Senate majority leaders can be priceless allies to presidents of their own party, particularly those who come to the White House without Washington experience. Virtually every legislative achievement of Jimmy Carter’s presidency came about because of the fearsome intelligence, experience, and determination of Robert Byrd. Howard Baker and Bob Dole contributed enormously to Ronald Reagan’s successes, although Reagan was blessed with a much stronger White House staff than Carter had. Bill Clinton benefited from George Mitchell’s intellect and cunning, and Harry Reid helped carry Obamacare across the finish line against almost insurmountable odds.
From the outset of Trump’s presidency, it was likely that Mitch McConnell would play a more powerful role than any of his predecessors. Donald Trump had no Washington experience and no governing experience at all. He had expressed strong views in the presidential campaign but had not defined policies to carry them out. In business, Trump was masterful at branding, but he had proved to be an impulsive, inconsistent decision maker, bludgeoning, bullying, litigating, and lying his way to success, flirting with bankruptcy and disaster. His White House quickly proved to be a chaotic rat’s nest of rivals competing for his attention.1 Trump’s daughter Ivanka and his son-in-law Jared Kushner played influential, if undefined, roles in the West Wing, operating outside the supervision of White House chief of staff Reince Priebus, further sowing confusion.
In contrast, McConnell had the breadth and depth of thirty-two years in the US Senate. He had repeatedly proved his remarkable political skill, and he benefited from exercising great control over the fifty-two members of the Republican caucus. No one was more sensitive to the party’s donor base, and no one was more influential with it. While many senators put the interests of their states above the national interest, McConnell almost never let the interests of Kentuckians get in the way of his overriding goal: maintaining power for himself and for the Republican Party. Indeed, McConnell was a unique, vertically integrated political force. He played the political long game superbly, not least because he had written the rules. And he would rewrite them whenever necessary to further his objectives.
McConnell would have a new Senate counterpart to deal with. Harry Reid had decided not to seek reelection to the Senate in 2016, and the new Democratic minority leader would be New York senator Chuck Schumer, who had just won his fourth term. Schumer had risen to the position thanks to a superb intellect, prodigious energy, a skill at political messaging, and a zest for schmoozing. Earlier in his career, political observers joked that the most dangerous place to stand in Washington was between Schumer and a television camera. But that image faded over time as Schumer repeatedly proved his seriousness as a legislator, winning $20 billion for New York City after 9/11 and spearheading immigration reform legislation in 2013. Schumer had anticipated working with a president who was his close friend—Hillary Clinton, herself a former senator from New York—and he had expected to be majority leader. Now he would have to deal with a much different New Yorker as president, at a time when the enraged grassroots Democratic resistance to Trump would start from day one.
Schumer also faced the challenge of forging a decent working relationship with McConnell. Schumer had been chairman of the Democratic Senate Campaign Committee in 2008, when the organization ran television ads against McConnell claiming that he had caused the economic meltdown with lax regulation and then bailed out Wall Street. McConnell, angered by the accusations, held the campaign against Schumer for several years. Now, with no justification, Schumer created new bad blood when he opposed Trump’s nomination of Elaine Chao to be secretary of transportation. With her extensive record of accomplishments, Chao faced no serious opposition, and she was confirmed by an overwhelming vote of 93–6, with Schumer casting one of the votes against her. “That was totally uncalled for,” said Senator John Thune of South Dakota, a workout buddy of Schumer’s and a member of McConnell’s leadership team. “I’ve heard him explain it to me and I still don’t understand.”2 Progressive Democratic groups enraged about Trump’s election had pressured Schumer to oppose all of the president’s cabinet nominees, but he could have brushed that aside in this case. The Senate was counting on the new leadership team to improve on the poisonous dynamic between McConnell and Reid, and Schumer’s vote against Chao was not a promising way to start.
McConnell wasted no time in establishing the central governing dynamic of the Trump presidency. Unaccompanied by staff, McConnell visited the president-elect shortly after the election with one item on his agenda: the overriding importance of filling federal judgeships, even at the expense of other priorities, such as confirming Trump’s cabinet nominees. McConnell explained to Trump that over the past two years the Republican-controlled Senate had blocked the confirmation of nearly all of Obama’s nominees to the federal district and circuit courts, along with blocking Merrick Garland’s nomination to the Supreme Court. As a result, Trump would have 105 judicial vacancies to fill, compared to the 54 that Obama had found waiting when he took office in 2009.3 The long-term consequences were profound. “The thing that would last the longest,” McConnell would note later, “is the courts.”4
Trump needed no convincing. During the 2016 Republican primaries, the evangelical movement and other right-wing conservatives had remained skeptical about Trump’s personal behavior and his past politics, which ranged from independent to quite liberal. Don McGahn, a prominent Republican lawyer and a staunchly conservative former member of the Federal Election Commission, had persuaded Trump that he could win over the doubters by issuing a list of right-wing judges from whom he would choose his Supreme Court nominees if elected. Trump and his advisers saw the benefits of McGahn’s idea and readily accepted it. McGahn drew up the list with the advice of the Federalist Society and the Heritage Foundation, two organizations that had long provided the intellectual and financial firepower for the decades-old effort to secure a conservative majority on the Supreme Court.
This seemingly clear plan took months to execute. Assembling the list, McGahn told a friend, “was like juggling chain saws,” and Trump wanted to please everyone. McConnell had to intervene, suggesting that the candidate finally “put pen to paper,” because “there would be great satisfaction in the conservative community if he made his list public.”5 Ultimately, McGahn’s idea had the desired effect, galvanizing the evangelical vote for Trump and guaranteeing the support of the Republican “constitutional” wing. It may have even determined the outcome of the election.
Given that history, Trump welcomed McConnell’s postelection initiative to extend conservative control over the lower courts. He also rewarded McGahn with the powerful position of White House counsel, where McGahn, at the urging of McConnell, consolidated the power over the process of nominating federal judges and collaborated with McConnell in confirming them.6
Besides the judiciary, McConnell had one other burning priority: the repeal of the Affordable Care Act, which he detested with a passion that he rarely showed for other issues. Nevertheless, he chose not to raise this issue with the president-elect at their initial meeting. During the campaign, when Trump spoke about health care, he called the ACA a “big lie” and a “disaster,” but he often sounded disturbingly liberal on the stump. Trump vowed to protect not only Social Security and Medicare but also Medicaid, which had become an increasingly vital safety net for Trump’s white working-class base.7 Trump also had a long history of statements supporting universal coverage. “I’m very liberal when it comes to health care. I believe in universal health care,” he had said in a 1999 interview with Larry King.8
Trump would need to be educated about the importance of gutting the Affordable Care Act, and for this task McConnell was likely to find a strong ally in Priebus. Having just finished a successful tenure as chairman of the Republican National Committee, Priebus understood the importance of this issue to the Koch brothers and other key Republican donors. Coming out of Wisconsin Republican politics, Priebus was also a close friend and political ally of Speaker of the House Paul Ryan, ensuring constant communication and likely coordination between the Republican White House and Congress.
Before long, McConnell was either satisfied that Trump had abandoned his campaign position or confident that he would do so.9 On January 11, nine days before Trump took office, McConnell led the Senate to approve a budget resolution, by a vote of 51–48, that would become the vehicle for considering the repeal of the Affordable Care Act.10 In an emotional end to the debate, the Democrats kept speaking, one after the other, during the roll call. “Ripping apart our health care system—with no plan to replace it—will create chaos,” declared Washington’s Patty Murray, the ranking Democrat on health issues. “If Republicans repeal the Affordable Care Act, it’s women, kids, seniors, patients with serious illnesses, and patients with disabilities who will bear the burden.”11
McConnell would have to deal with Trump’s priorities as well. There was a diamond-hard, substantive core to Trump’s message: economic nationalism. He had been sounding this theme since 1987; “the image of the rest of the world laughing at U.S. leaders would become an enduring theme of Trump’s political rhetoric,” wrote his biographers Michael Kranish and Marc Fisher.12 During the campaign, Trump pledged to withdraw the United States from the Trans-Pacific Partnership Agreement (TPP), and he did so on his third day in office. McConnell, a strong TPP supporter, knew that this was a disastrous policy choice, devastating America’s position in the Asia-Pacific region at a time when China’s rise was putting pressure on America’s allies. But most progressive Democrats had fiercely opposed TPP; the anti-trade sentiment was strong enough to force Hillary Clinton, who once called it the “gold standard” of trade agreements, to reverse her position during the 2016 presidential campaign. If Trump had bipartisan support for anything, it was for abandoning TPP.
The other major pillar of Trump’s agenda was border security. No campaign pledge resonated with his base as much as his promise to “build a beautiful wall on the southern border and have Mexico pay for it.”13 He excoriated immigrants from Mexico as “criminals, rapists, and drug dealers.”14 He also capitalized on fears about attacks on the US homeland to support a ban on immigrants and refugees from predominantly Muslim countries.15 Trump went beyond incendiary rhetoric by nominating Senator Jeff Sessions of Alabama, the fiercest opponent to immigration in the Senate, to serve as attorney general. No one doubted that a harsh policy would follow, and on January 27 Trump signed an executive order to block entry and to restrict travel from seven majority-Muslim nations and restrict travel by US permanent residents and citizens with dual nationalities.16
The Senate Republicans now faced their first test of loyalty to their new president, and, to their credit, they pushed back strongly against what quickly became known as “the Muslim ban.” Arizona’s John McCain and South Carolina’s Lindsey Graham, working together as they often did, issued a statement calling the travel ban “a self-inflicted wound.” “Our government has a responsibility to defend our borders, but we must do it in a way that makes us safer and upholds all that is decent and exceptional about our nation,” they stated.17
Ben Sasse of Nebraska thought the overly broad executive order would help terrorist recruiters,18 and Rob Portman of Ohio criticized the travel ban as well. (Cincinnati, his hometown and traditionally moderately Republican, quickly declared itself a sanctuary city.)19 Lamar Alexander of Tennessee stated that “while it is not explicitly a religious test, it comes close to one, which is inconsistent with our national character.”20 For his part, McConnell said that he considered a Muslim ban “completely and totally inconsistent with American values. . . . We don’t have religious tests in this country.”21
In the coming weeks, in the face of political opposition and adverse federal court rulings, Trump would pull back and modify the executive order, but McConnell knew that border security would be a festering issue throughout Trump’s presidency. In 2013, the Senate, working with the Obama administration, had passed a comprehensive immigration reform bill, strengthening border security and creating a path to citizenship for eleven million immigrants living in the shadows. This was a monumental achievement, negotiated by a bipartisan “Gang of Eight” senators (with McConnell nowhere in sight), but the House Republicans had refused to take up the bill, and the moment of opportunity had passed. Since then, populist resistance to immigrants and migrants had become the most bitterly divisive issue for many wealthy countries around the world. With Trump in the White House and public attitudes changing, legislation on the 2013 model was beyond imagination.
As McConnell surveyed the political landscape, he saw real danger only in one area: Trump’s relationship with Russia. Throughout 2016, the evidence had mounted that Russia had conducted a massive campaign of “active measures” to influence the presidential election in favor of Trump, and now that Trump was in office, the issue would not go away. McCain and Graham, who detested Putin’s Russia, had joined the Democrats in demanding a Senate investigation.
From McConnell’s standpoint, the quickest way for Trump to recover from the travel ban debacle and to divert attention away from his relationship with Russia was to act like a president and do something historic, which would have the added value of angering and demoralizing the Democrats. It was time to nominate a Supreme Court justice to fill the vacancy that McConnell had kept open for nearly a year.
On January 31, Donald Trump had his first presidential moment on prime-time television, introducing the nation to Judge Neil Gorsuch, his nominee for the Supreme Court.22 Only forty-nine years old, Gorsuch had already served ten years on the Tenth Circuit Court of Appeals, based in Denver. Educated at Columbia and Harvard Law School (where he was a classmate of Barack Obama) and then Oxford, Gorsuch had clerked for Supreme Court Justice Anthony Kennedy. He was respected for the clarity of his thinking, his lively writing, and his judicial demeanor. Gorsuch was also, by any measure, a judge with a very conservative philosophy, an originalist in the mold of Justice Scalia. One study concluded that he was more conservative than 87 percent of the other federal judges; another study found Gorsuch to be even more conservative than Justice Samuel Alito or the late Justice Scalia—as far right, it seemed, as a federal judge could possibly be.23
Most Democrats viewed Gorsuch as an extreme right-wing jurist. But with the exception of Robert Bork in 1987, the Senate did not reject Supreme Court nominees on the basis of ideology. Senate Democrats and grassroots Democrats were still seething at the treatment that McConnell had given to Merrick Garland the year before. “This is the first time that a Senate majority leader has stolen a seat,” said Senator Jeff Merkley of Oregon. “We will do everything in our power to stop this nomination.”24
Mitch McConnell could have told Merkley that there was nothing in his power, or the power of the Democrats, to stop the Gorsuch nomination. Back in 2013, Harry Reid had used the “nuclear option” to make federal judgeships other than the Supreme Court subject to majority approval, without recourse to the filibuster. As sure as night follows day, McConnell would move to extend the nuclear option to Supreme Court justices in order to get Gorsuch confirmed. McConnell immensely enjoyed reminding the Democrats that they had brought this on themselves. He only had to hold his Republicans together, and Gorsuch had sterling credentials and a sprinkling of liberal endorsements, including one from Neal K. Katyal, who had been acting solicitor general in the Obama administration.25
It is impossible to overstate the dedication of the key elements of the Republican Party to lock in a right-wing majority on the Supreme Court. The effort had begun in 1969, when Richard Nixon came to the White House with a commitment to reverse the liberal tide of decisions under the Supreme Court of Chief Justice Earl Warren.26 Circumstances allowed Nixon to place four justices on the court—Chief Justice Warren Burger and Associate Justices Harry Blackmun, Lewis Powell, and William Rehnquist—even though the Senate rejected two of Nixon’s nominees, Clement Haynsworth and G. Harrold Carswell. Nixon’s record also began the long period of mounting Republican frustration when Blackmun evolved into a liberal justice (he was the author of the majority opinion in Roe v. Wade), and Powell, a preeminent corporate lawyer, turned out to be a fair-minded conservative who often came down on the side of civil liberties.
A lasting pattern was set. The Supreme Court would become markedly more conservative than the Warren court had been, as Republican presidents would fill twelve of the next fourteen Supreme Court vacancies. But somehow these nominations were never enough to satisfy the “constitutionalists,” as the Republican conservative legal community liked to call itself.27 At different times, they would be enraged by what they saw as the betrayals not only by Blackmun and Powell but also by John Paul Stevens (appointed by Gerald Ford), Sandra Day O’Connor and Anthony Kennedy (appointed by Ronald Reagan), and David Souter (appointed by George H. W. Bush), all of whom turned out to be fair-minded but not ideologically conservative justices. In 2012, the “constitutionalists” even turned their wrath on Chief Justice John Roberts, whose nomination had thrilled them, because he had the temerity to join a majority opinion that the Affordable Care Act was constitutional.28 Despite all the justices appointed by Republican presidents, the legal right wing could not get everything it wanted because its reading of the Constitution was so extreme. Now, finally, with Trump elected, the list made public, McGahn in the West Wing, and McConnell driving the train, it would no longer be denied.
“The Senate confirmation process of Supreme Court justices has always been cabined by norms of behavior and unwritten rules,” Stanford Law professor Nathaniel Persily commented shortly after Gorsuch’s nomination. “With the failure to even hold a hearing on Garland, the norms have all gone out the windows.” He predicted that the Democrats “now feel emboldened to try anything.”29
Indeed, the Gorsuch hearings never could escape the cloud created by McConnell’s refusal to hold such hearings for Garland. Every Democrat on the Judiciary Committee mentioned the “unprecedented treatment” of the Garland nomination; even some Republicans acknowledged that the Democrats had good reason to be upset.30 Gorsuch, as expected, handled the hearings well; he was prepared, amicable, knowledgeable, and often folksy. Like previous right-wing justices, he proclaimed himself to be a fair-minded judge, favoring no party above the law, and he avoided commenting on any controversial legal issue or even offering a view on established Supreme Court precedents.31
No one disputed Gorsuch’s competence; the focus had shifted to the political battle. McConnell had fifty-two Republican votes but could not possibly find eight Democrats to give him sixty, allowing him to invoke cloture and cut off debate. There was no compromise possible; Schumer was committed to fighting the nomination with a filibuster, and McConnell was determined to get Gorsuch confirmed. Weeks before, McConnell had named the date on which Gorsuch would be confirmed: April 7. On April 6, with Schumer powerless to do anything, McConnell read the series of formulaic statements that allowed him to change the Senate rules to lower the threshold for confirming a Supreme Court justice to a simple majority. “When history weighs what happened, the responsibility will fall on the Republicans’ and Leader McConnell’s shoulders,” Schumer commented bitterly. “They have had other choices, and they have chosen this one.”32
McConnell, unsurprisingly, saw the history quite differently. “This is the latest escalation of the left’s never ending judicial war, the most audacious yet,” he responded, after describing the Democrats’ opposition to the nominations of Robert Bork in 1987 and Clarence Thomas in 1991. And it cannot and will not stand. There cannot be two standards: one for the nominees of Democratic presidents and another for the nominees of Republican presidents.” McConnell could be seen exchanging exuberant “high fives” with Republican senators.33 The next day, as McConnell had predicted and orchestrated, the Senate elevated Judge Neil Gorsuch to the Supreme Court by a 54–45 vote.
Having filled the vacancy that he had created, McConnell understandably took a victory lap. He was an ungracious winner, and his trips down memory lane were always a mix of fact and fiction. Although the Republican “constitutionalists” never stopped revisiting the Bork fight, every Supreme Court nominee since that time, except for Clarence Thomas, had been confirmed smoothly—until McConnell’s obstructionism against Barack Obama and Merrick Garland.
In truth, Gorsuch’s confirmation was inevitable, and the substitution of one qualified, extreme conservative justice for another did not alter the ideological balance of the court. Democrats were angry at McConnell for his unprecedented act of hardball against Garland, and they were angry at themselves as well. Brian Fallon, the former press secretary to Hillary Clinton’s 2016 presidential campaign, had founded a political action committee, Demand Justice, after Trump’s election. “Our goal,” Fallon stated, “is to correct for the apathy and complacency that you saw among progressives when it comes to the Court and judges that you saw in 2016.”34 Democrats had never matched the Republicans’ laser focus on the importance of the courts; with one Trump justice confirmed, the party’s alliance with the Federalist Society and the Heritage Foundation was in high gear, looking forward to future fights to lock in a right-wing majority on the court.35
Midway through the fourth month of the Trump presidency, the cabinet was in place and Justice Gorsuch was confirmed, the House was moving ahead with legislation to repeal the Affordable Care Act, trilateral negotiations to modify the North American Free Trade Agreement (NAFTA) had begun, and the stock market was booming. All was right in the Republican world.
This period of calm and Republicans’ fleeting hope for a somewhat normal presidency ended abruptly on May 10 when Trump fired James Comey, the high-profile and controversial FBI director.36 The firing came shortly after Comey had requested additional resources to pursue the investigation of Russian interference in the 2016 presidential election,37 but the White House claimed that Trump had acted in accordance with a recommendation by Deputy Attorney General Rod Rosenstein. The next day, Trump admitted that that he had already decided to fire Comey before hearing from Rosenstein because of “the Russia thing.”38
One bombshell revelation followed another. The day after sacking Comey, Trump met in the Oval Office with Sergei V. Lavrov, Russia’s foreign minister, and Sergey Kislyak, the Russian ambassador to the United States, excluding American press but allowing the Russian state news agency Tass to attend and take photographs. It was soon reported that Trump had revealed sensitive intelligence information in the meeting and described Comey as a “nut job,” saying explicitly that removing Comey had reduced the pressure on Trump from the Russia probe.39 Comey’s firing immediately raised the question of whether the president had committed obstruction of justice, given his admission about why he had acted. Trump’s shocking dealings with Russia, our leading adversary—at least the tip of the iceberg—were playing out in full sight.
In past crises involving potentially serious abuse of power by presidents, the Senate had stepped forward strongly. Bob Woodward and Carl Bernstein broke their blockbuster stories on Watergate in the fall of 1972; in January 1973, the Senate unanimously agreed to establish a select committee to investigate the issue, even though Richard Nixon had just won reelection in a forty-nine-state landslide. After revelations had emerged in November 1986 that the Reagan administration had sold arms to Iran and illegally funneled the profits to the Nicaraguan “contras,” the Senate in January 1987 again unanimously created a select committee to investigate this scandal. Serious threats to the constitutional order and the country always transcended politics.
This time, again, the Senate responded strongly. Bipartisan concern about Russian interference in the presidential election had surfaced as far back as December. Schumer joined Jack Reed of Rhode Island, the ranking Democrat on the Armed Services Committee, and John McCain and Lindsey Graham in calling for the creation of a select committee to investigate. “Only a select committee that is time-limited, cross-jurisdictional and purpose-driven can address the challenges of cyber,” they wrote.40
Schumer’s involvement was a rookie mistake by the new Democratic leader, giving the request a partisan appearance that allowed McConnell to brush it aside, suggesting that any inquiry would more appropriately be handled by the Intelligence Committee.41 Richard Burr and Mark Warner, the Republican chairman and Democratic ranking member of the Senate Intelligence Committee, immediately began to assemble a staff for the investigation.42
By itself, Russian interference in the presidential campaign, with the intent to undermine our institutions and affect the outcome, posed an unprecedented challenge to American democracy. The mounting evidence of Russian collusion with Trump’s presidential campaign made the situation more ominous. Now, with the campaign over, the president was openly consorting with Russia’s senior diplomats and telling them—and the world—why he had fired the troublesome FBI director who was investigating his conduct. “There is a smell of treason in the air,” said Douglas Brinkley, a leading presidential historian.43
Deputy Attorney General Rosenstein, under stinging criticism from Capitol Hill for having been used by Trump, responded strongly by appointing Robert Mueller, a former director of the FBI, to serve as special counsel supervising an investigation into Russia’s interference in the election and any possible connection to Trump or his campaign. Mueller’s stature and integrity produced a rare moment of universal agreement that Rosenstein had made a superb choice, ensuring that the investigation would be full and fair.44 It should have also provided a respite to Trump, who was about to make his first foreign trip.
But even as the president made headlines on successful visits to Saudi Arabia and Israel, the Washington Post reported that Trump had separately called Dan Coats, the director of national intelligence, and Michael Rogers, the head of the National Security Agency, and asked each man whether he could get the FBI to stop its investigation. As Jeffrey Smith, a former general counsel to the CIA, quickly noted, Trump’s action mirrored precisely what Richard Nixon had done on June 23, 1972, when he asked the CIA to block the FBI investigation into the break-in at the Democratic National Committee headquarters in the Watergate. The tape recording of Nixon’s statement became the “smoking gun,” clear evidence of obstruction of justice that prompted Senate Republicans to abandon Nixon, bringing about his resignation.45 This time, the revelation prompted no response from McConnell or any of the other Republicans in the Senate.
As Mueller began staffing his investigation, the Senate moved forward forcefully, with the Intelligence and Judiciary Committees competing to see which would get Comey to tell his story in public.46 McConnell, who had initially mocked the Democrats for “complaining about the removal of an FBI director whom they themselves had repeatedly and sharply criticized,” changed his tune, saying that Comey should testify publicly as soon as possible.47 “Lawmakers can barely hide their ambition about landing what would be a grand media spectacle,” the Washington Post observed.48
Since the advent of television, Senate hearings had produced many of America’s most dramatic political moments. And on June 8, Comey did not disappoint. An experienced witness at ease in the hot seat, he offered a detailed, vivid depiction of five instances of President Trump’s demanding “loyalty” and pressuring him to “let Mike Flynn go,” a reference to the FBI’s investigation of Trump’s former national security adviser and his questionable ties to Russian intelligence during the presidential campaign and the transition period. Comey said the president had “lied, pure and simple” in saying that the FBI was in disarray and that the agents had lost confidence in him, the president’s stated rationale for firing Comey. He said that he had prepared contemporaneous memos of his conversations with Trump, which he never felt the need to do when dealing with the other presidents under whom he had served. He acknowledged turning over the memos to Mueller, suggesting that the special counsel would be investigating Trump for possible obstruction of justice.
On June 13, five days after Comey’s testimony, the Senate demonstrated its implacable anger toward Putin’s Russia and its deep distrust of Trump by approving, by a vote of 98–2, legislation strengthening sanctions on Russia and making it impossible for Trump to weaken the sanctions without congressional approval. The measure directed sanctions toward Russia’s defense and intelligence apparatus as well as parts of its energy, mining, railways, and shipping economy. It aimed to punish Russia not only for its interference in the US presidential election but also for its annexation of Crimea in 2014, its continuing military activity in eastern Ukraine, and its human rights abuses.49
Trump strongly objected to the sanctions, saying that they encroached on his ability to conduct foreign policy.50 Sanctions are a frequently used—indeed, overused—tool of American foreign policy, but limiting the president’s ability to suspend or terminate the sanctions was a striking departure from normal practice. David Ignatius, one of the most respected commentators on national security issues, wrote, “If this were any president other than Trump, and any antagonist but Russia, Trump’s argument would have carried more weight.”51 But given Trump’s firing of Comey, and following the ominous revelations before that, the Senate recognized a four-alarm constitutional fire and responded with the requisite urgency. Between the sanctions, the Senate committee investigations, and Mueller’s work, it appeared that the public could be confident that Trump’s accommodating stance toward Russia would be fully investigated.
For those who recalled the Senate at its best and understood its special role in our constitutional framework, the response was heartening. McConnell could rightfully judge that his Senate had stepped up. He could also breathe a sigh of relief that the course of any Senate investigation would not resemble the summer of 1973, when the hearings of the Senate Watergate Committee riveted America week after week. The investigations would proceed quietly, out of the public eye, allowing the work of government, and the pursuit of Republican objectives, to go on unimpeded.
Indeed, six months into the Trump presidency, Republicans willing to look past Trump’s Russia connection and aberrational behavior could find evidence to convince themselves that traditional Republican policies were being advanced under the Trump administration. Senate Republicans, led by Orrin Hatch and Chuck Grassley, had joined the business community in pushing back strongly against Trump’s threat to pull the United States out of NAFTA, and Trump now seemed to be calmer about Mexico, or at least willing to channel his anger toward building the border wall rather than blowing up NAFTA. North American supply chains, essential to virtually every large company, were no longer facing imminent threat of disruption. The business community also strongly supported the administration’s push for deregulation of protections for the environment, consumers, and workers. They looked forward to the tax reform legislation that Treasury Secretary Steven Mnuchin was spearheading, and Trump’s promise of a massive infrastructure program.
However, two Republican senators, who had every incentive to resolve their doubts about Trump in his favor, simply could not do it. Jeff Flake is a fifth-generation Arizonian, from a ranching family, whose politics were inspired by his hero, Barry Goldwater. A deeply religious person, raised as a Mormon, Flake had attended Brigham Young University and served two years as a missionary in South Africa and Zimbabwe. Before entering politics, he had been the executive director of the Goldwater Institute, a think tank committed to advancing Goldwater’s principles including free markets, open trade, liberal immigration policy, and strong national defense. Flake was elected to the House of Representatives in 2000, and after six terms there, he won a Senate seat in 2012. Immediately after reaching the Senate, Flake became one of “the Gang of Eight,” the bipartisan group negotiating the comprehensive immigration legislation that the Senate passed in 2013.
Like many Republicans, Jeff Flake spoke out strongly against Donald Trump before he was nominated. In June 2016, Flake said, “We can’t support a candidate who will do to the Hispanic vote what has been done to the African-American vote for Republicans going forward.”52 After Trump was nominated, Flake continued to speak out, issuing this tweet: “America deserves far better than @Donald Trump. . . . Republicans should not be okay with @Donald Trump threatening to jail his opponent after the election . . . @Donald Trump saying that he might not accept election results is beyond the pale.”
Unlike other Republicans who turned 180 degrees as soon as Trump won the presidency, Flake continued to be appalled by Trump’s conduct. In July 2017, borrowing the title of Goldwater’s classic 1960 manifesto, Conscience of a Conservative, Flake published a book without precedent in American politics: a US senator attacking a newly elected president of his own party. He began the book by noting that Trump “has a regular habit of destabilizing the American people, not just foreign leaders,” and he denounced “the embrace of ‘alternative facts’ at the highest levels of America life,” which “creates a state of confusion, dividing us along fissures of truth and falsity and keeping us in a kind of low-level dread.”
Flake’s statement of conscience pinpointed the special responsibility that he and other Republican senators carried. “Under our Constitution, there simply are not that many people who are in a position to do something about an executive branch in chaos,” Flake wrote. “Too often we observe the unfolding drama along with the rest of the country, passively, all but saying: ‘Somebody should do something’ without seeming to realize that that someone is us.”53
In October, having enraged Trump and his Arizona Republican base, Flake announced that he would not seek reelection in 2018. “None of these appalling features of our current politics should ever be regarded as normal,” he stated. “We must not allow ourselves to lapse into thinking that this is just the way things are now. If we simply become inured to this condition, thinking this is just politics as usual, then heaven help us.”54
Perhaps Flake’s Republican colleagues could dismiss him as an earnest, unrealistic moralistic backbencher; he had, after all, been a missionary in his youth. Bob Corker, however, was a different case: a successful builder who had been mayor of Chattanooga before being elected to the Senate from Tennessee in 2006. Corker had risen to become chairman of the Foreign Relations Committee—one of the four most prestigious Senate chairmanships—just eight years after coming to the Senate, which was a modern record. Consequently, Corker was a much more powerful senator than Flake, and focused intently on national security issues. He, too, spoke out publicly against Trump.
In May 2017, after the Oval Office meeting with the Russian foreign minister and the Russian ambassador, Corker expressed regret that “a really good national security team” was being undermined by the “chaos and lack of discipline” of the president. In August, Corker said that Trump “has not been able to demonstrate the stability, nor some of the competence that he needs to demonstrate in order to be successful.”55 In October, in a New York Times interview, Corker escalated his criticism: Trump was treating his office “like a reality show” with “reckless threats toward other countries” that could set the nation “on the path to World War III. . . . He concerns me. He would have to concern anyone who cares about the nation.”56
In interviews with CNN and ABC’s Good Morning America on October 24, Corker suggested he would convene hearings to examine the ways that President Trump “has purposely been breaking down relationships around the world. . . . He’s obviously not going to rise to the occasion as president.” If his own concerns as chairman of the Senate Foreign Relations Committee were not enough, Corker stated, “Except for a few people, the vast majority of our caucus . . . understands the volatility that we’re dealing with here.”57
Critics would say that Flake could have sought reelection as an independent, and that Corker should have run again, particularly given his prominent Senate chairmanship. But the positions they expressed were extraordinary—true profiles in courage. They undoubtedly hoped that other Republican senators would follow their lead, but the silence was deafening.
The danger posed by President Trump to our nation was crystal clear to Flake and Corker, and undoubtedly to other Senate Republicans who chose to stay silent. McConnell, an experienced hand in national security matters, undoubtedly shared many of these concerns, but he saw no point in publicly attacking a Republican president. He would instead offer private counsel to Trump and rely on the “adults in the room”—Defense Secretary James Mattis, National Security Adviser H. R. McMaster, and Chief of Staff John Kelly—to make sure that Trump did not run wild on the global stage.
McConnell’s North Star remained unchanged: keeping the Senate majority. Flake could not win reelection in Arizona after his extraordinary attacks on Trump. Corker might have been able to win another term in Tennessee, but the state had become increasingly conservative, so another Republican without Corker’s anti-Trump baggage would be able to hold the seat. Moreover, McConnell personally disliked Corker, who, next to McCain, was his most persistent pain in the ass. As a new senator in 2007, Corker had tried to take the lead on promoting bipartisan financial regulation; McConnell had had to slap him down, and neither of them ever forgot it.58
As the summer of 2017 approached, the time had come for McConnell’s second priority (other than judges): repealing the hated Affordable Care Act. Here he had a steeper path to climb. Seven years after the law’s passage, millions of previously uninsured Americans were now covered by health insurance. Key provisions of the ACA had also proved to be very popular. Requiring insurers to cover people with preexisting conditions was a godsend to millions. Allowing parents to keep their adult children on their insurance until age twenty-six constituted a meaningful benefit for many families. Making health insurance portable so that people could leave their jobs while still keeping their health care provided an enormous relief to workers and their families while making the economy more dynamic.59
Nor would it be easy for the Republicans to improve upon the ACA. “In drafting his health care plan, Barack Obama chose a moderate, market-based approach,” the New York Times columnist David Leonhardt reminded his readers. “It was to the right of Bill Clinton’s and Richard Nixon’s plans, and way to the right of Harry Truman’s. And yet the Republicans still wouldn’t support it. The version that passed did not leave the Republicans much room to maneuver.”60
With Donald Trump in the White House, the Republicans would now get their chance to repeal “Obamacare.” They confronted the problem that once people faced the stark reality of losing the benefits they had gained, the ACA became even more popular. An Urban Institute report concluded that if the ACA were repealed, the number of uninsured Americans would rise from twenty-nine million to fifty-nine million within two years.61 The Tea Party and the Republicans had played the fear card in opposing Obamacare in 2009 and 2010; now the law’s defenders had the fear card on their side.
The House of Representatives, led by Speaker Ryan, would go first. Ryan’s predecessor as speaker, John Boehner, had opposed the Affordable Care Act’s passage in 2010, but even he was dubious about the Republicans’ ability to build a new health-care system on the fly. “In the twenty-five years I served in the Congress, the Republicans never ever, one time, agreed on what a health care proposal should look like—not once,” Boehner observed. “And if you pass repeal without replace, anything that happens is your fault. You broke it.”62 But Boehner’s insight did not matter. “This is existential for Republicans,” said David McIntosh, a former House member from Indiana who was now president of the Club for Growth. “If you don’t repeal Obamacare and replace it, I don’t think you’ll stay in the majority in the next election.”63
Ryan knew that the House Democrats would unanimously oppose Obamacare repeal, and so he had to hold virtually every House Republican, and there were still a group of Republican moderates who would not support blowing up the health-care system. But after several weeks of intense horse-trading, on May 4, by a narrow vote of 217–213, the House of Representatives passed the American Health Care Act, redeeming its pledge to remake the American health-care system without mandated insurance coverage. The extreme nature of the House legislation produced “a rare unifying moment,” as doctors, hospitals, insurers, and consumer groups all expressed immediate, vehement opposition. “This is not a reform,” said Michael Dowling, the chief executive of Northwell Health, a large health-care system in New York. “It is just a debacle.”64
The action now shifted to the Senate. A complex policy issue, with impact on virtually every American, with profound political impact—it was hard to remember an issue that so deeply engaged so many senators. At least ten Republicans, led by Susan Collins, a former state insurance commissioner in Maine; Bill Cassidy of Louisiana, a physician; and Lamar Alexander, the chairman of the Health, Education, Labor and Pensions Committee, appropriately known as HELP, began floating ideas and alternative bills.
In mid-May, six Republicans sat down with three moderate Democrats and began to hammer out legislation. They shared an understanding that only a bipartisan solution would work. “I don’t think there is a Democrat who would vote for repeal,” said one of those Democrats, Joe Manchin of West Virginia. “But I think there are forty-eight Democrats who are willing to work on some repairing or fixing.”65
One immovable object stood in the way of a bipartisan legislative fix: Mitch McConnell. The majority leader had given memorable speeches in 2014 and 2015 about how the Senate was the place where the parties came together to forge bipartisan agreements that would command broad support. But he made those speeches when Obama was president. Now that Trump, a Republican, was in the White House, McConnell saw no need for bipartisanship. He took a back-seat to no one in his hatred of the ACA, which he termed the “worst piece of legislation he had ever seen,” and if the Democrats would not vote for repeal, he would repeal the law without them. The lesson that McConnell drew from the debacle on the House side was that stronger leadership—his—could produce a better bill and repeal the ACA on a strictly partisan basis.66
McConnell formed a task force of thirteen Republican senators to hammer out a bill. He excluded all five Republican women, even though three of them—Susan Collins, Lisa Murkowski, and Shelley Moore Capito—had already shown deep interest in the issue.67 McConnell’s “process” envisioned no hearings, no committee action, and, in fact, very little public exposure of the legislation being cobbled together. Speed and stealth were the essence of the strategy; McConnell promised to issue a discussion draft on June 22 and to hold a Senate vote before the July 4 recess. He sought to ram through the legislation before any of the affected constituencies could rally against it.68 It was an astonishing approach. Experienced observers could think of no case where the Senate had dispensed with hearings on an important issue, and no issue affected more Americans than this one.
Although the Obama administration had failed to educate the public well about the ACA when it was under consideration in Congress, it very effectively mobilized support for the legislation from a wide range of affected constituencies. The ACA had become law because it had won support from insurers, hospitals, doctors, nurses, pharmaceutical companies, consumer groups, patient advocates, and senior citizens. They were invested in it; they would oppose repeal or significant changes. They would also oppose a legislative process in which they were not serious participants.
Exasperated Republican senators were pushing back as well. It was one thing to follow the majority leader in a partisan battle, but here he was asking his caucus to fall in line for legislation that would do harm to millions of their constituents. “Do you know what the health care bill looks like?” Murkowski asked reporters. “Because I don’t.”69 Utah’s Mike Lee, a member of the task force, complained that he didn’t know what was in the bill; “it’s not being written by us. It’s apparently been written but apparently by a small handful of staffers in the Republican leadership.”70 Jennifer Steinhauer of the New York Times observed that “without hearings, committee work, or a public drafting of the bill—all marks of the original health care law—members on both sides of the [Republican] divide felt bruised and left out.”71
McConnell’s discussion “draft,” released on schedule on June 22, satisfied virtually no one. The bill’s prospects, already dim, worsened when the Congressional Budget Office estimated that twenty-two million additional Americans would become uninsured over the next decade than under current law.72
With the reality of the legislation’s effects now apparent, Republicans began to defect. Collins stated her opposition first, diplomatically saying that McConnell had “done his best,” but she would have handled it differently.73 Dean Heller of Nevada, the most vulnerable Senate Republican up for reelection in 2018, joined his state’s Republican governor in denouncing the bill.74 Rob Portman of Ohio and Shelley Moore Capito of West Virginia expressed concern about the deep cuts in Medicaid proposed by McConnell’s bill.75 Jerry Moran of Kansas said that he could not support the bill as written and called for a “national debate that includes legislative hearings. It needs to be less politics and more policy.” At the same time, Rand Paul of Kentucky and Ron Johnson of Wisconsin attacked the bill for containing too little reform; Paul called it “Obamacare-lite.”76 Temper fraying, McConnell, usually unflappable, lashed out at Portman, chiding him for abandoning the commitment to entitlement reform that he had favored when he had served as budget director for President George W. Bush.77 Taking fire from both sides, McConnell wisely concluded that the time was not right to move forward before the July 4 recess.
It was a striking moment. McConnell, the supposed institutionalist, proposed to repeal the Affordable Care Act by jettisoning every traditional aspect of legislating and every commitment he had made about restoring “regular order.” McConnell often seemed to care about nothing other than keeping power for himself and the Republicans, but he held some strong views. His anger at Portman was genuine; he believed the rate of entitlement growth was unsustainable, particularly the explosive growth of Medicaid. He hated the fact that under the ACA, the federal government would assume the overwhelming share of the responsibility for Medicaid in those states that chose to accept the funds provided by the legislation.
McConnell showed no concern that many state budgets were buckling under the weight of Medicaid costs, or that Medicaid had become the essential provider of health care for the working poor, which included much of Trump’s political base and a significant part of the population of Kentucky, one of the nation’s poorest states. McConnell’s obsession with the ACA and his desire for a Republican victory seemed to blind him to the magnitude of the issue and its impact on the people represented by the Republican caucus. During his long tenure as leader, McConnell had routinely sacrificed the Senate in pursuit of his partisan objectives. But he had not previously asked Republican senators to walk the plank in so blatant and public a way.
On July 17, McConnell conceded that “the effort to repeal and immediately replace the failed Obamacare will not be successful.” Instead, he would ask the Senate to repeal the ACA now and work to replace it over the next two years.78 This was another jaw-dropping idea; would McConnell really compound his failure by forcing his caucus to cast a vote that would cause chaos in the health-care system?
Having seemingly admitted defeat, McConnell regrouped to mount an enormous, all-out offensive. He probably concluded that he had no choice. The Koch brothers and the network of groups they financed were determined to shred the ACA, and they formed a key part of the Republican donor base. Paul Ryan, a weak leader, had rammed a bill through the House, and Trump was goading the Senate Republicans to act. McConnell, the strongest leader in memory, did not like to show any evidence of weakness. Circumstances combined to produce a moment of extraordinary drama for the Senate and the country.
On July 25, John McCain returned to the Senate after eye surgery that had revealed the same incurable brain cancer that had taken the life of another Senate giant, Ted Kennedy, during the 2009 fight to pass the ACA. With almost every senator present in the chamber, McCain gave an impassioned speech in which he repeatedly disparaged McConnell’s terrible process, predicted that the current effort would fail, and urged a return to “regular order”: legislating through hearings and a thoughtful committee process.
He then broadened his comments to reflect on the increasingly tribal and fractured nature of the Senate. “We’ve been spinning our wheels on too many important issues,” McCain declared, “because we keep trying to win without help from across the aisle.” He talked about the importance of things other than winning: “incremental progress,” “compromise,” and “just muddling through.”79
Unmoved by McCain’s logic, passion, or courage, McConnell pressed the Senate to vote on one version of repeal after another, repeatedly falling short of the fifty votes needed for passage. (Vice President Mike Pence would then provide the tiebreaking fifty-first vote.) McConnell’s last-gasp effort was an eight-page “skinny repeal” that abolished the mandate for individuals and employers to buy insurance, as well as some of the taxes that funded the ACA. The “skinny repeal” immediately received scathing criticism from many senators. Lindsey Graham called it a “disaster” and a “fraud” and said he would only vote for it if Paul Ryan agreed that the House would not accept it and that the legislation coming back from conference would be much different.80 The Republican health-care drive had come full circle; the idea of the Senate improving the House bill was a distant memory. Still, McConnell, counting votes closely, thought he would get the fifty votes he needed.
Events conspired to make Thursday, July 27, one of the most memorable nights in Senate history, when a decision of enormous political consequence combined with a moment of tremendous emotional power. John McCain, dying of brain cancer, but holding the deciding vote, came to the Senate floor after midnight, talked to several of his colleagues, and, when his time to vote came, flashed a thumbs-down, joining Collins and Murkowski in defecting from McConnell, to defeat the “skinny repeal” by a 51–49 vote. McConnell, tight-lipped and face flushed, took the floor to offer an understated observation: “This is clearly a disappointing moment.” He then criticized the Democrats for not participating in a process from which they had been completely excluded.81
The “blame game” for the Republican debacle began quickly. On August 7, McConnell made a speech in Louisville in which he observed that President Trump, “who has not been in this line of work,” had “excessive expectations” about the speed with which Congress could pass major legislation. This matter-of-fact observation enraged the thin-skinned president, who blasted out in a series of tweets, suggesting that if McConnell could not deliver on major legislation, he should step down as leader.82
In truth, McConnell was undoubtedly correct in thinking that Trump had failed to provide any meaningful presidential leadership in this major fight, in stark contrast to the way Obama battled for the ACA. But it was also true that McConnell had failed Trump in a fundamental way. The neophyte president needed the counsel of the veteran majority leader. McConnell should have understood that it is extraordinarily difficult to take away a benefit once given. He should have recognized early on that he could not hold fifty of the fifty-two Republican senators to repeal and replace the ACA. McConnell had made every key strategic and tactical decision, and so his attempt to shift the blame to Trump was embarrassing.
One of McConnell’s guiding principles, which he had demonstrated brilliantly during the Obama years, is that the party in power gets blamed when things go wrong. Consequently, he should have been looking for a bipartisan approach. If an Obamacare “fix” proved popular, the Republicans could take the credit. If the fix proved unpopular, or if premiums and deductibles soared, or if the insurance markets crashed, the Democrats would share the blame. McConnell’s fixation with repealing the ACA blinded him to the political realities and the human costs, causing him to overreach.
McConnell had committed legislative malpractice on a grand scale, and yet, remarkably, he almost succeeded. At least ten Republican senators who had clearly expressed reservations stood with McConnell in voting for several versions of ACA repeal—with or without a replacement. It provided a clear measure of the intense tribal politics dividing the nation, their loyalty to McConnell, and their fear about getting crosswise with Trump. The Senate Republicans were lemmings, walking with eyes wide open into the sea. They voted to do grave damage to the health-care system of America and millions of their constituents, all to fulfill the obsession of the majority leader, some key Republican donors, and Trump, who (without any real understanding of the health-care system) had signed on to their plan.
The repeal battle also taught a clear lesson about McConnell. His willingness to cast aside Senate norms and customs plainly extended well beyond Supreme Court nominations. He would stop at nothing to win. And despite the painful defeat, in McConnell’s “long game” there would be other opportunities to undermine the ACA. In the meantime, he would turn to an issue that would unite all Republicans. He urgently needed to deliver major legislation; the only antidote to the ACA failure that could calm the Republican donor base was a massive tax cut for business and the wealthiest individuals.
In 1981, Ronald Reagan had made an enormous supply-side tax cut the centerpiece of his domestic program. In 2001, George W. Bush had done the same. The Republican Party also claimed credit for the 1986 tax reform legislation, the centerpiece of Reagan’s second-term agenda, which brought about a historic simplification of the tax code, accomplished with broad bipartisan support. For thirty years, the Republicans had pounded the Democrats for their willingness to consider raising taxes under any circumstances. Now it was time for Trump to match or surpass the work of his Republican predecessors.
The federal tax code, riddled with loopholes, privileges, and complexity, certainly needed reform. There was a powerful case to be made that the 35 percent corporate tax rate had become uncompetitive as other nations cut their rates to attract investment. It was also causing many American companies to leave hundreds of billions in profits overseas to avoid US taxation. Repatriating that money was a high priority for the Obama administration, which did not succeed in accomplishing it, largely because of McConnell’s opposition.83
The economic case for a tax cut was not compelling. The previous Republican tax cuts came during times of recession. In contrast, “Mr. Trump is proposing to cut taxes during one of the longest economic expansions in American history,” economics reporter Binyamin Appelbaum observed in the New York Times. “It is not clear that the economy can grow much faster; the Federal Reserve has warned that it will seek to offset any stimulus by raising interest rates.”84
There was certainly a case to be made for tax relief for low-income and working-class people; America had the highest level of income inequality of any developed nation. Instead, the proposed tax cut that McConnell championed exacerbated the problem. It was primarily a business tax cut, with its central provision cutting the corporate tax rate to 21 percent. It also disproportionately benefited wealthy individuals—the top 1 percent—by reducing the top individual income tax rate from 39.6 percent to 37 percent for married couples with incomes over $600,000. It doubled the estate tax exemption that the wealthiest households could pass on tax-free to their heirs. And it was a wind-fall for those who had “pass-through” income (income from businesses such as partnerships, S corporations, and sole proprietorships that business owners claim on individual tax returns); these taxes were cut by 20 percent. The top 1 percent of taxpayers would receive 61 percent of the benefits of the legislation, while the bottom two-thirds of households would see just 4 percent.85
These inequities did not concern Mitch McConnell. The $2.1 trillion Tax Cut and Jobs Act sped through both houses of Congress, thanks to the budget reconciliation process, passing the House on November 16 by a 227–205 vote and the Senate on December 2 by a 51–49 vote. The “usual suspects”—Flake, Collins, Murkowski, and Corker—raised serious concerns, but ultimately all were satisfied by concessions, other than Corker, who opposed the legislation as an unacceptably large addition to the federal debt. The Reagan and Bush tax cuts had attracted significant bipartisan support, but this one passed on a party-line vote.86
Cutting the corporate tax rate and allowing businesses to fully and immediately write off the costs of equipment and other expenses produced an immediate jump in corporate investment. Economists and analysts described the effect of the law as temporary, a “sugar high,” which proved to be accurate.87 Democrats assailed the legislation for providing little benefit to poor, working-class, or middle-class Americans, and polls showed the legislation to be unpopular. McConnell did not let these polls stand in the way of his satisfaction. Delighted to have a major legislative achievement, he repeatedly called the legislation a “once in a lifetime opportunity” that would benefit “hard-working middle-class people,” the actual impact notwithstanding.88
McConnell had another reason to celebrate. Folded into the thousand-page bill was a provision to eliminate a core component of the Affordable Care Act, the requirement that most people have health insurance or pay a penalty if they did not buy it. He failed to repeal the ACA directly but returned to weaken the law substantially in December. And Collins, Murkowski, and McCain all voted for it. McConnell was ending the year with a major victory on the two issues that mattered most to him.89