Nov 9, 2018

Axios AM

By Mike Allen
Mike Allen

⚡ Happy Friday! Breaking: "In a harbinger of potentially big changes for Medicare, seniors in many states will be able to get additional services such as help with chores, safety devices and respite for caregivers next year through private 'Medicare Advantage' insurance plans." (AP)

📺 I hope to see you Sunday at 6:30 p.m. ET/PT for Episode 2 of "Axios on HBO." (See the full-page ad in today's N.Y. Times.)

1 big thing: Pressure mounts over Trump's acting A.G.
Protesters gather in front of the White House yesterday as part of a nationwide "Protect Mueller" campaign demanding that acting attorney general Matt Whitaker recuse himself from overseeing the probe. (Manuel Balce Ceneta/AP)

Matt Whitaker has been acting attorney general for just one full day but he's already under extreme pressure, Jonathan Swan reports:

  • Trump, who shocked even some of his senior most staff with the hasty timing of his firing of Jeff Sessions, threw Whitaker into an immediate political and legal storm.
  • The White House expected opposition from Democrats but the blowback is widening and now includes a growing body of conservative legal opinion.
  • Within hours of his appointment on Wednesday, Congressional Democrats began calling on Whitaker, a Trump loyalist, to recuse himself from overseeing the Mueller investigation because of comments about the Mueller probe that Whitaker made last year before he became Sessions' chief of staff.
  • Whitaker wrote last year that the Mueller investigation was dangerously close to becoming a "witch hunt," and during a TV appearance reportedly imagined a scenario in which the "attorney general doesn't fire Bob Mueller, but he just reduces his budget to so low that his investigation grinds to almost a halt."
  • The N.Y. Times fronts a story by Charlie Savage, "At Justice Dept., A Boss Who Held Courts in Disdain": Whitaker "once espoused the view that the courts 'are supposed to be the inferior branch' and criticized the Supreme Court’s power to review legislative and executive acts and declare them unconstitutional."

A new problem emerged yesterday. Prominent attorneys Neal Katyal and George Conway wrote a New York Times op-ed in which they argue Trump's appointment of Whitaker is illegal because the Constitution dictates that anyone serving in a "principal role" must be confirmed by the Senate.

  • “Conway and Katyal raise valid constitutional concerns," said John B. Bellinger III, a partner at Arnold & Porter, who previously served as a senior White House lawyer and as the State Department Legal Adviser in the George W. Bush Administration." 
  • "The problem is not only that Mr. Whitaker does not already hold a Senate-confirmed position, it's not even clear that he qualifies as an Executive branch 'officer' who may be asked by the President to assume the duties of Acting Attorney General because he was not an 'officer' exercising significant authority in his position as Chief of Staff."
  • "In addition to politicizing the Department of Justice, the President is running a serious risk that any formal actions taken by Mr. Whitaker could be subject to legal challenge and declared invalid." 
  • "It would have been less controversial," Bellinger told Axios, "and less legally risky if the President had named the Deputy Attorney General, or Solicitor General, or an Assistant Attorney General as Acting Attorney General."

Trump's case: There are respected lawyers arguing that Trump is well within his legal rights to appoint Whitaker as acting attorney general, as Axios' Stef Kight and Alayna Treene report. (See their arguments.)

  • Justice Department spokeswoman Sarah Isgur Flores emailed: "The VRA [Vacancies Reform Act] was passed in 1998 and Acting Attorney General Whitaker's appointment was made pursuant to the procedures approved by Congress."

Be smart: Trump likes and trusts Whitaker, and a source close to the president told Axios he could easily imagine Trump appointing Whitaker as Sessions' permanent replacement.

  • But Whitaker's path to Senate confirmation is filled with obstacles.
2. America, 2018
People hug and pray before the procession carrying the body of Ventura County Sheriff Sgt. Ron Helus, killed in the mass shooting, leaves Los Robles Regional Medical Center in Thousand Oaks. (David McNew/Getty Images)

The dozen people shot down by a 28-year-old at the packed Borderline Bar & Grill in Thousand Oaks, Calif., was the 307th mass shooting in the 311 days of 2018, per USA Today:

  • 328 people died in those incidents, and 1,251 were injured, according to the Gun Violence Archive, a non-profit that provides online access to data about gun violence.
  • "The numbers include incidents in which four or more people were shot or killed, not including the shooters."
L.A. Times

The context, from USA Today: The California rampage "came during three weeks of hate and terror that have jolted the country: a bloodbath at a synagogue in Pittsburgh that left 11 elderly people dead and a series of 16 pipe bombs mailed to prominent Democrats, CNN and critics of President Donald Trump."

  • Thousand Oaks was "the deadliest mass shooting in the U.S. ... since 17 classmates and teachers were gunned down at a Parkland, Florida, school on Valentine's Day."
3. America, 2019

"More Latinos will serve in Congress next year than ever before — at least 42, with one House race to be decided," AP reports:

  • "Thirty-three of 44 Latino Democratic candidates and seven of 15 Latino Republican candidates won their races."

Double-header Florida recount? "Razor-thin margins in Florida's bitter races for the U.S. Senate and governor are raising the specter of possible recounts, potentially prolonging two of the most closely watched contests of the nation's midterm elections," AP reports from Tallahassee.

  • AP has called the governor's election for Republican Ron DeSantis, who holds a lead of 38,613 votes out of more than 8.2 million ballots counted — a margin of 0.47 percentage points — over Democrat Andrew Gillum (who conceded Tuesday night).
  • The race for Senate in Florida between Democratic incumbent Sen. Bill Nelson and Republican Rick Scott is still too close to call.
  • Why it matters: "The tight races underscored Florida's status as a perennial swing state where elections are often decided by the thinnest of margins."

Also undecided:

  • The Senate race in Arizona between Democratic Rep. Kyrsten Sinema and Republican Rep. Martha McSally is starting to tip into Dem terrain, per AP.
  • AP still hasn't called the Georgia governor's race between Democrat Stacey Abrams and Republican Brian Kemp (who calls himself governor-elect).
  • AP hasn't declared winners in 12 House races. (See the list.)
4. Suburbs march left, thinning out GOP wins
Expand chart
Data: CityLab; AP. Chart: Chris Canipe/Axios

This graphic shows the suburban shift toward Democrats that helps explain how they flipped the House in the midterms — and shows that even deep-red rural districts elected Republicans with smaller margins than in 2016.

  • Why it matters: With few exceptions, Dems in conventionally blue districts won by larger margins than Clinton in 2016 ... and Republicans won by slimmer margins than Trump in 2016.

How to read this chart, by Axios senior visual journalist Chris Canipe: A CityLab data project categorized every U.S. House district by the density of its neighborhoods. By comparing the margin victory for Hillary Clinton or Donald Trump in 2016 to the vote margin in the 2018 midterms, we can see which districts shifted to the left or right by comparison.

  • Districts with higher Democratic or lower Republican margins point left; those with smaller Democratic or higher Republican margins point right.
  • The color of each arrow shows who won the district on Tuesday.
5. Michelle Obama book rips Trump as "misogynist"
Michelle Obama at the University of Miami in September (Photo by Joe Raedle/Getty Images)

"Former first lady Michelle Obama blasts President Trump in her new book, writing [that] she reacted in shock the night she learned he would replace her husband in the Oval Office and tried to 'block it all out,'" per AP's Deb Riechmann:

  • In her memoir "Becoming," out Tuesday, Obama "reflects on early struggles in her marriage to Barack Obama as he began his political career and was often away. She writes that they met with a counselor 'a handful of times,' and she came to realize that she was more 'in charge' of her happiness than she had realized. 'This was my pivot point ... My moment of self-arrest.'"
  • "As the first black first lady, she knew she would be labeled 'other' and would have to earn the aura of 'grace' given freely to her white predecessors. She found confidence in repeating to herself a favorite chant: 'Am I good enough? Yes I am.'"

"Obama writes that she assumed Trump was 'grandstanding' when he announced his presidential run in 2015. ... She remembers how her body 'buzzed with fury' after seeing the infamous 'Access Hollywood' tape."

  • "She also accuses Trump of using body language to 'stalk' Clinton during an election debate. ... Trump's message, according to Obama, in words which appear in the book in darkened print: 'I can hurt you and get away with it.'"

"Obama launches her promotional tour Tuesday not at a bookstore, but at Chicago's United Center, where tens of thousands of people have purchased tickets — from just under $30 to thousands of dollars — to attend the event moderated by Oprah Winfrey."

  • "Other stops on a tour scaled to rock star dimensions are planned at large arenas from New York City's Barclays Center to the Los Angeles Forum, with guests including Reese Witherspoon and Sarah Jessica Parker."
  • "'Becoming' is part of a joint book deal with former President Barack Obama, whose memoir is expected next year, that is believed worth tens of millions of dollars."
6. Trump tightens asylum rules as caravans move north

"The Trump administration introduced new measures ... to deny asylum to migrants who enter the country illegally, invoking national security powers to curb long-standing humanitarian protections for foreigners arriving on American soil," per WashPost's Nick Miroff:

  • "The restrictions will invoke authorities used by President Trump to implement his 'travel ban' in early 2017 ... and apply indefinitely."
  • "Trump is preparing to issue a proclamation asserting the emergency powers, and the rule changes will be published [today] in the Federal Register."
  • "The measures are expected to face swift legal challenges. Immigrant advocacy groups insist that U.S. laws clearly extend asylum protections to anyone who reaches the United States and expresses a fear of persecution, no matter how they enter the country."

The context: The announcement "comes as an estimated 7,000 to 10,000 Central Americans move north through Mexico in caravan groups. Trump has demanded new tools to stop them from entering the United States."

7. U.S. to curb flavored e-cigs

"The Food and Drug Administration plans to sharply restrict the sale of most flavored pod-style e-cigarettes, effectively pulling them from most convenience stores and gas stations and requiring strict age verification controls for online sales," The Wall Street Journal's Jennifer Maloney reports (subscription):

  • "The actions, expected to be announced as early as next week, are aimed at limiting access to the e-cigarettes most popular among children, whose use is surging. Many e-cigarette companies, including market leader Juul Labs Inc., sell nicotine liquids with flavors like mango and cucumber.

P.S. New York would become the first state to ban the sale of flavored e-cigarettes, under plans by Gov. Andrew Cuomo (D) to be announced as early as next week, per WSJ's Jimmy Vielkind.

8. Amazon employees criticize deals with law enforcement

"Amazon executives defended the company’s controversial facial recognition technology at an all-hands staff meeting [yesterday] after employees raised civil rights concerns about the tech’s potential misuse," BuzzFeed's Davey Alba reports:

  • "Andy Jassy, the CEO of the company’s cloud-computing arm, Amazon Web Services, deflected employee criticisms over how Amazon has aggressively marketed its Amazon Rekognition product to law enforcement agencies across the country and US Immigration and Customs Enforcement (ICE)."
  • Jassy: "I think we're going to have people who have opinions that are very wide-ranging, which is great, but we feel really great and really strongly about the value that Amazon Rekognition is providing our customers of all sizes and all types of industries in law enforcement, and out of law enforcement."
  • "He added that he thought it was the government’s responsibility to help specify regulations around the technology.

Why it matters: "Amazon faced extensive criticism from civil rights groups, Amazon shareholders, and its own employees. ... [T]hey sounded the alarm on mass surveillance and free speech questions surrounding Amazon’s campaign to provide facial recognition tools to law enforcement agencies."

  • BuzzFeed said Amazon declined to comment.

P.S. "Apple boosts land holdings to more than 7,000 acres ... triples US property purchases for data centers during the past 2 years." (Financial Times)

9. Countries go soft on China repression
Supporters of Chinese Prime Minister Li Keqiang use a flag to try to block an Amnesty International activist's message during an official visit to The Netherlands last month. (Pierre Crom/Getty Images)

"China’s government is cracking down on dissent ... and detaining up to 1 million Muslims in 're-education camps,' but at a UN Human Rights Council review this week, many countries saw fit to applaud China’s human rights record, rather than criticize it," Axios World editor David Lawler reports:

  • Why it matters: "China’s economic power and investments around the world aren’t just increasing its global influence — they’re making countries far more reticent to speak out about Beijing's abuses at home."
  • Sophie Richardson, China director at Human Rights Watch: "We might be moving onto the next bad phase where we not only see how few countries are critical of China, but how many are willing to be cheerleaders.”

P.S. "Hong Kong barred the Asia news editor of the Financial Times from entering the city as a visitor, ... after authorities refused to renew his work visa in October, raising questions about the city’s commitment to free speech." (Reuters)

10. 1 sale thing
Hawking's documents and files were auctioned. (Frank Augstein/AP)

A wheelchair used by physicist Stephen Hawking has sold at auction for $393,000, while a copy of his doctoral thesis fetched $767,000, auctioneer Christie's told AP in London:

  • "The motorized chair, used by Hawking after he was paralyzed with motor neuron disease, ... had been expected to fetch" about $20,000.
  • "Proceeds from the chair's sale will go to two charities, the Stephen Hawking Foundation and the Motor Neurone Disease Association."
  • "Hawking's 1965 Cambridge University thesis, 'Properties of Expanding Universes,' sold for ... more than three times its pre-sale estimate."

"Diagnosed with motor neuron disease at 22 and given just a few years to live, Hawking instead died in March at 76. He expanded scientific thinking about black holes and the origins of the universe and attained celebrity status, writing best-selling books and guest starring on 'The Simpsons.'"

Mike Allen