The White House vs. John Bolton

Officials are attempting to use national security as a pretext to prevent the publication of his memoir.

President Trump doesn’t want John Bolton to publish his book, “The Room Where It Happened: A White House Memoir.” It was supposed to come out in March, but Simon & Schuster was twice forced to push the publication date back more than three months, to June 23, while the manuscript underwent “prepublication review” by the National Security Council (NSC).

The purpose of prepublication review is to protect national-security secrets. Regulations disallow its use “to prevent embarrassment to a person.” Yet that’s how the White House has used the process in this case. The effort violates those regulations and Mr. Bolton’s First and Fifth Amendment rights.

Mr. Bolton, who was Mr. Trump’s national security adviser for 18 months, took care as he wrote to avoid revealing anything that might be classified. He instructed me, as his lawyer, to submit the manuscript to Ellen Knight, the NSC’s senior director for prepublication review of materials written by NSC personnel.

I sent Ms. Knight the manuscript on Dec. 30, days after the House had impeached the president and amid speculation that the Senate would subpoena Mr. Bolton to testify. Because the manuscript includes a chapter about Ukraine—the subject of the impeachment—the risk that Mr. Trump and his aides would commandeer prepublication review was obvious.

I therefore emphasized to Ms. Knight that in submitting his manuscript Mr. Bolton was relying on the regulations expressly limiting prepublication review to career government officials regularly charged with that responsibility. Those rules prohibit officials from classifying information “to prevent embarrassment to a person” or to “prevent or delay the release of information that does not require protection in the interest of national security.” Ms. Knight assured me the review’s sole purpose would be to prevent the disclosure of classified information.

What followed was perhaps the most extensive and intensive prepublication review in NSC history. Mr. Bolton and Ms. Knight spent almost four months going through the nearly 500-page manuscript four times, often line by line.

Round one began on Jan. 23, as the impeachment trial was under way. Ms. Knight wrote to me that Mr. Bolton’s manuscript contained “significant amounts of classified information” and that she would provide “detailed guidance regarding next steps that should enable you to revise the manuscript and move forward as expeditiously as possible.”

A few days later Vanity Fair reported that “the president is out for revenge against his adversaries.” The article stated that the president “has an enemies list,” that “Bolton is at the top of the list,” and that the “campaign against Bolton” included Ms. Knight’s Jan. 23 letter. It also reported that the president “wants Bolton to be criminally investigated.”

On Feb. 7, two days after Mr. Trump’s acquittal, Ms. Knight suggested that “to further the iterative process, it would be most efficient for me to meet with [Mr. Bolton] to review each instance of classified information in detail.” Meantime, the White House had acknowledged that NSC staff briefed White House counsel Pat Cipollone about the book while Mr. Cipollone was leading the impeachment defense.

Mr. Bolton and Ms. Knight met on Feb. 21. That same day the Washington Post reported that Mr. Trump had “directly weighed in” on the prepublication review, “telling his staff that he views John Bolton as ‘a traitor,’ that everything he uttered to the departed aide about national security is classified and that he will seek to block the book’s publication.” The Post also reported that Mr. Trump vowed to a group of television news anchors: “We’re going to try and block publication of the book.” The president added, “After I leave office, he can do this.”

Mr. Bolton’s meeting with Ms. Knight lasted four hours. She later wrote that they “reviewed the preliminary results of three chapters in the draft manuscript in detail.” Mr. Bolton took five pages of handwritten notes as they discussed her specific concerns. Three days later, Ms. Knight wrote that the meeting had been “most productive,” and that “it would be most helpful to the process if we hold one or more following meetings . . . to discuss the remaining portions of the draft manuscript.”

They met three more times in the first week of March for more than 10 additional hours. They meticulously reviewed each of Ms. Knight’s concerns in the remaining 11 chapters, producing 34 more pages of handwritten notes. Following her guidance and his own notes, Mr. Bolton revised his manuscript. By March 9 he had resubmitted all 14 chapters to begin the second round of the iterative review.

Mr. Bolton didn’t hear from Ms. Knight again until Friday, March 27, when she wrote, “I appreciate your efforts to address the classification concerns in the latest draft version you submitted. Many of the changes are satisfactory. However, additional edits are required to ensure the protection of national security information. To assist in making the additional required changes, I will provide a list of required edits and language substitutions to guide you in this next stage of revising the draft.”

Her list amounted to 17 single-spaced pages of typed comments, questions, suggestions of specific alternative language, and citations to publicly available source material. Mr. Bolton worked through the weekend and responded in full on March 30, accepting the vast majority of Ms. Knight’s suggestions and proposing alternative solutions to others.

The third round of the review occurred in an April 13 phone conversation when Ms. Knight provided a much shorter list of remaining concerns after reviewing Mr. Bolton’s March 30 revisions. They agreed on these language changes, which were delivered to Ms. Knight on April 14.

During the April 13 call, Ms. Knight said she would review the full manuscript one more time, to recheck resolved issues and ensure she hadn’t overlooked anything. That final review resulted in two further phone calls, on April 21 and 24, in which she conveyed her final round of edits. Mr. Bolton promptly responded with the revisions by April 24. On April 27, after clarifying one previously discussed edit, Ms. Knight confirmed “that’s the last edit I really have to provide for you.” The lengthy, laborious process was over.

Yet when Mr. Bolton asked when he would receive the letter confirming the book was cleared, Ms. Knight cryptically replied that her “interaction” with unnamed others in the White House about the book had “been very delicate” and that there were “some internal process considerations to work through.” She thought the letter might be ready that afternoon but would “know more by the end of the day.” Six weeks later, Mr. Bolton has yet to receive a clearance letter. He hasn’t heard from Ms. Knight since May 7.

We did hear from the White House on June 8. John A. Eisenberg, the president’s deputy counsel for national security, asserted in a letter that Mr. Bolton’s manuscript contains classified information and that publishing the book would violate his nondisclosure agreements.

This last-minute allegation came after an intensive four-month review, after weeks of silence from the White House, and—as Mr. Eisenberg admits in his letter—after press reports alerted the White House that Mr. Bolton’s book would be published on June 23. This is a transparent attempt to use national security as a pretext to censor Mr. Bolton, in violation of his constitutional right to speak on matters of the utmost public import. This attempt will not succeed, and Mr. Bolton’s book will be published June 23.

Alarm as Guatemala bans head of UN anti-corruption body from country

Human rights officials and activists have warned that the rule of law in Guatemala is under threat after a UN-backed special prosecutor was banned from re-entering the country – the latest in a series of clashes between the government and an international anti-corruption commission.

The country’s human rights ombudsman, Jordán Rodas, said in a statement on Tuesday that the government’s actions destabilize the rule of law, and expressed his dismay at “the arbitrary measures of the Government of the Republic that undermine democracy”.

Anti-corruption activists fear that the pioneering anti-corruption work of the UN-backed International Commission Against Impunity in Guatemala, Cicig, is now at risk.

Cicig has launched a string of prosecutions against high-level officials, including the former president Otto Pérez Molina.

Guatemala’s current president, Jimmy Morales, and his family are also the subject of multiple corruption investigations. On Friday, Morales announced he would not renew Cicig’s mandate, which ends in September 2019.

A staunch US ally, Guatemala was one of the handful of countries that backed Trump’s decision in December to recognize Jerusalem as the capital of Israel and moved its own embassy to the city just two days after the US relocated its diplomatic mission.

In the past, the US has been among Cicig’s strongest supporters, but it has not clearly condemned Morales’s recent attempts to derail the commission’s work. In May, Senator Marco Rubio placed a hold on $6m of US funding to Cicig, claiming the panel was being manipulated by radical elements.

Cicig’s success in bringing down corrupt officials, judges and lawyers has soared during the five-year tenure of the head commissioner, Iván Velásquez.

But on Tuesday, the government announced that Velásquez, currently in the US, would not be allowed back into the country, alleging that he was a threat to order and public security.

The decision to declare Cicig commissioner Iván Velásquez as a threat to national security is an absurdity. The only threat to national security is the arbitrary and illegal action of a ruler accused of accepting illegal financing,” Iduvina Hernández, the director of the Association for the Study and Promotion of Security in Democracy in Guatemala, told the Guardian.

Morales, a former TV comedian, has been accused of illicit campaign financing during his 2015 run for president and is currently facing proceedings in congress that could strip him of his immunity from prosecution, though previous attempts to do so have failed.

Last year, Morales declared Velásquez persona non grata, but a successful constitutional court challenge filed by the ombudsman Rodas reversed the measure.

Oswaldo Samayoa, a constitutional lawyer and university professor, considers the ban of Velásquez to be a violation of the 2017 ruling.

“It’s a violation of the principle of constitutional legality. It involves the disobedience of the president and therefore a crime has been committed,” he told the Guardian.

The opposition congresswoman Sandra Morán shares the widespread view that Rodas and the constitutional court are the targets of legislative reform under consideration this week in congress. The reforms would transfer powers from the supreme court to congress that can facilitate the ousting of officials, including constitutional court judges.

“If they replace one judge, the balance of power shifts,” Morán told the Guardian. “It would mean that they would have total control.”

Guatemala has a long history of authoritarian rule, particularly during a 36-year armed conflict in which US-backed state forces carried out acts of genocide against the indigenous Mayan population. Despite a 1996 peace deal, the conditions that led to the conflict remain, and the country’s fraught peace has been plagued by organized crime, drug trafficking, violence and corruption.

The UN secretary general, António Guterres, asked Velásquez to continue at the helm of Cicig from outside Guatemala until there is more clarity on the situation, the UN said on Tuesday.

But Jorge Santos, the director of Udefegua, a national human rights group, warned that there is a danger that Morales could disregard, dissolve or otherwise attack the constitutional court.

Right now in the country there’s a really major risk of a return to the old patterns that gave rise to the Guatemalan dictatorship,” he said.

A Week After the Midterms, Trump Seems to Forget the Caravan

For weeks before the midterm elections, President Trump warned ominously about the threat from a caravan of migrants streaming from Central America toward Mexico’s border with the United States. It was a fearsome mix of criminals and “unknown Middle Easterners,” Mr. Trump claimed darkly, one that constituted a genuine national emergency.

But since the election last week, Mr. Trump has tweeted about the caravan exactly once — to issue a proclamation preventing those who cross the border illegally from applying for asylum in the United States. Fox News, which faithfully amplified Mr. Trump’s warnings about the migrants, has gone similarly quiet on the subject.

There was little dispute, even before Election Day, that Mr. Trump was exploiting the caravan for political purposes. But analysts, historians and veterans of previous administrations said there were few comparable instances of a commander in chief warning about what he called a looming threat, only to drop it as soon as people voted.

While the caravan has faded from television screens, the costs of Mr. Trump’s response to it have not. Nearly 6,000 active-duty troops remain deployed from the Gulf Coast to Southern California, where they are putting up tents and stringing concertina wire to face a ragtag band that is still not near the border.

Now that the political utility of troops on the southern border to face a fictitious caravan invasion threat is over,” said Adm. James G. Stavridis, a former commander of the military’s Southern Command, “let’s hope the president will stand down the troops so they can be with their families — especially over the holidays.”

But some officials in the Defense Department worry that Mr. Trump could do the opposite — seek an exception to the Posse Comitatus Act, the 1878 law that prohibits the government from using active-duty troops to enforce laws inside the country’s borders.

.. voters who made up their minds in the last three days before the election said they voted for Democrats over Republicans 53 percent to 41 percent. That coincides with the period in which Mr. Trump redoubled his focus on the caravan, rejecting the advice of aides who wanted to air a commercial promoting the healthy economy.

.. At one campaign rally after another, Mr. Trump said the election came down to “the caravan, law and order, and common sense.” In Mesa, Ariz., on Oct. 19, he said: “You got some bad people in those groups. You got some tough people in those groups. And I’ll tell you what — this country doesn’t want them. O.K.? We don’t want them.”

.. A day earlier, he tweeted about the “assault on our country at our Southern Border, including the Criminal elements and DRUGS pouring in.”

Mr. Trump posted footage of an undocumented immigrant on trial for killing a police officer, and his campaign organization produced an ad featuring migrants trying to scale a wall to dramatize the stakes of the election.

“I’ve never before seen an American president, after going all over the country about this national crisis, then the day after an election shrug,” said Douglas Brinkley, a presidential historian at Rice University.

The closest parallel that Mr. Brinkley drew was to President Lyndon B. Johnson, who seized on — and mischaracterized — two murky encounters between American and North Vietnamese warships in the Gulf of Tonkin in 1964 as a pretext to accelerate America’s engagement in the Vietnam War. Still, he said, Mr. Trump’s response was of a different order.

It was a dangerous form of xenophobia, aimed solely for electoral purposes and had nothing to do in the end with real national security,” Mr. Brinkley said.

For the troops, so far, it has mostly been an expensive field trip. The cost of the deployment is not known, but budget officials believe it could reach $200 million if all 15,000 troops that Mr. Trump pledged are ultimately sent.

.. Defenders of Mr. Trump said the troops would take little notice of his sudden lack of emphasis on the caravan.

“Knowing the troops, knowing how busy they are, they’re not focused on him,” said Jack Keane, a retired four-star general who is a former vice chief of staff of the Army. “They’ve got a job to do.”

But other former military officers said the soldiers were well aware of the political motivation behind their mission. Lacking much else to do, they will quickly pick up on Mr. Trump’s loss of interest in the caravan, and it will add to their already depleted morale.

Our socialist president

Protectionism, and the promiscuous and capricious government interventions that inevitably accompany it, is , always and everywhere, crony capitalism. But he is spot on about the incompatibility of America’s new darker system and the rule of law:

“Everyone depends on the whim of the administration. Who gets tariff protection? On whim. But then you can apply for a waiver. Who gets those, on what basis? Now you can get subsidies. Who gets the subsidies? There is no law, no rule, no basis for any of this. If you think you deserve a waiver, on what basis do you sue to get one? Well, it sure can’t hurt not to be an outspoken critic of the administration when the tariffs, waivers and subsidies are being handed out on whim. This is a bipartisan danger. I was critical of the ACA (Obamacare) since so many businesses were asking for and getting waivers. I was critical of the Dodd-Frank Act since so much regulation and enforcement is discretionary. Keep your mouth shut and support the administration is good advice in both cases.”

.. Protectionism — government coercion supplanting the voluntary transactions of markets in the allocation of wealth and opportunity — is socialism for the well connected. But, then, all socialism favors those adept at manipulating the state. As government expands its lawless power to reward and punish, the sphere of freedom contracts. People become wary and reticent lest they annoy those who wield the administrative state as a blunt instrument.

.. Tariffs are taxes, and presidents have the anti-constitutional power to unilaterally raise these taxes because Congress, in its last gasps as a legislature, gave away this power.

.. Noting that some Trump protectionism is rationalized as essential for “national security,” Cochrane, who clings to the quaint fiction that Congress still legislates, suggests a new law stipulating that such tariffs must be requested — and paid for — by the Defense Department: “Do we need steel mills so we can re-fight WWII? If so, put subsidized steel mills on the defense budget. If defense prefers to use the money for a new aircraft carrier rather than a steel mill, well, that’s their choice.”

The Supreme Court Won’t Stop Executive Overreach

Presidential appointees, business advocates complain, routinely overstep the authority given them by Congress in how they write and enforce rules. With the addition of Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, business sees the Supreme Court as a reliable bulwark against executive branch overreach.

.. Judge Kavanaugh believes presidents, unlike regulators, are owed considerable deference, especially on national security and law enforcement. That’s significant because Mr. Trump is now using national security to justify his own economic interventions, especially on trade.

.. Much of the controversy over the administrative state harkens back to 1984, when the Supreme Court decided, in a case involving the Environmental Protection Agency, Chevron U.S.A. Inc. and an environmental group, that when a law is unclear, the court should defer to a federal agency’s interpretation of that law.

.. Courts have cited Chevron deference, as this doctrine is known, to grant wide latitude to regulatory agencies, from the EPA to the Department of Labor and the Federal Communications Commission. Many conservatives blame it for a decadeslong transfer of power to the executive branch. They questioned the legality of President Barack Obama’s routine use of executive authority, such as limiting greenhouse gas emissions and suspending some deportations of illegal immigrants, to sidestep Congress.

.. “Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch,” he wrote in 2016 in the Harvard Law Review.
It encourages the president, regardless of party, to “be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.”

.. Both parties have agencies they love to hate: For Republicans, it’s the EPA and the Consumer Financial Protection Bureau; for liberal Democrats, it’s now Immigration and Customs Enforcement. For both, it’s the Internal Revenue Service or the Justice Department when the other party controls the White House. In each case, a change of president is usually enough to change the agency’s behavior.

.. Yet even as he rolls back the administrative state, Mr. Trump has pushed the boundaries of presidential authority. He has imposed steep tariffs on imports of aluminum and steel and is planning the same on cars, citing his national security authority under a little-used 1962 law. Mr. Trump is also weighing forcing utilities to buy more coal and nuclear-generated power, also on national security grounds. 

In both cases, national security appears to be a pretext to shore up economically beleaguered industries.
..  “There is a pronounced dichotomy between Kavanaugh’s view on deference to agencies as opposed to his view on deference to presidents,” says Jonathan Turley, a law professor at George Washington University. He says Congress has been progressively marginalized by the expanding authority of both federal agencies, and presidents; Judge Kavanaugh seems to oppose the first and encourage the second.

.. Judge Kavanaugh’s concurring opinion, as a judge on the U.S. Court of Appeals for the D.C. Circuit, in 2015 that the National Security Agency could collect an individual’s telephone “meta data.” Because the purpose was preventing terrorist attacks, he said, it didn’t violate the Fourth Amendment’s prohibition on unreasonable search and seizure.