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Pelosi needs big cushion to return as Speaker

The fate of House Minority Leader Nancy Pelosi (D-Calif.) could hinge on one number: how many House seats Democrats win back in November.

Pelosi, who has led the Democrats since 2003, has given no indication she intends to relinquish her position, regardless of the midterm outcomes. But winning the 23 seats Democrats need to seize the House majority may be no guarantee that Pelosi can gather the 218 votes she’d need to retake the Speaker’s gavel, which she lost after Republicans captured the chamber in a 2010 wave.

A few centrist incumbent Democrats have habitually bucked Pelosi’s leadership in the biennial Speaker’s vote on the House floor. Now they could be joined by a growing number of Democratic candidates who have promised voters they’ll reject Pelosi if they’re sent to Washington — a strategy largely designed to counter the Republicans’ escalating campaign of linking Democratic hopefuls to their party’s liberal leader.

Those dynamics mean that Pelosi’s Speaker bid may hinge on Democrats going several seats beyond the 23-seat minimum required to retake the House, creating a cushion for Pelosi to overcome the detractors in her own ranks.

“I think the magic number is somewhere between 29 and 34,” said one Democratic lawmaker who wants Pelosi replaced and asked for anonymity to speak on the sensitive topic of leadership. “She has to probably get to 34 seats to guarantee she can still be Speaker.”

“It’d be great — we’d love to have that,” the lawmaker added. “But it’s a big number.”

Pelosi enjoys widespread support in the liberal-leaning caucus, despite the murmurings of insurrections. And Pelosi’s supporters insist she’ll be the Speaker even if the Democrats win by only a small margin, for the simple reason that no other potential contender is more popular.

Rep. Steny Hoyer (D-Md.), the minority whip who’s long had eyes on the top spot, hasn’t waged a challenge since losing a contest to Pelosi in 2003. Rep. Joseph Crowley (N.Y.), the Democratic Caucus chairman who’s positioning himself to move up the leadership ladder, has said he won’t take on Pelosi if she decides to stay. And Rep. Tim Ryan (D-Ohio) was defeated soundly when he challenged Pelosi for the leadership position in 2016 and says he has no intentions of another run.

“The problem that Pelosi complainers have is that there’s no one that can beat her. And that continues to be the case,” one Pelosi ally said Monday. “Who’s going to beat Nancy Pelosi? There’s no one that can. So she’ll win in the Caucus, and then she’ll win on the floor.”

Still, a growing number of Democrats — veterans and newcomers alike — think Pelosi’s path to the Speakership would prove tougher this year amid a rising internal clamor for generational change and a blizzard of Republican attacks that have led some Democratic candidates to distance themselves from their own party’s leader.

Pelosi’s success, these voices say, will pivot on the appearance — and the size — of a blue wave in November.

“If it’s a comfortable majority, I think everybody’s reelected,” said a veteran Democratic lawmaker, referring to the Democrats’ current leadership team of Pelosi, Hoyer and Rep. James Clyburn (S.C.). “If it’s a very narrow win, then that becomes a very different situation, because you’ve got a number of candidates — including people who are already in office now — who wouldn’t vote for Nancy. So now I think it becomes much more difficult for her. And if she doesn’t have the votes, then you have a race to succeed her.”

The veteran lawmaker declined to commit to supporting Pelosi if she vies to remain at the top of the party in 2019.

“I guess it depends who’s running, who’s running against her,” the lawmaker said.

Speculation about Pelosi’s future is hardly new to Capitol Hill, but it’s intensified in recent years as her tenure has lengthened and a younger crop of greener lawmakers has grown increasingly frustrated with the leadership bottleneck at the top of the party.

Rep. Linda Sánchez (Calif.), the vice chairwoman of the House Democratic Caucus, made waves in October when she endorsed a complete overhaul of the party leadership next year.

Republicans, meanwhile, aren’t helping Pelosi’s future leadership ambitions. While they’ve used Pelosi as a campaign punching bag for years, the issue of her leadership spot has been magnified significantly this cycle in the face of personal attacks coming from President Trump, the millions of dollars the GOP’s campaign arm is pumping into anti-Pelosi ads and the number of swing districts that are up for grabs in the volatile 2018 cycle.

With the exit of President Obama, Pelosi is now the Democrats’ most prominent national figure — a liberal lion of San Francisco who both energizes the base and alienates many voters in the more conservative-leaning districts the Democrats are hoping to pick up in November.

Rep. Conor Lamb (D-Pa.), who won a special election last month in a district Trump carried by 20 points, made headlines when he aired a campaign ad disavowing Pelosi, saying he will not support her for leader. And while Pennsylvania redistricting would put Lamb in a more Democratic district next year, meaning he may be clear to abandon that pledge, a number of Democratic hopefuls around the country are making similar promises, including Paul Davis in Kansas, Andrew Janz in California, Brendan Kelly in southern Illinois and David Kim in Georgia.

“[Russian] President [Vladimir] Putin probably has a better approval rating in Georgia than Nancy Pelosi,” Kim told McClatchy early in his campaign.

Such sentiments pose no immediate threat to Pelosi’s leadership future, as many of those candidates have yet to survive tough primary contests, let alone November’s general elections. And there are signs, even outside of Lamb’s victory, that the GOP’s strategy may simply not work. A Washington Post-ABC News poll released last week found that only 35 percent of voters deem a candidate’s views on Pelosi as “important.”

But if voters do send those no-Pelosi Democrats to Washington, they’d be under intense pressure to make good on their campaign vows in their very first vote on the floor. And their numbers could grow as the primaries end and more Democratic candidates are asked to clarify their positions on the Democratic leader in the general contests.

“At the end of the day our candidates need to determine what their positions are on the major issues, including the issue of leadership,” Ryan said.

Complicating forecasts, the process for picking leadership involves not one vote, but two.

The first is a secret ballot among the Democrats, including new arrivals, with the winner decided by a simple majority. Pelosi has easily fended off two challenges in the past decade, most recently defeating Ryan by a lopsided 134-63 caucus vote in 2016. If those trends hold, Pelosi could likely keep her place atop the party even if the Democrats fail to win back the chamber.

The second contest will take place in January — a public vote for Speaker on the House floor, where Democrats have traditionally banded overwhelmingly behind Pelosi as a show of unity. After the divisive Pelosi-Ryan contest, only four Democrats — Reps. Jim Cooper (Tenn.), Ron Kind(Wis.), Kyrsten Sinema (Ariz.) and Kathleen Rice (N.Y.) — bucked Pelosi in the Speaker’s vote. And Sinema, who’s running for Senate, won’t be around to air her grievances after November.

Those dynamics have led many Democrats to predict that even Pelosi’s loudest detractors will rally behind her if they’re needed to get her to 218.

“If she wins the Caucus significantly, people are going to be hard pressed to — what? — allow the Republicans to choose our Speaker?” said Rep. Raúl Grijalva (D-Ariz.).

“There’s people that are going to be off the hook because of their [campaign] pledge,” he added. “But there’s others that, while they’ve intimated they wouldn’t [support Pelosi] — especially some of her opposition that’s here now — they’re going to be hard-pressed.”

Conway accuses CNN’s Bash of sexism

White House counselor Kellyanne Conway turned combative Sunday when CNN’s Dana Bash raised questions about her husband‘s critical tweets — accusing Bash of a sexist line of questioning.

Bash, interviewing Conway on “State of the Union,” referenced a tweet from Conway’s husband, George Conway, in which he suggested that President Donald Trump’s frequent contradiction of aides is “absurd.”

Conway tried to turn the conversation back to Hillary Clinton and CNN, seeking to make a point about women’s intellectual independence from their husbands.

“No. 1 … that woman who lost the election whose name I never see on TV anymore is wrong that women — I think she said white women have to listen to … the men in their life to form their own political opinions. Wrong again, lady,” Conway said.

“No. 2,” Conway said, “it’s fascinating to me that CNN would go there. But it’s very good for the whole world to have just witnessed … that it’s now fair game what people’s — how people’s spouses and significant others may differ with them. I’m really surprised, but very, in some ways, relieved and gratified to see that.”

Bash responded that gender had nothing to do with her question, saying: “I would ask you that if you were a man.“ Conway cut her off again.

“No, you wouldn’t,” Conway said.

“A thousand percent, I would,” Bash responded.

“No, no, no, no, no,” Conway said.

“It’s not about that,” Bash said. “It’s about questioning — publicly questioning what you are doing for a living and with regard to your boss. And it has nothing to do with your gender.”

After a few more rounds of arguing, Conway — who also criticized CNN for the scope of its coverage of the president — said the question was “meant to harass and embarrass.”

“CNN chose to go there,” Conway added. “I think that’s going to be fascinating moving forward.“

Flipping Cohen against Trump may not be so easy

Secrecy issues make turning a lawyer against a client a legal minefield, experts say

Getting Michael Cohen to rat out President Donald Trump may not be as simple as it sounds.

Although Trump’s detractors are rooting for Trump’s personal attorney to “flip” on the president and cooperate with special counsel Robert Mueller to escape a potentially harsh prison sentence, legal obstacles make it difficult for lawyers to expose their clients’ guarded secrets.

Even if Cohen is determined to break his confidences with Trump, legal ethics might deter federal prosecutors from coaxing him to betray his professional confidences with Trump, legal veterans and experts say.

“This idea of ‘flipping’ Cohen — they can’t just flip a lawyer to testify against a client,” longtime defense attorney Harvey Silverglate said. “Even if Cohen doesn’t know better, one would think the FBI and the prosecutors would know better.”

Silverglate said not only Cohen but prosecutors could be disbarred for overstepping the well-established ethical boundaries.

FBI agents raided Cohen’s home and office earlier this month and seized records and electronic devices that reportedly contain communications with Trump, whom Cohen has represented for more than a decade.

Because Cohen was Trump’s lawyer, many of those communications are likely covered by the legal principle of attorney-client privilege, which would typically prevent them from being admissible in court.

While the privilege can be waived, only Trump — and not Cohen — has the right to do so.

“It is absolutely the case that, even if he is criminally liable himself, Michael Cohen is not allowed to disclose client confidences learned through the attorney-client relationship about any client without their permission,” said Paul Rosenzweig, a former legal adviser to Whitewater independent counsel Kenneth Starr.

Attorneys for Cohen and Trump declined to comment for this story. But other lawyers expect that the president’s legal team would vigorously object to Cohen discussing Trump’s past dealings to prosecutors. Lawyers for Trump are already fighting in court to block prosecutors’ access to information the FBI seized on the grounds that it is covered by privilege.

There are exceptions to what privilege will protect. Communications made with the intent of committing or concealing a crime or fraud are exempted, for instance.

And Cohen is entitled to disclose conversations with Trump that are directly related to charges he might face.

“The ethics rules allow lawyers to disclose client confidences from a representation if the lawyer is charged with wrongdoing arising out of the representation,” said New York University law professor Stephen Gillers. “You can’t trade on client information unless you’re charged with wrongdoing because of the representation of that client.”

Lawyers said prosecutors are likely to tread carefully because any misstep could jeopardize the investigation by the U.S. attorney’s office in New York into Cohen, which includes his payment of $130,000 in alleged “hush money” payment to porn star Stormy Daniels, who claims she had sex with Trump and was paid to buy her silence shortly before the 2016 election. Trump says he was unaware of the payment.

That federal probe also reportedly involves Cohen’s personal business dealings, including financing of dozens of New York City taxi medallions that Cohen has owned.

Casual treatment of information from Cohen could even put at risk Mueller’s investigation into alleged collusion between the Trump campaign and Russia, attorneys said. It was Mueller who uncovered and referred to New York federal prosecutors the information that triggered the raid on Cohen’s addresses.

On Saturday, Trump lashed out at press reports that Cohen might choose to “flip” against his former boss and client, but the president also seemed to emphasize that Cohen was engaged in business Trump had nothing to do with.

“Michael is a businessman for his own account/lawyer who I have always liked and respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories,” Trump wrote. “Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media!”

Even if Cohen is inclined to share information about Trump with prosecutors, the government would likely want a judge to rule explicitly that the attorney-client privilege doesn’t apply — either because Cohen was engaged in order to commit a crime or because the matter in question did not involve confidential legal advice.

“They have to be very careful. They don’t want to taint the members of the Mueller team,” said one former federal prosecutor who handled a case in which an attorney was charged criminally. “They get tainted with that, they’re off this case. It’s a pretty heavy penalty. … They certainly could not simply bring [Cohen] in. They could not break that privilege without some court deciding that.”

Adding to the complexity is the fact that Cohen also served as an attorney for the Trump Organization and acted on his own in various business deals. That means prosecutors could be entitled to ask some questions about Cohen’s experiences in dealings with Russia, for example, but may not be entitled to pry into what Cohen told Trump on such issues or vice versa.

“They could ask about what he negotiated with the Russians but cannot ask what he told Trump or what Trump told him,” said Silverglate. “The relationship between Trump and his lawyer was probably very mixed. If they were in business together and had a part of some deal together, that wouldn’t surprise me.”

Ultimately, divining that line will likely require a court-appointed special master to consider what is fair game for prosecutors. Any rulings on those questions could spur protracted litigation but could provide a road map for what prosecutors can talk to Cohen about and what they can’t

“It’s incredibly complicated. … The special master is really essential,” Silverglate added.

Veteran prosecutors says they can recall few, if any, instances in which attorneys agreed to testify freely about their clients — even in cases where attorneys have been prosecuted for alleged complicity in mafia or drug activity.

Cohen’s dilemma does have at least one significant historical echo.

After President Richard Nixon’s personal attorney, Herbert Kalmbach, pleaded guilty in 1974 to illegal fundraising for GOP congressional candidates, he agreed to cooperate with prosecutors to reduce his prison sentence and revealed that he knew of payments of illegal “hush money” to Watergate burglars.

Former White House counsel John Dean said Monday he does not recall attorney-client privilege being an issue because Kalmbach’s activities were clearly in the fundraising and financial realm and not the provision of legal advice.

Dean, who served as White House counsel to Nixon from 1970 to 1973, said the president ultimately waived any attorney-client privilege to allow his own testimony. However, the president dropped the privilege issue only after Dean made clear he was planning to testify anyway on the ground that some of his actions amounted to crimes.

“Nixon waived the privilege, although he did know that I was going to blow right through it,” said the former White House counsel, who pleaded guilty in 1973 to conspiracy to obstruct justice in connection with the payments Kalmbach made to the burglars. “I’d already flipped.”