Just another day in the circus

Trump is teeing up stress tests for several institutions, from DHS to DOJ and the IRS

via WaPo Daily 202 – Apr, 9th 2019

with Joanie Greve and Mariana Alfaro


THE BIG IDEA: To work, the American system of checks and balances requires that the executive branch respect the prerogatives of Congress, from appropriations to oversight, and the interpretations by judges of the law and the Constitution. That’s what the rule of law requires. That’s what President Trump swore an oath 27 months ago to preserve, protect and defend. All government employees, from civil servants to political appointees, take a similar oath.

That’s why it’s such a big deal that any U.S. president would suggest to armed law enforcement officers that they should disregard court orders. During his visit Friday to Calexico, Calif., Trump told Border Patrol agents not to allow any migrants in, two sources who were present told CNN’s Jake Tapper: “Tell them we don’t have the capacity, he said. If judges give you trouble, say, ‘Sorry, judge, I can’t do it. We don’t have the room.’ After the president left the room, agents sought further advice from their leaders, who told them they were not giving them that direction and if they did what the president said they would take on personal liability. You have to follow the law, they were told.”This is reminiscent of a likely apocryphal quote that’s often attributed to Trump’s favorite president. After the Supreme Court recognized tribal sovereignty in 1832 
with Worcester v. Georgia, Andrew Jackson purportedly said this of the chief justice: “John Marshall has made his decision. Now let him enforce it.” Indeed, while Jackson forged 
ahead with his demonization of the Cherokee and the Trail of Tears, the state of Georgia complied with the court’s order.

— Trump is systematically purging the upper echelons of the Department of Homeland Security, raising fears that he’ll install loyalists who won’t feel so constrained by legal strictures. The White House announced the removal of Secret Service Director Tex Alles. He dumped ICE chief Ron Vitiello on Friday and ousted DHS Secretary Kirstjen Nielsen on Sunday. “L. Francis Cissna, the director of U.S. Citizenship and Immigration Services, and DHS General Counsel John Mitnick could be the next to go,” sources tell Nick Miroff, Toluse Olorunnipa, Josh Dawsey and Carol Leonnig.“Nielsen has told confidants that she felt uncomfortable with some of the president’s requests, particularly closing the border, and thought that the president did not understand many of the laws governing immigration.

…“Trump has suggested to aides in recent weeks that the administration’s previous policy of separating families at the border could be used to deter crossings and that a version of the policy could be reinstated … Some aides have resisted the idea of family separations … [Doing this] without lawmakers’ approval risks another court injunction. …“No president before Trump has pushed the country’s security agencies into such a state of churning confusion, current and former DHS officials said. … ‘The president doesn’t like the news he’s getting on immigration and has blamed leadership at DHS, but this is not something leadership at the department can fix,’ said Stewart Baker, a top DHS adviser to President George W. Bush. ‘This needs to be fixed in Congress, and there doesn’t seem to be any appetite for that.’”

— The courts and Congress continue trying to check the zealousness of Trump’s immigration agenda: A federal judge last night blocked the administration’s experimental program to make asylum seekers at the southern border wait in Mexico as their cases are processed. U.S. District Judge Richard Seeborg in San Francisco enjoined the policy, which began in January and was about to be expanded, with a preliminary injunction. In a 27-page ruling, Seeborg said the question before him was not whether it’s a “wise, intelligent, or humane policy.” Rather, he said, Trump’s move probably violates the Immigration and Nationality Act, the Administrative Procedure Act and other legal protections to ensure immigrants “are not returned to unduly dangerous circumstances.”

— There’s also a fresh push from leading Senate Republicans to protect certain conservatives from becoming victims of the Trump purge. Sen. Chuck Grassley (R-Iowa) warned Trump against dismissing Cissna in an interview with The Post last night. “He’s pulling the rug out from the very people that are trying to help him accomplish his goal,” Grassley complained. “Grassley said he texted Mick Mulvaney, the acting White House chief of staff, to relay his concerns,” Seung Min Kim reports. “Grassley also said he was going on Fox News —
Trump’s favored cable news channel — to make his case publicly.

THE PRICE OF LOYALTY:— “Nobody debased herself quite as often as Nielsen did in her quest to keep the job,” Dana Milbank writes, “defending Trump after the ‘s—hole
countries’ and Charlottesville scandals, enduring frequent rebukes from Trump and leaks about her imminent firing, embracing his incendiary language and enduring his extralegal instincts, swallowing her moral misgivings to embrace the family-separation policy (while denying any such policy existed), and implausibly claiming that children weren’t being put in cages.”

— “The ouster of [Nielsen] — the implementer of some of the most unjust immigration policies since the internment of citizens and noncitizens of Japanese descent  during World War II — is further proof of President Trump’s ratchet-wrench theory of loyalty. It goes only in his direction,” writes Michael Gerson, a chief speechwriter in Bush 43’s White House. “But the separation of crying migrant children from their parents as a deterrent, and the housing of children in prisonlike conditions, will be some of the most enduring political images of the Trump era. It says something about Nielsen that she took part in such practices. It says something about Trump that such actions were apparently too moderate and restrained for his taste.

THE OTHER STRESS TESTS:— But it’s not just DHS. Trump’s desire to keep concealed from Congress both his personal tax returns and Bob Mueller’s full report creates looming tests for other key institutions. The Justice and the Treasury departments are facing stress tests – akin to what the Federal Reserve does to make sure banks can stay solvent in a crisis – that may define the legacies of the political appointees who lead them.Trump quoted and retweeted several allies yesterday who criticized Democratic efforts to obtain the Mueller report and his tax filings. “In one tweet, Trump quoted Katie Pavlich, editor of Townhall.com, saying that Nadler was ‘not entitled’ to the full report and underlying documents produced by Mueller,” John Wagner reports. “In another instance, Trump retweeted Rep. Jim Jordan (R-Ohio), a frequent ally and the top Republican on the House Oversight and Reform Committee, saying that ‘Dems want President’s tax returns for purely political purposes!’

Harvard professor Larry Summers, who served as Bill Clinton’s treasury secretary from 1999 to 2001, says that the IRS chief is legally obligated to release Trump’s returns, whether he wants to or not, and that Treasury Secretary Steven Mnuchin has no business getting in the way. “The appropriate response of the treasury secretary is very clear: Under a long-standing delegation order, the secretary does not get involved in taxpayer-specific matters and has delegated to the IRS commissioner,” Summers writes in an op-ed for today’s Post. “Moreover, this is not a delegation that is readily revocable. Federal law provides that if the secretary determines not to delegate a power, such determination may not take effect until 30 days after the secretary notifies the tax-writing (and other specified) committees. So for the secretary to seek to decide whether to pass on the president’s tax return to Congress would surely
be inappropriate and probably illegal. I would surely not have done it.

Philip Allen Lacovara, a counsel to the Watergate special prosecutor, and Larry Tribe, a constitutional scholar at Harvard Law School, lay out one possible way that the House might be able to get the special counsel’s report if Attorney General William Barr redacts too heavily: by opening a preliminary impeachment inquiry. “One
of the exceptions to grand jury secrecy is disclosure ‘preliminary to or in connection with a judicial proceeding,’” they write in an op-ed for today’s paper. “To authorize disclosure of the
Watergate grand jury information, the special prosecutor’s office argued that the House had authorized its Judiciary Committee to conduct a formal impeachment inquiry and that such an inquiry could be fairly analogized to a ‘grand jury’ investigation and thus a judicial proceeding. Both the district court and the court of appeals agreed, and the Judiciary Committee obtained both the report and the underlying evidence.”

– Speaking of the Mueller report, billionaire activist Tom Steyer is launching a $3 million ad buy today calling on Barr to put out the full Mueller report. “If you think we have a right to read the report for ourselves, you can call the attorney general at this number,” Steyer says, speaking to the camera. “Our tax dollars paid for the report. Don’t let him cover up the truth.” Earlier this year, Steyer committed an additional $40 million in 2019 toward impeaching Trump, though this commercial doesn’t call for that.

— The top-ranking Republican on the House Judiciary Committee said yesterday that he supports Mueller coming to testify on the Hill. Rep. Doug Collins (R-Ga.) said that he would like to see Mueller testify during the week of April 22. The Democratic chairman, Jerry Nadler, said that he agrees Mueller should appear but that his members need to read the full report and hear from Barr first so they can ask “the right questions.

THE NAME-CALLER IN CHIEF:— Speaking of Nadler, Trump went on a tirade against the congressman he calls “Fat Jerry” during recent private remarks to GOP lawmakers. The feud between the two men dates to 1985, when Nadler, as a New York state assemblyman, proved to be a major obstacle for Trump’s plans to build a vast development project on the west side of Manhattan, Rachael Bade and Josh Dawsey report: “‘I’ve been battling Nadler for years,’ Trump told the GOP lawmakers, who were
embarrassed by the outburst … Trump never forgave Nadler, and privately he has simmered about the chairman and his investigation, calling him an irritant who has long been out to get him and recounting their New York run-ins to aides.”

— Separately, we learned yesterday that Trump has been referring to the now-ousted director of the Secret Service as “Dumbo” because he has big ears. (That’s according to the New York Times.)

A TIMELY REMINDER OF THE STAKES:— Here’s the bottom line: Homeland security is no laughing matter, and our safety depends on law enforcement professionals doing their jobs effectively and legally. As the White House was consumed by drama and the president tried to fat-shame an opponent, prosecutors revealed in court filings that local police officers in Prince George’s County, Md., thwarted what could have been a truly heinous terrorist attack on American soil. A Maryland man allegedly planned to run down crowds at
National Harbor in an Islamic State-inspired attack.Lynh Bui reports: “Rondell Henry, 28, of Germantown was arrested March 28 at the waterfront complex in Prince George’s County with a U-Haul he had stolen from a parking garage in Alexandria, Va., two days earlier, according to a newly unsealed charging document.

Henry harbored ‘hatred’ for ‘disbelievers’ who didn’t practice Islam and admitted to the plot in interviews with authorities, according to court documents filed in U.S. District Court for Maryland asking that he be detained in jail until trial. …“Before he arrived at the Maryland complex, he spent nearly two hours at Washington Dulles International Airport in Virginia on March 27 assessing crowds there but finding too few people for the scale of attack he envisioned, court documents contend. ‘He had no escape plan, intending to die while killing others for his cause,’ the government said in the detention memo. The government said that Henry sought out videos of terrorists beheading civilians and fighting overseas.“The government asserts in its filings that because Henry, a computer engineer, had no weapons training, he planned an attack using a vehicle, inspired by the terrorist truck attack in Nice, France,that killed 84 people and left dozens more injured. Henry drove around the Washington area looking for a vehicle to steal, dumping his cellphone along an interstate highway to ‘destroy evidence of the inspiration behind his attack,’ court documents alleged. The phone was recovered by law enforcement agents and included images of armed ISIS fighters, the ISIS flag and the Pulse nightclub shooter, prosecutors said.”


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