Skip to content

What Did Flynn Tell Mueller?

It’s not exactly blockbuster news that Mike Flynn, the former national security advisor to President Donald Trump, pleaded guilty on Friday to lying to the FBI about his conversations with Russian officials. It’s been pretty clear since mid-February that this was coming. When Flynn’s lawyers terminated their joint defense agreement with Trump last week, that signaled that Flynn had begun cooperating with Special Counsel Robert Mueller’s investigation, which meant that Flynn and Mueller had agreed to a plea deal, and therefore that formal charges and a guilty plea were imminent.

On December 29, 2016, then-President Barack Obama imposed sanctions against Russia in retaliation for Russian interference with the American presidential election. Russian officials immediately promised reciprocal sanctions, but the next day Vladimir Putin took that promise back.

The American intelligence community routinely monitors the communications of high-level officials of hostile foreign governments, including Russia, specifically including Sergei Kislyak, Russia’s ambassador to the United States. Therefore the FBI knew that Flynn had asked Kislyak not to retaliate for Obama’s sanctions, explicitly or implicitly promising to withdraw those sanctions after Trump took office on January 20. (Ultimately, Congress passed legislation effectively voiding Trump’s authority to weaken those sanctions. In response, Putin expelled 755 diplomatic employees from the American embassy in Moscow, for which Trump thanked him. Trump later claimed he was being “sarcastic.”)

Until February 8, Flynn’s public position was that he had not discussed sanctions with Kislyak. Since that was his public position at the time that the FBI interviewed him on January 24, I concluded that Flynn must have taken the same position with the FBI – meaning that Flynn lied to the FBI on January 24.

So if the FBI knew that Flynn lied on January 24, why wasn’t Flynn charged with lying to the FBI for more than ten months? The answer is that it took that long for Mueller and Flynn to work out the terms of a plea bargain.

From a prosecutor’s point of view, there are two kinds of plea bargains. One is the routine plea bargain seen in ordinary criminal practice: a defendant pleads guilty to a crime in exchange for a lesser charge or a lower sentence than the prosecutor would pursue at trial, and the prosecutor doesn’t have to expend the considerable time and resources necessary to try the case.

The second type of plea bargain is less common: a defendant pleads guilty to a crime in exchange for a lesser charge or a lower sentence, in exchange for which the defendant gives the prosecutor information that will be useful against other defendants. The other defendants may have greater culpability or higher position, but in either event are almost inevitably referred to as “bigger fish.”

The plea deal that a prosecutor strikes with a defendant reveals how the parties value their positions. In the first type of plea deal, the outcome indicates the parties’ assessment of the prosecution’s likelihood of success at trial: a lenient outcome indicates that the prosecution’s case was weak, whereas a harsh outcome indicates that the parties thought the prosecution was very likely to win a conviction and harsh sentence at trial.

In the second type of plea deal, the outcome indicates the parties’ assessment of the value of the information the defendant has to offer. A lenient plea deal indicates that the defendant gave information of great value to the prosecution, whereas a harsher plea deal indicates that the defendant had less useful information.

Flynn’s conversations with Kislyak were almost certainly recorded from wiretaps, so Mueller had little risk of losing a criminal trial, and therefore little incentive to enter into the first type of plea deal on the charge of lying about those conversations. Mueller’s incentive to negotiate a plea deal came instead from the value of the information that Flynn had to offer. My assessment is that Flynn is getting off very easy, and therefore he must have had some very useful information to give Mueller.

Flynn not only lied to the FBI about his conversations with Kislyak. Flynn also failed to register as a foreign agent, despite his paid work on behalf of Turkish government. When he did belatedly register, he made false statements on his registration. His application for a security clearance omitted reference to his Russian contacts, and he again failed to disclose them upon questioning about the registration. These are exactly the kinds of charges that Mueller filed a month ago against Paul Manafort and Richard Gates.

In other words, Flynn faced multiple criminal charges, and the possibility of serious jail time – and that’s just what’s established in the public record. If this is the final word on Flynn, and he’s getting off with a single count of lying to the FBI, then Flynn must have brought Mueller some very valuable information.

Mueller’s court filings allege that Flynn spoke to Kislyak at the direction of a “very senior” Trump transition official, and the implication is that the unnamed official was more “senior” than Flynn himself. That leaves only a handful of possibilities. Media sources are reporting that the “very senior” transition official was Trump’s son-in-law, Jared Kushner, and Kushner does seem to be the most plausible candidate. Next most likely would be Steve Bannon, a prominent member of the transition team. In any event, we can be sure that Flynn gave Mueller a lot more than just the names of Trump team members who knew about his conversations with Kislyak.

Trump has shown something of an obsession with the investigation into Flynn’s conversations with Kislyak. It’s possible that this reflects nothing more than loyalty to an early and ardent Trump supporter, but loyalty to supporters has not been a Trump hallmark. It’s also possible that Trump has reason to be worried about what Flynn knows, and what Mueller could do with it.

The Trump team’s twin penchants for Russia connections and for concealment of those connections have numbed us to the impact of these developments. So it’s worth restating their importance.

First, we have the national humiliation of an incoming administration conducting its own foreign policy, directly in opposition to the foreign policy of the outgoing but still incumbent administration. The Trump team explicitly worked with Russia and other unspecified foreign powers to attack two Obama foreign policy measures – abstention from a United Nations Security Council vote on Israeli settlements, and imposition of sanctions against Russia for its election interference. Siding with foreign governments against the incumbent American presidential administration fits most lay definitions of treason, even if it doesn’t fit the legal definition.

Second, we have the spectacle of a retired lieutenant general lying to the FBI about his dealings with foreign powers while holding the nation’s top national security position. As a general matter, people don’t lie to cover up the good things they’ve done – generally, people lie to hide their wrongdoing. In other words, Flynn knew full well that his efforts to defeat Obama administration foreign policy positions was wrong, and possibly criminal.

Third, we have the bewildering incompetence and unprincipled stubbornness of our president, who appointed Flynn despite clear warnings from both outgoing President Obama and his own transition team director, New Jersey Governor Chris Christie; Trump’s failure to fire Flynn for about two weeks after learning that Flynn had lied to the FBI; followed by Trump’s efforts to block the investigation and prosecution of Flynn.



The Child Molester Caucus

As a college senior, I wrote an article for the campus daily paper about my experience as a gay undergraduate. I wrote about the thought process that led me to come out, and I described how coming out had affected my relationships with my family, my friends, my classmates, and even my own future. It was 1977, back when that kind of thing was a big deal, and the article got a lot of attention.

The article was published two weeks after my 21st birthday; I brought to the effort only a limited life experience. Looking back with the additional perspective of the subsequent decades, several things I wrote then I would not write now.

One of the passages I’ve doubted over the years was a paragraph about how women related to me after I came out. In the context of that paragraph, I rendered a pretty harsh judgment on heterosexual men:

“Surprisingly to me, women have dealt with my homosexuality no better than men. I would have expected that a woman would have been relieved not to have to fear a man, his strength, his physical dominance, and the usual male-rapist sexual mentality. But I have found among my female friends an element of contempt for a man they regard as incapable of being threatening. One woman I know quite well reluctantly agreed that, although for opposite reasons, neither women nor men know how to deal with the opposite sex when on equal grounds.”

I took a lot of grief for that paragraph from some women, specifically for my implicit assertion that heterosexual men and women are necessarily not “on equal grounds.” These friends insisted that heterosexuality in no way subordinated them to men.

These conversations, and the reflection they prompted, led me to question whether my assessment of male heterosexuality had been too harsh; I had condemned essentially all straight men with a reference to “the usual male-rapist sexual mentality.” In my defense, I have thought over the decades, I was just a college student, and most of my familiarity with male heterosexuality came from hormonally supercharged teenaged boy-virgins engaging in what today, 40 years later, might be called “locker room banter.” Still, I wondered if I had squandered credibility by hypothesizing a predatory component of human male heterosexuality and assigning prominence to it.

I have watched these last few months as so many men – including previously unimpeachably feminist men – have been accused of sexually predatory behavior, the accusations collectively describing a previously unimagined pervasiveness of predation. The array of abusive behaviors described is striking, but the constant element in all of them is the predator’s willingness to obtain sexual gratification by substituting his own power, prestige or position for a woman’s consent.

The great state of Alabama may well be on the verge of electing Roy Moore, a man credibly accused of child molestation, to the United States Senate, on the twin premises that Moore is not a child molester because women lie about sex and that electing a child molester is better than electing a Democrat.

It’s not like I never heard of sexual harassment before. I read the news, and I did after all serve as a judge for ten years – I presided over a number of trials involving allegations of verbal sexual harassment, physical sexual abuse, even forcible rape. But I had utterly no idea how pervasive the abuse is – apparently in every profession, by men with reputations from noble to despicable, with lifestyles from devout to dissolute. Watching the cascade of revelations has left me feeling like an oblivious outsider, blithely ignorant of a central aspect of our social order.

I realize that, if anything back in 1977, I went too easy on men – and not just heterosexual men, but men at large, given how many of the accusations have been made by men against men.

I had read Susan Brownmiller’s classic, Against Our Will, shortly after its publication in 1975. And while I found most of her argument to be compelling, I initially rebelled against her conclusion, which felt too polemical: “[Rape] is nothing more or less than a conscious process of intimidation by which all men keep all women in a state of fear.”

All men, I protested? How can I, a gay man, be using rape as a conscious process of intimidation of women?

Ultimately I made peace with Brownmiller’s assertion, because I came to my own understanding of it, which may or may not have been her intended meaning: that all men benefit from the sexual intimidation of women, whether they participate in it or not. In today’s terms, that would be called “male privilege.”

Similarly, I had rebelled against the formulations of more radical feminists I read, the most radical being Andrea Dworkin, who became known as an anti-pornography theorist in the 1970s. At one point she argued, in effect, that all heterosexual intercourse is rape – an assertion I had a hard time accepting. Evidently, so did she, because by the time she published Intercourse in 1987, her position was that heterosexual intercourse is rape where the context is a sexual ideology in which “the paradigm for sex has been one of conquest, possession, and violation.” That ideology leads men to believe that sex requires that they hold “an unfair advantage” over women, in order to achieve the paradigmatic conquest, possession, and violation.

Having rebelled against these strong assertions about male sexuality, it’s maybe a little odd that I made such a strong assertion myself, and it’s maybe a little more predictable that I came to doubt my own strong assertion. But as I say, the flow of revelations these last few months, growing from a trickle to a stream to a flood tide, has brought me back to where I was in 1977.

Stephen Marche, a man who was born just the year before I made that assertion, wrote an op-ed in Sunday’s New York Times under the title, “The Unexamined Brutality of the Male Libido.” His assessment of male sexuality – or perhaps male heterosexuality, since he makes no direct reference to the other kind – is harsh.

Marche wondered “if there is no possible reconciliation between the bright clean ideals of gender equality and the mechanisms of human desire.” Having asked the question, he didn’t flinch, but charged ahead: “How can healthy sexuality ever occur in conditions in which men and women are not equal? How are we supposed to create an equal world when male mechanisms of desire are inherently brutal?”

Notice that Marche said that, at least in our world in our times, male sexuality is “inherently brutal.” That is almost exactly what Brownmiller and Dworkin said in the 1970s. As a 20-year-old in 1977, I said only that a brutal male sexuality was “usual.” Then for decades I wondered if I had gone too far. Now I see that I didn’t go far enough.

Marche offers no easy solutions, and no comforting assurances. He calls only for us to understand ourselves: “let’s start with a basic understanding that masculinity is a subject worth thinking about…. It is not morality but culture – accepting our monstrosity, reckoning with it – that can save us.”

Referring to “our monstrosity,” Marche makes clear that he is asking men to think about ourselves. I join his call, and so it is not to deflect but to amplify that I add that women should also think about themselves. As a man, I accept male responsibility here. But as a man, I also recognize that we’re not up to the task without help.

The unfortunate fact is, at least when it comes to matters of love and desire, men are not the only pretenders. Men are certainly guilty of pretending that they treat women as equals, but I’m afraid that I have to say that women are also guilty of pretending that men treat them as equals – just as my female friends back in 1977 insisted that they were not subordinated to men.

Men must consider what we are, and we must stop pretending to be something else. Women must consider the extent to which they are pretending to be equal to men even while accepting the paradigm of male conquest and possession.


Republicans in Trouble: A First Look at the 2018 Midterms

Only two states hold regular state-wide elections the year after a presidential election – New Jersey and Virginia. Plus we’ve had 69 special elections for state and federal legislative seats so far this year.

With these election results in the books, we turn our attention to the 2018 midterm elections. I’ll start with a review of Democrats’ and Republicans’ relative standing around the country; then I’ll recap the 2017 election results; next I’ll read the tea leaves for the 2018 House and Senate elections; and I’ll conclude with a preview of the 2018 gubernatorial races.

The bottom line, and the point of this post, is that Democrats have good reasons to be optimistic about 2018. They also have reasons for concern, but that’s a subject of another post. Republicans, especially Republicans representing swing states or districts, need to start worrying.

Where We Are Now

By the numbers, Democrats are in their worst situation since the 1920s, the heyday of big business Republicanism. Coming into this week’s election, Republicans controlled the White House, both houses of Congress, 35 governors’ mansions, and 68 out of 99 state legislative houses. Republicans controlled both legislative houses in 30 states (counting Nebraska, which has only one legislative house), in 24 of which Republicans also hold the governorship. By comparison, Democrats control both houses in 13 states, in only six of which do they also hold the governorship.

During Barack Obama’s presidency, Democrats lost more than 1,000 state and federal legislative seats. There are a total of 7,918 state and federal legislators, meaning that Democrats held about 56 percent of legislative seats on Obama’s first inaugural day, but only about 44 percent on Donald Trump’s inaugural day.

But here’s the thing about hitting bottom: things can only go up from there. And in fact, things have already started up.

2017 Elections

Before yesterday, 15 states ran special elections for 33 vacated state legislative seats and U.S. House seats. In August, assessed the first 30 of these special elections, which included five House races and 25 state legislative races. Those election results produced an average 16 percent shift toward Democrats from the relevant district’s “partisan lean.” It’s a little technical, but the sum of it is that a district’s partisan lean shows how the district’s voting compares to national voting as a whole. A 16 percent shift is a very big deal.

The five special elections for House seats produced no party changes in Congress, disappointing Democrats. Four of the House seats had been held by Republicans who left their seats to become Trump cabinet members – it’s not surprising that those districts are deep red, and they stayed red. What’s surprising is how competitive those districts were in 2017, and what that means for races in states and districts that are not so deep red.

In the 25 state races, seven seats changed parties – six flipped R to D; only one flipped D to R. Furthermore, Democrats won all three state special elections that were held after the 538 analysis was done but before yesterday’s elections, picking up two seats and holding the third. In other words, in 28 state legislative special elections before yesterday, the incumbent party retained its seat 19 times, Democrats picked up eight seats, and Republicans picked up one seat.

An eight-to-one pick-up ratio, like a 16 percent shift from partisan lean, is a very big deal.

Obviously the average 16 percent Democratic shift doesn’t apply mechanically to every seat that’s up in the 2018 elections. It’s an average, which means that some seats shifted much more than 16 percent to Democrats, some shifted much less, and a few even shifted toward Republicans. Furthermore, whereas a special election is by definition a contest between non-incumbents, most elections involve incumbents. (I’ll come back to that thought below, when I tell you how many more Congressional Republicans aren’t running for re-election in 2018 than Congressional Democrats.)

But it’s beyond unlikely that 33 special elections in 15 states from California to Connecticut and from Minnesota to Louisiana tell us nothing about the rest of the country. With an average 16 percent Democratic shift, some races even in strong Republican Congressional districts will be unusually competitive next year.

Yesterday, New Jersey and Virginia held regular state-wide elections, and nine states held special elections for 30 vacant state legislative seats. The New York Times called yesterday’s election results a “forceful rebuke” to Trump and the Republican Party. Democrats picked up a governorship in New Jersey and held the Virginia governorship by an unexpectedly large margin, made gains in the three legislative houses up for regular elections, and made additional gains in the special elections for state legislative seats.

Although Democrats already held three-to-two majorities in both houses of the New Jersey legislature, it looks like Democrats will add one seat in the state Senate and two in the General Assembly. In Virginia, only the House of Delegates was up for election, and Republicans started from a 66 – 34 majority. With five races too close to call, Democrats hold a 48 – 47 seat lead. Provisional and absentee ballots will be decisive, and those are expected to favor Democrats. If so, Democrats will have scored a huge upset victory. Of the 14 seats Democrats have picked up so far, they picked up 11 of them by unseating incumbent Republicans running for re-election. It appears that Republicans will pick up no seats in either New Jersey or Virginia.

Democrats did strikingly better among college educated white voters and suburban voters than Hillary Clinton did last year – or, stated differently, Republicans did strikingly worse among those voters than Donald Trump did last year.

In yesterday’s special elections for 30 state legislative seats, Democrats’ most important pick-up was a Senate seat in Washington’s 45th District, flipping the state Senate from Republican to Democratic control. New Jersey and Washington both moved from divided party control to full Democratic control of the governorship and both houses of the legislature.

Democrats picked up three other state legislative seats yesterday: two in Georgia and one in New Hampshire. Republicans picked up none. Therefore in special elections so far in 2017, Democrats have picked up 12 state legislative seats to one picked up by Republicans. In regular elections, Democrats have picked up at least 17 seats in just two states, and Republicans have picked up none. Therefore of 30 state legislative seats flipped so far this year from one party’s control to the other’s, 29 flipped R to D and only one flipped D to R.

One last note on the 2017 elections: take a look at polling for the special election in Alabama, which will be held on December 12. Alabama’s partisan lean is 23.8 percent pro-Republican, but’s polling average has the Republican candidate ahead by only six points. In other words, the RCP’s polling average is predicting a 17.8 percent Democratic shift in Alabama, just slightly greater than 538’s national average for special elections through August.

How unusual is this? Democrats haven’t polled within six percent in a Senate race in Alabama since Richard Shelby won his second term – he was still a Democrat – in 1992. The average margin of victory for Alabama Republican candidates for Senate since 1992 is more than 30 percent. Trump won Alabama by 28 percent.

2018 in the House of Representatives

Going into the midterms, Republicans hold a 24-seat edge over Democrats in the House. There are strong indications that the Democrats may win at least that many Republican-held seats next November.

President Trump’s approval ratings have been at all-time lows on almost every day of his presidency so far. Rarely during the era of modern polling – that is, beginning with Harry Truman – have presidents been so disfavored by the American public. Trump’s approval rating has never cracked 50 percent; he started out in the upper 40s and dropped fairly steadily to the upper 30s, where he has been stuck since May 16.

Correlating presidential approval ratings to midterm election outcomes, a 40 percent presidential approval rating predicts a loss of 40 House seats for the president’s party. The last president to be this unpopular going into a midterm election was Harry Truman, who lost House 55 seats in 1946. Truman started with 242 Democratic members of the House; Trump has almost exactly the same number of Republicans, 241.

The national media is in “twice shy” mode because they misread the 2016 elections so badly. They’re reluctant to read the obvious into Trump’s terrible approval ratings. Pundits are painfully mindful of Trump’s boast that he could “stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?”

But he has lost voters: his approval ratings have dropped about ten percent from his first week in office. That drop reflects the disaffection of the Trump voters who are not in the hard core of Trump’s base that doesn’t mind a presidential shooting now and then. For a man who lost the popular vote, and who won the decisive three states by 77,744 votes out of 13,940,912 votes cast – just over a half-percent of the vote – a ten percent drop is cataclysmic. Such a loss across the board would have cost Trump 132 electoral votes.

In fact, the decline in Trump’s approval ratings has been across the board – it is measureable in all 50 states. Although Trump won 30 states, his current approval ratings are higher than his disapproval ratings in only 22 states, down from 44 states when he took office. He commands approval of a majority of voters in only 16 states.

Who are the voters that Trump has lost? White voters with college degrees favored Trump last November, albeit by just three percent. But they have turned decisively against him: 61 percent of those voters now disapprove of Trump’s performance, and 51 percent “strongly” disapprove. This is important for 2018 because college educated voters constitute a greater share of the electorate in midterm elections than in general elections. Conversely, the white working class that went heavily for Trump in 2016, and still approves of Trumps performance by an 18-point margin, constitutes a smaller share of the midterm than of the general electorate.

Every midterm since 1982 has set a new record high for the proportion of voters who hold bachelor’s degrees. We already knew that Trump-unfavorable Hispanic and Asian-American voter pools were expanding in relation to the Trump-favorable white voter pool. Now we know that the part of the white voter pool that is especially important in midterm elections has turned strongly against Trump.

College educated white voters yesterday voted decisively more Democratic in New Jersey and Virginia than they did in 2016. There is every reason to expect them to do the same nationwide in 2018.

Since most incumbents win re-election if they run, a key indicator for legislative elections is retirements. So far 39 representatives have announced that they won’t run for re-election in 2018: 29 Republicans and 10 Democrats. Of 39 departing members of the House, 24 took or are seeking higher office: 15 Republicans and nine Democrats. That leaves 15 “true” retirements, overwhelmingly Republican: 14 to 1. Although all departures are to some extent a measure of the mood in the House, “true” retirements are a better measure of partisan trends – when “true” retirements fall heavily on one side of the partisan divide, the other side does well in the next election.

Of the 39 House departures announced so far, eight are resignations before the end of the Congressional term, leaving vacancies to be filled by special election, and 31 are decisions not to run for re-election in 2018: 22 Republicans to nine Democrats.

With the House deadlocked and unable to enact any important legislation so far, simple frustration could drive larger than usual Republican retirement numbers. And Alt-Right chieftain Steve Bannon’s declaration of war against insufficiently pure Republicans – and the attendant threat of populist primary challengers – could also drive Republican retirements.

Another interesting indicator of legislative election outcomes is early fundraising. FiveThirtyEight has compiled numbers of House candidates from each party who raised at least $5,000 by June 30 of the year before the election. Whichever party had the most candidates on that list gained House seats in the next election. For instance: Democratic candidates outnumbered Republicans by 48 to 24 in June 2005, and took back the House in November 2006; Republican candidates outnumbered Democrats by 78 to 40 in June 2009, and re-took back the House in November 2010.

So here’s the thing. On June 30, 2017, Democrats had 210 House candidates on the list, almost triple the largest number 538 had ever previously recorded. By comparison, Republicans had only 28 candidates on the list – tie for the third lowest out of 16 showings. FiveThirtyEight’s correlation line implies that Democrats will pick up 93 House seats in 2018. The improbability of a shift of that magnitude suggests that 2018 will be an outlier on the correlation line, but nonetheless the correlation is strong and the implication of a large Democratic gain is clear.

A large early fundraising advantage by one party’s candidates shows an enthusiasm gap. The 2017 enthusiasm gap is huge beyond all previously measured precedents, and it strongly favors Democrats. Despite all the media handwringing about the Democratic Party’s loss of direction, the reality at ground level shows that Democrats know where they’re going; it’s Republicans who’ve lost direction.

Furthermore, Democratic candidates’ early fundraising success has continued. Democratic candidates in 82 Republican-held districts have raised at least $100,000 – almost four times as many Democrats as had reached that level in 2016, when Democrats picked up six House seats, and more than twice as many Republicans as had reached that level in 2010, when Republicans picked up 63 seats in a wave election of historic proportions.

The last 2018 indicator I want to mention is the generic congressional ballot. In various forms, pollsters ask voters across the country which party they want to see in control of Congress. Poll aggregators compile the results into averages, and as usual I rely on as the most statistically sophisticated and the most historically accurate.

FiveThirtyEight’s compilation showed a relatively small preference for Democrats, about five percent, until May. On May 10, Democrats’ advantage shot up to 10.8 percent. (The House narrowly passed its highly unpopular Affordable Care Act repeal law on May 4.) Although it varies almost daily, Democrats’ advantage has stayed in the 10 percent range since May. Democrats now hold a 9.7 percent edge over Republicans on the generic ballot.

Aside from voters’ views on specific legislation, it makes sense to me that centrist voters would prefer a Democratic House to a Republican one. Trump is unpopular, and, even among voters who like Trump’s policy positions, many are concerned about his temperament. It’s logical that some wedge of voters will vote for Democratic House candidates as a sort of insurance policy against Trump and his penchant for the bizarre.

2018 in the Senate

Republicans hold only a two-seat edge in the Senate. But unlike the House, where all seats are up every two years, a Senate seat is up every six years, and therefore only one-third of the Senate is up in any given election year. As it happens, of the 33 Senate seats up for election in 2018, fully two-thirds (25) are held by Democrats, and only eight are held by Republicans. As a result, Democrats have to have a really good year just to break even next November.

By my count, 12 of the Senate contests are likely to be competitive – four currently held by Republicans, eight by Democrats. High quality polling is not consistently available in Senate races this far in advance, and my “competitive” designation is based on polling in only eight of the 12 races. In the other four, the “competitive” designation is based on the state’s partisan lean, or by special factors relating to the incumbent senator.

The Republican-held Senate seats that polls show to be competitive are Arizona, Nevada, Texas, and, believe it or not, Utah. Democratic seats running close in the polls are Florida, Missouri, North Dakota and Ohio. Polling aside, the underlying politics of Indiana, Montana and West Virginia are such that Democratic incumbent Senators Joe Donnelly, Jon Tester and Joe Manchin have to be considered to be vulnerable.

Lastly there is one Democrat, Bob Menendez, who might not end up running for re-election. Menendez has declared his candidacy, but his federal corruption trial went to the jury this week. If he is convicted, his otherwise safe Democratic seat comes into play. If he were to resign from the Senate before January 18, 2018, while Republican Chris Christie is still New Jersey’s governor, Christie would appoint a Republican to replace him and that appointee would run as a short-term incumbent in 2018. If Menendez refused to resign, he would be vulnerable to both Democratic primary and Republican general election challengers.

To take the Senate, Democrats need to run the table. If they successfully defend all of their seats, they have to pick up three of the four Republican seats I’m calling competitive. If they lose one seat, they have to pick up all four, and if they lose two seats or more, they’re out of the running. Winning control is a long shot, but not impossible. Simply put, almost everything needs to break their way. (These scenarios assume that Republican Roy Moore wins the Alabama special election to succeed Luther Strange, and, as I mentioned above, although polling shows a race uncommonly competitive for Alabama, Moore is nonetheless distinctly ahead.)

Four early breaks are going Democrats’ way. First, although only two senators have declined to run so far, both are Republicans: Jeff Flake of Arizona and Bob Corker of Tennessee. Arizona was likely to be competitive in any event, and Tennessee was unlikely to be competitive in any event.

A third senator, Utah’s seven-term incumbent Orrin Hatch, said in 2012 that this would be his last term, but he nonetheless has declared his candidacy in 2018. Hatch is having popularity problems, and an early poll shows him to be vulnerable to the leading Democratic candidate – making Utah an unexpectedly competitive race in 2018. But The Atlantic reported last month that Hatch is planning to retire, and that Mitt Romney will run for his seat. Hypothetical polling gives Romney a big lead, so that would take Utah out of the “competitive” category.

Second, Democrats are doing much better than Republicans in early fundraising and candidate recruitment. Democratic Senate candidates, both incumbents and challengers, are enjoying a swell of grass-roots enthusiasm, boosted by antipathy to President Trump and concern about Republican positions on health care, climate change, tax cuts for corporations and wealthy individuals, immigration, and elimination of reproductive rights.

Third, Trump’s presidency has brought Republicans into fratricidal combat, and Alt-Right forces are promising to put up primary opposition to every incumbent Republican Senator except Texas Senator Ted Cruz. At the very least, Republican primary battles will drain resources, damage the images of the winners, and risk general election disunity. To the extent that Alt-Right candidates win primaries, they would go into the general election without the advantages of incumbency, and with the disadvantage of running from the far right. The 2018 Senate campaign could be a re-make of the movies we saw in 2010 and 2012, when Republicans nominated several Senate candidates who were too extreme (Todd Akin’s “legitimate rape”) or too odd (Christine O’Donnell’s “I am not a witch”) to win general elections.

Fourth, early polling shows that Arizona and Nevada are very plausible Democratic pick-ups. Nevada Republican Senator Dean Heller is polling poorly in a state that has leaned slightly Democratic in recent years. And although Arizona Republicans remain squarely for Trump, Arizonans at large have turned against Trump – Arizona is one of the states that voted for Trump in 2016 but disapproves of Trump’s performance now.

After that, the Democratic going gets pretty tough. No matter how unpopular polls show Texas Republican Senator Ted Cruz to be, I’m a long way from believing that Democrats can win there. And it’s hard to find a third Democratic pick-up elsewhere. That makes Democrats’ best shot a 50-50 tie, which means that Vice President Mike Pence may be spending more of his time than he’d like presiding over the Senate.

And all of that assumes that Democrats lose none of their current seats. As of now, I might take a 50-50 bet on each one of the Democratic incumbents, but the odds of winning as many as a half-dozen 50-50 bets are pretty small.

2018 gubernatorial elections

Democrats are defending in three-quarters of the 2018 Senate races; Republicans are defending in three-quarters of the governors’ races. Thirty-six governorships are up next year, 27 currently held by Republicans. Of the 36, incumbents are running for re-election in 19 – five Democrats and 14 Republicans. Seventeen seats are being vacated – four currently held by Democrats, 13 by Republicans.

As it happens, several blue states have popular Republican governors: Republican incumbents seem to be headed to easy re-election in Maryland, Massachusetts and Vermont. But Democrats will be gunning for Republican incumbents (or, in the case of Alaska, a Republican-leaning independent incumbent) in Alaska, Illinois, Nevada and Wisconsin, as well as open seats in Florida, Maine, Michigan and New Mexico. Democratic seats that could be competitive are the open seats in Colorado, Connecticut and Minnesota.

The midterms are a full year out, and a lot could change. If Republicans continue to prove unable to enact major legislation, Republicans face the prospect of a 2018 Republican primary season that resembles a cross between the American Civil War and the Tet Offensive. On the other hand, if Republicans pass big corporate tax cuts and Trump enjoys an unexpected foreign policy success – in North Korea, for instance – his approval ratings could rise substantially, along with Republicans’ midterm fortunes.

But as of now, Democrats stand to make major midterm gains in the U.S. House, in state legislatures, and in state governorships.


November 8, 2017 – Democrats picked up a formerly Republican Georgia Senate seat, the 6th District, although the two top finishers, both Democrats, will have to compete in a run-off. Therefore the final count in 2017 special elections through November 7 is that 13 seats flipped R to D, and one seat flipped D to R.

Virginia Democrats have picked up 15 seats in the House of Delegates, a magnitude of shift the media is reporting hasn’t been seen since the 1800s. That magnitude of shift in the 2018 midterms would cost Republicans 65 seats in the U.S. House. Four Virginia House races remain officially undecided. Republicans lead in all four, but by small enough margins (as little as 12 votes) to guarantee recounts.


Diversity Immigrant Visas and Terrorism

Sayfullo Saipov, the terrorist who killed eight yesterday in New York City’s worst terror attack since 9/11, immigrated from Uzbekistan in 2010. He reportedly won an immigrant visa – a green card – as part of the diversity immigration lottery program.

That program was created by the Immigration Act of 1990, the broadest revision of American immigration law since the Immigration and Nationality Act of 1965. In addition to creating the diversity immigrant visa program, the 1990 act expanded family unification and work-based immigration. The act made a variety of other reforms, including repeal of the prohibition against gay immigrants.

The bill was sponsored by Massachusetts Senator Ted Kennedy. He introduced the bill in the Senate on February 7, 1989. The bill was considered at length and in detail: seven committee hearings, extensive debate on the floor of each house, floor consideration of a couple dozen amendments and adoption of most of them, and a conference committee to reconcile differences between the bills approved by the two houses of Congress. More than 20 months after Kennedy introduced it, the bill was adopted by the Senate by vote of 89 to 8, then by the House by vote of 264 to 118. President George H. W. Bush signed the bill into law on November 27, 1990.

A misconception about the program, due to the word “lottery” in the program’s title, is that the program’s only requirement for a green card is to have your name pulled out of a hat. In fact, the lottery is only the first stage of the process.

Although the visa program is limited to 50,000 lottery winners per year, the State Department actually selects well over 50,000 winners at the first stage – it’s typical for the State Department to select about 100,000 applicants in the initial lottery. This is because many who win the initial lottery won’t ultimately qualify for immigration visas.

After being notified that a person has been selected in the initial lottery, she must submit a formal application for an immigrant visa. Many who win the initial lottery don’t submit applications, for any number of reasons. Many who submit applications don’t meet the requirements of the program, which are completion of high school or two years’ work experience in an occupation that required at least two years of training. Completed applications must be submitted by a strict deadline and may be submitted only on-line.

After the applicant meets all the requirements of the lottery program, the applicant must also satisfy all of the regular requirements for immigration to the United States, including background checks and proof of means of support after immigration.

In addition to the 50,000 immigrants selected through the lottery process, successful applicants may be entitled to bring spouses and minor children with them, provided that those “derivative” visa applicants can meet all of the regular requirements for immigrant visas. As a result, well over 50,000 immigrants come to this country each year through the lottery program. Still, for illustrative purposes, we’ll assume that the diversity immigration lottery program permits entry to just 50,000 each year.

The program has been in place for 27 years, meaning that something like 1,350,000 green cards have been issued under the program. Yesterday one of them committed a terrorist attack, and the reaction of our president is to ask Congress to repeal the program. By contrast, to this day – 31 days after the deadliest mass shooting in our history – the President has proposed no public policy response whatsoever. Of course that shooting was done by an American born white Christian. Yesterday’s attack was committed by a Muslim immigrant.

Calling for repeal of the lottery program wasn’t sufficient for Donald Trump. He tweeted blame for the existence of the program – and therefore for yesterday’s attack – on Senate Minority Leader Chuck Schumer, who voted for the Immigration Act of 1990 when he was a member of the House of Representatives.

Trump might want to be careful about blaming yesterday’s attack on everyone who voted for the 1990 act. One of the bill’s 89 “yes” votes in the Senate came from Dan Coats, Trump’s director of national security. Six current Republican senators were also in the 89-vote majority: Thad Cochran, Chuck Grassley Orrin Hatch, John McCain, Lisa Murkowski and – get this – Majority Leader Mitch McConnell.

The 1990 act was passed well before the 9/11 attacks re-drew our priorities. After 9/11, several efforts were made to end the immigration lottery program. Repeal of the program’s authorization was part of at least one of the unsuccessful efforts at comprehensive immigration reform in the 2000s. In 2007, both houses passed bills that would have defunded the program, but the defunding provision was eliminated from the final bill.

The original purpose of the lottery program was to create a new immigration option in a system that is heavily weighted in favor of immigrants who already have close family members in the U.S. The lottery program focused on people from low-immigration countries, who were unlikely to have close relatives in this country. Admission of these “new seeds” would open immigration opportunities to their families through the regular family unification visa programs, diversifying the pool of countries from which American immigration is drawn.

Arguably, the lottery program has been in place long enough that it has achieved its purpose, and there are those who contend that the 50,000 immigrant visas awarded by lottery could be better used to shorten what can be decade-long waiting times for family reunification immigrants. Of course there are also those who would like to reduce or eliminate any category of immigration, simply because they don’t like immigration.

But the argument that the immigrant lottery program must be ended because one Uzbek immigrant became a terrorist is not reasonable. Immigrant lottery applicants must pass background checks. Trump claims to have beefed up our visa application background checks to a level of “extreme vetting” that we presume satisfied him for almost every country of origin in the world. And Uzbekistan is not on the very short list of countries deemed by Trump not to meet “extreme vetting” standards.

Furthermore, given seven years between Saipov’s entry into the United States and his terrorist attack, there is every reason to believe that no vetting, no matter how extreme, would have barred him from entry. Of course, there are those who argue that Muslims are uniquely susceptible to the peculiar form of radicalization that leads to terrorist attacks, and therefore Muslims should all be barred, but that argument fails for at least two reasons.

First, a non-Muslim, either as an immigrant or as a native-born American citizen, can convert to Islam and become radicalized. And second, non-Muslims, whether native-born or immigrants, can commit terrorist attacks – left-wing and right-wing anti-government attacks, white supremacist attacks, anti-Semitic attacks and anti-abortion attacks are all too frequent in this country.

In fact, Islamic terrorism accounts for just one-third of all terrorist attacks in the U.S. during this century, almost exactly the same number as anti-abortion terrorist attacks. Banning Muslim immigration would do nothing to address terrorism by non-Muslims, by native-born Americans, Muslim or otherwise, or by post-immigration converts to Islam.


The Papadopoulos Plea

As it turns out, Department of Justice Special Counsel Robert Mueller’s first indictment in the Russia investigation was against Paul Manafort and his deputy, Richard Gates, but it wasn’t the first arrest in the investigation. It turns out that Mueller arrested George Papadopoulos, a minor foreign policy advisor to Donald Trump’s election campaign, on July 27, 2017.

Before Trump became the front-runner for the Republican presidential nomination, he told Chuck Todd on “Meet the Press” that he got his military advice by watching interviews on television. As Trump became the front-runner and had to be taken seriously, reporters repeatedly pressed him to name his foreign policy advisors.

In early February 2016, he promised to release a list of his foreign policy advisors in “about two weeks,” but no such disclosure was forthcoming. On March 16, 2016, Trump told an interviewer that “my primary consultant is myself.” Finally on March 21, 2016, Trump announced his five-member foreign policy team: Walid Phares, Carter Page, George Papadopoulos, Joe Schmitz, and retired General Keith Kellogg. “And I have quite a few more,” he insisted. (The foreign policy team was apparently assembled just that month, presumably in order to have an answer to reporters’ questions, not for the purpose of providing actual foreign policy advice to the candidate.)

The team was so unimpressive that real foreign policy experts were “confounded”:

” ‘Many of us who have held senior positions in previous Republican administrations have been asking each other if we have ever heard of them, and pretty much everybody is turning to Google to see what they can find,’ said Mike Green, a foreign policy expert at the Center for Strategic and International Studies who served on President George W. Bush’s National Security Council.”

This really wasn’t surprising, because most of the real foreign policy experts in the Republican Party had signed an open letter opposing Trump’s nomination. One of the main reasons Secretary of State Rex Tillerson remains unable to staff up the State Department is that Trump won’t let him hire anyone who opposed his candidacy – and that doesn’t leave many people who know anything about foreign policy.

Upon learning that he would be named a Trump campaign foreign policy advisor, George Papadopoulos went to work trying to arrange a meeting between Trump campaign and Russian President Vladimir Putin. At a meeting with Trump and the foreign policy team on March 31, 2016, Papadopoulos introduced himself to the group with the self-important announcement that he had connections he could use to set up a meeting between Trump and Putin.

Papadopoulos kept hustling his proposal and working his Russian connections until June 19, 2016, when he apparently began to catch on that the campaign just wasn’t interested. At that point, he shifted to a proposal for a Russia meeting with someone besides Trump “if Mr. Trump is unable to make it to Russia.” Papadopoulos generously offered to do the meeting in Trump’s stead. Eventually, on August 15, 2016, a campaign representative encouraged Papadopoulos to make the trip to Moscow, but he apparently didn’t go.

Papadopoulos was interviewed by the FBI about the campaign’s Russian contacts on January 17, 2017. Evidently unaware of Watergate’s lesson that the cover-up is worse than the truth, Papadopoulos lied to the FBI – he contended that he knew his Russian contacts before he became a Trump advisor, and he minimized the extent and importance of his discussions with those contacts.

Papadopoulos was arrested on July 27, 2017, for lying to the FBI. Apparently he agreed to cooperate as part of a plea deal – he signed and agreed to the FBI’s “statement of the offense” on October 5, 2017, and the document was filed under court seal the same day.

The FBI’s description of Papadopoulos’s communications with campaign representatives suggests that the campaign treated Papadopoulos as the amateur he is. He was after all part of a team of stand-ins for foreign policy experts, not a team of actual foreign policy experts.

Unto itself, Papadopoulos’s guilty plea isn’t a big deal. But there are three interesting things about the FBI’s description of the case. First, the FBI refers to a number of communications between Papadopoulos and unnamed Trump campaign officials, and quotes a number of e-mails between them. The FBI mentions a “supervisory campaign official,” two “senior policy advisors” to the campaign, and a “high-ranking official of the campaign.” Those communications are in addition to the foreign policy meeting that Trump himself attended, and e-mails between Papadopoulos and “several members of the campaign’s foreign policy team.”

In those communications, Papadopoulos discussed his proposals for meetings with Russians and conveyed what his Russian contacts were telling him. Although the Trump campaign never took up his proposal for a Trump-Putin meeting, neither did anyone tell him to knock off the back-channel chatter with a hostile foreign power. On the contrary: the campaign supervisor who later encouraged Papadopoulos to go to Moscow and meet with the Russians at an earlier point encouraged Papadopoulos’s efforts with praise: “Great work.”

We don’t know who the unidentified campaign officials were, but Mueller does. Maybe they’ve been interviewed, maybe they haven’t. Maybe Mueller wanted Papadopoulos’s guilty plea publicly known before he did the interviews, as a lesson on the price of being less than candid. Or maybe he already interviewed them and they were candid. Either way, one of the key questions for them is whether they passed on Papadopoulos’s information, and if so to whom. Thus Mueller works his way up the food chain toward the biggest fish.

Second, one of Papadopoulos’s Russian contacts is described only as a “Female Russian National.” They were introduced in London by another Russian contact on March 24, 2016. She was introduced as a relative of Putin’s, but apparently that was not true. She was interested in arranging a meeting between the Trump campaign and “the Russian leadership to discuss U.S.-Russia ties under President Trump.”

There are maybe 70 million female Russian nationals in the world, but it is oh so tempting to believe that this one was Natalia Veselnitskaya, the Kremlin-connected lawyer who met with Donald Trump Jr., Jared Kushner and Paul Manafort on June 9 at Trump Tower.

And third, on April 26, 2016, at another London meeting, one of Papadopoulos’s Russian contacts (not the Female Russian National) told him that he had just learned that Moscow had “dirt” on Hillary Clinton, in the form of “thousands of emails.” Although the FBI’s “statement of the offense” is explicit in other instances in stating that Papadopoulos passed information from his Russian contacts to campaign officials, it is not explicit about what Papadopoulos did with the claim to have Clinton “dirt.” Instead, the statement continues ambiguously:

“Following that conversation, defendant Papadopoulos continued to correspond with Campaign officials, and continued to communicate with [his Russian contacts], in an effort to arrange a meeting between the Campaign and the Russian government.”

This sentence seems to me to be deliberately ambiguous. Did Papadopoulos correspond with campaign officials about the “dirt” conversation, or only about his proposal for a meeting with the Russian government? It is hard to believe that a nobody advisor trying to pump up his importance to the campaign would sit on that kind of information.

In any event, Trump clinched the nomination on May 26, and Rob Goldstone e-mailed Donald Trump Jr. on June 3 to suggest a meeting for delivery of information that would “incriminate Hillary and her dealings with Russia and would be very useful to your father. This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.”

As I’ve noted, Trump Jr. recorded no surprise that the Russian government was supporting Trump’s campaign, or that the Russian government had “high level” information that would “incriminate” Clinton, or that the Russian government was willing to hand “sensitive” information over to the Trump campaign. Nor of course, did Trump Jr. alert the FBI to an offer of the fruits of a crime, and possibly espionage, by a hostile foreign power; he just took the meeting.

At the time, it seemed that the Russian approach was prompted solely by Trump’s clinching of the nomination a few days before. But these new revelations arouse suspicion that the discussions with Papadopoulos persuaded the Russians that the Trump campaign was receptive, but that Papadopoulos was an ineffectual wannabe, and not the man they wanted to deal with.


“Conspiracy Against the United States”

Acting pursuant to a plan that had been vetted and approved by high-level Nixon administration officials, five men broke into the Democratic National Committee headquarters on May 28, 1972, and installed wiretaps on two phones in the office, one belonging to DNC Chairman Lawrence O’Brien. One or both of the wiretaps didn’t work, so on June 17, 1972, the burglars went back in to fix them.

Frank Wills, a security guard in the building complex that housed the DNC offices, discovered a door latch taped open. He removed the tape, but later found the door latch re-taped. Wills called police, who found and arrested the five burglars. Those five, plus their handlers, Howard Hunt and Gordon Liddy, were indicted by a District of Columbia grand jury, on September 15, 1972.

The prosecution proceeded efficiently: all seven men were convicted after trial on January 30, 1973, and the presiding judge, United States District Judge John Sirica, scheduled sentencing. By then, Washington Post reporting by two unknown local news reporters, Bob Woodward and Carl Bernstein, had uncovered substantial information that the defendants had connections to the White House and the Nixon re-election campaign.

But the Woodward and Bernstein sources remained anonymous (famously including “Deep Throat,” who turned out to be the deputy director of the FBI, Mark Felt), and couldn’t be identified, much less interviewed, by prosecutors. It was one of several times over the two-year life of the Watergate scandal that investigative progress seemed to stall.

On sentencing day, March 23, 1973, recognizing the likelihood that the defendants knew about higher level Nixon administration officials involvement but were keeping silent, Sirica imposed “provisional” sentences of 40 years in federal prison.

Those sentences broke the logjam. About two weeks later, John Dean, the White House counsel, began cooperating with investigators. On April 13, a former White House aide and deputy director of Nixon’s re-election campaign, Jeb Magruder, told prosecutors that he had committed perjury at the burglars’ trial, and he implicated John Mitchell, the former Attorney General and director of the re-election campaign. On April 30, President Richard Nixon went on national television to announce that he had fired Dean; had accepted the resignations of his chief-of-staff, H. R. Haldeman, his chief domestic affairs advisor, John Ehrlichman, and his attorney general, Richard Kleindienst; and had selected Secretary of Defense Elliot Richardson to succeed Kleindienst as attorney general, with authority to appoint a special counsel to investigate and prosecute Watergate-related crimes. Richardson appointed Harvard Law Professor Archibald Cox.

The rest is history: Cox’s struggle with the Nixon White House for access to the tape recordings Nixon secretly made of his Oval Office conversations led directly to Nixon’s resignation and disgrace 15 months later.

Department of Justice Special Counsel Robert Mueller obtained the first indictment in the Russia investigation Friday, and the indictment was made public today. The indictment charges Donald Trump’s former campaign chairman, Paul Manafort, and Manafort’s business partner and chief deputy, Richard Gates, with money laundering, tax evasion, failure to make required disclosures to four different federal agencies, and submission of false statements to the Department of Justice. Count 1 against the defendants, the over-arching charge against them, is “conspiracy against the United States.”

The consensus of the talking heads so far today is that the indictment of Manafort and Gates is unrelated to the central question under investigation: whether the Trump campaign assisted, or at least knew of, the Russian government’s efforts to subvert the 2016 presidential election. I’m not so sure. Or, to put it the other way, I’m quite sure it’s too early to rule out any such relationship. There are way too many unanswered questions.

The indictment says that Manafort and Gates were hired by the Party of Regions, a pro-Russian political party in Ukraine, in 2006. The purpose of the retainer, according to the indictment, was to advance the party’s interests in Ukraine, including the election of the party’s candidates. The indictment asserts that the retainer remained in effect until “at least … 2015.” Other than election-related work, the indictment doesn’t spell out the work Manfort and Gates were hired to do “in Ukraine.”

The Party of Regions’ presidential candidate, Viktor Yanukovych, won election in 2010, and served until his removal by the Ukrainian parliament in 2014, when he fled to Russia. At that point, the Party of Regions became the Opposition Bloc, which continued the Manafort-Gates retainer.

The indictment also says that Manafort and Gates were separately hired by an entity created by the Ukrainian government under President Yanukovych in 2012. The purpose of that retainer was  to perform public relations and lobbying in the United States and Europe on behalf of the Yanukovych government. The indictment suggests that this retainer expired when Yanukovych left office in 2014.

First and foremost among the unanswered questions is, why did Trump select Paul Manafort as his campaign chairman and chief campaign strategist? Manfort’s most substantial American campaign work dated to the 1980s, although he also served in relatively minor advisory roles in the 1988 George H. W. Bush and 1996 Bob Dole campaigns.

On the one hand, Trump had real trouble attracting experienced campaign management talent during his primary campaign, which supplies a plausible reason for hiring Manafort. On the other hand, Manafort had a deep relationship with pro-Russian Ukrainians, and it’s not clear that a relationship with pro-Russian Ukrainians is all that distinguishable from a relationship with Russians.

We already know that Trump himself has an affinity for Russia and its authoritarian president, Vladimir Putin. That affinity is at odds with Trump’s claim to a foreign policy based on a cold, practical assessment of American interests. The affinity becomes more understandable if, as I suspect, Trump retains more active or potential financial interests in Russia than he has conceded – or if Trump has been  compromised by the Russian government, as the Christopher Steele dossier effectively alleges.

The indictment alleges that Manafort remained on retainer to the Opposition Bloc and pro-Russian Ukrainian interests until “at least … 2015.” And there remains the still-unexplained change to the 2016 Republican national platform, made under mysterious circumstances at the last minute, dropping the Republican call for the United States to arm Ukraine against Russian aggression, including its occupation and annexation of the Crimea.

Remember that Trump appointed a national security advisor, Michael Flynn, who was found by the then-acting attorney general to have been compromised and was therefore vulnerable to Russian blackmail. Despite that, Trump stood by Flynn until the matter became public, and he has continued to insist, even after firing Flynn, that Flynn is a good person – as indeed he has insisted with Manafort.

Another unanswered question is the depth of Manafort’s knowledge of and involvement with Roger Stone’s campaign activities, including his contacts with WikiLeaks founder Julian Assange about the e-mails stolen by Russian hackers from the Hillary Clinton campaign chairman, and Stone’s alleged contacts with Russian intelligence. Stone and Manafort have long-standing business ties, having co-founded the lobbying firm of Black, Manafort & Stone in 1980. Manafort left the firm in 1996, but it seems unlikely that the end of their 16-year business partnership ended their relationship.

To paraphrase Churchill, Mueller’s indictment of Manafort and Gates is not the end of the Russia investigation, or even the beginning of the end, but it is perhaps the end of the beginning. The Watergate investigation didn’t really take off until the burglars had been arrested, indicted, convicted and sentenced.

The Watergate burglars were sentenced just nine months after their arrest – and that case was a relatively straightforward case of burglary. The Manafort-Gates case is a complex case of money laundering and conspiracy over a period of years. It’s unlikely that we’ll have trial, much less conviction and sentencing, within nine months. And if it takes sentencing these defendants to really kick off the Russia investigation, it will likely be well into 2019 before that happens.

There is one item in the indictment that puzzles me. A four-paragraph section of the indictment is entitled “Manafort and Gates’ Fraud to Increase Access to Offshore Money.” Those paragraphs allege that the defendants defrauded banks by lying to them about Manafort’s properties in order that Manafort could get favorable mortgage terms. For instance, Manafort told a bank that his Soho condominium served as a second residence for his family, when in fact he used the property solely for rental income. The bank has higher lending limits for owner-occupied properties than for rental properties, and Manafort’s deception was intended to get the larger mortgage.

The properties at issue were allegedly bought with laundered money that originated as payments for Manafort’s service to the Ukrainian government and politicians. But the alleged frauds committed against lenders were not charged in the indictment – the charges consist entirely of crimes against the U. S. government. So it’s not clear what the purpose was for including those frauds in the indictment.

To some extent, an indictment includes narrative intended to give context to the actual charges, often to show the scope of the criminality alleged. So for instance this indictment says that Manafort and Gates were paid “tens of millions of dollars” by the Ukrainians, and it alleges that the defendants moved “more than $75,000,000” through their undisclosed offshore accounts. Neither fact is directly relevant to the actual criminal charges, although both facts give those charges context, showing that the defendants’ fraud was massive.

The indictment charges Manafort and Gates with failure to disclose their Ukrainian income, and the indictment describes the mortgage frauds as a means to use the undisclosed income to increase Manafort’s access to cash without disclosing the income. So maybe this section of the indictment was included as a piece of context for the actual charges.

But another reason that prosecutors include facts in indictments is to serve as a predicate for additional charges to be filed later. Defrauding a bank would not ordinarily be a federal crime, but the New York State attorney general and the Manhattan district attorney are known to be investigating Manafort. As it happens, Manafort’s Soho property is in both New York State and Manhattan. Stay tuned.



The Algerian-French film Z, directed by the Greek director Konstantinos Gavras, was released in 1969. It earned critical praise and did well in American theaters, especially, in those days, for a foreign film. Z was the first of very few movies ever nominated for Oscars in both the best picture and best foreign language film categories. It won best foreign film, but lost best picture to Midnight Cowboy.

I didn’t see Z in a theater; I saw it on TV a few years after its initial release, sometime in the early to mid-1970s, when I was in high school or college. I remember the movie as a gripping political thriller. And I remember its crushingly pessimistic ending.

In well more than 40 years since I saw Z, I never came across it again, on any TV channel, broadcast or cable. But internet streaming has come to the rescue – you can find Z on Amazon or iTunes; Rotten Tomatoes gives Z a 95 percent rating.

The movie allegorically tells the story of the 1963 assassination of the Greek leftist politician, Grigoris Lambrakis. A leftist member of the Greek parliament, Lambrakis was a pacifist and a prominent opponent of the right-wing government. Lambrakis organized a peace march in April 1963, but police intervened, banned the demonstration, and arrested most of the marchers. Lambrakis enjoyed parliamentary immunity, so he was not arrested, and he marched the planned route by himself, winning popular attention and admiration. A month later he was assassinated by right-wing thugs.

Z takes its name from a popular Greek protest slogan that means “he lives.” The movie tells Lambrakis’s story without naming him or his country; the Lambrakis figure is simply The Deputy. The Deputy is attacked on his way to give a speech advocating nuclear disarmament, but he escapes serious injury and delivers the address. Leaving the hall, he is attacked again. The second attack proves to be fatal; the government covers up the assassination with the story that The Deputy was hit by a drunk driver.

The bulk of the movie narrates the unraveling of the cover-up. The hospital that performs The Deputy’s autopsy isn’t controlled by the right-wing government, and a journalist and the investigating magistrate piece together the truth. Ultimately criminal indictments are issued against not only the thugs who carried out the hit but also against the high-ranking military officers who directed it.

The action of the movie ends with a moral victory: vindication for truth, justice and hope. The rule of law has successfully withstood a conspiracy against democratic freedoms; good has triumphed. Facts matter.

But an epilogue that tells us in quick order that the prosecution is short-circuited after the prosecutor is mysteriously removed from the case and several key witnesses die under suspicious circumstances. The Deputy’s close associates die or are deported, and the journalist is jailed for disclosing official documents. Although public disapproval drives the right-wing government to resign, the military seizes power in a coup before elections can be held. The military government bans progressive art, music, literature – and the term “Z.”

I saw Z during the Watergate era, either shortly before Richard Nixon’s resignation or right after. I knew nothing about Grigoris Lambrakis or Greek politics, but I was a complete Watergate junkie. I thought the movie was an allegory for the Watergate cover-up, but with a different ending than happened in real life. I took Z as a lesson in how Watergate might have ended up – not with Nixon’s disgrace but with an end to American democracy.

The great Chicago Sun-Times film critic Roger Ebert would have understood my teenaged interpretation. Ebert’s formulation was that Z “is no more about Greece than The Battle of Algiers was about Algeria”; for Americans, Ebert said, Z is “is about the My Lai massacre, the killing of Fred Hampton, the Bay of Pigs.” Z “is about how even moral victories are corrupted. It will make you weep and will make you angry. It will tear your guts out.”

Ebert reviewed Z in 1969, but he would have agreed that the movie could have been about Watergate, had Watergate ended differently. Nixon’s chief-of-staff, Alexander Haig, a career military officer who had risen to four-star general, played an important role in easing Nixon from office, and, at least as important, in keeping Nixon from reaching around the chain of command to give any orders directly to the military. Watergate could easily have ended differently.

I am an optimist by nature, so I am predisposed to the hope that Donald Trump’s presidency will prove to be an aberration, the last gasp of the white majority – a white majority desperate to retain its social, political and economic predominance; a white majority lashing out in fear that as a minority it will be treated as badly as it has treated minorities.

But despite my natural optimism, I am dogged by the worry that Trump may represent the new normal – that America’s days of e pluribus unum may be over, to be replaced by an unending war of tribe against tribe, a zero-sum game of rule or die, a regime in which individual rights exist at the convenience of the tribe then in power and in which power is transferred not by peaceful election but by rebellion and conquest.

In that regime, facts don’t matter; truth doesn’t matter; justice doesn’t matter. All that matters is taking power for your tribe and keeping it from other tribes.

New York Magazine this week published in its on-line daily an article by the political commentator Jonathan Chait, about what Chait calls “alt-collusion.” Alt-collusion is the Trump counter-charge to allegations that he or members of his campaign colluded with the Russian government to subvert our 2016 presidential election.

The alt-collusion counter-charge, Chait explains, “centers on the role of Christopher Steele, a respected retired British intelligence officer turned private investigator, and Fusion GPS, the firm for which he worked.” Fusion GPS was originally retained by an as-yet-unidentified Republican seeking to discredit Trump’s candidacy for the Republican nomination. After Trump won the nomination, Republican funding ended, and Fusion GPS shopped the project to representatives of the Hillary Clinton campaign for use in the general election. We now know that a law firm that represented the Clinton campaign took Fusion GPS up on its offer and continued to finance Steele’s investigation.

Fusion GPS is an American firm, and it’s not yet known whether the Clinton campaign law firm knew that Fusion had subcontracted the research to a British citizen. The law firm maintains that the Clinton campaign was not informed about the Fusion GPS retainer, and the Clinton campaign says it had no knowledge of Steele’s work. In any event, Steele compiled the infamous “dossier” that, as Chait describes it, alleges “a web of corrupt ties, including blackmail, between Trump, his inner circle, and the Kremlin.” The FBI investigated and verified at least some of the allegations in the dossier. Although the Clinton campaign law firm got some of the information contained in the dossier before the election, it appears that the firm never got the actual dossier. And the law firm stopped paying Fusion GPS when the election campaign ended.

The alt-collusion theory takes these facts and wraps them in a misty cloud of fantasy. Obviously, Steele got his information on sources with Kremlin connections. The alt-collusion theorists say that makes Steele a Russian government agent, and that his work for Fusion GPS, which was paid for by a Clinton campaign law firm, thus constituted collusion between the Clinton campaign and the Russian government to rig the American presidential election.

Furthermore, the FBI investigated and “verified” some of Steele’s allegations. Since everyone knows (since Trump says so) that the Steele allegations are outlandish fabrications, then the FBI that “verified” those allegations had to be in on the collusion. Therefore a full investigation into American collusion with the Russian government has to include investigation of the FBI’s role in that collusion, and the role of the FBI’s then-director, James Comey.

Finally, since the current Department of Justice special counsel in charge of the Russia investigation, Robert Mueller, is friendly with Comey, then Mueller has a conflict of interest and can no longer lead the Russia investigation; he must resign or be fired.

Chait points out two of the “massive flaws” in the alt-collusion story, the “confounding facts that the theory of alt-collusion avoids.” For instance, Russian hacking of Democratic National Committee e-mails constituted a serious crime. There is substantial circumstantial evidence that Trump campaign representatives may have coordinated with Wikileaks to maximize the political damage that release of those stolen e-mails would inflict on the Clinton campaign.

By contrast, it is perfectly lawful for an American campaign to contract for the provision of research services – both directly, with Fusion GPS (which is an American company) and indirectly, with Christopher Steele, a British citizen.

Chait also points out that, whereas the Russian social media propaganda machine worked hard and spent substantially to amplify the effect of the leak of the e-mails it had stolen, the Russian government ardently disavowed the Steele dossier denies the truth of Steele’s allegations.

When Trump’s son, son-in-law, and campaign manager were revealed to have met with Russian government representatives, Trump dismissed the matter with the claim that it was mere opposition research, which everybody does.

There is a big legal difference between that meeting and the Fusion GPS contract. Trump Jr. was brought to the meeting with the promise of delivery of information useful to the Trump campaign, the representation that the information came from the highest levels of the Russian government, and the statement that the meeting was part of a larger Russian government effort to assist the Trump campaign. (Trump Jr. quite tellingly, I think, registered no surprise about those statements.)

American political campaigns are allowed to buy things from foreigners, but they are not allowed to receive donations from foreigners. Receiving information, or anything else of value, for free from a foreigner constitutes a misdemeanor violation of federal election laws. Agreeing to receive information from a foreign government, explicitly offered as part of that government’s effort to influence the outcome of an American election, verges very close to conspiracy to commit espionage.

By contrast, contracting with an American firm to buy opposition research is perfectly legal. Even if the Clinton campaign law firm knew that Fusion GPS had subcontracted the research to a British citizen, paying for research services is simply not the same as receiving information as a campaign contribution – the latter is prohibited, the former is not. (If it were otherwise, it would be illegal for American political campaigns to celebrate primary victories with Champagne; the retailer might be American, but the producer and original seller is decidedly not.)

There is also a big difference politically. To whatever extent the Trump campaign worked with Russian government representatives, they were working with a hostile autocratic regime. The Clinton campaign law firm retained Fusion GPS, which subcontracted with a British citizen, not with the British government. Britain is perhaps America’s closest ally, not a hostile power, and wasn’t interfering in our presidential elections.

Chait points out that the factual implausibility of the alt-collusion story is beside the point. Trump’s flash of genius is his discovery that white Americans can be persuaded of almost anything if it is told to them by someone who promises to defend white predominance – someone who assures them that their tribe is in charge and will stay in charge. Barack Obama was born in Kenya, Trump’s foundation is noble but Clinton’s is corrupt, Clinton colluded with Russians but Trump did not, up is down, hot is cold, and climate change is a hoax.

Exposure of Russian interference in our elections has been a great moral victory. The conduct of a serious investigation, by a Republican special counsel in a Republican-led Department of Justice, into the extent of Russian entanglements by Trump, his business interests, his family and his campaign, has been a great moral victory.

The question remains, how does this end? Will these moral victories be corrupted, as in Z, or will the rule of law prevail, as in Watergate? My dispositional optimism is deeply shaken by the alt-collusion story.


%d bloggers like this: