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Today’s read: 8 minutes.
A judge rules that Don McGahn must testify, a question about ranked-choice voting and some very interesting numbers on impeachment.
Don McGahn, former White House counsel for President Trump. Photo: Gage Skidmore | Flickr
A number of gracious readers have written in asking when Tangle will move to paid subscriptions, and some have even said they would be happy to support the newsletter by paying. I’m so grateful for all the support. Right now, the plan is to move to paid subscriptions in February, around the time voting starts in the 2020 primary, and to charge about $5/month — or half the price of a cocktail in New York City. There are a lot of factors that will go into that timing, so nothing is final, but enough people have asked that I figured it was worth sharing where my current thinking was. Thanks so much, again, for all the support, and feel free to write in with any thoughts or feedback! For now, the best way to support Tangle is to share it with friends.
Former New York City mayor and billionaire Mike Bloomberg is in the race, and he has a lot more money than everyone else. So far, he’s using it to spray ads across the country on television. Here is a look at his pitch to voters:
Yesterday, I answered a question about the timing of impeachment and how it may impact the election. Later in the day, Rep. Adam Schiff (D-Ca.), who chairs the intelligence committee, said he plans to send the House’s report on Trump to the House Judiciary Committee shortly after Thanksgiving recess. Democrats are still not revealing their planned timeline, as they don’t want to box out key witnesses who may come forward to testify. But all indications are a vote on impeachment could happen before next year.
What D.C. is talking about.
Don McGahn. The former White House counsel was the most cited witness in Robert Mueller’s report on alleged Trump-Russia coordination during the 2016 election. But when McGahn was called forward to testify last May about Trump’s alleged obstruction, he defied a subpoena at the direction of the White House, citing absolute immunity from discussing his official duties for the president. The House sued in August, and a ruling finally came down yesterday. A federal judge ruled that the former White House counsel must testify before House impeachment investigators about President Trump’s efforts to obstruct Robert Mueller. The judge ruled that it was “fiction” that senior presidential aides were immune from having to talk about their official duties. “Presidents are not kings,” Judge Kentanji Brown Jackson wrote. “They do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”
The ruling is at the intersection of the Ukraine and Russia investigations. Because several witnesses in the Ukraine impeachment hearings have used a similar defense McGahn used to avoid complying with subpoenas, House Democrats are saying Judge Jackson’s ruling should apply to them, too. The Justice Department appealed the ruling this morning. If the court decides to halt the order until another decision is made, then McGahn and other witnesses will likely run out the clock until the impeachment process moves forward without him. But if the court rules that the opinion should stay in place until an appeal is resolved, McGahn’s lawyer says he will comply with the ruling and appear before Congress.
What the right is saying.
The White House immediately issued a rebuke of the ruling, saying it “contradicts longstanding legal precedent established by Administrations of both political parties.” “We will appeal and are confident that the important constitutional principle advanced by the Administration will be vindicated,” the statement said. Others on the right said the same, noting that both Obama and George Bush took the position that Trump is now. Bush’s defense, which was intended to keep his White House counsel Harriet Miers from appearing after a subpoena, was knocked down by a federal judge in 2008. But the ruling was resolved before an appeals court weighed in. So in 2014, the Obama administration took the same position Bush did to keep David Simas, an assistant to the president, from testifying before the House. On Fox News radio, Mark Levin also invoked Obama, but he invoked him to claim Judge Jackson — who Obama appointed — was a “radical leftist” and said “this is truly outrageous.”
What the left is saying.
This ruling is seen as a big win. Even though the Justice Department has appealed, Jackson’s ruling was strong enough to help Democrats make the case that the Trump administration has been obstructing justice by instructing witnesses not to testify. House Democrats cheered the ruling, saying it reinforced that “nobody is above the law” and widely sharing Judge Jackson’s quote that the president is not a king. “With today’s ruling, the courts have made it absolutely clear – first with Harriet Miers and now with Don McGahn – that absolute immunity is not a legitimate basis by which to prohibit senior White House officials from testifying before Congress,” Rep. Adam Schiff said. Democrats believe that the ruling means former National Security Adviser John Bolton should testify in the Ukraine matter, as Jackson wrote in her opinion that the law didn’t just apply to McGahn, but “other current and former senior-level White House officials” who received a subpoena from Congress.
As I’ve noted here before, one of the most common questions I get from people is “how can the Trump administration defy subpoenas.” Jackson seemed to answer this question yesterday by saying “they can’t.” But the ordeal does illustrate why Democrats have opted not to go the courts to force testimony: this took nearly four months to sort out once the House sued McGahn. And he initially defied a subpoena last May, six months ago. The ruling also put Democrats in quite the bind on impeachment and brings fears they may fumble this opportunity to the surface. Since they’ve already decided to move forward as quickly as possible, the ruling — which should be a huge victory for Democrats — could end up being inconsequential. A Justice Department appeal has already been filed, and it seems possible the court could delay the ruling while the appeal is sorted out. That means, legally, McGahn can avoid testifying while the appeal is sorted through. Since Democrats want to apply this ruling to witnesses in the Ukraine impeachment case, it also means those witnesses can wait for the appeal to be sorted out. And since Democrats have made it clear they want to vote on articles of impeachment before the new year, the witnesses know all they have to do is stop a definitive ruling from coming down before 2020 to avoid testifying.
On top of all that, even if McGahn were to testify, Jackson did not rule on executive privilege. In other words, McGahn could appear before Congress and just invoke executive privilege anytime a question about his communication with Trump is asked. All of this is a good look into how the executive branch and presidents in general have concentrated power inside the White House in a way that helps them avoid Congressional oversight. Bush and Obama both did it, and now Trump is, too. And it’s a great reminder why our country would be well-served to take some of that oversight power back.
Your questions, answered.
Reminder: Every day, people write into Tangle to ask questions. All you have to do to submit a question is reply to this email, ask a question, tell me where you’re writing from and I’ll get back to you as soon as I can.
Q: Hey Isaac, I voted in San Francisco and noticed that on my ballot I was able to essentially stack rank the candidates scoring them from 1-5. So you'd rank who you liked the most at 1 and the person you liked the least at 5. I remember listening to some podcasts about this form of voting and was really intrigued at the time, felt it might bridge the gap of being in a two-party political system and make room for others to compete (ie. Independents, Green Party, Libertarian, etc.). What's your take on this voting format and will we ever see it at the federal level or is this another one of those things that will never change because it'd potentially change the ability for those lawmakers to get elected?
- Dan, San Francisco, CA
Tangle: Thanks for writing in, Dan! The voting system you encountered in San Francisco is called “ranked-choice voting,” and it’s actually a trend that’s quickly spreading across the U.S. In fact, in New York City, I voted on a resolution to begin a ranked-choice voting system the same week you voted using the system in San Francisco. The measure passed (I won’t say which way I voted for it) in the election, and New York became the largest population of voters to adopt the practice in the U.S.
In New York, the system works by asking voters to rank their choices 1-5 just like in San Francisco. For a candidate to win, they have to get a majority — more than 50% — of the vote. If no candidate does, the worst performing candidate is eliminated and their votes are redistributed to the voter’s second choice. This process is repeated until a majority winner comes out.
People making a push for ranked-choice voting make a pretty compelling case. What’s interesting, though, is that folks on both sides support it for different reasons. Everyone seems to agree that it empowers voters by breaking you out of the traditional two-party political trap where you have to pick the lesser of two evils. But advocates for more centrist politics have backed it by saying it would moderate people. In ranked-choice voting, they say, you can put the candidate you really like at the top of a ballot, scoring them extra points, while potentially casting a ballot for a “safer” candidate in the second or third choice. A lot of people have made the case that this will bring political parties more to the center, or make them more moderate because it will force candidates to appeal to a broader majority instead of just their extreme base. “Hopefully that will create a healthier conversation in the political realm than we’ve had when everybody’s shouting at each other from the extremes,” Kathy Wylde, who represents business leaders in NYC, told Politico.
At the same time, some more leftist progressives have said the change would benefit “insurgent candidates” who can choose their favorite candidate without fear that their vote is going to someone who can’t win. Those advocates say ranked-choice voting will allow people to vote their minds and list a safer candidate in second or third, that way if their top choice doesn’t win they don’t feel like they just wasted a vote that will benefit a candidate they don’t agree with at all. Both sides have also said the system — implemented in San Francisco (where you voted) and Minneapolis — has helped discourage negative campaigning because candidates avoid alienating rival voters.
There hasn’t been a real organized opposition to ranked-choice, according to Politico, but there have been plenty of op-eds making the case against it. One, in The New York Daily News, made a strong case that ranked-choice voting would stymie Latino and black candidates. By eliminating candidates at the bottom and dolling out their second-ranked votes, the argument goes, the system gives an unfair advantage to more traditional cookie-cutter candidates. The op-ed cited actual election results, noting that in 2013 Letitia James became the first woman of color to hold office as a public advocate. But the election ended in a bitter runoff between James and a white candidate, and the bottom three candidates in polls were all people of color. The columnist argues that votes for those candidates could have been re-distributed to the “safe” bet in second place, which would have stopped James’ election from happening.
Another New York Daily News column made the opposite case some progressives have, which is that a candidate’s perceived electability will give them a better chance of winning. Rather than just encouraging people to vote their favorite number one, this argument goes, this voting system will help those viewed as electable rake in 2nd and 3rd choice votes, ultimately handing them a victory whenever the top candidate doesn’t win 50% of the vote.
The score certainly hasn’t been settled on ranked-choice voting, but given that it’s now law of the land in San Fran, NYC and Minneapolis, I imagine it will be put on the ballot in dozens of more cities and states over the next few years.
A story that matters.
Prominent Democratic leaders are increasingly calling “Medicare for All” proposals a political liability, setting up the prospect of serious friction between the left-wing base and it’s more centrist establishment voters. New Kaiser Foundation polls find that a majority of Americans are in favor of health insurance from a single government plan, and more than 75 percent of Democrats favor Medicare-for-All. But in recent weeks, top Democratic leaders like Joe Biden, Nancy Pelosi and Barack Obama have said the proposal would hurt Democrats down the ballot. You can read more from The New York Times here and check out some polling graphics from Kaiser below.
10. The number of presidents who have lost re-election bids for a second term.
3. The number of presidents who have lost re-election bids for a second term since World War II.
66. The number of days until the Iowa caucuses, the first voting in the Democratic primary.
40-53. The rate men support-oppose impeachment, according to a new CNN poll.
61-34. The rate women support-oppose impeachment, according to a new CNN poll.
Have a nice day.
Yesterday, President Trump signed an anti-animal cruelty bill into law. The law makes animal cruelty a federal felony. Advocates, which include Democrats and Republicans, say the bill will not only protect animals but also protect people, as “deranged individuals” who will do serious harm to innocent animals often move on to committing acts of violence against humans. The bill expanded on a 2010 law signed by President Barack Obama that banned videos showing animals being intentionally tortured. You can read more about its passage here.