Friday, February 15, 2019

Last Call For Trump Cards, Con't

Greg Sargent at the Washington Post reminds us that if Trump is willing to treat "not getting 100% of his wall money" as "a national emergency", giving him plenary powers to do whatever he wants, then he will repeatedly declare such "emergencies" whenever it suits him in the near future, and Republicans in Congress won't lift a finger lest they suffer political annihilation from Trump's howling base.

The bigger problem is that the Supreme Court made it unconstitutional to block such an action by the President with anything short of a two-thirds veto.

The basic problem we face right now in this regard was created by Congress. The post-Watergate National Emergencies Act, or NEA, places various constraints on the powers the president has when he declares a national emergency. For instance, it requires the president to say which other statute he is relying on to exercise the particular authority he plans to employ under his declared emergency.

The NEA also creates a mechanism by which Congress can terminate the emergency by passing a resolution through both houses doing that. The House is likely to pass such a resolution, but it’s unclear whether the Senate will do so. Even if the Senate did pass it, Trump would veto it anyway, though the House still should try this to get GOP senators on the record.

But the NEA doesn’t define what an emergency is, giving the president tremendous discretion to do that himself. The core question we now face is whether that discretion is limitless.

There will be lawsuits against Trump’s national emergency declaration. Protect Democracy and the Niskanen Center just announced that they will represent local border communities in such a lawsuit.

There are several basic ways of challenging Trump’s national emergency in court. The first is to challenge the idea that the statute Trump is invoking to find the precise power he wants to exercise actually does give him that power.

According to multiple reports, Trump is relying on a law that allows the defense secretary to “undertake military construction projects” that are “not otherwise authorized by law” if they are “necessary” to support “use of the armed forces.” This would reportedly allow him to tap some $3.5 billion in funds.

Robert Chesney, a law professor at the University of Texas at Austin, tells me that this is vulnerable to challenge, because it requires that this “use of the armed forces” is actually being employed in the emergency in question.

“This doesn’t work for just any emergency — it has to be an emergency in which use of the military is required,” Chesney said. Trump, of course, will claim that the military is in fact being used to counter his border emergency, since he sent in troops. But in this case, those troops are not actually repelling arriving migrants, so there’s no way to credibly argue that a wall is “necessary” to support what the military is actually doing.

“There’s a better chance than normal that a judge could second guess this,” Chesney said.

But perhaps the bigger question concerns the second way to challenge Trump’s national emergency: By arguing that there isn’t any national emergency, and that at some point, this has to matter.

The answer to that question is "not yet it doesn't, and it may never matter."   Again, if Trump gets away with this, we're a healthy chunk of the way towards autocracy, and we're not coming back.

It's Mueller Time, Con't

Two developments on Mueller Friday this week, first, the White House confirms to CNN that WH press secretary Sarah Sanders has submitted to an extensive interview by the Mueller team.

Special counsel Robert Mueller's team has interviewed White House press secretary Sarah Sanders, she told CNN on Friday. 
"The President urged me, like he has everyone in the administration, to fully cooperate with the special counsel. I was happy to voluntarily sit down with them," Sanders said in response to a question from CNN. 
The interview is one of the final known interviews by Mueller's team. It came around the same time as the special counsel interviewed former White House chief of staff John Kelly, well after a number of other senior officials, including former White House communications director Hope Hicks and former press secretary Sean Spicer, were brought in for questioning
The White House did not immediately agree to grant the special counsel an interview with Sanders, according to one of the sources. Similarly, as CNN reported in December, White House lawyers initially objected to Mueller's request to interview Kelly, who ultimately responded to a narrow set of questions from special counsel investigators. 
While the substance of the interview with Sanders is unclear, one likely area of interest was how Sanders composed statements she made on the podium defending the President regarding the Russia investigation. 
As Mueller wraps up his Russia probe, one focus of investigators has been conflicting public statements by President Donald Trump and his team that could be seen as an effort to obstruct justice, according to people familiar with the investigation.  
CNN reported last month that prosecutors appear to be examining Trump's public statements to determine whether anyone sought to influence other witnesses and cause other administration and former campaign officials to make false public statements.

Once again, what did Trump know and when did his Mouth of Sauron know it?  And speaking of mouths, a federal judge has corralled Roger Stone in order to keep his mouth shut.

A federal judge on Friday ordered Roger Stone, his attorneys and the special counsel’s office to halt all public commentary about the case involving charges that the longtime Donald Trump associate lied to Congress and obstructed its Russia investigation.

In a four-page order, U.S. District Court Judge Amy Berman Jackson sided with Mueller that Stone and his attorneys “must refrain from making statements to the media or in public settings that pose a substantial likelihood of material prejudice to this case.”

The judge also ordered Stone, his lawyers and potential witnesses from commenting to the press as they enter or exit the Washington, D.C., courthouse, where Stone is on track to go to trial later this summer or fall amid intense media scrutiny.

A gag order in Stone’s case was long expected. Jackson, an appointee of President Barack Obama, slapped similar restraints in the fall of 2017 on Paul Manafort, his longtime business partner Rick Gates and their attorneys just days after they were initially indicted in the Mueller probe.

For Stone, the gag order was more a matter of when, and not if. The longtime GOP campaign operative and frequent TV commentator who hosts his own daily webcast has been on a media blitz since his indictment last month. He called into the conspiracy theory website InfoWars to give his first interview following his arrest.

This is for more Stone's protection than America's.  The guy is likely to Manafort himself right into prison if he keeps talking.

Someone I bet he will anyway.  Guys like Stone can't help themselves.

Shutdown Meltdown, Con't

Donald Trump says he will sign the budget deal worked out by Congress to avoid a shutdown tonight but because he's not getting his wall money, he's now going the emergency declaration route after all with a Rose Garden announcement this morning.

The surprise announcement Thursday that President Donald Trump will use his emergency powers to try and build his border wall blindsided some Republicans, confused others and sent the Senate GOP into a general state of shock.

The news, delivered by Majority Leader Mitch McConnell on the Senate floor, came after weeks of warnings from his own party not to declare a national emergency at the border.

Trump has decided to challenge Republicans’ resolve anyway — but he may not like the outcome. Aides privately predicted Trump will lose a vote on the Senate floor once the Democratic House passes a resolution of disapproval to block the move.

Meanwhile, the GOP Senate majority was casting about for answers.

“I wish he wouldn’t have done it,” said Sen. Chuck Grassley (R-Iowa), who McConnell interrupted on the Senate floor to make his announcement. “If [Trump] figures that Congress didn’t do enough and he’s got to do it, then I imagine we’ll find out whether he’s got the authority to do it by the courts.”

“In general, I’m not for running the government by emergency, nor spending money. The Constitution's pretty clear: spending originates and is directed by Congress,” said Sen. Rand Paul (R-Ky.), who like almost everyone else on Capitol Hill wants more information. “So I’m not really for it.”

Republicans that have previously panned the idea as setting a bad precedent for future presidents were careful in how they answered questions in the immediate aftermath of the president’s decision.

Sen. Marco Rubio (R-Fla.) said it was a “bad idea” but needed to learn more. Sen. Lamar Alexander (R-Tenn.) said it was “unnecessary” because Trump has other ways of getting money but said he needed further guidance. And Sen. Ron Johnson (R-Wis.) fretted that it was a "dramatic expansion" of the emergency powers.

Others were blunter.

"It’s a mistake on the president’s part," said Sen. Susan Collins (R-Maine). "I also believe that it will be challenged in court. It undermines the role of Congress and the appropriations process.”

“I’m not enthusiastic about it, but I don’t know whether that’s actually going to happen, and if so, what follows from there. I don’t know what authority he may or may not invoke,” said Sen. Pat Toomey (R-Pa.).

If Trump goes down this road, it's going to be nothing but pain for the GOP, and they know it.  We're looking at a fight that even the Roberts Court might bail on.

The Justice Department has warned the White House a national emergency declaration is nearly certain to be blocked by the courts on, at least, a temporary basis, preventing the immediate implementation of the president's plan to circumvent Congress and build the wall using his executives powers, ABC News has learned.

However, a senior White House official tells ABC News that the administration is confident it could ultimately win the case on appeal.

Lawyers at the White House, the Department of Homeland Security and at the Pentagon have been working for weeks to iron out different options the president would have to obtain funds for his border wall.

By declaring a national emergency at the border, the president could potentially free up billions of dollars to begin work on construction of a southern border wall. Much of that money would be pulled from the Department of Defense.

It won't be just House Democrats heading to court, either.  California, New York, and a bevy of other blue states are expected to sue, and one of them will get an injunction.

Trump doesn't want to shut the government down again, he wants to be able to clearly blame the Democrats and the courts for not getting his wall built.  This is the method he's using to do it. How much that will dupe his base, we'll see.  They've put up with his failures for a while now, but this might be the straw that breaks the Trump regime's back.

Stay tuned.


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