If Pre-President Trump Does Not Know the Limits, What Will Post-President Trump do?

So, Trump (or at least his most trusted advisor) felt it OK to act as a President, and go around his own intelligence agencies to create a secret channel to an adversary, what will he do after being President?

Set up his own private channel?

Continue to leak secrets from our allies (no, post presidents do not have the declassification power.)

Alienate allies regardless of cost?

Use his reputation to increase the value of licensing his name?

“Take this plane to Moscow?”

Have taxpayers continue to finance his buildings, his travel, and his security?

Undercut his successor has he has tried to do his predecessor?

Bottom line.  There has to be a strategy to keep him under tight control.

 

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Thoughts On Intent in Government Enactments

It seems to me that most f the discussion about the role of intent in analyzing the legality of government actions has been pretty fuzzy.  So let me offer some thoughts. Of course, this issue has come up most dramatically in the context of the appropriately nicknamed “Muslim Ban,” but obviously it is highly relevant to many actions in a time such as this in which every branch of government (except maybe the Supreme Court) is dominated by one party, in this case one with a long history of “dog whistling.”

One way of structuring the inquiry is to focus on where  and when the greatest dangers occur from refusing to look beyond the face of an enactment to find illegal intent.

Probably the greatest danger of completely hidden intent occurs when the action is taken by one person or entity.  Had the “Muslim Ban” been enacted through a legislative or even a regulatory process, then the evidence of intent would have come out in the back and forth.  While that evidence might have been rejected in a challenge, because the court would have relied on the supposed facial neutrality of the enactment, none the less the evidence would have been there for all to see.   So Executive Orders are an area of particular risk.

Different kinds of evidence of intent are not only of different probative value, but their being ignored can cause different kinds of harm.  Thus, ignoring statistical evidence of harm means that harmful enactments go into force, but do not necessarily represent a public endorsement of the illegal result.  On the other hand, ignoring the clear evidence of the statements of Trump and his “gang” of their goals, sends a strong public message that those goals are in fact allowed and not forbidden.  That is a terrible message.

Moreover, while the general discussion of this topic has suggested that campaign statements are less worthy of consideration in looking at intent, it may be that the harm in ignoring them is even greater than the harm in ignoring post election statements.  The reason is that ignoring such campaign statements of a winner tells the protected minority and politicians that it is acceptable to use discriminatory appeals to win elections is OK — and that those promises can be kept.  Is there anything worse in the entwining of race with elections and government?

So my general conclusion would be that clear evidence of illegal intent should always be relevant, but that the weight of the evidence should depend on a) the nexus between the person making the statement and their role in the enactment, and b)the extent to which the statement of intent increases the harm of legitimizing the illegality of the action.

 

 

 

 

 

If They Can not Control Trump While He is Cocooned, How Are The Intelligence Services Going to Keep The Secrets That Trump Knows Secure After He Leaves the White House — However and Whenever That May Turn Out to Be?

If I were a senior executive at Langley (CIA) or in the Hoover Building (FBI), I would not only be wondering how to keep the removal momentum going, but I would also be starting to think about how the endgame has to be structured to keep a “liberated” Trump from doing even worse damage after he is no longer in the White House.  Its going to be a problem however and whenever he finally leaves.

If we have seen anything in the last four months, it is that even a Trump with a rational national security staff around him all the time, and a secret service that can keep him away from most people, can do immense damage to our national security interests.  (“I never said Israel.”)

Take those, and the rest of the cocoon away, and literally anything can happen.  Here are three general possible approaches.

Approach One – Ongoing Cocooning:  Make sure that the end game plays out so that Trump remains under cocooned.  The only sure ways to do that are to imprison him, or put him in a mental institution.  There are likely already grounds for either.

Approach Two – Threatened Cocooning:  Create massive incentives to ongoing compliance.  I.e. have him so that he understands that approach one is triggered if he crosses certain lines.  I do not think that is likely to be reliable.

Approach Three – Information deprivation:  Make sure, starting now, that he really does not know anything that can do any harm.  For all we know, his briefings may well already be carefully structured with this in mind.  Indeed, after this trip, I am not sure it is not professional malpractice to tell him anything that is both true and secret.

The benefits of approach one (ongoing cocooning) accrue to many beyond the intelligence community, so that may well be the one chosen path, if only because it will be easier to build a behind the scenes consensus for the approach.

But following the approach of “stifle and isolate,” maybe it is safer to combine one (cocooning) and three (information deprivation).  The advantage of number three is that the public and the base need never learn of it.

These are such unusual times, that you do not have to be a rabid conspiracy theorist to be thinking along these lines.  I can imagine that many would see it as their duty.

This May All Be Over Much Quicker Than Anyone Expects

There are several reasons why the received wisdom about the speed of the Trump removal process may be completely wrong.  Not surprisingly, most of the reasons relate as much to the political as to the legal context.

One:  Perhaps most importantly, unlike in prior impeachment situations, even this early, almost everyone in Washington really wants Trump gone.  There are literally only about 50 people for whom this is not true.  The difference between the parties this year is that the Democrats are not upset when people figure it out, but the Republicans are terrified about their base doing so.  (When the Republicans say they want to get all the facts out about malfeasance on their side, you know the subject of the investigation is in deep trouble.)

Two:  A prima facie case of obstruction of justice by President Trump has already been made out, most of it from his own statements and admissions.  This comes from his firing of Comey, his statement that he performed the firing because of his feelings about the Russia investigation, his statement to the Russians that he (and they) have gained from what he believed to be the successful firing.  While that alone is probably enough, there will be plenty more.  This could go to a grand jury very quickly.

Three:  This time round, no one seems to be suggesting any barriers, such as Executive Privilege or National Security, to getting the information quickly.  This is in very marked contrast to 1972 – 1974, when it took well over a year to resolve the barriers.  I think the main reason is listed in number one  above, that no one wants to protect Trump, it is just that one party does not want that fact to be too obvious.  It is also partly that Trump has waived many of the legal issues by his tweeting and statements.  I think it is less the reason for the absence of such privilege claims that the legal issues have already been resolved — US v. Nixon gave Nixon no outs, but clever lawyers have since then, with a sympathetic audience been able to find new arguments — it’s just that there is no such sympathetic audience outside the immediate Trump family and their hangers on.

Four:  It really does not matter whether a President can be indicted or not.  You just charge a conspiracy to obstruct justice, name the President as an un-indicted co-conspirator, and get all the information to Congress.  This is what happened with Nixon, in that case with the permission of the judge overseeing the grand jury (the now largely forgotten hero John Sirica.)

Five:  In today’s digital environment, not only is there additional evidence everywhere, but the process of finding and putting it in the right order will move much quicker.  In the Watergate investigation it look months to get all the interlocking evidence hand typed onto sorted color-coded index cards.  The timeline can be ready for grand jury presentation soon.

Six:  If they can get rid of Trump, the Republicans want it done as fast as possible.  This is because the other prong of the investigation, the one dealing with the underlying Russia collusion, is going to take much longer, but if successful, it is potentially much much more damaging to the legitimacy of Republican power.  If by the time we get a new President it is clear that the Democrats should or might have won without the collusion, the pressure on Pence to offer the Vice Presidency to Tim Kaine will be immense, and we will be in a period of coalition government.  If the Republicans do not accept something like this, they will be killed at the next election, whether midterms or the presidential.  Even if they do accept it, much of their radical agenda is gone.

So, almost all the rational incentives align in the same direction.

The only questions are whether the Republicans can figure this out, and if the Democrats want and are able to, can figure out how to take advantage of the alignment.

Actually, the main reason I now think that impeachment is the more likely route is that Republicans do not have to be the ones obviously triggering the process, at least until very near the end of the game.  In contrast, if they used the 25th Amendment, it would basically Republicans starting and managing the process.

But, that choice of remedy analysis assumes that new bombshell inherently destructive of Trump’s relationship with his core base comes out — and that might happen tomorrow at 5 PM.  Tax returns, anyone.

 

 

 

There is a Remedy For Gross Errors in Presidential Judgment that are Not Explicitly Forbidden By Law. Do Not Let the Republicans Off that Hook

Trump’s recent behavior, in which he engages in acts that show an absolute absence of appropriate presidential judgment might well not constitute “high crimes and misdemeanors,” for which impeachment is the remedy.

It is largely ignored right now, because of Republic cowardice, but there is a component in the constitutional scheme that does plug that gap, and it is the 25th amendment, triggered by a determination that:

“the President is unable to discharge the powers and duties of his office

Now, triggering that process does require the certification of the Vice President and the majority of the cabinet, so its a stretch right now, but at some point so much damage will become clear that the president is “unable.”

Perhaps most importantly, a failure by Pence and others to make use of their power might ultimately become an additional major political liability, as the obvious costs of the US and the world increase.  So it important to keep drawing attention to it.

The Republicans are in a narrower and narrower vice.  Lets make sure they are held to it.

 

 

 

 

Melania Tells Her Diary (and Us) What Advice She Has Been Giving Donald

Its been a long time since I (Melania) have been able to smuggle any of my diary out.  But Donny is now so preoccupied, that I can do so.

He even asked me what to do as President, and this is what I told him:

Fire the FBI director at a time that looks maximally suspicious.

After the whole Republic party and your staff has been pushing an explanation of the firing, go on NBC to deny that story.

In that interview be clear, if not explicit, that you were doing this because of the Russia investigation.

Hint that you were threatening the FBI director

Make sure that you and the FBI director are getting out different descriptions of the conversation, so as to make any record really important.

Have a meeting with Nixon protege Kissinger.

Meet with senior Russian officials.

Allow Russians to cover the meeting but not the US pool or press.

Hint that you have taping in the Oval office.

Make your spokesman refuse to confirm or deny that taping.

Threaten to abolish the press briefings.

Pretty good for one week. Huh?

Well, what am I up to?  You have to choose.

  1. I want him back in New York soon.
  2. I want him in jail so I get a great divorce outcome.
  3. I am trying to be helpful.
  4. He wants out and I promised to do the research and make suggestions.

p.s. I really enjoyed All the President’s Men.  My next project is to read The Final Days.  I also have Woman on the Edge of Time and Hamlet on my list.

Any additional research suggestions?

What Does Trump’s Assetion That the Democrats Should Have Won the Election Mean?

Yesterday, in his astonishing interview with NBC News: (NYT link)

Mr. Trump told Lester Holt of NBC News. “It’s an excuse by the Democrats for having lost an election that they should have won.”

What on earth does that mean?

  • That the American people support Democratic policies,
  • That the Democratic demographic advantage is overwhelming,
  • That the Republicans do not have good candidates,
  • That he was an unappealing candidate?
  • That he did not expect to win,
  • That he knows he is unready to be President?

Or, I suppose, it could just be that he is getting inside their minds and saying that the Democrats think that they should have won.  Frankly, that’s a psychological distinction too far for me to attribute to Trump.

Anyway, as things spin more and more out of control, as I am sure they will, we will have many more opportunities to observe and analyze Trump’s mental functioning, perhaps as authorized under the 25th Amendment.