Comey Firing, Intel Leak and More

For several days I’ve been mulling over what I might say about this presidential action – the firing the FBI director. Although when I started this blog last November I did not think about hirings and firings as part of what I would review, now it seems obvious that this type of presidential action can be even more consequential than the other official acts such as executive orders, memoranda, or proclamations.

With this president, it is going to be important to pay some attention to nominations, hirings and firings. His consistent obeisance to autocratic governance demands close scrutiny of everything he does.

Needless to say, the firing of the FBI director has received voluminous media coverage. And, it will continue to be a central story for some time to come as part of the Russian hacking of the election investigations. What more is there to say than what is already being said? Maybe calling the firing of Comey a clear signal that autocratic rule is a real and present danger is not a completely original statement, but I do not think enough journalists are connecting the dots yet.

One of the best writers on authoritarianism I follow, Masha Gessen, has written another excellent article entitled The Autocrat’s Language. It is well worth reading for a better understanding of what we are encountering in this presidency.

I would also like to see more serious treatment of the total unfitness of this man to serve in any capacity of government. For some reason, the media are reluctant – too much so, in my opinion – to delve into the mental health issues. One reason seems to be they feel like they have to follow the ethics rules of the mental health profession (not diagnosing a person who is not a patient) or the “Goldwater Rule”. That is an utterly bogus argument. Journalists do not have to be professionals in another discipline to write about it. Even if more journalists would write about the psychologists and psychiatrists who have publicly declared POTUS 45 to be a malignant narcissist or otherwise mentally ill, it would help. It is important for more of the general public and especially more members of Congress to be better informed on the grave dangers we now face because of a mentally ill man in office.

I’ve written some earlier about this here, but I have kept a now three-week old article about mental health professionals’ comments at a Yale conference in my Pocket list so when I got back to writing about this topic I would have it available as a reference. It confirms my own observations from following election coverage last year and myriad journalists, writers, etc. since. This man is mentally incapable of any semblance of normal behavior.

Just yesterday a different speculation surfaced again. It is not the first time I have seen concern about POTUS 45 having advancing stages of Alzheimer’s disease, but maybe with this speculation we will finally see more journalists beginning to delve into the mental health angle.

The recent blurting out by POTUS 45 of some “code-word” intelligence to the Russians in the Oval Office is a prime example of an unhealthy mind, whatever the illness, that is a serious danger to the nation and in fact to civilization. [Ed. note: It looks like I may need to add another category of presidential actions for monitoring – unilaterally declassifying classified information.]

POTUS 45 should never have been nominated, let alone elected. It is imperative that we as citizens continually contact our senators and representatives to urge their action to initiate proceedings for impeachment. Given that Republicans hold the power positions right now, they are the ones we need to keep reminding as forcefully as we are able that they are responsible to the nation as a whole not just their constituents or “base”. Nothing short of the survival of this democratic republic is at stake. We must not wait for the 2018 election to “sort things out”.

Attack on Syrian Air Base

The official report to Congress of the military action in Syria, as required by law when a president takes unilateral military action, is finally available for public view. In it the president cites the War Powers Resolution (Public Law 93-148) as his authority for taking this action.

After reading the resolution cited, I do not believe this action – bombing property in a sovereign nation not currently at war with the United States – is covered. The three tests for a president to take action are: 1) after declaration of war, 2) specific statutory authorization, or 3) a national emergency created by attack on the United States, its territories or possessions, or its armed forces. I do not believe any of these apply in this case.

While the use of poison gas is never justifiable, this military action response is, in my view, not constitutional and also may violate international law. It certainly violates the U. N. Charter.

An early review of the legality of this action written by Marty Lederman on his blog dated April 6, 2017 (and posted just a couple of hours after the incident itself) is a useful analysis of the legalities in this instance. The nuances discussed in his post are quite interesting, as he cites other colleagues and their points of view, including Harold Koh, who believes there is now a “customary exception” to the U. N. Charter provision for humanitarian reasons.

At this point, I am not persuaded the military actions in Syria ordered by POTUS 45 are legal. If they are acceptable, we are in grave danger for yet another war to erupt.

Official memorandum title: A Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate

Presidential Memorandum dated April 8, 2017

New Office of Innovation

I find the executive order creating a new Office of American Innovation to be a smoke screen allowing for access to the president by his cronies through a new official channel. Ironically, the promise to reduce the size of government is ignored by adding yet another office to the already bloated bureaucracy with this action.

The first thing to understand is this new office is cover for giving his son-in-law, Jared Kushner, full access to the power of the presidency. The title “Senior Advisor to the President” skirts the laws requiring cabinet officers and other key positions to be reviewed by the Senate via the “advise and consent” provision. Nepotism is now fully operational with no apparent will by the Republican party to even raise an eyebrow.

I do not expect anything of significance to be available for the public to see, review, or comment on as a result of the work of this office. If anything, it will only produce closely held ideas on how to dismantle the government or seriously damage its effectiveness, that we will only see or become aware of after the fact. Talk about a shadow government – this creates a shadow presidency.

This looks a lot to me like POTUS 45 does not like or want the actual job of the president and is seeking ways to delegate all the “hard stuff” so he only has to do the schmoozing and golfing.

Official Title: Presidential Memorandum on The White House Office of American Innovation

Executive Order posted March 27, 2017.

Guessed Wrong

A Federal judge in Hawaii has proven me wrong.

In my review of the updated immigration executive order (aka “travel ban”), I guessed the revised order would pass legal muster. Last night (March 15, 2017) Judge Derrick K. Watson, of the Federal District Court in Honolulu, blocked implementation of two key parts (Sections 2 and 6) of the order nation wide. Subsequently, another judge (Judge Theodore D. Chuang, of the Maryland District) issued a similar ruling.

How could I be so wrong? The simple (desperately trying not to be defensive) answer is I am not a lawyer and it is now even more clear I don’t know what I’m talking about when it comes to legal issues. Somehow, I don’t think that will keep me from expressing my own opinions in the future, however. [grin]

[Ed. note: A savvy reader might take the previous paragraph as a less than subtle “Reader Beware” warning.]

Following this case I have learned an important and fascinating lesson about the law and how it is interpreted. Previously, I did not fully understand how judges could use more than the official text of an executive order (or law for that matter) to determine whether or not it is constitutional. Obviously, Judge Watson used many other comments, documents, etc. by the president and his surrogates to conclude the primary purpose of the order was to discriminate against a particular religion. In hindsight, I can now see that I completely missed this aspect of the rulings on the original “travel ban” order. This time around, the concept of including other documents in determining intent is much more obvious.

It is actually very good to know that extended context matters with respect to interpreting the law.

Since both of the judges issued temporary restraining orders not final orders, the legal battles over the “travel band” executive order are far from over. I’ll be following them every step of the way.

For anyone interested in the details, here is the full text of the Watson ruling as published by the New York Times. Fair warning: it is lengthy.

Anything But Quiet

This is day six since the last posting of any presidential action on the White House website. In some respects, it was inevitable the orders, memoranda, etc. were going to appear less frequently, but this is a precipitous drop for this president. Could it be the president is otherwise occupied (distracted)?

I don’t intend to write about every sordid detail of this administrations’ bungling activities, so will simply mention the firing of Michael Flynn, now former National Security Advisor, and today’s news of the nominee for Secretary of Labor, Andrew Puzder, withdrawing his name from consideration under fire from an increasing number of Republicans, as examples of the incompetence, corruption, and floundering of this administration. These are just two very recent examples of the chaos that has ensued. Today’s Non Sequitur comic by Wiley Miller seems particularly appropriate. Funny, but not funny.

Because the past few weeks have been such a disaster and it promises to get worse not better, I’ve decided to expand the topics of focus for this blog, at least for a while. In addition to writing about presidential executive actions (and in some cases consequences of them such as court cases) and a few of my own comments/observations/opinions, I intend to follow two threads of media attention that appear to be growing public concerns, or at least increasing in news coverage by many media outlets. One is the mental health or mental competence of the president. The other is the numerous calls for accountability of the president or calls for outright impeachment. Neither of these are new. In fact, both have been present in the press at least since the election, but there does seem to be greater frequency of stories being written or produced on these two topics.

While at this point much of this is speculation, ultimately either situation could lead to removal from office. The Constitution does allow for removal for incompetence, presumably including mental incompetence. The Constitution also has two Emoluments clauses that could be used to impeach the president.

In a future post, I will address some of what I have read and am following regarding the president’s mental health. It is an active topic with a number of mental health professionals taking public positions in spite of the long followed “Goldwater Rule” that basically prohibits such professionals from diagnosing anyone, particularly a public figure, without actually interviewing them personally.

Today, on the emoluments issue, I will point to an interesting article by Judd Legum of Think Progress on how POTUS 45 can be held accountable for violating the Constitution without the help of the Republican Congress that is currently a major road block. The gist of the article is a report on potential legal actions that could be taken by a state’s Attorney General. What the article points out is that public official has a much better case for proving “standing” as required by law than a private individual or corporation would. Legum also suggests the state of New York might be the ideal place for this to get done. Washington, D. C. might also be a likely success location.

I do not expect the Congress to do anything about this president’s myriad conflicts of interest anytime soon, so will be watching to see if any Attorney General decides to act on behalf of the people.

 

Executive Order: Enhancing Public Safety in the Interior of the United States

Stated in the guise of public safety, this is in fact an executive order aimed at immigration law enforcement, especially expediting deportation of illegal aliens. It appears to be an attempt to push enforcement of immigration law beyond any normal interpretation, limited only by the phrase “..to the fullest extent of the law..” (meaning limits by other laws, as well as immigration laws), which may well be the only way to keep this order from being an ominous, fear-producing unilateral act.

For example, along with various cited sections of immigration law that  identify those who should be deported, the following are listed as additional targets for deportation.

…removable aliens who:

(a)  Have been convicted of any criminal offense;

(b)  Have been charged with any criminal offense, where such charge has not been resolved;

(c)  Have committed acts that constitute a chargeable criminal offense;

(d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e)  Have abused any program related to receipt of public benefits;

(f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or

(g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

I find most of those to be far beyond what would normally be considered acceptable law. For example, to treat as guilty those who are merely charged, or more ominously by some zealous law enforcement official to be determined to have committed acts that could be chargeable criminal offense, whether or not a prosecutor has determined a reasonable amount of evidence to prosecute, is in my view significant overreach of law enforcement. This executive order would give individual immigration officers the power determine if an individual poses a risk without review by anyone – a recipe for disaster and rampant abuse.

The attempt to revoke Federal funding for so called “sanctuaries” is also very likely unconstitutional and would almost certainly be tested the first time this order is invoked to do that.

There is one interesting provision I had not seen reported in various news accounts of this action. It includes this: “…to take all appropriate action to hire 10,000 additional immigration officers…”. The focus intended appears to be enforcement rather than processing of status.

Although there are so many parts of this that are alarming, from a rule of law and legal rights point of view, I will cite just one more.

Sec. 14.  Privacy Act.  Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.

It is difficult to believe many Americans would find elimination of rights of privacy as being acceptable for anyone.

This executive order is the first one I have seen that is, in my view, clearly an abuse of the authority of the office. Our best hope is that those charged with implementation are extremely careful to follow all existing law to effectively nullify many of the provisions here and not use this order as license to attempt to overreach those laws until caught and called to account for it.

Signed and posted January 25, 2017

Statement by the President on Signing the National Defense Authorization Act for Fiscal Year 2017

Bill and Statement signed December 23, 2016

Obviously, I have not been monitoring Presidential actions for very long, but this is the first time I have encountered a significant difference of opinion between the President and Congress on a bill signing. The Statement addresses several sections in the bill the President has concerns about including some constitutional issues, especially related to the separation of powers.

Parts of the bill have to do with cyber-security and the management of those efforts. I will quote the most interesting sentence by the President with regard to those parts of the bill:

“Although I appreciate the Congress’s interest in strengthening our Nation’s cyber capabilities and ensuring that the NSA and CYBERCOM are best positioned to confront the array of cyber threats we face, I do not support these provisions as drafted:  the Congress should leave decisions about the establishment of combatant commands to the executive branch and should not place unnecessary and bureaucratic administrative burdens and conditions on ending the dual-hat arrangement at a time when the speed and nature of cyber threats requires agility in making decisions about how best to organize and manage the Nation’s cyber capabilities.”

Rather than attempt to summarize this statement, I am going to simply list some of the issues the President addresses.

  • Changes the bill imposes on the Defense Department disregarding advice of the leaders of the department
  • Failure again to authorize funding to close the Guantanamo Bay facility
  • Unnecessary restrictions on transfer of detainees
  • Several items that raise constitutional concerns

I will quote the last section of the statement so you can get a more detailed sense of what some of the President’s constitutional concerns are in this bill.

“Several other provisions in the bill also raise constitutional concerns.

First, section 507 of the bill would authorize certain cabinet officials to “drop from the rolls” military officers without my approval.  The Constitution does not allow Congress to authorize other members of the executive branch to remove presidentially appointed officers, so I will direct my cabinet members to construe the statute as permitting them to remove the commission of a military officer only if the officer accepts their decision or I approve the removal.

Second, section 553 of the bill would establish a commission, composed primarily of members appointed by the Congress, in the executive branch.  Because the commission contains legislative branch appointees, it cannot be located in the executive branch consistent with the separation of powers.  My Administration will therefore treat the commission as an independent entity, separate from the executive branch.

Finally, section 1263(d) purports to require me to determine whether a foreign person has committed a sanctionable human rights violation when I receive a request to do so from certain members of Congress.  Consistent with the constitutional separation of powers, which limit the Congress’s ability to dictate how the executive branch executes the law, I will maintain my discretion to decline to act on such requests when appropriate.”

In my opinion, this is an important and significant signing statement. It clearly states the President’s concerns with the bill, sometimes in forceful language. We all should be reminded that President Obama is a constitutional scholar and that gives unusual weight to his arguments. It is well worth reading the statement in its entirety, so I encourage you to do so. Follow this link to see the full statement.