Red-State Democrats' Fears Over Kavanaugh Vote May Be Overblown

By Jane Mayer, The New Yorker

15 July 18

udging from their first reactions to President Trump’s pick of Brett Kavanaugh for the Supreme Court, Republicans are betting that the confirmation fight is going to prove an election boon. In West Virginia and Missouri—two of a handful of conservative-leaning states in which Democratic Senate incumbents face difficult reëlection battles—Republican challengers are already using the issue as a political cudgel. On Monday, in Missouri, Senator Claire McCaskill’s likely Republican opponent aired an advertisement attacking her on the issue the instant that Kavanaugh was nominated. And, in West Virginia, Senator Joe Manchin’s Republican opponent, Patrick Morrisey, predicted that Manchin would eventually cave to Republican pressure, “because at the end of the day, this is about his political survival.” Otherwise, Morrisey said, “he will be assuredly going down in defeat in November.”

The question of whether centrist Democrats will pay a price for opposing Kavanaugh could be at the heart of which way the nomination goes. Given the Republicans’ 51–49 majority in the Senate, Democrats will need every Party member’s vote, plus at least those of two Republicans, to block the confirmation. Democrats have pinned their hopes on getting the votes of two pro-choice Republican women in the Senate: Susan Collins, of Maine, and Lisa Murkowski, of Alaska, both of whom previously broke with their party to support the Affordable Care Act. But both have so far remained noncommittal about Kavanaugh, who has a polished, decade-long record on the U.S. Court of Appeals in Washington, D.C.

The Democratic senators facing tough reëlections in red states have been noncommittal as well. On Thursday, McCaskill, for instance, told a reporter, “If you’re going to ask me questions about the Supreme Court nominee, I have absolutely nothing to say.” Political experts in Missouri whom I spoke to were split over the political ramifications if she votes against Kavanaugh. Jay Felton, a well-connected Republican lawyer and farmer in the state, told me that he thinks the Supreme Court fight “creates a nice, clean issue” on which her likely opponent, Josh Hawley, “can differentiate himself.” Felton also thinks Hawley “can use it to motivate his base.” But Adam Sachs, a lawyer and lobbyist in Kansas City who has worked as a Democratic congressional aide in the past, thinks the peril is overblown. “I think it matters, but I’m not sure how much,” he argues. “It’s not determinative. Voters already know she voted against Gorsuch, so it wouldn’t be a surprise.”

While McCaskill opposed Neil Gorsuch, Trump’s previous nominee to the court, three of the other Democratic senators who are facing tough reëlections this year in Trump-friendly states—Joe Donnelly, of Indiana; Heidi Heitkamp, of North Dakota; and West Virginia’s Manchin—defected from the Democratic side to confirm Trump’s choice last year, putting them under intense pressure from both sides now.

“No question, it’s an uphill battle for Kavanaugh’s opponents—the Republicans have more votes, but I think it’s winnable,” Ron Klain, a Democratic lawyer in Washington and former Senate Judiciary Committee staff member who is the veteran of numerous Supreme Court confirmation fights, told me.

If the past is prologue, what looks like the politically safest course now may turn out to be just the opposite later. Certainly, this was the lesson of 1991, when eleven Democrats defected from their side and voted to confirm George H. W. Bush’s Supreme Court nominee Clarence Thomas. Several Democrats evidently hoped to placate voters in their home states who were incensed at Anita Hill after the previously unknown law-school professor accused Thomas, her former boss at the Equal Employment Opportunity Commission, of sexually harassing her on the job. At the time, for centrist Democrats, casting a vote in favor of Thomas seemed the course of least political resistance.

But Klain, who was an aide on the Senate Judiciary Committee at the time, recalls that, instead, the Thomas confirmation triggered an unexpected political backlash, particularly among women who felt that the men in the Senate had disrespected women’s rights. The following year, a wave of female candidates ran for office, much as they are running now. In fact, 1992 came to be known as “the year of the woman.” Unexpectedly, several of the Democratic senators who had voted to confirm Thomas, including Alan Dixon, of Illinois, and Wyche Fowler, of Georgia, found themselves defeated. Dixon, in fact, was knocked out in the Democratic primary by a black female candidate, Carol Moseley Braun. Others, such as Chuck Robb, of Virginia, were reëlected but never fully escaped the cloud that hung over their records. Even Joe Biden, the Democratic chairman of the Judiciary Committee, who opposed Thomas’s confirmation, but whose treatment of Thomas was seen by critics as too deferential, continues to be dogged by it almost three decades later.

“The Senate had a revolution because of that vote,” Klain said. “All of these people wrongly believed that their constituents wouldn’t forgive a no vote. But it was exactly the opposite,” he said. “I don’t know anyone who suffered because they voted no on Clarence Thomas. But I know plenty who did because they voted yes.”

Nan Aron, the president of Alliance for Justice, a progressive group, who was also involved in the Thomas confirmation fight, agrees. “The conventional wisdom is that a vote against the nominee will hurt Democrats, but the reality that we’ve seen in the past is that it’s sometimes the right vote for Democrats politically. Votes for Thomas deflated the Democratic vote” afterward in some Senate races. As for this year, she says, “Look—Democrats in red states need the progressive base. You don’t need them staying home.”

On Saturday, two progressive groups—Demand Justice, a new organization focussed on judicial issues, and the Center for American Progress—planned to release a poll, conducted in the battleground states of Indiana, Missouri, North Dakota, and West Virginia, that seeks to convey a similar message to vulnerable Democratic senators.

According to the poll, conducted by Hart Research Associates, Democratic senators may actually be better off politically, even in states that went overwhelmingly to Trump in 2016, if they cast votes against Kavanaugh. The polling data, which was gathered between June 30th and July 5th from about twelve hundred voters in those four states, are, of course, self-serving. But it makes the case that, if Democratic senators in conservative states frame their opposition to Kavanaugh clearly as a matter of conscience, based on one of three possible arguments, a majority of voters will likely accept and support the decision. The survey shows that fifty-four per cent of voters polled in these states said they would approve of a Democratic senator opposing Trump’s choice for the Supreme Court if it protected the independence of the Court as a check on Presidential power. The same slim majority of voters would support their Democratic senator opposing a Trump nominee if his or her opposition was based on the nominee having “a record of siding with corporations” and “consistently ruling against workers’ rights.” Additionally, fifty-two per cent of these voters said they would approve of their senator opposing any nominee who was “likely to overturn/eliminate protections” in the Affordable Care Act for those with “pre-existing conditions, people over age fifty,” and“women.”

According to the poll, two-thirds of the voters in these states, including a majority of Republicans, want the Supreme Court to uphold protections in the health-care act for people with preëxisting medical conditions. Democratic voters, of course, overwhelmingly take this position, and support their senators opposing a Supreme Court nominee on these grounds, but, interestingly, the poll suggests that sizable majorities of those categorized as “swing voters” and “independents” share the view.

Democrats, who are casting for an effective line of argument against Kavanaugh, see the health-care issue as their best bet to date. They claim his record shows a predisposition against the Affordable Care Act, and they argue that, if confirmed, he may well have the opportunity to deal the deciding blow to the law. There is an ongoing constitutional challenge to the health-care law that was filed in Texas by seventeen state attorneys general and three governors in Republican states. Recently, the Trump Administration’s Justice Department informed the court that it would not intervene to defend the existing law. Legal experts consider the case a long shot, but it nonetheless stands a chance of reaching the Supreme Court, raising the stakes around Kavanaugh.

Outside advocacy groups, stocked with “dark money” contributions from undisclosed donors, are lining up to turn the court fight into a full-blown political brawl. One such group, the conservative Judicial Crisis Network, pledged ten million dollars in support of Gorsuch’s confirmation and has already spent $1.4 million to confirm Kavanaugh. Meanwhile, Demand Justice has committed to spending five million dollars against Kavanaugh’s confirmation. On Friday, Demand Justice launched its first round of television ads aimed at the fence-sitting Democratic senators. (The group previously aired ads aimed at the undecided moderate Republicans, Collins and Murkowski). The new ads are aimed at pressuring Donnelly, Heitkamp, and Manchin. Running in the senators’ home states, the thirty-second spots thank the members for their past support for the health-care act, but then turn more ominous. As the Indiana version of the ad says, “Thanks to Senator Donnelly, more than 2.7 million Hoosiers with preëxisting conditions still have access to affordable health care. But those protections are at risk again, this time in the courts.” Growing darker, the ad warns, “Kavanaugh refused to uphold key patient protections in the past, and, if he joins the Court, he could vote to end these protections for good.”

In Indiana, where Donnelly, a conservative Democrat in an even more conservative state, is very much in the undecided camp on Kavanaugh, Kip Tew, the former state Democratic Party chairman who is now a lobbyist, told me that, contrary to what most people think, “I think he’s got an easy vote to make.” He argued that conservatives were already against Donnelly, so he’d never win their votes anyway, and the centrist votes he needs won’t be affected by the Supreme Court fight. “The middle doesn’t care about this vote—they care about their paychecks and jobs,” he told me. “Most people can’t even name all nine Justices!”

Indictment of Russian Intelligence Operatives Should Quell Harebrained Conspiracy Theories on DNC Hack

By James Risen, The Intercept

15 July 18

ith his latest indictments on Friday, Special Counsel Robert Mueller drove a particularly sharp nail into the coffin of the conspiracy theories surrounding the cyber-attack on the Democratic Party and Hillary Clinton’s presidential campaign during the 2016 election.

Spoiler alert: The Russians really did do it.

It wasn’t Seth Rich, the murdered young Democratic staffer whose name has been dragged through the mud by countless fringe theorists, and whose parents are now suing Fox News for propagating such lies.

It wasn’t an inside job by the Democrats themselves, as a group of out-of-touch former intelligence officials tried to convince themselves and the world.  The Mueller investigation isn’t a “witch hunt,” as Donald Trump and his loyalists have repeatedly claimed.

Instead, Mueller’s prosecutors charged 12 Russian intelligence officials, listed by name, rank, and job title, with engineering the hack of the Democrats during the election. In damning detail, the indictment makes the case that the hack of the Democratic Party was a highly-structured, officially sanctioned covert action operation conducted by Russian intelligence, namely the GRU, Russia’s military intelligence arm. If the allegations hold up, there can no longer be any question as to whether the cyberattack was ordered and approved by the Putin government.

The indictment also adds heft to the longstanding intelligence community consensus that the target of the covert action was Clinton and her presidential campaign, and that Moscow’s objective was to damage her campaign and help Donald Trump win. After stealing thousands of emails and other documents, the Russian intelligence officers then set up cyber fronts – DCLeaks and Guccifer 2.0 – to disseminate the material through WikiLeaks and the American press to try to influence the presidential election. The American media eagerly lapped it up without asking many questions about where the leaks were coming from.

“The object of the conspiracy was to hack into the computers of U.S. persons and entities involved in the 2016 U.S. presidential election, steal documents from those computers, and stage releases of the stolen documents to interfere with the 2016 U.S. presidential election,” the indictment states.

Perhaps the strongest evidence of possible collusion between Trump and Russia included in the indictment relates to an odd and inflammatory statement that Trump made in the midst of the campaign. On July 27, 2016, Trump publicly implored Russia to find and release Clinton’s emails that had supposedly been deleted from her personal account while she was Secretary of State. Those deleted emails had, by then, become part of the public controversy over the investigation into Clinton’s use of a private email system while she was at the State Department in the Obama administration. Trump said: “Russia if you’re listening, I hope you’re able to find the 30,000 emails that are missing.”

Friday’s indictment raises new questions about whether the Russians were, indeed, listening. It says that “on or about July 27, 2016, the [Russians] attempted after hours to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.”

The indictment also provides details of online conversations between the Russians, using the Guccifer 2.0 persona, and “a person who was in regular contact with senior members” of Trump’s presidential campaign. That person has been identified as Roger Stone, a controversial longtime Trump ally. In August 2016, according to the indictment, the Russians, using the Guccifer 2.0 front, wrote to Stone: “do u find anyt[h]ing interesting in the docs i posted?” Days later, Guccifer 2.0 wrote again to Stone, saying “please tell me if i can help u anyhow … it would be a great pleasure to me.” In September, Guccifer 2.0 wrote again, this time asking, “what do u think of the info on the turnout model for the democrats entire presidential campaign.” Stone responded tersely: “[p]retty standard.”

The indictment also delves into the role of WikiLeaks, identified only as “Organization 1,” which acted as an intermediary between Guccifer 2.0 and the American press. While it doesn’t answer the critical question of whether WikiLeaks knew that the hacked materials were coming from the Russians, the indictment makes clear that WikiLeaks wanted materials damaging to Clinton’s campaign.

“In order to expand their interference in the 2016 U.S. presidential election,” the indictment says, the Russians “transferred many of the documents they stole from the [Democratic National Committee] and the chairman of the Clinton campaign to Organization 1.” The Russians, “posing as Guccifer 2.0, discussed the release of the stolen documents and the timing of those releases with Organization 1 to heighten their impact on the 2016 U.S. president election.”

In June 2016, WikiLeaks sent a private message to Guccifer 2.0 asking the persona to send “any new material [stolen from the DNC] here for us to review and it will have a much higher impact than what you are doing.” In July, WikiLeaks sent another message saying, “if you have anything hillary related we want it in the next tweo [sic] days prefable [sic] because the DNC [Democratic National Convention] is approaching and she will solidify bernie supporters behind her after. … we think trump has only a 25% chance of winning against hillary … so conflict between bernie and hillary is interesting.”

WikiLeaks released more than 20,000 emails and other documents stolen from the Democratic National Committee network three days before the start of the Democratic convention.

The indictment leaves plenty of questions unanswered. For example, it says that in August 2016, a congressional candidate contacted Guccifer 2.0 asking for stolen documents. Guccifer 2.0 complied, sending documents about the candidate’s opponent. But the indictment doesn’t identify the congressional candidate who sought the information.

At the same time, it purports to provide minute-by-minute details about how the Russians engineered their hack, how they distributed the information to WikiLeaks, reporters, and others, and even how they paid for it. Indeed, one of the most interesting sections of the indictment alleges that the Russians used bitcoin to anonymously finance different aspects of their cyber-attack.

The Russians “principally used bitcoin when purchasing servers, registering domains, and otherwise making payments in furtherance of hacking activity,” the indictment states. “Many of these payments were processed by companies located in the United States that provided payment processing services to hosting companies, domain registrars, and other vendors.”

But the indictment strongly suggests that even as the Russians hacked the American political system, the U.S. intelligence community was hacking the Russians in return. It includes accounts that appear to have been drawn from real-time U.S. intelligence surveillance of Russian computers watching, searching, and infecting with malware computers belonging to Democratic operatives and staffers.

For example, the indictment explains how the Russians intentionally deleted logs and computer files to hide their electronic footprints in the DNC system and states that “on occasion, the [Russians] facilitated bitcoin payments using the same computers that they used to conduct their hacking activity, including to create and send test spearphishing emails. Additionally, one of these dedicated accounts was used by the [Russians] in or around 2015 to renew the registration of a domain (linuxkrnl.net) encoded in certain X-Agent malware installed on the DNC network.”