with Brent D. Griffiths

Good morning, Power peeps and welcome back. Thank you everyone for your unsolicited puppy photos yesterday. Keep them coming. Thanks for waking up with us. 

The Trump administration plans to hire former Virginia attorney general Ken Cuccinelli II in a senior role at the Department of Homeland Security. (Reuters)

At the White House

NOT A CZAR BUT: Former Virginia attorney general Ken Cuccinelli II finally found his way into the Trump administration: the hard-right firebrand will serve as Trump’s immigration policy coordinator at the Department of Homeland Security, three administration officials told my colleagues Josh Dawsey and Nick Miroff on Tuesday.

The appointment of the hawkish conservative comes on the heels of major upheaval at DHS after Trump ousted Secretary Kirstjen Nielsen, replacing her with acting DHS secretary Kevin McAleenan — all while the administration scrambles to contain a record number of Central American families overwhelming U.S. immigration authorities at the U.S.-Mexico border.

  • “Cuccinelli will work at DHS in a senior role and will report to acting DHS secretary Kevin ­McAleenan, while also providing regular briefings to President Trump at the White House, according to two officials briefed on the appointment,” per Josh and Nick.

But questions have already begun about whether Cuccinelli’s appointment will be productive for an administration desperate to improve its "performance index,” and coordinate and streamline the immigration policy of federal agencies responding to the unfolding migrant crisis at the border — perhaps Trump's biggest priority going into his 2020 reelection campaign.

  • Cuccinelli is not well liked on the Hill (he backed a number of insurgent challengers to Senate Republicans in 2014): “How effective can this guy be in a role that doesn't require Senate confirmation when he is such a lightening rod?," a GOP Senate staffer told Power Up. 
  • “If he does not answer directly to the president, he’s not likely to be able to get much done,” Mark Krikorian, director of the Center for Immigration Studies, a Washington think tank whose immigration-reduction agenda has had significant influence in the White House, told Nick and Josh.

Cuccinelli's appointment also further undercuts the seriousness of Jared Kushner's recently unveiled merit-based immigration proposal, according to staffers on the Hill. White House staffers held a briefing Monday on the issue on  with Senate communicators on how to discuss Kushner's plan in the media — calling the current coverage of the proposal “fake news” — and made no mention of Cuccinelli's new role. 

  • “It's like every time they try to do something on this issue, they end up putting someone extreme in charge of it. Now it's Ken Cuccinelli,” a second GOP senate staffer told Power Up. “It’s hard for people to take things seriously and if the effort was to find a middle road on immigration with this new plan . . . ”

Cuccinelli certainly has his work cut out for him: In April, U.S. Customs and Border Protection (CBP) detained 109,144 migrants along the southern Border — the highest numbers in a decade, according to Miroff. The pace of arrests has continued into May, while a number of controversial policy proposals floated by the White House, aimed at deterrence, have flopped, caused public outrage or failed to pass legal muster.

A few of the more recently enacted policies: 

Meanwhile, the interagency drama and real-life implications of the crisis continue: 

  • Five children dead: Three children have died in the hands of U.S. custody since April 30, bringing the total up to five migrant children who have died after detention by U.S. border agents since December. 

  • “A 16-year-old Guatemala migrant who died Monday in U.S. custody had been held by immigration authorities for six days — twice as long as federal law generally permits — then transferred him to another holding facility even after he was diagnosed with the flu,” per the Associated Press's Nomaan Merchant. 

  • Acting DHS Secretary Kevin McAleenan threatened to leave his post unless he was given more control over the agency after Stephen Miller attempted to “engineer a new shake-up” at the Department last week, per Miroff and Dawsey. 

  • President Trump is preoccupied with micromanaging the design details of the barrier that he wants to build along the Mexico border, including painting the fence black with pointy spikes.


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The Investigations

MORE DEMOCRATS JOIN CALL FOR IMPEACHMENT: “A growing number of House Democrats are publicly calling for a formal inquiry into President Trump’s impeachment amid continued stonewalling from his administration, applying new pressure to Speaker Nancy Pelosi and other party leaders who have been determined to stick to a methodical course of investigation and litigation,” our colleagues Mike DeBonis, Rachael Bade and John Wagner reported.

  • McGahn tests patience: As expected, former White House counsel Don McGahn did not testify on Tuesday. His absence only further incensed Democratic lawmakers as the White House has once again foiled their efforts to secure a witness or documents.
  • Why now?: “McGahn’s no-show has particularly rankled Democrats who have been exasperated by Trump’s sweeping claims of immunity from congressional oversight,” our colleagues write. “McGahn told lawmakers he would skip the hearing pursuant to a White House request rooted in a new Justice Department opinion barring testimony from close presidential advisers.”
  • Rep. David Cicilline followed through on his threat if McGahn was a no show and is now the highest ranking Democrat to publicly call for impeachment (though he added that he’s is not speaking for leadership)
  • In the meantime: The House Judiciary Committee, where McGahn was supposed to testify, issued  subpoenas for Annie Donaldson, McGahn’s note-taking former chief of staff; and Hope Hicks, Trump’s former White House communications director.
  • Pay attention: House Democrats are meeting this morning to talk it all out. “Pelosi scheduled a Democratic caucus meeting for Wednesday morning, billing it as an opportunity for members to receive updates on oversight and investigations. But many lawmakers said Tuesday that they expect it will become a robust discussion of whether to pursue an impeachment inquiry …,” Mike, Rachael and John report.

Inquiry versus impeachment: Many of the new Democrats, including Cicilline, stress that they just want an impeachment inquiry, or a look into whether they should kick off a formal impeachment process.

  • The distinction probably means little politically, especially to the White House, but a vote for an inquiry is not a vote to recommend removing Trump from office.
  • As we’ve also discussed many times before, an inquiry would also give Democrats extra legal heft in their fight with the Trump administration as courts have generally found such an inquiry a compelling reason to obtain information they might not normally be able to access.

Even some of the more vulnerable Democrats have finally started to warm to the idea of initiating impeachment proceedings against Trump. Politico's Laura Barron Lopez and Sarah Ferris report that while the group that delivered the Democratic House majority is still split, the shift could be the strongest sign yet “that the Democratic Caucus as a whole is inching toward taking drastic action to rebuke Trump — over the objections of leadership. Multiple vulnerable Democrats have said privately that refusing to pursue impeachment could hurt their reelection chances by depressing enthusiasm among the party's base.”

  • “'We’re just getting closer and closer to a point where we have to do something,' said Rep. Katie Hill (D-Calif.), a freshman member of leadership who beat a GOP incumbent last fall. 'Each of us is personally struggling because we see on so many levels ... where he’s committed impeachable offenses," Barron Lopez and Ferris report.

Last night during a CNN town hall with Dana Bash, 2020 contender Beto O'Rourke repeated his call to initiate impeachment proceedings and explained his position: 

Meanwhile, Trump had this to say this morning:

ICYMI: “A confidential Internal Revenue Service legal memo says tax returns must be given to Congress unless the president takes the rare step of asserting executive privilege, according to a copy of the memo obtained by The Washington Post,” our colleagues Jeff Stein and Josh Dawsey scooped last night.

  • The memo: “ . . . contradicts the Trump administration’s justification for denying lawmakers’ request for President Trump’s tax returns, exposing fissures in the executive branch,” Jeff and Josh write.
  • More details: “The 10-page document says the law 'does not allow the Secretary to exercise discretion in disclosing the information provided the statutory conditions are met' and directly rejects the reason Mnuchin has cited for withholding the information.”
  • Key: “The memo writer’s interpretation is that the IRS has no wiggle room on this,” per Daniel Hemel, a professor at the University of Chicago Law School who reviewed the memo. “Mnuchin is saying the House Ways and Means Committee has not asserted a legitimate legislative purpose. The memo says they don’t have to assert a legitimate legislative purpose — or any purpose at all.”
  • But: The memo is a draft document prepared last fall and doesn't represent the official position of current IRS leaders (IRS commissioner Charles Rettig and the agency's current chief counsel had not read it, and it was never forwarded to Treasury.)
  • You can read it for yourself here.

On The Hill

HAPPENING TODAY: No, the Hill won’t be discussing the new facial recognition technology — “giant panda facial recognition” — created by Chengdu Research Base of Giant Panda Breeding. 

Rather, the House Oversight and Reform Committee will be holding a hearing at 10 a.m. today on facial recognition  directed at humans to discuss the technology's impact on civil rights as more federal and state law enforcement entities are moving toward real-time surveillance.

San Francisco took a stand last week, becoming “the first major American city to block a tool that many police forces are turning to in the search for both small-time criminal suspects and perpetrators of mass carnage,” per the New York Times’s Kate Conger, Richard Fausset and Serge Kovaleski. 

  • “Similar bans are under consideration in Oakland and in Somerville, Mass., outside of Boston. In Massachusetts, a bill in the State Legislature would put a moratorium on facial recognition and other remote biometric surveillance systems.”

  • “On Capitol Hill, a bill introduced last month would ban users of commercial face recognition technology from collecting and sharing data for identifying or tracking consumers without their consent, although it does not address the government’s uses of the technology.”

  • Wired Magazine’s Gregory Barber and Tom Simonite reported last week that Chicago and Detroit have purchased “software from a South Carolina company, DataWorks Plus, that equips police with the ability to identify faces from surveillance footage in real time.” 

Likely to be at the center of conversation during today’s hearing is Amazon’s push to spread its facial recognition product, which has been shown to have trouble identifying women and people of color, to police departments. (Amazon's head, Jeff Bezos, owns The Post.)  

  • “Now a new study from researchers at the M.I.T. Media Lab has found that Amazon’s system, Rekognition, had much more difficulty in telling the gender of female faces and of darker-skinned faces in photos than similar services from IBM and Microsoft. The results raise questions about potential bias that could hamper Amazon’s drive to popularize the technology,” the New York Times’s Natasha Singer reported this past January.
  • Amazon is facing internal scrutiny from shareholders over Rekognition: “Shareholders have introduced two proposals on facial recognition for a vote. One asks the company to prohibit sales of its facial recognition system, called Amazon Rekognition, to government agencies, unless its board concludes that the technology does not facilitate human rights violations. The other asks the company to commission an independent report examining the extent to which Rekognition may threaten civil, human and privacy rights, and the company’s finances,” Singer reports.

The People

BEVIN HANGS ON: Kentucky Gov. Matt Bevin, the least popular governor in America, “survived an unexpectedly tough primary challenge Tuesday to win the Republican Party nomination and seek a second term as governor,” the Louisville Courier Journal’s Tom Loftus reports.” But the relatively narrow margin indicated that Bevin's support among Republicans is strained, particularly in Eastern Kentucky.” The primary sets up a fall general election race between Bevin and Andy Beshear, the state attorney general and son of ex-governor Steve Beshear.

  • “Andy Beshear rode his record as attorney general and his family name to win the closely watched Democratic primary for Kentucky governor, which sets up what could be a deeply personal contest against Republican incumbent Matt Bevin this fall,” the Courier Journal’s Philip M. Bailey reports.
  • More on the Democrats: “Former State Auditor Adam Edelen, who ran a fiercely progressive campaign by Kentucky standards, was unable to catch fire in the state's urban centers. He came in second to Beshear in Louisville and Lexington, winning just his home county of Meade,” Bailey wrote.
  • Our colleague Dave Weigel was watching to see if Bevin dipped below 70 percent. As of the latest returns, the incumbent governor pulled in about 52 percent:

On K Street

LOBBYING FOR A WARLORD: "The Libyan National Army, the militia group led by Khalifa Haftar, has hired a lobbying firm following [Trump’s] unexpected endorsement of Haftar last month," Politico's Theodoric Meyer reported earlier this week. "Stephen Payne and Brian Ettinger of Linden Government Solutions will lobby in Washington on behalf of Haftar’s forces as well as assist with 'international coalition building' and public relations, according to a copy of the contract shared with PI. The one-year contract, which will be filed with the Justice Department, is worth $2 million."

Why this matters: The move come after a group of bipartisan lawmakers sent a letter to Attorney General William Barr and FBI Director Christopher Wray last week, "asking the Department of Justice to investigate allegations of war crimes against renegade Libyan Gen. Khalifa Haftar, who is also an American citizen," per CNN's Zach Cohen and Kylie Atwood. 

  • Trump's POV: Trump praised Haftar "during a phone call as the field marshal's troops continued their offensive against the UN- and US-supported government in Tripoli," but "has decided to remain uninvolved in Libya until there is a winner."


Oh! Oh! ... Oh no.