Government Executive - Authors - David A. Graham

Analysis: Trump’s DOJ Was More Dangerous Than We Knew

David A. Graham — Mon, 14 Jun 2021 10:43:23 -0400

Sometimes, the actions a government takes look bad at the time, but posterity treats them kindly. Other times, a president might look good in the moment but see his reputation sink in retrospect. Then there’s the Trump administration, and especially its Justice Department, which looked bad when it was in power and now looks even worse.

Late yesterday, The New York Times reported that the Justice Department subpoenaed Apple to try to obtain data from accounts belonging to Democratic members of the House Intelligence Committee Adam Schiff and Eric Swalwell, their aides, and even one of their children as part of an investigation into leaks about Trump associates’ ties to Russia. Even after the probes produced few results, Attorney General Bill Barr insisted that prosecutors keep them alive.

[David A. Graham: What’s the Justice Department actually for?]

This is only the latest ugly revelation about the Trump Justice Department to emerge since January 20—sometimes despite the best efforts of the Biden team to keep things secret. We now know that prosecutors sought to compel records of reporters from The Washington Post, CNN, and the Times; failed to prepare for right-wing violence because of a focus on antifa; and even saw a plot by the assistant attorney general and the president to oust the acting attorney general in order to overturn the result of the presidential election.

The scope of the subpoenas disclosed last night by the Times is still not clear. Schiff and Swalwell were perhaps natural suspects for the White House, because they were among the noisiest of the president’s critics. Yet if that’s the case, that makes the subpoenas only more troubling, because they then smack of political retribution. It is not unusual for members of Congress to be investigated by federal law enforcement—corruption cases against members are distressingly common and warranted—but a leak hunt has seldom if ever targeted members in this way. (The subjects only recently learned of the subpoenas from Apple, which had previously been under a judicial gag order.)

[Read: The call was coming from inside the White House]

The odor of revenge is especially strong, given that initial attempts to tie the leaks to the men had sputtered. “Ultimately, the data and other evidence did not tie the committee to the leaks, and investigators debated whether they had hit a dead end and some even discussed closing the inquiry,” the Times reports. “But William P. Barr revived languishing leak investigations after he became attorney general a year later.”

Two ironies emerge from the story. The first is that the Barr DOJ’s politically motivated leak hunt was hobbled by the administration’s politically motivated release of some of the secret material in question: “John Ratcliffe, the director of national intelligence and close ally of Mr. Trump’s, seemed to damage the leak inquiry in May 2020, when he declassified transcripts of the calls. The authorized disclosure would have made it more difficult for prosecutors to argue that the news stories had hurt national security.”

[David A. Graham: Barr misled the public—and it worked]

The second is that although we still don’t know where the leaks did in fact originate, a great deal of the damaging leaks during the Trump administration came not from its political enemies but from inside the administration. Members of the administration leaked information as part of political ploys, as part of internecine power struggles, for self-aggrandizement, and probably just for amusement. The president himself was a prolific leaker. Detective, investigate thyself!

These new stories about the Trump DOJ do not qualitatively change the existing impression of a department that was weaponized for personal gain, run by unqualified and/or malevolent actors, and reoriented to political warfare. Under Jeff Sessions, the department aggressively undermined civil-rights protections and spearheaded a push to separate immigrant families at the southern border. When Sessions was finally defenestrated for, remarkably, being too politically independent, he was replaced by a wildly unqualified political hack, Matthew Whitaker. Whitaker was never formally nominated for the job, probably because he was unconfirmable, and was replaced by Barr. A formidable lawyer and former attorney general, Barr was clearly qualified, but also comfortable using the department for malign purposes, including misleading the public about Special Counsel Robert Mueller’s report and espousing bizarre conspiracy theories ahead of the election. Things could have been worse still. To Barr’s credit, and to the credit of Jeffrey Rosen, his interim successor who was the target of the internal coup, the Justice Department resisted Trump’s pressure to try to overturn the election after the fact.

Yet the new revelations do more than add fine detail to the existing portrait of decay. These stories are important for understanding the abuse and politicization of the Justice Department and how it could be repeated by any future administration. They also demonstrate why Merrick Garland faces the biggest challenge of any attorney general since Watergate to reforming his department—and perhaps an ever greater one.

This article was originally published in The Atlantic. Sign up for their newsletter.

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Viewpoint: This Is a Coup

David A. Graham, The Atlantic — Wed, 06 Jan 2021 16:14:34 -0500

Armed assailants are attacking the seat of American government in an attempted coup, urged on by the president of the United States. Saying that feels melodramatic, ridiculous, and overwrought, but there’s no plainer way to describe what is currently unfolding.

Tens of thousands of supporters of outgoing President Donald Trump gathered in Washington, D.C., where he encouraged them to attend a rally as Congress began to ceremonially certify the Electoral College victory of President-elect Joe Biden. After a speech by the president, protestors overran security at the Capitol building, which seemed unprepared for the onslaught. They knocked over barricades, pushed past cordons of officers, and broke windows. Some carried Confederate battle flags as they got much closer to the heart of the U.S. government than any Confederate troops ever did.

Photojournalists captured images of guards with guns drawn, trying to hold the mob off at the doors of the House chambers. Protesters entered the House and Senate chambers, standing on the dais in both, and roamed through the office of Speaker Nancy Pelosi. Law-enforcement officials reported that at least one woman was shot inside the Capitol.

The mob disrupted the Constitution, halting certification as required by the document. The Senate and House chambers were locked down, Vice President Mike Pence was whisked away, and demonstrators roamed the halls of Congress. Tear gas was reportedly released inside the Capitol Rotunda, and members were told to don gas masks under their seats.

This attempted coup is Trump’s fault. “This is what the president has caused today, this insurrection,” Mitt Romney told a reporter. It will not work—police may have been unprepared, but they will regain their footing. There’s no apparent endgame for the mob. Those involved in the attack can and should be held responsible, but the president bears the ultimate blame. He has spent two months insisting to his supporters that the election was stolen in an undemocratic fraud. This is not true—the claim has been conclusively debunked and rejected in court after court.

The participants in the coup ought to know better, but they have been lied to by the president of the United States. If what Trump was saying were true, members of Congress would have a patriotic duty to do all they could to save the election, and his supporters would have a patriotic duty to defend the rightful government. But Trump has lied repeatedly and brazenly, practically commanding his supporters to mount an uprising, and now they have done as he asked. “This attack on our Capitol will not be tolerated and those involved will be prosecuted to the fullest extent of the law,” Pence tweeted. He could start with his boss.

Some of Trump’s allies in Congress share blame. While the mob overran security, Republicans were casting doubt on the outcome of the election in the House and Senate. Senator Ted Cruz sent a fundraising text boasting about his attempt to overturn the election in the midst of the melee.

As the chaos spread, Trump’s son Donald Trump Jr. tweeted, “This is wrong and not who we are.” But this is exactly who the members of the Trump clique are. The president and his circle have mounted a four-year assault on the rule of law, and this is the logical end of both that tendency and the president’s specific words. Indeed, even as his son was trying to calm tempers, the president continued to whip them up. Trump raged at Pence, who said he did not have the power to overturn the vote:

Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!
— Donald J. Trump (@realDonaldTrump) January 6, 2021

He added, in another tweet, “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!” Later, demonstrating his tendency to view himself more as the leader of the Republican Party than of the nation, he added, “Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue.” Trump did not, however, call on protesters to leave.

More people will be hurt, and people may die as a result of today’s insurrection. That’s what happens during attempted coups. Trump has been warned, including by Republican officials, that his words would get people killed, but he has paid them no heed. Trump himself is not present. Earlier today, he said he would march to the Capitol with his supporters, but instead he retreated to the White House, preferring not to get his hands dirty.

For four years, Trump’s critics have been accused of hysteria and hyperbole for describing his movement as fascist, authoritarian, or lawless. Today, as Congress attempts to certify the election of a new president, the president has vindicated those critics. In attempting this coup, Trump has also vindicated the Americans who voted decisively in November to remove him from office.

This article was originally published in The Atlantic. Sign up for their newsletter.

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The Last Time Trump Alleged Massive Fraud

David A. Graham, The Atlantic — Thu, 12 Nov 2020 20:00:00 -0500

Why not just look? What’s the harm?

This is the best case that President Donald Trump and his allies have for investigating claims of voter fraud in the 2020 election. Unfortunately for them, it’s still a very weak case. Republicans have for years been pushing claims of massive voter fraud that swings elections, and for just as long, they’ve failed to turn up evidence of it.

On Tuesday, The New York Times published an article in which reporters contacted top election officials in all 50 states to ask if they had any evidence of fraud. Not a single state reported back an issue (though in four cases, the paper had to rely on public statements or other officials). Only one state had no response: Texas, where Lieutenant Governor Dan Patrick offered a $1 million reward for evidence of fraud. You don’t offer huge cash prizes if you already have evidence. Rewards like this also create a strong incentive to gin up false claims. Already, a Pennsylvania postal worker who alleged fraud has reportedly recanted; donors have collected nearly $140,000 for him.

But the best reason for skepticism comes from Trump himself. He’s claimed fraud before, and despite a major effort to find it, turned up nothing. After his 2016 victory, the new president appointed a commission to study the matter. The commission collapsed less than a year later, without producing any evidence of fraud, or any findings at all.

[Read: The Republican backlash to Trump’s vote-fraud commission]

Despite having won the 2016 election, Trump insisted that he had been denied a victory in the popular vote by 3 million to 5 million unauthorized-immigrant voters. He did not provide any evidence for the claim, because there is none. As voting experts have noted for as long as the fraud claims have circulated, it is impossible to execute fraud on this scale. Every year, there are individual cases of voters voting illegally, but to stuff the ballot boxes this way would require a massive and highly conspicuous effort, as Philip Bump showed in a thought experiment.

Nonetheless, Trump announced in May 2017 that he’d convene a commission to study voter fraud. (This was the same week that the president fired FBI Director James Comey, welcomed Russia’s foreign minister and its ambassador, disclosed sensitive intelligence to them, and threatened Comey with the release of fictitious tapes. Also, Robert Mueller was appointed as special counsel.)

The titular head of the commission was Vice President Mike Pence, a sign of the importance it held for Trump, but its effective leader was Kris Kobach, a Republican who was then the Kansas secretary of state. Kobach has been one of the most relentless voices claiming voter fraud, and was considered for positions in the Trump administration but not chosen. Several of the other members of the commission were similarly zealous boosters of the voter-fraud claim; there were a couple of token Democrats, too.

Almost immediately, the commission ran into trouble. With no credible evidence of fraud in hand to start proving the conclusion that both Trump and Kobach had clearly already reached, it had to turn something up, fast. In June, Kobach sent a letter to states asking for all publicly available voter data, including names, addresses, voting history, party affiliation, felony convictions, and the last four digits of Social Security numbers. (That is the information on which Kobach’s Interstate Voter Registration Crosscheck Program, a national database, runs.)

State officials and security experts, including many Republicans, reacted with horror. They said Kobach had offered no secure way to send the information, and in any case, there was no reason to believe that it would prove fraud. Besides, it would cost taxpayer money, could endanger privacy, and in some cases violated state law. “My reply would be: They can go jump in the Gulf of Mexico and Mississippi is a great State to launch from,” Mississippi Secretary of State Delbert Hosemann, a Republican, said of the commission and its requests. Election officials also complained that the commission was intimidating voters into canceling their own valid registrations.

[Read: The strange phenomenon of voter self-suppression]

These responses reflected an uncomfortable reality for Kobach: Though many Republican election officials support stricter voting laws, including such things as photo-identification requirements, they also take seriously that their job is to run elections smoothly and prevent fraud, and weren’t pleased about the implication that they were failing.

Without most of the data it had requested, and without any other evidence of fraud, the commission was stalled. In September, it held a meeting in New Hampshire to investigate Trump’s claim of fraud there, but Bill Gardner, New Hampshire’s secretary of state and a commission member, rebutted the claim. By October, two of the group’s Democrats were complaining that they had been shut out of deliberations and meetings. One of them, Maine Secretary of State Matthew Dunlap, sued to demand access to commission material, and won.

In January, the group was finally put out of its misery, without releasing any findings. The Trump administration said it would not hand materials over to Dunlap, because the commission no longer existed, but a judge disagreed, and in August 2018, Dunlap released the documents he’d obtained. They showed that in its months of work, the commission had uncovered no evidence of fraud.

(The commission’s demise was the start of a rough 2018 for Kobach. In June, a federal judge struck down as unconstitutional a law Kobach had championed that required voters to prove U.S. citizenship. She also rebuked him for his handling of the case, and required him to take a remedial class in the rules of evidence. In November, Kobach lost a gubernatorial election in deep-red Kansas to a Democrat. He also lost the 2020 GOP primary for U.S. Senate.)

[Read: Judge: Kobach’s statements ‘demonstrate a pattern’ of misleading claims]

Voter fraud does exist—just usually on the individual-voter scale. There have been cases of larger, organized fraud, including in Chicago in 1982 and Brooklyn in 1984, but the numbers involved were not large enough to swing a presidential election, and the laws in these jurisdictions have since been tightened. The most famous purported case of systematic fraud, of Chicago giving the 1960 presidential election to John F. Kennedy, is unproven at best.

Every time Trump claims fraud in the 2020 election, the important thing to remember is that he’s already looked for evidence of such fraud and come up empty-handed. In the 2016 case, furthermore, he had a specific claim, if not a very persuasive one; this time, he hasn’t offered any numbers, just bluster. Voter-fraud campaigners sometimes contend that the absence of evidence is evidence of absence. That may be a wise way to philosophize, but it’s an impracticable way to assess election results.

In refusing to recognize President-elect Joe Biden’s victory in remarks on Monday, Senate Majority Leader Mitch McConnell said that Trump “is 100 percent within his rights to look into allegations of irregularities and weigh his legal options.” That’s true as far as it goes, but the question is not whether he has a right to do so; it’s whether doing so is wise and whether he’s likely to prevail. The answer to both questions is no.

[David A. Graham: The damage of Trump’s voter-fraud allegations can’t be undone]

Nevertheless, Republicans haven’t given up. Pennsylvania Lieutenant Governor John Fetterman, a Democrat, replied on Tuesday to Patrick’s $1 million reward, offering a documented case of a Keystone State man who requested an absentee ballot for his deceased mother, so he could cast an extra ballot. Fetterman asked for his reward in gift cards to Sheetz, the beloved regional convenience-store chain.

The Pennsylvania man charged in the fraud case is a registered Republican. As of this writing, Patrick hasn’t delivered the gift cards to his counterpart. The search continues.

This article was originally published in The Atlantic. Sign up for their newsletter.

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The Bush-Gore Recount Is an Omen for 2020

Fri, 21 Aug 2020 07:00:00 -0400

Twenty years ago this fall, the United States was plunged into 36 days of turmoil as lawyers, judges, political operatives, and election workers grappled with the uncertain result of the presidential contest in Florida. Whoever won the state would win the presidency. In the end, after start-and-stop recounts and the intervention of courts at every level, Texas Governor George W. Bush, the Republican candidate, was declared the victor, edging out Vice President Al Gore, the Democrat.

The story of the 2000 Florida recount offers a reminder of just how chaotic the electoral process can become—and of how disarray in a single state can undermine faith in the democratic process nationwide. The U.S. Constitution gives individual states the responsibility for conducting elections. Rules and procedures vary widely. Today, at a time far more polarized than two decades ago, not just one but every state faces potential challenges to the integrity of its electoral process. In many states, the balloting technology is antiquated. And in many states, registering to vote has deliberately been made harder, especially for the poor and people of color. A continuing shift toward widespread voting by mail—accelerated by the COVID-19 pandemic—seems likely to provoke lawsuits based on discredited claims that the practice spurs voting fraud.

A cause for truly legitimate concern is something else entirely: whether the U.S. Postal Service can handle the expected volume and return marked ballots to election officials in time for them to be counted in November’s national elections. On August 13, in an interview on Fox News, President Donald Trump declared his opposition to providing the financially troubled USPS with additional funding, giving as an explicit reason a desire to hamper mail-in voting, which he had previously said “doesn’t work out well for Republicans.” The USPS has already announced plans for cutbacks in service across the board. On August 14, The Washington Post reported that the Postal Service had informed 46 states and the District of Columbia that it could not guarantee that mailed-in ballots could be delivered in time to be counted.

Read: The postal service can handle the election—if it’s allowed to

The account here, drawn from interviews with more than 40 people with firsthand experience of the Florida-recount saga, is both a history and a warning.

I. Election Night

As votes were counted on the night of November 7, 2000, Bush watched the returns at the governor’s mansion, in Austin. Gore watched the returns at the Loews Vanderbilt Hotel, in Nashville. The weather in both cities was chilly and wet. By the end of the night, Gore held a lead over Bush in the national popular vote, which he would never lose, but the contest in the Electoral College was tight, and it all came down to Florida. The election, both campaigns understood, was far from over.

Leading up to the election, polls had indicated that the race between Bush and Gore would be close, with an especially slim margin in several key states. Potentially affecting the outcome were two other candidates: Ralph Nader, of the left-wing Green Party, and Pat Buchanan, of the right-wing Reform Party.

On Election Day, a number of counties in Florida reported problems. A confusing ballot—the so-called butterfly ballot—in Palm Beach County prompted thousands of voters to cast their ballot unwittingly for Buchanan. Ballots in Duval County also caused confusion; some 22,000 votes there were disqualified because voters chose more than one candidate. The punch-card apparatus used elsewhere in the state sometimes failed to punch out a hole completely, meaning that the machine would not record a ballot choice.

Ben Ginsberg (Bush campaign general counsel): On the Monday before the election, we had the luxury of being able to go out for lunch. Campaign operatives stop asking lawyers questions the closer it gets to Election Day—they know what the law is by that point. We were in our favorite dive Mexican restaurant in Austin. Somebody asked about recounts, and I said, “I’ve been doing a lot of recounts over the past 16 years, and there is no way we will ever have a presidential recount. The last one was in 1876. It will not happen again.”

[Norm Ornstein: The November election is going to be a mess]

Ron Klain (Gore recount committee general counsel): I got a call on Election Day from a lawyer named Lester Hyman, probably at 8 a.m., Nashville time. His daughter, Liz, had called him to say that people were coming out of the polling places in Palm Beach, and they were confused about who they had voted for. They thought they might have voted for Pat Buchanan by accident. I found [Gore adviser] Michael Whouley, reported this to him, and then frankly didn’t really think much about it. It was just one polling place in Palm Beach.

Nick Baldick (Gore operative in Florida): It was, like, 11 a.m. when we got our first call about the butterfly ballot. We knew it was creating huge anxiety and fear, and that we would lose some votes, and we knew that the election was going to be close.

Karl Koch (Gore aide): My phone was blowing up with calls, people saying, “Oh my God, something awful is happening in Palm Beach.” We tried to start communicating messages—“Make sure you’re paying attention to your ballot.” But at that point, we’re way past the halfway point of Election Day.

Just before 8 p.m. Eastern time, NBC, CBS, ABC, and CNN projected that Gore would win Florida, putting him on track to gain the 270 electoral votes needed to secure the presidency. The projection was premature. Polls were still open in western Florida, where the Bush vote was likely to be strong, and there were issues with the exit-poll and vote-tally information provided by the consortium Voter News Service, on which all of the networks relied.

Clay Roberts (director of the Florida Division of Elections): I had a TV on in my office, and I’m watching the national coverage. They called Florida while the polls were still open west of the Apalachicola River. I had sent a letter to all the networks making sure that they knew that Florida had two time zones, and that they weren’t to report Florida results until after 7 p.m. Central time.

Karl Rove (Bush chief strategist): We’re talking to [Tim] Russert; we’re talking to Bob Schieffer; we’re talking to anybody in the press who we could talk to. I lambasted Bernie Shaw for calling Florida without all the polls closed. He was incredulous, like, “What do you mean the polls aren’t all closed?” I said, “You’ve got the entire panhandle of Florida in the Central time zone, and they’re still voting.”

[Read: The voting disaster ahead]

Chris Lehane (Gore press secretary): I have this vivid memory of being on the top floor of the Loews—in the presidential suite, ironically—where the vice president was, with his family. The networks called Florida for Gore. At that point, he’s the president-elect, and I remember referring to him as that.

David Morehouse (Gore trip director): We thought we had it. I didn’t pop any champagne corks, but I’m sure there were champagne corks popped. I remember seeing Karl Rove on the networks saying they had prematurely called Florida. I thought that was just the Bush campaign doing their spinning.

Before long, the networks put Florida back into the “Undecided” column. Then, just after 2 a.m., they gave the state, and the presidency, to Bush. Gore called Bush to concede and headed to the War Memorial Auditorium to make a concession speech.

Judy Woodruff (CNN anchor): We were not making the call. It wasn’t Bernie Shaw and Judy Woodruff—it was the CNN political unit, which was in contact with the consortium. We were live on the set and we were getting information they conveyed through our earpieces. We started hearing that there was going to be a rescinding of the call.

Joe Lieberman (Gore’s vice-presidential candidate): The networks pulled back the announcement that we had carried Florida. My wife was exhausted, and she said, “Let’s go back to our room.” We go back to our suite in our hotel, and as you walk in, there’s a foyer table, and she just sweeps a bowl of flowers onto the floor. My wife is maybe more expressive than I am.

Karl Koch (Gore aide): My wife was on the phone in Tallahassee with an open line to the national war room, and she’s laughing and saying, “All I can hear is Michael [Whouley] walking around saying, ‘Oh, fuck.’”

Michael Feldman (Gore traveling chief of staff): It all happened very quickly. I cannot tell you what network it was, but the network called Florida for Bush and then the election for Bush. Somebody went to change the channel, and then changed the channel again, and then changed the channel again. Every network had called the election for Bush.

Betsy Fischer Martin (NBC producer): I remember [Tom] Brokaw saying, “This would be something, if the networks managed to blow it twice in one night.” Later he said, “We don’t just have egg on our face. We have a whole omelet.”

Michael Feldman (Gore aide): There wasn’t a ton being said, but at some point the vice president and [his campaign manager] Bill Daley went next door to an adjacent room. I believe it was then that the vice president called Governor Bush and had that first conversation.

But new information soon became available, and within the hour, Gore called Bush to retract his concession, saying: “Circumstances have changed dramatically since I first called you.” With only a few thousand votes separating the two candidates, Florida was very much in play.

Jeff Greenfield (CNN analyst): While we were waiting for Gore to concede, even a numerically challenged person like myself began to notice that the vote margin in Florida for Bush was shrinking by the minute. Gee, that’s odd. We’ve called the race; he’s the next president. But these new numbers …

Karl Rove (Bush strategist): I had this red phone on my desk—talk about a classic cliché—and only one person had the number, so when it rang, it was either some pizza joint or it was Governor Bush. I picked up the phone, and he says, “What the heck is going on?” And I said, “We don’t know.”

[Laurence H. Tribe, Jennifer Taub, and Joshua A. Geltzer: Trump has launched a three-pronged attack on the election]

Michael Feldman (Gore aide): We were riding to the War Memorial, and at some point, my White House pager went off. It was Michael Whouley. He said, “I’m looking at the secretary of state of Florida’s website. It’s under 6,000 votes. We’re within the automatic recount. Are you with Bill?” We added Bill Daley to the call.

Ron Klain (Gore aide): My cellphone rang, and it was Ron Fournier of the Associated Press. And Ron said, “Why is Al Gore conceding?” I said, “Because we lost the election, Ron.” And he said, “Do you know that the Associated Press, the nation’s oldest news organization, has not yet declared Florida for Bush?” I hung up and called Nick Baldick, who was running Florida for Gore, and I was like, “What the fuck is going on?” He was like, “Hey, no one in Nashville has called me. I hear you guys are conceding. What’s going on up there?”

[From the September 1896 issue: The election of the President]

Chris Lehane (Gore aide): I remember the holding room we were in at the War Memorial, the bowels of the amphitheater—you know, stone and brick, like from the 1920s, water dripping all around. And it’s in that room that, like, the fate of the free world is hanging in the balance.

Michael Feldman (Gore aide): Gore walked in, and he was not happy to be there. Bill [Daley] said to him, “It’s under 1,000 votes.” I’m on the phone, and I just remember him looking at Bill and at me, and it was like, What?

Joe Lieberman (Democratic vice-presidential candidate): Bill Daley called [Bush campaign chair] Don Evans and said the vice president would like to talk to Governor Bush. They put him on, and Al says, “Governor, it’s so close now that I must tell you I feel compelled to withdraw my concession.” And there’s silence, and a little back-and-forth, and then silence, and then Al says, “Well, I don’t care what your little brother says. I’m formally telling you I am no longer conceding, thank you, good night.” Somebody said, “Oh, man, that was incredible. You called Jeb his little brother.” And Al said, “I didn’t call him his little brother. He said to me, ‘My little brother tells me that we’re definitely going to carry Florida.’”

Ben Ginsberg (Bush aide): It was 40 degrees and raining in Austin, and no one cared in the least: You had just won the presidency. Except the vice president should have been out conceding. It was taking a long time. There were big Jumbotrons set up around the stage, and all of a sudden [CNN political correspondent] Candy Crowley was going, “Give me a mic! Give me a mic! The vice president has withdrawn his concession.” Then the weather felt really bad—cold and wet and rainy.

Kristen Silverberg (Bush policy adviser): We stumbled back to the offices. One of the lawyers for the campaign was online, Googling Florida recount rules. I remember thinking that wasn’t very confidence-inspiring.

Karl Rove (Bush strategist): At 2:48, our statewide lead dropped to 39,600 votes. Palm Beach County was the last big one to come in. At 3 a.m., it came crashing in: We were down to an 11,000-vote lead. Ten minutes later, 10,000. Thirty minutes later, 6,000. By 3:47, we were 2,000, and at 4:10, our margin settled in at about 1,800 votes.

Ben Ginsberg (Bush aide): About 3:30 in the morning, Don Evans came up to me and said, “All right, you better get that recount mechanism going. Time to saddle up.”

Chris Lehane (Gore aide): There’s a number of us, including myself, clearly falling asleep as we’re standing up. And we go to a meeting, and there’s a bunch of lawyers in the room who have been on call in case there were issues. They’re talking about how you win these recounts by being smart about the districts you pick to do the recount in. I still remember Mark [Fabiani] spoke out against that and argued that, you know, this is a presidential campaign. It cannot look like we’re trying to cherry-pick.

[Read: How Donald Trump could steal the election]

Mark Fabiani (Gore deputy campaign manager): I remember going to see Gore at the end of the night, and him coming out of his bedroom with the bathrobe that the hotel had given us. We all got monogrammed bathrobes with our initials on them.

Michael Feldman (Gore aide): I still have my monogrammed Loews Vanderbilt robe. That’s a trigger.

II. The Battle Begins

On the morning of Wednesday, November 8, the Bush and Gore campaigns began sending lawyers and volunteers to Florida. The narrow margin had set in motion an automatic mechanical recount—checking the machines and the tallies—but not a recount by hand. The mechanical recount reduced Bush’s margin to 327 votes. Gore had the right to request a hand recount in each of Floria’s 67 counties—the request had to be made county by county—but he asked for a recount in just four: Broward, Miami-Dade, Palm Beach, and Volusia. All of them were populous and heavily Democratic. They were also counties where problems with voting had been concentrated. Bush’s post-election effort in Florida was led by the former secretary of state James A. Baker. Gore’s effort was led by the former secretary of state Warren Christopher.

Ben Ginsberg (Bush aide): When you go into a recount, you need people in four different disciplines: You need lawyers. You need people who can be sure the ballots are secure and not tampered with. You have to have communications people. And you need people who are good in logistics. One of the great things about campaign people is that they know how to get the impossible done in a real hurry. There were planes already on standby.

Jill Alper (Democratic consultant): I remember saying, “Gosh, I wish we had a plane,” and then saying, “Wait. We have the Lieberman plane.” We put the all-call out. People started coming back.

Alan Rose (Gore staffer): I remember thinking, I can’t believe Lieberman has been on this plane for the whole election. It was a broken-down old charter. It was unmarked—no shrink-wrapped logo.

Kristen Silverberg (Bush aide): I left from Austin on the first plane at maybe five or six. I remember asking, “What do we know about Florida recount law?” Everybody kind of stared at each other. Then we all went to sleep for an hour.

Jill Alper (Democratic consultant): I was in the front of the plane. With one of the lawyers, I put together a little recount training guide. I used the microphone that the stewardesses would normally use.

Alan Rose (Gore staffer): We landed in Tallahassee at the same time Jeb Bush did, coming from Austin. On the tarmac, we walked right by him.

Theodore Olson (Bush lawyer): I was flying to meetings in Los Angeles. Somewhere over the middle of the United States—there were telephones on airplanes in those days—I checked messages, and I had two calls from people in connection with the Bush campaign asking if I could get to Tallahassee right away. I told them I was going the wrong direction at 30,000 feet. When I got to Los Angeles, I turned around.

Robert Zoellick (Bush recount aide): I had clothes for just a few days. We had to build all the basics, from learning Florida election law to office space, food, places to stay. We were getting very good lawyers to come down, but where do you put them?

Bret Baier (Fox News reporter): One weekend, the hotels were all booked because of the Florida–Florida State game. I ended up staying in someone’s house, like, in a guest room. I woke up looking at a family picture, thinking, What is this room? And who is that family in the photo?

David Boies (Gore lawyer): When I arrived at the offices in Tallahassee, I was greeted by Ron Klain, who said, “Welcome to Guatemala.”

Ron Klain (Gore aide): If you had to think about the worst possible place to fight this thing out, other than maybe Texas, Florida was the most adverse circumstance you can imagine. The person in charge of running the whole thing is the fucking candidate’s brother, Jeb Bush. If I handed you how Florida worked on a piece of paper, you would say, “This is a Third World banana republic.”

Karl Koch (Gore aide): The Bush argument was easier than our argument—“The votes have been cast; it’s over.” We had to make the argument for why the election wasn’t over, and people don’t want to hear that argument.

Mark Fabiani (Gore aide): Some of us proposed a plan where on Sunday night, after the NFL games, Gore would make an address. He would have done it in Florida, and he would have done it in front of a group of senior citizens—you know, primarily Jewish people who had been disenfranchised by the butterfly ballot and had ended up voting for Pat Buchanan. And he would say to them, “Look, I know this is heartbreaking for you. But here’s what I think is the best thing for this country. I pledge not to bring legal action, and I know that some of you might want me to bring legal action on the butterfly ballot. I pledge not to bring this action to court. However, I pledge to resolve it as speedily as possible with a statewide recount that would be supervised by some, you know, eminent people.” That was what some of us thought we should do. Probably Bush would have rejected it. But it at least would have given us a dramatic moment, and it would have put Gore in a good position. Even if we then had to go to individual county recounts, we could say, “Look, we wanted to do a statewide recount, and the other side wouldn’t do it.” And this was all very much in motion. And then Senator Lieberman attended a meeting on Saturday after the Sabbath ended and argued very strongly against this. So we ended up staking out a position of, you know, limited recounts in limited counties. And that led the other side, of course, to take the position that that’s unfair.

Joseph Geller (chair, Miami-Dade Democratic Party): When the first of the official campaign people started trickling in, somehow they made a decision, I believe without asking us, that they were only interested in manual recounts in Miami-Dade, Broward, Palm Beach, and Volusia. Well, you know, that could be their opinion, but that might have been the moment where the campaign was lost.

Robert Zoellick (Bush recount aide): We wanted to emphasize finality and fairness. And part of finality and fairness was accepting the rules, as opposed to writing the rules to serve the outcome the other side wanted. We always had to be careful about a public dynamic that everybody should just keep counting until the result flips. Our message was that Bush won, various recounts reestablished this, and it’s time to end the push for a different result. Gore’s slogan was “Count all the votes,” but he undermined his own position, because he started by seeking hand recounts in only four very Democratic counties. He didn’t ask for a statewide recount, and his team tried to block some military absentee ballots.

The organizational styles of the Bush and Gore efforts were markedly different. Bush remained aloof, focused on a presumptive transition to the presidency; Florida was tightly overseen by Baker (Bush’s brother Jeb, the governor, had officially recused himself). In contrast, Gore was personally involved; decision making was more inclusive and dispersed.

Robert Zoellick (Bush recount aide): The Gore people were actually way ahead of us. They’ve got a plane with 70 lawyers. They’ve got all this preparation done. I arrived the day after the election, and Baker and [Bush campaign manager] Joe Allbaugh had come from Texas on a private plane. We were the first three down there. We’re really starting from scratch. But by the end, we had specialized teams focusing on the Florida courts, and on the different divisions of the Florida courts, absentee and other ballot issues, and on the federal courts. We had separate people on TV. Then we had recount teams. Baker and a few of us coordinated briefings with Governor Bush. If you look at David Boies—in the last week, he was doing all the courts, TV, and advising Gore by himself. Boies was very good, but he was stretched too thin, and we had talent that could match him in each area. Also, Governor Bush had empowered Baker, so we could make decisions and stick with them.

Fred Bartlit (Bush lawyer): After the election, Ron Klain and I would go to places and talk about the recount. Ron would recall these huge conference calls with 40 or 50 people. Gore himself would be on the call. And the calls would go on for a long time. Then they’d ask me. I said we had a morning meeting for about 40 minutes with four of us headed by Secretary Baker. George Bush was never there. We believed in SEAL Team Six, not the 3rd Infantry Division.

Kimball Brace (voting-equipment expert witness): I remember an hour-long phone call with Al Gore. He was very inquisitive about what I knew in terms of voting equipment. Either he had been very well briefed or he had a great big file cabinet next to him. He kept asking, “What about these vendors? Who owns this company?” All kinds of things.

Joshua Bolten (Bush policy director): Bush didn’t have a lot to do. He made the smart judgment that he should not attempt to be the field commander. He was at the ranch most of the time.

III. Hanging, Dimpled, Pregnant

Legal actions went forward on many fronts; the chair of the Miami-Dade canvassing board referred to the proliferation of suits as “musical courts.” The Bush camp sought to stop hand recounts, and lost, on constitutional grounds, in federal court. The Gore camp sought, in state court, to prevent certification of the results until hand counts in four counties were complete—and momentarily prevailed, in the Florida Supreme Court. Separately, the Gore camp won a ruling by a Florida judge, Jorge Labarga, that so-called dimpled chads could be considered by officials conducting recounts.

Meanwhile, the laborious process of hand counting got under way in Broward, Palm Beach, Miami-Dade, and Volusia Counties. It was tedious and fractious. Hanging over everything: a running clock. The Electoral College would meet on December 18. If election disputes were not resolved, the matter would pass to the Florida legislature in advance of that deadline.

Jorge Labarga (circuit-court judge): The main thing I was asked to rule on is: What was the intent of the voters? The way voting went was you had this little card and you insert it into this machine, and then you puncture the circle of the people you’re voting for. And then that card full of holes would be inserted into a computer. People don’t always follow directions. Instead of just puncturing the hole for Al Gore, some people would write Al Gore. Or you could see where they tried to push the little chad through—there’s, like, a bulge in it—but it held in place. That would be a “pregnant” chad. The question for me was: Do we have to have a complete removal of the chad? Or what about a person who wrote in the name Al Gore—do we count that? Clearly they indicate intent. I ruled that they should be counted.

Mark Glaze (recount volunteer): They brought out the physical ballots in boxes. And the monitor, a theoretically neutral person, would, one by one, go through the ballots and hold them up. And there would be an observer from the Gore side, and one from the Bush side. The monitor was not supposed to let us touch the ballots.

Jon Winchester (recount volunteer): It was a sweatshop. We got in there and counted ballots for hours and hours. One of the observers would say, “Oh, this is a good one,” and the other would say, “Oh, I object—that one’s questionable.” And we’d have to put it into the canvassing-board pile [for review].

Ann McFall (Volusia County canvassing-board member): They fed the canvassing board and the workers for the canvassing board—they had turkey legs every night brought over from the prison. You had some really important people just holding up these long, long turkey legs. Oh my God, it was something.

Jorge Labarga (circuit-court judge): When the case was done, the election supervisor rented a Ryder truck, and the truck carried all those ballots to Tallahassee. The happiest day of my life was when I saw that yellow truck on the Florida Turnpike heading north, away from me.

Katherine Harris, Florida’s Republican secretary of state—the official responsible for overseeing elections—proved to be a lightning rod. Democrats questioned whether she was impartial, because she had been co-chair of George W. Bush’s Florida campaign. Some Republicans worried about her political skills in a crisis.

The Gore campaign had hoped to achieve as much as possible in the “protest” period, before certification, at the county level. Harris argued that challenges would be better afterward, statewide, in the “contest” period. Pressing for certification, Harris sought speedy completion of recounts, or an end to them. The role played in her office by the Republican operative Mac Stipanovich remains a matter of dispute.

Leon St. John (lawyer for Palm Beach County): Time was on the side of the Republicans, because Bush had a lead and there was a deadline to certify the vote under Florida law.

Katherine Harris (Florida secretary of state): My role was to protect Al Gore’s legal rights, not his political viability, so I was focused on certification and trying to follow the law, although the Florida Supreme Court delayed me several times. The Gore campaign felt that they had to prolong the protest phase, and hopefully gain more votes, but what happened when they did that, they short-circuited the time in the contest phase, and there wasn’t time to do the manual recount statewide as we should have had.

Robert Zoellick (Bush recount aide): All the political whirlwinds were buffeting Florida Secretary of State Katherine Harris. She was trying to be fair under Florida statutes, but the Florida Supreme Court was inventing new law and the press was clobbering her. I don’t know whether it came through Jeb Bush or the Republican Party, but Katherine was given Mac Stipanovich as an adviser to steady her nerves. His nickname was “Mac the Knife.” Mac, a former marine, had run [Jeb] Bush’s first, and losing, campaign for governor. A great personality and mind, one of those colorful people you come across in state politics, with a wealth of knowledge about local personalities, battles, and bodies. At the time, he was studying for a master’s degree in medieval French history.

Mac Stipanovich (Republican operative): I was sitting in Latin class when my phone vibrated. I looked down and saw who it was and stepped outside, and the ask was: Could I get into Katherine Harris’s office and help her? I had a good relationship with Harris. I had helped in her election, and we’d been personal friends ever since. The strategy was to bring the election in for a landing, to make it end, to get it over with, to just keep squeezing down the options. My primary job was to give strategic advice and to counsel Katherine. I was fairly well known in Tallahassee. I would arrive early in the morning, be driven in from outside into the parking garage, go up to her office, stay there until everything was over at night, and then be driven out of the parking garage to my car off-site. Driving into the capital past reporters who would have recognized me would not have inspired confidence that impartiality was the rule in the secretary of state’s office.

Deborah Kearney (counsel, secretary of state’s office): Mac Stipanovich was friendly with Katherine, and he would come visit and they would talk. I think one time he either tried or he actually sat in on a meeting with us, and we just said, “No, we don’t want his input; we don’t need his input; we don’t like his input.”

Katherine Harris (Florida secretary of state): By the way, there are those who say that they were back-channeling to the Bush campaign, or that I was a puppet and they were pulling my strings, but that’s absolutely not true. Mac is just Mac. It was important for him to be able to say whatever he wanted to say so he could write history, so he could help write a film, so he could be so important in this recount. But he’s not even a footnote to me.

On Wednesday, November 15, Harris announced that no further votes from hand recounts would be accepted and that she intended to certify the results of the election in Florida. According to the Associated Press, at this time Bush held a lead over Gore of 286 votes. It would expand to about 930 when absentee ballots from overseas were counted; Gore’s attempt to exclude absentee ballots arriving after the official deadline proved unsuccessful in the courts. On November 17, the Florida Supreme Court stepped in to prevent certification until it could rule on whether hand recounts should be accepted; in the meantime, hand recounts continued. On Tuesday, November 21, the court decided unanimously that hand recounts should go on, and gave the counties five days to finish them.

Charles T. Wells (chief justice, Florida Supreme Court): We came out with our ruling on Tuesday evening before Thanksgiving and extended the time to receive the recount until the Sunday after Thanksgiving at 5 p.m. if the secretary of state’s office was open that day, or 9 a.m. the following day if it wasn’t open. Well, that was met very adversely by the Bush people, who maintained that we had no leeway in which to extend the time. It was also met with an adverse reaction from the Miami-Dade County canvassing board, which maintained that this was not sufficient time for them to count. So they just disbanded their efforts.

Craig Waters (spokesperson, Florida Supreme Court): A number of businesses realized that they could get their logo on worldwide television if they simply sent someone to stand in front of where I was making announcements and hold up a sign. I looked up one time and there was a septic-tank service that kept driving past the podium.

Joseph Klock Jr. (lawyer for Katherine Harris): We developed a rule, and the rule was that any time we won anything, we’d make it a point of celebrating within two hours, because it basically took about two hours before the Supreme Court would reverse what we were able to accomplish.

Ben Ginsberg (Bush aide): We got the sense that the majority of judges on the Florida Supreme Court didn’t really like us much. We thought we had the better of the arguments, but the loss was not a terrible shock. [Bush lawyer] Ted Olson had all the papers ready, so we were pretty quick to go up to the Supreme Court.

IV. The Brooks Brothers Riot

On Wednesday, November 22, the day after the state supreme court’s ruling, the Bush campaign petitioned the U.S. Supreme Court for certiorari—that is, asked it to review the lower court’s decision. That same day, Bush’s running mate, Dick Cheney, suffered a mild heart attack. Also that day: the so-called Brooks Brothers riot, which unfolded in the office building where the Miami-Dade recount was taking place. Dozens of Bush volunteers from out of state had descended on Miami: “50-year-old white lawyers with cell phones and Hermès ties,” as The Wall Street Journal described them. Many gathered to protest the recount, and the protest spiraled out of control. Caught up in the confrontation was Joe Geller; he was at the scene by chance, hoping to demonstrate how voting machines processed punch cards. In the aftermath, the Miami-Dade recount was halted.

Ron Klain (Gore aide): I really thought we were going to be ahead in the tally after Thanksgiving weekend. We had this delay in the certification ’til Sunday. We just needed to get the count finished in Miami-Dade, and we would have been ahead. Sunday night, Katherine Harris would have faced the certification with Gore ahead. And that plan went awry. One reason was the Brooks Brothers riot.

Duane R. Gibson (Bush volunteer): We could see instances—I could, anyway—where I thought the Democrats were cheating. Challenging things. Delaying things. And it was starting to be a sham, in my view. About a dozen of us, we said, “This is a bunch of baloney. Let’s go up and let’s see what’s going on at the election office,” which was in the Miami-Dade County office building. And what happened was, the head of the Democratic Party in Miami-Dade, he walks in there, like carte blanche. There’s a big glass window, like at a bank. And all the ballots are sitting back there, right? And I see this guy pick up a ballot and put it in his pocket. I was like, “You’ve got to be kidding me.”

Joe Geller (chair, Miami-Dade Democratic Party): I arrived in the middle of a protest rally. They were chanting, “Let us in! Let us in!” They were banging on the doors and on the glass partitions. The staff all knew me. So I went to the window and said, “Can you please give me a sample ballot?” The protest all around us is getting louder and louder and rowdier and rowdier, and it seemed like we waited forever. Finally the elections woman came back and passed me a sample ballot. It was labeled official democratic party training ballot in capital letters, clearly visible. And a Republican operative says, “What do you have there?” And I hold it up, so she can see what’s written on it. And she looked at me, and she looked around at the screaming individuals, and she yells, “He’s got a ballot! He stole a ballot!” She could not possibly have been confused.

Duane R. Gibson (Bush volunteer): We started yelling, “Hey, he took a ballot! He took a ballot!” We were like, “This is such a sham.” We don’t know what’s going on with those ballots back there. I mean, who knows if they’re taking votes out or putting new votes in. Ballots are getting handed to the head of the Democratic committee in Miami. So we started shouting. “Stop the count! Stop the fraud!” And it got louder and more energized. And the cameras came.

[From the July/August 2020 issue: The dark soul of the sunshine state]

Joe Geller (chair, Miami-Dade Democratic Party): They’re saying, “This guy stole a ballot.” A mob descended on me, yelling and screaming at me and jabbing me with their elbows. I make it to the elevator and take the elevator downstairs, and in the elevator, it’s dead silent. When the elevator doors open, and there are cameras again, they start yelling. There’s one guy in particular dogging me, who had followed me from upstairs. He keeps saying things like “You’re in trouble.” As I head to the exit of the building, he launches himself into me, full body. I turn around and head back to the escalator, and just as I get to the foot of the steps, a cop comes up to me and says, “They say you stole a ballot.” I say, “Absolutely not. I have a training ballot of the Democratic Party. I’m permitted to have that.” His sergeant comes up, and I explain again. He says, “Well, I want to see it.” And I say, “That’s fine, but we’re not going to do it right here with CNN live. At the distance the cameras are, you’re not going to be able to read it. If you’ll step around the corner with me, I’ll be happy to show it to you.” I step around the corner and show it to the guy. He says, “Let’s go back to the elections office, and they’ll verify what you say, I’m sure.” And of course the woman says, “Yes, that’s Mr. Geller. I gave him a Democratic Party sample ballot.” So the cops say, “Okay, sorry, Mr. Geller,” and walk me through the elections office to a back elevator. I pass what used to be called the counting room, and see, through the glass walls, all three members of the canvassing board and some of their staff. They’re all looking worried. I drive home and immediately put on the TV. One of the members of the canvassing board says, “Well, we were trying to finish this recount, but under the current circumstances, I don’t think it’s possible.” They were frightened.

Jamie Holland (Democratic poll watcher): I remember seeing some of the protest and wondering, Why isn’t our passion as strong as theirs? The other side is catching the media, and we’re just grinding it out without that sense of being equally outraged.

Mac Stipanovich (Republican operative): Somebody said at the time—this is probably unfair—that while the Democrats were bent over their calculators, we were breaking bar stools over their heads.

Mark Fabiani (Gore aide): I was in D.C. at the Ritz-Carlton, around Thanksgiving. [Gore aide Chris] Lehane comes over, and we’re sitting in the lobby. There’s a harpist playing in one corner. And as we’re sitting there talking, this huge rat just saunters across the entire lobby of the Ritz-Carlton, as if it didn’t have a care in the world. We thought it was a metaphor for the entire situation. We started calling the hotel the “Rats-Carlton.”

V. The Supreme Court

On Friday, November 24, the U.S. Supreme Court agreed to review the Florida Supreme Court’s ruling in favor of Gore. Two days later, on Sunday night, Katherine Harris certified the vote tally in Florida, and Bush’s lead stood at 537 votes. Some recount results were excluded—the results from Palm Beach County had arrived two hours late. Miami-Dade had stopped its recount.

Laurence Tribe (Gore lawyer): Ron Klain called, and he said, “We really need help. It looks like there is an issue about federal-court intervention with the electoral recount, and we need you to fly down to Florida immediately.” The question of whether, as a matter of federalism, this is an appropriate intervention was very much up in the air. The next morning, I appeared in federal court, and I remember arguing that it was inappropriate for a federal court to intervene at this point. If there were any constitutional issues about the recount, they could be properly handled at the state level and in the state court.

[Read: Does Brett Kavanaugh agree with Bush v. Gore?]

Charles Fried (Bush lawyer): The feeling many of us had was that the Florida Supreme Court had one commitment above all: that George W. Bush not be elected. They hated him—not every one of them—because of tort reform. The Florida Supreme Court at the time was very plaintiffs-oriented, and many of them had come up through the most aggressive parts of the plaintiffs bar. The thought that this man should become president was unbearable, because in Texas he had really two signature issues—educational reform and tort reform.

Barbara Pariente (justice, Florida Supreme Court): Our court was criticized as being political, but there were at least two other cases that we ruled on—including the Palm Beach County butterfly-ballot case and the absentee-ballot case from Martin County and Volusia County—where we ruled for then-Governor Bush. A different decision in any one of those cases would have “given” the election to Vice President Gore.

Oral arguments before the U.S. Supreme Court were held on Friday, December 1. Laurence Tribe argued for the Gore campaign. Theodore Olson argued for the Bush campaign. On Monday, December 4, the Court chose, in effect, to kick the ball down the road, when all nine justices agreed to vacate the Florida decision and ask the state supreme court to clarify its arguments.

Joseph Klock Jr. (lawyer for Katherine Harris): They had 750 people in the courtroom that day. The tables where the counsel sit is usually a respectful distance from the bench, but they had pushed the tables all the way up so that they were almost touching it. From where I was sitting, I could look straight up and see Justice Ginsburg, four and a half feet away.

Nina Totenberg (NPR Supreme Court reporter): The court first sent the case back to the lower court to revisit its decision, and I thought that when they did that, the handwriting was on the wall. Either the Florida Supreme Court was going to do what the Supreme Court wanted it to do, or the Supreme Court was not going to uphold what the state court did.

Charles T. Wells (chief justice, Florida Supreme Court): They asked us to explain in more detail what the basis of our decision was. I considered that what they did was actually punt—they recognized that there really wasn’t a case in controversy at that point on the Bush side, and they sent it back to us.

Theodore Olson (Bush lawyer): We were thrilled. The Court vacated the decision and asked the Florida Supreme Court to explain what it was doing and what kind of legal standards it was applying and whether it was aware of certain federal statutes and constitutional issues. And the Florida Supreme Court basically ignored that. We felt that we had a very strong case that the way the statewide recount was being undertaken was capricious and arbitrary and very inconsistent.

Laurence Tribe (Gore lawyer): I viewed that as victory because I thought the Supreme Court of Florida would respond quickly and persuasively. Little did I know that the Florida court would essentially take this request from the U.S. Supreme Court for an explanation and put it in some desk drawer, and that this would provoke anger among the Supreme Court justices.

Though it did not respond to the U.S. Supreme Court immediately, on Friday, December 8, the Florida Supreme Court did overturn a lower-court ruling and order a statewide hand recount of some 60,000 ballots that voting machines had, for one reason or another, rejected. The vote this time was not unanimous—it was 4–3, with the chief justice in the minority—and it was all but certain to invite immediate high-court scrutiny. On Saturday, December 9, the U.S. Supreme Court issued a stay and halted the recount.

Barbara Pariente (justice, Florida Supreme Court): When we had our court conference, it was not as collegial as the conference after the first opinion, where we had all autographed our names on the opinion. By the time of this opinion, it was hard to feel that we were going to be able to resolve this controversy in a way that was not going to have significant political repercussions.

Charles Fried (Bush lawyer): The Supreme Court of Florida proceeded to order a recount, which they’d been told to stop doing. And this was so blatant that three of the Florida justices, including the chief justice, dissented from the decision. So my perspective was simply this: that what was going on was an obvious violation of both due process and equal protection.

Barbara Pariente (justice, Florida Supreme Court): It was certainly not a pleasant atmosphere, writing that opinion. I pulled an all-nighter. But it became more unpleasant for me the next morning. I was on my way to Barnes & Noble to pick up a copy of The Federalist—to reread what it says about the role of the judiciary—and I hear on NPR that the U.S. Supreme Court has accepted jurisdiction, and not only that, but they’ve stopped the statewide recount.

Laurence Tribe (Gore lawyer): The stay by the U.S. Supreme Court, issued ultimately 5 to 4, was the decisive signal that something dramatic was happening. And I thought, Oh my God, I’m going to have to convince the Supreme Court that the Supreme Court of Florida understands what it’s talking about.

David Boies (Gore lawyer): I was in a sports bar across the street from the Governors Inn, in Tallahassee. I had been in the office and had spoken to Vice President Gore. We were all very happy. The votes were being counted. He was steadily gaining on Governor Bush. My work was essentially done, and I was going home. They had all these television screens, and a crawler came across that said the Supreme Court had issued an order stopping the vote count. My initial reaction was that this had to be a mistake. There had not been an opportunity to brief or argue the case. There were substantial issues as to whether there was really a federal question involved. The Supreme Court had never intervened in a presidential election to affect the counting of the votes in a state.

Tamarra Matthews Johnson (clerk for Justice Sandra Day O’Connor): We knew that the stay was going to issue. A television was set up in a conference room, and it showed the ballot counting in Florida. One guy was using a device, like a magnifying glass, to study ballots. And then you see the banner at the bottom of the screen saying the Supreme Court has issued a stay. I still marvel at the fact that this order comes down from a thousand miles away, the Court has said stop, and everyone just stops.

Laurence Tribe (Gore lawyer): I remember being squirreled away in a large suite at the Watergate Hotel, trying to prepare for the oral argument, and I get a call from Ron [Klain] saying, “Are you available to talk to Warren?” So Warren Christopher comes up to my suite at the Watergate. He was quite a regal fellow. He wanted to know if he could put his topcoat down. So he puts his coat down, and he says, “Can we sit down and talk?” His mood was so grave. He obviously didn’t have great news. He said, “I have spoken with the vice president, and we’ve decided that David [Boies] should handle the second argument.” I said, “Well, it’s certainly up to the vice president and you, Mr. Christopher, but what’s the theory?” And he said, “Al thinks that the Court’s main interest will be in the details of how things are going down in Florida, what the nature of the recount is.” And I said, “With all respect, I think that’s ridiculous. I don’t think the Court gives a shit about what’s happening in Florida as such. It simply wants to decide for the country what has happened in this very chaotic situation where it looks like the Florida recount is sort of an exercise in chaos rather than in democracy. And I think it’s important for the Court to understand, as a matter of federal law, why the appropriate thing is to let the recount go on, even under some corrected formula.” He said, “That’s all very well, but the vice president has decided that David should handle it. Will you help him get ready for the argument?” I said, “Of course.”

Ron Klain (Gore aide): I didn’t really know David Boies before our time in Florida. I came to have great respect for him as a lawyer, a brilliant legal mind. But arguing in the Supreme Court is this very specialized thing, and Larry Tribe is probably the best person living today to argue in the Supreme Court. I obviously have a longtime personal relationship with Larry. He’s been my professor in law school, my mentor. People didn’t love his argument the first time around when we went to the Supreme Court, but there was no question in my mind that Larry was the right choice. It never dawned on me we were going to do anything else until the vice president called me and said, “Look, I want to rethink this.”

[From the March 2020 issue: The Supreme Court’s enduring bias]

Laurence Tribe (Gore lawyer): David appears in the suite and says, “I only have a couple of hours.” I don’t know what else he had on his schedule. But he said, “Can you help me understand the equal-protection claim?” So we spent really, at most, two or three hours talking about the way the Fourteenth Amendment limited the formula or the approach a state supreme court could use to recount the ballots. And I said I thought there was a solid argument, though not a convincing one, for the proposition that the chaotic and non-uniform way the votes are being recounted violates equal protection, but the key will be the remedy. What happens if the Supreme Court ultimately decides that there is a real Fourteenth Amendment argument? And he said, “That’s a stupid argument; we’re going to win that.” And I said, “I wouldn’t count on it.”

Oral arguments before the U.S. Supreme Court took place on Monday, December 11. The hastily written opinions, which added up to a 5–4 reversal of the Florida court, were made public at 10 p.m. on Tuesday, December 12. Even supporters of the outcome acknowledged that the decision did not reflect the Court at its best. In a dissent, Justice John Paul Stevens famously wrote: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” On Wednesday, December 13, Al Gore conceded defeat.

David Boies (Gore lawyer): The atmosphere was electric. You’d never had the United States Supreme Court as an institution intervene like this in a presidential election, and you had never had a case where the United States Supreme Court told a state how to count or not count ballots in a presidential election. From an analytical standpoint, from a historical standpoint, from the standpoint of principle, both [Anthony] Kennedy and O’Connor were justices who I thought I should be able to get, and I only really needed one of those. On the other hand, on the prior Saturday, the Court had by a 5–4 majority stopped the vote count, and I thought that it would be extremely difficult for any justice who had taken the extraordinary step of stopping the vote count to now reverse themselves and uphold what the Florida Supreme Court did.

Theodore Olson (Bush lawyer): Article II of the Constitution says the legislature of a state must prescribe the method by which electors are selected in a presidential election. We argued that that provision of the Constitution had been violated because the judiciary was changing the rules by which the votes would be counted and the electors would be selected. We also argued that the recounts violated both the equal-protection and due-process clauses of the Fourteenth Amendment because the rules were being changed on the fly after the election—from county to county and from hour to hour, in an effort by the Democrats to produce votes that would change the outcome. Individual voters in different areas of the state were being treated differently with respect to the weight given to their votes.

Joseph Klock Jr. (lawyer for Katherine Harris): I remember at one point the chief justice was looking down at David, and the chief justice said to him, “Well, Mr. Boies, how long should the counting go on?” At which point [Justice Antonin] Scalia said, “Oh, until they win.”

Karl Rove (Bush strategist): I stayed that night at the Hilton in McLean, Virginia. I’d gotten room service and was in my pajamas. I’ve got the television on, and at 10 p.m. the Supreme Court comes back. I have NBC on, and Pete Williams and Dan Abrams are outside the Supreme Court trying to describe the opinion. As I recall, Williams had somebody feed him the opinion from the back to the front. So he is reading the conclusion, and it is that the Court finds that the Florida Supreme Court violates the equal-protection clause and Article II, and the election is over.

Ben Ginsberg (Bush aide): The decision started coming in one page at a time on an old fax machine. We divided up the opinion among all the former Supreme Court clerks, figuring they would have the most instant insight. And it was actually [future Senator] Ted Cruz, reading Justice Stevens’s dissent, who said, “Holy cow, we must have won.”

Ron Klain (Gore aide): Among the many bad things about Bush v. Gore, one of the worst is it takes, like, ’til page seven until you find out the outcome of the case. It’s a horribly written opinion. So I’m reading along, reading along, reading along. I have Gore on the phone, people are bringing me pages one page at a time. Finally we hit the seventh page.

Karl Rove (Bush strategist): I call Bush at the governor’s mansion. He’s in bed reading with the television off. So he turns on the television, and when he turns it on, it is set to CNN. Charles Bierbauer is reading the decision from the front, and he has no clear idea of the conclusion. I say, “Congratulations, Mr. President,” and Bush is like, “What are you talking about?” I tell him what Pete Williams is saying on NBC. And he tells me that the guy on CNN is saying something else. After we go back and forth a couple of times, he says to me, “I’m calling Baker,” and hangs up.

Nina Totenberg (NPR Supreme Court reporter): The decision is the decision—it’s a ticket for one trip only. It’s never been cited in any other case, and nobody expects it ever will be. The odd thing about this was that the five justices in the majority were the court’s moderate conservative and very conservative justices, but all of them agreed on one thing in their general philosophy, and that is they were supporters of a more aggressive protection of states’ rights. And in this case they went for a federal decision that essentially rejected states’ rights. Conversely, the four liberals were people who more often than not were not big supporters of states’ rights, and in this case they were big supporters of states’ rights.

Chris Lehane (Gore aide): I got an email—I don’t even know what it was called in those days. It was somewhere between a pager and a phone. You wore it on your hip. The message was from Gore, and it said, “Please do not trash the Supreme Court. Al.” And I didn’t. I was incredibly impressed and struck by the vice president trying to put the values of the country first. But I don’t think a day goes by when I don’t think about how different the world would be today in so many respects.

Joshua Bolten (Bush aide): I remember Bush warned the staff against triumphalism. He said this has been a really difficult period, and if he was going to be able to govern properly, a lot of people who did not think he was the legitimately elected president were going to have to accept him as president.

Nina Totenberg (NPR Supreme Court reporter): I know in hindsight that Justice O’Connor had second thoughts. She could dig her feet in, but she was a person who was capable of reflection and thinking that she’d been wrong. That doesn’t necessarily mean that she would have done something different. It means she had real second thoughts in hindsight about whether the decision had been right.

Joshua Bolten (Bush aide): I just remember thinking, Man, this isn’t the way this should be decided. I believed that Bush won the election, but there would be no way ever of having pure truth on it.

Ron Klain (Gore aide): I am not over it. I don’t think I’ll ever be over it.

VI. The Aftermath

A comprehensive review of the uncounted Florida ballots was conducted by two groups—first by The Miami Herald and USA Today, in conjunction with the accounting firm BDO Seidman; and later by a multi-outlet consortium of news organizations, including The New York Times and The Washington Post, in conjunction with NORC at the University of Chicago. The Herald investigation concluded that Bush would still have won, and would likely have widened his lead slightly, even if the Supreme Court had permitted the recount that Gore had sought. The review also determined that, had a full statewide recount of all disputed Florida ballots taken place, with each ballot reviewed from scratch and ballot counters using an inclusive standard, Gore might possibly have won by a few hundred votes. Gore had never requested such a statewide recount. The consortium came to similar conclusions.

Marty Baron (Miami Herald editor): We were left with the big question as to whether the vote was really accurate. Mark Seibel, who was our managing editor for news at the time and now works here at the [Washington] Post, said, “You know, the ballots are public records.” He felt that we could get access to those ballots and that maybe we should do our own recount.

Kirk Wolter (director, Florida Ballots Project, NORC): The goal was simply, what would have happened had SCOTUS not stopped the recount? There were various voting standards on the table at that point in time. It’s been so long, I can’t recount them for you, but the Bush team advanced proposals, the Gore team advanced proposals, the Florida Supreme Court advanced proposals, Katherine Harris had her way of doing things, and so forth. And the question was, under each of those various proposals, what might have happened had the recounts continued?

Marty Baron (Miami Herald editor): In certain counties, we encountered resistance from the supervisors of elections. They argued that it was not, in fact, a public record, and we had to litigate against them. We prevailed in each one of those cases. Now we had to decide what was the standard that was going to be used. First of all, each county had its own system, so in many of the counties, if not most of the counties, it was a punch-card system. We decided that we would look at it under multiple standards. In places like Duval County, as I recall, you actually marked the ballot. You would fill it in. And there were a lot of people who were first-time voters, and they would mark something and cross it out and then mark something else. And obviously we couldn’t count those ballots. And then there was the debate in Palm Beach County, where they had the so-called butterfly ballots, where people were very confused—they thought they were voting for Al Gore and instead they voted for Patrick Buchanan. There were a lot of those people. That said, you could only count the way they actually voted. You couldn’t go back and make a determination as to what they intended to do. You could only look at what they actually did. So we went to every one of the 67 counties. We looked at the results under different standards. We did a calculation. We looked at BDO Seidman’s. We were in very close agreement with BDO Seidman’s calculation. We came to the same conclusion. And the conclusion was that George W. Bush had won Florida and, therefore, won the presidency.

Kirk Wolter (director, Florida Ballots Project, NORC): We were not allowed to actually touch the ballots. Only a county worker was authorized to touch a ballot. So the county worker would hold up the ballot for our workers to review, and if the ballot was clear, that was fine, but if the ballot wasn’t clear, we were allowed to touch the hand of the county worker and move the hand and rotate the ballot and change the position of the ballot in various ways in order to get the best possible view.

Marty Baron (Miami Herald editor): When we launched this inquiry, the Bush campaign and Republicans in general were outraged. They felt that it was an effort to delegitimize a Bush presidency. That wasn’t our intention at all. Our intention was to find out what the real vote was—to do the recount that the U.S. Supreme Court would not allow to proceed. And as it turned out, it showed that George W. Bush had won the election by pretty much any standard. I can tell you two things. Number one, there are still many Democrats who don’t accept that as the result, and ignore this study. And number two, the Republicans have never apologized for having falsely accused us of trying to delegitimize the Bush presidency.

Mac Stipanovich (Republican operative): I believe to this day that George Bush won the election by having a plurality of the votes that were legally cast that day. If you ask me, do I believe that a plurality of the people who went to the polls that day, and tried to vote, tried to vote for George Bush? I don’t think so. But we were counting legal votes.

The nearly 6 million punch-card ballots cast in Florida in the 2000 election remain intact, preserved in boxes and wrapped in plastic at the Florida State Archives, in Tallahassee.

This article was originally published in The Atlantic. Sign up for their newsletter.

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Viewpoint: Why Michael Flynn Is Walking Free

David A. Graham, The Atlantic — Fri, 08 May 2020 12:00:00 -0400

Michael Flynn was an early, instinctive Trumpist.

The retired general was an enthusiastic backer of Donald Trump’s candidacy, leading chants of “Lock her up!” at the 2016 Republican National Convention. And his less public work bore the hallmarks of Trumpism too: brazen lying, shameless profiteering, conspiracy-mongering, and bigoted tweeting.

Nonetheless, Flynn didn’t immediately grasp how much the rules of the game changed when Trump won the 2016 election. When Flynn, the newly minted national security adviser, got in trouble with the law, he quickly took up the standard playbook of white-collar criminals in pre-Trump America. When the FBI caught him lying, Flynn copped a plea and agreed to cooperate with the government in exchange for a lesser sentence.

Only after that December 2017 plea deal did Flynn grasp the new reality: Cooperating with authorities might get you off easy, but staying loyal to the president will get you off entirely. So even though he’d already pleaded guilty to lying to the FBI, Flynn changed his mind, tried to withdraw his plea, and began fighting the prosecutors he’d promised to help tooth and nail.

It was a bold move, the sort of unorthodox strategy for which he’d become famous as an intelligence officer. And today it paid off, as the government moved to drop all charges against Flynn. The reversal, from confessed felon to scot-free, is a microcosm of how dramatically the rule of law has weakened during the Trump administration.

Flynn was fired from the White House in February 2017, just days into his tenure as national security adviser. Before Trump’s inauguration, Flynn discussed U.S. sanctions against Russia with the Russian foreign minister. But Flynn lied about those conversations to FBI agents. He also lied about them to Vice President Mike Pence, which was the reason given for his dismissal. (Flynn was not forced out when the president learned of the deception, but only when it was reported in The Washington Post.)

Flynn had a host of other problems too. He had lied repeatedly about taking money from the Turkish government for lobbying, failing to file required documents. He appeared to have lied about who paid for a 2015 trip to Russia, where he sat with Vladimir Putin. He was also involved in an arcane for-profit nuclear-reactor scheme in the Middle East. (One clear takeaway of the investigation is that, potential criminal acts aside, Flynn had no business getting anywhere near the sensitive job of national security adviser.)

Given these many legal problems, Flynn did what many prudent defendants do: He agreed to work with prosecutors in exchange for pleading guilty to only a small part of the many possible charges against him—in this case, lying to the FBI. But the longer he had a chance to see Trump in action, and to see how easily the president obliterates the supposed safeguards for rule of law, the more Flynn seemed to have second thoughts. Why take your chances with a charge and potential sentence, when you could instead return to the fold and let the president take care of you? So Flynn fired his lawyers; hired new, brasher ones; and announced that he wanted to withdraw his plea. The new attorneys got results instantly: Trump started tweeting positively about Flynn, suggesting that he was some sort of martyr.

The immediate predicate of the government’s move to dismiss the charges today was the release in April of FBI notes about its interviews with Flynn. Among the notes, an unidentified FBI employee wrote, “What is our goal? Truth/admission or to get him to lie, so we can prosecute him or get him fired?” The notes are the latest example of dubious FBI behavior. As a recent Justice Department inspector-general report found, the FBI has repeatedly abused rules for obtaining warrants under the Foreign Intelligence Surveillance Act. As I have written repeatedly during the Trump administration, the FBI’s long record of abuse means that its statements cannot be taken at face value; the bureau will look out for its own interests, and break the rules to do so if it must. (There is no evidence, contra Trump’s claims, that Flynn was politically targeted by the Obama administration.)

The FBI notes set off a firestorm in conservative media, which argued that Flynn had been unfairly targeted by the bureau. The putative concern over unfair prosecutions rings false for Trump and his allies, who have demanded iron-fisted “law and order” in cases that don’t involve the president’s cronies. Moreover, many legal experts believed that the notes were insufficient to convince Judge Emmet Sullivan that Flynn was entrapped.

But as it happened, the notes didn’t have to convince Sullivan, because the Department of Justice withdrew the charges before the judge had to reach a conclusion. (Sullivan could still reject the DOJ’s motion. The long-running prosecutor on the case abruptly withdrew from it today, a likely sign of disagreement, and The New York Times reports that the motion stunned prosecutors in the U.S. attorney’s office.) Flynn’s defenders argued that the FBI was out to get him, and if the FBI is out to get you, it will find a way. But there’s a corollary: If Attorney General William Barr’s Justice Department wants to let you off, it will find a way too.

The whole process is stunning: Flynn was accused of committing several crimes, admitted to one to try to get himself off easy, agreed to cooperate, reneged on the deal, and is now free, having escaped punishment for both the crime to which he confessed and those on which he avoided prosecution.

Yet Flynn’s escape is not merely an isolated outrage. It is also a test case for loyalty to Trump. Since Flynn flipped on Trump, and then flopped back, his fate offers a lesson for others who might find themselves in a bind and tempted to turn on Trump, who continues to engage in the sort of behavior that got him impeached.

If there is any doubt about the White House’s role, the president telegraphed the outcome of this case on April 30, when he was asked whether he’d pardon Flynn. Trump said he didn’t think he’d have to.

“Well, it looks to me like Michael Flynn would be exonerated based on everything I see,” he said. “Look, I’m not the judge, but I have a different type of power. But I don’t know that anybody would have to use that power.”

This wasn’t just good guessing—it was a self-fulfilling prophecy. The Trump-Barr Justice Department appears to have different standards based on one’s political allegiance: For Trump critics, such as former FBI Deputy Director Andrew McCabe, and political opponents, such as the Biden family, it looks high and low for a way to investigate or prosecute, leaning on novel or untested legal theories. But for loyalists (even a prodigal loyalist such as Flynn), it offers the benefit of every doubt, or at least does its best to soften the penalties (as it did for Roger Stone).

Cooperation deals are supposed to show criminals that returning to the fold and honoring rule of law has its benefits. But the Flynn case shows that those benefits pale in comparison to honoring loyalty to Trump.

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Analysis: Why Would a Billionaire Charge the Secret Service $650 a Night?

David A. Graham, The Atlantic — Fri, 07 Feb 2020 16:10:13 -0500

Last year, Eric Trump was asked about Secret Service protection at Trump Organization properties.

“If my father travels, they stay at our properties for free,” he said. “So everywhere that he goes, if he stays at one of his places, the government actually spends, meaning it saves a fortune because if they were to go to a hotel across the street, they’d be charging them $500 a night, whereas, you know we charge them, like $50.”

You will be stunned to learn that this is not remotely true.

Instead, as the indefatigable David Fahrenthold and three colleagues at The Washington Post chronicle in his latest scoop on the president’s business, the Trump Organization charged the Secret Service (in other words, the taxpayer) from $400 to $650 a night to stay at Mar-a-Lago while guarding the president. At another Trump property, his golf course in Bedminster, New Jersey, the Secret Service was billed $17,000 a month for a small cottage, even when the president wasn’t present. These are just snapshots. Despite heroic public-records work by the Post, there’s still no complete picture of just what the Trump Organization is charging the Secret Service.

It’s no longer news per se that the Trump Organization is profiteering from the presidency. Since Donald Trump refused to divest from his business at the start of his term, that’s been inevitable. There’s the massive emoluments scandal of the Trump International Hotel in D.C. There are Trump’s Scottish properties, at which he “invited” the vice president to stay, then charged the taxpayer tens of thousands of dollars. There was his shameless choice to hold the G7 summit at Trump Doral—a decision so universally reviled that the White House quickly reversed it. One of the arguments the administration offered for picking Doral was that it would allow savings on security. “He’s not making any money off of this, just like he’s not making any money from working here,” insisted Acting White House Chief of Staff Mick Mulvaney. The new Post story shows that was almost certainly false.

New or not, the question remains: Why does a billionaire charge the Secret Service $650 to stay at his property?

The issue is not whether taxpayers should pay for presidential protection. They should, unequivocally. The question is about the cost. As the Post notes, other presidents who allowed the Secret Service to use their properties, including both George Bushes and Bill Clinton, didn’t charge them. None of those presidents owned a for-profit business while serving as president either.

Perhaps only Trump knows the answer to why he’s charging so much. But here are a few theories as to why so rich a man would gouge his bodyguards and constituents.

The president is simply a penny-pinching cheapo. In 1990, Spy started mailing progressively more minuscule checks to rich people to see who would go through the trouble of cashing them. Only two people cashed the smallest checks, for 13 cents: an arms dealer, and Donald Trump. Trump is the kind of guy who, while running a huge real-estate business, routinely stiffed contractors out of four-figure checks. Why wouldn’t he squeeze every cent out of this too?

The profiteering is the point (with apologies to my colleague Adam Serwer). Trump’s presidential run was conceived of more as a publicity stunt than a serious policy initiative. He set out to make money, and if winning the election wasn’t really part of the plan, that didn’t mean it didn’t contribute to the ultimate goal.

It’s about defiance. So many of Trump’s actions can easily be explained as trolling, or at least as a kiss-off. If you tell him he can’t do something, he’ll do it. What other explanation is there for announcing, in the midst of an impeachment investigation over abuse of power, that you’ll direct a major international summit to your own resort? Some people will be appalled by the charges, but there’s nothing they can do. When you’re a president, they let you do it. You can do anything.

He feels he’s entitled. The extravagant charges are hypocritical because Trump has made great show of donating his presidential salary. He has insisted that the presidency is a money loser for him, depriving him of a chance to make money elsewhere. It’s impossible to assess this claim—Trump hasn’t released documents to back it up, and his reputation for honesty speaks for itself. It does appear that political backlash against the president has hurt business at some of his properties, though. Trump may view the money he makes from the Secret Service as the least taxpayers can do to mitigate his selfless sacrifices in making America great again, and a meager return for him.

He’s not really a billionaire. Democratic presidential candidate Mike Bloomberg was recently asked whether Americans really wanted to watch two billionaires fight on Twitter. “Two billionaires? Who’s the second one?” Bloomberg quipped. Questions about Trump’s real net worth have circulated for years. When journalist Tim O’Brien (now a Bloomberg adviser) reported in 2005 that Trump was worth more like $250 million, Trump sued him for $5 billion. (The suit was dismissed.) Whenever any investigation has gotten near Trump’s business, he’s gone ballistic. Or perhaps the better explanation is that …

He’s a paper billionaire with a cash-flow problem. Trump may well be worth billions on paper, but his empire is built on borrowing; he once called himself the king of debt. That means he has to service his loans, for which he needs cash. But several of his businesses seem to be struggling to bring in money, which could mean he struggles to move cash out the door too. As the Post previously reported, Doral is one of several properties that has seen its income tank. Revenue has also fallen at some of his hotels.

One of the few hotels that seems to be thriving is the Trump International Hotel in D.C. (though even it has its own struggles). Yet the Trump Organization is looking to sell the lease on the hotel, for a record sum. On paper that seems illogical: Why would the Trump Organization sell a property that’s thriving? And if it’s thriving because of its connection to the president, why would another operator pay a huge price for value that will dry up once it’s sold? One answer would be that the Trump Organization is seeking a large cash infusion, so that it can continue to service its debts.

Charging $650 a night for Secret Service agents doesn’t add up to the reported $500 million asking price for the D.C. hotel. But Trump has spent roughly a third of his presidency staying at his own properties, and all the nights there start to add up to a steady stream of cash coming in, from captive buyers. Just how much is unclear, though, because neither the Trump Organization nor the government will tell.

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Analysis: The Stain of Impeachment Will Last Forever

David A. Graham, The Atlantic — Wed, 18 Dec 2019 15:34:31 -0500

Later today, Donald Trump will become just the third president in American history to be impeached.

Because this outcome has been inevitable since at least late October, and because there is no practical prospect of the Senate voting to remove Trump from office, the impeachment has come to be seen as dull, lacking in drama, or yesterday’s news. This does not negate the seriousness of the charges against the president, nor the substantial evidence to support them. Nor, it’s worth recalling on this day, does it negate the symbolic import of the impeachment. Even without Senate removal, the stain of impeachment will forever be attached to Trump and his presidency.

Trump joins a dishonor roll in the company of Andrew Johnson and Bill Clinton, both of whom were impeached but not removed, and Richard Nixon, who resigned when it became clear that he would be both impeached and removed. It’s no coincidence that these men have not fared well in presidential history. Johnson is remembered as a bungler and an apologist for white supremacy who sabotaged Reconstruction. Nixon’s name is shorthand for political corruption.

While his offenses do not measure up to Trump’s, Clinton is perhaps the most useful comparison. Clinton survived impeachment with his popular approval intact, buoyed by an otherwise successful term in office and a strong economy. But his reputation has suffered since he left office. There was never any dispute about whether Clinton perjured himself, as charged—he apologized at the time. Many Democrats felt bound by politics to defend Clinton, but with distance, lower political stakes, and changing perceptions about sexual mores, many liberals have become more forthright in criticizing him, accepting some of the central Republican arguments against him.

Although many Democrats still contend that the impeachment was a politically motivated witch hunt and that Clinton’s actions, while worthy of condemnation, did not rise to the level of impeachment, the proceeding clearly tarnished him. (It doesn’t help that some of Clinton’s key policy achievements, including NAFTA, the 1994 crime bill, and welfare reform, have also fallen out of favor.) They also probably harmed his party’s political prospects. It’s no accident that Clinton still nurses a grudge about impeachment.

Trump is angry, too. Though he continues to claim that impeachment will be a political boon to him in 2020—it’s possible, though maybe not likely, and any judgment is premature—the president is reportedly seething privately over the impeachment. Yesterday, his fury spilled into public in a bizarre, rambling, self-pitying letter to Speaker Nancy Pelosi.

Trump has taken public consolation from the assurance that the Senate will not convict and remove him. But while impeachment is often likened to an indictment, they’re not exactly the same. Impeachment is a serious sanction in itself, and acquittal in the Senate is not the same as vindication. Members of the Senate are not voting merely on whether charges are true, but whether they merit removal. Again, comparison to Clinton is useful: There was no question that Clinton had lied under oath; the question was whether the offense was serious enough for him to lose his office.

In Trump’s case, the Senate’s anticipated decision will not erase the substantial evidence against him. Trump sent his personal attorney, Rudy Giuliani, to meddle in Ukraine, creating a foreign-policy back channel that was designed to aid his 2020 reelection bid by digging up damaging information about former Vice President Joe Biden, the leading Democratic candidate for president.

When Giuliani’s efforts came up short, and the sitting president of Ukraine lost in a landslide, Trump and his allies quickly moved to extort assistance from Ukraine’s new president, Volodymyr Zelensky, in order to improve his prospects in the 2020 election. While also raising a bogus conspiracy theory about Russian interference in the 2016 election, Trump asked Zelensky to investigate a company where Biden’s son served as a director. Trump-administration officials said in sworn testimony that Trump expressed no interest in the result of the investigation, but solely in the announcement—that is, the political benefit, not any fight against corruption.

In apparent violation of the law, Trump held up millions of dollars of military aid to Ukraine, desperately needed in its battle against Russia, that had been appropriated by Congress. The administration then sought to create retroactive justifications for the hold. The aid was eventually released after the hold became public, but Trump refused to cooperate with Congress, declining to allow testimony and holding back documents from the investigation. Meanwhile, Trump and Giuliani continue to try to extort foreign interference in the election.

Few, if any, of these facts are seriously in question. Trump and many Republicans have argued that Trump was within his authority to do what he did, but that doesn’t dispute the basic fact that the president extorted foreign election interference for his own personal political benefit, using government funds. And as the Clinton example shows, even an impeachment process that the president’s defenders deride as a partisan witch hunt stains a presidency.

Trump may manage to distinguish himself even among presidents who were impeached or nearly impeached. The scale and brazenness of his scheme mean that his name is likely to replace Nixon’s as a byword for corruption and abuse of political power. It also gives Trump a shot at joining other presidents who were not impeached, such as Warren G. Harding and George W. Bush, but are among the residents of the White House with the worst records in office.

At historic moments like this one, it’s common to hear portentous statements about history rendering a verdict. This is a puerile, anthropomorphizing notion of history, which has no agency. History does not remember; people do. The verdict of history is simply the people’s view of a person’s reputation, and reputation is the same as brand. No president has ever understood the power and mystique of brand as keenly as Donald Trump, which means he is acutely able to grasp the blow to his reputation that the House is striking today.

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John Kelly Says Trump Can't Resist Committing Impeachable Offenses

David A. Graham, The Atlantic — Mon, 28 Oct 2019 16:14:03 -0400

Accepting the Republican nomination for president three years ago, Donald Trump told delegates in Cleveland, “I alone can fix it.”

John Kelly, Trump’s former White House chief of staff, offered an alternative on Saturday: Aides alone can fix it.

Speaking at the Washington Examiner’s Sea Island Summit, Kelly took an implicit swipe at his embattled successor, Mick Mulvaney, by recounting a warning he said he offered the president as he left the job.

“I said, ‘Whatever you do’—and we were still in the process of trying to find someone to take my place—I said, ‘Whatever you do, don’t hire a yes-man, someone who won’t tell you the truth. Don’t do that. Because if you do, I believe you will be impeached,’” Kelly said. He said he has “second thoughts” about his resignation in December. “It pains me to see what’s going on, because I believe if I was still there, or someone like me was there, he would not be kind of all over the place.”

The comments are noteworthy not only because Kelly has been mostly quiet since leaving the White House. Kelly’s premise is that without aides who are willing to stand in his way, the president of the United States will break the law and abuse his power, and will ask his aides to break the law.

This is an impression that is confirmed elsewhere. A new book by a speechwriter for former Defense Secretary James Mattis reportedly recounts that Trump instructed Mattis to “screw Amazon” out of a lucrative contract, because he was angry at coverage in The Washington Post, which is owned by Amazon CEO Jeff Bezos. Special Counsel Robert Mueller’s investigation found that Trump tried to persuade aides to lie and obstruct justice. And of course, the current impeachment investigation has turned up a growing pile of evidence that Trump directed subordinates to extract a quid pro quo from Ukraine, and may have illegally withheld military aid.

Aides have long treated the president like a child, unable to control his whims and in need of tutoring. Supporters have tended to put this a different way, arguing that Trump’s flaws should be forgiven because he is “not a politician.” These claims of ignorance no longer hold water. After nearly three years as president, he is no longer an outsider, and as the nation’s top executive-branch officer, Trump can be expected to understand the law and follow it. Yet Kelly is plain: Without someone to stop him, the president will commit impeachable offenses.

Whether leaving was really up to Kelly, or whether it would have mattered if he had stayed, is up for debate. First, by the time Kelly left, he was reportedly not on speaking terms with Trump. (Perhaps this explains why his advice went unheeded or unheard; the president denied in a statement that Kelly ever said it.) Moreover, the idea that Kelly succeeded at keeping Trump in line is self-serving but absurd—congressional committees may stay busy for years investigating matters that took place on his watch. And Kelly was ideologically in sync with Trump on many issues, diverging largely on execution and style.

But the Kelly era at the White House was placid only by comparison to the unprecedented chaos of the Reince Priebus period. The president remained capricious and reckless, and he engaged in extensive, uncharged obstruction of justice. It is remarkable that at this late stage in the president’s term, some people still believe that he can be controlled or cajoled into running an orderly, law-abiding government, or that unelected aides are the proper stewards.

Nonetheless, Kelly’s warnings about the president surrounding himself with sycophants were dramatically illustrated by the White House’s response. “I worked with John Kelly, and he was totally unequipped to handle the genius of our great president,” Press Secretary Stephanie Grisham said in a statement that must have sounded better and more rational in her head than it did on the page. If some Trump lieutenants are convinced that the president is bound to break the law, others loudly insist that he is infallible.

Neither view is encouraging. Americans should expect that their president can withstand criticism and scrutiny, but they also can’t place their hopes for rule of law in unelected staffers restraining the duly elected president. A president who can’t be trusted not to commit impeachable offenses on his own is a president who can’t be trusted to be president.

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Analysis: William Taylor Delivers the Smoking Gun

David A. Graham, The Atlantic — Wed, 23 Oct 2019 10:15:23 -0400

Diplomats are known for their ability to phrase things delicately, but testimony today from William Taylor, the top American diplomat in Ukraine, is notable for its bluntness.

Although the Trump administration has denied that it was trying to extract a quid pro quo from Ukraine—investigations of both 2016 hacking and of the Biden family’s business there in exchange for military aid—Taylor’s opening statement shows that’s exactly what was happening.

In an astonishing 15-page prepared statement, Taylor laid out a detailed chronology, which fits closely with what is already known about the Ukraine scandal, but fills in valuable new details. Far from some disgruntled Obama-administration holdover, Taylor was dispatched to Kiev in June by Secretary of State Mike Pompeo after Ambassador Marie Yovanovitch was fired, reportedly at Rudy Giuliani’s behest. Taylor learned that Giuliani was in effect running a shadow foreign policy in Ukraine. In mid-July, Taylor realized that security assistance to Ukraine was being held up, though not the reasons for the delay. Taylor also came to understand that aides to newly elected President Volodymyr Zelensky felt that their country was at risk of being used as a pawn in the 2020 U.S. presidential election.

In mid-August, Taylor was told that not only was the money delayed, but that Donald Trump didn’t want to deliver it at all. Taylor prepared to resign in protest, though he still didn’t understand the reasons for the hold. Then Tim Morrison, the top Russia expert at the National Security Council, told him that the U.S. ambassador to the European Union, Gordon Sondland, had told a Zelensky adviser that the security assistance was dependent on Ukraine launching an investigation into Burisma, the natural-gas company on whose board Hunter Biden served.

“Are we now saying that security assistance and WH meetings are conditioned on investigations?” a horrified Taylor asked Sondland via text. Sondland told Taylor to call him. (Sondland had already shown signs of cloak-and-dagger methods, Taylor testified, including being adamant that a June call not be transcribed.) On the phone, Sondland told Taylor that Trump wanted Zelensky to publicly promise to investigate Burisma and a Ukrainian role in the 2016 U.S. election. “Everything” was dependent on this, Sondland told Taylor.

Taylor talked with Sondland on September 8. Sondland said that Trump had insisted it was not a “quid pro quo,” but that if Zelensky did not “clear things up,” the two sides would reach a “stalemate” on security assistance. Sondland also told Taylor that Trump was a businessman, and that before he signed any deal, he wanted to make sure he got what he was paying for.

Taylor didn’t buy that for a moment, pointing out that Ukraine didn’t “owe” Trump anything, especially interference in an election. The next day Taylor texted Sondland, “As I said on the phone, I think it’s crazy to withhold security assistance for help with a political campaign.” Sondland replied, five hours later, “Bill, I believe you are incorrect about President Trump’s intentions. The President has been crystal clear no quid pro quo’s of any kind.”

Of course it was a quid pro quo. Trump was smart enough to claim that what he was asking for was not a quid pro quo, but asking for something in exchange for something else is … the definition of a quid pro quo. When Acting Chief of Staff Mick Mulvaney said Thursday that the U.S. had been involved in a quid pro quo, it was, then, a classic Kinsley gaffe: a politician accidentally telling the truth.

Mulvaney tried to take back his admission, but Taylor’s account shows he was right the first time—as though the testimony of other diplomats and a plain reading of Trump’s July 25 call with Zelensky weren’t already evidence enough. Taylor’s testimony reportedly elicited “sighs and gasps” in the closed-door hearing, and it’s clear why. There ought to be no need for a smoking gun by now, because Trump has all but admitted to the crime, but just in case it was necessary, Taylor’s testimony delivered a still-warm pistol with Trump’s fingerprints all over it to congressional investigators.

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Viewpoint: Trump’s Most Shameless Act of Profiteering

David A. Graham, The Atlantic — Thu, 17 Oct 2019 16:36:41 -0400

The Trump administration has a lot to grapple with at the moment—Turkey’s disastrous incursion into Syria, a strong likelihood of impeachment, a tough reelection campaign—but there’s always time for the president to profiteer from his job.

White House Chief of Staff Mick Mulvaney announced today that the United States will host the 2020 Group of Seven summit at Trump National Doral, the president’s golf course near Miami. In other words, Trump is choosing to host an important international conference at a resort he owns, which has been struggling badly. In a presidency marked by the shameless intermingling of the personal and the political, it may be the most brazen act of self-enrichment yet.

Mulvaney barely tried to justify the ethics of the choice during a briefing.

“He’s not making any money off of this just like he’s not making any money from working here,” he said, without offering any explanation for why such a statement was true. The president broke precedent by refusing to separate himself from his businesses when he took office, and while he initially claimed that his sons Eric and Donald Jr. would run the company in a semi-quarantine, it’s become clear that they’re in frequent conversation with their father.

The timing is either inauspicious or audacious, coming just two days after a federal appeals court revived a case against the president under the Constitution’s Emoluments Clause, which bars federal officials from profiting from foreign governments. Mulvaney wrote off any concerns about the arrangement as simple misunderstandings of branding.

“I would like you to consider the possibility that Donald Trump’s brand is probably strong enough as it is and he doesn’t need any more help on that,” he said. “It’s the most recognizable name in the English language and probably around the world right now.”

This is nonsensical and insulting. Trump, certainly, has never underestimated the power of brand, but in this case, his brand seems to have dealt a blow to Trump National Doral. As The Washington Post reported earlier this year, the resort has seen its revenues tumble, a slide that the Trump Organization’s own consultant attributed to the toxicity of the president’s name. By locating a huge conference there, with retinues from six other governments (or seven, if Trump gets his wish to bring Russia back into the organization), the president will both pump cash into Doral and gain the chance to rebrand the troubled resort—from struggling golf course to international summit destination.

Trump goes to properties he owns all the time as president, and each of those visits raises ethical questions. The government shells out cash to the Trump Organization for accommodations and space for security, plus there’s that brand exposure. There is at least a theoretical defense of these visits: Trump does own or manage these properties, and as president, he should be able to vacation where he feels most comfortable.

No such defense can be offered of the G7 decision, though, which looks like pure profiteering. Recent summits have been held at semi-isolated locations, the better to provide safety and security to the visiting dignitaries. Doral is in the middle of metro Dade County, in the flight path of the airport. (Trump even lied about the length of the trip from the airport to the resort in a meeting with German Chancellor Angela Merkel.)

Mulvaney knew he’d face questions about this, yet he didn’t bother to offer a serious answer.

“I was aware of the sort of political criticism we would come under for doing it at Doral which is why I was so surprised when the advance team came back and said this is the perfect physical location to do this,” he said.

On what grounds did the advance team come to this conclusion?

“If you want to see our paper on how we did this, the answer is absolutely not.”

And where did the idea to use Doral come from? From the professionals on the advance team? Of course not—it was Trump’s own scheme.

“That’s a fair question. We were back in the dining room going over with our advance team. We had the list. He said, ‘What about Doral?’”

Moments later, Mulvaney’s briefing spiraled off into a chaotic series of questions about the impeachment inquiry. The inquiry circles around Trump’s inability to separate the functions of government, like conducting foreign policy with Ukraine, from his personal political fortunes, in demanding investigations into the family of his rival Joe Biden and a bogus conspiracy theory about the 2016 election. In the case of Doral, he cannot separate the functions of government from his personal financial fortunes. At the same time, his line of attack against the Bidens is to claim (without any evidence) that they illegally profited from Joe Biden’s role as vice president.

“How is the president going to stand on the debate stage, if, in fact, Vice President Joe Biden wins the nomination, and try to make an argument he profited off his vice presidency?” a reporter asked today.

“He’s going to do that extraordinarily well,” Mulvaney said.

It was an answer that was as serious and well-thought-out as the rest of the briefing.

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The Experts Strike Back

David A. Graham, The Atlantic — Thu, 17 Oct 2019 11:00:00 -0400

Donald Trump came into the office without much experience in diplomacy—literal or figurative—but it doesn’t take a career Foreign Service officer to realize that if you spend enough time saying someone is your enemy, that person might begin to feel the same way about you.

From the start of his administration, the president demonized government employees, especially in foreign policy and intelligence. He attacked career officers as part of the “deep state,” discarded their advice, and appointed Cabinet secretaries who alienated them. Now, as an impeachment inquiry rolls forward, Trump is harvesting wind from the ice he sowed. The White House’s attempt at full obstruction of the inquiry has cracked because unlike Trump’s loyalists, career officials and experts have been willing to defy invocations of executive privilege and testify to Congress.

Perhaps no case better exemplifies the way that neglecting and vilifying public servants has backfired than that of Michael McKinley. A career Foreign Service officer, McKinley had served as an ambassador to four countries under Presidents Trump, Barack Obama, and George W. Bush. In 2018, Secretary of State Mike Pompeo plucked McKinley from Brasilia, where he was leading the U.S. embassy, to become a senior adviser, especially charged with serving as a conduit between Pompeo and career officers.

Last week, however, McKinley resigned in protest of the department’s failure to stand up for Marie Yovanovitch, the former ambassador to Ukraine. Yovanovitch was apparently sacked after pressure from Rudy Giuliani, who spread unsubstantiated claims that she was disloyal to Trump. Yesterday, McKinley testified to House impeachment investigators, complaining about the politicization of the State Department, including the sidelining of career staff.

Yovanovitch herself also testified last week, delivering a scorching appraisal of the Trump administration’s actions in Ukraine and its approach to foreign policy more broadly. She, too, was intimately involved in some of the central events, though she had been recalled by the time of Trump’s July 25 call with President Volodymyr Zelensky of Ukraine. (Though removed from her post, she remains a State Department employee; the White House tried to block her testimony, but she honored the House subpoena.)

This week also saw testimony from Fiona Hill, who served as the top Russia expert on the National Security Council until August. Hill reportedly told House members about discussions involving Ukraine, and about how alarmed White House staff were about the way the Trump administration was handling Ukraine—especially with Giuliani appearing to run a shadow foreign policy there. “I am not part of whatever drug deal [Gordon] Sondland and [Mick] Mulvaney are cooking up,” then–National Security Adviser John Bolton told Hill, referring to the U.S. ambassador to the European Union and the acting White House chief of staff, according to The New York Times.

On Tuesday, George Kent, a top State official handling Ukraine, told House members that he was cut out of policy discussion on that country after Mulvaney intervened. Tomorrow, a Defense Department official will talk. And the flood of testimony began when Kurt Volker, a career diplomat who was working as an envoy to Ukraine until he was forced out earlier this month, testified and handed over a damning series of messages between himself, Sondland, and William Taylor, who became the top U.S. diplomat in Ukraine after Yovanovitch’s recall. He, too, has been called to testify.

Kent’s story seems emblematic: Despite his expertise on the subject and his long record of service, he alleges he was sidelined by the White House chief of staff, a political appointee and former congressman, in favor of people like Giuliani, the president’s personal lawyer; Sondland, a wealthy hotelier and political ambassador; and Energy Secretary Rick Perry, a Republican politician.

Throughout his administration, Trump has routinely discarded the advice of experts. Of course, the president has the prerogative to make his own decisions. But Trump has not only opted to disregard their advice; he has decided he doesn’t need to hear it at all, making policy moves based on little information—a tendency recently demonstrated by his precipitous withdrawal from Syria.

Trump has also hired bosses who make life at places like the State Department miserable. His first secretary, Rex Tillerson, was regarded as levelheaded on policy and not especially political, though those tendencies eventually got him fired by Trump. But Tillerson embarked on a quixotic overhaul of the department’s workforce that alienated many employees, and a steady stream of high-ranking career officials left. Pompeo, though more political, seemed concerned with improving morale, but his decision not to back Yovanovitch erased that work. (Adding insult to injury, she testified that Pompeo sent a deputy to talk to her rather than doing it himself.) The president, meanwhile, has routinely attacked government employees as being part of a deep state.

Disregarding experts is a bad way to make policy for many reasons, but as these cases demonstrate, it’s bad politics, too. My colleague Mike Giglio recently noted that after Trump spent years demonizing the intelligence services, it was an intelligence official, following legal channels to a T, who filed the whistle-blower complaint that sparked impeachment. And it’s long-demonized officials in foreign policy who are now fueling the fire.

Trump and his minions will likely try to portray this testimony as evidence that he was right about the deep state all along. As I have previously written, the term is misleading and dangerous. It also doesn’t fit here. Each of these people is testifying to Congress, an equal branch of government, under official procedures. Most if not all of them are testifying under subpoena, a legally binding summons. The White House’s legal rationale for withholding testimony and documents under executive privilege is flimsy at best. An impeachment inquiry is not invalid simply because Trump doesn’t like it or feels that Democrats are mean, no matter how insistently he says otherwise. And the revelations they are providing are disturbing, generally consistent, and backed up by documents, including those released by the White House itself.

The testimony from career officers points to how far Trump has politicized government. This crisis revolves around his requests to a foreign government, Ukraine, to interfere in American elections by investigating his political rival Joe Biden. It’s not unusual for career government employees to disagree with administration policy, but usually they don’t speak out publicly, because doing so would undermine the mission and work of their institutions. (Retired Marine General and former Defense Secretary James Mattis’s silence since resigning in 2018 illustrates this approach.) But these officers have concluded that worse damage is being done to the government already. In other words, officials typically stay quiet about their political masters because of their own loyalty to the State Department. Now their loyalty to the State Department is driving them to speak out about their political masters.

Trump is famous for demanding loyalty from his subordinates, while showing little of his own toward them. With the president disregarding their work, the government’s foreign-policy professionals have had ample time to assess the hostile actor in the White House. They were ready for this moment.

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Analysis: Trump’s Defeat on Tax Returns Signals a Big Problem for the President

David A. Graham, The Atlantic — Mon, 07 Oct 2019 16:10:45 -0400

It’s impossible to deny the cleverness of the legal arguments put together by the Trump administration and President Donald Trump’s personal lawyers as they fight investigations against him.

In defending Trump, his attorneys have contended that Congress cannot obtain documents related to Trump’s financial dealings, because that’s a power reserved for prosecutors. Elsewhere, they have argued that prosecutors can’t investigate Trump, because that’s a power delegated to Congress under the Constitution. And when Congress has attempted to flex that impeachment power, Trump has said it’s a coup, and that the only proper venue for presidential accountability is elections.

The arguments build a steel hull around the president, attempting to keep the rising tide of probes from getting him wet by closing off every angle for investigation. But like the similarly unsinkable Titanic, this legal edifice hit an iceberg on a trip to Manhattan.

In a scorching opinion Monday, federal district-court Judge Victor Marrero dismissed a lawsuit by Trump’s attorneys, who sought to prevent Manhattan District Attorney Cy Vance Jr. from obtaining several years’ worth of the president’s tax returns from his accounting firm via subpoena.

“The President asserts an extraordinary claim [that] the person who serves as President, while in office, enjoys absolute immunity from criminal process of any kind,” Marrero wrote. “This Court cannot endorse such a categorical and limitless assertion of presidential immunity from judicial process as being countenanced by the nation’s constitutional plan.”

Accepting Trump’s arguments, Marrero wrote, would mean that not only the president but his relatives and business associates “are in fact above the law.”

The judge’s opinion is likely to be appealed and might be stayed, but his indignant dismissal points to the flaw in the Trump legal argument. The president has repeatedly expressed a yearning for the powers of an autocrat, and has successfully subordinated the power of the executive branch to pursuing his will—from chasing conspiracy theories around the globe to the Justice Department intervening in this case on the president’s side. But there are leaks in the hull: federal judges who don’t answer to Trump, whistle-blowers and inspectors general who sidestep his power, and state and local authorities who aren’t bound by federal law.

Since taking control of the House in January 2018, Democrats have fired off a fusillade of subpoenas at Trump and his associates. To fight these off, Trump’s attorneys have advanced aggressive legal theories. They’ve instructed current and former aides not to testify, citing executive privilege. The White House has even claimed that Corey Lewandowski, a former Trump-campaign aide who’s never worked for the executive branch, is subject to privilege.

Trump’s lawyers have also questioned Congress’s authority. When House committees have sought financial documents, including tax returns—which the House can obtain under federal law—from Trump’s accounting firm and banks, the Justice Department has argued there is not “legitimate legislative purpose” for requesting them; it’s just harassment. Attempting to foil this, Democrats argued that the requests were kinda-sorta part of an impeachment inquiry: They didn’t want to admit they were trying to impeach Trump, but they also wanted to demonstrate a clear constitutional purpose behind their requests.

Litigation in those requests is still in process, though the question of impeachment has now been resolved, with Speaker Nancy Pelosi’s green light for an impeachment inquiry in September. Now that Democrats are working under that umbrella, Trump has attacked the inquiry, saying it amounts to a coup and that voters should decide his fate. Following Trump’s logic, Congress can’t pursue oversight if it’s not impeaching, and can’t pursue oversight if it is.

Meanwhile, with the White House stonewalling Congress, state governments have begun acting. California passed a law requiring candidates for president to disclose tax returns (the law has been challenged), and New York passed a law allowing Congress access to candidates’ New York State returns if requested. Meanwhile, Vance subpoenaed Trump’s tax returns from his accounting firm in connection with hush-money payments to the porn actress Stormy Daniels.

In suing to block the subpoena, Trump’s personal lawyers have argued the reverse of their previous position, The Washington Post notes: They say that Trump is immune from criminal investigation while president, because the Constitution delegates that power to Congress, in the form of impeachment.

The Justice Department weighed in, asking the judge to take extra time to consider the case. As I have written, every delay serves Trump’s purposes, because it runs out the clock on impeachment before the 2020 election. Marrero noted that past Justice Department memos have expressed a sweeping immunity for the president, but those memos address federal criminal law, as opposed to the state proceeding under consideration now. “The President’s claim would tread upon principles of federalism and comity that form essential components of our constitutional structure and the federal/state balance of governmental powers and functions,” the judge wrote.

The Trump lawyers’ argument is breathtaking in scope and chutzpah. Other presidents have fought investigations hard in the courts. Bill Clinton fought a lawsuit from Paula Jones, who alleged sexual harassment against him, all the way to the Supreme Court, arguing the president couldn’t be sued, because it would distract him from his duties. (Clinton lost, and ultimately settled the case.) But that was a civil suit. Here, as Marrero notes, Trump appears to be trying to build a doctrine that would exempt the president from any criminal prosecution at any level.

Marrero’s ruling shows how challenging it will be to succeed. Though Trump has bridled against the idea of judges reviewing his policies, and has been extremely successful in appointing federal judges, he cannot choose who will hear any particular case, and the judiciary remains full of judges who are not beholden to him, and even Trump appointees enjoy the independence of lifetime tenure. (Marrero is a Clinton appointee.) If Marrero’s reasoning triumphs, it will show how the federalist system also constrains Trump, because state and local authorities are not under the thumb of the president. There are also other leaks in Trump’s hull, like statutes that allow whistle-blowers to come forward and avoid retaliation.

Trump has often labeled this “treason” or part of some shadowy conspiracy. But Marrero’s opinion, with its invocations of the Founders’ concerns about monarchical inviolability, debunks this talking point. This isn’t the deep state at work: It’s the American system of government, working as designed.

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Viewpoint: Trump Invites Pence to Stay at His Place—Then Hands Taxpayers the Bill

David A. Graham, The Atlantic — Tue, 03 Sep 2019 17:09:08 -0400

In Brigadoon, the Lerner-Loewe musical, an American travels to Scotland and finds a chance to win the affection of a girl in a village that appears for only one day every 100 years. This is not to be confused with Doonbeg, the political drama of the week, in which an American travels to Ireland and finds a chance to win the affection of his president.

Vice President Mike Pence and his retinue—including members of his family, his aides, and his Secret Service detail—are on a trip to Europe this week, and they will be staying at Doonbeg, Donald Trump’s golf resort on the west coast of Ireland. While he’s on the Emerald Isle, Pence will participate in a set of meetings in Dublin, on the east coast. To attend those meetings, Pence will fly more than an hour each way.

That sounds inconvenient for Pence, but it’s convenient for Trump, whose business will pocket payments for the accommodations—a Pence aide didn’t have an estimate, but a conservative guess is tens of thousands of dollars. Trump has so frequently used the power of the presidency to plump for his businesses that the public has almost become inured to it, but it remains brazenly corrupt and shameless.

Complaining about the cost of official travel is an old and tired tradition in which both parties indulge while in the opposition and dismiss as petty while governing. The problem here is less the overall tab than where it’s going and how it got there. Not only does the president often visit his own properties and charge the government—that is, you and me—but here he has directed the vice president to do the same. (Pence will reportedly pay for his mother’s and sister’s share of the bill out of pocket, which means that not only will he be directing government funds into one of the president’s properties, but he’ll be handing over some of his own cash too.)

“I don’t think it was a request, like a command,” Marc Short, Pence’s chief of staff, told reporters. “I think that it was a suggestion. It’s like, ‘Well, you should stay at my place.’”

Yet what could the vice president do? He was in no position to refuse Trump’s suggestion, which Short valiantly tried to spin as a generous offer. But, of course, Trump was not inviting Pence to stay at his home as a guest. The president could have comped the stay as a gesture of magnanimity, or he could have discouraged it to avoid the conflict of interest, but instead, he invited Pence to spend thousands of dollars to benefit Trump. It’s a double victory for the president, because he reaps not only the cash from the stay, but also the free publicity for the resort. As the president has demonstrated in the past, he is extremely attuned to the nebulous art of enhancing brand value.

Pence has strong family ties to Doonbeg, where his great-grandmother lived. He said few facilities in the area could accommodate the logistical needs of his entourage—but other presidents and vice presidents have visited Ireland and found places to stay. Willing or not, Pence is already an accomplice in lining Trump’s pockets. As the Daily Beast reports, Pence’s PAC has spent more than $200,000 at Trump properties since 2017.

Conversations about the ways Trump has used the presidency to benefit himself often bog down in obscure discussions about the Emoluments Clause, standing, and other legal arcana. The Doonbeg example is comparatively simple, though: Trump is using government travel to line his own pockets. Trump’s actions in driving business to his properties may or may not be legal, but they are undeniably scandalous. Matt Yglesias points out that for other politicians, this sort of move is a career death sentence: “When it turned out that Baltimore Mayor Catherine Pugh was making companies that contracted with the city buy copies of her book, she was drummed out of office almost immediately.” For Trump, it’s business—literally—as usual.

Trump says it is “probably costing me from 3 to 5 billion” dollars to be president. That number is hyperinflated, just as Trump’s previous estimates of brand value were, but it may be true that Trump is actually losing money as a result of being president. (Because Trump’s company is privately held, and because he has not released tax returns, unlike previous presidents, it’s hard to get a full accounting.) Mar-a-Lago, Bedminster, and the Trump International Hotel have become popular destinations, both because they are closely associated with the president and because customers clearly view spending money there as a way to curry favor with him. Attorney General Bill Barr will spend about $30,000 on a holiday party at Trump’s D.C. hotel, The Washington Post reported last week.

But other destinations are having a harder time. Doral, Trump’s Miami resort, is struggling, the Post reported in May. So are properties in Chicago and elsewhere. Turnberry, Trump’s resort in Scotland, has lost money for four consecutive years, including $4.5 million in 2017. Doonbeg has never turned a profit, and cost Trump more than $40 million.

So it’s only natural that Trump would “suggest” that Pence stay at Doonbeg and attempt to steer the 2020 G7 conference to Doral—perhaps giving these struggling properties the same sort of presidential halo that sites such as Bedminster have enjoyed.

From an ethical standpoint, it doesn’t really matter whether Trump is losing or making money, nor whether these losses are the result of a negative reaction to Trump’s presidency, management failures, or something else. The scandal is that he is finding ways to use the presidency to drive new attention and revenue to them.

Trump’s complaints about losing money are, in any case, his own fault. He appears to have run for president largely on a lark, and as a publicity stunt; he did not expect to win. Having been elected, he declined to either divest his assets or create a blind trust for them, as his predecessors had done—although it’s unlikely a blind trust would have been possible, since Trump could still direct business to anything with his name on it in huge gold letters. Faced with a choice between his private business and the presidency, Trump chose both.

Incredibly, Democrats have mostly allowed him to get away with it. The opposition has pursued a tortured attempt to sue Trump for violating the Emoluments Clause, but there’s been little sustained public critique of Trump’s exploitation of his office by prominent Democrats. This fall, House Democrats will reportedly begin probing Trump’s use of hush money to cover up alleged affairs, a story now three years old. Meanwhile, the Trump Organization will be counting cash in the tills at Doonbeg.

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When a Hurricane Hits, Neighbors Are the Real First Responders

David A. Graham, The Atlantic — Fri, 30 Aug 2019 10:29:02 -0400

There’s not much to do when a hurricane or tropical storm is inbound—dropping nuclear weapons on them isn’t really an option. Evacuate if ordered, make sure you’ve stocked up on water, canned food, and batteries, and then sit down and begin a robust round of political recriminations.

As Dorian’s gray, wild clouds approach Florida, having largely spared Puerto Rico, the recriminations are in full swing. President Donald Trump, whose default move is to make any story about him, took the opportunity to reopen his feud with political leaders in Puerto Rico. Meanwhile, NBC News reports that the Trump administration has diverted $271 million from a Federal Emergency Management Agency disaster-relief fund to pay for detention facilities at the Mexican border.

Trump’s feud is stupid, and the decision to move the money is a gamble that could very well look like malpractice down the road. But it’s useful to remember that in the broader scheme of hurricane relief, the federal government, and especially the president, are not the most important responders or even the primary ones—though the feds often end up taking the blame or the credit. Local agencies are a part of the puzzle: Florida has extensive experience with hurricanes, of course, and the state’s Division of Emergency Management is often regarded as a national model. But ordinary citizens are the underappreciated lynchpin of disaster response.

There are stories of civilians helping each other after every big disaster, but 2017’s Hurricane Harvey produced an indelible example with the Cajun Navy, a half–Good Samaritan and half-lunatic volunteer force that went out in personal boats to rescue people. While some observers held up the prominence of the Cajun Navy as an example of governmental failures, emergency managers have, in recent years, begun to factor such efforts into their calculations about how to handle major crises.

“When you step back and look at most disasters, you talk about first responders—lights and sirens—that’s bullshit,” the former FEMA director Craig Fugate told me in 2015. “The first responders are the neighbors, bystanders, the people that are willing to act.”

In part, this emphasis on neighbors helping one another is simple realism. In a big enough disaster, no state or federal agency can move all the resources people will need into an area immediately, especially if critical infrastructure such as roads and communications networks are destroyed. In part, it’s a realization that though a storm is devastating, it’s not often annihilating, and some of what people need is already on the ground. And in part, it’s designed to empower people after a storm. Fugate led a charge to stop referring to them as “victims,” with its implication of helplessness, and refer to them instead as “survivors.” Incorporating them into the formal relief plans returns their agency.

The importance of people helping one another, whether they’re semi-organized teams like the Cajun Navy or just individuals checking on an elderly neighbor, means that the best determinant of how well a community fares in a storm is often not what happens after landfall, but what it was like before the wind and water hit.

“We know what makes people safer in disasters is close social networks, more equality in the community, and having high social capital,” says Jacob Remes, a historian and disaster scholar at NYU. “The sort of work you have to do to build communities that will do well in disaster, you can’t do in the days or the week before the disaster. You have to be doing them all the time.”

That means places that have bustling public spaces, walkable streetscapes, lower crime, and better housing stock tend to fare better, because people are more likely to know their neighbors and consequently feel an obligation to them.

“Because of segregation by race and class, the communities that tend to have these physical aspects that make them safer are also where people who are richer and better educated and whiter live,” Remes says. That means other demographic groups are more vulnerable when storms hit—though there are plenty of examples of poorer but tight-knit communities reacting effectively in places such as post-Katrina New Orleans.

While Florida has the advantage of years of hurricane experience, it also features lots of car-centric suburbs that don’t encourage much social interaction, which makes them more vulnerable in the aftermath of storms.

Considering these community elements as storm preparedness is a bit of a double-edged sword. Once the winds have calmed and the water has receded, officials quickly begin to talk about rebuilding and how to bounce back.

“What that ignores is, how is a disaster created by the choices we’ve made?” Remes says. “Do we really want to go back?”

But there’s a more positive way to view this too. Encouraging tighter-knit, more livable communities that bounce back from storms more quickly creates improvements in quality of life that accrue even when there’s no hurricane. Stronger communities are also more resilient—filled with people who will be able to help one another in the coming days, when Dorian hits.

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Viewpoint: James Comey Gets a Taste of His Own Medicine

David A. Graham, The Atlantic — Thu, 29 Aug 2019 16:00:21 -0400

Three summers ago, then–FBI Director James Comey stepped to a lectern and delivered a harsh scolding to then–presidential candidate Hillary Clinton. Comey’s agents had been investigating Clinton’s use of a personal email server and account as secretary of state, and while he said that “no reasonable prosecutor” would bring a criminal case against her, he was unsparing.

“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information,” Comey said.

Few of us can imagine how it felt for Clinton to be simultaneously cleared of criminal wrongdoing and also publicly savaged, but today, Comey probably has a pretty good sense of precisely how that feels.

On Thursday, the Department of Justice’s Office of the Inspector General released its report on Comey’s decision to keep several memos he produced as FBI director, one of which a friend disclosed to The New York Times at Comey’s behest. OIG indicates that the Justice Department declined to prosecute Comey, but the report harshly criticizes him nonetheless:

In a country built on the rule of law, it is of utmost importance that all FBI employees adhere to Department and FBI policies, particularly when confronted by what appear to be extraordinary circumstances or compelling personal convictions. Comey had several other lawful options available to him to advocate for the appointment of a Special Counsel, which he told us was his goal in making the disclosure. What was not permitted was the unauthorized disclosure of sensitive investigative information, obtained during the course of FBI employment, in order to achieve a personally desired outcome.

All that’s missing is a declaration that Comey was “extremely careless.”

With the question of a criminal prosecution resolved, what leaps from the OIG report is the parallel between Comey’s press conference about Clinton and his decision about the memos. In both cases, Comey violated procedures and policies in pursuit of what he believed was a larger imperative, concluding that his own judgment was more useful for protecting the Justice Department and the FBI.

In the Clinton case, Comey became concerned that an ill-advised chance meeting between then–Attorney General Loretta Lynch and former President Bill Clinton would mean the public might not trust Lynch’s determination about whether to charge Hillary Clinton. So Comey took it upon himself to publicly announce his recommendation, against DOJ policy, because he believed it would protect the department from public opprobrium. A previous OIG report concluded that “Comey usurped the authority of the Attorney General.” (Many former DOJ officials also criticized Comey’s actions.) Nor did his end run protect the department. The email investigation, and especially Comey’s abortive reopening of it in October 2016, played a decisive role in the presidential election, turning the FBI into a political player.

President Donald Trump infamously used Comey’s missteps as a pretext to fire him in May 2017, even though the president admitted soon after that he’d actually removed Comey over “the Russia thing.” By then, Trump had repeatedly improperly pressured Comey—asking him for personal loyalty, and asking him to drop a probe into former National Security Adviser Michael Flynn. Comey had been memorializing those interactions in memos. After Trump fired him, Comey kept the memos, and eventually sent several of them to his friend.

Once again, Comey had violated policy, OIG said: “As a departing FBI employee, Comey was required to relinquish any official documents in his possession and to seek specific authorization from the FBI in order to personally retain any FBI documents. Comey failed to comply with these requirements.” OIG notes that Comey claimed the memos were personal, but dismissed that distinction, saying it “finds no support in the law and is wholly incompatible with the plain language of the statutes, regulations, and policies defining Federal records, and the terms of Comey’s FBI Employment Agreement.”

Why did he do this? “Comey disclosed the contents of Memo 4 in an attempt to force the Department to take official investigative actions—to appoint a Special Counsel and preserve any tapes as evidence,” OIG reported. In other words, Comey had again decided that what he believed was a higher calling—getting a special counsel to investigate Trump—was more important than following the rules.

Maybe Comey was right. His leak may very well have been the difference between a special-counsel investigation and none, and Robert Mueller’s investigation was an essential look at the White House, which revealed the dysfunction, disregard for law, and obstruction-of-justice-in-all-but-name that suffuses the Trump administration. It is difficult to imagine the Justice Department having achieved anything nearly so complete and untainted, especially in light of Trump’s attempts to bully Mueller, as well as politically motivated investigations of Trump’s political opponents—including, arguably, this OIG report.

Even without the special-counsel investigation, the public benefited from what it learned from the memo leaked to the Times. The nation benefits from whistle-blowers who are willing to leak, while investigations like this one are designed to have a chilling effect.

Yet the parallel between the two situations, and Comey’s spurn-the-institution-to-save-it approach, is too remarkable to be ignored, and history offers strong reasons that it’s dangerous for FBI directors to freelance, placing their personal judgment over standing policy.

If Comey feels chastened by the report, he didn’t show it in his reaction on Twitter, in which he portrayed the report as vindication, much as Hillary Clinton did in July 2016:

DOJ IG "found no evidence that Comey or his attorneys released any of the classified information contained in any of the memos to members of the media." I don’t need a public apology from those who defamed me, but a quick message with a “sorry we lied about you” would be nice.
— James Comey (@Comey) August 29, 2019

It’s been a tough, bruising few years for Comey, but give him this: His reputation for self-righteousness has escaped unscathed.

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Viewpoint: Trump’s Unpardonable Admission About His Border Wall

David A. Graham, The Atlantic — Wed, 28 Aug 2019 13:00:00 -0400

Disagreements about what the law really means are unavoidable. Congress passes laws, government agencies interpret them, advocates dispute those interpretations, and then the courts step in to resolve the arguments.

But that’s not what’s happening with President Trump’s latest push on his border wall. The Washington Post reports that Trump is frantically urging aides to get construction on his border wall underway, overriding their objections that this might require breaking environmental laws, violating contracting rules, or improperly claiming private land. Why? Not because he believes his wall is necessary for national security. Not because he believes he is right about the law, and his aides’ concerns are misplaced. He doesn’t even believe the wall will actually solve an immigration crisis. Trump is urging action on the wall because he believes it is necessary for him to win reelection.

The tell here is that, as the Post reports, Trump “has told worried subordinates that he will pardon them of any potential wrongdoing should they have to break laws to get the barriers built quickly, those officials said.”

This is one of the biggest scandals of the Trump administration—no small feat. Trump is demanding the government move heaven and (literally) earth, break laws, and spend billions of taxpayer dollars, for a project that he acknowledges is largely symbolic—all for the purpose of bolstering his reelection bid. All presidents work to keep campaign promises, of course, but most don’t do so at the expense of the rule of law.

Running for office, Trump said he would build a wall and Mexico would pay for it, a claim he quickly abandoned. When Congress repeatedly refused to give him money for the wall, he mounted an end-run around Congress, declaring a national emergency. Because Congress has unwisely delegated some of its powers to the president through the National Emergencies Act, he may succeed in defeating legal challenges, since courts tend to give the executive wide latitude to determine what is and isn’t a national emergency.

But Trump keeps undermining the legal rationale for his action. As the Postreports:

Trump conceded last year in an immigration meeting with lawmakers that a wall or barrier is not the most effective mechanism to curb illegal immigration, recognizing it would accomplish less than a major expansion of U.S. enforcement powers and deportation authority. But he told lawmakers that his supporters want a wall and that he has to deliver it.

Other Trump moves also show how unseriously he treats the idea that the wall is a necessary response to a national emergency, and not an enormously expensive campaign prop. He has repeatedly overruled suggestions made by officials because he wants the wall to look a certain way. Trump insists that the wall be painted black and be topped with spikes, even though this will add to the expense, reducing the number of miles that current funds can be used to build. And although the Department of Homeland Security favors including flat panels that can deter climbers, Trump thinks they look too ugly.

This is part of a pattern: Trump declares some far-fetched objective. Administration lawyers concoct a tortured legal rationale to justify it. And then Trump makes clear how pretextual that rationale is. Perhaps the first example was the president’s Muslim ban, but the pattern has repeated itself ever since.

The dangled pardons are especially galling because they underscore how Trump prioritizes winning reelection at any cost over actually following the laws he swore to uphold in his oath of office. Asked about the pardon suggestion by the Post, a White House aide didn’t deny it, but “said Trump is joking when he makes such statements about pardons.”

Well, maybe. The Trump administration has a long record of making outrageous statements and then insisting after the fact that they were only kidding. Beyond that, the president has already on at least one occasionpromised a pardon to a Customs and Border Patrol official if he was convicted of a crime, and he has also demonstrated his willingness to hand out politically motivated, manifestly undeserved pardons.

Pushing hard to build a border wall carries other dangers for Trump. Though he has had great success in reorienting the Republican Party around some of his other priorities, especially trade, eminent domain remains a controversial and widely disliked maneuver that could alienate conservatives along the border. But the president may be right that actually building the wall is crucial for his reelection effort, and his failure to actually build a single mile of new fencing—as opposed to upgrading current barriers—is a huge political problem for him. (Even the hurry-up effort described in the Post is relatively insignificant: Only 110 of the 450 miles officials say they’ll finish by Election Day 2020 are new, while the rest replaces existing fencing.)

Trump is not the first president willing to knowingly break the law to win reelection. He is, however, unusually open about it. If the wall gambit works, it will reinforce the idea that lawbreaking is an effective campaign tactic, and that politics comes before fidelity to the Constitution.

The real threat to the national security of the United States isn’t on the southern side of the Mexican border.

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Viewpoint: Trump Wants to Nuke His Way Out of Big Problems

David A. Graham, The Atlantic — Mon, 26 Aug 2019 16:03:03 -0400

During President Donald Trump’s first year in office, he had a question for staffers who were briefing him on hurricanes. Why not just bomb them?, he asked, according to Axios.

That seems far-fetched, even for Trump, but the reporters on the item, Jonathan Swan and Margaret Talev, both have a long record of accurate stories on the White House beat, and they also reviewed a National Security Council memo that recorded Trump’s question. On one occasion, Trump suggested dropping a nuclear bomb on a hurricane, a long-circulating crackpot theory. On another occasion, Trump mentioned bombs, just not nuclear ones.

Trump denied the story via tweet, but an aide defended Trump’s questions to Axios. “His goal—to keep a catastrophic hurricane from hitting the mainland — is not bad,” the official said. “What people near the president do is they say, ‘I love a president who asks questions like that, who’s willing to ask tough questions.’”

No wonder the aide was unwilling to put his or her name on that quote. What Trump is asking is not a tough question. It’s a cop-out, the latest example of Trump seeking a silver bullet—or a silver warhead, as the case might be—instead of actually doing the hard work of leading the executive branch. From “Build the wall” to “Repeal and replace” to “Trade wars are good, and easy to win,” the president relies on bumper-sticker solutions that tend not to work.

These diversions carry a cost, sometimes a very heavy one. Axios reports that Trump brought up nukes during a hurricane briefing in his first year in office. The 2017 hurricane season would turn out to be the costliest on record. As the destruction brought by Hurricane Maria in Puerto Rico and the U.S. Virgin Islands revealed, the federal government was deeply unprepared for a storm of that size. Trump could have been asking his briefers actual tough questions about whether the Federal Emergency Management Agency was ready for the season, and directing them to stage or deploy additional resources. Instead, he was asking the sorts of queries best reserved for stoned dorm-room sessions.

That lack of focus proved costly. When the eventual, horrifying death toll from Maria was calculated, Trump became furious and denied that his government had made any mistakes.

While hurricane-nuking is the most outlandish example of Trump’s search for silver-bullet solutions, patient zero for this approach to governance is Trump’s border wall. The president has given a few explanations for the need for a wall on the U.S. border with Mexico, including stopping the flow of unauthorized immigrants and preventing drugs from entering the country. A wall would stop some immigrants from crossing the border, but sneaking across isn’t the only way to get into the country, and over the past few months, border facilities have been overwhelmed not by people crossing surreptitiously, but by people exercising their lawful right to request asylum. Most drugs enter through official ports.

The wall wasn’t even supposed to be the real solution. Sam Nunberg, an early Trump adviser, told The New York Times earlier this year that the wall was invented as a mnemonic to help the candidate remember to talk about immigration. Yet it’s become a singular obsession for Trump, who evinces no interest in or capacity for policy detail, even as the U.S. government seems to have little plan for handling other immigration problems except deterrence through the harsh handling of migrants.

Trade tells a similar story. There’s widespread agreement by politicians and analysts on both sides of the aisle that China has often been a bad actor in international commerce. The question is how to deal with it. Barack Obama’s administration tried, and largely failed, to orchestrate a large-scale shift in American policy toward China. Then came Trump, promising that with some tough talks and tariffs he could quickly bully Beijing into behaving. In 2018, he infamously declared that “trade wars are good, and easy to win.” But as economic turmoil in recent weeks has demonstrated, this is not the case. There’s no shortcut.

There is a growing consensus among some left-of-center commentators that Trump’s behavior is getting worse. These examples are why I’m not convinced. Although it’s only public now, Trump floated the idea of nuking hurricanes back in 2017, and he’s been calling for the wall and tariffs since 2015. What has changed is that the negative effects of his poor judgment are becoming more clear the longer he remains in office. It’s one thing to claim you’re going to start a trade war; it’s another entirely to actually get into one, and to discover that you don’t know how to get out, as Trump sort of acknowledged in a moment of weakness at the G7 summit this weekend.

One of the other big topics at the summit has been climate change—a timely topic as the Amazon burns and the heart of hurricane season approaches. Scientists have found that warming temperatures make hurricanes more intense and damaging. The United States could try to lead efforts on fighting climate change around the world, but Trump aides derided the summit’s focus on warming as a “niche issue,” and the president skipped a working session on climate that the other gathered leaders attended.

Oh, well, there’re always nukes.

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North Carolina Sheriffs Win a Round Against ICE

David A. Graham — Thu, 22 Aug 2019 16:17:45 -0400

North Carolina Governor Roy Cooper vetoed a bill yesterday that would have required the state’s sheriffs to cooperate with federal Immigrations and Customs Enforcement.

“This legislation is simply about scoring partisan political points and using fear to divide North Carolina,” Cooper, a Democrat, said in a statement. “This bill, in addition to being unconstitutional, weakens law enforcement in North Carolina by mandating sheriffs to do the job of federal agents, using local resources that could hurt their ability to protect their counties.”

As I wrote last month, the bill, H.B. 370, was a flash point for fights about immigration enforcement, criminal-justice reform, race relations, urban-rural relations, and federalism. Cooper’s veto spelled the end of this legislation, but the tensions it demonstrated remain.

“We wanted this to settle down so we can go on to our real work in our communities,” Sheriff Garry McFadden of Mecklenburg County told me yesterday afternoon. “Politics and law enforcement shouldn’t be mixed. It has created a hostile environment in our community.”

North Carolina is a national laboratory for partisan conflict, and the conflicts between more liberal sheriffs and conservative legislatures, as well as the federal government, are only set to grow. It is also the epicenter of the sheriff-reform movement: The state’s seven biggest counties elected African American candidates in November, several of them for the first time ever. Many of these new sheriffs ran for office on progressive platforms, promising jail reforms and especially new immigration approaches.

Until fairly recently, immigration was a mostly federal matter, but over the past two decades Washington has worked with sheriffs—traditionally a heavily white, male, and conservative group—to enforce immigration laws, especially through jails, which sheriffs control.

When someone is arrested, his or her name is entered in an FBI database. ICE can check that database to find people who have illegally entered the country and issue a request, called a detainer, to a sheriff to hold that person until ICE can come and arrest them. Several new North Carolina sheriffs announced they would not honor detainers. They argued that working with ICE discourages immigrants from reporting crimes to local law enforcement. Moreover, they contended that detainers violate the Constitution, because they ask a sheriff to hold someone who has met conditions for release, like posting bail. And they stressed that despite accusations that they were flouting the law, cooperation with ICE is voluntary.

McFadden became the face of the group, partly because Mecklenburg County includes the state’s largest city, Charlotte, and partly because he’s outspoken.

“All I’m asking ICE to do is this: Bring me a criminal warrant, and I’ll hold anybody for you,” McFadden told me in May. “I have 400-plus federal inmates in my detention center right now. You bring me that paper, I got a place to put them. Other than that, you’re gonna fight with me the whole time.”

And they did. ICE repeatedly criticized McFadden publicly, accusing him of making the county less safe when a man was released despite a detainer and then committed crimes while out on bond. The Republican-led general assembly, meanwhile, began work on the bill to require sheriffs to honor detainers. That set up several tense interactions between McFadden and his fellow sheriffs on one side and GOP members of the legislature on the other.

In late June, after Cooper announced his opposition to the bill, lawmakers seemed to put it on the back burner. But last week, ICE issued a statementabout another unauthorized immigrant who was arrested in Mecklenburg County, released, and then broke the law again, and then Republican leaders turned their attention back to the bill.

While both the final passage of the bill and Cooper’s veto were expected, the one late surprise was Republicans’s apparent willingness to concede the sheriffs’, and Democrats’, complaint that the detainers violate constitutional rights, which extend to noncitizens.

“By putting my name on this bill, and hopefully getting it into the law, that it keeps one person from being assaulted again, one person from maybe being murdered, or one person from being raped, because we inconvenienced a criminal for 48 hours? I’ll take that,” Representative Brenden Jones said late in Tuesday’s debate on the bill. (Representative Marcia Morey, a Democrat and former state judge, rose, incredulous, to ask whether Jones really believed everyone in jail was a criminal.)

In a statement responding to Cooper’s veto, Senator Chuck Edwards likewise mocked the idea of protecting civil rights.

“Despite Governor Cooper’s attempt to distract folks with reckless rhetoric and name calling, the message this veto sends is abundantly clear: He is more concerned about protecting the ‘rights’ of people in this country illegally who are in jail for committing crimes than he is about protecting the safety of our communities and the citizens that live in them,” Edwards said.

Perhaps these statements simply reflect Republicans’ frustrations about the viability of their legislation, but they do nothing to support the bill on the merits. Any effort at law and order that requires discarding the Constitution isn’t an effort at law and order at all.

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Analysis: Obama Warned Trump—But He Didn’t Listen

David A. Graham, The Atlantic — Thu, 15 Aug 2019 12:00:00 -0400

August is traditionally a slow time in Washington, but this week, President Donald Trump has already notched two major policy changes.

On Monday, the Interior Department announced changes in the way it would apply the Endangered Species Act, the landmark 1973 environmental law, which would, in effect, do less to protect endangered species and more to allow resource extraction. The same day, Ken Cuccinelli, the acting director of U.S. Citizenship and Immigration Services, announced new rules for legal immigration, which will weight the system toward immigrants who are better off and better educated, while squeezing poorer ones.

As policies, both of these ideas are dubious. As politics, however, they represent notable wins for an administration that has often failed to put its policy priorities into action. Yet, like many of Trump’s biggest accomplishments, they are built on shaky foundations. Because they rely on executive action, they are likely to be overturned within the first 100 days of the next Democratic—or even Republican—presidency. Having spent much of the 2016 presidential campaign railing against Barack Obama’s executive orders, Trump seems to be making the same mistake that Obama did in relying on unilateral actions.

Trump’s biggest triumph remains his remaking of the federal judiciary, with his rate of appointments outpacing that of previous presidents. He has also already named two Supreme Court justices, and could possibly appoint more, even without a second term. This is a short-term political win, binding evangelicals and other conservatives wary of some of Trump’s uncouth behavior to him, and will also shape federal jurisprudence for decades to come.

But if Trump’s record of judicial appointments is perhaps the strongest in history, his legislative record is one of the weakest. Two significant laws have been passed during his presidency: a bipartisan criminal-justice-reform bill that would probably have passed under any president, and a tax cut that has proved a political flop and a deficit buster, while failing to ignite the economic growth Trump promised.

Instead of pushing for legislation, Trump has relied on unilateral executive-branch actions. During the campaign, he promised that he would “cancel every unconstitutional executive action, memorandum and order issued by President Obama.” He insisted that Obama’s orders—more notable for their scope than their number—were evidence of his failure to build a bipartisan consensus. But since then, Trump has fallen for the allure of his own executive orders, just as Obama fell for the surveillance and war-making powers that President George W. Bush created, and that Obama criticized during the 2008 campaign.

Even an abbreviated list of Trump’s executive moves shows their huge range and impact. In addition to weakening the Endangered Species Act, Trump has made a series of rule changes on environmental laws, and has sought to withdraw many rules that the Obama administration enacted. Trump has also slashed the size of two national monuments, Bears Ears and Grand Staircase–Escalante, and began the process of withdrawing the United States from the Paris Agreement. The new legal-immigration rule is only the latest in a series of major immigration shifts, including the Muslim travel ban, drastic reductions in refugee quotas, overhauls of asylum rules, and the so-called zero-tolerance policy for border crossings. Trump has been particularly prolific on trade, withdrawing the United States from the Trans-Pacific Partnership, slapping tariffs on a variety of countries for a variety of reasons, and renegotiating the North American Free Trade Agreement. He’s also pursued a range of other goals through presidential action, such as banning most transgender people from serving in the military.

One might argue, as Trump and many other Republicans did during the Obama years, that it violates the Constitution and national norms for any president to take such sweeping actions without Congress’s say-so. But whether these moves are wise as a matter of power politics is also up for debate. Because they are not enshrined in law, most of them can easily be reversed by another administration.

Already, many of Trump’s moves, especially on the environment and immigration, have been challenged in court, with mixed results. In the early months of his presidency, the administration often tried to cut corners and was stopped short by judges. Over time, though, the White House has become more careful about following federal rule-making procedures.

But what judges don’t eliminate, a new president might undo. Democratic contenders are promising to reverse many of Trump’s orders in their own first 100 days in office. Nearly every candidate has said that she or he would rejoin the Paris Agreement, for example. But even if Trump were to win reelection and then be replaced by a member of his own party in 2025, it’s easy to imagine a Republican who is less Trumpist in ideology reversing some of Trump’s orders on trade and immigration.

Not every executive action is so fragile. Trump’s withdrawal from the TPP is likely permanent. But it’s easier to tear down with executive orders than to build. The administration negotiated a replacement for NAFTA, inelegantly dubbed the U.S.-Mexico-Canada Agreement, but it still awaits congressional approval, and Democrats in the House are showing no urgency.

These potentially ephemeral achievements, and the rickety legacy they compose, are surprising because Trump began his presidency with two years of control of the House and the Senate. Republicans have since lost the House, though the Senate remains essential to the project of installing conservative judges on the bench. But Trump squandered most of that time. Despite sizable majorities, he did not obtain funding for his border wall, or enact any of the other legislation he promised in his “Contract With the American Voter,” save tax cuts. Only after Democrats won the House did Trump try to force Congress to fund the wall, and he met with predictable failure. Instead, Trump wasted months of his first two years on a series of unsuccessful attempts to repeal and replace the Affordable Care Act.

Here, too, Trump is echoing the mistakes his predecessor made. Obama entered office with Democratic control of the House and the Senate. He quickly passed a large (though arguably not large enough) economic-stimulus package. Then, like Trump, he spent months on a bruising fight on health-care reform. He paid a great price for that: It both helped foment the 2010 midterm Republican rout and also cost the president the chance to focus on other progressive priorities, such as job creation or gun control. Obama, however, managed to pass the ACA, while Trump’s quest to tear it down failed.

Once Republicans took over in 2011, Obama found his hands tied, and he began to rely more and more on his “pen and phone,” as he described executive orders. The result was a series of steps that looked like wins at the time, but that have been easy targets for Trump to reverse. Obama himself understood this, and offered Trump some helpful advice after his 2016 victory. “My suggestion to the president-elect is, you know, going through the legislative process is always better, in part because it’s harder to undo,” he said.

In 2016, Trump was contemptuous of Obama’s reliance on executive authority, loudly proclaiming that he could build a bipartisan consensus where Obama had failed. “You’re supposed to cajole, get people in a room. You have Republicans, Democrats—you’re supposed to get together and pass a law,” Trump said. “He doesn’t want to do that, because it’s too much work. So he doesn’t want to work too hard. He wants to go back and play golf.”

On Monday, as the White House announced the two latest executive actions, the president spent the day at his Bedminster, New Jersey, golf club.

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Viewpoint: Trump Is Breaking the System of Political Appointments

David A. Graham, The Atlantic — Fri, 02 Aug 2019 10:22:23 -0400

In March 2004, Attorney General John Ashcroft entered George Washington University Hospital with severe pancreatitis. Ashcroft had designated Deputy Attorney General James Comey as the acting attorney general while he was incapacitated.

Meanwhile, at the White House, top officials in George W. Bush’s administration were hoping to approve a terror-related surveillance program as part of the War on Terror. But Comey and Jack Goldsmith, the director of the Office of Legal Counsel—which advises the president on what he can legally do—were both resisting, viewing the program as illegal. Seeking to bypass them, White House Chief of Staff Andy Card and White House Counsel Alberto Gonzales went to Ashcroft’s hospital room, hoping he would overrule the decision. Comey and Goldsmith, getting wind of the plan, rushed to intercept them.

The officials found themselves in a standoff in the hospital room. Goldsmith recounted what happened to my colleague Jeffrey Rosen in 2007:

Ashcroft, who looked like he was near death, sort of puffed up his chest. All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.

The harrowing tale illustrates the central tension for political appointees in the federal government. On the one hand, they are just that: political appointees, people chosen by the president to serve, presumably because they have some sense of affinity, politically and ideologically, with him and loyalty to him. On the other hand, they are expected to serve the people of the United States, defending and upholding the Constitution, and many of them are subject to Senate confirmation.

Ideally the goals of serving the president and serving the people and the Constitution do not conflict, but the important moments are the ones when they do. The departure of Director of National Intelligence Dan Coats, and the troubled selection of Representative John Ratcliffe, a Texas Republican, to replace him lays bare how acute this tension has become in the Trump administration.

Ashcroft was no one’s idea of a softie or a RINO. Democrats had howled when he was appointed attorney general—just weeks after losing his Senate seat to the deceased Democrat Mel Carnahan—and continued howling about his actions as attorney general. Goldsmith and Comey (and for that matter Gonzales and Card) were also lifelong Republicans. Yet when faced with tension between what the White House’s top lawyer wanted and what they believed the Constitution mandated, Ashcroft, Goldsmith, and Comey were clear that their ultimate obligation was to the latter.

Although the Trump administration hasn’t produced any scenes quite as dramatic as the hospital-room showdown—as far as we know—there have been plenty of cases in which political appointees have found themselves caught in similar conflicts. It’s not a coincidence that these same appointees have found themselves heading for the exits, often pursued by a bear.

Homeland Security Secretary Kirstjen Nielsen blocked a Trump plan to prevent migrants from seeking asylum, because she concluded that it violated laws passed by Congress. She was soon fired. White House Counsel Don McGahn refused to fire Special Counsel Robert Mueller, because he thought Trump would be obstructing justice in doing so. Attorney General Jeff Sessions came into the Justice Department as a radical outsider but nonetheless proved to be far too faithful to the institution for Trump’s taste. When he refused to un-recuse himself from the Russia investigation, Trump complained that Sessions had not “protected” him. The attorney general was eventually pushed out, though only after Trump refused his resignation and repeatedly humiliated him.

In the place of permanent appointees, Trump has become a great aficionado of acting appointments. It’s a clever, if devious, maneuver that represents an end-run around the Constitution’s requirement that the Senate advise and consent on appointees. Because these officials are only acting, they owe their loyalty entirely to Trump and depend on his indulgence to remain in the job. Based on examples like the sycophantic tenure of Acting Attorney General Matt Whitaker, this approach allows Trump to appoint officials who might never make it through the confirmation process, and encourages them to toe the line.

The latest victim of this tension is Coats. As my colleague Kathy Gilsinan has written, Coats was an unusual pick for the DNI job, because he was a career politician rather than an intelligence veteran. But Coats, following in the footsteps of previous politicians elevated to Cabinet roles, took the job seriously, and on occasion disagreed—quietly and politely, but unmistakably—with the president. That is a cardinal sin in Trumpworld, and while Coats held on longer than many people expected, he finally reached the end of the road on Sunday, when Trump said he was resigning.

To replace him, Trump has announced plans to nominate Ratcliffe, who gained national attention last week with critical questioning of Mueller. He’d been rumored as a contender for the DNI job earlier, but it hardly seems coincidental that Trump announced the change just days after Ratcliffe’s prominent defense of Trump against a federal investigator. The president praised Ratcliffe not as someone who would lead the nation’s intelligence agencies in protecting America but rather as someone who would protect the president from the intelligence agencies. “We need somebody strong that can really rein it in, because as I think you’ve all learned, the intelligence agencies have run amok,” Trump said.

The tension between serving the president and serving the country seems especially acute in this case. The president is clearly angry at intelligence agencies that have not followed his every harebrained notion and have repeatedly emphasized Russian interference in the 2016 election, and the DNI is a post that concerns sensitive matters of national security. But what’s especially interesting is that the post-9/11 legislation that created the job specifically mandates that “any individual nominated for appointment as Director of National Intelligence shall have extensive national security expertise.”

The law is vague about what constitutes “extensive national security expertise,” and it’s tough to imagine a court battle on the matter, but it’s also hard to say Ratcliffe fits the description. His résumé, as described when Trump announced the pick, would have made him the least experienced holder of the job, with just six months on the House Intelligence Committee and a few terrorism prosecutions as a federal prosecutor.

As it turns out, he wasn’t entirely honest about even that. As The New York Timesreported, Ratcliffe

said on his House website and in campaign material that he had tried suspects accused of funneling money to the Hamas terrorist group. But instead, an aide said, Mr. Ratcliffe had investigated side issues related to an initial mistrial, and did not prosecute the case either in that proceeding or in a successful second trial.

Though he said he “put terrorists in prison,” Ratcliffe didn’t even work in the same district as the case. It’s not a personal failing that Ratcliffe didn’t work lots of terror cases—unsurprisingly, the Eastern District of Texas was not a hotbed of such cases—but it does mean he may not be qualified, statutorily or practically, for the DNI job. His dishonesty about it is disturbing as well.

In keeping with the president’s approach for other appointments, there’s also a brewing controversy over who will serve as acting DNI once Coats leaves and until his successor is confirmed. Trump tweeted, “The Acting Director will be named shortly,” but as Lawfare notes, federal law dictates that the principal deputy fill that role. The career official who currently serves as principal deputy is apparently not who Trump wants. This pattern has occurred before, as Trump maneuvered to appoint loyalists as the acting leaders of the Justice and Homeland Security Departments.

There is no clean way, short of constitutional overhaul, to resolve the tension between serving the president and serving the people, which is built into the American system. At its best, it protects both the Constitution and the president. Ashcroft, Goldsmith, and Comey acted not out of disloyalty to Bush but because they sought to protect his administration from an act that would be illegal. (You might call it, um, a higher loyalty.) Trump has often harmed himself when he doesn’t listen to advisers who are giving him good-faith advice. Perhaps the greatest political error of his administration was firing Comey, the FBI director, because he would neither pledge loyalty nor act on Trump’s notion of it. (Trump may be paranoid about accepting advice, since there are self-professed saboteurs in the administration—though that is itself a reaction to his erratic judgment.)

Like many of Trump’s abuses of the system, his approach to appointments is worrisome because it is likely to persist after he leaves office. Imagine that Trump loses the 2020 election and a Democrat wins, but that Republicans maintain control of the Senate. A future President Harris or President Booker may lament Trump’s violations of norms now, but what happens when she or he faces the prospect of trying to get nominees past the intransigent Senate majority leader, Mitch McConnell? The temptation to resort to acting appointees will be strong—particularly because Trump has done it so extensively, and with so little pushback from McConnell.

In the specific case of Ratcliffe, the president has remained publicly supportive, but Republican senators have been muted in response to the nod, which often indicates that they are privately pushing back. The only personnel move that Trump loves as much as using acting secretaries and appointing lackeys is launching trial balloons. Time and again, from Federal Reserve candidate Herman Cain to Pentagon chief Patrick Shanahan, Trump has announced a nomination but dragged his feet on actually sending a nomination to the Senate. So far, Trump hasn’t formally nominated Ratcliffe, and perhaps he never will. Even if the Texan ends up backing out, or being backed out, it will be clear what Trump is seeking in his next DNI: Whatever the statute says, intelligence experience and fidelity to the Constitution always rank far behind personal loyalty to Trump.

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Trump Sides With North Korea Against the CIA

David A. Graham, The Atlantic — Wed, 12 Jun 2019 10:13:50 -0400

For the second time in two weeks, President Donald Trump interrupted a busy schedule of trashing Joe Biden to say nice things about the North Korean dictator Kim Jong Un.

But Trump’s decision, during remarks in Japan in May, to side with Kim over Biden was a brazen but unsurprising violation of the tradition that “politics ends at the water’s edge,” whereas his comments today were far more baffling.

Two accounts, a new book by the Washington Post reporter Anna Fifield and a Wall Street Journal story, report that Kim’s brother Kim Jong Nam was a CIA informant. Kim Jong Nam was killed in a shocking chemical-weapons attack in the Kuala Lumpur airport in February 2017. Trump was asked about the revelation as he left the White House for a trip to Iowa, and his answer was jarring.

“I see that, and I just received a beautiful letter from Kim Jong Un,” Trump said. “I think the relationship is very well, but I appreciated the letter. I saw the information about the CIA with regard to his brother or half brother, and I would tell him that would not happen under my auspices. I wouldn’t let that happen under my auspices. I just received a beautiful letter from Kim Jong Un.”

The first surprising thing here is that Trump gave no sign of having been aware of the story prior to the Journal report. He did not, however, dispute its accuracy. Given how personally involved the president has been in negotiations with North Korea, if the report is indeed accurate, it is hard to imagine he would have been in the dark. Perhaps Trump is simply playing dumb, though he doesn’t typically have much of a poker face.

American officials often avoid discussing sensitive stories like this with the press, and one reason for that caution became clear as Trump continued. The context of his remarks makes clear that what Trump “wouldn’t let … happen” is not Kim Jong Nam’s killing, but his cultivation as an American asset. Trump has said that former President Barack Obama described North Korea as the nation’s greatest foreign-policy challenge, and Trump has taken that cue, making it a major priority. By saying he wouldn’t allow American intelligence to cultivate an asset so close to Kim, he’s saying he wouldn’t use spying to better understand the country’s biggest overseas challenge.

Put another way, he’s ruling out having the best information possible headed into high-stakes negotiations. Tying one hand behind your back like this makes sense only if you have a messianic belief in your own negotiating prowess—which Trump does, despite the collapse of the most recent round of talks.

It might be a moot point, however, because by responding this way, Trump is sending a clear message to any would-be informants: The United States doesn’t have your back. Why would any other North Korean take the risk of ending up like Kim Jong Nam? If Fifield and the Journal are right, Kim Jong Nam’s assassination wasn’t just Kim killing his brother and rival; it wasn’t even just North Korea using chemical weapons in a foreign country. It was North Korea killing an American intelligence asset in the early days of the Trump administration, a test of the new president’s resolve.

Trump’s nonchalance is especially strange given that the United States expelled 60 Russian diplomats in 2018 in retaliation for Russia’s poisoning of Sergei Skripal and his daughter in Britain. Yet when an alleged American informant is killed, his response is not to warn North Korea not to act that way again, but to rush to assure North Korea that he won’t let such spying happen again.

The guiding principle of Trump’s interactions with Kim has been to try to flatter Kim’s ego and play the good cop, while allowing other members of his administration to take the hard line. Arguably, that paid off in getting Kim to negotiate, even though no deal has been struck. But it also risks letting Kim get away with heinous acts, because the risk of offending him is that negotiations will break off. Moreover, this incident shows it works both ways: Kim grasps the importance of flattering Trump, as with the “beautiful” letter he sent the president. A beautiful letter here, a beautiful letter there, and pretty soon the president of the United States is apologizing to you after a report that you killed an American informant.

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Viewpoint: A Single Scandal Sums Up All of Trump’s Failures

David A. Graham, The Atlantic — Sat, 25 May 2019 10:00:00 -0400

Many of the tales of controversy to emerge from the Trump administration have been abstract, or complicated, or murky. Whenever anyone warns about destruction of “norms,” the conversation quickly becomes speculative—the harms are theoretical, vague, and in the future.

This makes new Washington Post reporting about President Donald Trump’s border wall especially valuable. The Post writes about how Trump has repeatedly pressured the Army Corps of Engineers and the Department of Homeland Security to award a contract for building a wall at the southern U.S. border to a North Dakota company headed by a leading Republican donor.

The story demonstrates the shortcomings of Trump’s attempt to bring private-sector techniques into government. It shows his tendency toward cronyism, his failures as a negotiator, and the ease with which a fairly primitive attention campaign can sway him. At heart, though, what it really exemplifies is Trump’s insistence on placing performative gestures over actual efficacy. And it is a concrete example—almost literally—of how the president’s violations of norms weaken the country and waste taxpayer money.

The Post reports:

In phone calls, White House meetings and conversations aboard Air Force One during the past several months, Trump has aggressively pushed Dickinson, N.D.-based Fisher Industries to Department of Homeland Security leaders and Lt. Gen. Todd Semonite, the commanding general of the Army Corps, according to the administration officials, who spoke on the condition of anonymity to discuss sensitive internal discussions.

It may be a not-very-subtle sign of the frustration in the Army that the news leaked to the Post the same day Trump called General Mark Milley, the Army chief of staff, to the White House and once again pressed him.

Fisher is a curious choice. The company is already suing the government after being rejected for any Army Corps contract for the border wall. Fisher was one of the companies that participated in a prototype exercise outside San Diego in 2017, but the company’s wall didn’t meet the specifications laid out by the Department of Homeland Security, which wanted a wall that agents could see through. Instead, Fisher pushed a more expensive, concrete wall, similar to the one that Trump promised during the 2016 presidential campaign. But the Fisher prototype was late and over budget. The CEO, Tommy Fisher, criticized the steel-bollard design that the government chose. Now Fisher is promising a steel wall, and it says it can build one cheaper and faster than any other contractor.

Fisher Industries has some assets, though. Tommy Fisher is a major GOP donor. He has North Dakota’s Republican Senator Kevin Cramer in his corner. He’s already working on a private-sector attempt to build a barrier on private land in New Mexico, which is backed by close Trump allies such as Steve Bannon, the former White House strategist; Erik Prince, the founder of Blackwater and brother of Education Secretary Betsy DeVos; and Kris Kobach, the former vice chair of Trump’s voter-fraud commission, who was under consideration as his “immigration czar.”

Moreover, Tommy Fisher has wisely made himself a fixture on Fox News, which the president watches obsessively. He’s used those appearances to pitch his company’s plan. And in a statement to the Post, Fisher Industries struck a positively Trumpian tone, promising to build “faster than any contractor using common construction methods” and adding, “Consistent with the goals President Trump has also outlined, Fisher’s goal is to, as expeditiously as possible, provide the best-quality border protection at the best price for the American people at our nation’s border.”

There are valid critiques of the Army Corps contract process. Like many government contracting processes, it can be sclerotic and award contracts to a crew of the usual suspects, firms that are geared not toward speed and efficiency but toward box checking. But it should be self-evident that the answer to fixing a troubled process is not for the president of the United States to personally intervene and pressure military leaders to award a contract to a specific company, controlled by a political ally, which has repeatedly failed to meet the standards laid out for the process.

Trump’s obsession with Fisher is a triumph for the company. Even as Fisher has failed to follow guidelines and changed its vision of the wall, it continues to insist it can magically do the job better and faster than anyone else. These sort of pie-in-the-sky claims, in any realm, should raise alarm bells. They do not for Trump, for a couple of reasons. First, the president has demonstrated time and again that despite his self-styled reputation as a genius negotiator, he is actually a pushover who is easily swayed.

Second, the idea of putting marketing far ahead of actual results resonates with Trump. After all, it was his business model. Whether in real estate or mattresses or get-rich-quick seminars, Trump always prioritized lavish and hyperbolic publicity schemes over the actual delivery of the promised goods or services; later in his career, he largely eschewed the product part altogether, instead licensing his name and marketing prowess and letting other people build the buildings (or manufacture the mattresses).

Trump’s micromanagement of the contracting process also reflects his M.O. at the Trump Organization, a lean company in which it was easy for the CEO to intervene in all sorts of decisions. As many a businessman turned politician has discovered, it doesn’t work that way in the public sector. Besides, all that stood to be lost at the Trump Organization was Trump’s own money—and lose it he did, profusely—as opposed to the taxpayer’s.

Trying to circumvent government guidelines in order to award a crony contract to build the wall creates the danger of a boondoggle that doesn’t really do what Trump wants the wall to do. But Trump seems indifferent to the wall’s actual efficacy. This has been true all along. The wall was always more symbolic than functional. As he has since acknowledged, there’s no need for a wall across the entire border, since some parts are topographically impassable. Moreover, few experts believe that a long wall is a cost-effective way to police illegal immigration. Trump’s lack of interest in whether and how the wall would actually work made it easy for him to occasionally, whimsically add 10 feet to his height estimate, and made it easy for him to abandon the big concrete wall in favor of a steel-bollard design.

But Trump also knows he needs to build the wall—really, any wall—or at least get a good start before the 2020 election. It was his central campaign promise in 2016, and failing to do so would risk alienating his supporters and might endanger his reelection prospects. As a result, he’s more interested in a performative wall than a wall that performs. If that means hassling the Army Corps to award a contract to a crony whose promises have fallen short repeatedly, so be it. If that means the wall that goes up ends up not being all that effective at stopping border crossings, or if it’s over budget, or if it’s behind schedule, so be it—so long as those bills come due after November 3, 2020.

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Trump's Defiance of Congress Leaves Democrats With a New Dilemma

David A. Graham, The Atlantic — Wed, 24 Apr 2019 10:00:19 -0400

Even the announcement was delayed as long as possible.

It has seemed likely since before Democrats won the House of Representatives in November, promising to demand President Donald Trump’s tax returns, that the White House would refuse to hand the documents over without a fight. But after weeks of dickering and assurances that Treasury Secretary Steven Mnuchin was considering the legality of the request, the White House finally said, with just hours to go, that it would not produce the documents by the Tuesday deadline set by House Ways and Means Committee Chairman Richard Neal.

Also on Tuesday, a former White House official in charge of security clearances did not appear to testify to the House Oversight Committee, after the administration instructed him not to comply with a subpoena. Committee Chairman Elijah Cummings said he’d move to hold the former official, Carl Kline, in contempt of Congress. The Washington Post also reported Trump would fight a subpoena calling former White House Counsel Don McGahn to testify. And on Monday, the White House filed a lawsuit against Cummings and his own accounting firm to try to block the firm, Mazars USA, from handing over information about Trump’s finances.

“There is no reason to go any further, and especially in Congress where it’s very partisan—obviously very partisan,” Trump told the Post Tuesday evening, saying he would block any administration staffers from speaking to Congress. “I don’t want people testifying to a party, because that is what they’re doing if they do this.”

Unstoppable force of Democratic investigations, meet the immovable object of Trump administration stonewalling. Or something like that—only with the investigations stoppable, and the administration movable.

Trump’s zero-cooperation policy is unworkable and disconnected from law and precedent. There’s no denying that House Democrats have partisan motives, but some party always controls the chamber. The Constitution doesn’t provide for congressional oversight of the executive branch only when there’s unified control of Congress and the White House—though quite a few past presidents probably wish it did.

More broadly, the Trump administration’s attempt to slow-walk the investigations isn’t especially surprising, and it might be the most strategically savvy step it can take. Even so, there’s a good chance that most or even all of the attempts to block the investigations will eventually come to naught. The lawsuit that tries to block Mazars from complying with the subpoena relied in part on a precedent dating to 1880—which was overruled in 1927, the Postnoted.

The case on the tax returns is flimsy, too. Though the law under which the Judiciary Committee is requesting the returns hasn’t been tested in court, it appears to give the committee the authority to get the returns. The White House claims that Trump can’t release his returns because he’s under audit from the Internal Revenue Service, but that’s a red herring. First, there’s no law that bars anyone from releasing a return that’s under audit. Second, there’s no evidence Trump is actually under audit; his former attorney Michael Cohen told the House Oversight Committee in February that he did not believe Trump was under audit. In any case, Trump said during the 2016 campaign that he’d release his taxes once they were no longer being audited, but after the election, White House officials argued the vote proved there was no need to release them. The administration isn’t even trying to make its stories consistent or persuasive.

But it matters less whether the administration loses legal fights over investigations than when it loses them. Democrats are searching for incriminating information about Trump that might help stymie his agenda and lead to his defeat in the 2020 election. If White House stonewalling can push the resolution of these cases back beyond Election Day, it will have achieved its purpose.

Trump, of course, wouldn’t be the first president to strategically stonewall. President Bill Clinton’s legal team successfully stalled the sexual-harassment suit brought by Paula Jones until after the 1996 election, when the president agreed to settle.

Who knows how long someone like Carl Kline, now a Defense Department employee, will be willing to risk being held in contempt of Congress? But if Mnuchin were held in contempt, he could take heart from the example of Attorney General Eric Holder, who was held in contempt in 2012, with little real effect.

The stonewalling creates a dilemma for Democrats. Party leaders in Congress are reluctant to begin impeachment proceedings against Trump, and they have presented investigation as an alternative (and possibly a prelude) to impeachment. Investigations, however, depend on successful subpoenas. As discussed above, Democrats stand a good chance of winning if they choose to litigate administration stonewalling. That would preserve the system and create good precedents for future congressional investigators. It might also come too late to make a difference in 2020.

So what then? If the House opts for a less conventional head-on fight against the administration, it might get faster results. But it might also yield nothing more than a big fight with the White House over process and accusations of overreach. In other words, it would produce some of the same risks of impeachment that the party’s leaders hope to avoid by taking the investigation track.

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Analysis: Trump’s Border Obsession Is Courting Disaster

David A. Graham, The Atlantic — Wed, 10 Apr 2019 10:32:54 -0400

It’s hard to understand what’s going on at the Department of Homeland Security right now—and that should be deeply unsettling.

President Donald Trump is in the midst of a purge of the department’s senior leadership. On Friday, he abruptly withdrew the nomination of Ronald Vitiello to lead Immigration and Customs Enforcement. On Sunday, he forced outSecretary Kirstjen Nielsen. On Monday, it was Secret Service Director Tex Alles on the chopping block. On Tuesday, Trump fired Claire Grady, the undersecretary of management and a defense-procurement expert. Lee Francis Cissna, the director of Citizenship and Immigration Services, and DHS General Counsel John Mitnick are reportedly in jeopardy as well.

It’s unclear why the purge is under way, though it appears to be a mix of policy and personal pique. Trump is upset about the continued failures of his attempts to deter illegal immigration, and is reportedly considering new policies, such as reimposing family separations, that the existing leadership views as illegal or counterproductive. The president is also reportedly skeptical of DHS leadership because many of its members were hired by former Secretary John Kelly, who became the White House chief of staff but left in December after clashing with Trump.

But if the causes are unclear, the likely consequences are not. All of these moves underscore Trump’s vision of DHS as an immigration-focused organization. But DHS has a sweeping remit—including not only border and immigration agencies, but also FEMA, the Secret Service, TSA, and the Coast Guard—and neglecting its other important responsibilities to focus solely on immigration entails a major risk to the country.

The danger of treating DHS as a single-issue agency was dramatically illustrated during the George W. Bush administration, when an excessive focus on its counterterror role helped produce the federal government’s botched handling of Hurricane Katrina in 2005.

Trump has long made clear that immigration is a top priority, from his 2016 campaign to the government shutdown he forced in December, and his recent moves show how that applies to DHS. For example, Trump announced that he was elevating Kevin McAleenan, the commissioner of Customs and Border Protection, to replace Nielsen on an acting basis. It’s not clear that Trump had thought through the implications—under the law, Nielsen should have been succeeded by Grady. So the White House scrambled to fix the mess the president had created, delaying Nielsen’s formal departure for long enough to first fire Grady, in order to clear the way for McAleenan. Trump’s eagerness to elevate a border-focused official over a defense-focused one shows where his priorities are.

On Tuesday, Mark Krikorian of the Center for Immigration Studies, which has influenced the administration’s approach, argued on NPR’s Morning Editionthat Nielsen was unfit to lead the department because her background is not in immigration.

“This job was not for her. She was in over her head,” Krikorian said. “She’s a cybersecurity person, and that she knows. And DHS does deal with issues like that. But the most pressing issues that DHS has been dealing with are obviously immigration-related issues, and she did not appreciate the urgency of this.”

But that’s begging the question. Trump certainly believes that the most pressing issues for DHS are immigration-related, but the department deals with a range of other issues—including natural disasters, terrorism prevention, and cybersecurity—that are inarguably important to the nation.

When DHS was hastily established after the September 11 attacks, it swallowed up a variety of agencies and functions from across the government. But the department was largely focused on preventing terrorism, and especially Islamist terrorism. In a way, that worked: There were no major Islamist terrorist attacks on American soil in the years that followed. But Hurricane Katrina showed the dangers of this single-minded focus. Departments that were not central to the core terrorism focus became marginalized and forgotten, and the federal government’s handling of the hurricane was a man-made disaster.

In the wake of the flood, DHS pivoted its priorities to allow it to better respond to the full range of threats under its purview. (The universal acclaim for Obama’s FEMA, led by Craig Fugate, is one example of how that worked well.) But Trump is not interested in anything other than immigration.

“What you’re seeing is the second pivot, where Trump views it solely as a border-enforcement agency,” Juliette Kayyem, who served as an assistant secretary of homeland security during the Obama administration, told me recently. “It means that all these other things—climate change, terrorism, election security—all of those things become irrelevant next to the border enforcement and wall. We’re like we were after 9/11, when all we focused on was stopping 19 guys from getting on four airplanes.”

The risk of neglect isn’t hypothetical. FEMA is already troubled. Administrator Brock Long resigned in February amid questions about his use of government cars and also extensive criticism of his agency’s response to disasters, particularly Hurricane Maria, one of the worst natural disasters in American history. Also in February, The Daily Beast reported that DHS had dramatically shrunk two task forces dedicated to protecting elections from foreign interference—despite obvious threats to elections, including the evidence of Russian meddling in 2016 uncovered by Special Counsel Robert Mueller.

Trump’s relentless focus on immigration at DHS carries a political cost, too. Ironically, Nielsen, the bureaucrat, was more attuned to this than Trump, the politician. She reportedly warned the president against shutting down the port of El Paso, Texas, because the economic fallout would be damaging to Governor Greg Abbott, a close ally of the administration. Trump’s plans for a further purge are angering key Republican allies such as Senator Chuck Grassley, who has an existing relationship with some DHS officials.

But it’s the risk to the nation, in cybersecurity, disaster preparedness, and public safety, that is the biggest problem with a myopically immigration-focused DHS. It may be, as Matt Ford has written, that DHS is simply so unwieldy that it is unworkable as an agency. In the immediate future, however, breaking up DHS seems politically unlikely. As long as DHS exists in its current form, it can only guarantee the security of the homeland if it’s focused on the panoply of threats, rather than a single, politically exacerbated one.

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Analysis: Kirstjen Nielsen Shows Why It’s Impossible to Restrain Trump

David A. Graham, The Atlantic — Mon, 08 Apr 2019 16:01:07 -0400

Since November 2016, there’s been a running argument among those who are skeptical of Donald Trump but not implacably opposed to his presidency: Should they go into the system and try to restrain the president’s worst impulses, for the good of the nation? Or should they remain on the outside, and avoid the scarlet C of collaboration?

Secretary of Homeland Security Kirstjen Nielsen’s firing on Sunday should slam the door on that debate. Her tenure is the plainest example yet of the futility of trying to restrain Trump from inside—and the personal cost to those who try.

Over Nielsen’s 16 months in the job, the administration’s policy on the southern border has been a mess. The president has repeatedly threatened to close it, though at the moment he has backed down. He cut aid to countries in Central America’s Northern Triangle, which is only likely to increase immigration. There was a lengthy, pointless government shutdown over funding for a border wall. Border crossings, the metric the administration has chosen to emphasize as an indicator of an immigration crisis, are rising. Looming over all of this is the separation of thousands of families at the border last summer. And that list doesn’t even touch the chaos in other parts of DHS, such as FEMA, whose administrator resigned in February amid criticism of his spending and his handling of disasters.

Nielsen was not a Trump loyalist. She worked on homeland-security issues in the George W. Bush White House, which made her a good test for the restraint camp: She’s a professional bureaucrat and an expert in her field, rather than a Trumpist ideologue. Yet she leaves the administration inextricably associated with the most publicly reviled of the Trump administration’s many unpopular policies. Jeffrey Toobin summed up the damage to Nielsen on CNN: “[Trump] is the great reputation killer. Here is this woman who was a reasonably admired bureaucrat. For the rest of her life, people will look at her and think, Oh, that’s the woman who put children in cages.”

It’s remarkable how little Nielsen has to show for that. Trump’s border policies have been ineffective in stalling the flow of migrants to the border (though, as I have written, it’s not entirely clear that was their goal). Despite the policy of family separations, which the administration believed would deter asylum seekers, asylum claims soared in 2018, compared with 2017 (though there’s no telling how that number might have been different without the separations). Notwithstanding the pomp of Trump’s visit to Calexico, California, last week, no new sections of his beloved border wall have been built.

At times, Nielsen seemed resistant to the Trump agenda. In late 2018, Trump was reportedly close to firing her because of her reluctance to impose directives she believed were illegal. Nielsen quickly embarked on a campaign of tough talk that seemed to convince Trump she was a hard-liner, and he backed down. The problem was that to prove her loyalty, she had to hug Trump harder, thus further reducing any ability she had to restrain him.

The argument for the inside strategy was that, eventually, Trump would come to understand his job better. In the case of immigration, that didn’t mean trying to convince him out of his hard-line approach—Nielsen seems to have largely shared the president’s view that a drastic and quick reduction in illegal immigration and asylum seekers was necessary and possible—but to steer him away from the pointless and/or illegal tactics he favored and toward more effective ones that could achieve the same goals.

But Trump seems to have learned little over the past two years. He continues to prattle on about the wall. During his Calexico visit, his comments suggested he incorrectly believes that the Flores settlement, the 1997 legal agreement that limits the detainment of children, is named for a judge. According to NBC News and CNN, Trump has recently been pushing for DHS to reinstitute family separations, even though courts have repeatedly ruled they are illegal, and even though he claimed, when he halted the practice in June 2018, that “I didn’t like the sight or the feeling of families being separated.”

Nielsen apparently had a breaking point. According to multiple outlets, Nielsen went to the White House on Sunday for a meeting with Trump, prepared to resign but not set on it. One bone of contention was asylum, with the president pressuring Nielsen to block migrants from seeking the protection, which is clearly against the law. She had previously been willing to make the tortured argument that the border separations were not only legal but also required by law—though federal courts later rejected that reasoning—but the asylum issue was apparently too great a stretch.

Nielsen’s apparent pang of conscience was too late. Rather than allowing her to resign or make her case, Trump tersely announced, via tweet, “Secretary of Homeland Security Kirstjen Nielsen will be leaving her position, and I would like to thank her for her service.” He said that Kevin McAleenan, currently the commissioner of Customs and Border Protection, will serve as acting secretary.

Nielsen follows other administration officials who’ve left with their reputation besmirched. She became DHS secretary after her mentor, John Kelly, left the same post to became White House chief of staff, another thankless job that destroyed a reputation. Former Secretary of State Rex Tillerson was fired for trying to block Trump’s most self-destructive foreign-policy ideas. So was former Defense Secretary James Mattis, though he escaped with his reputation largely intact. Former Attorney General Jeff Sessions was a Trump loyalist, but was still unceremoniously tossed after nearly two years of browbeating. Former Press Secretary Sean Spicer, finding the usual opportunities to ex-spinmeisters foreclosed, ended up a special correspondent on Extra.

Trump will likely name a new secretary sooner or later. Nielsen’s experience should end any expectation that that person will be able, or will even try, to restrain the president’s approach to the department. The new secretary will enter the job with a clear picture of what his or her relationship with the president is—and what the likely effect on his or her own good name will be.

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