Tea Party Patriots Action Weekly Report from Washington for 12/16/19

CALENDAR:

The House will both back into session on Tuesday, and stay in session through Friday. The Senate will come back into session on Monday, and stay in session through Thursday.

LAST WEEK ON THE HOUSE FLOOR:

The House came back to work on Monday, and passed two bills under Suspension of the Rules.

On Tuesday, the House passed a Rule for consideration of H.R. 729, the Tribal Coastal Resiliency Act. Then the House passed a bill under Suspension. And then the House considered several amendments to H.R. 729, before passing the bill as amended.

On Wednesday, the House passed the Rule for consideration of H.R. 3, the Elijah E. Cummings Lower Drug Costs Now Act; H.R. 5038, the Farm Workforce Modernization Act of 2019; and the conference report to accompany S. 1790, the National Defense Authorization Act.

Then the House took up S. 1790, the National Defense Authorization Act. The conference report contained language providing for paid family leave for federal bureaucrats. The conference report also contained language establishing a separate Space Force, something President Trump wanted. According to the reporting on the issue, the White House wanted to establish the Space Force badly enough that it was willing to trade paid family leave for federal bureaucrats for it. The bill passed by a vote of 377-48.

Then the House took up H.R. 5038, the Farm Workforce Modernization Act. After considering a number of amendments, the House passed the bill as amended by a vote of 260-165.

On Thursday, the House took up H.R. 3, the Elijah E. Cummings Lower Drug Costs Now Act. After considering a number of amendments, the House passed the bill by a vote of 230-192.

And then they were done.

THIS WEEK ON THE HOUSE FLOOR:

The House will return on Tuesday, with the first votes expected at 10 AM. At that time, the House is scheduled to consider 18 bills under Suspension of the Rules.

On Tuesday, the House is also expected to vote on government funding bills we’ll discuss in a moment.

On Wednesday, the House is expected to vote on H. Res. 755, articles of impeachment against President Trump. We’ll discuss that more in a moment, too.

And on Thursday, the House is expected to vote on H.R. 5430, the U.S.-Mexico-Canada-Agreement Implementation Act. And we’ll discuss that more in a moment, as well.

In addition, the House may vote on H.R.5377, the Restoring Tax Fairness for States and Localities Act.

LAST WEEK ON THE SENATE FLOOR:

The Senate returned on Monday and invoked cloture on the nomination of Patrick J. Bumatay to be U.S. Circuit Judge for the Ninth Circuit Court of Appeals.

Over the next several days, the Senate voted to invoke cloture on the nominations of, and then to confirm, the following people to the following positions:

Patrick J. Bumatay to be U.S. Circuit Judge for the Ninth Circuit Court of Appeals
Lawrence VanDyke to be U.S. Circuit Judge for the Ninth Circuit Court of Appeals
John Joseph Sullivan to be Ambassador of the United States of America to the Russian Federation
Stephen Hahn to be Commissioner of Food and Drugs, Department of Health and Human Services
Aurelia Skipwith to be Director of the United States Fish and Wildlife Service

On Tuesday, the Senate took up and passed S. 2740, a bill to amend the Federal Food, Drug, and Cosmetic Act to clarify the regulatory framework with respect to certain nonprescription drugs that are marketed without an approved new drug application, and for other purposes. The bill passed by a vote of 91-2.

On Wednesday, the Senate took up and passed H.R. 2333, a bill to direct the Comptroller General of the United States to conduct an assessment of the responsibilities, workload, and vacancy rates of Department of Veterans Affairs suicide prevention coordinators, and for other purposes. The bill passed by a vote of 95-0.

THIS WEEK ON THE SENATE FLOOR:

The Senate will return on Monday, and will resume consideration of the conference report to accompany S. 1790, the National Defense Authorization Act. At 5:30 PM, there will be a roll call vote to invoke cloture on the conference report to accompany S. 1790, the National Defense Authorization Act. And at some point later in the week – most likely, Wednesday or Thursday – the Senate will vote on the spending bills that come over from the House.

INVESTIGATING THE INVESTIGATORS:

On Monday, Justice Department Inspector General Michael Horowitz released his 434-page report, entitled, “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation.”

Like most such reports, it had something in it for everyone.

For the left and critics of President Trump, Horowitz declared that he found plenty of political bias among key players in the investigation, but no conclusive evidence that the political bias was a factor in major decisions. He also determined that the FBI did not use the Steele Dossier to open the investigation – in fact, he said, his investigation determined that the FBI didn’t even have the Steele Dossier until well after the investigation had been launched. And he wrote that he believed the FBI did, in fact, have a proper basis for launching the investigation itself in the summer of 2016.

For the rest of us, the report made clear Horowitz’s disgust at the work done by senior levels of the FBI and DOJ during the investigation. Horowitz found that the first FBI application for a FISA warrant to surveil former Trump campaign volunteer Carter Page contained “seven significant inaccuracies and omissions,” and found that the three FISA warrant renewal applications contained another ten inaccuracies and omissions. For instance, the FBI failed to inform the FISC that Page had previously worked with another agency of the US Government – presumably the CIA – from 2008 to 2013, and that he had informed that agency about his previous interactions with “certain Russian intelligence officers.”

Horowitz also reported that when the Crossfire Hurricane investigative team first went to the DOJ for permission to seek a FISA warrant against Carter Page, the DOJ denied the request, saying they needed more proof Page was acting as an agent of a foreign power. Then the Steele Dossier arrived, with its allegations that Page had been coordinating with the Kremlin in the summer of 2016, and the DOJ approved the application for the FISA warrant. Wrote Horowitz, “We determined that the Crossfire Hurricane team’s receipt of Steele’s election reporting on September 19, 2016 played a central and essential role in the FBI’s and Department’s decision to seek the FISA order.” So much for Adam Schiff’s vaunted memo from the spring of 2018. And, by the way, in rejecting the central allegations of the Schiff memo, Horowitz verified and confirmed the central allegations of the Nunes memo from the same time period.

On Wednesday, Horowitz appeared before the Senate Judiciary Committee. “We are deeply concerned that so many basic and fundamental errors were made by three separate, hand-picked investigative teams, on one of the most sensitive FBI investigations, after the matter had been briefed to the highest levels within the FBI,” he said in his opening statement.

Pressed by Vermont Democrat Pat Leahy to declare that he had found “no evidence that the investigation was motivated by anti-Trump or political bias,” Horowitz demurred. “We found no evidence that the initiation of the investigation was motivated by political bias,” he said. “It gets murkier – the question gets more challenging, senator – when you get to the FISA. When you get to the attorney’s actions, for example, in connection with that FISA.” He’s referring to the actions of Kevin Clinesmith, an FBI attorney who changed the wording of an email offered as evidence in one of the Carter Page FISA applications. Horowitz said specifically that he personally would not have submitted the subsequent FISA warrant applications as they were submitted. “It had no business going in,” he testified. And when Judiciary Chairman Lindsey Graham asked flat out if the FBI had lied to the FISC during the application process, Horowitz said, “it was misleading to the court.” Horowitz also rejected former FBI Director James Comey’s feeling of vindication, expressed in a Washington Post op-ed, declaring, “I think the activities we found don’t vindicate anybody who touched this.” And when Louisiana Sen. John Kennedy argued that someone needed to be “fired,” Horowitz responded, “Agree completely. There’s got to be a change in the culture, also.”

On Sunday morning, former FBI Director James Comey sat for an interview with Chris Wallace on “FOX News Sunday.”

Wallace asked, “Seventeen significant errors in the FISA process, and you say that it was handled in a thoughtful and appropriate way.” Comey responded: “He’s right. I was wrong. I was overconfident in the procedures that the FBI and Justice had built over 20 years. I thought they were robust enough. It’s incredibly hard to get a FISA. I was overconfident in those because he’s right, there was real sloppiness. Seventeen things that either should have been in the applications or at least discussed and characterized differently. It was not acceptable, so he’s right, I was wrong.”

IMPEACHMENT:

On Tuesday, the House Judiciary Committee released the drafts of two articles of impeachment against President Trump. The first accuses him of “abuse of power” for soliciting help from a foreign government, while the second accuses him of “obstruction of Congress” for his efforts to deny Congress documents or witness testimony from senior officials of the executive branch.

On Wednesday, the Office of Management and Budget released a memo regarding its actions in delaying the disbursement of U.S. assistance to Ukraine. The memo says OMB delayed the funding as a temporary move to determine whether or not the spending complied with U.S. policy, not as a political effort to interfere with Congress’ spending decisions.

Perhaps more importantly, the memo makes clear that only the actual obligation of funds – that is, spending itself – was to be delayed. The Pentagon was to continue whatever planning it needed to do to spend the funds properly once the assessment was complete. Says the memo, “Based on OMB’s communication with DOD on July 25, 2019, OMB understands from the Department that this brief pause in obligations will not preclude DOD’s timely execution of the final policy direction. DOD may continue its planning and casework for the Initiative during this period.” And maybe even more interestingly, one paragraph later, the memo says this: “Based on data OMB received from DOD in August, DOD did not plan to obligate most of the USAI funds until September, and much of that amount in mid-to-late September.”

So the Pentagon wasn’t even planning on spending any of the military aid that had been earmarked for Ukraine during the time the funding had been delayed. So after all this, it appears that there was, in effect, no delay in the funding at all. Even if OMB had not put a hold on the military aid to Ukraine, it still would not have been obligated until the hold was lifted anyway.

That might have been an important point if the Democrats’ complaint was that President Trump had abused his office by leveraging U.S. military assistance to Ukraine to get the investigations he wanted. In fact, that was their original complaint – that he had engaged in a “quid pro quo” with Ukrainian President Zelensky. But then they dropped that complaint, perhaps because they realized it made them look silly to argue that the President had held up the aid in exchange for the investigations when in fact the aid was ultimately released without any investigation ever being announced.

So now the holdup and the plans for the flow of aid may end up as nothing more than an interesting footnote in impeachment history.

All day and long into the evening Thursday, members of the House Judiciary Committee met in a markup session to consider the two articles of impeachment. Combined now in one resolution, H. Res. 755, the essential elements of the articles read as follows:

ARTICLE I: ABUSE OF POWER

Using the powers of his high office, President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election. He did so through a scheme or course of conduct that included soliciting the Government of Ukraine to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage. President Trump also sought to pressure the Government of Ukraine to take these steps by conditioning official United States Government acts of significant value to Ukraine on its public announcement of the investigations. President Trump engaged in this scheme or course of conduct for corrupt purposes in pursuit of personal political benefit. In so doing, President Trump used the powers of the Presidency in a manner that compromised the national security of the United States and undermined the integrity of the United States democratic process. He thus ignored and injured the interests of the Nation. …

In all of this, President Trump abused the powers of the Presidency by ignoring and injuring national security and other vital national interests to obtain an improper personal political benefit. He has also betrayed the Nation by abusing his high office to enlist a foreign power in corrupting democratic elections.

Wherefore President Trump, by such conduct, has demonstrated that he will remain a threat to national security and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law. President Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.

ARTICLE II: OBSTRUCTION OF CONGRESS

The Constitution provides that the House of Representatives “shall have the sole Power of Impeachment” and that the President “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”. In his conduct of the office of President of the United States—and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed—Donald J. Trump has directed the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives pursuant to its “sole Power of Impeachment”. President Trump has abused the powers of the Presidency in a manner offensive to, and subversive of, the Constitution, in that:

The House of Representatives has engaged in an impeachment inquiry focused on President Trump’s corrupt solicitation of the Government of Ukraine to interfere in the 2020 United States Presidential election. As part of this impeachment inquiry, the Committees undertaking the investigation served subpoenas seeking documents and testimony deemed vital to the inquiry from various Executive Branch agencies and offices, and current and former officials.

In response, without lawful cause or excuse, President Trump directed Executive Branch agencies, offices, and officials not to comply with those subpoenas. President Trump thus interposed the powers of the Presidency against the lawful subpoenas of the House of Representatives, and assumed to himself functions and judgments necessary to the exercise of the “sole Power of Impeachment” vested by the Constitution in the House of Representatives. …

Through these actions, President Trump sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own conduct, as well as the unilateral prerogative to deny any and all information to the House of Representatives in the exercise of its “sole Power of Impeachment”. In the history of the Republic, no President has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate “high Crimes and Misdemeanors”. This abuse of office served to cover up the President’s own repeated misconduct and to seize and control the power of impeachment—and thus to nullify a vital constitutional safeguard vested solely in the House of Representatives.

In all of this, President Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.

Wherefore, President Trump, by such conduct, has demonstrated that he will remain a threat to the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law. President Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.

After a fourteen-hour markup session, Chairman Jerry Nadler announced abruptly that the committee would recess for the night and would reconvene at 10 AM to vote on the two articles of impeachment. This outraged Republicans, who had been told earlier that the committee would stay late to vote on the articles that night. Travel plans were upset, and there was much hostility.

On Friday morning, the Judiciary Committee met and voted through both articles of impeachment by votes of 23-17. Democrat Ted Lieu of California was not present to cast his vote because he was recovering from heart surgery.

The full House is expected to vote on the articles of impeachment Wednesday. I imagine the resolution will be split before then, so each individual article can be voted on separately.

SPENDING:

On Thursday, congressional appropriators and leadership announced they had come to agreement on a deal to pass 12 annual appropriations bills to fund the government into the new year and avoid a replay of last year’s Christmas-time government shutdown.

The deal will follow the outlines of last summer’s $1.37 trillion spending agreement that will add $2 trillion to the national debt over the next decade.

On the contentious issue of funding for a border wall along the southern border, negotiators found a way to split the difference between President Trump’s demand for $5 billion in funding, plus an additional $3.6 billion to backfill reprogrammed military funds, and the Democrats’ insistence that the appropriation for wall funding and backfill be absolutely zero. Though we’re still waiting for details on the agreement, initial leaks indicate that it would provide for flat funding for the border wall – that is, it will spend in FY 2020 the same amount as was appropriated for FY 2019, $1.375 billion – and it would not provide backfill funding. On the other hand, the deal would maintain the President’s prerogative to reprogram military funding.

As of this weekend, it appears the appropriators will combine the 12 annual spending bills into two separate mini-buses that will come to the floor of the House on Tuesday.

TRADE:

On Friday, President Trump announced in a series of tweets that the U.S. and China had agreed to a so-called “phase one” trade deal. The agreement averts a new round of tariffs that were scheduled to go into effect on December 15, and a Chinese official said the U.S. would begin reducing its current tariffs in stages, in exchange for China agreeing to purchase more agricultural goods from the United States. The markets responded quite favorably.

USMCA:

On Tuesday, less than an hour after revealing the two articles of impeachment against President Trump, congressional Democrats announced they had come to terms with a revised USMCA trade agreement with Canada and Mexico.

The U.S.-Mexico-Canada Agreement updates the 1994 North American Free Trade Agreement, which governs the more than $1.2 trillion in trade among the three counties. The new agreement revises the earlier agreement’s provisions on intellectual property, labor and environmental protections, and automobile manufacturing.

One of the major goals of the new agreement is to have more cars and truck parts made in North America. Under the old NAFTA deal, to qualify for zero tariffs, a car or truck had to have 62.5 percent of its components manufactured in one of the three nations; under the new agreement, that 62.5 percent threshold increases to 75 percent.

There’s also a new rule requiring that at least 30 percent of the work on a vehicle must be done by workers who earn at least $16 per hour. That’s about three times what the average Mexican worker makes. And that 30 percent requirement rises to 40 percent for cars by 2023.

Democrats and their allies in Big Labor demanded tougher enforcement provisions to ensure the Mexican government follows through on its commitments in the deal. Though we have yet to see text of the deal, it’s been reported that Democrats also succeeded in removing a provision that would have allowed pharmaceutical companies 10 years of IP protections for biologic drugs.

Regarding other intellectual property, the IP chapter in the new deal is more than 60 pages long and contains tougher protections for patents and trademarks, including for biotech, financial services and even domain names.

The USMCA stipulates that the three nations will review the deal after six years – and if the three agree that the deal is still good, it will continue for another ten years, with the ability to renew after that for another 16 years.

There’s also a provision in the deal – chapter 19.17 – that seems to codify language very similar to that found in section 230 of the 1996 Communications Decency Act, to protect Big Tech from being sued for content carried on their platforms. Says the relevant language, in article 19.17, paragraph 2: “To that end, other than as provided in paragraph 4 below, no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information.”

The House will vote on the implementing legislation for the agreement on Thursday. Assuming it passes – and I assume it will – it will go to the Senate for consideration next year.

Tea Party Patriots Action Weekly Report from Washington for 12/16/19

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