The Morning Dispatch: The Kraken Caucus

Happy Friday! Chag urim sameach to all who celebrated the beginning of Hanukkah last night!

We all received gifts yesterday: A surprise Taylor Swift album, and promises of unfathomable amounts of new Marvel and Star Wars content.

Quick Hits: Today’s Top Stories

• Morocco on Thursday became the fourth Arab country in recent months to establish diplomatic relations with Israel. The deal, which was brokered by the Trump administration, came to fruition once the United States agreed to recognize Moroccan sovereignty over the disputed Western Sahara region. GOP Sen. James Inhofe, who chairs the Armed Services Committee, criticized the move, saying President Trump “could have made this deal without trading away the rights of this voiceless people,” referring to Algerian-backed separatists who also lay claim to the region.

• A panel of outside experts voted 17-4 on Thursday to recommend the Food and Drug Administration issue an emergency use authorization for Pfizer and BioNTech’s COVID-19 vaccine. The FDA is expected to do so in the next few days, clearing the way for vaccinations to begin early next week.

• The U.S. budget deficit grew a record 25 percent in October and November from the same two months last year, the Treasury Department said on Thursday. Federal spending in the first two months of the fiscal year rose 9 percent year-over-year, and revenue declined 3 percent.

• Brandon Bernard was executed at a federal prison in Indiana last night after the Supreme Court denied an emergency stay, making him the ninth person put to death by the federal government since the Justice Department resumed executions on the federal level in July. Bernard was one of five gang members convicted in the 1999 murder of youth ministers Todd and Stacie Bagley.

• President-elect Joe Biden on Thursday announced his intent to nominate Denis McDonough, President Obama’s longtime chief of staff, to serve as Secretary of Veterans Affairs. He also selected Susan Rice—national security adviser to President Obama—to lead the White House Domestic Policy Council.

• Days after a bombshell New York Times report from Nicholas Kristof found pornography platform Pornhub featured videos of child abuse and rape, Visa and Mastercard announced they are prohibiting the use of their cards on the website.

• The United States confirmed 214,858 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard, with 11 percent of the 1,954,686 tests reported coming back positive. An additional 2,644 deaths were attributed to the virus on Thursday, bringing the pandemic’s American death toll to 292,001. According to the COVID Tracking Project, 107,258 Americans are currently hospitalized with COVID-19.

Whose House? Trump’s House.

A majority of Republicans in the House of Representatives endorsed an amicus brief Thursday supporting a widely criticized Texas lawsuit aimed at overturning the results of the election. The release of the list of supporters—106 as of late afternoon Thursday—came after an intense behind-the-scenes battle between President Donald Trump’s most eager supporters and others in the Republican conference.

The move shows how much loyalty Trump still commands among congressional Republicans—and, perhaps more important to lawmakers, the GOP primary electorate. Trump personally lobbied some of the signatories, and a letter sent to members by the leader of the effort, Louisiana Rep. Mike Johnson, recently elected vice chairman of the Republican conference, indicated the president would be made aware of who refused to sign.

Filed by Texas Attorney General Ken Paxton earlier this week, the Texas suit targets Georgia, Michigan, Pennsylvania, and Wisconsin for election rules changes regarding mail-in voting. It asks the Supreme Court to block the four states, all of which Joe Biden won, from casting electoral votes on December 14.

The Trump team is all-in on the effort, with top Trump advisers publicly touting the suit as the president’s path to remain in power. In an appearance in Georgia ahead of the January 5 Senate run-offs, Vice President Mike Pence praised the effort. “All I can say is God Bless Texas!”

The complaint, as David French writes, “is woefully deficient.”

It rests on a deeply flawed claim. From the complaint: “The probability of former Vice President Biden winning the popular vote in the four Defendant States—Georgia, Michigan, Pennsylvania, and Wisconsin—independently given President Trump’s early lead in those States as of 3 a.m. on November 4, 2020, is less than one in a quadrillion, or 1 in 1,000,000,000,000,000.”

As David notes: “The reason Trump ultimately lost when he was leading earlier in the evening is simple—large, heavily-Democratic counties were slower to count their votes, and they didn’t report their totals until later. Moreover, one reason some jurisdictions didn’t report until later is that Republican legislatures prohibited them from counting hundreds of thousands of mail-in ballots before election day. The delay was a product of political choices, not corruption.”

Equally problematic is the fact that Texas doesn’t have standing to challenge how other state officials have interpreted and applied election laws in their own states. 

The House GOP amicus brief states that it presents concerns held by the lawmakers and “shared by untold millions of their constituents, that the unconstitutional irregularities involved in the 2020 presidential election cast doubt upon its outcome and the integrity of the American system of elections.”

You can view which members signed the brief here. Rep. Steve Scalise, the second-ranking Republican in the House, gave it his backing. House GOP Leader Kevin McCarthy and Republican Conference Chair Liz Cheney did not.

As expected, many of Trump’s fiercest defenders in Congress joined the effort. But so did several Republicans who are more often considered moderates. A number of influential committee ranking members also signed the brief, as well as a dozen Texas Republicans.

The letter exacerbated the rift between House Republicans eager to move on after four years of Trump and their colleagues still in thrall to the man—or at least willing to do his bidding. Behind-the-scenes maneuvering over the brief has preoccupied the House GOP Conference for the past 48 hours, people familiar with the situation told The Dispatch. As a number of Trump allies urged their colleagues to support the effort, others pushed back on it as a cynical ploy that would backfire given the absurdity of the claims in the complaint. Some signatories acknowledged privately that the case itself was foolish, but rationalized their support by noting that the Republican base remains enthusiastic about Trump and has come to believe the election was stolen.  

That so many elected Republicans are willing to sign onto an effort to toss out the results of an election because their candidate lost is, to put it lightly, alarming and inauspicious for the future of American democracy. 

Many Republicans are not on board, and some of them are even willing to say so publicly. 

“You might not like the outcome of our election, but that doesn’t mean that our 2020 election was fake. It was real. It counts. And we need to move forward,” Rep. Adam Kinzinger said Thursday. “Failing to accept this reality puts the country in a very dangerous moment in time.” 

Sen. John Cornyn, who formerly served as Texas’s attorney general, told CNN’s Manu Raju that he struggles to understand the legal theory of the case. He questioned why Texas would have a say in how other states conduct their elections: “We have a diffused and dispersed system, and even though we might not like it, they may think it’s unfair, those are decided at the state and local level and not at the national level,” he said. (Cornyn’s response was a far cry from that of his Texas counterpart, Sen. Ted Cruz, who has offered to make oral arguments if the case is heard by the Supreme Court.) 

Sen. John Thune, the majority whip, also expressed skepticism: “I don’t know why a state like Texas, which never wants anyone to tell them what to do, now wants to tell a bunch of other states how to run their elections.” 

Sen. Ben Sasse noted Ken Paxton’s legal troubles in dismissing the claims: “I’m no lawyer, but I suspect the Supreme Court swats this away,” he said in a statement. “From the brief, it looks like a fella begging for a pardon filed a PR stunt rather than a lawsuit—all of its assertions have already been rejected by the federal courts and Texas’ own solicitor general isn’t even signing on.”

One conservative Texan, Rep. Chip Roy, chose not to support it and publicly slammed the suit.

“I believe the case itself represents a dangerous violation of federalism & sets a precedent to have one state asking federal courts to police the voting procedures of other states,” Roy wrote on Twitter. 

Some Hill staff encouraged their bosses not to sign onto the brief, pointing out the many flaws of the lawsuit. Yet for at least one member who signed it despite internal dissent, the response from constituents has been overwhelmingly supportive. While there has been occasional fury directed at this lawmaker on social media, those who are calling and writing into the office “are all in favor of doing whatever we can to stop Biden,” one source said.

The Supreme Court is expected to make a decision about whether to hear the case as soon as Friday.

More Trouble for Hunter

Hunter Biden, the president-elect’s son, confirmed on Wednesday that his taxes are under investigation by the U.S. Attorney’s Office in Delaware. “I take this matter very seriously,” the younger Biden said in a statement released through his father’s transition team, “but I am confident that a professional and objective review of these matters will demonstrate that I handled my affairs legally and appropriately, including with the benefit of professional tax advisors.”

The statement added that Joe Biden is “deeply proud of his son, who has fought through difficult challenges, including the vicious personal attacks of recent months, only to emerge stronger.”

Subsequent reporting from Politico and the New York Times has revealed that the investigation into Hunter Biden extended in scope—at least at one point—beyond tax issues to include securities fraud and money laundering as well. “The money laundering aspect of the case failed to gain traction after F.B.I. agents were unable to gather enough evidence for a prosecution,” the Times reported. Federal authorities in the Western District of Pennsylvania are reportedly also conducting a criminal investigation into Americore, a hospital business in which Joe Biden’s brother James was involved, though it’s unclear if James Biden himself is a focus of the probe.

The president-elect’s son has reportedly faced tax issues in his past. The Washington Free Beacon reported in August that Hunter was issued a $450,000 lien in July of this year for failing to pay state income taxes in 2017 and 2018. The younger Biden paid the lien off six days later.

The Wall Street Journal reported yesterday that Attorney General Bill Barr knew about the various Hunter Biden investigations since at least this spring, but “worked to avoid their public disclosure during the heated election campaign.” In keeping them secret, Barr operated in a manner contrary to how former FBI Director James Comey handled the Hillary Clinton email investigation four years ago. President Trump on October 20 publicly demanded Barr open an investigation into Hunter, and a tweet from this week removes any pretense as to why.

The investigation into Hunter will be an immediate test of the politics-free Department of Justice that Biden has promised. The president-elect told CNN last week that he’s “not going to be telling [his Justice Department] what they have to do and don’t have to do,” adding that “it’s not my Justice Department, it’s the people’s Justice Department.”

“The person or persons I pick to run that department are going to be people who are going to have the independent capacity to decide who gets prosecuted and who doesn’t,” Biden continued. He has not yet selected the attorney general who will be making those decisions, but the Washington Post reports he is down to four contenders: former Alabama Sen. Doug Jones, former deputy attorney general Sally Yates, federal appeals court judge Merrick Garland, and former Massachusetts Gov. Deval Patrick.

Is All Well With Swalwell?

Democratic Rep. Eric Swalwell, a member of the House Intelligence Committee and an outspoken critic of Donald Trump, is under fire following an Axios report published earlier this week alleging that the Democratic lawmaker was the target of Fang “Christine” Fang, a Chinese national suspected of working on behalf of the Chinese Communist Party to collect information about American politicians.

Fang had a yearslong relationship with Rep. Swalwell from 2011 to 2015, reportedly fundraising for the congressman’s 2014 reelection campaign and helping him hire an intern. Swalwell told Axios that he met Fang more than eight years ago and has not interacted with her in nearly six years. His dad and brother, however, remained Facebook friends with Fang until earlier this week.

Swalwell made a name for himself as one of the most aggressive—and most hyperbolic—critics of President Donald Trump on Russia, using his seat on the House Intelligence Committee to become a constant presence on television, winning favor among the resistance-friendly base of the Democratic Party. He often went further in his claims than his colleagues, implying his seat on the intelligence committee gave him access to information not readily available to others. In one appearance on MSNBC, Swalwell argued Trump was an agent of Russia. Chris Matthews pressed him: “An agent like in the 1940s, where you had people who were ‘reds’ … in other words, working for a foreign power?” Swalwell doubled down: “He’s working on behalf of the Russians, yeah.”

Swalwell, who used his newfound celebrity to run briefly for president in 2019, insists he didn’t share any classified information with Fang, and claimed, implausibly, that the story was leaked to damage him because he is such a vociferous opponent of President Trump. “At the same time this story was being leaked out is the time that I was working on impeachment on the House Intelligence and Judiciary Committees,” he said. “If this is a country where people who criticize the president are going to have law enforcement information weaponized against them, that’s not a country that any of us want to live in. I hope it is investigated who leaked this information.”

The Axios report—from Bethany Allen-Ebrahimian and Zach Dorfman—took about a year to report out, as their colleague Jonathan Swan pointed out.

A U.S. intelligence official cited in the Axios report says Swalwell “has not been accused of any wrongdoing,” and the congressman maintains he cooperated with federal officials and cut off all communication with Fang as soon as he became aware of her suspected ties to the CCP via a defensive briefing in 2015. “All I did was cooperate, and the FBI said that yesterday,” Swalwell reiterated Wednesday.

Republicans are not convinced.

“Why is he still on the Intel Committee, and why is he still a member of Congress?” GOP Leader Kevin McCarthy asked Wednesday on Fox News. “Remember what the Intel Committee gets: Information that no other members are able to see.”

House Speaker Nancy Pelosi defended Swalwell during a press briefing on Thursday, saying she doesn’t have “any concern” about him.

“In the spring of 2015 the leadership of the House and the Committee were informed that overtures from a Chinese person were being made to members of Congress. When that was made known to the members of Congress, it was over, that was the end of any communication with those people,” Pelosi said, before attempting to shift focus to Republicans. “You know what [McCarthy] is trying to do, he’s trying to deflect attention from the fact that he has QAnon in his delegation over there.”

Worth Your Time

• In his most recent Washington Post column, David Ignatius argues that familiarity is playing too big a role in the formation of President-elect Biden’s Cabinet. “He’s gathering a Cabinet that mirrors his own strengths—sane men and women, each one likable and competent. Like Biden, they can play the old tunes so well that maybe Americans will begin to forget what they’re so angry about,” Ignatius writes. “But the virtues of calm and collegiality can be overstated. A team of elbows-in former colleagues and aides may end up looking more like a Senate staff than a dynamic Cabinet. Biden understandably doesn’t want a fractious ‘team of rivals,’ as Doris Kearns Goodwin dubbed President Abraham Lincoln’s Cabinet. But he shouldn’t have a team of retreads, either.”

• At the onset of the pandemic, Trump wasn’t the only public official who failed to provide accurate information about the efficacy of masks and their ability to prevent the spread of the coronavirus. Many public health experts amended their positions weeks later as more data came to light, but they initially got the facts wrong, telling Americans to forgo masks and save them for health care workers. Matt Yglesias argues in his newsletter this week that public health experts’ initial failure to properly educate people about mask-wearing was one of the biggest mishaps of the pandemic—and set the stage for a fundamental misunderstanding of the virus that lasts until this day. “The forget-masks-wash-your-hands era, even if motivated by a concern about medical supplies, carried a larger implication that’s stuck with us—fear dirty things. The correct message should be to fear contaminated air,” Yglesias writes. “The fact that we aren’t out of stock of air purifiers itself reflects a huge failure to provide adequate information.”

Presented Without Comment

Toeing the Company Line

• On the latest episode of the Advisory Opinions podcast, David and Sarah provide an update on Sidney Powell’s Kraken lawsuits and break down the “frivolous” case Texas Attorney General Ken Paxton is bringing alongside several other attorneys general. Plus: A dive into the Justice Department’s antitrust lawsuit against Facebook, and answering some reader mail about law school.

• Manhattan Institute president (and fan favorite) Reihan Salam returned to The Remnant this week for a conversation with Jonah about cities. Why do they tend to be so progressive? Do conservative ideals have a chance of ever catching on in metropolitan centers, and can the GOP ever win them?

Let Us Know

In a 1774 speech to the electors of Bristol, Edmund Burke argued that while the wishes and opinions of a politician’s constituents “ought to have a great weight with him,” a representative’s job once elected is not simply to parrot his voters’ beliefs, but to rely on his own opinions, judgment, and conscience. “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”

In light of the shenanigans from some in the House GOP yesterday, where do you fall in this debate? If a majority of a representative’s constituents believe the election to be stolen, is it that representative’s duty to advocate for that belief, even if he or she knows it not to be true or in the best interest of the nation? What about on a less contentious issue, like raising the minimum wage or implementing tariffs?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Haley Byrd Wilt (@byrdinator), Audrey Fahlberg (@FahlOutBerg), Charlotte Lawson (@charlotteUVA), and Steve Hayes (@stephenfhayes).