Government Executive - Authors - Russell Berman

Is This the End?

Russell Berman, The Atlantic — Fri, 14 May 2021 12:00:00 -0400

The announcement seemed to catch everyone off guard: Early Thursday afternoon, the government told Americans that if they were fully vaccinated against COVID-19, they did not need to wear a mask—indoors or outside, in groups small or large.

People who have gotten their shots, Rochelle Walensky, the CDC director, said at a White House press briefing, “can start doing the things that you had stopped doing because of the pandemic.” Coming from an administration that has preached caution to the point of criticism—only six weeks ago a teary-eyed Walensky warned the nation of “impending doom”—the words sounded like a surprisingly abrupt declaration of freedom: Did the CDC just end the pandemic?

It had not, of course. There were, as always, plenty of caveats to the CDC’s guidance. Masks should still be worn on public transportation and in high-risk settings such as doctor’s offices, hospitals, and nursing homes. The majority of Americans remain unvaccinated and should continue to mask up. Tens of thousands are testing positive for the coronavirus every day, and hundreds are still dying from it. Cases are surging in India and other parts of the world.

So, no, the pandemic isn’t over, but the significance of the CDC’s shift was unmistakable, and the nation’s senior political leaders made sure the public didn’t miss it. Inside the Oval Office, President Joe Biden and the Republican lawmakers with whom he was meeting took off their masks, Senator Shelley Moore Capito of West Virginia told reporters outside the White House. On the Senate floor, Senator Susan Collins of Maine—who earlier this week chastised Walensky over the CDC’s “conflicting” mask guidance—triumphantly waved hers in the air. “Free at last,” Senate Minority Leader Mitch McConnell, previously a fastidious mask-wearer, declared at the Capitol. Conservatives have mocked Biden, who has been fully vaccinated for months, for wearing a mask even when it clearly offered no discernible health benefit, including while walking alone to and from his helicopter. So when Biden spoke later in the afternoon in the White House Rose Garden, it was notable that he wasn’t wearing one. His remarks carried an air of celebration, if not quite finality. “Today,” he said, “is a great day for America in our long battle with the coronavirus.”

[Read: The liberals who can’t quit lockdown]

The impact of today’s announcement—like that of so many others during the past 15 months—will vary greatly across the country. For the millions of people who have long refused to wear masks, it will make little difference. Plenty of others will ignore it; in New York and other cities, people regularly wear masks as they walk down the street even though the CDC relaxed guidelines for outdoor activities weeks ago. Businesses and local governments could continue to require them. For many, the announcement immediately raised anxiety and a host of new questions, particularly among parents of children who are too young to be vaccinated. Is it safe to bring kids into a grocery store where people aren’t wearing masks? What about the immunocompromised for whom the vaccines might be less effective? How do you know whether a maskless person is vaccinated? Enforcement is impossible. (“It’s not an enforcement thing,” Biden said. “We’re not going to go out and arrest people.”)

The president and the CDC framed the change as one more incentive for people to become vaccinated by presenting the vaccine-hesitant with a choice—get your shot if you don’t like wearing a mask. But the guideline change was also at least a tacit acknowledgment that not everyone is going to become vaccinated and that at some point the country needs to move closer to normalcy anyway. With cases dropping across the country, the CDC was under increasing pressure to loosen its position toward masks.

Biden has promised, over and over again, to remove politics from the decision making around the pandemic, to “follow the science.” But the political implications of today’s announcement were inescapable. The president needs the pandemic to end, but he also needs the public to see that his policies and leadership have helped make it end. So far, his success has been measured mostly in numbers—in the falling infection rate and in the hundreds of millions of vaccinations, which have exceeded the administration’s initial stated goals. Liberating the people from their face coverings is a far more visible step—one that Americans will feel, physically as well as symbolically, in their daily lives. It will also ease one of the most polarizing issues of the pandemic. The harsh political reality is that people might be more willing to credit Biden for ending the mask mandates than they are for keeping them healthy.

Undoubtedly, a few more twists and turns in the pandemic lie ahead, and the administration’s shift might yet prove to be premature. The ongoing global spread of the virus could spawn new variants that evade the vaccines, and the duration of the protection offered by the shots is still unknown. Masks will be a part of American life in certain settings for months to come, if not longer. For more than a year, however, these flimsy garments have come to symbolize the intrusion, and the isolation, wrought by COVID-19. When the pandemic is finally indeed over, the country might look back at the unexpected announcement of May 13 as a moment of demarcation—even as something of an end.

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

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Democrats Don’t Know How to Handle Bill Barr

Russell Berman, The Atlantic — Thu, 25 Jun 2020 11:00:00 -0400

House Democrats have already impeached President Donald Trump. Now they’re going after the man they call his new “fixer,” Attorney General Bill Barr.

Barr, however, is proving to be a more slippery target than the president, both physically and politically.

This afternoon, the House Judiciary Committee held a hearing on the alleged “politicization” of the Justice Department featuring alarming whistleblower testimony. It was all about Barr—how the attorney general intervened to cut Roger Stone, the president’s longtime friend, “a break” in his sentencing for perjury and ordered the DOJ’s antitrust division to investigate marijuana companies because he didn’t like their industry.

“I believe William Barr poses the greatest threat in my lifetime to our rule of law,” testified Donald Ayer, a former Justice Department official who preceded Barr as the deputy attorney general under President George H. W. Bush, a declaration that fairly well summed up the afternoon’s proceedings. “That is because he does not believe in its core principle that nobody is above the law.”

Barr was nowhere to be found. His absence before congressional oversight hearings has become such a pattern that Democrats didn’t even bother, this time, to invite him. The attorney general, who’s been on the job for less than a year and a half, refused to testify last year about his widely criticized handling of Special Counsel Robert Mueller’s report, eventually defying a House subpoena to appear before the Judiciary Committee. He had agreed to show up earlier this year, but the coronavirus pandemic postponed his appearance. While two of his staffers were testifying against him yesterday, a DOJ spokesperson announced that Barr had accepted an invitation to appear before the Judiciary Committee at the end of July. Yet if the recent past is a guide, Barr’s scheduled testimony a month from now is anything but certain.

[Read: Roger Stone’s secret messages with WikiLeaks]

In the meantime, the Democrats’ list of grievances against Barr continues to grow by the day, to the point where if they wanted him to answer for them all, they’d need a weeklong hearing to do it.

On Friday night—three days after the Democrats announced their politicization hearing—Barr forced out U.S. Attorney Geoffrey Berman, who was overseeing investigations into Trump’s friends and associates as the top federal prosecutor in Manhattan. Berman initially refused to resign, and only left the job after Barr agreed to appoint Berman’s deputy, instead of a Trump ally, as the acting U.S. attorney. This morning, a federal appeals court ruled in Barr’s favor on another matter that has infuriated Democrats—the Justice Department’s move to drop its successful prosecution of Michael Flynn, the onetime national security adviser who pleaded guilty to lying to the FBI.

The complaints about Barr began during his first weeks in office, when his carefully staggered release of the Mueller report had the effect of neutralizing an explosive device. Then and since, in the view of Trump’s critics, the attorney general has applied his expansive view of executive power to defending the president’s interests rather than the nation’s. “Where’s my Roy Cohn?” Trump is once said to have asked, in reference to his long-deceased former lawyer, a legal pugilist who cut his teeth working for Senator Joseph McCarthy. As Democrats and an increasing number of Republicans see it, Trump eventually found him in Bill Barr.

“The sickness that we must address is Mr. Barr’s use of the Department of Justice as a weapon to serve the President’s petty, private interests,” Representative Jerry Nadler, the Judiciary Committee chairman, said at the outset of today’s hearing. “The cancer that we must root out is his decision to place the president’s interests above those of the American people.”

The committee heard from Aaron Zelinsky, who withdrew as a lead prosecutor on the Stone case after the Justice Department’s senior leadership intervened to lower the recommended prison sentence for the president’s ally, who had been convicted of lying to Congress. “I was repeatedly told the department’s actions were not based on the law or the facts, but rather political considerations, Mr. Stone’s political relationships, and fear of the president,” Zelinksy said. And the committee heard from John Elias, a DOJ prosecutor who testified that the department’s antitrust division bowed to pressure from both Trump and Barr to investigate the marijuana industry and automakers who wanted to uphold environmental standards the administration was trying to loosen.

[David A. Graham: This is what an unleashed Trump looks like]

A former attorney general, Michael Mukasey, defended Barr as acting based on the law, not politics. But Republicans on the committee largely deflected the conversation altogether, using their time less to defend Barr than to relitigate their criticisms of the Obama administration and the origins of the Russia investigation that led to Mueller’s appointment as special counsel. “Bill Barr is doing the Lord’s work by cleaning up the Justice Department so it doesn’t happen again,” Representative Jim Jordan said.

The question that loomed over the hearing was: Where does this all go, except to voters in November? House Democrats are conducting oversight by scrutinizing Barr’s actions, but the country remains consumed by a pandemic, a collapsed economy, and a reenergized movement for racial justice.

“This is the most devastating testimony I have ever seen,” Representative Jamie Raskin of Maryland said, clearly trying to elevate the urgency of the moment—“an attorney general of the United States corrupting the rule of law in pursuit of a political agenda for the president of the United States.”

Yet the obvious remedy—impeachment—has already been tried on the president and thwarted by Senate Republicans. Nadler, though supportive of the move in theory, said earlier this week that it would be “a waste of time” to try to oust Barr by the same means.

“We will not let this conduct stand. Attorney General Barr will be held accountable," the chairman declared this afternoon.

It sounded like a promise as much as a threat, but Nadler didn’t say when, and he didn’t say how. And the attorney general, as usual, wasn’t there to hear it.

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Facing a COVID-19 Resurgence and Unable to Act

Russell Berman, The Atlantic — Thu, 18 Jun 2020 10:48:58 -0400

An alarming resurgence of the coronavirus is threatening to overwhelm America’s fifth-largest city, and its leaders aren’t allowed to do much about it.

“We’ve had elected officials who’ve not wanted to use the word crisis,” Phoenix, Arizona, Mayor Kate Gallego told me by phone earlier this week. “I am very comfortable telling the people of Phoenix, ‘We are in a crisis and you have to take this seriously.’”

Gallego, the Democrat who’s led Phoenix for the past year and a half, was being polite: She was referring to Arizona’s Republican governor, Doug Ducey, who has downplayed a recent surge in COVID-19 cases that has made his state the new national hot spot for the pandemic. Arizona is now reporting an average of more than 1,500 cases a day, with rampant spread both in its urban centers, including Phoenix, and in rural areas.

It’s one of several states in the South and West, including Texas, Florida, and Oregon, that are seeing a record number of coronavirus cases in recent weeks. But there’s a wide gap in how governors are reacting to the resurgence. Oregon Governor Kate Brown, a Democrat, and Utah Governor Gary Herbert, a Republican, have each paused their state’s phased reopening plans in response to the increases. But other Republican governors—Ducey in Arizona, Greg Abbott in Texas, and Ron DeSantis in Florida among them—have refused to reimpose economic restrictions or social-distancing mandates, in many cases frustrating local leaders, whose hands are tied.

Read: What will happen when the red states need help?

In Arizona, the spike is evident in a rapidly increasing rate of positive test results. The state is seeing about triple the number of daily cases it was reporting a month ago, when Ducey lifted a stay-at-home order and removed virtually all restrictions on businesses and large gatherings. Hospitalizations are rising too.

“We are reopening too much, too quickly, and without sufficient safety protocols such as masking,” Gallego said. If she could, she said, she would shut down bars and nightclubs, and require all residents to wear a mask outside their home. But Gallego can’t do that: When Ducey first issued his stay-at-home order, in late March, he simultaneously preempted cities and counties in Arizona from acting on their own. “I will continue to believe that government closest to the people is best—except in a global pandemic,” Ducey explained last week. “We want to have clarity and consistency for our citizens.” (The governor partially reversed course yesterday, declaring that local officials would be allowed to require masks—but not restrict businesses—in their communities.)

The same dynamic is happening in Texas, another state that reopened early and is now seeing a corresponding increase in COVID-19 cases. Abbott has scolded 20-somethings for letting “down their guard,” while refusing pleas from mayors and county officials to require masks in their communities. “If we don’t do something now, we’re going to be in an untenable situation,” Judge Lina Hidalgo, the chief executive of Harris County, which includes Houston, told me in a phone interview on Monday. A week ago, the county saw a record number of people hospitalized for COVID-19. “Since then,” she told me, “the numbers have only grown.”

Hidalgo implemented a public alert system to warn residents about the recent spread of the virus. It’s now at orange, one tier below red. Even though bars and indoor dining are open in Houston, Hidalgo is urging residents to stay away and “minimize contact.” Like Gallego in Phoenix, however, she doesn’t have the power to close down businesses. “I’m doing all I can, you know?” she said, with a hint of exhaustion in her voice.

In late May, Oregon was averaging just a few dozen new coronavirus cases a day. But when that daily average began climbing to well over 100 in early June, Governor Brown decided to act.

Oregon’s numbers were still just a fraction of the surge in Arizona—even accounting for its smaller population—but Brown paused the state’s reopening for at least a week to give public-health officials time to analyze the data. Many of the cases were tied to specific outbreaks, she told me in a phone interview on Tuesday, but there were also cases in the state’s metro areas where officials couldn’t determine a source. “So that was very concerning,” Brown said. “We just didn’t know where the cases were coming from.”

The message to residents, she said, was that this pause represents “a yellow light.” “This means caution. Proceed carefully,” she said.

Brown said the new cases were not coming from business sectors that had recently reopened, such as restaurants, hair salons, and gyms. Nor was there an obvious connection to the protests against racism and police brutality that took place in late May and early June. (In one striking demonstration, thousands of closely packed protesters laid down on Portland’s Burnside Bridge for nearly nine minutes to mark the police killing of George Floyd.) “Some of it we just don’t know,” Brown said.

I asked Brown if she thought Oregonians would stomach another shutdown of the state’s economy, if it came to that. “Yes, I do,” she replied. “That is obviously a situation of last resort. But I believe that folks are willing to stay home to save lives, even at this point in time.”

In Arizona and Texas, the reopenings are so far along, and the cultural “return to normal” is so deeply ingrained, that even epidemiologists there are reluctant to broach the possibility of another lockdown. Ducey “has basically taken it off the table as an option, and I think it at least needs to be put back on the table,” Kristen Pogreba-Brown, an epidemiologist at the University of Arizona’s College of Public Health, told me. She said that “at a minimum,” Arizona should have a mandatory mask order. “From a purely empirical public-health perspective,” Pogreba-Brown said, “given that our cases are far higher than they were when we actually did have a stay-at-home order, you should probably be looking at shutting things back down. But from a political and a pragmatic point of view, I also just want to do what we can actually accomplish.”

Read: T heir states are in crisis. They’re declaring victory anyway.

Governors such as Ducey and Abbott seem to have a different attitude entirely.

Following the lead of Donald Trump, the Arizona and Texas governors are treating mask wearing and social distancing as matters of personal responsibility, or even choices. The simple act of wearing a mask—or a “face diaper,” as some conservatives derisively call it—is a new front in the culture war. Mandates for businesses are out, and “guidelines” are in. In Arizona and Texas, the governmental efforts to fight the coronavirus are now focused entirely on preparing hospital systems to meet an inevitable surge. Containment may have been a goal in the spring, but not anymore.

“We are not going to be able to stop the spread,” Cara Christ, Arizona’s public-health director, said last week, “so we can’t stop living as well.”

That quote alarmed local officials and epidemiologists alike. “It came off as a little callous,” Pogreba-Brown said. But it appeared to convey the sentiments not only of Ducey and his top advisers, but of Arizonans more generally, who have flocked to bars and restaurants and crowded into nightclubs as the state has reopened over the past month. Because Arizona and Texas did not experience initial outbreaks nearly as severe as those in the Northeast earlier this year, officials suspect that people there had less trepidation about returning to crowded spaces once they reopened—and were less inclined to wear a mask. “People assumed that since things were open, they could just get back to life as normal, and I think we’re seeing the consequences of that,” Pogreba-Brown said.

In Arizona, at least, the rapid spread of the virus in recent days might be prompting Ducey to rethink his approach. Yesterday, he referred to the situation as a “crisis” in declaring that local governments could require citizens to wear masks. And while he did not change any statewide mandates, he suggested that more action could be coming.

In both Arizona and Texas, the aggressive reopening and hands-off policy since haven’t made things easier on businesses, which now have the freedom to reopen but also the burden to police themselves. Some are stringent about requiring masks and social distancing. “There are other places that really aren’t even giving it a nod,” Austin Mayor Steve Adler told me.

Restaurant owners say they’ve received little guidance on how best to manage the situation. To their pleasant surprise, customers returned quickly. But so too did the virus: Several restaurants in Phoenix, Houston, and elsewhere reopened only to have to close again because their employees tested positive for COVID-19.

“We didn’t necessarily reopen too quickly. There just needed to be more mandates as opposed to guidelines,” Jason Mok, a Houston restaurateur, told me. Mok, 35, closed his three-year-old restaurant, FM Kitchen and Bar, for six weeks during the height of the pandemic, before reopening for curbside pickup and delivery. Once Texas allowed dine-in service, he said, he stayed one step behind the state mandates throughout most of May, keeping his dining room at only 25 or 50 percent capacity. “At the time, it just didn’t feel right,” he said. Customers showed up, but at the end of May a part-time kitchen employee tested positive, and Mok closed the restaurant for a week.

Ken Bridge, 52, hadn’t even fully opened Millie’s Kitchen and Cocktail, the newest of the five restaurants he owns in the Houston area, when one of his employees tested positive in late May. His staff members had been having their temperature checked twice a day, with anyone registering above 99 degrees sent home. Bridge had been doing takeout and delivery only, and he told me that he’s now looking to open his dining room for the first time at the beginning of July. “We just have to be 100 percent confident,” he said.

Bridge is an optimist by nature, but out and about in Houston, he told me by phone, he sees people not wearing masks, not “taking it as seriously as it could be taken.” Bridge added that his restaurant couldn’t survive on curbside service alone. “I’m so torn,” he said. “In a lot of ways, I wish we were able to be more cautious. The other side of it is—shit, man, it’s unsustainable.”

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

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2020 Democrats Are Already Giving Up on Congress

Russell Berman, The Atlantic — Thu, 30 Jan 2020 16:22:16 -0500

Last summer, Senator Elizabeth Warren unveiled legislation to wipe out as much as $50,000 in student-loan debt for tens of millions of Americans. Pushing the $640 billion measure through even a Democratic-controlled Congress would be a punishing task, but the presidential hopeful had secured a big Capitol Hill backer in Representative James Clyburn of South Carolina, a power broker in a key early-primary state and the third-ranking Democrat in the House.

Earlier this month, however, Warren effectively cut Clyburn, and the rest of Congress, out of her debt-relief plan. On the eve of the most recent Democratic primary debate, she announced that on her first day as president, she would order the cancellation of the student debt herself, using a broad interpretation of existing laws. Lawmakers could sit back and watch. “We can’t afford to wait for Congress to act,” she wrote.

Most Democratic presidential candidates, including Warren, have vowed to show more deference to Congress in seeking authorization for the use of military force, and they’ve condemned President Donald Trump for shirking checks on his executive authority.

But as they confront the possibility that their grand progressive plans could stall out on Capitol Hill, several of the party’s past and present White House contenders have signaled that they share Trump’s expansive view of presidential authority and his impatience with—if not his outright disregard for—the legislative branch. And that has caused alarm among Democrats who don’t want their party to mimic a man who famously declared, “I alone can fix it.”

Senator Bernie Sanders of Vermont is reportedly considering dozens of executive orders he could sign to go around Congress, and he’s already promised to implement major parts of his immigration plan unilaterally if it stalls on Capitol Hill. Before dropping out of the race late last year, Senator Kamala Harris of California vowed to enact her gun-control agenda herself if Congress didn’t act within 100 days of her inauguration. Even former Vice President Joe Biden, who has campaigned as a legislative consensus-builder and has been dismissive of his rivals’ plans to circumvent Congress, has proposed an aggressive use of executive orders.

This embrace of executive authority has disappointed, but not surprised, advocates who want to reverse a decades-long shift in power from a largely dysfunctional legislative branch to an ever more muscular executive.

“Executive-branch circumvention of Congress is what everyone expects by now,” says Philip Wallach, a senior fellow in governance at R Street, a libertarian think tank. It has been a decade since Congress last enacted a major new policy program, aside from a few big tax cuts and spending bills, he notes.

The past three presidents have tried to push the bounds of executive authority. In the years after 9/11, civil libertarians and some Democrats criticized the George W. Bush administration for its expansive interpretation of the president’s power to act in the name of national security. Republicans took President Barack Obama to court over his move to grant legal status to millions of undocumented immigrants after Congress refused to pass a comprehensive bill providing a path to citizenship. (The Obama administration rejected an even wilder idea of minting a trillion-dollar coin to obviate the need for Republican votes to raise the debt ceiling.)

Congress is at fault too. Over the years, lawmakers have written overly broad laws that have given executive agencies wide latitude to interpret and implement them as they see fit, argues Elizabeth Goitein, the director of the liberty-and-national-security program at the Brennan Center for Justice, a left-leaning think tank. Many disputes over such laws end up in the courts, leading to years of litigation, as has been the case with the Affordable Care Act, for example. “Congress has essentially abdicated the job of lawmaking and has left that to the president,” Goitein told me. “Presidents have also taken to stretching the bounds of those delegations and going beyond what Congress has authorized.”

Warren’s advisers told me she views Congress as a partner, noting her support for repealing the authorizations of military force that were passed in 2001 and 2003 and that presidents have used to justify military actions across the globe in the decades since. But Warren is also a candidate who conceived of and built from scratch an entire federal agency, the Consumer Financial Protection Bureau, that was designed to be insulated from congressional sabotage and oversight. For years, she has pushed the executive branch to be more aggressive about using its vast power to improve people’s lives. “She has really thought deeply about how you can use all the tools of government to actually deliver for people,” Bharat Ramamurti, the campaign’s deputy director for economic policy, told me.

Still, none of the candidates’ domestic proposals for executive action would have near the fiscal impact of Warren’s cancellation plan for student debt, which would rival the $700 billion bank bailout Congress approved under duress in 2008. Her pledge to act unilaterally annoyed Democrats like Representative Scott Peters of California, a leader of the moderate New Democrat Coalition, who warned his party’s contenders against trying to match Trump’s contempt for the balance of powers. “We do not need another wannabe monarch,” he tweeted after Warren unveiled her plan.

Experts at Harvard Law School’s Project on Predatory Student Lending, in a seven-page letter released by the Warren campaign, argued that legal authority to cancel student debt without congressional action exists under the Higher Education Act. The law, they wrote, grants the secretary of education “unrestricted authority to create and to cancel or modify debt owed under federal student loan programs.” On day one of her presidency, Warren said, she would direct her education secretary to use that authority to wipe out up to $50,000 in debt for borrowers on a sliding income scale. That a president could erase $640 billion worth of unpaid loans with barely more than the stroke of a pen was news to Clyburn and other co-sponsors of the debt-relief legislation in Congress. “She didn’t indicate that to me at all,” Clyburn told me.

In all likelihood, conservatives would immediately challenge such a move in court, leading to a lengthy legal fight. But whether the law is ultimately on Warren’s side is beside the point, Representative Peters told me. “Certainly something that big has to come to the Congress,” he said. Peters, who noted that Obama acted on immigration only after he had made an extensive effort to pass a bill on Capitol Hill, found it particularly galling that Warren planned to cancel such a large amount of student debt before even trying to build legislative support as president. “Whatever happened to the first 100 days?” he asked. “Enough of the dictators, whether they’re left or right. That’s not what this country is about.”

Representative Ro Khanna of California, a Sanders supporter who co-sponsored Warren’s bill in the House, told me it was his “strong preference” that a new president first try to enact student-debt relief legislatively. “If there are actions that she could take to provide some relief that she's convinced will be upheld as constitutional in the courts, then I’d support that,” he said. “But I think what could be a blow is if we tried something and then it’s held as unconstitutional and we don't have a legislative strategy.”

Khanna noted that although the laws Obama passed through Congress have largely survived, Trump has reversed much of the progressive policy his predecessor enacted through executive action and by chipping away at regulations. “If you want the policy to stand the test of time, it usually means the legislative branch,” he said. “I don't think we should compromise our respect for the congressional branches, and we should recognize the dangers of executive overreach.”

Warren’s advisers told me her plan to act “on day one” did not mean she was giving up on the legislation she introduced with Clyburn. "Her student-debt legislation is complementary to the executive action, and she will continue to fight with Representative Clyburn to pass it,” said Julie Morgan, the campaign’s deputy director of domestic policy. “Just like she wants legislation to break up Big Tech while also having regulators use existing authority to unwind anticompetitive mergers. It’s not an either/or.”

As for Clyburn, the 28-year veteran of the House may have been taken aback by Warren’s abrupt announcement that she could enact their student-debt plan all by herself if she wins the presidency. But he wasn’t offended by the idea, nor was he necessarily opposed to it. “I would remind you that slavery was ended by executive order,” Clyburn replied when I asked him whether he was worried about executive overreach. “The armed forces were integrated by executive order. So I'm the last person to criticize anybody for using the executive order to do that which Congress won’t.”

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Trump Becomes the Third President in U.S. History to Be Impeached

Russell Berman, The Atlantic — Thu, 19 Dec 2019 09:52:55 -0500

When the time came for the House of Representatives to give Donald Trump his ignominious place in presidential history, lawmakers flooded into the well of the chamber. They had endured six hours of fiery debate. Votes in the House have long occurred electronically, but on this historic day, members of both parties wanted a keepsake: the written record of their vote. Some took selfies, while others chatted amiably as the clerks set about the more tedious task of counting the votes by hand. As Speaker Nancy Pelosi announced the result, a few Democrats started to clap. She flashed a glare and gestured sharply in their direction. Under the speaker’s carefully laid plans, there would be no celebration of impeachment—at least not on the House floor, and not in front of her.

There was the 230–197 tally itself—nearly all Democrats voting in favor of making Trump the third president in history to be impeached by the House of Representatives, with every single Republican, as expected, in opposition. But there was also the sense that this moment—rancorous yet solemn, dramatic yet not suspenseful—had been building for much longer than the two and a half months since Pelosi dropped her long-standing opposition to impeachment and formally opened the Democrats’ case against Trump. It began before the July 25 phone call in which Trump infamously asked Ukrainian President Volodymyr Zelensky for the “favor” of investigating his political rival, former Vice President Joe Biden. And maybe it even began before last year’s midterm elections, when voters across the country handed Democrats the House majority and, with it, the power to confront the president.

In truth, the inexorable march toward impeachment probably began on January 20, 2017.

That is, of course, the main Republican talking point. In speech after speech, hour after hour, GOP lawmakers this afternoon weaponized the Democratic “resistance” to blunt the wound of impeachment. “This should surprise no one,” declared Representative Doug Collins of Georgia, who, as the top Republican on the House Judiciary Committee, has led the GOP’s defense of the president. “From the very moment that the majority party in this House won, the inevitability that we would be here today was only a matter of what date they would schedule it. Nothing else.”

Representative Mike Kelly of Pennsylvania reached for a different comparison, likening the Democrats’ December impeachment of Trump to the Japanese bombing of Pearl Harbor, which drew the U.S. into World War II. “Today, December 18, 2019, is another date that will live in infamy,” he said.

Republicans said the Democrats had had it in for Trump from the minute he took office; that they could not countenance an election in which the states, through the Electoral College, overruled the popular vote of the people; that they would gin up any controversy as an excuse to impeach a president they just plain didn’t like.

There was some truth in this. There were Democrats who saw Trump as a threat to the constitutional order from the outset, who called for his ouster for all manner of actions and statements, from the corporate profits he continued to rake in as president, to his various racist outbursts, to his drive to ban travel from majority-Muslim countries, to the allegations of obstruction of justice documented by Special Counsel Robert Mueller.

If there was a mandate in Trump’s slim 2016 victory, it wasn’t for a particular set of policies but for a tough-talking dealmaker to dispense with the stale niceties of official Washington. The new president delivered on that promise with his Twitter feed alone, and if it were only a few cherished norms that he’d abandoned, perhaps today’s vote would never have happened.

Opening the six-hour floor debate shortly after noon today, Pelosi said Trump was “an ongoing threat to our national security and the integrity of our elections.” Standing alongside an image of the American flag and a quote from the Pledge of Allegiance, Pelosi struck the same somber, more-in-sorrow-than-in-anger tone that she has throughout the process. Impeachment was not a desire but an obligation. “If we do not act now, we would be derelict in our duty,” she said. “It is tragic that the president’s actions make impeachment necessary.”

That message became a theme among Pelosi’s members. “I did not come to Congress to impeach the president” was the refrain, uttered as a rebuttal to the GOP’s argument that the whole thing was precooked and as a reminder that Democrats waited nine months before even launching their inquiry.

As the debate wore on and the votes drew close, Republicans began heckling Democrats, drawing reprimands for order in the chamber from the presiding officer. They jeered Representative Adam Schiff of California, the chairman of the House Intelligence Committee, and they audibly scoffed as Majority Leader Steny Hoyer recounted the Democrats’ reluctance to pursue impeachment until recently. “We did not want this,” Hoyer said somberly. A Republican on the floor replied, “Oh, come on!”

It wasn’t Trump’s shirking of norms but his obvious and outspoken disdain for rules and even laws that made his impeachment, at least with the benefit of hindsight, inevitable. That, and his refusal to quit when he was ahead. Pelosi was ready to give Trump a pass for his profiteering, for his defiance of Congress in directing money to his border wall and in stonewalling Democratic oversight investigations, for his alleged misdeeds in the Mueller report. But it was lost on no one that Trump’s call with Zelensky came on the day after Mueller’s lackluster performance on Capitol Hill lifted, once and for all, the two-year cloud that had cast his presidency in shadow.

The Mueller investigation was a look-back at 2016; Trump’s alleged quid pro quo with Ukraine was about 2020. A president who was exonerated—in part, if not in whole—for conspiring with Russia to interfere in his first election was now, apparently, soliciting foreign help for his second. When the call record came out in September, rank-and-file Democrats who had spent the summer deflecting demands for impeachment from progressive activists now turned quickly around. They saw a crime in progress, and no choice but to act.

“Make no mistake,” Representative Susan Davis of California said as the debate wound down this evening. “We are not impeaching this president. He is impeaching himself.”

By the time Pelosi announced her intention to move forward with an impeachment inquiry, support for the investigation within the Democratic caucus was nearly unanimous. Just two Democrats—freshman Representative Jeff Van Drew of New Jersey and veteran Representative Collin Peterson of Minnesota—broke with the party on an initial vote setting up the rules for public hearings. Despite speculation that more Democrats would defect, the vote this evening was largely the same. Representative Tulsi Gabbard of Hawaii, the long-shot presidential hopeful, voted present. One freshman Democrat, Representative Jared Golden of Maine, split his vote on the two articles, backing Trump’s impeachment for abuse of power while opposing it for obstructing Congress.

The Democrats’ push for impeachment did not come without a price. They will lose a member of their majority when Van Drew switches parties, as he reportedly plans to do. And weeks of compelling testimony from current and former Trump-administration officials did little to move public opinion, which remains divided but narrowly supportive of impeachment. Nor was it enough to persuade any House Republicans to go along, depriving Pelosi of the imprimatur of bipartisanship she had long sought for the impeachment process. (It was not strictly partisan, however, since Democrats had the support of an independent, Representative Justin Amash of Michigan, who abandoned the GOP over its steadfast support for Trump.)

In the Senate, the best Democrats likely can hope for are the votes of a few Republicans, such as Senators Mitt Romney of Utah, Susan Collins of Maine, and/or Lisa Murkowski of Alaska, and potentially one or two others, who could help them muster a slim majority for conviction. But that would still leave them far short of the 67 votes they’d need to remove Trump from office.

This reality is not news to Pelosi, nor to any other Democrat who voted to impeach Trump today knowing full well that his conviction in the Republican-controlled Senate was highly unlikely. This was an institutional stand, a message to future generations that at least they tried to check a president they view as an outlaw, even a danger. Nor is the House’s action today meant to signal an irrevocable breach between Congress and the Trump administration. Indeed, tomorrow Pelosi will lead her members in approving a rewritten NAFTA that represents the president’s top domestic priority, giving him a key policy achievement that—progressive activists fear—he’ll use to boost his reelection campaign. For the more vulnerable Democrats representing districts Trump won, who might have taken a risk by backing impeachment, this second vote is something of a reward.

ut as my colleague David A. Graham writes, impeachment is a stain that no trade agreement will wash away. Trump may stay in office, but in their vote today, House Democrats have affixed a scarlet I to his legacy. No one knows this better than the president, whose six-page letter of protest to Pelosi represented a final projection of rage at a process he considered deeply unfair. “You are the ones interfering in our elections,” Trump wrote. “You are the ones subverting America’s Democracy. You are the ones Obstructing Justice. You are the ones bringing pain and suffering to our Republic for your own selfish, personal, political, and partisan gain.”

In classic Trump fashion, the president accused his opponents of the very high crimes they were charging him with. It was a reaction fitting for a man who has not changed in office, as inevitable in its indignation as was the vote to impeach him that occurred this evening.

Elaine Godfrey contributed reporting.

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Analysis: Impeachment Gets Weird

Russell Berman, The Atlantic — Tue, 10 Dec 2019 09:47:50 -0500

Monday's impeachment hearing was supposed to be a check-the-box session for House Democrats—a formality, really: Its purpose was to televise the evidence against President Donald Trump that party lawmakers presented in a voluminous written report released last week.

What it turned into, however, was the weirdest, most chaotic hearing of the entire impeachment saga so far.

The witnesses were not exactly household names: two staff lawyers for Democratic House committees, Barry Berke and Daniel Goldman, and one serving Republicans, Stephen Castor. They were there to discuss the findings of the House Intelligence Committee, a necessary but decidedly anticlimactic step ahead of the introduction of official articles of impeachment. Democrats could unveil those charges by the end of the week, and the full House could vote on them before Christmas.

The hearing began ominously with the first protester disruption of the impeachment inquiry, as a smartly dressed man proclaiming Trump’s innocence and denouncing the Democrats’ “sham impeachment” was hauled out of the room a few moments into the session. The demonstrator was gone, but the protests continued from the dais: One after another, Republican lawmakers challenged Judiciary Committee Chairman Jerry Nadler’s handling of the process, attempting arcane maneuvers such as points of order and parliamentary inquiries to stop, or at least slow down, the Democrats’ investigation.

House Republicans have been trying to throw sand in the gears of the impeachment inquiry from the start. Nadler, along with Intelligence Committee Chairman Adam Schiff before him, has largely succeeded in keeping things on track. But the frequency and fervor with which the GOP lawmakers objected Monday seemed to trip Nadler up a bit, and they focused relentlessly on the Democrats’ unusual if not unprecedented structure for the hearing.

Republicans had hoped that Schiff would testify about his committee’s report, which would give them an opportunity to question the chairman on whether he ever met the anonymous whistle-blower whose August complaint to Congress set off the investigation. (Schiff has denied any such meeting.) There is precedent for both congressional staff and elected members testifying before congressional committees, but Democrats decided to shield Schiff by inviting only committee staff members to appear. Republicans responded by displaying a poster with Schiff’s image on a milk carton.

The setup got odder from there. Officially, the Judiciary Committee was to hear presentations from both the Intelligence Committee’s counsel and its own staff counsel—the veteran lawyers who have become familiar to close observers of the impeachment hearings over the past few weeks. Because Castor has been filling both roles for Republicans, only he appeared on the GOP side. The Democrats had Berke, from the Judiciary Committee, and Goldman, from the Intelligence Committee.

Berke opened with a flourish, presenting the case for impeachment without notes or a prepared text, as if he were delivering a closing statement before a courtroom in a jury. But after giving his testimony from the witness stand, he returned to the committee dais to ask questions of Goldman and himself.

Republicans were astounded.

“He can either ask or answer. He can’t do both,” protested Representative Doug Collins of Georgia, the committee’s top Republican.

“It’s just wrong!” bellowed Representative Louie Gohmert of Texas.

Nadler confused matters further by telling Republicans that Berke was appearing on behalf of the Judiciary Committee, not as a witness, although he had referred to him as a witness earlier. Republicans were also peeved that unlike Goldman and Castor, Berke was not sworn to testify under oath.

Monday’s sessions did allow both parties to cross-examine the men who have, in effect, played the roles of prosecutor and defense attorney for the past several weeks. Castor appeared uncomfortable in the witness chair as Berke tried to poke holes in his defense of the president. Asked about the central charge in the impeachment case—that in the infamous July phone call, Trump asked Ukrainian President Volodymyr Zelensky for the favor of helping to investigate his political rival, former Vice President Joe Biden—Castor replied: “I think it’s ambiguous.” At various points, Republicans tried to step in to protect Castor. “The lawyer is badgering the witness,” Representative James Sensenbrenner of Wisconsin said of Berke. Nadler defended his counsel, saying it was simply “sharp cross-examination.”

Procedural skirmishes dominated the first several hours of the hearing, but they pale in comparison to the stakes of the broader impeachment inquiry. As Democrats have moved from the dramatic accounts offered in the Intelligence Committee to the far drier presentations in the Judiciary Committee, they seemed to have conceded that the moment for persuading the public on the case for impeachment has largely passed—at least in the House. Trump late last week tweeted that if the Democrats are going to impeach him, they should “do it now, fast,” and get on to the trial in the Senate. After the messiness of Monday's hearing—likely one of the last before a House vote—Democrats may be even more inclined to agree.

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Analysis: The Political Funeral in the Age of Trump

Russell Berman — Fri, 25 Oct 2019 15:52:13 -0400

In the age of Donald Trump, even funerals are political.

Elijah Cummings and John McCain did not share a whole lot in common besides the profession of politics. They were of different races and political parties; they had vastly different life experiences; they lived on different ends of the country; and they even served on different sides of the Capitol.

But both lawmakers died during Trump’s presidency, and as such, they were both remembered in death for the roles they played in this tumultuous political era—as distinctly honorable men who stood up to a man who is not.

“There is nothing weak about kindness and compassion,” former President Barack Obama said this afternoon as he eulogized Cummings, the senior Democratic congressman who died last week at the age of 68. “There is nothing weak about looking out for others. There is nothing weak about being honorable. You are not a sucker to have integrity and to treat others with respect.”

As Obama spoke, a crowd of thousands at the New Psalmist Baptist Church, in Cummings’s hometown of Baltimore, applauded knowingly and cheered. He riffed on the title “The Honorable,” which is given by default to people in elected office, affixed to their first and last names. “Elijah Cummings was honorable before he was elected to office,” Obama said. “There’s a difference.”

Obama never uttered Trump’s name or directly referenced the current president. Nor did the other luminaries who eulogized Cummings this afternoon: Bill and Hillary Clinton, Speaker Nancy Pelosi, or Maya Rockeymoore Cummings, the congressman’s widow and his possible successor in the House.

But just as he was when McCain was laid to rest a year ago in Washington, D.C., Trump seemed a spectral presence at Cummings’s funeral—an object of implicit scorn in contrast to the deceased. A figure who was, in internet speak, subtweeted in speech after speech. Cummings died at the pinnacle of his power, 10 months after becoming chairman of the House Oversight and Reform Committee and just as he was about to assume a prominent role in the impeachment inquiry into Trump.

“He stood against corrupt leadership, like King Ahab and Queen Jezebel,” said Hillary Clinton, the former secretary of state, comparing Cummings to his biblical namesake.

When her husband spoke, he observed with wonder how Cummings could befriend so many Republicans at a time of such intense partisanship.
“You can’t run a free society if you have to hate everybody you disagree with,” the former president said, as again the mourners cheered what they saw as a reference to the current one. Those in the pews included two of Trump’s most loyal congressional GOP allies, Representatives Mark Meadows of North Carolina and Jim Jordan of Ohio. Meadows was a close friend of Cummings, and Jordan sparred with him as the top Republican on the oversight panel.

Like McCain, whose service in Vietnam Trump denigrated, Cummings spent the last months of his life in the president’s rhetorical crosshairs. Trump called out Cummings’s beloved Baltimore as “a disgusting rat and rodent infested mess” and blamed the Democrat for the city’s struggles with crime and poverty. Trump didn’t attend Cummings’s funeral. Nor did he go to McCain’s. But his daughter Ivanka and his son-in-law, Jared Kushner, sat in the church last year as the late senator’s daughter Meghan McCain castigated their father without naming him. “The America of John McCain has no need to be made great again,” she said, “because America was always great.”

This afternoon, Cummings’s widow drew the sharpest contrast between her late husband and the president who attacked him. She began by acknowledging Obama and the Clintons in the front row. “You didn’t have any challenges like we do now,” Rockeymoore Cummings told Obama, drawing a laugh from the former president. She noted how Cummings had been a fierce defender of Hillary Clinton against “very spurious claims” made by Republicans over the years. “Then he had to go on fighting for our democracy against very real corruption,” she added, as Clinton herself nodded along.

Rockeymoore Cummings’s voice rose as she described how, despite his “grace and dignity in public forums,” her husband was truly “hurt” by the attacks on him and his city. She said that although Cummings did not want a memorial service in the Capitol, where yesterday he became the first African American lawmaker to lie in state, she insisted that he be remembered with “the respect and the dignity that he deserved.”

“He was a man of integrity!” she thundered, as the mourners rose, cheering, to their feet. “Do you hear me?”

Rockeymoore Cummings was speaking to an audience who already knew well her husband’s integrity; in a service that stretched nearly four hours, it was the topic of just about every eulogy. But the attacks Cummings sustained from the president toward the end of his life seemed to demand that his core attributes be recalled with greater urgency, just as it was with McCain a year ago.

It’s yet another reminder of how broadly Trump has affected American public life in the past few years, his influence felt even in death and legacy. The president has changed how his rivals are mourned, even at funerals to which he was not invited.

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The Battle for Obama’s Legacy

Russell Berman, The Atlantic — Wed, 16 Oct 2019 10:09:16 -0400

Joe Biden and Elizabeth Warren both want to be the 2020 Democratic nominee. But first, they want some credit.

The top rivals in this year’s primary got into their most prickly exchange of the race yet at tonight’s debate in Ohio, bickering over who was most responsible for a key element of former President Barack Obama’s domestic legacy: the creation of the Consumer Financial Protection Bureau.

The fight started when the former vice president pitched himself as the most experienced and effective candidate on the stage. “I’m going to say something that is probably going to offend some people here, but I’m the only one on this stage that has gotten anything really big done,” Biden said.

It was an audacious claim that referenced Biden’s reputation as a dealmaker over his decades in the Senate, but it opened the door for Warren to tout her widely acknowledged role in the consumer agency at the heart of the 2010 Wall Street reform bill. Then a Harvard professor, Warren became the bureau’s public face and stood it up once Congress enacted the law; she wasn’t named to be its first director largely because Republicans vowed to block her confirmation in the Senate.

Yet when Warren pointed all this out tonight, Biden replied angrily. “I agree with the great job she did, and I went on the floor and got you votes,” he said, his voice rising as he pointed his hand directly at Warren. “I got votes for that bill. I convinced people to vote for it, so let’s get those things straight, too.”

Warren responded by ignoring Biden’s role entirely. “I am deeply grateful to President Obama,” she said, speaking slowly and deliberately, “who fought so hard to make sure that agency was passed into law, and I am deeply grateful to every single person who fought for it and who helped pass it into law.”

“You did a hell of a job in your job,” Biden shot back.

Warren went on to point out that Obama “sometimes had to fight against people in his own administration.”

“Not me,” his former vice president interjected.

Democratic primary voters probably don’t care much who deserves more credit for the Consumer Financial Protection Bureau. But the exchange between Biden and Warren wasn’t a scrape over ideology so much as it underscored the difference between the two rivals over their approach to governing.

For Biden, the test of success is measured in votes won, colleagues persuaded, deals struck. Warren sees victory in the broader fight for support, in the groundswell among the grassroots that causes legislators to act, and to act boldly. “Understand this: It was dream big, fight hard,” she said. “People told me, ‘Go for something little. Go for something small.’”

The implication was that while Biden champions compromise, the creation of the consumer agency was an example of the “structural change” around which Warren has centered her campaign. As the newly anointed front-runner in the race, it seems more and more Democratic voters are embracing Warren’s vision.

But as Biden and Warren separate themselves from the primary field, their debate over the right kind of experience and the size and scope of the party’s ambition is likely just beginning.

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Trump’s Intelligence Chief Didn’t Make Anyone Happy

Russell Berman, The Atlantic — Fri, 27 Sep 2019 10:08:15 -0400

If President Donald Trump thought his handpicked choice to lead the nation’s intelligence community would unconditionally have his back before Congress, he discovered today he was sorely mistaken.

Joseph Maguire, the acting director of national intelligence, was the first in what Democrats hope will be a line of Trump administration officials to testify in an investigation now officially pointed toward impeachment. And while the intelligence chief did not come close to denouncing the president, he made no effort to flatter him, either. He spent more than three hours testifying before a House committee trying in every which way to distance himself both from the White House and the explosive whistleblower complaint that Democrats hauled him to Capitol Hill to discuss.

“I am not partisan, and I am not political,” Maguire said at the outset, as the former Navy vice admiral practically pleaded with lawmakers not to draw him into the scandal that prompted Speaker Nancy Pelosi to drop her long-standing opposition to pursuing Trump’s impeachment.

Maguire defended his own handling of the nine-page whistleblower complaint, which landed on his desk 10 days after he started the job in mid-August and which the House Intelligence Committee released publicly just before this morning’s hearing began. But more consequentially for the president, Maguire defended the unnamed intelligence-community official who lodged the complaint, even as he repeatedly refused to judge the credibility of the allegations that were made.

“I think the whistleblower did the right thing,” Maguire said under questioning from Representative Adam Schiff of California, the committee’s Democratic chairman. “I think he followed the law every step of the way.” That characterization stands in stark contrast to Trump’s denunciation of the whistleblower as “partisan” and “a political hack job.” Maguire said it was his job to “protect and defend” the whistleblower, whose identity he said he did not know; hours later, the president said whoever gave information to the whistleblower was “close to a spy,” and should be punished.

The complaint alleges that Trump “is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election.” It relies heavily on the phone call between Trump and Ukraine’s president, Volodymyr Zelensky, in which Trump repeatedly seeks to enlist his help in investigating actions by a potential Democratic rival for the White House, former Vice President Joe Biden. At Trump’s direction, the White House released a reconstruction of the call, and Maguire acknowledged that the complaint is “in alignment” with what those notes revealed. The complaint also alleges that senior White House officials acted immediately to “lock down” records of the call.

Democrats at the hearing immediately argued that the allegations amounted to a “betrayal” by the president of his oath of office and the nation, as well as a cover-up. They saw them as bolstering their case for an impeachment investigation. But they spent most of today’s hearing pressing Maguire on why he withheld the complaint from Congress, in contravention, they argued, of a federal whistleblower law requiring him to turn it over.

“I believe that everything in this matter is totally unprecedented,” Maguire testified in his defense. He explained that because the complaint touched on a phone call between the president and a foreign leader, he thought it was “prudent” to first seek guidance from the White House counsel and the Department of Justice’s Office of Legal Counsel as to whether the allegations would be protected by executive privilege. He also disagreed with a finding by the intelligence community’s inspector general that the complaint raised an “urgent concern,” which by law would require its prompt transmission to Congress.

Democrats harped on Maguire’s decision to go first to the White House and the Department of Justice on the grounds that there was an inherent conflict of interest given that the complaint implicated both Trump and Attorney General William Barr. Maguire said he felt he had no choice. “I am not authorized as the director of national intelligence to waive executive privilege,” he said.

Maguire denied a report in The Washington Post that he’d threatened to resign if the White House ordered him to withhold the complaint from Congress. But throughout the hearing, he did little to challenge the notion that this was a job he did not seek and, given his current predicament, did not particularly want. Maguire, 68, was running the National Counterterrorism Center when Trump asked him to serve as acting DNI after Dan Coats, a former senator from Indiana, resigned this summer. He picked him over Coats’s deputy, Sue Gordon, who left the government after Trump made clear he would not allow her to become acting director.

When Maguire was asked today whether he had discussed the whistleblower complaint with Coats, he quickly replied: “I would not have taken the job if I did.” It was not entirely clear whether he was joking. (He added that he didn’t believe Coats or Gordon were aware of the allegations when they left the government.)

Democrats repeatedly tried to get Maguire to weigh in on the substance of the complaint and to judge the president’s actions. For the most part, he held his ground. Representative Jackie Speier of California asked if he was “shocked” by what he read in the complaint. After stammering for a moment, Maguire admitted, “When I saw that, I anticipated having to sit in front of some committee sometime to discuss it.”

Again and again, he said he did not know if the allegations were true. His only job, he contended, was to pass them along to the FBI and to Congress. “I have done my responsibility,” Maguire told Schiff. “It was not swept under the rug,” he said at another point.

The closest he came to defending Trump was when he told the committee that the president did not ask him to find out who the whistleblower was. But he wouldn’t say more about his conversations with the president, even to admit that he and Trump had discussed the whistleblower complaint. “My conversations with the president, because I’m the director of national intelligence, are privileged,” Maguire said. “It would destroy my relationship with the president in intelligence matters to divulge any of my conversations with the president of the United States.”

Republicans largely tried to enlist Maguire in the president’s defense, as they questioned how the notes or transcript of a call between Trump and a foreign leader wound up in the whistleblower’s hands. One GOP member, Representative Michael Turner of Ohio, did criticize the president, saying his conversation with Zelensky was “not okay.” But he went on to dismiss the complaint as hearsay and needle Democrats for rushing to judgment.

Even if Maguire seemed to try his best to remain impartial, he could not resist a chuckle at the expense of Rudy Giuliani, the president’s lawyer who is mentioned throughout the complaint as trying to get the Ukraine government to investigate Biden and his son Hunter. Representative Mike Quigley of Illinois got Maguire to say that, yes, he is concerned about private citizens taking on the role of a quasi-ambassador without vetting or approval by the Senate. Then, when Quigley asked the intelligence director if he knew what Giuliani’s role was, Maguire laughed. “Congressman Quigley,” he replied, “my only knowledge of what Mr. Giuliani does, I have to be honest with you, I get from TV and the news media.” He added: “I’m not aware of what he does, in fact, for the president.”

Maguire also broke implicitly with Trump on the question of election interference. The president has consistently questioned or rejected the conclusion of the intelligence community that Russia interfered in the 2016 election and that its efforts continue. Maguire, however, not only endorsed that finding, he also labeled election security as the greatest national-security challenge the country faces—over the threat of a kinetic attack from North Korea, China, or another foreign foe.

He frustrated Democrats repeatedly by refusing to opine on the whistleblower’s allegations or even to acknowledge they concerned a threat of election interference. But when Representative Denny Heck of Washington State asked Maguire whether it would be okay for any president to solicit electoral help from a foreign government, the man Trump wanted as his top intelligence officer briefly let down his guard. “It is unwarranted, it is unwelcome, it is bad for the nation,” Maguire replied, “to have outside interference from any foreign power.”

It’s that impulse Democrats hope to capitalize on during their impeachment inquiry—any feeling on the part of administration officials that they have to stick up for the country, no matter what it means for the president. If they can convince more officials to break ranks, their investigation will be that much easier.

Trump has littered the senior level of his administration with “acting” officials, a designation he has said he prefers because it gives him more “flexibility.” The implication is that they are easier to control and keep close, as Trump forces them to essentially audition for a permanent job they are fulfilling only temporarily. Maguire, however, doesn’t seem to want to play along. He may have frustrated the Democrats, but by not rising to the president’s defense, he may have frustrated his boss just as much.

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The Big Names Missing From the Mueller Hearings

Russell Berman, The Atlantic — Tue, 04 Jun 2019 09:57:55 -0400

House Democrats on Monday announced a long-awaited series of hearings on the Mueller report that they hope will drive home President Donald Trump’s misdeeds to a far larger share of the American public.

Their star witness, however, will not be Robert Mueller, the recently departed special counsel and principal author of the 448-page document at the center of the proceedings. Nor will it be Attorney General William Barr, who skipped out on a House Judiciary Committee hearing last month and earned a contempt citation from the panel for withholding Mueller’s unredacted findings. Nor will it be former White House Counsel Don McGahn, who provided Mueller with some of the most damaging—and possibly incriminating—details on Trump’s actions.

In fact, the announcement from Judiciary Committee Chairman Jerrold Nadler did not list a single person mentioned in the Mueller report as a potential witness. Instead, Nadler plans to invite a figure from scandals past: John Dean, the White House counsel to former President Richard Nixon who famously called the Watergate affair “a cancer” growing close to the presidency and later testified against Nixon to Congress. The hearings will also feature “former U.S. attorneys and legal experts,” the committee said.

As congressional-hearing notices go, Monday’s announcement read like the lineup for a much-hyped music festival that tried desperately to book Beyoncé, Taylor Swift, or Ariana Grande and wound up with Hootie & the Blowfish at the top of the bill instead.

Daniel Schwarz, a spokesman for Nadler, said the Judiciary Committee had not given up on Mueller, whom lawmakers have wanted to question from the moment Barr delivered the first summary of the former special counsel’s report to Congress in March. But it is the strongest signal yet that Democrats are prepared to move on without him.

Mueller, in his first and only public statement since becoming special counsel in 2017, last week made clear his reluctance to appear in the circuslike atmosphere of a congressional hearing. “The report is my testimony,” he said, warning lawmakers that he would not “go beyond our report” in any appearance before Congress—which is exactly what members of both parties would likely spend hours of questioning trying to get him to do.

Democrats have also struck out with other high-profile potential witnesses, but for different reasons. The Trump White House has settled on a strategy of all-out war against the investigative powers of the new House majority, choosing to fight subpoenas in court rather than submit current and former officials to the glare of testimony. McGahn, for example, abided by instructions from the White House not to appear before Nadler’s committee, ignoring a congressional subpoena. And Barr formally requested that Trump invoke executive privilege over the complete Mueller report and its underlying documents.

“No one is above the law,” Nadler said in a statement accompanying Monday’s announcement. “While the White House continues to cover up and stonewall, and to prevent the American people from knowing the truth, we will continue to move forward with our investigation. These hearings will allow us to examine the findings laid out in Mueller’s report so that we can work to protect the rule of law and protect future elections through consideration of legislative and other remedies.”

The “other remedies” is a none-too-subtle reference to impeachment, a word Nadler did not mention Monday. It’s an olive branch to the growing chorus of rank-and-file Democrats—along with a lone Republican—who want the party to act more decisively against Trump. House Speaker Nancy Pelosi has been unmoved by the demands, but she, like Nadler, has kept the option in reserve. On Sunday, House Majority Whip James Clyburn, the third-ranking Democrat, said on CNN’s State of the Union that impeachment proceedings were inevitable.

These initial hearings, then, could be a precursor to impeachment—a way for, as Clyburn put it, Democrats to “educate the public” on the weighty constitutional remedy that has been put to use rarely in the nation’s history. Incidentally, those are also the words Nadler used to describe the road he would take on impeachment—if it came to it—when I interviewed him for a profile last fall. “Certainly if we were to go down that route, part of it would be to educate the American people—and members of Congress are part of the American people—as to what in our view, and what in scholars’ view is impeachment, and when you should use it, and when you shouldn’t,” Nadler told me at the time. “That would be the first thing I would hope we would do before we started.”

This approach is also consistent with Pelosi’s go-slow strategy on impeachment. The longer Democrats take to ramp up their confrontation with Trump, the closer it will get to 2020, and the more impeachment becomes a slim possibility as the opportunity to simply vote the president out of office draws closer. The calendar does not preclude impeachment, but it buys more time for the public clamor to grow, minimizing the political backlash Democrats fear.

A key to this route, however, was high-profile hearings that would capture the public’s attention. Democrats didn’t want to have to make the case for impeachment themselves—they wanted Mueller to do it for them. Without his participation, they’ve decided, the show must go on. But will America watch?

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Mueller Breaks His Silence—Without Breaking Protocol

Russell Berman, The Atlantic — Wed, 29 May 2019 16:00:00 -0400

Robert Mueller isn’t letting Congress off the hook.

The special counsel on Wednesday used his first public comments in more than two years to lay out the limits of his position—both as he pursued the investigation into Russian interference in the 2016 election and possible obstruction of justice by President Donald Trump, and in his ability to decide what should happen as a result of his 448-page report.

All told, the image and sound of the scripted, occasionally halting words of the former FBI director—previously seen only in B-roll footage and a limited sampling of recent photographs—sharpened the contrast between the rule-bound Mueller and a president forever seeking to shirk his constraints. Mueller’s statement was the careful explanation of the career bureaucrat, amounting to a recitation of the rules, regulations, and principles he chose to abide by. And it highlighted the inherent disadvantage he faced going up against a president committed to none of them.

If the written Mueller report was an invitation for Congress to act against the president, his 10-minute statement on Wednesday served as a reminder for Congress to reply. He never urged a specific remedy—impeachment or any other—but Mueller made clear that his work was done, that he had provided all he could. His work complete, he said he was resigning from the Department of Justice and returning to private life. One of the last remaining open questions—whether Congress will get access to the special counsel’s underlying evidence—will be decided by people other than him.

Mueller, reading a prepared statement from a lectern at the Department of Justice and taking no questions from reporters, explained more succinctly than he did in his exhaustive report why he did not—could not—pursue an indictment against the president. “Charging the president with a crime,” he said, citing long-standing Department of Justice policy against indicting a sitting president, “was therefore not an option we could consider.”

And he offered a warning to Democrats insisting that he testify before Congress, where they hope he’ll provide more ammunition for their argument that both Trump and Attorney General William Barr have abused the power of their office. “My report is my testimony,” Mueller declared. “I would not provide information beyond that which is already public in any appearance before Congress.”

Mueller did allow himself one bit of commentary, one small push for a debate that has focused much more on one half of his findings than the other. “I will close by reiterating the central allegation of our indictments—that there were multiple, systematic efforts to interfere in our election,” he said. “That allegation deserves the attention of every American.”

In the immediate future, however, the nation’s attention will likely remain on the question of impeachment—and whether Mueller’s cautious message on Wednesday will push any additional wary Democrats toward the side of beginning an inquiry.

If Mueller was reluctant to judge the president, Trump took the exit as one more constraint he had slipped. Less than an hour after Mueller left the stage, Trump’s lawyer and press secretary issued two more statements claiming the exoneration that Mueller pointedly refused to give. “The report was clear—there was no collusion, no conspiracy—and the Department of Justice confirmed there was no obstruction,” said Sarah Sanders, the White House press secretary. “Special Counsel Mueller also stated that Attorney General Barr acted in good faith in his handling of the report. After two years, the special counsel is moving on with his life, and everyone else should do the same.”

Mueller referred repeatedly to the Constitution as an overriding guide for his investigation, and principally as the basis for the legal opinion that a president cannot be charged with a crime while in office. “The opinion says that the Constitution requires a process other than the criminal-justice system to formally accuse a sitting president of wrongdoing,” he noted. He chose not to explicitly identify the process—impeachment—and the institution responsible for overseeing it—Congress—but his reference to the legislative branch as the proper arbiter of potential presidential crimes was unmistakable.

Democratic leaders have been reluctant to pursue impeachment, worried about a political backlash from voters and hopeful that they will remove Trump from office on their own next year. But the dynamic has shifted in recent weeks as the president has pursued a strategy of all-out defiance of congressional subpoenas, essentially daring Democrats to pull a lever they’d rather not touch. More and more rank-and-file Democrats have come out in favor of at least initiating impeachment hearings, and the first Republican, Representative Justin Amash of Michigan, joined them last week.

Mueller’s prodding for Congress to step in, subtle as it was, may push Democrats closer still. “Given that Special Counsel Mueller was unable to pursue criminal charges against the president, it falls to Congress to respond to the crimes, lies, and other wrongdoing of President Trump—and we will do so,” House Judiciary Committee Chairman Jerrold Nadler said in response to Mueller’s statement. “No one, not even the president of the United States, is above the law.” Amash, who had offered Democrats at least a hint of the bipartisanship they were seeking, was more pointed: “The ball is in our court, Congress,” he tweeted.

Mueller took many more words to make the same point. He delivered a message to Democrats that he had pursued the president as far as the rules would allow. They might want more—his personal opinions, the weight of his testimony—but he insisted that his report, all 448 pages of it, would have to be enough. They—the constitutionally designated judge and jury of the president—would have to take it from there.

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The Most Unrealistic Proposal in the Democratic Presidential Primary

Russell Berman, The Atlantic — Tue, 28 May 2019 10:22:41 -0400

The unlikeliest 2020 promise isn’t a big-spending plan like Medicare for All, the Green New Deal, or Andrew Yang’s universal basic income—it’s an anti-corruption proposal that would apply to just 535 Americans and cost taxpayers nothing.

This pipe dream is coming from the decidedly unflashy Senator Michael Bennet, a self-proclaimed pragmatist who has chided his rivals for their unrealistic visions of a progressive future. Bennet has pooh-poohed the idea of “free college” and actively opposes Medicare for All as too costly and too disruptive to the U.S. health-care system. “You can’t fix a broken Washington if you don’t level with the American people,” the Colorado Democrat told potential voters in a video announcing his candidacy earlier this month.

Yet one of Bennet’s signature proposals for repairing American democracy might, in its own way, be the most radical of all: a lifetime ban on members of Congress from becoming lobbyists after they leave office.

Good luck with that.

The idea, one of several Bennet touched on in his announcement video, is aimed at the heart of Washington’s “revolving door,” wherein lawmakers, senior government officials, and their top aides spend their career rotating between writing laws on the Hill and influencing laws on K Street. Lobbying is the single most popular career choice for retiring members of Congress, and the ranks of ex-lawmakers in the lobbying industry have soared in the past four decades. Former House Speaker John Boehner has transformed into a paid evangelist for legal weed (after opposing it in Congress), joining Newt Gingrich, Bob Dole, and Democratic ex–Senate Majority Leaders Tom Daschle and George Mitchell as former congressional leaders who took up lobbying in their golden years.

Complaints about the revolving door are not limited to former lawmakers, nor to Republicans alone. Senior members of the Obama administration also flocked to K Street and corporate America, either as lobbyists or highly paid executives at some of the nation’s most recognizable companies. The former health secretary Marilyn Tavenner became the top lobbyist for the health-insurance trade group AHIP, while the ex–Obama adviser David Plouffe went to Uber, where in 2017 he was fined $90,000 by the Chicago Board of Ethics for illegally lobbying Mayor Rahm Emanuel on behalf of the company.

That well-trodden path between Capitol Hill and K Street has become a symbol of the swamp that both President Donald Trump and Democrats have repeatedly pledged—and largely failed—to drain. Currently, members of the Senate are barred from registering as lobbyists for two years after they leave office, while the prohibition—known inside the Beltway as the “cooling-off period”—on House members is just one year. As a candidate in October 2016, Trump called for a five-year lobbying ban for former members of both chambers. Like much of the president’s “drain the swamp” agenda, the proposal went nowhere.

Trump “put zero muscle” behind his anti-corruption proposals, says Meredith McGehee, the executive director of Issue One, a bipartisan government-reform advocacy group. “It never came up anywhere, and was never talked about,” she told me. “They were just words on a paper.” His administration has also become a haven for lobbyists. An executive order Trump signed upon taking office to limit the revolving door has gone completely unenforced, advocates told me, and the president frequently hires former lobbyists for top jobs. A prime example: After Scott Pruitt resigned as the EPA administrator under scandal, he became a coal lobbyist; the man who replaced him, Andrew Wheeler, had been a coal lobbyist as well.

Sensing an opening, both Bennet and Senator Elizabeth Warren have taken Trump’s proposal a (giant) step further by calling for a lifetime lobbying ban. “Outside of Washington, the American people understand that it is neither partisan nor unreasonable to demand members of Congress, heads of government agencies, and the president of the United States not cash in on their unparalleled access to influence government policy for the highest bidder,” Warren said in an emailed statement.

But she and Bennet may find that convincing Congress to appropriate trillions of dollars for new social programs is an easier lift than persuading lawmakers to permanently cut off a lucrative source of their own retirement income. That idea goes too far even for the purest good-government advocates, who say it’s not only wildly unrealistic but possibly unconstitutional.

The last serious effort to extend the cooling-off period for members of Congress—long pegged at one year for both chambers—came in 2007 during debate over the Honest Leadership and Open Government Act, the ethics law that stemmed from the corruption scandal involving the prominent über-lobbyist Jack Abramoff, who pleaded guilty to bribing members of Congress and defrauding Native American tribes. Lawmakers had agreed to lengthen the ban for senators to two years, but a rebellion in the House nearly killed the entire bill, recalled Craig Holman of Public Citizen, the liberal group that advocates for consumer rights and government reform, among other issues. As a result, the cooling-off period for House members stayed at one year.

Just as they did in 2006, congressional Democrats ran in 2018 on an anti-corruption agenda that assailed Trump and his Republican allies in Congress for failing to keep his promise to drain the swamp. In March, the Democratic House majority passed HR1, a comprehensive government-reform bill that addresses voting rights and overhauls campaign-finance and lobbying laws. The measure is stalled in the Republican-controlled Senate, but it lays down a marker for what Democrats might do if they win full power in 2020. Among other anti-corruption provisions, HR1 would codify an executive order signed by former President Barack Obama that restricts lobbying by political appointees in the White House and Cabinet agencies once they leave office. But it is conspicuously silent on lobbying by former members of Congress: The bill does not touch the cooling-off period currently in place for the House and Senate.

“There were a lot of different proposals that were coming at the HR1 basket as we were bringing it in for a landing,” explained Representative John Sarbanes of Maryland, the lead sponsor of the Democratic bill, when I asked him about the absence of a longer lobbying ban for former members. “Lots of moving parts.”

Sarbanes cautioned that HR1 was “not the outer limit” of where the party could go on ethics reform. But he was decidedly lukewarm on the question of permanently banning lawmakers from lobbying. Sarbanes argued that broadening the definition of a lobbyist and restricting lobbyists’ ability to influence electoral campaigns were more important reforms, and could even lift the cloud hanging over former members who become lobbyists. “It might put some value in the perspective that a former member can bring, as long as you pull the money piece out of it,” he told me.

HR1 has also won endorsements from a number of government-reform organizations, including Public Citizen. To Holman, however, the absence of a provision lengthening the cooling-off period is a signal of the bill’s political viability. “Realistically, I don’t see Congress imposing a lifetime ban,” Holman told me.

When I asked the Bennet campaign to respond to the critique that it was unrealistic to expect Congress to ban its members from ever lobbying, an aide responded with a four-word reply from the senator: “That’s exactly the problem.” The aide noted that after introducing his bill every session since he arrived in Washington in 2010, Bennet finally secured the support of a Republican co-sponsor, his fellow Colorado senator, Cory Gardner. Two first-term Republican senators, Mike Braun of Indiana and Rick Scott of Florida, have also introduced legislation to permanently ban former members of Congress from lobbying.

In the unlikely event that Bennet’s bill did pass in Congress, both Holman and McGehee said that a permanent lobbying prohibition might be struck down by the courts as unconstitutional. Judges have upheld the temporary restrictions on the grounds that recently departed members and senior staffers could use their inside knowledge and relationships in Congress to unfairly influence the legislative process. The idea is that the longer lawmakers are out of office, the less valuable their knowledge and relationships become.

“Two years is too short a time,” McGehee told me, arguing that a five-year prohibition would be the best, most achievable policy. “I don’t think in any way that’s a pipe dream.” A lifetime ban, on the other hand, would permanently block someone from a specific profession. “You’re basically saying to someone, you cannot make a living this way,” McGehee said. “That’s a pretty harsh penalty.”

In her statement, Warren noted that federal law already includes a permanent ban on lobbying; the existing ban bars former government officials from lobbying the agencies they worked for on the specific issues they worked on while in office. “There’s no constitutional right to get paid to peddle influence—rightly so,” she said. Unless Congress acts, however, a court will never have to weigh the constitutionality of a lifetime lobbying ban for former legislators. “It's not really even a partisan thing, because you basically have to get Democrats and Republicans in Congress to work together to limit what former Democrats and former Republicans in Congress can do,” said a former senior Obama administration official who now works in the corporate world and no longer weighs in publicly on political debates. “There's just not that much appetite for it.”

The proposal serves as a useful shorthand for candidates like Bennet and Warren, who want to demonstrate their commitment to changing the way Washington works. But short of a fresh scandal injecting new momentum into the push, its legislative prospects are grim. “I think you’re on solid ground to say that Medicare for All would pass first,” the former official predicted with a laugh.

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The Rarely Used Congressional Power That Could Force William Barr’s Hand

Russell Berman, The Atlantic — Wed, 08 May 2019 15:44:10 -0400

Impeachment is Congress’s most famous, yet rarely exercised, power over wayward presidents and other federal officers. But as Trump-administration officials continue to defy House subpoenas related to Special Counsel Robert Mueller’s investigation, Democrats in control of the chamber could turn to an even blunter weapon in their arsenal: arrest.

Courts have recognized that the House and Senate each have the authority to enforce their orders by imprisoning those who violate them—literally. They can direct their respective sergeant at arms to arrest officials they’ve found to be in contempt and bring them to the Capitol for trial and, potentially, jail. Congress hasn’t invoked what’s known as the “power of inherent contempt” in nearly a century, but the escalating clash between two co-equal branches of government has Democrats talking about moves previously deemed unthinkable.

“Its day in the sun is coming,” Representative Jamie Raskin of Maryland told me by phone on Tuesday. Raskin, a second-term Democrat and former constitutional-law professor, sits on the House Judiciary Committee, which on Wednesday planned to debate and vote on a resolution finding Attorney General William Barr in contempt for his refusal to give Congress the full, unredacted Mueller report. As lawmakers met to consider the move, the White House carried out its threat to assert executive privilege over the document.

Once the Judiciary Committee approves the contempt resolution, as expected, it goes to the full House, where it would likely clear on a party-line vote with the backing of Speaker Nancy Pelosi, who announced on Wednesday morning that she supports holding Barr in contempt. From there, Democrats would have three options to force Barr’s hand: They could refer the matter to the U.S. attorney in Washington, D.C., who would decide whether to launch a criminal prosecution of his own boss, the attorney general. Democrats could turn to the courts to enforce the subpoena. Or they could take matters into their own hands and call their sergeant at arms. Raskin himself brought up the arrest option when I asked him how far this confrontation could go, even as he acknowledged that not many members of the House were aware of that particular congressional power, much less supported its use.

The debate over how congressional Democrats intend to defend their constitutional prerogative to oversee the executive branch extends beyond Barr; Donald Trump’s administration is challenging the House’s authority across a range of areas, from the Ways and Means Committee’s bid to get the president’s tax returns from the IRS to the Judiciary Committee’s request to hear from both Mueller and one of his key witnesses, former White House Counsel Don McGahn.

“This is not some peripheral schoolyard skirmish,” Raskin said. “This goes right to the heart of our ability to do our work as Congress of the United States.”

Still, Democrats have been reluctant to launch impeachment proceedings against Trump for fear that they would backfire politically. Would they really send the House’s sergeant at arms down Pennsylvania Avenue to the Department of Justice with instructions to haul the nation’s chief law-enforcement officer to the Capitol, in handcuffs if necessary? House Republicans made no such effort after they voted to hold then–Attorney General Eric Holder in contempt in 2012 over his refusal to turn over documents connected to the “Fast and the Furious” probe.

I spoke to Raskin about the Judiciary Committee’s confrontation with the Trump administration over subpoenas and the bubbling debate within Congress over impeachment. Our conversation has been lightly edited for length and clarity.

Russell Berman: If the House does vote to pass the resolution to hold Barr in contempt, where would it go from there?

Jamie Raskin: Well, first of all, at that point the contempt finding is complete. In other words, that goes on his permanent record, as you might say. He has been held in contempt of Congress, meaning in contemptuous or contumacious defiance of a lawful order of Congress, okay? So at that point, contempt is complete. However, we still need to enforce the contempt resolution in order to obtain compliance with the subpoena. There are different ways of doing that. There could be a criminal prosecution, but given the object of the resolution, there might be a problem getting the U.S. attorney to act forcefully and with dispatch. But we also have the power to go to court.

We also have the power—and I should say I’m speaking for myself here, because I don’t know how many people I’ve been able to convince about this—but we do have the power to exercise the so-called inherent powers of contempt of Congress. It was ruled in the 19th century, in a case called Anderson v. Dunn in 1821, that Congress has the power to enforce its own orders. Just as a court can enforce its orders, Congress can enforce its orders. And in the 19th century, Congress had the sergeant at arms arrest and detain people until they complied with lawful orders of Congress. And we would have the power to fine people who were out of compliance with the law. So that provides another avenue.

Berman: If it got to that point, do you think the House would have the attorney general arrested by the sergeant at arms?

Raskin: Well, the vast majority of the Judiciary Committee, much less the House itself, are just not aware of this process. So it’s just premature to be talking about it. But, you know, its day in the sun is coming. We will educate people about the power of the House to do it. The executive branch is acting in categorical bad-faith contempt of Congress. This is not like a dispute over one document or the timing of the arrival of a particular witness. This is the president of the United States ordering the executive branch not to comply with the lawful requests of Congress.

The Supreme Court has emphasized that Congress has the power of inquiry and investigation. This is essential to our lawmaking function. We have a responsibility to research how the current laws are working and what conditions are that might require legislative changes. We also have a specific power, the Supreme Court has emphasized, to investigate corruption, self-dealing, fraud, waste, and abuse in the executive branch of government. So, you know, this is not some peripheral schoolyard skirmish. This goes right to the heart of our ability to do our work as Congress of the United States.

Berman: From your point of view, would you personally support and advocate this move, which in modern times is unprecedented, to have the attorney general arrested by the sergeant at arms? Would you personally advocate that?

Raskin: Well, no, nobody has advocated that specifically. But I just want to make sure that we have all instruments on the table, and we should be aware that Congress has inherent powers of contempt that can relate to fines, orders, as well as arrests. But I, you know, nobody’s calling for that at this point.

Berman: Is there a risk that if the president does resist all of these attempts by the House to conduct its oversight, and if he wins in the courts, that it would actually set a new precedent for executive authority? That he could end up not only skirting oversight himself, but that, through court rulings, it could end up that the presidency itself winds up with more power?

Raskin: Well, it’s definitely been suggested by a number of people that the president has succeeded in packing the courts, including the Supreme Court, to the point that they essentially are part of the White House political operation. I hope that this is not the case.

In any event, we know that the executive branch is acting in categorical defiance of lawful orders of Congress for information. And whether or not we can get the Supreme Court to agree with us in this or that case is irrelevant to that broader judgement. We will decide, as the House of Representatives did when it drafted the third article of the Nixon articles of impeachment, whether President Trump has been acting in an unlawful way to obstruct the work of Congress.

Look, the obstructionism that was canvassed so methodically by Special Counsel Mueller in his report came leaping off the pages and right onto our doorstep and into our committee rooms. The president has been obstructing us with the same kind of vigor and zeal that he obstructed the special counsel.

Berman: Do you expect that the Judiciary Committee will follow this same process for each of the potential refusals to comply? Barr also refused to appear before the committee. Do you expect a second contempt process to begin if he continues to refuse to testify, and then would that same process also apply to McGahn and anybody else who refused to testify?

Raskin: Well, let’s broaden the question. The president essentially is trying to pull a curtain over the executive branch of government, and to systematically thwart and defy the will of Congress. The word on the street is that they are begging for an impeachment, and they think this is the proper way to get it. And I just want to say about that: If we are going to impeach the president, we are going to do it on our own schedule and at our own pace. We are not going to be pulled into it just by a series of provocations from the president.

In our last two Judiciary meetings, I counted Republicans invoking impeachment a dozen times. If they are so eager for impeachment and they think the time is right, they should go ahead and introduce impeachment articles on their own. Otherwise, they’re going to have to trust our strategic and constitutional judgments.

Berman: Lastly, there has also been the suggestion that Barr should be impeached himself. Is that a path you could see the House going down, or is the contempt path the better one?

Raskin: Well, there are certainly members calling for the impeachment of William Barr, and it is likely that he has committed high crimes and misdemeanors supporting and advancing the president’s project of obstructing Congress in doing its work. So that becomes a strategic question of what we’re going to do in order to get to the truth that is in the Mueller report and to defend our constitutional system of government. And I can’t say that any of those judgments have been made yet.

Berman: You mentioned the Supreme Court and the president’s ability to install conservative judges more broadly. Is it possible that Trump will just win this fight—that the courts might just rule in his favor?

Raskin: I find it hard to believe that the courts have been so corrupted by Donald Trump already that they would completely abandon the rule of law. But we live in a time where nothing is normal. Let’s hope for the best, be prepared for the worst, and go fight like hell for the Constitution.

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‘Dozens’ of Whistleblowers Are Secretly Cooperating With House Democrats

Russell Berman, The Atlantic — Thu, 04 Apr 2019 15:58:29 -0400

Tricia Newbold set an important mark when she became the first official currently serving in Donald Trump’s White House to take accusations of wrongdoing to Congress—and to put her name publicly behind them.

But Democrats on Capitol Hill say that beyond Newbold, a small army of whistleblowers from across the government has been working in secret with the House Oversight Committee to report alleged malfeasance inside the Trump administration. Lawmakers and aides are reluctant to discuss information they have gleaned from anonymous government tipsters in detail. But the list of whistleblowers who either currently or previously worked in the Trump administration, or who worked closely with the administration, numbers in the “dozens,” according to a senior aide from the committee now led by Democratic Representative Elijah Cummings of Maryland.

The Oversight Committee, like many committees in Congress, has a long history of working with federal whistleblowers regardless of which party is in charge. Though some come forward publicly, most provide information or leak documents anonymously, helping to lead to investigations and, sometimes, hearings. “It’s entirely proper, and it’s really the point of what the Oversight Committee does,” says former Representative Tom Davis of Virginia, a Republican who headed the panel during the mid-2000s. When he was the chairman of the committee, many whistleblowers’ reports led nowhere, he says, as they frequently came from “disgruntled employees” or others whose complaints were frivolous. But that was not always the case. Davis recalled, for example, that whistleblowers were crucial to the investigation that exposed the military’s cover-up of the 2004 friendly-fire incident that killed Army Corporal Pat Tillman, a former NFL star who died fighting in Afghanistan.

Committee veterans told me, however, that the number of whistleblowers who’ve come forward since Trump became president is far higher than the number who cooperated with the panel during previous administrations. “The biggest difference wasn’t necessarily us switching to the majority; the biggest difference was Donald Trump being elected president,” said the Democratic aide, who spoke on the condition of anonymity because of the sensitivity of the committee’s investigative work. Democrats began hearing from whistleblowers almost immediately after Trump was sworn in, the aide said, beginning with a report that then–National Security Adviser Michael Flynn had been exchanging text messages with his business partner during the inauguration.

Of the dozens of whistleblowers Democrats said they are working with, they have publicly confirmed that a handful work in the White House. All but Newbold, however, have come forward on the condition that they remain anonymous. Newbold spoke to the committee as part of its investigation of White House security clearances, and she’s not the only whistleblower involved in that matter, the panel confirmed in a memo describing her testimony. “Committee staff have spoken with other whistleblowers who corroborated Ms. Newbold’s account, but they were too afraid about the risk to their careers to come forward publicly,” the memo reads. The White House did not respond to a request for comment on this story.

Members from both parties interact privately with whistleblowers, but under a long-standing agreement within the committee, those who want to make on-the-record testimony must agree to be questioned by Democrats and Republicans alike.

Lawmakers conduct investigations and interact with whistleblowers even when they don’t have the majority. But they have less power to act on information, because they cannot, on their own, issue subpoenas or call hearings. The number of Trump-administration whistleblowers has already grown now that Democrats are in power and have signaled that they will conduct aggressive oversight of the Trump administration. The committee was receiving about three or four tips a week before the November midterm elections; that has increased to an average of five—and as many as 15—a week in the months since, according to a second committee aide who provided the data on the condition of anonymity.

“I think there are a lot of whistleblowers out there, or potential whistleblowers, who are certainly going to feel a lot more comfortable approaching us in the majority than the other side, especially in the Trump administration,” says Representative Gerry Connolly of Virginia, the chairman of the Oversight subcommittee with jurisdiction over federal whistleblower–protection laws.

That was clearly the case with Newbold, a career employee for the past 18 years in the White House personnel-security office. The Oversight Committee disclosed this week that she agreed to come forward publicly to report that senior officials had granted security clearances to 25 people after they were initially denied. Newbold told the committee in a day-long, transcribed interview last month that she had repeatedly reported her concerns to her superiors in the White House and was turning to Congress as her “last hope” for an independent, outside investigation.

Republicans on the committee have accused Cummings of running a “partisan” probe of the security-clearance process, and of cherry-picking from Newbold’s closed-door testimony, which they said was scheduled at the last minute so Republicans wouldn’t have much time to prepare.

Newbold has accused her superiors of repeatedly retaliating against her after she began raising concerns about the clearance process. In October, she filed a complaint with the Equal Employment Opportunity Commission alleging that her boss, Carl Kline, would move security files to a higher shelf that she could not reach. (Newbold has a form of dwarfism.) And in January, she was suspended without pay for two weeks soon after NBC News reported that Kline had approved a security clearance for Jared Kushner, the president’s son-in-law, after it was denied by two career security specialists. The NBC story mentioned Newbold’s complaint to the EEOC.

Legislation passed in 1970 and expanded numerous times since protects government whistleblowers from retaliation. But Democrats say the charges from Trump allies of a “deep state” conspiracy against the president within the federal government—along with reports, including one from an unnamed whistleblower, that the administration planned to purge the State Department of career civil-service officers deemed insufficiently loyal to Trump—have created a climate of fear among potential whistleblowers.

“I’ve never seen this many whistleblowers reporting waste, fraud, and abuse, and just general concern,” the senior Oversight Committee aide told me. “On the flip side of that, I’ve also never seen whistleblowers so afraid of what could happen to them if somebody finds out who they are.”

At a public committee meeting on Tuesday, Cummings defended his handling of Newbold’s testimony, which he said was taken on a Saturday on short notice at her request because she feared further retaliation at the White House if her planned deposition became public in advance. “I will protect whistleblowers. Period,” the chairman declared.

Connolly told me that Democrats have more power in the majority to protect whistleblowers and to ensure that their reports “won’t fall on barren ground.” But, in a nod to the fears that potential whistleblowers confront, he added this warning: “Nothing’s foolproof, and there’s always a risk.”

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There’s a Slim Chance the Senate Will Vote to End the Shutdown

Russell Berman, The Atlantic — Thu, 24 Jan 2019 10:12:00 -0500

Federal employees on the verge of missing their second consecutive paycheck should not get their hopes up about the pair of dueling votes to reopen the government that will take place in the Senate on Thursday.

Both proposals—one representing President Donald Trump’s proposed trade of $5.7 billion in border-wall funding for temporary protections for some undocumented immigrants, and another that would simply end the shutdown—are expected to fall short on the floor.

But the failure of one is more certain than the failure of the other: While Republican senators have rallied behind the president’s plan, they have not ruled out also voting for the rival proposal, a measure, backed by Democrats, that would reopen shuttered federal agencies for two weeks while the parties negotiate a broader agreement on border security. And thanks to House Speaker Nancy Pelosi’s refusal to allow Trump to deliver his State of the Union address next week if the government is closed, Republicans might have an added incentive to seek at least a temporary break in the impasse.

After the president wrote to Pelosi on Wednesday insisting that the annual speech go forward “on location” in the House chamber, the speaker swiftly replied that the House would not pass the required resolution allowing that to happen. By late afternoon, a frustrated Trump conceded Pelosi had “canceled” his Capitol address, and suggested he would look at an “alternative” location to hold it. “I don’t believe it’s ever happened before, and it’s always good to be part of history, but this is a very negative part of history,” the president lamented. Late Wednesday night, however, Trump relented. “This is her prerogative,” he said in a tweet, referring to Pelosi. “I will do the Address when the Shutdown is over.”

If Pelosi’s requirement is that the government be open for the State of the Union to proceed as planned, the Senate on Thursday will have its opportunity to make that happen. The votes will be the chamber’s first attempt to end the record-long shutdown.

Both measures would require a filibuster-proof 60 votes to advance, meaning that either seven Democrats would have to back Trump’s plan or 13 Republicans would have to support the alternative. Most Democrats have roundly condemned the president’s proposal, which contains what they consider “poison pill” provisions that would make it harder for refugees to seek and obtain asylum in the future. The Democratic measure, which has already passed the House, is more straightforward—a clean but short-term, continuing resolution with a sweetener of billions of dollars in disaster-relief money—and Republicans have been quieter in their opposition.

On Wednesday, I surveyed the offices of 23 Republican senators who frequently or occasionally cross party lines to see how they planned to vote. Of those that responded—about one-third—all indicated that they planned to back Trump’s proposal, but none definitively came out against the Democratic alternative. A spokeswoman for Senator Lisa Murkowski, for example, said the Alaska Republican supports the White House plan, but added, “She is planning to support anything that allows for a process for us to reopen the government as soon as possible, while addressing border security.” Representatives for Senators Johnny Isakson of Georgia and Mike Enzi of Wyoming said they were each studying the Democratic proposal.

That sampling is not an indication of momentum—none explicitly endorsed the second plan either. But it suggests that Republicans are keeping their options open, raising the possibility that once the Trump plan fails, they could vote with Democrats to temporarily end the shutdown. Republican senators have harbored thinly veiled frustration with the president for the past month, ever since his abrupt decision to oppose a spending bill they voted out of the chamber, precipitating the shutdown’s start. They welcomed Trump’s recent bid to jump-start negotiations by offering limited protections for recipients of the Obama-era Deferred Action for Childhood Arrivals program, which at least gave Republicans an offer to rally around.

Yet for the president and for his party, the political pressure to end the shutdown is only increasing. Furloughed federal employees protested inside a Senate office building and outside the locked Kentucky offices of Senate Majority Leader Mitch McConnell. The rate of absences for unpaid Transportation Security Administration agents has been increasing, and TheWashington Post reported that hundreds of IRS employees were skipping work because of financial hardship, jeopardizing the completion of on-time tax returns. Federal courts will soon run out of money, and FBI investigations are grinding to a halt.

Polls continue to show that a majority of Americans blame Trump for the shutdown, and a survey released Wednesday by the Associated Press foundthat the president’s approval rating dropped sharply over the past month, to 34 percent, its lowest level in more than a year. “What more do my Republican colleagues need to hear? The will of the American people is crystal clear: Open the government,” said Senator Chuck Schumer, the Democratic leader, in a plea to the GOP on Wednesday.

Chances are that the mounting personal toll of the shutdown and the apparent verdict of the public will not be enough to get the government open on Thursday. But the number of Republicans who vote with Democrats will be a measure of the party’s resolve as the impasse moves into its second month, as well as the first sign of how close it is ending.

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Nancy Pelosi’s Power Move on the State of the Union

Russell Berman, The Atlantic — Thu, 17 Jan 2019 11:19:35 -0500

The latest casualty of the partial government shutdown might be President Donald Trump’s State of the Union address.

House Speaker Nancy Pelosi, in a letter to the president on Wednesday, suggested that the annual speech before Congress be postponed or scrapped altogether in light of the legislative impasse that has led to the ongoing shutdown, the longest in U.S. history.

“Sadly, given the security concerns and unless government re-opens this week,” the speaker wrote, “I suggest that we work together to determine another suitable date after government has re-opened for this address or for you to consider delivering your State of the Union address in writing to the Congress on January 29th.”

Pelosi’s missive was cloaked in the politesse of a formal communication from the leader of one branch of government to another. But it was nothing less than a threat to deploy Pelosi’s authority as speaker to deny Trump the use of perhaps the country’s most powerful pulpit in the middle of a partisan standoff.

With the shutdown nearing the one-month mark and both parties dug in, it is easy to imagine Trump using the perch of the House rostrum to browbeat congressional Democrats for an hour on national TV—a longer and more visually dynamic version of the Oval Office address he delivered, to little effect, last week. Without the speech, however, he would lose the single best opportunity a president gets each year to pitch his agenda both to Congress and the public, as well as to frame the national debate entirely on his terms.

Although this year’s State of the Union is still two weeks away, Pelosi acted preemptively and effectively revoked an invitation she extended to Trump on the day she was sworn in as speaker. Noting that a State of the Union speech has never taken place during a government shutdown, she cited the possible impact of the funding lapse on security preparations by the Department of Homeland Security and the Secret Service. The State of the Union is annually designated as a “national special security event,” and as such, Pelosi wrote, requires “weeks of detailed planning with dozens of agencies working together to prepare for the safety of all participants.”

The Trump administration disputed Pelosi’s characterization of the shutdown’s impact on the State of the Union address. But the president alone doesn’t get to decide whether he’ll appear before Congress. The Constitution states that the president shall “from time to time give to the Congress information on the State of the Union.” The nation’s founding document says nothing, however, about a formal speech, or even that the presidential message be delivered every year.

Indeed, as Pelosi noted in her letter, presidents throughout the 19th century issued their State of the Union message in writing. In 1913, President Woodrow Wilson revived the practice started by George Washington, and continued by John Adams, of delivering a formal speech to Congress.

Presidents speak to Congress only by invitation and a joint resolution passed by the House and Senate. This is usually a formality, but if the 26-day shutdown continues, it won’t be this year. Weeks after Pelosi extended an invitation to Trump, Congress has yet to pass the resolution confirming the offer.

Neither the White House nor the Republican leadership in Congress responded to Pelosi’s letter in the initial hours after her office released it on Wednesday morning. But a spokesman for Senate Majority Leader Mitch McConnell noted on Twitter that although Pelosi cited the shuttered government as a reason for wanting to reschedule the speech, the shutdown had already begun by the time she invited Trump. Later in the afternoon, Homeland Security Secretary Kirstjen Nielsen contradicted Pelosi’s stated reason for wanting to reschedule the presidential address. “The Department of Homeland Security and the US Secret Service are fully prepared to support and secure the State of the Union,” she tweeted. “We thank the Service for their mission focus and dedication and for all they do each day to secure our homeland.”

Although a president has never delivered a State of the Union address while major parts of the government have been closed, the speeches have taken place in the midst of tense battles with Congress. In 1998, President Bill Clinton appeared before a Republican-led Congress in the Capitol just over a week after the revelation of his affair with Monica Lewinsky, which would lead to his impeachment by the House later that year. His State of the Union address the next year occurred while he was on trial in the Senate.

Conceivably, Trump could simply choose another venue to deliver a State of the Union address, so long as he prints out a written copy and sends it to the Capitol. “He could make it from the Oval Office if he wants,” Pelosi told reporters.

The dispute over the annual speech could be rendered moot, of course, by a swift end to the government shutdown that began last month. That, however, appears unlikely. There have been no high-level negotiations between the White House and Democratic leaders since Trump stormed out of a meeting last week with Pelosi and Senate Minority Leader Chuck Schumer.

On Wednesday, the president met with House lawmakers from the bipartisan Problem Solvers Caucus. But before the meeting, Democratic members of the group reiterated the primary demand of their party’s leadership—that Trump allow the government to reopen before any substantive negotiations over border security take place. A statement from the White House after the meeting said it was “constructive” but did not point to any notable progress. “They listened to one another and now both have a good understanding of what the other wants,” White House Press Secretary Sarah Huckabee Sanders said. “We look forward to more conversations like this.”

In the Senate, attention turned to persuading the president to relent on his demand for border-wall funding, even if only for a few weeks. A letter from a bipartisan group of senators, circulating throughout the Capitol, called on Trump to support a three-week continuing resolution to reopen the government while negotiations on a border-security bill take place, according to a draft published by Axios. The offer appeared similar to one floated by Senator Lindsey Graham of South Carolina over the weekend, which Trump rejected.

Meanwhile, the Trump administration has moved to recall thousands more furloughed federal employees to work without pay in an effort to mitigate the shutdown’s impact on the public—and, it seemed, forestall a mounting political backlash against the president. Polls released over the past several days show that Americans, by a wide margin, blame the president for a shutdown he once said he’d proudly own.

It was against this backdrop that Pelosi sent her letter on Wednesday, an effort to turn the screw ever tighter around the president and remind him of one key source of leverage she holds over him. He might have the power to keep the government closed. But she can effectively bar him from the Capitol, and deny him the best occasion he’ll have all year to make his case to the public.

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The Impact of the Government Shutdown Is About to Snowball

Russell Berman, The Atlantic — Fri, 11 Jan 2019 16:20:29 -0500

The partial government shutdown that began during the quiet of the holidays is about to become the longest in the nation’s history. And on Friday, it will start truly hitting home for hundreds of thousands of federal employees: For the first time, their scheduled paychecks will not arrive.

The missed payments will represent a turning point in the three-week standoff, inflicting a damaging financial burden on federal workers and deepening the impact on the broader economy. But it would only get worse from there if the impasse dragged on indefinitely. A shutdown of unprecedented length—one that, in President Donald Trump’s words, could last “months, or even years”—would have unprecedented adverse effects on national life, reaching corners of American society that have previously viewed the constant partisan budget fights in Washington as an abstraction.

Already, the shutdown has shuttered many national parks and museums, cut off key sources of income for government contractors, delayed payments of housing subsidies, and slowed or stopped routine public-health inspections of food and environmental hazards.

If the shutdown were to continue for weeks or months, those effects would cascade, and the outcomes would be bleak: Halted payments of food stamps could force many of the 38 million people who rely on them into even deeper poverty, while delays in housing assistance could force scores of others out of their homes. Most of the federal court system will soon run out of money, and delays in the processing of home and farm loans could extend the shutdown’s impact throughout the country. Forcing hundreds of thousands of airport personnel, federal-prison guards, and other law-enforcement officers to work without pay for weeks or even months on end would further strain the system and could lead to an exodus of civil servants to the private sector in search of paying jobs, or into the streets in protest. And the ensuing economic instability could send the stock market into another tumble.

“When you have a shutdown, things start to break down pretty rapidly after you get a couple weeks in,” said Sam Berger, a former senior Obama-administration official who helped manage the 2013 government shutdown at the Office of Management and Budget. “Big programs start to run out of money. Things that people depend on run out of money.”

For those reasons, the prospect of major parts of the federal government staying shut for too much longer is virtually inconceivable—even when both parties have dug in as stubbornly as they are now. “Come February, no one will have the political will,” Berger predicted. “I don’t think this is going to be tenable over the long term, because the impacts just grow and grow and grow.” He told me that during the 16-day impasse over the Affordable Care Act in 2013, “we never anticipated a months-long shutdown, because we looked at what will happen.”

The chances that this parade of horribles actually comes to pass remain relatively small. As Berger suggested, mounting political pressure will likely cause one side or the other to fold before the worst happens. Senate Republicans have begun to waver on Trump’s insistence on funding for a border wall, and a presidential declaration of a national emergency to build the barrier without congressional approval could shift the fight to the courts and allow the government to reopen.

Meanwhile, some of the Trump administration’s recent moves signal that it would try to blunt the shutdown’s most painful consequences—efforts that could shield some Americans from its impact but that could stretch the strictures of the Antideficiency Act, which prohibits the executive branch from spending funds without appropriations from Congress. Earlier this week, the administration announced that it would dip into visitor-entrance fees to keep many national parks open and at least partially staffed, following widely circulated images of overflowing trash cans on the National Mall and other iconic locales. The Internal Revenue Service said that it would recall furloughed employees to process tax refunds that would otherwise have been delayed. And although funding for food stamps was due to run out at the end of January, Agriculture Secretary Sonny Perdue announced that the department had found a way to cover the program through the end of February.

“We’re trying to mitigate the impact of the shutdown on everyday Americans instead of the opposite, which I’ve actually seen in the past,” Vice President Mike Pence told reporters on Monday. “And we’ll continue to do that in a manner consistent with the law.”

How much wiggle room does the administration have? Quite a bit, said Chris Lu, a former deputy secretary of labor in the Obama administration who is now a senior fellow at the University of Virginia’s Miller Center. There is general agreement that the government has a fair amount of leeway to define what are essential services that need to continue for public health and safety. And paradoxically, that threshold could lead to more of the government reopening even if the shutdown continues. Lu gave the example of routine public-safety inspections on food. If they are stopped for a week or two, the impact would be minimal. But if they’re stopped for more than a month, the administration could determine that this in and of itself constitutes a threat to public health, leading them to restart even if Congress doesn’t act.

Every federal agency comes up with a detailed shutdown plan, but each department retains some discretion in determining what shuts down and what doesn’t, who works and who stays home. “A lot of this is fungible,” Lu told me. “A lot of this is a gray area as to what’s acceptable and what’s not acceptable to use funds for.

“There’s always pots of money you can move around,” Lu added. “The question is how aggressive you want to be with that, and how much Democrats really want to check that.”

If it’s in the Trump administration’s interest to lessen the impact of the shutdown, it’s not necessarily in the interest of congressional Democrats to exacerbate it. After all, Democrats in the House have passed legislation to reopen the government—they’re on record trying to appropriate money for the administration to spend.

Perversely, Lu told me, efforts to mitigate a shutdown—both now and in previous years—tend to make them last longer. The less pain there is, the more tolerable they are—giving lawmakers and presidential administrations room to hem, haw, and delay. “If you really had a hard-and-fast rule that no appropriations means nothing can open, you would never have a shutdown at all, because the consequences would be so dire,” Lu said. “Because we’ve mitigated the worst negative impacts of a shutdown, I think we’ve hidden from the American people all the many ways that government touches their lives.

“In some ways,” he said, “that makes shutdowns easier.”

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Why Unpaid Federal Workers Don't Just Strike During a Shutdown

Russell Berman, The Atlantic — Wed, 09 Jan 2019 10:03:18 -0500

Eric Young is the president of the union that represents the approximately 30,000 employees of the Federal Bureau of Prisons who are working during the government shutdown.

Young’s members, scattered at 122 facilities located in largely rural areas across the country, aren’t being paid and don’t know when their next paycheck will come. Like the leaders of virtually every federal-employee union during the past three weeks, he has condemned the shutdown and its toll on innocent workers as “unconscionable.”

“My personal opinion,” Young told me over the phone from his office in Alabama, “is that it constitutes involuntary servitude.”

Neither Young nor any of his partners in union leadership will urge their members to do the one thing that would seem most natural for employees facing the same treatment in the private sector: If they don’t pay you, stay home.

“We can’t call or advocate for a strike,” Young said.

Since the enactment of the Taft-Hartley Act in 1947, federal employees have been legally prohibited from striking. That law was intended to prevent public-sector workers from leveraging a work stoppage that could cripple the U.S. government or major industries in negotiations for better pay, working conditions, and benefits. But it likely did not envision a scenario where the government would require its employees to work without paying them, as is the case now.

For hundreds of thousands of federal employees, the “involuntary servitude” that Young describes could continue indefinitely. President Donald Trump warned Democratic leaders last week that he could keep the government shuttered for “months or even years”—a scenario that union leaders told me they had never before contemplated. “A lot of things are possible under this president, so I think we have to start preparing,” said Randy Erwin, the president of the National Federation of Federal Employees.

Government shutdowns have only been a feature—or, more accurately, a bug—of fiscal impasses since the enactment of the modern congressional budget process in the 1970s. The current shutdown is a partial one affecting roughly 800,000 federal employees. Roughly half of them are on furlough, while the other half, whose jobs are considered essential to public health and safety, must report to work even though Congress has not appropriated the funds to pay them. This category includes the Secret Service agents who protect the president and his family, the Transportation Security Agents, pilots, and air-traffic controllers who keep the aviation system running, the corrections officers who staff federal prisons, and, yes, the Border Patrol agents who guard the southern divide with Mexico along which Trump wants to build a wall.

If they don’t show up, “they’d be considered absent without leave,” said Jacque Simon, the policy director for the American Federation of Government Employees, by far the largest union representing federal employees. “When they’re told to come to work, they are required to come to work.” An awoldesignation could lead to disciplinary action, including termination. For longtime government employees, that could put in jeopardy a federal pension they’ve spent a career accruing, union leaders said.

By and large, federal employees have been reporting to work. The TSA has acknowledged, in response to a CNN report last week, that its agents have called out sick at higher rates since the shutdown began, but the TSA spokesman Michael Bilello said that the sick calls have had a “minimal impact” on air travel or wait times. The sick calls do not, as yet, appear to be widespread. Bilello said that 4.6 percent of employees had called out sick on Monday, compared with 3.8 percent of employees on the same date in 2018. “We understand that the current lapse in funding may be causing added stress for our workforce and want to continue to express that we are grateful to the more than 51,000 officers across the country who remain focused on the mission,” he tweeted.

Faced with a potentially indefinite shutdown, the unions have turned to the courts for relief. The American Federation of Government Employees has filed a lawsuit against the Trump administration alleging that by requiring employees to work without pay, the government is in violation of the Fair Labor Standards Act, a 1938 law that mandates a minimum wage and overtime pay both to public- and private-sector workers. Another federal labor group, the National Treasury Employees Union, has filed a similar suit.

The unions are also holding rallies, highlighting the impact of the shutdown on federal workers who live paycheck to paycheck, and publicly urging Trump and congressional leaders to come to an agreement that reopens the government. That, however, is about as far as they’ll go to protest the shutdown.

Despite taking the government to court, neither union is encouraging its members to take part in any kind of work stoppage. “We encourage everyone who is being told to come to work to go to work,” Simon told me. “We are never going to advocate for something that’s illegal.”

As for reports of higher levels of sick calls by TSA agents, Simon said: “We aren’t coordinating that. We aren’t condoning that, and we don’t even really think it’s happening. We think it’s been greatly exaggerated in the press.”

Federal employees generally haven’t tested the prohibition on strikes since President Ronald Reagan famously fired more than 11,000 air-traffic controllers who refused his order to return to work during contract talks in 1981. The controllers walked out in demand of higher pay and a shorter workweek. Federal workers have never staged a mass walkout to protest the lack of pay during a shutdown. But even in that circumstance, the anti-strike law would probably hold up, said Zachary Henige, an attorney representing two federal employees in their lawsuit agains the government over the current shutdown.

The law “is going to prohibit these employees from striking,” Henegie said. “And I don’t think whether they’re being paid or not paid is going to impact that.”

“The statute doesn’t make a distinction about what they’re protesting,” he added.

A federal shutdown has never lasted more than three weeks, and Congress has always promptly approved retroactive pay for both furloughed employees and those who had to work through the impasse. “Even for shutdowns this length, they’ve been through it,” Erwin said.

But Trump’s threat to keep the government closed for “months or even years” could test the willingness of federal employees to remain on the job, especially as missed paychecks mount. “In theory,” Erwin said, “you’d have to say, How long can I keep working with no paycheck? It’s kind of unrealistic. At some point, there would have to be some kind of change to the status quo if this really is an unprecedented shutdown.

“I don’t know when that would be at this point,” he said.

The burden on corrections officers is particularly acute, Young said, because they are, along with TSA agents, among the lowest-paid federal employees still required to work. Federal prisons had been suffering from staffing shortages and budget cuts even before the shutdown. Many employees, he said, learned on Christmas Eve that their leave plans had been cancelled.

“You’re going to have a lot of people starting to call in because they don’t have gas money,” Young warned. “It’s going to be a real big problem in the near future if not right now.”

“Basically, they’re between a rock and a hard stone.”

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An Awkward Beginning to Democratic Control of the House

Russell Berman, The Atlantic — Thu, 03 Jan 2019 16:10:28 -0500

This was not how Democrats expected, much less hoped, to begin their new House majority.

After the blue wave crested, ever so slowly, in November, the start of the 116th Congress on Thursday loomed as a moment of potential drama, a Constitutionally-mandated deadline for the party to decide whether to make a generational change in leadership. In the weeks after the election, Nancy Pelosi scrambled to put down an intra-party rebellion that threatened to turn her elevation to a second stint as speaker into a nail-biting vote and a showcase of Democratic division. She succeeded in impressive fashion, securing support vote-by-vote and demonstrating the formidable skills that have kept her atop the Democratic caucus for 16 years.

Once that leadership challenge fizzled, a new, more triumphant vision for the opening of Congress emerged: Pelosi would become the first person in more than 60 years to reclaim the speaker’s gavel, and then Democrats would promptly set about passing bills to deliver on their campaign promises and place their first checks on President Trump’s power. Their initial volleys would include legislation to enact so-called “democracy reforms” to address campaign-finance loopholes, and measures to expand voting rights and limit gerrymandering. Bills to beef up protections for people with preexisting conditions in the Affordable Care Act and tackle high prescription drug prices would follow soon after. Yes, these proposals would be dead-on-arrival in the Republican-controlled Senate, but the goal was to send an immediate message to their constituents and reset a legislative debate that had swung far to the right for the past two years.

Instead, neither of those scenarios will occur.

Pelosi won the speakership in a floor vote early Thursday afternoon, having punctured a group of about two dozen Democratic opponents by cutting one-off deals with some members and agreeing to procedural reforms to secure the support of another bloc. She secured 220 votes, narrowly clearing the majority she needed after 15 House Democrats either stated the names of other candidates or voted present.

Democrats inside the Capitol appeared to be jubilant as they gathered on the House floor with their families for the formal swearing-in and speaker vote. But they won’t be able to fully celebrate their first House majority in eight years, nor will they be able to swiftly act on their agenda. They’re taking over in the midst of a partial government shutdown—the first time in the 42-year history of the modern budget process that a transfer of power in Congress has taken place while major parts of the federal bureaucracy are shuttered due to a lapse in funding.

Within hours of gaveling in the new Congress, House Democrats plan to pass two bills aimed at reopening the government, including one that’s identical to legislation the Senate unanimously approved in December to extend funding through February 8. The other measure includes bipartisan appropriations bills for six federal departments and a full-year extension of current funding for the Department of Homeland Security. Neither will include additional funding for Trump’s border wall, as he’s demanded. The bills represent an opening salvo both at Trump and at the Republicans who run the Senate, a bid to showcase Democrats’ new leverage while pressuring the GOP to end a shutdown the president had said he’d be proud to own.

“We’re asking the president to open up government. We are giving him a Republican path to do that,” Pelosi told reporters on Wednesday outside the White House, after a meeting with Trump that leaders in both parties conceded had yielded little progress.

Indeed, as the new Congress begins, there is no end in sight to the shutdown. Senate Majority Leader Mitch McConnell said he would ignore the bills House Democrats plan to pass—as well as any legislation that does not have the explicit support of the president. McConnell acknowledged after the White House meeting that parts of the government could remain closed for weeks longer.

The stalemate won’t stop Democrats from moving on the rest of their agenda. Pelosi’s office announced an event for Friday to unveil the party’s democracy-reform legislation, with votes next week. In her first speech to the House on Thursday, Pelosi plans to call for action to address income inequality and the climate crisis, and to reinvest in public education and workforce development. “Working together, we will redeem the promise of the American dream for every family, advancing progress for every community,” she plans to say, according to excerpts of her prepared remarks provided by her office.

But the shutdown could sap much of the spotlight from the Democrats’ policy agenda, muddling their opportunity to drive the national debate, at least on their own terms, during their first weeks in power. It’s a reminder that this Democratic House majority will be fundamentally different than the one Pelosi led a decade ago. This freshman class may be infused with the fresh energy of young, diverse progressives and a record number of women. But it will share power with a president who does not cede center stage easily.

Orchestrating this shutdown may not help Trump broaden his appeal at the midpoint of his term. But if nothing else, it will deny Pelosi, and the new House majority she leads, their full moment of triumph.

Elaine Godfrey contributed reporting.

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Democrats Quickly Confront the Limits of Their Power to Stop Trump

Russell Berman, The Atlantic — Fri, 09 Nov 2018 10:23:29 -0500

House Democrats barely had a chance to celebrate the new majority they won on Tuesday before Donald Trump confronted them with their first test. Hours after warning Democrats of retaliation if they harassed him with congressional investigations, the president ousted Attorney General Jeff Sessions and replaced him with a loyalist who had criticized the probe that has placed Trump in legal jeopardy.

And so, a day after voters elected them to serve as a check on the Republican president, Democrats responded swiftly by marshaling the full force of their power: They fired off a few strongly worded letters.

Specifically, Democrats insisted that Republicans hold emergency hearings on Sessions’s firing, and they wrote to the White House demanding that officials there preserve all records having to do with Trump’s decision to replace him on an acting basis with the departed attorney general’s chief of staff, Matthew Whitaker. Their fear is that the shakeup is a prelude to a move by the president to end or severely curtail Special Counsel Robert Mueller’s investigation—from which Sessions had recused himself—into whether the Trump campaign colluded with the Russians during the 2016 election and whether the president himself obstructed justice by trying to shut down the FBI’s initial inquiry. Trump has railed against the probe as a “witch hunt” and pointedly refused to pledge that he would not shut it down. “I could fire everybody right now,” he told reporters on Wednesday.

Democrats quickly called for Whitaker to follow his old boss’s lead and recuse himself from overseeing the Mueller probe—a step Whitaker reportedly has no intention of taking. “It’s basically a constitutional crime scene, and we want to try to rope it off with yellow tape as quickly as possible,” Representative Jamie Raskin of Maryland, a constitutional scholar who serves on both the House judiciary and oversight committees, told me in a phone interview on Thursday.

Yet writing letters and making requests is about all the Democrats can do right now. As a practical matter, they won’t actually hold the House majority until January. At that point, they could back up their demands with the authority to subpoena records and testimony from officials at the White House or the Department of Justice. But even then, it’s unclear whether Democrats would be able to force the president’s hand or ensure that Mueller’s investigation—if it doesn’t conclude in the next two months—could proceed unimpeded.

Raskin told me that lawmakers are actively looking into whether Trump violated the Constitution by appointing someone to serve as acting attorney general who has not been confirmed to a high-ranking post by the Senate. “You can’t appoint people to be principal officers of the United States without Senate action,” he said, using the phrase in the Constitution that refers to what are now called Cabinet members. “That’s the question anyway.” In an op-ed published in The New York Times on Thursday, Neal Katyal, a former acting solicitor general in the Obama administration, and George Conway III, the husband of Trump adviser Kellyanne Conway, argued that the president’s appointment of Whitaker was unconstitutional.

Once Democrats assume power in the House, Raskin said, they could vote to initiate a lawsuit challenging actions taken by Whitaker on the grounds that his appointment was unconstitutional. House Republicans used a similar legal tactic against former President Barack Obama to argue that he exceeded his power in the implementation of the Affordable Care Act and when he unilaterally chose to grant protections from deportation to undocumented immigrants.

Whether such a lawsuit would go anywhere is another question. Tara Leigh Grove, a professor at the William & Mary Law School, has argued that institutions like the House of Representatives do not have standing to sue the president over claims of constitutional violations. But, she said in an interview, there is a vigorous ongoing debate in the legal community over this question. “It’s a really tricky area because there's very little Supreme Court precedent,” Grove told me on Thursday.

In bringing cases against the Obama administration, lawyers for the Republican-controlled House argued that one or both chambers of Congress could sue the executive branch on the grounds that actions that exceeded presidential authority infringed on powers reserved for the legislature in the Constitution. But, Grove wrote in her paper, it is individuals who are directly affected, not institutions like Congress, who are offered the right to sue when constitutional violations occur.

Nor are Democrats particularly confident they could win a legal battle. “The first line of defense is always going to be in Congress itself,” Raskin said. “Nobody is looking to the courts for salvation here, especially when [Republicans have] been packing the judiciary from the Supreme Court on down.”

Come January, Democrats could also try to shield Mueller using legislation. On Thursday afternoon, House Minority Leader Nancy Pelosi convened a conference call of Democrats to discuss how they might respond. In a statement a day earlier, she renewed her call for including language protecting the special counsel’s investigation as part of a spending bill Congress must pass in the lame-duck session this fall. The Senate Judiciary Committee adopted such a measure earlier this year, but it hasn’t come up for a full vote in either chamber. If she becomes speaker again in January, Pelosi could bring the bill up for a vote, but it would need a two-thirds majority in both the House and the GOP-controlled Senate to overcome a possible Trump veto.

So far, Pelosi has not made inclusion of the measure—or cooperation by Trump in congressional investigations—a condition for Democratic votes to prevent a government shutdown under the GOP’s watch. For the moment, Democrats acknowledge, their options are limited. “We’re hopeful that the president will honor our congressional authority to do oversight,” a senior Democratic aide with knowledge of the party’s deliberations, who spoke on the condition of anonymity to describe the leadership’s thinking, told me on Thursday. “We’re operating on that hope right now.”

Judging by Trump’s posture at his post-election news conference on Wednesday, that hope may be wishful thinking. He suggested he would refuse to turn over his tax returns even if House Democrats subpoenaed them in an effort to find out whether he had foreign income that could constitute a conflict of interest in his dealings as president with U.S. adversaries like Russia. And he threatened Democrats bent on using their new power to investigate him with retaliatory investigations by his Republican allies in the Senate. “They can play that game, but we can play it better,” Trump warned.

For the remainder of the year, Democrats will be where they were for the last two years—in the minority and reliant on Republicans to stand their ground against the president’s excesses. Senators Susan Collins of Maine, Ben Sasse of Nebraska, and Jeff Flake of Arizona all issued statements of support for the Mueller investigation on Wednesday, and Senate Majority Leader Mitch McConnell told a local station in Kentucky that he didn’t see “any chance” that Trump would halt Mueller’s probe before it could be completed on its own. But Republicans in the House have thus far ignored the Democratic requests for hearings when Congress returns next week.

The back-and-forth over Sessions and Whitaker is sure to be the first of many skirmishes between Trump and the newly christened Democratic majority in the House. They have vowed to hold the president accountable, and to use whatever power they have to ensure he follows the rule of law. At the same time, the party leadership appears to be in no hurry to escalate the confrontation into what some of Trump’s fiercest critics see as an inevitable climax: impeachment. Pelosi has repeatedly downplayed the possibility, and the incoming chairman of the House Judiciary Committee, Representative Jerrold Nadler, set a high bar for its use when I interviewed him this past summer.

The Democrats’ preference is to move deliberately—to hold hearings before issuing subpoenas once they get the gavel in January, and to wait for Mueller to issue a report before determining what action, if any, to take against the president. But the ever-impatient Trump, it seems, is eager to confront the new foil of a Democratic House majority. And by ousting Sessions and installing Whitaker now, he’s making moves while the Democrats are still powerless to try and stop him.

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The Short List to Replace Nikki Haley

Russell Berman, The Atlantic — Wed, 10 Oct 2018 10:09:42 -0400

Nikki Haley’s upcoming departure from the United Nations opens up the most prominent diplomatic posting other than secretary of state, and a position that presidents have historically used to showcase rising stars or reward elder statesmen.

President Donald Trump on Tuesday told reporters he has known that Haley planned to leave his administration for “probably six months” and that he would name her replacement in the coming weeks. The names that quickly emerged following the surprise announcement included his former deputy national-security adviser, Dina Powell; the recently confirmed ambassador to Germany, Richard Grenell; and a wild-card pick: Trump’s eldest daughter, Ivanka.

“We have many people that are very, very much interested in doing it,” Trump said.

Haley has been a rarity at the senior level of the Trump administration: a powerful political appointee who drew praise from both parties and managed to navigate the tumult of the president’s first two years without being embroiled in its many scandals. Among those lamenting her departure on Tuesday were both Senate Majority Leader Mitch McConnell and the top Democrat on the Foreign Relations Committee, Senator Robert Menendez of New Jersey, who said he was “deeply concerned about the leadership vacuum she leaves and the national-security impact” of her exit.

“She was a stabilizing force,” said Lanhee Chen, a fellow at the Hoover Institution who served as a chief policy adviser for Mitt Romney’s presidential campaign in 2012. “She’s a very underestimated talent still. A lot of people don’t recognize how tough and how skillful she can be.”

Haley “was able to pick her spots,” Chen said, and occasionally veered away from Trump’s message, particularly on Russia and Vladimir Putin, without incurring the president’s wrath. But with Secretary of State Mike Pompeo and National-Security Adviser John Bolton assuming a more prominent role in foreign-policy debates than their predecessors did, Haley’s replacement may be more constrained.

“It’s likely the next UN-ambassador job will have less leeway than she did,” said Jon Alterman, a senior vice president at the Center for Strategic and International Studies.

Previous UN ambassadors have included diplomats and politicians who used the post as a springboard to higher office, like George H. W. Bush, Daniel Patrick Moynihan, Madeleine Albright, Susan Rice, and Bolton. Others, like the former Democratic presidential nominee Adlai Stevenson in the 1960s and former Senator John Danforth during the George W. Bush administration, have taken the job at the end of their careers in public life.

Here’s a look at the early possible contenders for the UN job, which requires confirmation by the Senate:

Dina Powell

Powell came to the Trump administration from Goldman Sachs and served as both a top economic adviser to the president and, more formally, as a deputy national-security adviser. Along with Gary Cohn, she was part of a group of less ideological advisers who arrived at the White House with close ties to Wall Street. Members of that group were seen as allies of Ivanka Trump and her husband, Jared Kushner, and were alternately heralded and dismissed by Steve Bannon as moderating forces. Powell did have government experience, however, having worked in the White House and the State Department during the George W. Bush administration.

“She is certainly a person I would consider. She is under consideration,” Trump told reporters outside the White House on Tuesday afternoon.

Richard Grenell

A favorite of conservatives for his brash style, Grenell served as the spokesman for the U.S. mission to the UN for the entirety of the George W. Bush administration. Trump nominated him in September 2017 to serve as the ambassador to Germany, but the Senate didn’t confirm him until April; in opposing him, Democrats cited his partisan jabs at Democratic women. He is now the highest-ranking openly gay member of any Republican administration. Within an hour of Haley’s resignation, he won the endorsement of the conservative commentator Hugh Hewitt, who had pushed aggressively for his confirmation as the envoy to Germany and called him “the obvious choice” for UN ambassador. But Grenell’s nomination would spark a more protracted fight in the Senate than Powell’s would.

Brian Hook

A veteran diplomat who has served in a staff role at the UN, Hook is one of the few top advisers to former Secretary of State Rex Tillerson who stayed in a senior role under Pompeo. He was named a special envoy to Iran in August, and Alterman mentioned him as a possible contender. “Despite being perceived as a Tillerson person, he’s managed to establish his bona fides as a person who advances the president’s agenda,” Alterman told me.

Ivanka Trump

The first daughter and senior presidential adviser was the subject of immediate speculation on Tuesday morning—after all, the UN gig would allow her and Kushner to move back to New York, as they’ve reportedly wanted to do. But the president seemed to pop that trial balloon even as he said his daughter would be “dynamite” at the UN. “I would be accused of nepotism even though I’m not sure there’s anyone more competent in the world,” Trump told reporters. And late in the day, Ivanka Trump ruled herself out. “It is an honor to serve in the White House alongside so many great colleagues and I know that the president will nominate a formidable replacement for Ambassador Haley,” she tweeted. “That replacement will not be me.”

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What John McCain’s Death Means for Republican Control of the Senate

Russell Berman — Tue, 28 Aug 2018 11:27:10 -0400

John McCain’s death will deprive the Senate of one of its longest-serving members, its leading military hawk and champion of interventionist U.S. foreign policy, and a Republican who regularly sought—and often struck—significant accords with Democrats.

But in the short term, the loss of the Arizona senator and elder statesman is likely to bolster the GOP’s majority in the chamber, as well as its party unity.

McCain had not voted on the floor since December as he underwent treatment for brain cancer in Arizona—an absence that reduced the already narrow Republican advantage of 51–49 to a single vote. Governor Doug Ducey, a Republican seeking reelection this fall, will name McCain’s successor, who will serve until a special election is held in 2020 to fill out the remainder of his term. McCain had won a sixth term in 2016 that goes until 2022.

Ducey has said little about who he might pick, and his office said over the weekend that the governor would wait until after McCain is buried on Sunday to announce his selection. But he is required by Arizona law to pick a Republican, and that fact alone should make it easier for Senate Majority Leader Mitch McConnell to push through the confirmation of President Donald Trump’s Supreme Court nominee, Brett Kavanaugh, and other conservative jurists and presidential nominees this fall.

“I think he'll take his time, and he’ll make a conservative Republican choice,” said Chuck Coughlin, a longtime GOP consultant in Arizona who got his start in politics working for McCain’s first Senate campaign in 1986.

Potential contenders for the appointment include Ducey’s chief of staff, Kirk Adams; Karrin Taylor Robson, a member of the state Board of Regents; Eileen Klein, whom the governor appointed last year to serve as state treasurer; the businesswoman Barbara Barrett; and two former congressmen, John Shadegg and Matt Salmon.

All are likely to vote more conservatively than McCain, who occasionally broke with Republican leaders over the years and famously helped torpedo the party’s effort to repeal the Affordable Care Act in 2017.

The wild card in the mix is McCain’s widow, Cindy McCain, whose appointment to replace her husband has been pushed behind the scenes by the late senator’s loyalists. Ducey and his wife went to visit John McCain at his Sedona ranch in May, but it is not known whether they discussed who might replace him in the Senate. (The governor’s spokesman did not return a request for comment on Monday.)

Coughlin told me he did not expect Ducey to pick Cindy McCain unless the ailing McCain had specifically asked him to. “If it was spoken, I think he would honor it,” he said. Rick Davis, McCain’s former campaign manager who is serving as a spokesman for the family, would not address a possible appointment for Cindy McCain during a briefing with reporters Monday in Arizona. Asked who McCain might have wanted to replace him, Davis said the senator likely would have picked “a Hispanic woman” if he had the opportunity to endorse a successor in retirement.

Ducey will name McCain’s replacement during a busy election season in Arizona. Primary elections are on Tuesday. The governor himself is on the ballot (with an endorsement from Trump), but the more closely watched contest is the race to replace Senator Jeff Flake, the Trump critic who decided to retire after a single term rather than align himself more closely with the president during a competitive primary. Vying to fill his seat on the Republican side are Representative Martha McSally, the establishment favorite; Kelli Ward, the Tea Party conservative who tried to oust McCain in 2016; and Sheriff Joe Arpaio, the immigration hard-liner who last year received a presidential pardon from Trump for a criminal conviction for contempt of court.

Earlier in the year, McSally was seen as a top contender to secure the governor’s appointment to McCain’s seat. But she’s now favored to win the GOP primary on Tuesday and face Democratic Representative Kyrsten Sinema in a toss-up race that could determine the Senate majority after November.

McCain’s allies have expressed hope that Ducey would pick someone in the late senator’s mold—a conservative but independent voice unafraid of standing up to Trump. Flake told reporters he preferred “senators whose minds haven’t been captured”—a biting reference to Trump’s infamous disparagement of McCain’s Vietnam War record in 2015.

But as in states across the nation, the GOP in Arizona has become more Trump’s party than McCain’s, a fact that was underscored by Flake’s decision to quit rather than face a likely primary defeat. With Ward and Arpaio hugging the president tightly, McSally has been forced to embrace Trump, too, and veer to the right after voting as a moderate during her first years in Congress.

In one fantasy scenario floated by McCain-friendly Republican operatives on Twitter, Flake would resign his seat so that Ducey could appoint him to fill McCain’s, giving him another two years in the Senate before he had to face voters again. When I asked Coughlin about the likelihood of that happening, he laughed. “An ice cube in hell comes to mind,” he replied.

Ducey “is very risk averse,” the veteran Arizona operative told me, which means that the next Republican senator is likely to be more friendly to the president than either McCain or Flake. “I’ve got a lot of people saying, ‘Well, who’s going to be the criticizer of Trump?’” Coughlin told me. “Nobody’s going to do that. That’s not going to be the next person.”

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Trump’s Untested Authority to Revoke Security Clearances

Russell Berman, The Atlantic — Fri, 24 Aug 2018 11:52:11 -0400

There is little dispute that President Donald Trump has the basic authority to revoke security clearances for current and former federal officials, as he did last week in the case of former CIA Director John Brennan and has threatened to do for several others who have criticized him.

The rules for security clearances are governed by executive order, not law, and the president is the head of the executive branch.

But how far does that power extend? Are there any limits to the president’s ability to restrict a person’s access to classified information for any reason he chooses?

The answer is unclear, say national-security lawyers and experts on secrecy laws, and it might take a lawsuit by Brennan to settle the question once and for all. “It has never been tested in court,” said Jeffrey Smith, a former general counsel for the CIA and a longtime national-security lawyer. “It’s not clear that the president is acting legally.”

Trump revoked Brennan’s clearance last week, citing in a statement his “erratic conduct and behavior.” Brennan, who served as a top counterterrorism adviser and then CIA director under former President Barack Obama, has been one of the most vociferous critics of Trump in the tight-knit community of former senior intelligence and national-security officials. But in a subsequent interview, the president suggested that Brennan’s involvement in the intelligence assessment that led to the federal investigation into whether Trump’s campaign colluded with the Russians played into his decision.

The president is also considering revoking the clearances of other top national-security officials who served Obama and who have been critical of him, including General Michael Hayden, General James Clapper, former FBI Director James Comey, former Deputy Attorney General Sally Yates, and former Nation-Security Adviser Susan Rice. One official on Trump’s list of potential targets is Bruce Ohr, who is currently serving in the criminal division of the Justice Department. Ohr has been the subject of conspiracy theories on the right owing to the employment of his wife as a contractor for Fusion GPS, the research firm that helped compile the dossier containing explosive but unverified reports about Trump’s activities in Russia several years ago.

Trump’s actions and threats have alarmed former high-ranking government officials in both parties, who see them as capricious attempts to silence the president’s critics. “We all agree that the president’s action regarding John Brennan and the threats of similar action against other former officials has nothing to do with who should and should not hold security clearances—and everything to do with an attempt to stifle free speech,” wrote more than a dozen such officials in an open letter last week.

Traditionally, decisions to suspend or revoke security clearances are handled at the agency level, far below the president and other senior White House officials. Under a process dictated by a 1995 executive order signed by President Bill Clinton, people who have their clearances suspended or revoked are entitled to a written explanation and an opportunity to appeal the decision. Trump’s unilateral decision to revoke Brennan’s appears to have entirely short-circuited that process.

“To my knowledge, it’s entirely unprecedented,” said Steven Aftergood, the director of the Project on Government Secrecy for the Federation of American Scientists. “Presidents do not get involved in security-clearance decisions. It’s way below their pay grade, so to speak.”

Neither Aftergood nor Smith could recall a president ever personally revoking a security clearance as Trump did. For the closest parallel, Smith had to go back more than a half century, to when the physicist J. Robert Oppenheimer lost his security clearance in 1954 after acknowledging associations with the Communist Party a decade earlier. Oppenheimer’s case, Smith said, was a “politically rigged” response to his opposition to U.S. nuclear programs at the time, including the development of the H-bomb.

“It’s now regarded as a low point of the McCarthy era,” he said.

Yet even Oppenheimer received a semblance of due process before losing his clearance. Whether Brennan will have an opportunity to meaningfully appeal Trump’s decision is unclear.

Because the appeals process stays within the executive branch, his chances for success would appear to be nil. “There’s no one in the executive branch who is a higher authority than the president,” Aftergood said. “It’s not clear to whom the decision would be appealed.”

Brennan’s other option—one that he says he is considering—is to take the president to court and seek an injunction while he presses his case on the grounds that Trump infringed on his First Amendment right to free speech. “I am going to do whatever I can personally to try to prevent these abuses in the future,” Brennan said Sunday on Meet the Press, “and if it means going to court, I will, I will do that.” Nick Shapiro, a spokesman for the former CIA director, told me he had not made a decision as to whether to sue.

Hayden, who served as the director of the National-Security Agency and then the CIA in the George W. Bush administration, said he and Brennan have heard from lawyers who offered to bring a case challenging the president’s power. (Hayden has not yet had his clearance revoked.)

“Was this so abnormal, so out of the normal turn of events, so absent of process, that it was an illicit use of what was, and is, an inarguable presidential authority?” Hayden told me, summarizing what a lawsuit would seek to answer.

Trump and his lawyer, former New York City Mayor Rudy Giuliani, have tried to goad Brennan into filing a lawsuit, and the president has acknowledged that he was elevating Brennan in part because he relished a fight with him.

But some national-security lawyers want Brennan to sue too, even if his chances of victory are slim. “I think the case law is really clear from a practical, realistic standpoint that Brennan would not be able to make any substantive progress in a lawsuit,” said Mark Zaid, a national-security lawyer who has experience representing whistle-blowers and federal officials who have had their clearances suspended or revoked. He cited a 1988 Supreme Court case in which the justices confirmed that the executive branch has broad authority to deny someone a security clearance on national-security grounds.

But, as Smith wrote last week in The New York Times, that case was decided on a procedural basis, not on the First Amendment grounds on which Brennan would presumably base a lawsuit. And Zaid said he would eagerly represent Brennan in such a case, no matter how much of a long shot it was. “When it comes to the national-security arena, many times where we bring a case, we’re not bringing a case with an expectation of a win,” he told me. “In fact, we expect to lose, quite frankly, a majority of the time.”

“But,” Zaid continued, “as long as we’re not bringing a frivolous case, we can bring that case with the hope that we can raise the issue that is at play.”

The goal of a lawsuit would be to get the 1988 decision overturned, but there are some lawyers who worry that if Brennan were to bring a case and lose, it would further empower Trump and future presidents to weaponize the granting and revocation of security clearances.

Smith said the onus was on Congress to pass a law clarifying and codifying the process for handling clearances, and there is some movement in the Senate to do just that. Democratic Senator Mark Warner of Virginia has introduced an amendment to a pending defense-appropriations bill that would bar federal funds from being spent on revoking clearances unless the process outlined in the 1995 executive order is strictly followed. In other words, it would block Trump from stripping clearances without first giving current and former officials the benefit of due process. On Tuesday, Senator Jeff Flake of Arizona, one of Trump’s most outspoken GOP critics, said he would co-sponsor Warner’s proposal.

Zaid and Smith each mentioned one other possibility: The CIA, which holds Brennan’s clearance, could stand up to Trump and either refuse to revoke his clearance or insist that he receive due process before doing so. In the final line of Trump’s statement last week, the president said he was directing staff at the National-Security Council to “make the necessary arrangements with the appropriate agencies to implement this determination.” The language suggests that the revocation did not occur by fiat but would have to be done bureaucratically.

More than a week after Trump’s statement, Brennan has received no written or verbal communication from the CIA about the status of his clearance, raising the question whether, as a technical matter, it has been revoked at all. Asked whether Brennan’s security clearance had formally been revoked, a CIA spokeswoman replied only: “The CIA does not comment on individual security clearances.”

While a decision to strip the clearance of a current federal official such as Ohr could be tantamount to termination, the impact from a practical standpoint for former officials would be limited. Without a security clearance, Brennan would be unable to fully consult with his successors, visit the CIA unescorted, or participate in meetings either in the public or private sector in which classified information is discussed. Trump and his allies have accused him and other critics of trying to “monetize” their clearances by acting as paid television commentators. Others have suggested that Brennan’s employment opportunities could be limited because top jobs with defense contractors and other Beltway landing spots require clearances.

But Aftergood said those concerns were overstated. “It’s not their access to information. It’s their access to people and their name recognition,” he said. “Brennan’s career as a TV commentator is unlikely to be curtailed as a result of this episode. It may even be helped.”

Hayden acknowledged that the personal injury of losing a clearance would not be cause for Brennan to sue. “If he were to do it,” he told me, “it would be for the higher principle involved.”

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How Some Immigrant Families Are Avoiding Separation

Russell Berman, The Atlantic — Fri, 22 Jun 2018 10:00:32 -0400

MCALLEN, Tex.—Angel Bonilla spent eight days in an immigrant-detention facility with his five-month-old daughter, Selene Alanis, after trekking for nearly a month through Mexico from his home in Honduras. Like so many others, he was caught by the Border Patrol crossing the Rio Grande in a raft. Right now, they’re in McAllen. Soon, they’ll be on their way to Dallas, where Bonilla will stay with friends while awaiting a court hearing that could result in his deportation back to Honduras.

In McAllen these days, Bonilla counts as a lucky one. He was not separated from his infant daughter, nor did the federal government charge him with the crime of illegal entry into the United States. When he shows up at court next month, he may receive asylum and be allowed to stay.

Bonilla, 43, was one of several dozen immigrants who arrived at the Catholic Charities Humanitarian Respite Center on Wednesday afternoon. The shelter is a way station of sorts for the roughly 75 to 100 undocumented immigrants who manage to slip through the Trump administration’s new “zero tolerance” policy on a daily basis. After releasing them from the cavernous Border Patrol Processing Center in McAllen, ice deposits these immigrants at the nearby bus station, where Catholic Charities volunteers escort them in vans to the respite center.

They are nearly all families who have been allowed to stay in the U.S. at least temporarily and proceed to points north to await deportation hearings. They arrive at the shelter usually tired and hungry, carrying plastic bags with their belongings and tan folders that contain their paperwork. Unlike Bonilla and his daughter, many of the families at the respite center were separated during their detention before being reunited upon their release. That they make it out of detention at all is evidence that, despite the Trump administration’s stated intent to prosecute and deport all illegal border crossers, gaps in the system remain.

“We speculate that one of the reasons we’re still receiving people is because they don’t have the capacity to hold them,” said Brenda Riojas, a spokeswoman for the respite center who has spent much of the last week corralling the crush of national media eager for a glimpse inside one of the only immigrant shelters that grants regular access to the press.

Capacity is clearly becoming a major challenge to the administration’s zero-tolerance border policy. Last week, McClatchy reported that the government was looking to build a series of “tent cities” around Texas to house children separated from their families. On Thursday, The Washington Post reported that thousands of unaccompanied migrant children could be temporarily housed in military bases. And in his executive order ending family separations, Trump directed the Department of Defense to provide “any existing facilities available for the housing and care of alien families, and shall construct such facilities if necessary and consistent with law.”

Days before Trump signed the order, the Border Patrol received instructions not to separate children under the age of 12 because the Department of Health and Human Services, which runs the shelters for unaccompanied minors, had no more room to house them, a Border Patrol agent told me on Tuesday. Customs and Border Protection declined to comment on the policy. An HHS official, speaking on the condition of anonymity in order to talk freely, said space was not the issue. “We have not been in a position where we have run out of space at any of our shelters,” the official said.

The Post reported Thursday that the Trump administration planned to temporarily stop prosecuting adults with children altogether until they could find more space to detain families.

The respite center is the work of Sister Norma Pimentel, who for the last 15 years has been the executive director of Catholic Charities of the Rio Grande Valley. She first opened the shelter at the nearby Sacred Heart Catholic Church in 2014, during the surge of unaccompanied Central American children across the border. They ran out of room there and are renting space at a storefront a few blocks away. It’s about the size of a modest daycare center, and the organization is hoping to raise $3 million for a permanent home in McAllen.

Amid the tumult at the border, Pimentel has emerged as both a religious leader in McAllen and perhaps the city’s most prominent advocate for the hundreds of undocumented immigrants that pass through each day. When I spoke to her on Wednesday, Trump had signed his executive order on family separations just a few minutes earlier, and she was reading through the news on her phone.

Her reaction was measured.

“It’s a step in the right direction,” Pimentel told me. “I think stopping the pain of children is definitely something good. I hope that he continues moving in that direction. The whole zero-tolerance policy is not helpful. It’s really a process for immigration that is more hurting than helping.”

Trump administration officials and Border Patrol agents paint a more complicated picture of how immigrants and asylum seekers arrive in the country. The new policy is designed to deter Central Americans from coming north through Mexico, where they usually have to pay or work their way up toward the border. Drug cartels closely manage crossings over the Rio Grande, they say, coaching immigrants to surrender willingly and instructing them on what to say to seek asylum in the U.S. Trump alluded to this practice—and the strains his policy was placing on federal resources—in a tweet on Thursday morning. “We shouldn’t be hiring judges by the thousands,” he wrote, “as our ridiculous immigration laws demand, we should be changing our laws, building the Wall, hire Border Agents and Ice and not let people come into our country based on the legal phrase they are told to say as their password.”

Pimental takes a more compassionate view, and the purpose of her respite center is just that—to provide respite. Immigrants typically only spend a few hours there, occasionally staying overnight, before they board buses that will take them to friends or family members elsewhere in the country. Volunteers give them a meal and a shower, and they help them prepare for the next step of their journey.

After an arduous trip north followed by days in confinement, the immigrants often arrive bewildered, Riojas said. She told me of one woman who showed her the paperwork she was carrying and asked her what she had signed. “It broke my heart when I saw she had signed her own deportation release,” Riojas said.

When they leave, the immigrants have white pieces of paper stapled to their tan folder with the following message in large black letters: “Please help me. I do not speak English. What bus do I need to take? Thank you for your help.”

When each new batch of immigrants arrives, the volunteers greet them with a boisterous “Bienvenido!”

“Many times this is the first place that’s actually welcomed them,” Riojas said.

Inside the center, there’s a play area for children and large mats where people lay down to rest. Over the last few days, a child psychiatrist from Los Angeles, Amy Cohen, has been treating the children for trauma they experienced either in the detention facility—which is often referred to as “Ursula,” or simply “the freezer”—or while they were separated from their families, in addition to providing basic medical care.

“You can see it in their faces,” Pimentel said of the children that arrive. “They’re withdrawn. There’s a sense of trauma that they’ve experienced with the separation.”

While Pimentel was pleased to see Trump’s executive order on family separation, she said the alternative of keeping immigrant families together in detention facilities was only marginally better. “Of course they’re still together, but you see the child and the mother in distress,” she said. “Because they’re not just there for one day, or one week, or one month. They’re there for a long time.”

Pimentel has called for the Trump administration to renew and expand a pilot program that began under the Obama administration, in which undocumented immigrants were allowed to travel but were assigned case managers who ensured they showed up to court hearings. The program had a nearly perfect record of immigrants showing up, but the Trump administration ended it last year.

“It’s less expensive than having a detention center,” Pimentel said.

For immigrants like Angel Bonilla, arrival at the respite center brought, if not exactly happiness, at least relief. When he spoke to a few reporters on Wednesday, his daughter bounced and gurgled in his arms. “I left because there was no future for me over there,” Bonilla said of his home in Honduras, explaining that he was separated from the child’s mother and was better able to care for her.

Bonilla said he saw another man who was separated from his child in the detention facility and that he knew that the same thing could happen to him. “I’ve always had faith in God,” he said. “I heard that when I was detained that I might be separated from my child, but my faith was keeping me going forward.”

It’ll be up to an immigration judge to decide whether Bonilla can stay in the U.S. But for now, he’s lucky to have made it this far—into and soon out of McAllen, with his small family intact.

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Republican Leaders Confront an Immigration Revolt on Two Sides

Russell Berman, The Atlantic — Fri, 18 May 2018 15:55:47 -0400

A deepening rupture within the House Republican ranks over immigration policy has claimed another casualty: the farm bill, a far-reaching priority of Speaker Paul Ryan that would impose work requirements on recipients of food stamps.

Conservatives in the House Freedom Caucus joined in an unlikely alliance with Republican moderates and the entire Democratic caucus on Friday to sink the legislation, which covers everything from agricultural subsidies to school lunches to the Supplemental Nutrition Assistance Program, commonly known as food stamps. Despite a flurry of last-minute negotiations with GOP leaders, members of the Freedom Caucus made good on their threat to block a bill they supported on the merits as part of an unrelated fight over immigration.

To head off an attempt by Republican moderates to force votes on bipartisan immigration bills—a formal petition drive that’s only a handful of GOP signatures away from succeeding—the conservatives had demanded a firm commitment from the leadership for a vote on their preferred immigration proposal. But when a deal didn’t materialize on Thursday night, they voted down the farm bill.

“This is all the more disappointing because we offered the vote these members were looking for, but they still chose to take the bill down,” said Doug Andres, a spokesman for the speaker.

The impact of the conservative revolt on farm policy is likely to be limited; the bill that failed on a 198-213 vote Friday was already too conservative for the closely divided Senate and unlikely to become law. Yet it was a priority for Ryan, the retiring House speaker who has described its changes to food stamps and other anti-poverty programs as one of the last remaining unfulfilled pieces of his legislative legacy following last year’s passage of a $1.5 trillion tax cut. “This is a critical pillar of our Better Way agenda that we talked about, that we campaigned on, that we believe in,” Ryan told reporters this week. “It’s a priority for this unified government.”

The bill’s failure, however, could have immediate implications for House action on immigration. A senior House Republican, Representative Patrick McHenry of North Carolina, predicted to reporters on Friday that additional rank-and-file GOP lawmakers would soon sign on to a discharge petition to force votes on a series of competing immigration bills. The proposals would address the so-called Dreamers who are now in legal limbo after President Trump moved to end Obama-era protections shielding them from deportation.

Twenty House Republicans have already endorsed the unusually aggressive parliamentary maneuver, and as few as five more could achieve the 218-vote threshold—a majority of the House—needed to trigger a full floor debate if all Democrats sign on. Another rush of moderates onto the discharge petition “is exactly what I feared if the farm bill went down,” McHenry told NBC News. (While most Democrats have signed the petition, it’s possible that a few might not, meaning more Republicans would be needed.)

Both the Freedom Caucus and the House GOP leadership have been trying to defeat the discharge petition in recent days. Ryan pleaded with Republican lawmakers for more time to develop a consensus immigration bill that Trump might sign. The man who hopes to succeed the retiring speaker, Majority Leader Kevin McCarthy, warned the party that an election-year debate on proposals that offer a path to citizenship for undocumented immigrants would depress the conservative base in November.

Yet the Freedom Caucus opposed the measure for a different reason: For months, its members have been pushing for a vote on conservative legislation drafted by Judiciary Committee Chairman Bob Goodlatte of Virginia and endorsed by Trump that would grant only limited and temporary legal status to Dreamers while funding the president’s Southern border wall and reducing the future flow of legal immigrants. That bill currently doesn’t have the votes to pass the House, and Ryan tried to assure conservatives that he would work to bring up a revised version in June after passage of the farm bill.

Assurances from a lame-duck speaker for future action on immigration went over no better with conservatives than they did with the moderates demanding an open debate on DACA. On Friday morning, 30 Republicans took out their frustration by tanking the farm bill, embarrassing a party leadership team that suddenly faces a rebellion on two fronts.

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