The push to pack the courts with conservative justices will likely be remembered as one of the most enduring accomplishments of Trump's presidency. And it was spearheaded by former White House counsel Don McGahn.

McGahn might have saved Trump's presidency — and political future — in more than one way: Despite Trump's fury with his former White House counsel for airing his secrets to special counsel Bob Mueller, McGahn's influence in shaping future decisions touching all corners of American life will likely be more lasting. McGahn worked hand-in-hand with Senate Majority Leader Mitch McConnell (R-Ky.) to realize their vision of a more conservative judiciary.

AD

AD

McGahn's “significance to the judiciary, the White House and the nation cannot be overstated, ” McConnell said when McGahn left the White House counsel role at the end of last year.

“Lots of credit goes to Don McGahn because he is the one who understood the significance of these decisions,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network. “Executive orders will expire when Trump leaves office and his legislative agenda will be hard to achieve with a hostile Congress. But the Supreme Court justices will make decisions for decades to come.”

The slew of lifetime appointments to the federal bench has been made possible by McConnell, who invoked the “nuclear option” to eliminate the filibuster for Supreme Court justice nominations and make them eligible for confirmation through a simple majority vote. Trump has already won two key battles to place Neil Gorsuch and Brett Kavanaugh on the Supreme Court.

The GOP broadside to overhaul the federal judiciary is a hot topic in the 2020 Democratic presidential primary, with several candidates expressing interest in “packing” SCOTUS with more judges if they win the White House.

REALITY CHECK: Yes, the Senate is confirming a large number of judges. But some experts said the full-scale shift to a more conservative judiciary hasn't yet materialized.

AD

“It's gonna have an impact, but it's not gonna change the whole party-of-appointing balance very much,” Russel Wheeler, a visiting fellow at the Brookings Institution and expert on judicial nominations told Power Up. “Most of [Trump's] appointments to date have occurred in the Fifth, Sixth, Seventh and Ninth circuits [Court of Appeals], which contained a majority of GOP-appointed justices when Trump took office.”

But: Wheeler added that Trump has changed the balance on the Third Circuit Court of Appeals and may soon change it on the Second Circuit.

Full House: Wheeler said Trump is nearing the point where there will soon be no circuit court seats left to fill.

But Brian Fallon, the executive director of Demand Justice, a nonprofit judicial advocacy group, said that Wheeler’s argument is wishful thinking: “We’ll be living with the legacy of Trumpism for the next three to four decades,” Fallon said.

AD

“Their agenda is not very popular and hard to achieve legislatively so they want to do through the courts what they can’t achieve politically,” Fallon added, arguing that Republicans and the Trump administration are aiming to undo everything from Roe v. Wade to the Affordable Care Act “backdoor through the courts.”

2020 Democrats have only just started to talk about expanding the Supreme Court to counter Trump's legacy. Fallon says they've become aware of the reality that even in a world where Democrats sweep 2020 and take back the Senate (unlikely) and the White House, it’s going to be very difficult to pass any legislation that Republicans won’t just challenge through the courts.

A survey of likely Democratic primary voters conducted by Demand Justice and YouGov being released this morning and provided to Power Up shows that progressive voters are increasingly concerned with Trump’s impact on the judiciary:

AD

Only 23% percent of likely Democratic primary voters approve of the job the Supreme Court is doing.

A large 79% of Democratic primary voters are concerned about the possibility that the Supreme Court could overturn things progressives would like to enact like Medicare-for-All, the Green New Deal or a federal minimum wage increase

A healthy 72% of Democratic primary voters say they believe Democratic senators should vote "no” on all of Trump's judicial nominees.

A plurality (36%) of Democratic primary voters currently support adding seats to the Supreme Court, while 31% oppose the idea. Additionally, 21% neither support nor oppose the idea, and 13% are unsure.

You are reading the Power Up newsletter. Not a regular subscriber? Sign up

On The Hill

TRUMP TELLS DEMS, THAT'S ALL FOLKS: The president says “it's done.” Amping up his tussle with Congress over lawmakers' demands for testimony from top administration officials and a slew of subpoenas for documents, Trump made clear the White House is not blinking and that House Democrats better get ready to go to court.

AD

“I can't say, 'Well, one can and the others can't,” Trump said of allowing McGahn or any other aides to testify. “They [House Democrats] shouldn't be looking anymore. It's done.”

Trump didn't say how his White House will officially try to fight Congress's request for information and testimony in the wake of the Mueller report. But his lawyers will likely try to assert executive privilege in a number of areas, forcing Democrats to go to court or come up with other ways to make non-complicance more costly.

Trump's comments came during an interview on Fox News, his latest with the network and coming just a night after he called into Fox Business, and touched on a number of areas. Some highlights:

On military action in Venezuela: “There's always a tipping point, but certainly I would rather not do that. I just want to help the people. The people are dying.”

On Joe Biden's comments about China: “For somebody to be so naive, and say China's not a problem — if Biden actually said that, that's a very dumb statement.” Biden on Wednesday in Iowa questioned China's ability to compete with the U.S.: “China is going to eat our lunch? Come on, man. I mean, you know, they’re not bad folks, folks. But guess what? They’re not competition for us.” “For somebody to be so naive, and say China's not a problem — if Biden actually said that, that's a very dumb statement.”

Biden on Wednesday in Iowa questioned China's ability to compete with the U.S.: “China is going to eat our lunch? Come on, man. I mean, you know, they’re not bad folks, folks. But guess what? They’re not competition for us.”

On trade talks with China: “Well, we are very close to a deal with China. But it’s a question of whether I want to make it. I mean we’re going to make either a real deal, or we’re not going to make a deal at all. And if we don’t make a deal we’re going to tariff China, and that’ll be fine. We’ll — frankly we’ll make a lot of money.” Our colleague David J. Lynch had a great story on why those talks will likely fail to meet several of Trump's goals. “Well, we are very close to a deal with China. But it’s a question of whether I want to make it. I mean we’re going to make either a real deal, or we’re not going to make a deal at all. And if we don’t make a deal we’re going to tariff China, and that’ll be fine. We’ll — frankly we’ll make a lot of money.”

Our colleague David J. Lynch had a great story on why those talks will likely fail to meet several of Trump's goals.

THE POLITICAL IS PERSONAL: Sen. Amy Klobuchar (D-Minn.) released a proposal this morning that hits close to home: "a $100 billion plan to combat drug and alcohol addiction and improve mental health care," per the New York Times's Maggie Astor.

AD

Klobuchar memorably talked about there father's struggle with alcoholism during Kavanaugh's confirmation hearing. The plan is divided into three parts: prevention, treatment, and "ongoing recovery."

"A summary provided by Ms. Klobuchar’s campaign said she would pay for the plan by charging opioid manufacturers and importers a two-cent fee per milligram, closing the carried-interest tax loophole, barring pharmaceutical companies from paying competitors to keep generic drugs off the market, and reaching a “master settlement agreement” with opioid companies," Astor reports.

“The one thing I hear over and over again across the country is people’s stories of battling with mental health and addiction,” Klobuchar told the Times in a statement. “People need help, but they just can’t get it. I believe everyone should have the same opportunity my dad had to be pursued by grace and get the treatment and help they need.”

The Investigations

NO HOLDS BARRED: Meanwhile, Barr's decision to skip Nadler's hearing incensed House Democrats, and House Speaker Nancy Pelosi (D-Calif.) laid down the gauntlet when she accused Barr of committing a crime by lying to Congress regarding Mueller's communications with him. Meanwhile, “the almost daily confrontations between the two branches of government increase the pressure on Pelosi (D-Calif.) to initiate impeachment proceedings against Trump, a politically fraught move that she has resisted in the absence of strong public sentiment and bipartisan support,” our colleagues Rachael Bade, Mike DeBonis and John Wagner report.

AD

Pelosi behind closed doors : “Ignoring subpoenas of Congress, not honoring subpoenas of Congress — that was Article III of the Nixon impeachment,” Pelosi said to her fellow Democrats. “This person has not only ignored subpoenas, he has said he’s not going to honor any subpoenas. What more do we want?”

Trump's allies rally to his defense: “House Minority Leader Kevin McCarthy (R-Calif.) essentially accused U.S. law enforcement of treason during the investigation of Russian interference in the 2016 presidential election. 'Their actions are a coup,' McCarthy said at a Post Live event yesterday morning.

Nadler said his committee, where Barr was supposed to testify Thursday, will probably adopt a contempt citation against the attorney general unless he turns over an unredacted copy of the Mueller report, something Barr has previously refused to do.

AD

“The contempt citation against Barr will set up a lengthy legal battle over the Mueller report, as Democrats take the matter to civil court. The issue could take months or years to resolve, as was the case in 2012 when the Republican-led House sued Attorney General Eric H. Holder Jr. over documents related to the “Fast and Furious” investigation,” Rachael, Mike and John write.

Oh and this happened when Barr refused to show up: (Congress just wings it sometimes.)

MEANWHILE: The White House "lodged a formal complaint with the Justice Department over the findings of special counsel Robert S. Mueller III — and made clear that President Trump believes he retains the right to assert executive privilege over material contained in the report, despite its public release," our colleagues Roz Helderman and Josh Dawsey report.

The key quote: "In his April 19 letter, [W.H. attorney Emmett] Flood accused Mueller of exceeding his authority by spilling into public view a recitation of facts far more detailed than what is typically included in criminal indictments. He described the report as “prosecutorial curiosity — part ‘truth commission’ report and part law school exam paper.”

Read Flood's letter here.

At the Pentagon

SEXUAL ASSAULT IN THE MILITARY SURGES: The Pentagon released data on Thursday indicating a 38 percent spike in sexual assaults reported by service members in 2018 — a significant increase from the 14,900 people who said they were sexually assaulted while serving per a similar survey conducted by the military in 2016, according to my colleagues Frances Stead Sellers and Dan Lamothe.

“To put it bluntly, we are not performing to the standards and expectations we have for ourselves or for each other. This is unacceptable,” acting Defense Secretary Patrick Shanahan wrote in the letter. “We cannot shrink from facing the challenge head on. We must, and will, do better.”

The elevated numbers add fuel to a contentious debate about sexual misconduct in the military and the role commanders play in determining whether to initiate legal proceedings. That role is defended by many service members who see it as critical to command structure and condemned by critics who charge it is a holdover from an earlier era and fosters bias,” Frances and Dan report.

Next Steps: “Shanahan said the steps the Pentagon will adopt to address the problem include making sexual harassment a crime in the military. The Pentagon also must adopt new ways of assessing the culture in military units, improve ways to catch repeat offenders and better scrutinize recruits for character before they are selected, he added.”

“How many more assaults and rapes and how many more victims denied justice must there be before a stubborn and selfish military brass stops fighting reform?” retired Air Force Col. Don Christensen, president of the advocacy group Protect Our Defenders, told Task & Purpose's Jeff Schogol . “The young women and men who serve our nation deserve better. It is time for Congress to stop giving the failing military leadership the benefit of doubt and pass real reform empowering military prosecutors. Enough is enough.”

“This new report is alarming. We MUST do better for our men and women in uniform and hold offenders accountable. Sexual harassment and sexual assault is incompatible with our military and American values and it must be stopped.” Sen Joni Ernst (R-IA) told Power Up in a statement.

Outside the Beltway

MAPPING THE WORST DISASTERS: “It turns out there is nowhere in the United States that is particularly insulated from everything.” That's our colleague Tim Meko's takeaway in a piece that maps out the worst natural disasters across the country over the last decade.

Here's the five most shocking details: