Sep 30, 2018

Axios Sneak Peek

Welcome to Sneak Peek, our weekly lookahead for both ends of Pennsylvania Avenue, plus my best scoops. I'd love your tips and feedback: And please urge your friends and colleagues to sign up for Sneak Peek.

1 big thing: Brett Kavanaugh is "too big to fail"

Illustration: Sarah Grillo/Axios

For the White House, it's Brett Kavanaugh or bust. They have no Plan B and there's not even discussion of one, according to five sources with direct knowledge of the sensitive internal White House talks.

  • "He's too big to fail now," said a senior source involved in the confirmation process.
  • "Our base, our voters, our side, people are so mad," the source continued. "There's nowhere to go. We're gonna make them f---ing vote. [Joe] Manchin in West Virginia, in those red states. Joe Donnelly? He said he's a no? Fine, we'll see how that goes. There will be a vote on him [Kavanaugh]. ... It will be a slugfest of a week."
  • "There's no time before the [midterm] election to put up a new person," a White House official close to the process told me.

Why this matters: When Trump spoke to reporters on the South Lawn of the White House Saturday afternoon, he told them, "I don't need a backup plan," in case Kavanaugh's nomination collapses.

Between the lines: That's just as well, because the small team working to confirm Kavanaugh has not been looking for a backup candidate, let alone vetting one.

  • Sources close to the White House legal operation complained that even if they did want to rush through a new nominee, they couldn’t be sure any male nominee wouldn’t have what one called a “Kavanaugh problem.”
  • "You nominate any man and how do you guarantee ... how do you vet for that?" said that source. "For an accusation that's 36 years old? You can't."
  • There's been plenty of speculation that, after the elections, Trump could put up a female judge such as Amy Coney Barrett, who was on his shortlist last time. But two sources involved at a senior level in Kavanaugh's confirmation told me they worry Barrett might end up being "too conservative" for the pro-choice Republican senators Susan Collins and Lisa Murkowski.
  • All that speculation reflects the anger and tension filling the White House.

The bottom line: As of this weekend, sources close to Kavanaugh seemed optimistic the limited weeklong FBI investigation would give the three wavering Republican senators — Jeff Flake, Collins and Murkowski — the confidence they need to vote yes. But a week is an eternity in this political environment. And if Kavanaugh's nomination collapses, there are no easy alternatives.

2. A 4-4 court?

The US Supreme Court, Washington, D.C. Photo: SAUL LOEB/AFP/Getty Images

This scenario seemed unthinkable a month ago, but it's now being privately discussed by sources involved in Brett Kavanaugh's confirmation: If Kavanaugh falls after the FBI investigation this week and Democrats flip the Senate in November, will Trump nominate a compromise Supreme Court justice who's acceptable to Senate Democrats?

The answer: No way, according to sources with direct knowledge of the president’s thinking, both inside and outside the White House.

"If Kavanaugh doesn't make it, it all depends on the midterms," said one of those sources.

  • "If they hold the Senate, OK, regroup, put somebody up next year or maybe end of this year.
  • "But if he [Kavanaugh] doesn’t make it and the Senate flips, I think it's 4-4 for next two years.

"Politically, I think they would rather keep it 4-4 rather than put somebody acceptable on the court," the source added. "He [Trump] needs to run on polarization and the court in 2020."

  • One of Trump's most trusted advisers told me he'd counsel Trump that if Democrats win the Senate, under no circumstances should he nominate a compromise candidate.
  • A senior administration official close to the process told me: "A 4-4 tie is a conservative win. Not as much as a 5-4 majority, but it takes constitutional interpretation out of D.C."
  • And a White House official told me Trump has made clear he'd nominate somebody in Kavanaugh's judicial mold no matter what happens in the midterms. "He sees it as a fundamental promise," the official told me. "They [Democrats] are not going to be rewarded for this. He's not going to undercut allies and reward enemies."
3. Behind the scenes: Kavanaugh's FBI delay

Brett Kavanaugh testifies to the Senate Judiciary Committee, Sept. 27. Photo: Jim Bourg-Pool/Getty Images

After watching Brett Kavanaugh evade Sen. Dick Durbin's question about why he wouldn't publicly call for an FBI investigation, I asked sources close to him the same question.

The question became more urgent after Republicans eventually asked President Trump to order a "limited" one-week FBI probe into the sexual assault claims against Kavanaugh.

Here's what I've learned from sources with direct knowledge, and from conversations in real time as the events unfolded:

  • When the Washington Post first broke the story of Christine Blasey Ford's allegation that Kavanaugh assaulted her in high school, the team around the judge thought they could squash the story quickly. At first, they were reluctant to contemplate a public hearing let alone an FBI investigation.
  • White House Counsel Don McGahn and Senate Majority Leader Mitch McConnell have always worried they would lose control of the confirmation process if the FBI started a new background investigation.
  • "You have to have this open-ended 'let's search for anything or everything,'" a source involved in the process told me.

But, but: Sources close to Kavanaugh told me that while they obviously would've preferred a quick vote without a last-minute demand from Flake for an investigation, things may still work out.

Republicans have already voted Kavanaugh out of committee and they've only agreed to an investigation limited in time and scope. It could provide the assurances the wavering senators say they need to vote for him. And given Kavanaugh's friend and alleged witness Mark Judge has already said he doesn't recall any attack, it may be impossible for the FBI to gather evidence corroborating Ford's story.

4. A conversation with Mohammad Javad Zarif

Iranian Foreign Minister Mohammad Javad Zarif. Photo: Sean Gallup/Getty Images

On Saturday afternoon, I asked Iranian Foreign Minister Mohammad Javad Zarif whether he believes that Iran's enemy, the state of Israel, will exist for a long time to come.

  • "We believe the policies that are being pursued [by Israel] are not sustainable," Zarif told me and a small group of reporters who met with him at the Iranian Mission in New York.

Later in the conversation, a reporter asked Zarif whether he could acknowledge any mistakes Iran has made. He said no government would answer that question, and instead he described his ideal future for the region.

  • Zarif described an idyllic regional neighborhood, one that "doesn't have a dominant power." It would be peaceful, with guaranteed security for all nations, including the Gulf States and Iraq.

"What about Israel?" I asked. Does it have a place in his vision of the region?

  • "I decide not to" include Israel in this region, he replied.
  • Asked whether he might entertain Israel's right to exist in the context of a broader "Middle East" region, he replied that the concept of a region "is a construct. ... The region I am talking about is the region in which I live."

Why this matters: Zarif’s comments came after the UN General Assembly exposed a growing split between America and Europe over the question of Iran.

  • At the UNGA, the Europeans doubled down on their commitment to the Iran nuclear deal by announcing they would set up a special payment channel to let European companies keep dealing with Iran while ducking U.S. sanctions.
  • Meanwhile, American and Israeli leaders spent the week torching Iran — from John Bolton warning Iran "we will come after you" to Israeli Prime Minister Benjamin Netanyahu telling the UN that his intelligence agents had found a "secret atomic warehouse" in downtown Tehran.

Zarif said he was weaving together a global coalition to resist U.S. sanctions and secure a market for Iranian oil, batting off questions about Hezbollah and human rights in Iran. He also said Netanyahu’s “secret atomic warehouse” was actually a laundromat for Persian rugs.

  • He wouldn't let U.S. journalists verify that claim, he said, as a matter of sovereignty.
  • Would he invite the International Atomic Energy Agency (IAEA) to do the same? Zarif said the IAEA hadn't asked to inspect that factory and they wouldn't because they "know better."

What's next? Zarif said Iran could pull out of the nuclear deal if the Europeans don’t fulfill their commitments. And he didn't close the door to a meeting, one day, with Trump. But he didn't seem bullish about that prospect, adding that the Iranians had not requested a meeting with him and don't consider him reliable.

5. NAFTA: Midnight edition

Midnight tonight brings what has proven to be a fake NAFTA deadline.

Trump's negotiating team was working under the theory that they had to sign the new NAFTA agreement on Nov. 30 because the incoming Mexican leftist leader Andrés Manuel López Obrador, who takes office in December, would not sign NAFTA 2.0. Trade Promotion Authority rules dictate that the U.S. government must release text of any new agreement 60 days before signing — and that's midnight tonight.

  • But that working theory blew up this week. On Friday, Obrador said — point blank — that Mexico would not be reopening the deal and that he'd live with what has already been negotiated.
  • That's important because the whole U.S. theory of tonight's deadline was that Obrador was going to demand a renegotiated deal if it passed into his hands in December.

Bottom line: A new NAFTA deal between the U.S., Canada and Mexico seems close, even imminent. But it's unclear, as of 4 p.m. today, the extent to which these disagreements are substantive or of a technical nature.

  • Even if they don't get a deal today, Congress could turn a blind eye to the 60-day deadline.
  • This all sounds complicated. But basically, Congress can make whatever rules it wants for the Trade Promotion Authority — a gentleman's agreement between Congress and the executive branch to get straightforward votes on the president's trade deals.
6. U.S. government to stay open!

All that talk of a government shutdown evaporated last week, as Trump honored his promise to Mitch McConnell and Paul Ryan to avoid a shutdown fight over the wall.

Today is the end of the fiscal year, and not only will the government remain open, but the Republican-controlled Congress has sent more spending bills to the president's desk than in any year for a couple of decades.

Trump has signed the following spending bills into law: Defense, Legislative Branch, Military Construction/VA, Energy and Water, Labor, Health and Human Services, Education, and related agencies.

  • "For the first time in a decade, our military won't have to operate under a continuing resolution with uncertainty while making national defense decisions," said Ryan's spokeswoman AshLee Strong.
7. Sneak Peek diary

The House is on recess until the midterm elections.

The Senate waits to vote on Brett Kavanaugh while the FBI conducts its limited, weeklong investigation.

  • In the meantime, the Senate will vote to end debate on the long-term FAA reauthorization bill.

President Trump's schedule, per a White House official:

  • Monday: Trump has lunch with Mike Pence, presents the Medal of Honor, hosts a roundtable with supporters followed by a campaign rally in Johnson City, Tennessee.
  • Tuesday: Trump delivers remarks at the Electrical Contractors Association Convention in Philadelphia, hosts a roundtable with supporters followed by a rally in Southaven, Mississippi.
  • Wednesday: Trump receives his intelligence briefing, has lunch with Secretary of State Mike Pompeo and meets with UN Ambassador Nikki Haley.