From the abstract for Mark A. Pollack’s Trump’s Dilemma: Explaining the President’s War on His Own Executive Branch (Feb. 2019):
One of the most striking characteristics of the Trump administration has been the frequency and vehemence with which the President has sought to undermine the expertise, operational capacity, credibility, and legitimacy of his own federal departments and agencies. In some cases, such as the Environmental Protection Agency and the Department of State, Trump sought to attack the civil service through massive cuts in staff and budget, silencing of scientific experts, and a depletion of morale that drove career professionals out of government service. In other cases, such as the US intelligence agencies, the Department of Justice, and the Federal Bureau of Investigation, the President engaged in direct public attacks on the credibility and legitimacy of government agencies and their leaders. The Governor’s Dilemma framework allows us to explain why, and how, an American President could devote so much of his energy to undermining the competence of his intermediaries. “Trump’s Dilemma” derives from the fact that the President-Elect came to office with views so far outside mainstream traditions of American public policy that he feared that executive departments and agencies – the so-called “Deep State” – would resist his dramatic policy shifts, or even directly threaten his position as President by revealing damaging information or prosecuting the President or his advisors for violations of federal law. In the face of this dramatical goal divergence, together with the perceived failure of traditional principal-agent controls, Trump responded by moving aggressively to undermine the competence of many of his own departments and agencies.
On February 15, 2019, the President declared a “national emergency” for the purpose of diverting appropriated funds from previously designated uses to build a wall along the southern border. We are aware of no emergency that remotely justifies such a step. — Joint Declaration of Former United States Government Officials.
Fifty-eight former senior national security officials, both Democrats and Republicans, issued a statement saying “there is no factual basis” to support President Donald Trump’s declaration of a national emergency on the US southern border. Read the Joint Declaration.
Yesterday, President Trump issued an executive order directing U.S. agencies to prioritize keeping the U.S. ahead in the development and deployment of artificial intelligence because “[c]ontinued American leadership in AI is of paramount importance to maintaining the economic and national security of the United States and to shaping the global evolution of AI in a manner consistent with our Nation’s values, policies, and priorities.” Trump did not, however, allocate specific sums of money, but told aides to tally up what it will cost to maintain the lead, and to budget for it. Read the executive order here.
The New York Times reported on Monday that Cliff Sims, author of “Team of Vipers,” is “suing the president in his official capacity, alleging that he used his campaign organization as a ‘cutout’ to improperly seek retribution against former employees and keep them from invoking their First Amendment rights.” Sims’ lawsuit comes after the Trump campaign filed an arbitration claim against the White House aide turned author. The campaign is claiming that Sims violated a non-disclosure agreement, but Sims is reportedly not entirely sure he signed an NDA at all. Read the complaint here.
A White House source has leaked nearly every day of President Trump’s private schedule for the past three months. Since Nov. 7, the day after the midterm elections, Trump has spent around 297 hours in Executive Time, according to the 51 private schedules obtained by Axios. For those same schedules, Trump has had about 77 hours scheduled for meetings.
Under the National Emergencies Act the president has complete discretion to issue an emergency declaration—but he must specify in the declaration which powers he intends to use, issue public updates if he decides to invoke additional powers, and report to Congress on the government’s emergency-related expenditures every six months. The state of emergency expires after a year unless the president renews it, and the Senate and the House must meet every six months while the emergency is in effect “to consider a vote” on termination.
At the moment President Donald Trump threatens to bypass Congress and secure funding for a wall along the border with Mexico by declaring a national emergency. With that in mind, here are three national emergency backgrounders:
On Lawfare, Margaret Taylor presents an overview of congressional requests for executive branch information and executive privilege assertions in response here.
The 2019 State of the Union Address is scheduled to be given by Donald Trump on Tuesday, January 29, 2019. According to History, Evolution, and Practices of the President’s State of the Union Address: Frequently Asked Questions (R44770, Jan 9, 2019) “the State of the Union address has evolved considerably. The President’s State of the Union address was known as the President’s Annual Message to Congress until well into the 20th century. Presidents George Washington and John Adams delivered their messages to Congress in person, but President Thomas Jefferson abandoned the practice as “monarchical” and time consuming, sending written messages instead. This precedent was followed until President Woodrow Wilson personally appeared before Congress in 1913. President Franklin Roosevelt adopted Wilson’s practice of personal delivery, and it has since become a contemporary tradition. With the advent of radio (1923), television (1947), and live webcast (2002) coverage of the address, it has gained greater importance by providing a nationwide platform for the President.”
On Wednesday, President Trump informed Speaker Pelosi that he was accepting the Speaker’s Jan. 3 invitation to address the nation on January 29th as to the State of the Union. [Trump letter here]. Soon thereafter Speaker Pelosi responded in writing. The Speaker wrote “I am writing to inform you that the House of Representatives will not consider a concurrent resolution authorizing the President’s State of the Union address in the House Chamber until government has opened.” [Pelosi letter here]
H/T Immigration Law Prof Blog for calling attention to the BBC’s seven charts and maps that try to explain where we are with the wall and what the situation is like at the US-Mexico border.
Voices from the Field (Jan. 2019), published by the FBI Agents Association, provides illustrations of how the government shutdown is affecting FBI work and identifies the risks that may emerge as it continues. “FBIAA is releasing ‘Voices from the Field’ to ensure that Congress, the Administration, and the public are aware of the real and daily challenges faced by FBI Agents and the risks to national security posed by a prolonged shutdown.”
From the blurb for Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law (Oxford UP, Jan. 15, 2019) by Andrew Coan:
The first special prosecutor was appointed by President Ulysses S. Grant in 1875, to investigate a bribery scandal involving his close friends and associates. Ever since, presidents of both parties have appointed special prosecutors and empowered them to operate with unusual independence. Also called special counsels and independent counsels, such appointments became a standard method for neutralizing political scandals and demonstrating the President’s commitment to the rule of law. Special counsel Robert Mueller is the latest example.
In Prosecuting the President, Andrew Coan offers a highly engaging look at the long, mostly forgotten history of special prosecutors in American politics. For more than a century, special prosecutors have struck fear into the hearts of Presidents, who have the power to fire them at any time. How could this be, Coan asks? And how could the nation entrust such a high responsibility to such subordinate officials? With vivid storytelling and historical examples, Coan demonstrates that special prosecutors can do much to protect the rule of law under the right circumstances.
Many have been thwarted by the formidable challenges of investigating a sitting President and his close associates; a few have abused the powers entrusted to them. But at their best, special prosecutors function as catalysts of democracy, channeling an unfocused popular will to safeguard the rule of law. By raising the visibility of high-level misconduct, they enable the American people to hold the President accountable. Yet, if a President thinks he can fire a special prosecutor without incurring serious political damage, he has the power to do so. Ultimately, Coan concludes, only the American people can decide whether the President is above the law.
In Presidential Profiteering: Trump’s Conflicts Got Worse in Year Two, Citizens for Responsibility and Ethics (CREW) estimates that President Trump had more than 1,400 conflicts of interests during his first two years in office with more than 900 interactions between the Trump administration and the Trump Organization last year.
A federal judge in New York has ruled against the Trump administration’s decision to add a citizenship question to the 2020 census. U.S. District Judge Jesse Furman ordered the administration to stop its plans to include the controversial question on forms for the upcoming national head count “without curing the legal defects” the judge identified in his opinion released on Tuesday. Read the opinion here.
From Pew Research: “Figuring out which of the government’s data streams will continue to flow and which have been stoppered is complicated, not least because some agencies were fully funded before last month’s budget negotiations reached a stalemate, and thus have been able to keep operating. Here’s a look at what data are and are not available during the shutdown, from what we’ve been able to find out via agency release schedules and planning documents, third-party calendars, and our own reporting.”
H/T AALL eBriefing on the Impact of the Partial Federal Government Shutdown
In Barr memo suggests: To understand the Trump administration, read Hobbes, The Hill suggests that the Barr memo should be read in conjunction with the 2009 Minnesota Law Review article in which then-Judge Brett Kavanaugh argued that, because of the extreme demands of their position, presidents “should be excused from some of the burdens of ordinary citizenship while serving in office.” Read the June 8th Barr memo here.
Attorney General nominee William Barr said that, if confirmed, he would let special counsel Robert Mueller finish his investigation into Russian meddling in the 2016 presidential election and believes the results should be made public. Read his prepared Senate testimony here.
From the introduction of The Special Counsel Investigation After the Attorney General’s Resignation (LSB10237, Jan. 2, 2019):
Recent Department of Justice (DOJ) leadership changes have raised questions about their impact on the special counsel investigation into Russian interference with the 2016 presidential election and related matters. Who will oversee the investigation? How do personnel changes affect the investigation? What are Congress’s possible roles in this matter? Before his resignation, former Attorney General Jeff Sessions had recused himself from the inquiry with Deputy Attorney General Rod Rosenstein serving as Acting Attorney General for the investigation With President Trump’s designation of Matthew G. Whitaker as Acting Attorney General pending Senate consideration of his nominee for Attorney General, supervision of the special counsel investigation may change in the coming months, possibly impacting ongoing litigation regarding the special counsel’s authority. This Sidebar examines how DOJ leadership changes may interplay with the special counsel investigation.
From the introduction to Statutory Inspectors General in the Federal Government: A Primer (R45450, Jan. 3, 2019):
Statutory IGs—established by law rather than administrative directive—are intended to be independent, nonpartisan officials who aim to prevent and detect waste, fraud, and abuse in the federal government. To execute their missions, IGs lead offices of inspector general (OIGs) that conduct various reviews of agency programs and operations—including audits, investigations, inspections, and evaluations—and provide findings and recommendations to improve them. IGs possess several authorities to carry out their respective missions, such as the ability to independently hire staff, access relevant agency records and information, and report findings and recommendations directly to Congress.
President Trump’s pick for attorney general, William Barr, sent the Justice Department an unsolicited memo earlier this year questioning the appropriateness of an obstruction probe special counsel Robert Mueller is said to be conducting of certain Trump actions in the White House. The nearly 19-page memo suggested that, while there are certainly examples of obstructive conduct that could be investigated — destroying or altering evidence, suborning perjury, inducing witnesses to change testimony — President Trump, as far as Barr knew, wasn’t being “accused of engaging in any wrongful act of evidence impairment.” The memo argued that Mueller was pushing an “unprecedented expansion of obstruction law” so that it reaches actions President Trump took that were within the “discretion vested in him by the Constitution.” Read the Barr memo here.