’ The judge said she was “astounded” that the department violated her June order to stop collecting the debts from students, who had been promised refunds of their tuition. ‘At best it is gross negligence, at worst it’s an intentional flouting of my order,’ Kim warned lawyers.”

-- The acting director of the Department of Interior’s Bureau of Land Management has repeatedly denied climate change and in a 1990s speech said there is no ozone hole. From CNN: “William Perry Pendley was appointed by Interior Secretary David Bernhardt … in July 2019. … In other comments uncovered during a CNN KFile review of his social media activity, writings and public appearances, Pendley cited an anti-Muslim figure to claim Islam was at war with the United States, compared undocumented immigrants to cancer and blamed them for diseases."

-- One of the nation’s largest utilities began shutting off power for what could be nearly a million Californians in an attempt to lessen the risk of wildfires. Scott Wilson reports: “The intentional shut-off encompasses more than half of the state’s 58 counties and spans much of Northern California, where two of the deadliest fires in state history have occurred in the past two years. It is the most extensive planned power outage ever employed in California and represents a fresh, expensive inconvenience to residents of a state confronting the sharpening consequences of a changing climate. Pacific Gas & Electric, the utility behind the power shut-off, was found responsible for sparking one of those fires, which blazed through Paradise, Calif., last year."

-- Four school systems are suing Juul, saying the e-cigarette company spurred a vaping epidemic in students. Moriah Balingit reports: “The four districts — Olathe Public Schools in Kansas, Three Village Central School District in New York, Francis Howell School District in Missouri and La Conner School District — contend that Juul purposefully marketed to teenagers and engineered products to make them popular among young people. The sleek devices emit a thin vapor and look like USB drives, making them difficult for adults to detect. … The fallout has also included expenses related to discipline, with student suspensions skyrocketing in some schools. In the Francis Howell School District, suspensions for nicotine infractions more than quadrupled over the past four years, with 248 students punished in the 2018-2019 school year, according to the lawsuit.”  

-- The Dallas police identified three suspects in the fatal shooting of Joshua Brown, a key witness in the trial of Amber Guyger, the white former officer convicted of murdering her unarmed black neighbor, Botham Jean, in his own home. Police denied any wrongdoing in Brown’s death. Brittany Shammas and Reis Thebault report: “Joshua Brown was shot to death on Friday, 10 days after he testified against Guyger. The timing fueled rumors that his role in the trial had made him a target, with some alleging a conspiracy by local law enforcement. But on Tuesday, police emphatically denied the claims and identified three suspects in the shooting, men they said who traveled from Alexandria, La., to Dallas to buy drugs from Brown and then exchanged gunfire with him when the deal went south. … The Brown family lawyer, who also represents Jean’s family, continued his calls for the Dallas department to recuse itself from the investigation."

2020 WATCH:

-- Bernie Sanders said he was “dumb” to ignore symptoms presaging the heart attack he suffered last week. Chelsea Janes reports: Sanders “urged others not to make the same mistake. He also admitted that he will have to reduce the number of campaign events he holds a day because of his health. ‘During this campaign, I’ve been doing in some cases three or four rallies a day, running all over the state — Iowa, New Hampshire, wherever,’ Sanders told reporters outside his home in Burlington, Vt. ‘And yet I, in the last month or two, just was more fatigued than I usually have been. And I should have listened to those symptoms.’

"Sanders visited a cardiologist Tuesday morning, and when he returned, he told reporters, ‘We’re gonna change the nature of the campaign a bit.’ ‘Probably not doing four rallies a day,’ said Sanders, who had adopted a more furious campaign schedule than many of his much younger opponents. Sanders, who has committed to releasing his medical records before the first primary votes but has not yet done so, said Tuesday he would provide the information at ‘the appropriate time.’ ... Joe Biden and Sen. Elizabeth Warren (D-Mass.) — fellow septuagenarians who join Sanders at the top of most polls — have also committed to releasing their medical records.”

-- Tragic: Sanders’s daughter-in-law, Rainè Riggs, died at 46 last weekend, just two days after being diagnosed with neuroendocrine cancer. Riggs, a neuropsychologist and the wife of Levi Sanders, passed away the day the senator returned to Vermont after suffering the heart attack. (Daily Beast)

-- Warren, facing questions from critics, reiterated that she was fired from her teaching job because she was pregnant. Annie Linskey reports: “The anecdote about her tenure at Riverdale elementary school in northern New Jersey is a key part of her stump speech, used to connect with women in her audiences. In Warren’s telling, the episode is straightforward and echoes an experience that many other young women had in the 1970s. But some political adversaries seized on a newly surfaced video of Warren telling the story with a different emphasis — in 2007, before she was in elected office — along with freshly uncovered school board documents from the early 1970s to raise doubts about Warren’s account. Republicans also compared the issue to Warren’s past claim that she was Native American, which resulted in her apology last year to tribes ... Yet while the story has played repeatedly on Fox News and conservative outlets, it is not clear the new materials contradict Warren’s recounting of the episode in a material way. … Warren’s campaign accounted for the different explanations by saying she has opened up more about episodes of past discrimination now that she is a public official. She made her first run for office in 2012.”

-- Sen. Dianne Feinstein (D-Calif.) endorsed Biden for president, snubbing California's junior senator, Kamala Harris, per the San Francisco Chronicle.

-- After the Trump campaign threatened to sue a Minneapolis arena for passing along a half-million-dollar security bill from the city to cover costs of the president’s political rally there later this week, the venue withdrew the request, according to Trump’s campaign manager. Colby Itkowitz reports: “Minneapolis officials told the Target Center, where Trump is slated to appear Thursday night, that it would be responsible for the $530,000 the city says it will need to beef up security for [the] visit. The Target Center planned to pass that bill along to the Trump campaign and said the campaign would have to pay or it could not use the arena. But after a day of angry tweets from the president, mostly directly at the Democratic Minneapolis mayor, the Trump campaign announced Tuesday evening that the arena will not be canceling the contract and the campaign will not be paying any additional fees. … It was not immediately clear whether the Target Center or the city will absorb the costs.”

-- It is worth remembering the Trump campaign has not paid at least 10 cities for the public safety costs of hosting the president, per the Center for Public Integrity.

-- A new tool from YouTube allows political ad buyers to book slots through February, causing a rush among campaign staffers. From the Journal: “‘People acted quickly with what was available,’ said a staffer for one of the Democratic front-runners, who added that the campaign snatched up slots in early voting states such as Iowa and South Carolina. Already a big destination for digital ads, YouTube … is stepping up its efforts to snag more political-ad dollars away from local television and Facebook Inc. The YouTube initiatives aim to take advantage of the growing sums being spent on advertising by a historically large field of presidential candidates.”

-- The Post is now tracking the House retirements from the 116th Congress, which so far are overwhelmingly Republican:

SOCIAL MEDIA SPEED READ:

Trump taunted Hillary Clinton by asking her to join the presidential race, to which the former secretary of state responded:

Rudy Giuliani complained about the impeachment inquiry being a witch hunt. The congressman representing Salem, Mass., reponded:

A historian made another observation about why Giuliani's tweet was so off base:

Two Democratic senators had a good time riffing off the text exchange between two ambassadors linked to the president's demands to Ukraine:

The Defense secretary was at the White House with the brass:

The first lady held a private groundbreaking event for the White House’s new tennis pavilion:

QUOTE OF THE DAY: “What we see in this impeachment is a kangaroo court, and Chairman Schiff is acting like a malicious Captain Kangaroo,” said Rep. Matt Gaetz (R-Fla.).

(Gillian Brockell reminds us all that the classic children’s television show “Captain Kangaroo” was not a courtroom drama.)

 

VIDEOS OF THE DAY:

After the White House delivered the letter to Congress saying Trump won't cooperate, Stephen Colbert said it's not that he doesn't want to, it's that he developed "phone spurs":

Seth Meyers pointed out that, when Trump is gone, Republicans are going to have to backpedal on a lot of the comments they've made about the FBI and the CIA in the past few days: