Donald Trump has been boxed into an intractable position, more or less imposed by his biggest supporters. Mid-December he nearly signed legislation that would have funded the government, even though it lacked additional border wall funding. He signaled that he would sign legislation the Senate passed by acclamation. But when the House of Representatives was about to follow suit, right-wing personalities like Rush Limbaugh, Sean Hannity ad Ann Coulter blew a fuse. They publicly reminded the president of his central campaign promise to build a wall along the southern border, and argued that backing away from that promise was the equivalent of "caving in" (Breitbart), "retreating" (Drudge Report), and leaving him "dead in the water" (Coulter). Trump succumbed to the criticism, signaled he would not sign a continuing resolution that did not include $5.7 billion for his wall, and allowed the government to shut down. He effectively painted himself into a corner, using his "wall" as a symbolic and persistent centerpiece of ensuing negotiations, and led the government into its longest shutdown ever.
After the 116th Congress convened on January3rd, the Democrat controlled House passed numerous bills designed to re-open the government. None of these included money for Trump's wall. All of them faced opposition from Senate Majority Leader McConnell, who refused to bring them to the Senate floor for a vote. Mr Trump adamantly maintained that any legislation not including this money would be dead on arrival. Democrats dug in their heels, demanding that the government be re-opened before debating the Homeland Security budget and funding for border security. Donald Trump's most recent offer to re-open the government by trading his $5.7 billion wall fund for temporarily shielding 700,000 DACA recipients and 300,000 refugees with temporary protective status fell flat, almost before it was issued. Some Trump supporters criticized the offer as "amnesty," while Democrats rejected it, called it "window dressing," continued to decline to support the wall, and refused to believe that the president would follow through on promises made.
While Democrats seem to sense that they occupy the political high ground and can hold out indefinitely, President Trump appears to be losing the P.R. battle, and is searching for ways not to blink. In other words, Mr. Trump is looking for an off ramp. A potential solution receiving significant traction within the administration is to declare a national emergency, followed by re-opening the government, and funding wall construction with funds derived from other projects. The president is confident that he has the absolute authority to do this, and that it would be a win-win solution for all interested parties. We should ask if he, in fact, can do this, and whether this solution would satisfy all parties involved.
Trump is correct in his assumption that he has the authority to do this. Legal scholars believe that the Constitution gives the president inherent emergency powers by making him Commander-in-Chief of the armed forces, and by giving him wide-ranging executive jurisdiction. Emergency powers are based on the idea that ordinary laws might be insufficient in a true crisis to deal with whatever that situation is. The president may need some temporary flexibility until the emergency passes, or until Congress has time to act and provide the authorities the president needs. At times, past presidents have taken actions that were not authorized, or specifically forbidden. Franklin Roosevelt's internment of U.S. citizens of Japanese descent during WWII and George W. Bush's programs of warrantless wiretapping and torture after the 9/11 terrorist attacks are examples.
In 1976 Congress passed the National Emergencies Act, designed to stop open-ended states of national emergencies and formalize the power of Congress to provide checks and balances on the emergency powers of the president. The Act does not define "national emergency," does not create any criteria or requirements that have to be met, and does not require that the powers invoked relate to the nature of the emergency. Donald Trump laid the groundwork for this eventuality when he characterized the caravan of Central American migrants headed towards the U.S. border to seek asylum a "national emergency," and when he asserted that the situation at the border constituted a "humanitarian crisis." Congress might contest this evaluation, but he has a legal right to his own interpretation.
The Brennan Center for justice at NYU School of Law calculated that once the emergency has been declared, the president would have access to emergency powers contained in 123 statutory provisions. He could, for instance, declare martial law and use the military inside our borders. He could order the military to enforce immigration laws in sanctuary cities or states by claiming conspiracies. He could also determine that Americans inside the U.S. who offer material support to asylum seekers or, for that matter, to undocumented immigrants, pose a threat to national security, and authorize the Treasury Department to take action against them. And he could assume government control over internet traffic, to prevent the spread of disinformation or propaganda. In the mean time, wall construction could be litigated and be hung up for several years, well past the 2020 election.
While declaring a national emergency would allow Mr. Trump to escape the box his supporters placed him in, re-open the government, and to save face whether or not his wall is built, many in the country would be justifiably concerned that this move could become a precursor to the assumption of autocratic powers. Autocrats in Hungary, Turkey, Egypt and other places already employ similar methods. This could be tempting for a president backed into a corner and facing electoral defeat or impeachment. Declaring a national emergency could be a way of holding on to power.
Monday, January 21, 2019
Thursday, January 10, 2019
WILL EXECUTIVE PRIVILEGE DOMINATE 2019 POLITICAL DIALOGUE?
With Democrats dominating Republicans in the House of Representatives 235 to 199, leaving one seat still vacant, and in charge of all relevant committees, incoming committee chairs are expected to lead investigations into President Trump's long-hidden tax returns, possible conflicts of interest from his business empire, and any collusion between Russia and Trump's campaign team during the 2016 election. The White House, in turn, is expected to respond to many probing committee demands by citing "executive privilege," which would likely result in court battles, some of which reminiscent of "Watergate" in 1974.
"Executive privilege" is a power the Chief Executive claims to withhold information from Congress. The president and other members of the executive branch may use this assumed power to resist certain subpoenas and other interventions by the legislative and judicial branches of government in pursuit of information or personnel relating to the executive. Our Constitution does not explicitly mention that Congress or the federal courts have the power to obtain such information, nor is there any explicit mention of an executive privilege to resist such requests from Congress or the courts.
The concept an application of this presumed privilege became never more pretenious than during the Watergate hearings in the House of Representatives, and the consequent Supreme Court case in "United States v. Nixon." It involved the demand by Watergate special prosecutor Archibald Cox that President Richard Nixon produce the audio tapes of conversations he and his colleagues had in the Oval Office in connection with criminal charges being brought against members of his administration. Nixon invoked the privilege and refused to produce any records. Chief Justice Warren Burger, for a unanimous court, wrote that there existed a presidential communication privilege based on the system of separation of powers, which gives each co-equal branch of government broad latitude to function without interference of the other two. However, the Court held ultimately that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence. A related provision, articulated by Judge Patricia Wald of the D.C. Circuit, is the "deliberative process privilege," which holds that government officials should be free to privately deliberate before deciding on a particular course of action. But, again, this privilege disappears when there is any reason to believe that government misconduct occurred.
While "executive privilege" achieved notoriety during "Watergate," its use has by no means been restricted to the Nixon administration. In 1796 President George Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the Jay Treaty between the U.S. and Great Britain. Thomas Jefferson refused to testify or provide private letters concerning Aaron Burr in his trial. Although the Supreme Court ruled against him, arguing that the Constitution did not exempt the president from court orders, Jefferson refused to testify personally, but provided selected letters. Between 1955 and 1960 President Eisenhower invoked the claim 44 times, in refusing to comply with subpoenas from the McCarthy Committee for transcripts of monitored telephone calls from Army officials and information on meetings between Eisenhower officials relating to the hearings. More recently, in 1998, President Bill Clinton invoked executive privilege on 14 different occasions, and lost in court when a federal judge ruled that Clinton aids could be called to testify in the Lewinsky scandal.
The current administration has already toyed with the concept. President Trump reportedly instructed or allowed aides to refuse to answer questions during congressional testimony. Both former White House Chief Strategist Steve Bannon and former Attorney General Jeff Sessions refused to answer questions respectively before the House and Senate Intelligence Committee on behalf of the president, "in case he wanted to claim it later." Former New York Mayor and current member of Mr. Trump's legal team Rudy Giuliani already stated publicly that any questions about obstruction related to the Trump presidency would fall under exective privilege, and would therefore go unanswered. As Robert Mueller is said to be close to wrapping up its obstruction inquiry, and is preparing a report of its findings, Trump's lawyers suggest that the information in it is protected by executive privilege. Therefore, the White House contends that it needs to sign off on the report's final version in case the Justice Department chooses to release it to Congress or the public.
Attorney General nominee William P. Barr, while Deputy, before becoming the A.G. during the George H.W. Bush administration, wrote: "Only when the accommodation process fails to resolve a dispute and a subpoena is issued does it become necessary for the president to consider executive privilege." ("Congressional Requests for Confidential Executive Branch Information," June 19, 1989.)
Any assertion of executive privilege may lead to a legal showdown in the courts, and could have serious political consequences. Excessive use of claims could create a weapon for impeachment, as both Clinton and Nixon discovered. With Democrats dominating investigative powers in the House of Representatives, and with jockeying for position in the upcoming 2020 election cycle already in full swing, 2019 could well provide ample fireworks on the hill.
"Executive privilege" is a power the Chief Executive claims to withhold information from Congress. The president and other members of the executive branch may use this assumed power to resist certain subpoenas and other interventions by the legislative and judicial branches of government in pursuit of information or personnel relating to the executive. Our Constitution does not explicitly mention that Congress or the federal courts have the power to obtain such information, nor is there any explicit mention of an executive privilege to resist such requests from Congress or the courts.
The concept an application of this presumed privilege became never more pretenious than during the Watergate hearings in the House of Representatives, and the consequent Supreme Court case in "United States v. Nixon." It involved the demand by Watergate special prosecutor Archibald Cox that President Richard Nixon produce the audio tapes of conversations he and his colleagues had in the Oval Office in connection with criminal charges being brought against members of his administration. Nixon invoked the privilege and refused to produce any records. Chief Justice Warren Burger, for a unanimous court, wrote that there existed a presidential communication privilege based on the system of separation of powers, which gives each co-equal branch of government broad latitude to function without interference of the other two. However, the Court held ultimately that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence. A related provision, articulated by Judge Patricia Wald of the D.C. Circuit, is the "deliberative process privilege," which holds that government officials should be free to privately deliberate before deciding on a particular course of action. But, again, this privilege disappears when there is any reason to believe that government misconduct occurred.
While "executive privilege" achieved notoriety during "Watergate," its use has by no means been restricted to the Nixon administration. In 1796 President George Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the Jay Treaty between the U.S. and Great Britain. Thomas Jefferson refused to testify or provide private letters concerning Aaron Burr in his trial. Although the Supreme Court ruled against him, arguing that the Constitution did not exempt the president from court orders, Jefferson refused to testify personally, but provided selected letters. Between 1955 and 1960 President Eisenhower invoked the claim 44 times, in refusing to comply with subpoenas from the McCarthy Committee for transcripts of monitored telephone calls from Army officials and information on meetings between Eisenhower officials relating to the hearings. More recently, in 1998, President Bill Clinton invoked executive privilege on 14 different occasions, and lost in court when a federal judge ruled that Clinton aids could be called to testify in the Lewinsky scandal.
The current administration has already toyed with the concept. President Trump reportedly instructed or allowed aides to refuse to answer questions during congressional testimony. Both former White House Chief Strategist Steve Bannon and former Attorney General Jeff Sessions refused to answer questions respectively before the House and Senate Intelligence Committee on behalf of the president, "in case he wanted to claim it later." Former New York Mayor and current member of Mr. Trump's legal team Rudy Giuliani already stated publicly that any questions about obstruction related to the Trump presidency would fall under exective privilege, and would therefore go unanswered. As Robert Mueller is said to be close to wrapping up its obstruction inquiry, and is preparing a report of its findings, Trump's lawyers suggest that the information in it is protected by executive privilege. Therefore, the White House contends that it needs to sign off on the report's final version in case the Justice Department chooses to release it to Congress or the public.
Attorney General nominee William P. Barr, while Deputy, before becoming the A.G. during the George H.W. Bush administration, wrote: "Only when the accommodation process fails to resolve a dispute and a subpoena is issued does it become necessary for the president to consider executive privilege." ("Congressional Requests for Confidential Executive Branch Information," June 19, 1989.)
Any assertion of executive privilege may lead to a legal showdown in the courts, and could have serious political consequences. Excessive use of claims could create a weapon for impeachment, as both Clinton and Nixon discovered. With Democrats dominating investigative powers in the House of Representatives, and with jockeying for position in the upcoming 2020 election cycle already in full swing, 2019 could well provide ample fireworks on the hill.
Tuesday, January 8, 2019
IN SEARCH OF A U.S. FOREIGN POLICY
With an impetuous tweet, during the early morning hours of Dec.19, Donald Trump declared that the U.S. would withdraw all its troops currently fighting in Syria. This ill-advised decision was apparently predicated on the naïve notion that we defeated ISIS, and that it had been eliminated, even though 15,000 to 30,000 fighters remain in the area.
Politicians from both sides of the aisle quickly reacted angrily, expressing concern about giving ISIS another life-line, and essentially handing Syria over to Iran and Russia, both of which welcomed the development. Senator Bob Corker, outgoing chairman of the Senate Foreign Relations Committee, told reporters: "It's hard to imagine that any president would wake up and make this kind of decision, with little communication, with this little preparation." Republican Senators Graham and Rubio called the plan a "colossal and huge mistake," and Secretary of Defense Jim Mattis resigned in protest, worrying world leaders and U.S. allies who fear what an unchecked Trump might do.
Rubio, reacting to Mattis' abrupt resignation, expressed that the general's resignation letter confirmed fears about upcoming foreign policy decisions facing the Trump administration "that are going to undermine our security, that are going to undermine our alliances, and that are going to embolden our adversaries." The real point is that the president is making decisions by the seat of his pants, without the benefit of a cohesive foreign policy.
Analysts and practitioners agree that an effective foreign policy should include well-defined objectives to preserve national security, promote world peace in a secure global environment, maintain a balance of power through productive relations with international actors, promote a credible set of democratic and human rights values, and a cooperative involvement in international trade organizations. Allies and adversaries alike depend on a principled, intelligent and consistent approach. Given the chaotic conditions this administration tends to exhibit, be they intentional or incidental, policy development has sorely been lacking, with all resulting destabilizing consequences for the rest of the world.
Several of these foreign policy objectives overlap. These can't be fully developed within a column like this. However, a general overview should suffice to get the point across. In General Mattis' resignation letter he discusses the security element quite clearly: "One core belief I have always held is that our strength as a nation is inextricably linked to the strength of our unique system of alliances and partnerships. While the U.S. remains the indispensable nation in the free world, we cannot protect our interests or serve that role effectively without maintaining strong alliances and showing respect to those allies."
President Trump has made a habit of insulting our closest allies, threatening them with a trade war, showing a reckless disregard for their security concerns, while lavishing praise on contemporary autocrats like Kim Jong-Un, Vladimir Putin, Xi Jinping, Recep Tayyip Erdogan and others. His decision to turn his back on allies that did most of the fighting against ISIS in Syria, the Kurds and Arabs, will leave them unprotected from a promised assault by Turkish forces. They are expecting a bloodbath. Right now, Turkish troops are already massing near the Kurdish-held Syrian town of Manbij, openly waiting for U.S. troops to be withdrawn. Jim Mattis and Brett McGurk, the envoy leading the international coalition fighting ISIS, who also resigned in protest, were indeed the adults in the room attempting, apparently unsuccessfully, to insure that Trump's bark was worse than his bite. Of course, our president has steadfastly maintained that he knows more than the generals.
Global security and stability depend to a large degree on predictability. Temperament and unpredictability have consequences. An erratic, irrational and unstable president influences our adversaries' threat perception, and increases the risk of miscalculation. Trump is entirely unpredictable, operates by the seat of his pants, impulsive, without thought-out policy prescriptions or strategy, and is apparently unwilling to consider international consequences.
Aside from emphasizing security and international relations, a credible foreign policy should reflect a set of values that support these objectives. During Trump's first year in office, the U.S. sharply downgraded its global pro-democratic posture. The president's support of dictators and criticism of democratic allies, as well as anti-democratic actions at home recast the country as at best an ambivalent actor on the global democratic stage. During his second year he doubled down on his embrace of dictators and spurning of democratic partners (Thomas Carothers, "Can U.S. Democracy Policy Survive Trump?," Carnegie, Oct. 1, 2018). The administration did at some point release a National Security strategy. However, it only emphasized protection against terrorism and increasing military strength. It omitted any mention of promoting human rights as a national security priority. Analysts believe that, done right, human rights strengthen, rather than weaken, American national security. Besides, strategies supporting unfocused, undeveloped objectives, are typically merely reduced to talking points.
If we want to maintain a measure of respect among those who have stood with us for the past 70 years, we need to get back to basics and develop and consistently pursue clear foreign policy objectives, not stab our allies in the back or, God forbid, leave them unprotected on the battle field. Anything short of that diminishes our moral standing, severely reduces our credibility in the world, and makes this a much more dangerous place.
Politicians from both sides of the aisle quickly reacted angrily, expressing concern about giving ISIS another life-line, and essentially handing Syria over to Iran and Russia, both of which welcomed the development. Senator Bob Corker, outgoing chairman of the Senate Foreign Relations Committee, told reporters: "It's hard to imagine that any president would wake up and make this kind of decision, with little communication, with this little preparation." Republican Senators Graham and Rubio called the plan a "colossal and huge mistake," and Secretary of Defense Jim Mattis resigned in protest, worrying world leaders and U.S. allies who fear what an unchecked Trump might do.
Rubio, reacting to Mattis' abrupt resignation, expressed that the general's resignation letter confirmed fears about upcoming foreign policy decisions facing the Trump administration "that are going to undermine our security, that are going to undermine our alliances, and that are going to embolden our adversaries." The real point is that the president is making decisions by the seat of his pants, without the benefit of a cohesive foreign policy.
Analysts and practitioners agree that an effective foreign policy should include well-defined objectives to preserve national security, promote world peace in a secure global environment, maintain a balance of power through productive relations with international actors, promote a credible set of democratic and human rights values, and a cooperative involvement in international trade organizations. Allies and adversaries alike depend on a principled, intelligent and consistent approach. Given the chaotic conditions this administration tends to exhibit, be they intentional or incidental, policy development has sorely been lacking, with all resulting destabilizing consequences for the rest of the world.
Several of these foreign policy objectives overlap. These can't be fully developed within a column like this. However, a general overview should suffice to get the point across. In General Mattis' resignation letter he discusses the security element quite clearly: "One core belief I have always held is that our strength as a nation is inextricably linked to the strength of our unique system of alliances and partnerships. While the U.S. remains the indispensable nation in the free world, we cannot protect our interests or serve that role effectively without maintaining strong alliances and showing respect to those allies."
President Trump has made a habit of insulting our closest allies, threatening them with a trade war, showing a reckless disregard for their security concerns, while lavishing praise on contemporary autocrats like Kim Jong-Un, Vladimir Putin, Xi Jinping, Recep Tayyip Erdogan and others. His decision to turn his back on allies that did most of the fighting against ISIS in Syria, the Kurds and Arabs, will leave them unprotected from a promised assault by Turkish forces. They are expecting a bloodbath. Right now, Turkish troops are already massing near the Kurdish-held Syrian town of Manbij, openly waiting for U.S. troops to be withdrawn. Jim Mattis and Brett McGurk, the envoy leading the international coalition fighting ISIS, who also resigned in protest, were indeed the adults in the room attempting, apparently unsuccessfully, to insure that Trump's bark was worse than his bite. Of course, our president has steadfastly maintained that he knows more than the generals.
Global security and stability depend to a large degree on predictability. Temperament and unpredictability have consequences. An erratic, irrational and unstable president influences our adversaries' threat perception, and increases the risk of miscalculation. Trump is entirely unpredictable, operates by the seat of his pants, impulsive, without thought-out policy prescriptions or strategy, and is apparently unwilling to consider international consequences.
Aside from emphasizing security and international relations, a credible foreign policy should reflect a set of values that support these objectives. During Trump's first year in office, the U.S. sharply downgraded its global pro-democratic posture. The president's support of dictators and criticism of democratic allies, as well as anti-democratic actions at home recast the country as at best an ambivalent actor on the global democratic stage. During his second year he doubled down on his embrace of dictators and spurning of democratic partners (Thomas Carothers, "Can U.S. Democracy Policy Survive Trump?," Carnegie, Oct. 1, 2018). The administration did at some point release a National Security strategy. However, it only emphasized protection against terrorism and increasing military strength. It omitted any mention of promoting human rights as a national security priority. Analysts believe that, done right, human rights strengthen, rather than weaken, American national security. Besides, strategies supporting unfocused, undeveloped objectives, are typically merely reduced to talking points.
If we want to maintain a measure of respect among those who have stood with us for the past 70 years, we need to get back to basics and develop and consistently pursue clear foreign policy objectives, not stab our allies in the back or, God forbid, leave them unprotected on the battle field. Anything short of that diminishes our moral standing, severely reduces our credibility in the world, and makes this a much more dangerous place.
Subscribe to:
Posts (Atom)