The Deeply Disturbing Implications of the Washington Post Story of the Inadequate US Response to Russian Hacking, and a Long Term Proposal

It is almost impossible to force oneself to read the Washington Post’s brilliant reporting of the US failure to respond adequately to the Russian election-related hacking.

However, attention must be paid, and the implications go far further than judgements about the Obama administration, that I am sure will go well explored in classic blame the victim manner.

First,  I think we have to admit that the current situation of a largely unpunished and undeterred coup/attack on the US has to be broadly blamed on the entire political process in the US.  While the lack of response, either public or covert, is hard to defend either now, or then, it has to be seen as in part the product of the hyper-politicization of foreign policy.  The Obama administration was operating in a toxic environment in which any honest reporting or respect was, and would be thrown back in the face of the government and the electorate, without any concern for considerations other than short term victory.   The administration could not ignore the reality of that environment.

That must be recognized as a product of Trump active encouragement of hacking, of his trivialization of any reporting, and of his contempt for truth.  The enablers carry as much if not more of the blame.

Second, we must be honest about where we are.  We no longer can be confident that the American people control our own fates through the political process.  It was and has to be assumed to be about to be again, another Pearl Harbor.  (That the US has its own long bi-partisan history of interference in other counties electoral, and political processes, not to mention coups, does not make this any less serious, it only makes it harder to defeat.)  Given the massive reluctance of Trump to take this threat in any way seriously, or even to recognize the risks of the legitimacy this has already lost him, we can have no faith that the governmental system will protect us against more and worse future surrenders of control.  (If Trump is forced out, as I strongly believe he has to be, and will be, this last is no longer true, but issues of trust and legitimacy will long remain.)

Finally, we have to build a new layer of institutions that protect the integrity of our political system regardless of short term interest.  For a start, I can imagine a Commission led by prior presidents, with an independent staff, with direct access to the intelligent services.  The Commission would have a mandate to issue public reports, including on the credibility of challenges to our democratic electoral system, and to publicly and privately urge actions of all kinds, thereby making it easier for presidents to take needed actions without being effectively accused of putting partisan interests first.  While hacking will be one part of the charter of duties, all forms of foreign interference and collusion will need to be included.

The problem, as always, and as we learned in the cold war, is that is is almost impossible to give groups power that is not democratically constrained without then in fact surrendering democracy to those powers.  In the absence of the consensus of  the cold war years, the need is even greater than it was then, and the risks are far greater.

It is a measure of what Trump and his enablers have wrought, and what his opponents have failed to do, that we now face this choice.

 

 

 

 

 

 

Could the Provisions of the 25th Amendment Make It Possible to Indict Trump While Still In Office

It has been perceived as received wisdom that sitting presidents can not be indicted.  In fact, that was regarded as an open question in the early days of the Watergate.  My impressionistic recollection is that the strategic decision was made by investigators that there was no point in providing Nixon an additional area of defense and distraction.  Now we have a fascinating perspective from Obama’s legal counsel, undercutting the then used public rationale for that conclusion, reflected in 1973 and 2000 DOJ Office of Legal Counsel Opinions, and the conclusion itself.  Bob Bauer on Lawfare:

OLC has taken the position that while the Constitution does not explicitly provide for immunity from indictment or prosecution, and the record on the Founders’ views of the question is inconclusive, the constitutional role of the president requires that he or she be afforded temporary immunity. Indictment and prosecution would have a “dramatically destabilizing effect” on the president’s capacity to discharge his or her duties. The executive’s energies would be diverted into the “substantial preparation” needed for his legal defense. The mere stigma and opprobrium of indictment, and possibly conviction, would result in “undermining the president’s leadership and efficacy both home and abroad.”

However, Bauer argues persuasively, from both the Nixon record and current events that the Opinion, which viewed investigation as appropriate, but not indictment, simply ignores reality:

.  .  .  Mostly the opinion fell back on a comforting image of a grand jury operating silently and (somehow) mostly out of sight and out of the way.

But that is not how it goes with high-profile, high-stakes investigations. We have them or we don’t: there is no quiet, non-disruptive version. And if we have them, accepting the disruptions they entail, then it is difficult to argue that they cannot be brought to one possible conclusion, if justified by the evidence: indictment. If a president can be investigated, then, it seems, a president can be indicted; if not in the second case, then not in either case, because it cannot be said that the government in the throes of a major investigation is measurably or reliably safer from severe “disruption” and massive loss of presidential credibility. The better, more internally consistent view in line with democratic “rule of law” norms is that the president is subject to investigation and, if the evidence supports it, indictment.

Bauer then goes on to bring in the 25th Amendment, and its provisions allowing a president to temporarily withdraw from the presidency, or, more likely in the real world, be declared unable to fulfill the duties of his or her office.

A president who faced what the OLC termed the “substantial preparation” required for a criminal defense, and the “dramatically destabilizing effects” of criminal process on his capacity to govern, would have a clear choice under the 25th Amendment. The same choice is open to the vice president with the support of the Cabinet if they reach this conclusion but the president resists.

Simple bottom line.  Just because the possibility of indictment would be disruptive to a president and governance is not a sufficient argument for forbidding such indictment.  Investigation and impeachment are allowed and are disruptive enough, and remedies exist for the disruption.

As I have argued before, given Trump’s utter self-absorption and unpredictability, the argument for a process that ultimately puts him under some form of restraint is compellingly in the national interest.  Otherwise, who knows what a Trump post-presidency would look like — “Take this plane to Moscow.”

 

“Rants From The Madman”

Famously, when Jimmy Carter was president, the Boston Globe “accidentally” ran a headline over an editorial that read: “Mush From the Wimp.”  There was no Internet to make it go viral, but today surely it would.

Today, to label Trump’s tweets as “rants from the madman” seems almost an understatement, and there is already plenty of obvious commentary.  So here are some addition questions:

When will be start seeing resignations from the national security team?

Is the legal team now obliged to formally withdraw representations that they have made to the Fourth, and Ninth Circuits, and to the Supreme Court.  Remember, lawyers can not make affirmative mis-representations to a court.

Will we see resignations from the Solicitor General’s Office, or just an inability to find staff to do the work?

Is there any chance that the Supreme Court will now grant review in the “travel Ban case.”  The risk of them being dissed during the process, such as after hearing, or after decision, is great.  If I were Roberts, I would take no action till the Ninth Circuit agrees with the Fourth (as it surely will), and then see if I have seven or more votes to put the President firmly in his place.  If not, I would do nothing, at least till there is a split from another Circuit.  I do not see how the Court can afford to be seen to be baling Trump out after today.  And, a 5-4 either way would be an absolute institutional disaster for the Court (US v. Nixon was 9-0).

Does the almost systematic dissing of one cabinet member after another mean that a 25th Amendment majority is starting to build up?  What is Pence thinking tonight.

Many previously loyal Republican commentators seem numb tonight.  Republican politicians have fallen largely quiet.  When will they start raising issues of Presidential inability to do the job? 

Finally, whatever else you can say, you can not argue with the fact that each week, things move faster an faster.   Things that would, the prior week, have seemed crazy to suggest, actually happen.

Our brains are lagging indicators.  Like any tipping point, when it comes, it will come quicker than we can possibly expect.

 

Climate Change Headline: “Trump to Planet: Drop Dead”

Let hope it does not come to that, but at 3 PM today, this may be the tragically perfect headline:

“Trump to Planet: Drop Dead”

That, basically, was the NY Daily News headline  (Ford to NYC: Drop Dead) in 1975 when then President Ford came out against loan guarantees for the bankrupt New York City.  Ford the narrowly lost New York, and so the 1976 election.

Today may be the planetary tipping point.

Update: Lets hope that this does Trump’s Presidency in.  Later on June 1, the Huffington used the same language to headline their coverage on their main page, apparently as of 3:36 PM that day (posting time of actual article.)

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.

 

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.