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Supreme Court Justice Ruth Bader Ginsburg hospitalized with three fractured ribs



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By Pete Williams

WASHINGTON — Justice Ruth Bader Ginsburg has been hospitalized for three fractured ribs after she fell in her office at the Supreme Court Wednesday night.

Ginsburg, 85, went home after the fall, but then went to George Washington University Hospital on Thursday morning after experiencing discomfort.

Tests showed that she fractured three ribs on her left side and was admitted to the hospital for observation and treatment.

This is a developing story, check back for updates.

Minyvonne Burke contributed.

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Matthew Whitaker has a tangled history with the Mueller probe



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By Ken Dilanian and Julia Ainsley

WASHINGTON — In the summer of 2017, when Matthew Whitaker was a conservative legal commentator on CNN, he repeatedly expressed reservations about special counsel Robert Mueller’s investigation, at one point musing about how a clever attorney general could secretly starve it of funds.

Two years before, Whitaker, a former Iowa federal prosecutor, was the campaign chairman for an Iowa politician who later became an important witness in Mueller’s probe of alleged collusion between the Trump campaign and Russia.

Now, Whitaker is the acting attorney general, and one of his jobs is to supervise the Mueller investigation. He has shown no indication that he will heed the advice of Democrats and legal ethicists, who say there is a clear case that he should recuse himself from that role. There is no legal mechanism to force his recusal.

“Based on what Mr. Whitaker has said in the past about the Mueller investigation, his assumption of responsibility over the investigation certainly raises the appearance of impropriety,” said Mary McCord, who headed the Justice Department’s National Security Division under President Obama from 2016 to 2017. “I would hope that, at a minimum, he would consult with ethics experts at the Department before assuming that responsibility.”

Whitaker, a physically imposing man who played tight end for the University of Iowa team that lost the 1991 Rose Bowl, served most recently as chief of staff for Jeff Sessions, who was forced out by President Donald Trump on Wednesday.

In the Justice Department, Whitaker was viewed as an agent of the White House, one administration official and one former U.S. attorney told NBC News.

“It’s no secret where his loyalties lie — they’re with the White House more than with the Department,” the official said.

Instead of turning to Deputy Attorney General Rod Rosenstein to become the acting attorney general. Trump placed Whitaker in that role. Rosenstein, a career public servant, had been supervising the Mueller investigation because Sessions had been recused, due to his prominent role in the Trump presidential campaign. With Sessions gone, the acting attorney general retains the role of overseeing Mueller – approving budgets, and signing off on new investigative steps or indictments. It is believed the acting attorney general would have to approve the politically fraught move of issuing a subpoena for the president’s testimony — unless Mueller has already secured one with Rosenstein’s OK.

As a commentator, Whitaker expressed opinions on exactly the issues about which he may now have to decide.

For example, in an Aug. 2017 CNN op-ed, Whitaker wrote that Mueller’s investigation was at risk of becoming a “witch hunt.” He added, channeling comments, by Trump, that it would be “dangerously close to crossing [a] red line” if Mueller looked into Trump’s finances.

Before that, in July, Whitaker brainstormed in a television appearance about how Trump could constrain Mueller.

“I could see a scenario where Jeff Sessions is replaced with a recess appointment,” Whitaker said, “and that attorney general doesn’t fire Bob Mueller, but he just reduces his budget to so low that his investigation grinds to almost a halt.”

That same month, in another appearance, Whitaker defended Donald Trump Jr.’s decision to take a meeting with a Russian lawyer at Trump Tower in June 2016, after he was promised incriminating information about Hillary Clinton from the Russian government.

“You would always take the meeting,” he said.

In an Aug. 17 tweet, Whitaker seemed to criticize the FBI’s search of the home of former Trump campaign chairman Paul Manafort, who has since pleaded guilty and is cooperating with Mueller.

“Do we want our Gov’t to ‘intimidate’ us? Hmm,” he tweeted, linking to a Fox News story with the headline “FBI’s Manafort raid included a dozen agents, ‘designed to intimidate,’ source says.”

And in May 2017, speaking on Fox News host Sean Hannity’s radio show, Whitaker opined that the president did not obstruct justice when he urged then-FBI director James Comey to stop investigating his then-national security adviser, Mike Flynn.

“That doesn’t rise to the level of obstruction of justice, and it doesn’t sound to me based on what’s been reported that Jim Comey, as he sat there, believed that the president was telling him to stop the investigation,” Whitaker said. “if all he did was make a mere suggestion and not an outright command, I don’t think that rises to the level of obstruction.”

Legal experts say there are two grounds on which Whitaker should remove himself from any involvement in the Mueller investigation: His relationship with Sam Clovis and his past statements criticizing the investigation.

A Justice Department regulation says that no employee should participate in an investigation “if he has a personal or political relationship with any person or organization substantially involved in the conduct that is the subject of the investigation.”

Clovis testified before the Mueller grand jury, and he was listed as an unnamed “campaign supervisor” in the indictment of former Trump campaign aide George Papadopoulos, who pleaded guilty to lying to the FBI.

Clovis was present at a meeting, along with Sessions and Trump, during which Papadopoulos says he broached the idea of Trump meeting with Russian President Vladimir Putin.

Both Clovis and Whitaker ran in a Republican primary for the U.S. Senate in Iowa in 2014, and during that time they became “great friends,” Clovis said in a later statement.

“I respect and admire Dr. Clovis,” Whitaker was quoted as saying. “His life is an example of strong service to God and service to country.

Kathleen Clark, a law professor and ethics expert at Washington University, says that friendship would appear to be grounds for recusal. But equally problematic, she says, are Whitaker’s statements suggesting he is not impartial about the Mueller investigation.

Federal ethics regulations that apply government-wide state that a government employee should consider stepping aside in a matter when “the circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter.”

“I believe that there are circumstances that would raise a question in the minds of a reasonable person about Whitaker’s impartiality in the Russia investigation,” Clark said. “We as the public have a right to be assured that the people who are participating in that investigation are impartial.”

But there is no enforcement mechanism. A former Justice Department official said it is up to Whitaker to seek the advice of ethics officials in the Office of Government Ethics or the Justice Department’s ethics office.

“It’s incumbent upon the person,” the official said. “There is no ethics policeman wandering around the Department.”

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With Kavanaugh on court, White House ready for legal battle over asylum rules



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By Julia Ainsley

WASHINGTON — The Trump administration expects to be sued over the draconian new immigration plan it unveiled Thursday afternoon, say two senior administration officials with knowledge of the discussions — but with Justice Brett Kavanaugh now on the Supreme Court, it expects to win.

In the weeks before the midterms, even those Trump administration officials who fought bitterly with each other over how to curtail illegal immigration learned they could agree on a few things.

First, of the measures most likely to be approved by the president, all were likely to lead to a lawsuit.

But second, when sued, they believed they would ultimately prevail. According to the two senior officials, they think that with Kavanaugh in place, the Supreme Court will rule in their favor.

Kavanaugh, who took the spot of the more moderate Justice Anthony Kennedy on Oct. 6, is known for his conservative opinions that often side with the executive branch’s assertion of power.

Image: Migrants, part of a caravan traveling en route to the United States, ride in a truck on the road that links Tapanatepec and Santo Domingo Ingenio, near Santo Domingo Zanatepec
Migrants, part of a caravan traveling en route to the United States, ride in a truck on the road that links Tapanatepec and Santo Domingo Ingenio, near Santo Domingo Zanatepec, Mexico, on Nov. 7, 2018.Carlos Garcia Rawlins / Reuters

President Donald Trump teased the plan in vague terms in a speech from the White House last week, vowing to block any immigrants caught crossing the border between designated ports of entry, even if they made a claim for asylum.

The administration published the rule Thursday, with a signed proclamation by the president by Friday morning. It is expected to place all future illegal border crossers — those arrested between ports of entry — into detention with expedited deportation, regardless of whether they make an asylum claim.

The ACLU has already announced plans to sue.

Previous executive actions on immigration, including the Trump administration’s defense of the travel ban and its opposition to the Obama administration’s Deferred Action for Childhood Arrivals program (DACA,) have landed in federal court. The travel ban was ultimately upheld by the Supreme Court and DACA is making its way there.

The hardline measures the White House is preparing to take to bar immigrants caught crossing the border illegally from claiming asylum are expected to follow the same path.

Although the Trump administration expects to be enjoined and stopped in the near term, they believe a policy based on the discretionary authority of the president over who is admitted to the U.S. will ultimately hold up in the Supreme Court, one of the officials said.

With Congress stalled on immigration reform, an executive action that is ultimately upheld in court is the best alternative, the other official said.

The Department of Homeland Security, which oversees U.S. Customs & Border Protection and Immigration and Customs Enforcement, declined to comment on its legal strategy.

The American Civil Liberties Union, which led lawsuits to stop the travel ban and to reunite families separated by Trump’s “zero tolerance policy,” is prepared to sue again.

“If the administration announces a ban on asylum for those who enter between ports of entry, we will be prepared to go to court as necessary,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project. “But we will wait to see precisely what is put into place.”

Other legal experts and immigration advocates have said the policy would be in violation of domestic and international law. They cite international treaties that say an asylum seeker can make a legitimate claim anywhere, regardless of how they enter.

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Suburbs, money and fired-up women college grads



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By David Wasserman

Democrats swept all of the seats where they were favored and won or are ahead in 17 of the 30 seats the Cook Political Report rated as toss-ups. They also scored impressive upsets along the coast of South Carolina, in Oklahoma City and on Staten Island. With several uncalled races, it will take more time than usual to take stock of Tuesday’s powerful, if uneven, wave. But here are a few initial impressions:

1) This was mainly a suburban revolt. Democrats easily swept out most of the Republicans sitting in high-income suburban Hillary Clinton-won districts: Reps. Mike Coffman (CO-06), Peter Roskam (IL-06), Kevin Yoder (KS-03), Erik Paulsen (MN-03), Leonard Lance (NJ-07) and Barbara Comstock (VA-10), all by comfortable margins. Just about the only one in this category who may survive is Rep. Mimi Walters (CA-45).

In these seats, ads declaring that the Republican incumbent had voted with President Donald Trump “95 percent of the time” proved too much for them to overcome. But well-funded Democrats also broke through in outer, middle-class suburbs that Trump carried by single digits: Illinois’s 14th District, Iowa’s 3rd District, Michigan’s 8th and 11th Districts and Virginia’s 2nd and 7th Districts. Several were breakthroughs in places Barack Obama had never carried.

However, Democrats didn’t win a single Republican seat where Trump cracked 55 percent of the vote in 2016. They fell short in Florida’s 6th District, Kansas’s 2nd District and Kentucky’s 6th District, despite multiple polls depicting competitive races. They also failed to hold onto two rural open seats in Minnesota and failed to knock off two indicted Republicans, Reps. Duncan Hunter of California and Chris Collins of New York.

2) Democrats’ massive financial advantage helped overcome Republicans’ structural geographic edge in the House. At this writing, Democrats lead in total votes cast for House by about 5.3 percent, and are leading Republicans in seats by about 5.7 percent. Democrats’ popular vote lead will grow as more ballots are counted in states like California, Massachusetts and New York, perhaps to 7 points.

In other words, after all the hand-wringing about Republicans’ built-in gerrymandering advantage, Democrats’ share of votes roughly translated into their share of seats. A closer analysis suggests that’s mostly because Democrats performed exceptionally well in the roughly 75 battleground districts they targeted, mostly because their candidates’ massive fundraising advantages helped them control the late narrative.

3) In the House, this was the “Year of the Fired Up Female College Graduate.” This was the first year in history Americans elected more than 100 women to the House, and it almost entirely driven by Democrats — a clear reaction to Trump’s election. Of the 38 seats Democrats flipped or maintain a lead, women were the Democratic nominees in 21 — accounting for well over Democrats’ margin in the House.

4) This is also going to make it next to impossible for Democrats to ditch Nancy Pelosi, the first female speaker of the House. During the campaign, 37 Democrats on the DCCC’s “Red to Blue” list publicly opposed Pelosi for speaker. But of those 37, only 10 prevailed and another five are in races that are too close to call. And a few “no” votes won with such comfortable enough margins that they are probably flippable.

Republicans, looking for a silver lining after Tuesday, are gleeful at the prospect of her return and argue it makes Democrats the instant underdogs to keep what may only be a 12-15 seat majority heading into 2020. After all, these Democrats campaigned on changing Washington and challenging both parties’ leaders. Instead, their very first vote would be to fall in line behind the San Francisco-led old guard.

Indeed, it’s the Democrats who look like the more divided party as they assume power in the House. Their newcomers, mostly hailing from swing suburbs, campaigned on health care and pocketbook issues, not Russia, tweets or Trump. But the incoming committee chairs, almost all from urban and coastal districts, each have their own long lists of executive branch matters they want to investigate.

5) The Republicans who survived in tough seats did so mostly by establishing their own moderate reputations before Trump took office. Reps. David Valadao (CA-21), John Katko (NY-24), Brian Fitzpatrick (PA-01) and Will Hurd (TX-23) all hung onto their seats by cultivating nonpartisan images a long time ago, much like the few younger, conservative Democrats who hung on in 2010.

In some respects, this was a mirror image of 2010. Much as the Blue Dogs were decimated in the 2010 wave, moderate “Tuesday Group” Republicans suffered large losses from both retirements like Reps. Ileana Ros-Lehtinen (FL-27) and Charlie Dent (PA-07), and defeats like Reps. Carlos Curbelo (FL-27) and Leonard Lance (NJ-07). The congressional GOP is about to become a more Trump-centric party.

Bonus takeaway: Democrats’ hard pickup count is already at 31, according NBC’s count, and their odds look good in many of the uncalled races. Democrats currently hold leads in four of the nine seats where the winner isn’t clear: CA-48 (Rohrabacher), NJ-03 (MacArthur) and UT-04 (Love). In addition, Democrats are hopeful additional mail-in ballots will help their candidates overcome deficits in CA-10 (Denham) and CA-39 (Royce).

Maine’s 2nd District is the quirkiest nail-biter of all. GOP Rep. Bruce Poliquin leads Democrat Jared Golden by less than 1,000 votes, but 22,000 cast ballots for left-leaning independents. Under the state’s new “ranked choice voting” law, those independent voters’ second and third choices will be added to the two contenders’ totals sometime next week. Republicans fear Golden is the preferred second choice of most of those 22,000 voters.

Republicans maintain small leads in CA-45 (Walters), GA-07 (Woodall) and NC-09 (Open), but the counting of provisional ballots in each of these states could take weeks. Typically, late-counted mail-in and provisional ballots in California skew slightly to Democrats. The drama is set to last well beyond this week, and it’s not inconceivable Democrats’ eventual haul could be closer to 40 seats than 35.

A version of this article was previously published in The Cook Political Report.

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