Last Call For Vote Like Your Country Depends On It, Con't

Even right-leaning pollster Trafalgar Group has Wisconsin Democratic Senate Candidate Mandela Barnes up by 2 over GOP Sen. Ron Johnsom, and Democratic Gov. Tony Evers tied with Republican Tim Michels.

Nate Silver is still giving Johnson a 60-40% shot at winning. Incumbency and being the out-of-the-White House party is still a powerful combination.

And even given that, Silver is also giving Dems a 2/3rds chance of keeping the Senate right now. Right now the polls show the Dems hanging on in rough incumbent races in GA, NV, AZ and NH, and Dems getting the flip they need in PA with Fetterman over Oz in case one of those races goes to the GOP.

The House...well...the House is another story entirely, but not impossible, and Team Blue's chances are getting better daily.

 

Headed into 2022, Republicans were confident that a red wave would sweep them into control of Congress based on the conventional political wisdom that the midterm elections would produce a backlash against President Biden, who has struggled with low approval ratings.

But now some are signaling concern that the referendum they anticipated on Mr. Biden — and the high inflation and gas prices that have bedeviled his administration — is being complicated by all-encompassing attention on the legal exposure of a different president: his predecessor, Donald J. Trump.

Those worries were on display on Sunday morning as few Republicans appeared on the major Washington-focused news shows to defend Mr. Trump two days after a redacted version of the affidavit used to justify the F.B.I. search of his Mar-a-Lago estate revealed that he had retained highly classified material related to the use of “clandestine human sources” in intelligence gathering. And those who did appear indicated that they would rather be talking about almost anything else.

Senator Roy Blunt, Republican of Missouri, acknowledged that Mr. Trump “should have turned the documents over” but quickly pivoted to the timing of the search.

“What I wonder about is why this could go on for almost two years and, less than 100 days before the election, suddenly we’re talking about this rather than the economy or inflation or even the student loan program,” Mr. Blunt lamented on ABC’s “This Week.”

Gov. Chris Sununu, Republican of New Hampshire, also pointed to a fear that Mr. Trump’s legal troubles could hurt his party’s midterm chances.

“Former President Trump has been out of office for going on two years now,” he said on CNN’s “State of the Union.” “You think this is a coincidence just happening a few months before the midterm elections?”

The Aug. 8 search of Mar-a-Lago, which followed repeated requests over more than a year and a half for Mr. Trump to turn over sensitive documents he took when he left office, initially prompted most Republicans to rally around the former president, strengthening his grip on the party. Some reacted with fury, attacking the nation’s top law enforcement agencies as they called to “defund” or “destroy” the F.B.I. Others invoked the Nazi secret police, using words like “Gestapo” and “tyrants.”

Polls showed an increase in Republican support for Mr. Trump, and strategists quickly began incorporating the search into the party’s larger anti-big-government messaging. They combined denunciation of the F.B.I.’s actions with criticism of Democrats’ plans to increase the number of I.R.S. agents in hopes of rallying small-government conservatives to the polls.

But as more revelations emerge about Mr. Trump’s handling of some of the government’s most sensitive documents, some of those voices have receded.

“Some of the president’s biggest cheerleaders — Marjorie Taylor Greene, Jim Jordan — have gone kind of silent,” Representative Adam Kinzinger of Illinois, an anti-Trump Republican, said on NBC’s “Meet the Press.” “That tells you all you need to know.”

 

And when Republicans do talk about 2022's economic issues, they just end up shooting themselves in the foot. 

When Blake Masters was running for the Republican nomination for Senate in Arizona, he floated what he called a “fresh and innovative” idea.

“Maybe we should privatize Social Security. Right? Private retirement accounts, get the government out of it,” he said at a June forum with the fiscal conservative group FreedomWorks.

Masters subsequently backtracked. “I do not want to privatize Social Security,” he told the Arizona Republic after he won the primary. “I think, in context, I was talking about something very different. We can’t change the system. We can’t pull the rug out from seniors.”

Democrats saw an opening in the key Arizona race. The party's Senate campaign arm rolled out an ominous TV ad highlighting the footage, accusing Masters of seeking to “cut our Social Security and privatize it” to finance tax breaks for the wealthy, while “gambling our life savings on the stock market.”

Asked to clarify his position, Katie Miller, Masters campaign spokesperson, told NBC News: “Blake’s position has always been clear. All he wants to do is incentivize future generations to save through private accounts.” She described his stance as “Social Security-and.”

Ahead of the 2022 election, Masters is one of many Republicans to touch what has been called the “third rail” of American politics — a costly but popular pillar of the safety net that gives monthly cash benefits to those 62 and older, who vote in big numbers. In major Senate and House races across the country, GOP candidates have called for cutting long-term Social Security spending to tackle inflation and resolve the program's finances. Democrats are trying to make them pay a political price, arguing that the same Republicans created a budget hole by cutting taxes for top earners.

The Milwaukee Journal Sentinel reported that Sen. Ron Johnson, a Wisconsin Republican, said at a recent campaign stop that Social Security “was set up improperly” and that it would have been better to invest the money in the stock market. Earlier, Johnson told a radio show that Social Security and Medicare should be axed as "mandatory" programs and be subject to "discretionary" spending, meaning Congress would have to renew them yearly or they'd end.

His Democratic opponent, Mandela Barnes, responded that the two-term incumbent senator “wants to strip seniors of the benefits they’ve worked their entire lives for” and “throw Wisconsin’s middle class overboard” to serve corporate donors.

 

Democrats have a huge opening here: Republicans have taken women's right to bodily autonomy by rendering abortion illegal in state after state, and as Democrats deliver on their promises of climate change legislation and student loan relief (until the courts kill both of those programs anyway) Republicans are busy voting against Medicare drug prescription relief and wanting to privatize Social Security and play the ultimate Big Casino game.

Republicans are basically doing everything they can to lose in November. I'm fine with that.

Orange Meltdown, Con't

The Biden administration says it is conducting a full damage assessment of the nation's intelligence services from Donald Trump's criminal mishandling of classified documents at his non-secure Florida resort, including the possible exposure of identities of sources, spies, and agents.

Director of National Intelligence Avril Haines has sent a letter to the House Intelligence and House Oversight committee chairs, saying the intelligence community is conducting a damage assessment of the documents taken from former President Donald Trump's home in Mar-a-Lago, according to a letter obtained by CNN. 

"The Department of Justice (DOJ) and the Office of the Director of National Intelligence (ODNI) are working together to facilitate a classification review of relevant materials, including those recovered during the search," Haines wrote in her letter to House Intelligence Chair Adam Schiff and House Oversight Chair Carolyn Maloney. 

Several members of Congress have called for an intelligence damage assessment of the documents. 

Politico was first to report on the letter. 

Haines also sent a letter to the Senate Intelligence Committee saying her office would lead an assessment about the risks to national security, according to two sources familiar with the matter. 

In addition, the Justice Department sent a letter to the Senate panel saying that it would be sharing materials with the intelligence agencies while adhering to its longstanding tradition of not disclosing any non-public information during an active investigation, the sources said. 

Maloney and Schiff said in a joint statement that they were "pleased" that Haines has launched the intelligence damage assessment of classified documents found at Trump's home in Florida. 

The two chairs, who had called for the assessment after the FBI searched Trump's home earlier this month, also said that the assessment must move "swiftly." 

On Friday, Senate Intelligence Chairman Mark Warner, a Virginia Democrat, said in a statement following the release of the redacted affidavit that his panel had made a bipartisan request for "a damage assessment of any national security threat posed by the mishandling of this information."

 

Trump's team has, in the meanwhile, found a friendly Trump-appointed judge to buy their argument that the documents taken from Mar-a-Lago are protected by executive privilege and must be examined by a "special master" to determine if they must be returned to Trump.

A federal judge in Florida gave notice on Saturday of her “preliminary intent” to appoint an independent arbiter, known as a special master, to conduct a review of the highly sensitive documents that were seized by the F.B.I. this month during a search of Mar-a-Lago, former President Donald J. Trump’s club and residence in Palm Beach.

In an unusual action that fell short of a formal order, the judge, Aileen M. Cannon of the Federal District Court for the Southern District of Florida, signaled that she was inclined to agree with the former president and his lawyers that a special master should be appointed to review the seized documents.

But Judge Cannon, who was appointed by Mr. Trump in 2020, set a hearing for arguments in the matter for Thursday in the federal courthouse in West Palm Beach — not the one in Fort Pierce, Fla., where she typically works.

On Friday night, only hours after a redacted version of the affidavit used to obtain the warrant for the search of Mar-a-Lago was released, Mr. Trump’s lawyers filed court papers to Judge Cannon reiterating their request for a special master to weed out documents taken in the search that could be protected by executive privilege.

Mr. Trump’s lawyers had initially asked Judge Cannon on Monday to appoint a special master, but their filing was so confusing and full of bluster that the judge requested clarifications on several basic legal questions. The notice by Judge Cannon on Saturday was seen as something of a victory in Mr. Trump’s circle.

 

Here's the hysterically obvious problem with this "executive privilege" argument: Trump is not President. Legally, this should be tossed into the nearest chipper/shredder. It's the current president who gets to decide what executive privilege means here, and the Biden administration has the final say. Trump doesn't get to determine what executive privilege is any more than you or I do.

From a legal and constitutional standpoint NARA was not only justified in denying Trump’s assertion of executive privilege, it really had no choice in the matter.

To understand why this is so, it is helpful to break down the question into three questions:

(1) Does a former president ever have the right to successfully assert executive privilege to prevent access to presidential records by the incumbent president or executive agencies acting under the incumbent’s authority?;

(2) If such a right exists, could it be successfully exercised under the current circumstances?; and

(3) Who decides the first two issues?

Executive Privilege by a Former President

First, the PRA makes clear that nothing in its provisions are to be interpreted as expanding or diminishing the former president’s constitutional rights. Indeed, both the statutory language and legislative history make clear that Congress has been extremely skeptical of the notion that a former president can successfully assert executive privilege under any circumstances without the support of the incumbent president. While the executive branch has taken a different view, that argument has never extended so far as to suggest that the former president can successfully assert the privilege in opposition to the incumbent, much less that he can do so when the incumbent himself is seeking access to presidential records for purposes of carrying out the constitutional functions of the executive branch.

For example, when in the 1980s the Office of Legal Counsel issued a much criticized opinion (later rejected by the D.C. Circuit) that an incumbent president should ordinarily defer to a former president’s assertion of executive privilege with regard to the latter’s presidential records, it nonetheless explained that “this principle must yield when it conflicts with the discharge of the incumbent’s constitutional responsibilities;” thus, “if the incumbent President believes that the discharge of his constitutional duties (e.g., investigation and prosecution of alleged crimes) demands the disclosure of documents claimed by the former President to be privileged, it may be necessary for him to oppose a former President’s claim.” (emphasis added). Similarly, the author of the opinion, Assistant Attorney General Charles Cooper, when summoned to defend it before Congress, explained that “an incumbent President need not respect a former President’s claim of privilege if the incumbent feels that it would interfere with his ability to execute his legal and constitutional responsibilities as he, alone, understands and perceives them.”

Whether a former president should ever have the unilateral power to assert executive privilege over the objection of the incumbent remains an unsettled issue, as the Supreme Court recently recognized in Trump v. Thompson. As I have pointed out elsewhere, this notion is in considerable tension with OLC’s general approach to executive privilege. At least one member of the Supreme Court (Justice Kavanaugh) nevertheless believes that “[a] former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim.” In Thompson, however, Justice Kavanaugh was writing in the context of a congressional request (from the January 6th Committee) to access presidential records; it is by no means clear that he would maintain the same view where the incumbent president himself was seeking access to the records for purposes of carrying out the executive’s legal and constitutional functions.

Indeed, Kavanaugh, during his tenure in the White House counsel office, famously defended a controversial executive order on presidential records issued by President George W. Bush. That order made it extremely difficult for the public, Congress or the courts to access presidential records over the objection of a former president. However, the order explicitly provided that it did not address access by the incumbent president to those records, a fact somewhat bitterly noted by congressional critics at the time.

In short, the notion that a former president can block his successor from accessing presidential records that the incumbent believes he needs for purposes of carrying out executive functions would be the most extreme manifestation of a doubtful legal theory, and one that has no support in any legal authority to date.

 

But where Trump is winning here is the fact that he's successfully slowing the investigation into his mishandling of the documents. It could take "months" for the special master to complete their work, you see, and surely no indictments can be "legally" issued while this is going on. 

It's a solid stalling tactic that could buy Trump quite some time to both get the search warrant out of the news ahead of campaign season going into full swing next month, and to come up with more tactics to keep the feds off his case.

The problem for Trump is that the case against him here is pretty open and shut.

We'll see how this goes, but it's going to go badly for Trump.

Sunday Long Read: Clip Joint

Our Sunday Long Read this week is Benjamin Cassidy's piece in Seattle Met on the history of everyone's favorite -- and reviled -- Microsoft digital assistant/mascot, Clippy the Paper Clip.

THE BLANK SCREEN was already intimidating enough. Then, out of nowhere, an incorporeal know-it-all popped up to make us feel even worse about the novel notion of word processing in the mid-’90s. “It looks like you’re writing a letter,” a googly-eyed, caterpillar-browed paperclip in Microsoft Word observed when we may or may not have been trying to write a letter. The metallic office supply bounced around the margins of documents and never stopped looking over our shoulders, even as it blinked back at us impatiently. “Would you like help?”

Many users found its polite but presumptuous suggestions invasive, obnoxious, and creepy. Almost immediately, computer geeks and neophytes panned it. Microsoft banished it. Time labeled it one of the 50 worst inventions ever. But nearly three decades after its genesis at the Redmond tech giant, Clippit—better known as Clippy—improbably lives on.

Last year, Microsoft officially revived the Office Assistant that debuted in Office 97. The character replaced a plain old paperclip in Microsoft 365 to help liven up the company’s emojis and indulge a social media outpouring. Clippy can now permanently live in Word files, Outlook emails, or other common workplace apps. In one of the company’s Teams backgrounds, the paperclip hovers above yellow legal pad paper on a pedestal in a cement-walled basement, seemingly exiled to the dungeon of bad tech ideas.

Though coding circles treated Clippy like New Coke, pop culture never quite quit the retired paperclip. When Darryl Philbin needed help with a resume in the season seven finale of The Office, he pined for Clippy. When users couldn’t grasp Pied Piper’s platform in Silicon Valley, the startup begrudgingly turned to a virtual assistant named “Pipey.” When Seth Meyers needed a dash of comic relief amid news that a PowerPoint may have spurred the Capitol insurrection last year, he joked Congress would “have to subpoena Clippy.” Saturday Night Live nodded to this nagging cultural endurance in a sketch six years earlier. As J.K. Simmons tries to type a letter to a friend on Microsoft Word, a shimmying push pin, “Pushie,” prods him with suggestions. Then Simmons’s character discovers a “Murder Pushie” option. Yet, the actor can’t bring himself to click it.

Nerd culture’s attachment to Clippy is even stronger, manifesting most frequently on social media and dark corners of the internet. An erotic short story, “Conquered by Clippy,” reveals perhaps the wildest level of obsession (“‘assist me deeper’”). Viral fan art renders the sentient silver fastener as everything from mildly impressed to pregnant. The assistant’s once-grating command bubble and syntax is basically Mad Libs for passive aggressive memes, including those aimed at the sort of existential conundrums posed by tech today. “It looks like you’re writing unsubstantiated nonsense,” a popular one begins. “Would you like to turn on all-caps?”

These days, an annoying Word creature might seem eminently tolerable compared to the ghouls on Twitter. Now that Alexa’s in our bedroom and Siri’s in our hand, Clippy’s a throwback to what seems like a more benign digital age.

But to those involved, directly and indirectly, with what’s been called one of the worst user interface rollouts in tech history, Clippy’s comeback is varying degrees of bewildering and vindicating. Especially after what happened to Bob.

 

I know I grew up with Clippy in college and later in my first tech support job. People either thought Clippy was great, or like me, that it was the bane of existence and that it needed to burn in hell. Either way, Clippy is back for a new generation, for better or for worse.