Release the Memo That Really Matters 

Article I, Section 8, Clause 11 of the Constitution grants Congress the power to “declare war.”

.. In practice, however, it seems as if the rule is observed mainly in the breach. In the post–World War II era, American forces have been committed time and again even in offensive military actions without even the slightest effort to obtain congressional authorization.

.. The latest example occurred on April 6, 2017, when President Trump ordered a cruise missile strike on Syria in retaliation for its use of chemical weapons

.. Unless there is classified information we don’t yet know, a strike of this nature is exactly the kind of military action that should require congressional approval.

.. We were not at war with Syria. We were not acting in immediate self-defense of our nation. We were not fulfilling a Senate-ratified treaty obligation.

.. Shrugging off the Constitution is a bipartisan practice.

  • Who can forget President Obama’s strikes against Libya? He ordered offensive military action against a sovereign nation without a declaration of war.
  • While George W. Bush obtained congressional authorization for the wars in Iraq and Afghanistan, his predecessor,
  • Bill Clinton, launched extended aerial campaigns in the former Yugoslavia with no congressional vote.

years of presidential overreach, congressional inaction, and partisan bickering have jeopardized our constitutional structure. We are steadily moving away from the separation of powers and toward an unconstitutional legal regime that places sole war-making authority in the hands of an increasingly imperial presidency.

.. There are widespread reports that the president is considering launching a “bloody nose” strike against North Korea — a strike designed to send the strongest possible message, short of all-out war — that its ICBM program has to end.

.. The discussions are apparently so serious that the administration pulled its nominee for ambassador to South Korea, Victor Cha, because he opposed the strike. He then immediately took to the pages of the Washington Post to express his opposition

.. We are not facing the necessity of immediate self-defense. Oh, and in both countries, military action carries with it risks of dangerous escalation. With Russian boots on the ground in Syria, miscalculation risks a great-power conflict. With immense North Korean forces clustered near the border of South Korea, miscalculation risks a truly terrible war.

.. New military action in Syria and new military action in North Korea represent textbook cases for congressional authorization.

.. So why did the administration feel that it had the legal authority to order its Syria strike?

Well, it turns out there’s a memo.

.. Prior to the Syria strike, the administration generated a classified document by an “interagency group of attorneys” that analyzed the “legal basis for potential military action.

.. We cannot sustain and protect our constitutional structure if we delegate arguments against the unconstitutional abuse of presidential authority exclusively to members of whichever party is out of power.

.. it’s time for Senator Corker to insist on a public debate and congressional authorization before we launch any new military action against North Korea.

.. While the facts supporting the argument may well be legitimately classified, the legal analysis itself — which will turn on questions of constitutional, statutory, and international law — should be a matter of open inquiry.

Rep. Nunes’s memo crosses a dangerous line

On Monday, House Intelligence Committee Chairman Devin Nunes (R-Calif.) moved to release a memo written by his staff that cherry-picks facts, ignores others and smears the FBI and the Justice Department — all while potentially revealing intelligence sources and methods. He did so even though he had not read the classified documents that the memo characterizes and refused to allow the FBI to brief the committee on the risks of publication and what it has described as “material omissions of fact that fundamentally impact the memo’s accuracy.” The party-line vote to release the Republican memo but not a Democratic response was a violent break from the committee’s nonpartisan tradition and the latest troubling sign that House Republicans are willing to put the president’s political dictates ahead of the national interest.

McGahn in June, Other Republicans Soon

Republicans — and only Republicans — have the power to make clear that Trump’s presidency is effectively over if he fires Robert Mueller, the special counsel.

At the Justice Department, Republicans can refuse to carry out any order to fire Mueller and create a firestorm if Trump subsequently fires them.

And at the White House, Republicans serving under Trump can explain to him that he would create a true constitutional crisis if he tried to subvert the rule of law.

.. We now know — thanks to Michael Schmidt and Maggie Haberman of The Times — that Trump did try to subvert the rule of law.

.. I would caution people not to lionize McGahn. He’s been involved in some of this administration’s seedier acts, including the nomination of unqualified federal-judge candidates, at least one of whom had personal ties to him. He also played a role in previous attempts by the White House to muck up the Russia investigation, including the firing of James Comey as the F.B.I. director.

.. But McGahn acted honorably and bravely when it mattered most.

.. there is every reason to think he is afraid of it — and willing to do almost anything to obstruct it.

 

 

Yes, Trump Is Weak. So Is Congress.

Mr. Trump is a uniquely dysfunctional chief executive. He contributed to this latest failure of governance with some characteristic misbehavior: erratic, contradictory commitments; confusing tweets; even blowing up a negotiating session by crudely insulting vast swaths of humanity.

As Mitch McConnell, the Senate majority leader, said last week, “As soon as we figure out what he is for, then I would be convinced that we were not just spinning our wheels.”

.. The problem Mr. Trump poses for the rest of the constitutional system is not that he is too strong and overbearing, but that he is too weak and fitful.

For Congress, such a problem might easily present an opportunity. A president unsure of what he wants could be a chance for the legislative branch to put itself in the driver’s seat.

That nothing of the sort has happened suggests that Mr. Trump is far from the whole story of contemporary Washington’s debilitation. His weakness has shed light on Congress’s weakness, and should force legislators to face some tough questions about the state of their own institution.

.. Conservatives are accustomed to blaming that on aggression by the other two branches — an overweening executive and administrative state and a hyperactive judiciary. There is surely truth to that indictment. But we should acknowledge, too, that the aggression of the other two branches has often been invited by the willful weakness of the Congress.

.. Not wishing to take responsibility for making hard choices, members of Congress (particularly when the president is of their party) have long been happy to enact vague legislation at best and to leave big decisions to the executive and judicial branches.

.. Is Congress’s purpose to

  • implement the agenda of the majority party most effectively, or is its purpose to
  • compel and enable accommodations in a divided country?

Today’s Congress does neither very well. But which failure is a bug and which is a feature?

.. Those two visions of Congress’s purpose (which the political scientist Daniel Stid labels “Wilsonian” and “Madisonian,” respectively) generally point in opposite directions when it comes to strengthening Congress,

.. The Wilsonian vision would have Congress function more like a European parliament, with stronger centralized leadership and fewer choke points and protections of minority prerogatives. It would enable the party that won a majority of seats to enact its agenda and see what voters make of it in the next election.

.. The Madisonian vision would recover the purpose of Congress in our larger constitutional system but would mean slow going, greater cacophony, less centralization and more opportunities for coalitions of strange bedfellows to form. It would have Congress serve as an arena for continuing bargaining and compromise, on the premise that greater social peace is better for the country than either party’s bright ideas.

A more parliamentary Congress has been the dream of progressive reformers for more than a century, but it is a poor fit not only for a system of divided powers but also for a polarized society. We need Congress to pursue and drive accommodations — in fact, as the political scientist Philip Wallach has recently argued, Congress is really the only institution in our system of government that could do that.

.. Too often, members in both parties seem to conceive of their work as performative rather than deliberative and use Congress as a platform to raise their profiles or build their personal brands before a larger audience, rather than letting Congress’s constitutional contours contain, reshape and channel their ambitions.

.. This is also how President Trump conceives of the presidency — and in some key respects how his predecessor did, too. It is how too many judges think of their work, and how too many journalists, professors and other professionals think of theirs. They think of institutions not as formative but as performative, not as molds that shape their character and actions but as platforms for displaying themselves and signaling their virtue.