A Political and Legal Lightning Round

The Budget, a likely cabinet level impeachment, and Trump’s brief to SCOTUS on disqualification

Donald Trump and Mike Johnson (Photo illustration by Salon/Getty Images)

There are three big headlines competing for attention today, so let’s play a quick lightning round to address them.

The Budget

Speaker Mike Johnson pulled a Kevin McCarthy by kicking the budget can down the congressional calendar for a third time. Like McCarthy had done before him, Johnson had to rely on mostly Democrats to pass a continuing resolution to fund the government. In the end, he managed to get only 107 GOP votes, with 106 opposed. Democrats delivered nearly unanimous support, with only two voting against it on principle because the measure still contains no money for Ukraine.

The House Freedom Caucus is steaming mad about it. Said GOP Rep. Chip Roy (R-TX), “We keep doing the same stupid stuff.” 

Roy is referring to the House’s vote for a similar continuing resolution in September—the move that relied on mostly Democratic votes that ultimately got McCarthy fired. Then the Republicans picked Johnson, after shuffling their leadership deck considerably. In November he again kicked the budget can, this time dividing it into two parts to be passed, one in January and one in February. But on Thursday, with the deadline looming and a shutdown imminent, Johnson blinked. He agreed to fund the government now until March, keeping current spending levels in place.

Outgoing member and former Speaker pro tempore Rep. Patrick McHenry (R-NC), who was a longtime advisor to former Speaker McCarthy, had some choice words of advice for Johnson. 

“If we keep extending the pain, creating more suffering, we will pay the price at the ballot box,” McHenry told reporters. “At this point, we’re sucking wind because we can’t get past the main object in the road.... We need to get the hell out of the way. Cut the best deals we can get and then get on with the political year.”

As for Johnson, “We wish him great success,” McHenry said. “But he needs to widen the group of advisers he has. The loudest members of our conference should not dictate the strategic course of a smart majority—especially in the most complicated bits where those loudest voices are least likely to participate in the votes necessary.”

Among those loudest voices is Rep. Marjorie Taylor Greene (Q-GA), who had warned that if Speaker Johnson pushed the continuing resolution forward, she would file a motion to vacate the chair, the same procedure that took out McCarthy. But this may be an empty threat; currently there seems to be little appetite to go through another round of chaos and lack of GOP House leadership during an election year.

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Impeachment of Mayorkas

The GOP has plans to impeach a Biden White House cabinet member, Homeland Security Secretary Alejandro Mayorkas, for “operational failure” at the border. This has been in the works and talked about for some time. But it looks like it’s finally, and quite cynically, moving forward. Republicans are pressing ahead with an impeachment, even though it’s the House GOP that refuses to fund border enforcement and pass immigration reform. And while they’ve held hearings for over a week on impeachment, they have not heard from Mayorkas, any White House policy advisors, or even a single constitutional expert who might explain how a policy question becomes an impeachable offense. It’s nothing more than a sham procedure designed to keep the narrative on immigration.

The GOP appears to want to jam the impeachment vote in, perhaps even before the end of the month, in order to maximize pressure on the White House while budget negotiations including the border are underway. Republicans on the committee invited Mayorkas to testify at Thursday’s hearing, but he requested a different date. Rather than accommodate his request, however, they asked him to simply submit a written statement. 

The GOP wants to paint Mayorkas as personally responsible for a border situation that has been worsening for decades, and for which they have refused to provide the requested funding. This is a good example of how an issue like undocumented immigration is more politically useful to Republicans as a problem than it would be if it were actually solved. Indeed, entrance polling indicated that Republican scare tactics around migrants are working, with GOP caucus goers in Iowa listing it as their number one concern, even ahead of the economy.

This is in a state that is 89 percent white and isn’t anywhere near the border.

Trump disqualification

The former president filed his brief with the Supreme Court arguing he can’t be disqualified from the Colorado ballot. He had five principal arguments, which were all expected:

• The president is not an “officer of the United States”;

• Trump did not “engage in insurrection”;

• Section 3 should be enforced only through Congress’s chosen methods of enforcement;

• Section 3 cannot be used to deny President Trump access to the ballot; and

• The Colorado Supreme Court violated the Electors Clause and the Colorado Election Code. 

I’ve written extensively about these before, so I won’t belabor the arguments and points here. But very quickly:

His first argument that the president is not an “officer of the United States” is a big stretch, and if the Supreme Court ruled that way they would lose even more credibility.

That Trump did not “engage in insurrection,” at least as Section 3 defines it, might pull some votes under a broad First Amendment argument. But Trump’s lawyers really went far out on this one, even arguing that Trump actually had called for “peaceful and patriotic protest” and “respect for law and order.” Excuse me? Trump riled up an armed mob, unleashed them on the Capitol, then sat back watching for hours while they attacked. The Colorado Supreme Court affirmed the trial court’s finding that Trump engaged in insurrection, and with good reason. Still, Trump is hoping conservatives on the Court give him a pass on being an insurrectionist.

The third and fourth arguments center around the operability of Section 3, a clause few in the American public really understand, including many legal scholars. So I see these arguments as ones where the Supreme Court may actually bite. Conservatives on the Court could cite a highly legalistic reason to keep Trump on the ballot—a justification that legal scholars will decry as unsupported but likely will be too dense for most ordinary citizens to easily digest. They did a version of this before in Bush v. Gore, and it’s where I see them going this time with this case, too.

Finally, I have to observe that the fifth argument is really quite new and shocking. As Chris Geitner notes in his newsletter, the idea that the U.S. Supreme Court should tell a state supreme court how to interpret its own state election laws is radical and rather unprecedented. But given that we are in the upside down in 2024, I suppose anything is possible.

A quick programming note: My weekly Just for Xeets and Giggles will come out on Sunday instead of Saturday. Have a great weekend!  

—  Jay