The spiraling president adds self-impeachment to his repertoire

Donald Trump, an ongoing eruption of self-refuting statements (“I’m a very stable genius” with “a very good brain”), is adding self-impeachment to his repertoire. Spiraling downward in a tightening gyre, his increasingly unhinged public performances (including the one with Finland’s dumbfounded president looking on) are as alarming as they are embarrassing. His decision regarding Syria and the Kurds was made so flippantly that it has stirred faint flickers of thinking among Congress’s vegetative Republicans.

Because frivolousness and stupidity are neither high crimes nor misdemeanors, his decision, however contemptible because it betrays America’s Kurdish friends, is not an impeachable offense. It should, however, color the impeachment debate because it coincides with his extraordinary and impeachment-pertinent challenge to Congress’s constitutional duty to conduct oversight of the executive branch.

Aside from some rhetorical bleats, Republicans are acquiescing as Trump makes foreign policy by and for his viscera. This might, and should, complete what the Iraq War began in 2003 — the destruction of the GOP’s advantage regarding foreign policy.

Democrats were present at the creation of Cold War strategy. From President Harry S. Truman and Secretary of State Dean Achesonthrough Sen. Henry Jackson and advisers such as Max Kampelman and Jeane Kirkpatrick, they built the diplomatic architecture (e.g., NATO) and helped to maintain the military muscle that won the war. But the party fractured over Vietnam, veering into dyspeptic interpretations of America’s history at home and abroad, and a portion of the party pioneered a revised isolationism. Conservative isolationism had said America was too virtuous for involvement in the fallen world. Progressive isolationism said America was too fallen to improve the less-fallen world.

Hence, Republicans acquired a durable advantage concerning the core presidential responsibility, national security. Durable but not indestructible, if Democrats will take the nation’s security as seriously as Trump injures it casually.

Trump’s gross and comprehensive incompetence now increasingly impinges upon the core presidential responsibility. This should, but will not, cause congressional Republicans to value their own and their institution’s dignity and exercise its powers more vigorously than they profess fealty to Trump. He has issued a categorical refusal to supply witnesses and documents pertinent to the House investigation of whether he committed an impeachable offense regarding Ukraine. This refusal, which is analogous to an invocation of the Fifth Amendment protection against self-incrimination, justifies an inference of guilt. Worse, this refusal attacks our constitutional regime. So, the refusal is itself an impeachable offense.

As comparable behavior was in 1974. Then, the House articles of impeachment against President Richard M. Nixon indicted him for failing “without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by” a House committee, and for having “interposed the powers of the presidency against the lawful subpoenas” of the House.

If Trump gets away with his blanket noncompliance, the Constitution’s impeachment provision, as it concerns presidents, will be effectively repealed, and future presidential corruption will be largely immunized against punishment.

In Federalist 51, James Madison anticipated a wholesome rivalry and constructive tension between the government’s two political branches: “Ambition must be made to counteract ambition. The interest of the man must be connected to the constitutional rights of the place.” Equilibrium between the branches depends on “supplying, by opposite and rival interests, the defect of better motives.” But equilibrium has vanished as members of Congress think entirely as party operatives and not at all as institutionalists.

Trump is not just aggressively but lawlessly exercising the interests of his place, counting on Congress, after decades of lassitude regarding its interests, being an ineffective combatant. Trump’s argument, injected into him by subordinates who understand that absurdity is his vocation, is essentially that the Constitution’s impeachment provisions are unconstitutional.

The canine loyalty of Senate Republicans will keep Trump in office. But until he complies with House committee subpoenas, the House must not limply hope federal judges will enforce their oversight powers. Instead, the House should wield its fundamental power, that of the purse, to impose excruciating costs on executive branch noncompliance. This can be done.

In 13 months, all congressional Republicans who have not defended Congress by exercising “the constitutional rights of the place” should be defeated. If congressional Republicans continue their genuflections at Trump’s altar, the appropriate 2020 outcome will be a Republican thrashing so severe — losing the House, the Senate and the electoral votes of, say, Georgia, Arizona, North Carolina and even Texas — that even this party of slow-learning careerists might notice the hazards of tethering their careers to a downward-spiraling scofflaw.

Making Acosta a Federal Case

Question: What does CNN’s Jim Acosta crave more than anything? If you said “attention,” go to the head of the class. It’s a mystery why the White House has given Acosta way more than that. By yanking his “hard pass” after last week’s press conference (don’t ask who was obnoxious; they all were), Acosta has literally become a federal case. CNN filed suit claiming that its reporter’s First and Fifth Amendment rights were violated. More than a dozen news organizations, including Fox, have filed amicus briefs supporting CNN, and even Trump-friendly Fox News judicial analyst Andrew Napolitano has opined that Acosta has a strong case. Mr. Showboat is just where he wants to be — the center of attention — but thanks to President Trump’s gratuitous swipe, he is also a free-press martyr.

The Legal Precedent That Could Protect Jim Acosta’s Credentials

A 1977 court ruling said that administrations cannot bar correspondents from the briefing room without “due process.”

.. In January 1972, when Sherrill reapplied for White House press credentials, he was again denied without explanation. That’s when the American Civil Liberties Union took his case to federal court. With the ACLU’s help, Sherrill sued the Secret Service for violating his First and Fifth Amendment rights.

By the time a D.C. circuit-court judge ruled in his case in 1977, it had been 11 years after his credentials were originally denied.

.. hen donald trump clashed with Jim Acosta, the chief White House correspondent for CNN, at his post-midterms news conference on Wednesday—and later revoked his press credentials—he most likely knew nothing about the precedent set by the D.C. Circuit Court of Appeals in Robert Sherrill’s case—precedent, experts said, that put the law squarely on Acosta’s side.

“Thank you Mr. President. I wanted to challenge you on one of the statements that you made on the tail end of the campaign in the midterms,” Acosta started, microphone in hand, staring ahead toward the president from the front row of the press conference.

Trump’s lips pursed and then released. “Here we go,” he said, practically breaking the fourth wall.

“If you don’t mind, Mr. President—” Acosta tried.

“C’mon, c’mon, let’s go.” The president let out a half whistle from his mouth and motioned to his rival to hurry up and ask his question.

“—that this caravan was an invasion.”

“I consider it to be an invasion,” Trump replied.

The exchange became testier and Trump’s complexion reddened. “Honestly, I think you should let me run the country. You run CNN. And if you did it well, your ratings would be better,” Trump told the reporter.

Acosta held on to the microphone as a White House intern tried to grab it back from him. “Mr. President, I had one other question, if I may ask, on the Russia investigation,” Acosta said. “Are you concerned that—”

Trump lifted a finger and wagged it from the podium. “I’m not concerned about anything about the Russia investigation, ’cause it’s a hoax.” He walked away from the podium momentarily, readying for his next hit. Acosta gave in and relinquished the mic.

“I’ll tell you what,” the president huffed. “CNN should be ashamed of itself, having you working for them. You are a rude, terrible person. You shouldn’t be working for CNN … You’re a very rude person. The way you treat Sarah Huckabee [Sanders] is horrible and the way you treat other people are horrible. You shouldn’t treat people that way.”

When Acosta returned to the White House grounds later that evening to do a live shot for Anderson Cooper 360°, the Secret Service asked for his hard pass, which he had held since 2013, and confiscated it. They were just following orders, and he understood that; the orders came from higher up. His access was revoked: He was locked out of the Trump White House.

.. To explain why Acosta’s credentials had been revoked, Sarah Huckabee Sanders, Trump’s press secretary, tweeted a highly edited video on Wednesday that appeared to show Acosta hitting the intern who tried to grab his microphone. Sanders wrote on Twitter, “President Trump believes in a free press and expects and welcomes tough questions of him and his administration. We will, however, never tolerate a reporter placing his hands on a young woman just trying to do her job as a White House intern…” Acosta tweeted back, “This is a lie.”

In actuality, the video Sanders shared was doctored and originally posted by Paul Joseph Watson, a British conspiracy theorist associated with the fake-news website Infowars.

.. The White House Correspondents’ Association denounced “the Trump Administration’s decision to use US Secret Service security credentials as a tool to punish a reporter with whom it has a difficult relationship.”

.. The conservative blogger Erick Erickson tweeted, “Y’all, I’m sorry to defy the tribe, but I’ve watched this video over and over and it looks more like @Acosta had his arm out pointing with his finger and when she tried to pull the microphone down, both his arms went down rather naturally.”

.. Among those in media and politics, the widespread consensus was an obvious one: This was not about safety and security; this was not about an assault. Acosta was punished for the way he went about his reporting.
.. “If there are professional concerns that the White House has about Jim Acosta or anyone else, they should express that professionally. They should be talking about that openly and there should be an effort to determine what, if anything, needs to change. The response is not engaging the Secret Service to pull someone’s credentials.”

“That’s just completely inappropriate and just this side of thuggery in my view,” Sesno added.

.. In public remarks on Friday morning, Trump seemed unremorseful about pulling Acosta’s credentials. The president threatened further punishment for reporters like American Urban Radio Networks’ April Ryan, calling her a “loser.”

“It could be others also” if they “don’t treat the White House and the office of the presidency with respect,” Trump said.

.. “Once the government creates the kind of forum that it has created, like the White House briefing room, it can’t selectively include or exclude people on the basis of ideology or viewpoint,” said Ben Wizner, the director of the ACLU’s Speech, Privacy, and Technology Project.

.. The new steps enunciated in the Sherrill decision to ensure that reporters’ First Amendment rights are not violated include

  • the requirement to give the reporter notice and
  • the right to rebut a formal written decision, which must accompany any revocation.

“We further conclude that notice, opportunity to rebut, and a written decision are required because the denial of a pass potentially infringes upon First Amendment guarantees,” the court’s ruling states. “Such impairment of this interest cannot be permitted to occur in the absence of adequate procedural due process.”

.. “If the Secret Service makes this kind of determination that they’re going to no longer let someone have access, or limit access from the start, there should be a really good reason for that,” Michele Kimball, a media-law professor at George Washington University, said. “And if you are denied that access, there should be some sort of procedural due process for you, [so] that you can find out what happened.
.. “What they’ve done here is not only unwise, but probably illegal,” the ACLU’s Wizner concluded.
.. He clearly relished that role as an outsider, because when he won his 11-year battle with the White House to get credentialed, he opted against it.
.. “The fun thing about this was that when I was finally going to get a press pass, I never applied,” Sherrill told the Times. “I didn’t want to be in the White House. I had been in Washington long enough to realize that was the last place to waste your time sitting around for some dumb [expletive] to give a press conference.”
When all was said and done, Sherrill knew his best work would be done far away from the place he was never allowed to visit.

Lois Lerner’s Last Laugh

If Congress did its job, nobody would be talking about another special counsel.

When House Intelligence Committee Chairman Devin Nunes subpoenaed documents and testimony from the FBI and Justice Department, he was stonewalled for months. In a last-minute bid to circumvent the committee’s demands, FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein met with Speaker Paul Ryan. The two men ended up agreeing to comply with the subpoenas—but only because Mr. Ryan informed them they would be found in contempt if they did not.

This kind of stonewalling has fed the agitation on Capitol Hill for a second special counsel, who would look into everything from the FBI’s handling of the Clinton email investigation to the use of the Christopher Steele dossier to obtain warrants to listen in on members of the Trump campaign. The calls are mistaken. But the frustration is real

.. But missing here is any discussion of the powers Congress itself has, including but not limited to the subpoena and contempt powers that ultimately forced Mr. Wray and Mr. Rosenstein into compliance.

.. If it only has the backbone, Congress can get what it wants out of the federal bureaucracy. Several executive-branch officials—including Justice’s Bruce Ohr and FBI lovers Peter Strzok and Lisa Page —will soon testify before the House Intelligence Committee. Possibly some or all of them will invoke their Fifth Amendment right against self-incrimination.

If Congress insists on its prerogatives, however, that wouldn’t be the end of the story. Witnesses who plead the Fifth can still be compelled to testify. The price is that the compelled testimony, and evidence derived from that testimony, couldn’t be used against the witness in a prosecution.

A special counsel might not like this, given his emphasis on indictments and prosecutions. But Congress should, because its end goal is political accountability. Which would be up to the American people to impose after learning exactly what abuses have transpired.

Trump Would Be Crazy to Sit with Mueller. Mueller Would Be Crazy to Insist.

Why the special counsel probably won’t subpoena the president.

In the end, Trump will not agree to a voluntary interview. Mueller has the authority to subpoena him to appear before the grand jury, but for a variety of strategic reasons should be reluctant to do so.

.. Trump and his allies are now racing to undermine the legitimacy of Mueller’s investigation in the hope of muting the impact of its results. The longer the investigation takes, the more successful Trump’s campaign is likely to be. Mueller, therefore, would be well advised to weigh the burden of the time-consuming and distracting litigation that Trump would launch to block a subpoena against the limited value of Trump’s testimony and move on.

.. Clinton resisted sitting down with Ken Starr until the independent counsel obtained a subpoena. They then negotiated to allow Clinton to testify for four hours from the White House with his lawyer present and the grand jury connected by video.

.. Prior presidents also feared the political damage from appearing uncooperative with law enforcement. Trump has worked furiously to build political support for his resistance to cooperation and appears confident that his base and core supporters in Congress will insulate him from political consequences.

.. Mueller—because of the importance of obtaining spontaneous answers, asking follow-up questions and observing the witness’s demeanor—will not agree to anything less than live questioning.

.. Moreover, the precedent set by issuing a subpoena could be abused by less scrupulous prosecutors than Mueller to sully a president for political purposes.

.. Trump will respond to a grand jury subpoena with a protracted legal challenge that will go to the Supreme Court. At the very least, he is likely to challenge the constitutionality of the special counsel’s appointment; argue that Mueller has exceeded his authority by investigating tangential matters; urge the court to impose limits on the scope, time, place and manner of the questioning; and contend that much of the information the grand jury will seek is covered by executive privilege. Mueller is likely to prevail, but victory will take time and distract his team from wrapping up the investigation, while giving Trump endless opportunities to denounce the “witch hunt.”

.. Although taking the Fifth could be politically embarrassing, grand jury secrecy might prevent the public from learning of it.

 

Uber Feared It Fell Behind in Driverless-Car Technology, Kalanick Testifies

Ex-CEO is highlight of second day of trial in which Google’s parent alleges Uber stole trade secrets

.. Mr. Levandowski previously has indicated he will invoke his Fifth Amendment right against self-incrimination. Mr. Kalanick has denied any theft in depositions.

.. Waymo attorney Charles Verhoeven showed December 2015 meeting notes from former Uber executive John Bares, then the head of the self-driving program, in which Mr. Kalanick appeared to be singularly focused on lidar, as well as intellectual property.

.. Mr. Bares said the company was burning through about $20 million a month trying to develop reliable autonomous vehicles. Relying on Mr. Levandowski’s assistance would help pare the costs by speeding up development

.. Kalanick’s goal of getting 100,000 driverless cars on the road by 2020

.. Autonomous vehicles are essential to Uber’s business, Mr. Bares said, given human drivers account for 70% to 80% of the cost of operating a vehicle in ride-hailing.

.. Still, he acknowledged Google was and remains the leader in self-driving vehicle technology. “That’s the general perception right now,” he said.