First Branch Forecast for August 7, 2023: Debt, Trump, and the Capitol Police

TOP LINE

It’s still recess. This week, we cover:

The credit rating downgrade and how to get out of that hole
Lessons from the federal Trump insurrection prosecution
The bicameral hearing into problems at the Capitol Police
And a smattering of other issues.

CREDIT DOWNGRADE

Our political leaders have managed to talk the markets into downgrading the US credit rating because of the inane debt ceiling.

“The rating downgrade of the United States reflects the expected fiscal deterioration over the next three years, a high and growing general government debt burden, and the erosion of governance relative to ‘AA’ and ‘AAA’ rated peers over the last two decades that has manifested in repeated debt limit standoffs and last-minute resolutions.”

The proximate cause, we suspect, is the far right’s control over McCarthy and the flailing appropriations process. The Speaker is hostage to their whims and they’re using the debt ceiling for a variety of purposes. Some, it appears, may actually welcome the chaos of going over the cliff. Because negotiation with people who keep moving the goalposts is virtually impossible to successfully conclude, the result is a cycle of crisis and self-inflicted injury.

We also note that congressional Democrats, when they had the chance, did not push legislation to eliminate the debt ceiling, despite a range of options. Certainly those who wanted to do more had no help from Sen. McConnell, nor from Pres. Biden. Some of the fault can be laid at the feet of Manchin and Sinema — who did waive it once. There’s also a host of Democrats who are either afraid of the politics because of the public’s misunderstanding of what the debt ceiling is or foolishly welcome it as an austerity measure.

For an example of an austerity framework, look no further than Bezos’s Washington Post editorial board, which proposes that the way forward is to sacrifice the poor and elderly. There’s nary a mention of ending the Trump tax cuts, or the Bush tax cuts, reducing the trillions in tax expenditures, or the nearly a trillion in defense spending.

If you’ve been around for any time at all, you know that funding cuts that happen under a Democratic president are followed by tax cuts under a Republican president. No one is actually serious about cutting the debt, assuming that’s even a policy goal we would want to pursue. One result of this bait and switch dynamic: “19 of America’s biggest companies paid little — or zero — income tax.’” The fight, as far as I can tell, is about who bears the tax burden and what exactly is funded.

Rep. Brendan Boyle has one right answer to addressing the creditworthiness downgrade and the debt ceiling standoff: allow the Treasury to continue paying the debt unless the Congress passes a resolution of disapproval. This is a workable approach, although it still puts too much trust in the president. The best answer, for which Rep. Boyle also has introduced legislation, is eliminate the debt ceiling entirely. Instead of doing that, congressional leaders decided not to force the issue in the 117th, and now, in addition to a ticking time bomb, we have a series of future debt rating downgrades and higher costs to look forward to.

TRUMP INSURRECTION

Trump was federal indicted on four counts. One thing that’s notable is that the FBI had resisted opening an investigation into Trump’s role in January 6th for more than a year, abetted by top DOJ leadership including Garland. In fact, it was the work of the January 6th Committee conducting interviews with Trump officials, the “eye-grabbing news accounts about the committee’s discoveries,” and a press interview that finally got the DOJ moving.

‘One person directly familiar with the department’s new interest in the case said it felt as though the department was reacting to the House committee’s work as well as heightened media coverage and commentary. “Only after they were embarrassed did they start looking,” the person said.’

This has some important lessons. First, Congress should not defer to the Justice Department on investigating matters. The DOJ’s internal politics are byzantine and work to protect political power, particularly executive power. We also see this with the DOJ’s refusal to prosecute contempt of Congress and to run out the clock of Congress’s efforts to enforce its right to know. Anyone familiar with the DOJ’s history should not find this a surprise.

Second, there are real consequences to the DOJ being an instrument of the president instead of a more independent agency. For example, the existence of the DOJ’s Office of Legal Counsel serves as a shield for the Executive branch and a cudgel for the president against the Congress. That office opined, for example, that a sitting president cannot be prosecuted, an opinion that binds the Executive branch and acts as law even though it’s merely their ungrounded opinion. (I wonder what they’ll say during a Republican administration in 2024 — that the prosecution of Trump is off?)

Third, the DOJ still has not addressed sedition in its indictment and it has not addressed members of Congress who likely were connected, if not complicit, in the attempt to overthrow the government. They’re not the only ones to blame: the Ethics Committee did not act on the referrals of members who refused to respond to the January 6th Inquiry.

Fourth, Senator McConnell and (most) Senate Republicans could have held Trump accountable and chose not to. So could have (most) House Republicans. Had the House acted faster, it’s likely more Republicans would have been on board, but the political analysis shouldn’t overwhelm that it was also the right thing to do. (I don’t even want to talk about all that waiting for Robert Mueller.)

Finally, it’s important to remember the stakes. Here’s paragraph 81 of the indictment, with the redacted names filled in: ‘‘On the afternoon of January 3, Clark spoke with a Deputy White House Counsel. The previous month, the Deputy White House Counsel had informed the Defendant that “there is no world, there is no option in which you do not leave the White House [o]n January 20th.” Now, the same Deputy White House Counsel tried to dissuade Clark from assuming the role of Acting Attorney General. The Deputy White House Counsel reiterated to Clark that there had not been outcome-determinative fraud in the election and that if the Defendant remained in office nonetheless, there would be “riots in every major city in the United States.” Clark responded, “Well, [Deputy White House Counsel], that’s why there’s an Insurrection Act.”’

Yes, the person who Trump wanted as acting attorney general stated that the military would be used to put down citizens who opposed the coup.

Nota bene: yes, Trump’s trial should be televised. Federal court proceedings, including that at the Supreme Court, should be viewable by the public. And federal court orders should be publicly available online for free. There have been bipartisan supporters for both these points — and I hope it doesn’t become polarized. I could send you letter after letter from civil society calling for greater court transparency, but I’ll instead just leave this link to Sen. Grassley’s bill, the Sunshine in the Courtroom Act of 2021. Beyond the role for Congress, the federal courts could catch up with their state equivalents in this case, and Steve Brill explains how.

Related Resources

This Congressional Research Service report, Video Broadcasting from the Federal Courts: Issues for Congress, discusses the history of broadcasting from the courts, which is widespread in the US (and internationally), just not in the federal courts.

Congressional Oversight on Capitol Police Board

For the first time in eight decades, the House Administration Committee and Senate Rules Committee converged for a joint oversight hearing on the US Capitol Police Board before Congress broke for August recess. (Video; written testimony) This marks a significant moment, especially as it follows just a week after the Committee on House Administration’s USCP Inspector General hearing.

The comprehensive review we conducted on the USCP and its Board in terms of compliance with congressional directives and recommendations from the Government Accountability Office (GAO) revealed troubling findings. Out of 11 GAO recommendations issued in recent years, only two have been successfully addressed. Additionally, of the nine Congress-issued directives, there were issues of non-compliance or ambiguity with four, two saw delayed compliance, while three were timely addressed.

With a Board composition that hasn’t been altered since 1873 and entirely new Board members from the last two years, the committees were keen to delve deeper. Disappointingly, the primary focus of most senators was on the operations of individual agencies rather than the Board’s structure and functionality.

Senate Sergeant-At-Arms, Karen Gibson, who took over in 2021 and is the current chair of the USCP Board, provided insights during her testimony. While she highlighted positive operational developments such as the revision of procedures and enhanced communication, there were inconsistencies in her stance. For instance, despite acknowledging the oversight jurisdiction of the CHA and Senate Rules over the Board, Gibson had previously challenged the committee’s oversight actions and authority in a June 2023 letter. This contradiction indicates the inherent structural challenges the Board faces.

A concern persists about the Board’s transparency. Absence of public disclosures, input from stakeholders, or even public availability of the Board’s procedural manual raises eyebrows. It’s also alarming to learn that the Board possibly lacks sufficient resources, with only one full-time staffer in service.

Acting House Sergeant-At-Arms, William McFarland, hinted at ongoing efforts to improve transparency, particularly around the publishing of Inspector General reports. However, his responses raised further concerns about the independence of the Inspectors General in the face of potential interference by the Board. The witnesses evaded questions about whether there is a written process concerning the IG reports, of which 650 have been issued since the creation of the IG. It also appeared that only two reports were under review by the Board for publication and that the Board does not have access to a list of IG reports from prior to 2023, which raises many concerns for us.

Adding to this, USCP Chief Manger’s address revealed intentions to expand USCP field offices, citing the rising number of threats. He announced plans to introduce offices in Milwaukee, Boston, and Texas, as the threat cases surge to an estimated 8,000-9,000 this year, compared to 6,955 in 2019.

From the hearing, several critical points emerged:

The USCP Chief’s hesitation on solidifying whistleblower protections. He dodged questions about extending protections to them, as did members of the Board. We noted in particular his use of the term “real whistleblowers,” which makes us have many more questions. When asked, Chief Manger would not commit to supporting expanding whistleblower protections by the end of 2023.
The nearing implementation of a FOIA-like process to facilitate public information requests, according to the written testimony of Chief Manger. In the absence of a timeline, we will believe it only when we see it.
Uncertainties surrounding encrypted communication methods among USCP officers, such as WhatsApp.
The review of a forthcoming book by a former USCP intelligence department supervisor concerning January 6.
Questions and concerns regarding former acting USCP Chief Yogananda Pittman’s departure from the department and the associated Non-Disclosure Agreement. Once again, the Chief danced around providing the NDA to the committee, which raised questions about the role the USCP’s Counsel is playing as the counsel cites attorney-client confidential to avoid its release.

We also want to highlight Senate SAA Gibson’s comments on the need for better collaboration on cybersecurity-related affairs. Buried in her written testimony was a polite but pointed statement of a lack of collaboration from the Executive branch on these matters in defiance of federal law.

We’ve also noted a rising presence of January 6 truthers in many of the USCP-related oversight hearings attended throughout the year, an issue that seems to be flying under the radar.The hearing spotlighted several issues that demand attention. The Capitol Police Board’s operations, transparency, and the overarching question of reform will persist. We hope that this hearing is the first of many joint hearings that delve into the reforms around the structure and operations of the Capitol Police and its Board.

ODDS & ENDS

Active shooter in the Senate? On Wednesday the Capitol Police indicated they’d received a report at 2:30 there was an active shooter inside the Senate office buildings and evacuated them. The USCP did not locate anyone shooting a firearm and declared all clear a little after 4 PM. What a terrifying ordeal.

Time takes a look at the ongoing trauma for Hill staffers. The only place it misses is that for those of us who were there on 9/11, being scared about what’s going to happen is not new.

If you need to talk to someone after the events of this past week, the Capitol Strong coalition has links to resources for help.

Rep. Scott, the ranking member of the House Agriculture committee, is being layered. It is broadly suggested that he is no longer competent as a member of Congress. ‘“There are real questions about whether he’s with it,” one Democrat on the panel, who declined to be named due to the sensitivity of the subject, told POLITICO last year.’

How bad is it? “Scott does not typically attend subcommittee hearings — an anomaly for the ranking member of a committee. He also has not traveled with the committee for out-of-town farm bill listening sessions this Congress, an important part of drafting the massive legislation. He no longer speaks with reporters in the halls of the Capitol after hearings, as he once did, and has not held a press conference this Congress to push back on Republican attacks on nutrition programs.”

Leadership, apparently, is hoping that no one will notice and wish to give him the dignity of fading away. Meanwhile, the people he represents and everyone affected by agriculture policy must suffer.

Telework saves money and GPO is touting the use of regional customer service teams that enhance customer service while saving “taxpayers nearly $1 million annually by removing the cost of rent and reducing overhead expenses.” The Federal News Network has more.

On that point, it seems politicians in both parties have missed the point of this GAO report on partially vacant federal buildings. The use of telework reduced the footprint of federal employees in government buildings, and it’s time to save taxpayers millions by selling the buildings, ending leases, and consolidating.

In addition, drawing from a nationwide pool means better quality applicants, lower overhead (no building expenses, no commuting expenses, less locality pay), increased productivity, more resiliency, and environmental benefits. It also makes it easier to recruit federal employees, who are happier and less likely to turn over. Even keeping it at current levels has saved tens of millions of dollars.

It’s not perfect, of course, but the last few years exposed the weaknesses of many of the arguments previously advanced against telework. So why do some politicians rail against it? One possible answer is there’s a segment of the population that inherently distrusts federal employees and views telework as an opportunity for them to shirk their work — and the politicians are pandering to this audience. Not everything can be telework, of course, and some jobs need to be a balance between in person and remote, but when all things are equal, the government should be a good steward of tax dollars.

Does Kevin McCarthy have the worst job in Washington? Well, no, obviously, but the changing nature of the Speakership and the kinds of power its office holder enjoys is the subject of a thoughtful essay by Catholic University scholar Matthew Green.

Real power in Washington is being exercised by the Conservative Partnership Institute, the extraordinarily well-funded MAGA-right think-and-do tank that is busy educating staffers on how to exercise power and plotting how to use House and party rules to dictate the legislative agenda. Punchbowl has the itinerary for a recent retreat for the organization that has shaken up how the House operates under Republican control. As far as I know, there are few organizations within the political mainstream or left that performs comparable work and none are funded at even remotely that scale.

Rep. Van Orden may have his candid camera moment. The apparently foulmouthed representative who reportedly verbally accosted Senate pages in the Capitol Rotunda is the subject of a letter from Rep. Pocan to House Admin Chair Steil, who is requesting that any video of the diatribe captured on security cameras be released. Steil, in turn, is asking the Capitol Police for their views on whether we can do so, according to Punchbowl. The Capitol Rotunda is controlled by the House and Senate, so they could jointly direct the release of the footage. I suspect that Sen. Schumer would give his asset as likely would Sen. McConnell, given their prior statements.

The USCP has a longstanding position of opposing the release of that footage for any reason, but that policy took a back seat to the House’s release of January 6th footage first to the January 6th Committee and then to Tucker Carlson. It also has been used in prosecution of insurrectionists.

How oversight worked in the 117th Congress is the focus of a new report from Brookings’ Molly E. Reynolds and Naomi Maehr. Replete with data that tracked every letter from Congress and every hearing, the findings likely would not surprise close Congress watchers, but anecdata is not a study, and this report most certainly is. Among the conclusions:

Committees should expect they will have a single Congress to complete their oversight work;
House hearings focus on the same issues on which party leaders hold floor votes; and
Resources matter.

Reveal your sources? Federal Judge Christopher Cooper has ordered journalist Catherine Herridge to participate in a deposition focused on who was her confidential source for a story she published while at Fox News. Herridge had reported that a scientist, Yanping Chen, was the subject of a counterintelligence probe; Chen alleges that the federal government improperly leaked that information. Maybe so, the public’s ability to know often is dependent upon confidence sources from within the government, and journalists shouldn’t be forced to give them up. The PRESS Act, favorably reported by the Judiciary Committee earlier this year, would make sure journalists are protected against both civil and governmental efforts to undermine their reporting.

California may broadly expand the states’ public record laws, bringing significant more information into the sunshine. Politico has more on the ballot initiative.

The White House’s OIRA is rethinking public participation in the regulatory process. Check out their blogpost, guidance, and coverage from Alex Howard.

CALENDAR

Congressional Committee Calendar

~ Down the road ~

Internapalooza, a free, non-partisan orientation and welcome event for all interns, scheduled for September 11. RSVP.

Attorney General Merrick Garland is scheduled to testify in front of the House Judiciary Committee on September 20.

The Ridenhour Prizes, which celebrate whistleblowers, documentarians, and authors in support of government transparency and accountability, will hold its annual gala on October 25 at 6 PM. Subscribe to this link for ticket information.

In the rear view: Sunday, July 30th, was National Whistleblower Day. “It marks the date in 1778, when the U.S. Continental Congress unanimously passed America’s first whistleblower law.” The Senate-only resolution, S.Res.298, is a fun read. Maybe next year the House should get in on the fun?

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