Jul 19, 2020

Axios Sneak Peek

By Jonathan Swan
Jonathan Swan

Welcome to Sneak Peek, our weekly look ahead from both ends of Pennsylvania Avenue, plus our best scoops.

  • I'm Alayna Treene, an Axios White House reporter, filling in for Jonathan Swan tonight.

Tonight's newsletter is 2,301 words, an 8-minute read.

1 big thing: Scoop — Trump's license to skirt the law

Photo illustration: Sarah Grillo/Axios. Photo: Mark Wilson/Getty Images

President Trump and top White House officials are privately considering a controversial strategy to act without legal authority to enact new federal policies — starting with immigration, administration officials tell me and Axios' Stef Kight.

Why it matters: The White House thinking is being heavily influenced by John Yoo, the lawyer who wrote the Bush administration's justification for waterboarding after 9/11.

Yoo detailed the theory in a National Review article, spotted atop Trump’s desk in the Oval Office, which argues that the Supreme Court's 5-4 DACA ruling last month "makes it easy for presidents to violate the law."

  • The president has brought up the article with key advisers, two Trump administration officials tell Axios.

Yoo writes that the ruling, and actions by President Obama, pave the way for Trump to implement policies that Congress won't.

  • Some could remain in force for years even if he loses re-election.
  • Yoo — who next week will be out with a new book, "Defender in Chief," on Trump's use of presidential power — tells Axios that he has met virtually with White House officials about the implications of the ruling.

What's next: The first test could come imminently. Trump has said he is about to unveil a "very major" immigration policy via executive order, which he says the Supreme Court gave him the power to do.

  • The order could include some protections for immigrants who traveled to the U.S. illegally as children, something most Americans support.
  • That could be a political olive branch to Latino voters, though the Trump administration moved to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program, which led to the Supreme Court's involvement.
  • The order could also include significant new restrictions on immigration that couldn't get through Congress but are favored by the president, Jared Kushner and hardline adviser Stephen Miller.

Driving the news: Yoo told Axios that Chief Justice John Roberts' opinion "sets out a roadmap about how a president can use his prosecutorial discretion to under-enforce the law."

  • The recourse would be if the next president tries to reverse what's set in motion.
  • "Even if Trump knew that his scheme lacked legal authority," Yoo wrote for the National Review, "he could get away with it for the length of his presidency. And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two."

Reality check: This is a somewhat strained reading of both procedural history and the law, according to Axios’ Sam Baker.

  • But the Supreme Court wouldn’t be able to decide the merits of anything Trump does before the election.
  • Two administration officials told Axios that although the president has shown an interest in Yoo's thinking, the White House wouldn't rely solely on that.
  • "You have to act in good faith, and think that what you’re doing is good and legal," one official said.
  • "It's very much in dispute as to whether or not the president has that much control over immigration through executive order," a second official said.

What we're watching: Trump told Chris Wallace in an interview for "Fox News Sunday" that in addition to replacing DACA with "something much better," he's also going to be unveiling a health care plan within two weeks "that the Supreme Court decision on DACA gave me the right to do."

  • The White House declined to comment for this story.
2. Biden summer ad strategy: Outspend Trump but play it safe
Data: Advertising Analytics; Note: Spending is for the weeks of July 7–28, data as of July 15; Map: Andrew Witherspoon/Axios

Joe Biden is outspending President Trump this month with big TV ad buys in traditional swing states, as Trump focuses on digital ads to shore up his base in what should be Republican strongholds, Axios' Hans Nichols and Sara Fischer write.

By the numbers: Biden and affiliated Democrats have outspent Republicans by $4 million in Michigan, $3.5 million in Pennsylvania, $2 million in Arizona and $700,000 in Wisconsin, according to data provided to Axios by Advertising Analytics through July 28.

  • Trump is widely outspending Biden, albeit on a smaller scale, on digital — most notably in Texas (which last voted for a Democratic president in 1976) and Georgia (where Trump won handily in 2016).

Why it matters: The president's allies once boasted of his prospects to expand the 2020 map into places like Minnesota, Nevada, New Hampshire and New Mexico.

  • Trump's handling of the coronavirus and race relations has weakened him nationally, and polls arguably give Biden the rationale to stretch the map for his own party.

The big picture: At least right now, neither candidate is pursuing a particularly aggressive offensive strategy.

  • Biden is playing it safe, focused on nailing down the places where Trump beat Hillary Clinton by a hair, rather than swinging for the fences.
  • Meanwhile, Trump's spending suggests a defensive crouch that aims to hold the base and keep Biden voters home rather than win new converts.

Yes, but: Biden's play-it-safe strategy could change dramatically in the fall, but the campaign is holding its cards close to its chest.

  • While Republicans have already booked $145 million in post-Labor Day TV ads in 11 states, the Biden campaign has yet to place its autumn buys — an approach that avoids telegraphing its strategy, but at some cost.

The bottom line: Biden is reinforcing a single public message in traditional battleground states — that Trump isn't fit to lead. Trump is broadcasting on different frequencies, with diffuse messages.

Bonus: The messaging

An analysis of this month's spending shows Biden and allied Democratic groups are focusing on broad, anti-Trump TV attack ads in key battleground states, Hans and Sara report.

  • Most of Biden's messaging has focused on Trump's lack of leadership. He's offering a contrast and pledging to bring the country together.
  • Meanwhile, the Trump campaign continues to play by its own rules, targeting vigilant supporters online with divisive topics like criminal justice reform, immigration and fake news.
Data: Bully Pulpit Interactive; Chart: Andrew Witherspoon/Axios

What's next: A three-week snapshot before the nominating conventions may offer important clues on the campaign's geographical theories of the race, but it doesn't necessarily predict where the campaigns will fight it out after Labor Day.

  • Trump appears to be using Facebook buys to do some management now, biding his time on big TV buys until he can see where the numbers are moving on the economy and COVID-19.
  • Trump's strategy may change after independent expenditure campaigns spend the summer softening up Biden.
  • Biden's current strategy is aimed at a win, not a landslide.
Data: Bully Pulpit Interactive; Chart: Andrew Witherspoon/Axios
3. Inside McConnell's coronavirus relief bill

Illustration: Aïda Amer/Axios

Senate Majority Leader Mitch McConnell plans to release his phase four legislation this week — more than two months after House Democrats unveiled their $3 trillion plan. McConnell's will be far more narrow in scope and include a roughly $1 trillion price tag, sources familiar with the bill tell Axios.

Why it matters: Several states, including some key to President Trump's re-election strategy, say more help is needed as new coronavirus cases are forcing them to shutter their economies again or at least slow their reopenings.

  • The Senate GOP bill's release will officially kick off bipartisan negotiations between Congress and the White House on the next round of coronavirus funding.
  • But time is running short. The House is scheduled to break on July 31, and the Senate is scheduled to break on Aug. 7.

Sources familiar with McConnell's forthcoming measure tell us the proposal will include:

  • A heavy emphasis on education, giving schools increased funds to help prepare for fall reopenings.
  • Widespread liability protection, including for restaurants, hotels, hospitals, universities and school districts. (Many Democrats are strongly opposed to this, but McConnell has said this is a red line).
  • Increased funding for COVID-19 testing and vaccine research and development. The bill is also likely to include a tax credit for vaccine R&D.
  • Extension of the Paycheck Protection Program. Republicans will propose that the $134 billion left in the previous program’s coffers be reappropriated for phase four. Small business' revenue loss will be a key parameter for eligibility, one source said.
  • A payroll tax cut “is having a renaissance moment,” another source said, who says to expect something on that given Trump's insistence it be included.

There will not be additional money for state and local governments. But Republicans want to ease previous guidelines for how states can spend the leftover money appropriated in the CARES Act to ensure money gets to smaller localities.

  • House Minority Leader Kevin McCarthy sees that as "an absolute must-have," one of the sources said.

Worth noting: The final bill still hasn't been written, and the details and dollar amounts are still being debated.

What's next: McConnell will brief the Republican conference on Tuesday then roll it out publicly later this week.

  • The House and Senate would then have a short window to hash out a compromise bill before they break for the August recess.
  • COVID-19 legislation will also compete with other big priorities, including the National Defense Authorization Act and a series of appropriations bills.
  • House Majority Leader Steny Hoyer tells Axios: "I've told members not to schedule anything for the first week in August, even though we're not scheduled to be in. We're going to be in as long as it takes us to get something done."

Between the lines: Republicans have been asserting for months that the government must evaluate the economic impact of reopening the country before passing another large stimulus bill, and many had privately hoped that a phase four bill would be more of a longer-term stimulus than emergency relief.

  • But as one Senate Republican aide put it: "We still need to do surgery to stop the bleeding."
  • Says Hoyer: "The crisis is still with us. Almost every economist tells us if you don't respond, it's going to cost you more in the long run."

The big picture: Unlike in the early months of the COVID-19 outbreak, the latest economic bill comes as rural, red states — like Texas, Arizona and Florida, are being hit the hardest.

  • These states are seen as battlegrounds for Trump in November.
4. Trump allies weigh in on phase four funding

Illustration: Eniola Odetunde/Axios

Conservative allies of the president are weighing in on the next tranche of coronavirus relief funding, warning that Trump's reelection could hinge on the economic impact of the new bill — and urging him not to extend unemployment benefits from the CARES Act.

Details: Publishing magnate Steve Forbes and economist Stephen Moore have been warning Treasury Secretary Steven Mnuchin, the administration's lead negotiator on stimulus talks, and members of the White House economic council that the stakes for the new package "couldn't be higher."

  • Moore tells me, "We're very worried about Trump doing a deal with [House Speaker Nancy] Pelosi that would have very negative effects on the economy."
  • Moore predicted that if unemployment benefits from the CARES Act are extended, "You're not gonna have a jobs recovery in the fall. Not only is that bad for millions of Americans, but Trump can't win an election if we don't have a good economy."
  • Instead, they suggested Trump move ahead with a payroll tax cut (something Trump said is a must-have, but other Republicans aren't as keen on).

What's next: Moore and Forbes plan to send President Trump a letter outlining these concerns.

  • The letter will also state that that cutting a bad deal could be "reminiscent" of the Omnibus Budget Reconciliation Act of 1990 under President George H.W. Bush that raised taxes and "cost him the election."
  • They'll also be releasing an ad this week through the Committee to Unleash Prosperity, which was founded by Forbes, Moore and economist Art Laffer, detailing why an extension of the $600 weekly unemployment benefits would be "disastrous" for the president.
5. Chris Wallace brings the receipts

Screengrab: "Fox News Sunday"

President Trump made a lot of headlines in a stunning interview with Chris Wallace for "Fox News Sunday." Two pieces catching our eye:

Wallace fact-checked the president on the coronavirus mortality rate after Trump falsely claimed that the U.S. has the lowest coronavirus mortality rate in the world.

  • WALLACE: "Sir, we have the seventh-highest mortality rate in the world. Our mortality rate is higher than Brazil, it's higher than Russia, and the European Union has us on a travel ban."
  • TRUMP: "When you talk about mortality rates, I think it's the opposite. I think we have one of the lowest mortality rates in the world."
  • WALLACE: "That’s not true, sir. ... We had 900 deaths on a single day."

The exchange prompted Trump to ask Press Secretary Kayleigh McEnany to provide them with statistics. The chart she provided from the European Centre for Disease Prevention and Control showed that Brazil and South Korea have lower mortality rates than the U.S. Trump still accused Wallace of being "fake news."

Chart from the European CDC that McEnany provided during Trump's interview with Chris Wallace. Photo: Screengrab

Wallace also read off several statistics regarding racism in America, including that in the last five years, police used force against Black people at a rate seven times more than against white people.

  • WALLACE: "Can you understand why [Black people] would be angry at that?"
  • TRUMP: “Of course I do. Of course I do. Many [white people] are killed also. You have to say that.”
  • WALLACE: “I understand that.”
  • TRUMP: “I mean, many, many [white people] are killed. I hate the sad -- but this is going on for decades."
6. Sneak Peek diary

The American flag outside of the U.S. Capitol lowered to half-staff to honor the life of Rep. John Lewis, July 18. Photo: Michael A. McCoy/Getty Images

The House will consider the 2021 National Defense Authorization Act (NDAA) on Monday and Tuesday.

  • On Wednesday: The House will consider the No Ban Act and the Access to Counsel Act. The House will also take up the Senate-passed Great American Outdoors Act, which will permanently fund the Land and Water Conservation Fund and boost funding for national parks.
  • The House will also consider a bill to remove the bust of Chief Justice Roger B. Taney, the author of the 1857 Dred Scott ruling, from the Old Supreme Court Chamber. The bill also addresses the issue of Confederate statues on display in the Capitol.
  • Thursday and Friday: The House will consider the first package of FY2021 appropriations bills: State & Foreign Operations; Military Construction & Veterans Affairs; Agriculture; and Interior & Environment.

The Senate will vote this week on the nomination of Russell Vought as director of the Office of Management and Budget.

  • The Senate is also expected to consider a series of amendments proposed by Sen. Jim Inhofe (R-Okla.) to the National Defense Authorization Act, as well as the underlying NDAA bill.
  • Tuesday: The Senate Banking, Housing and Urban Affairs Committee will hold a hearing on the nominations of Judy Shelton and Christopher Waller to join the board of governors of the Federal Reserve.
  • The Senate Foreign Affairs Committee will hold a hearing on the nomination of Marshall Billingslea to be undersecretary of state for arms control.

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

  • Monday: Trump will participate in a fundraising event in Washington.
  • Wednesday: Trump will have lunch with Vice President Mike Pence.
  • Friday: Trump will present the Presidential Medal of Freedom to former Olympian athlete and Kansas Congressman Jim Ryun.
Jonathan Swan