Thursday, May 11, 2017

Cruising the Web

I'm still not at all convinced that the Comey firing is a terrible scandal of Nixonian proportions. The Democrats make a mistake of dialing every complaint about Trump to level 10. After a while, it just seems like they're rolling out their typical outrage. However, the whole thing was done so ineptly as if Trump thinks he's still hosting "The Apprentice" and he needs to fire someone at the end of the show. Since Trump doesn't seem to have good instincts about how his actions and utterances play politically, it would be nice if there were advisers who have better instincts than Trump and to whom he'll listen. Whether Comey should have been fired or not, this was the right time right after he had testified that the FBI is still investigating ties between the Trump campaign and Russia. And why do it without telling Comey either to his face or some other way beyond having to see it on TV. A well-organized White House would have its talking points organized and set to go immediately instead of having press officials who had no idea that this was going to happen. And it would have been very helpful if Trump had a nomination set to go. Andrew Malcolm summarizes some of the ways that the incompetence of how this was handled is making Trump look worse than needed.
The incident also underscores the desperate need for an influential adult aide by this headstrong president’s side who can say with effect, “No! Let’s think this through.” Forget his silly tweets. Some had hoped family members like son-in-law Jared Kushner or daughter Ivanka might play this role. Or chief of staff Reince Priebus.

Apparently not.

That someone could have whispered – or shouted if necessary – “Sir, with all due respect, you can’t fire the man you’ve consistently endorsed on tardy charges of poor job performance right as he seeks more money to investigate your presidential campaign for Russian influence.”

“Very simply,” Trump said tersely Wednesday, “he was not doing a good job.”

So, here come those bothersome follow-up questions: How exactly was Comey performing poorly? If you’re really firing Comey for poor performance on the Clinton email scandal last year, why didn’t you just let him go during the January transition? Perfect time. Everyone expects personnel changes then. No fuss.

Or use Comey’s huge mistake in testimony last week, misleading Congress on the scale of Huma Abedin’s forwarding of national security emails. The Justice Department had to publish a correction.

Take the director aside this week and say, “Thank you for your long service. But look, this is the last straw in my book. You can resign gracefully and we’ll both move on.”

....Instead with Comey, a brand-new deputy attorney general suddenly produces a damning but thinly sourced memo justifying the director’s discharge 10 months after his alleged malfeasance that helped Trump get elected.

Then, the White House announces Comey’s firing so he sees it on TV in Los Angeles while speaking to FBI employees. You realize, Mr. President, this will also thoroughly alienate someone and his colleagues who know an awful lot about you and who are real pros at the Washington game of assassination by leak?

And you do this without a full explanation, without a convincing list of ethical or incompetent acts and without even the slimmest public list of possible successors? At an overheated time on Capitol Hill guaranteeing partisan confirmation hearings on any successor?
The incompetence demonstrated in this instance is reminiscent of how poorly they rolled out his first executive order on his travel ban. Apparently, Trump is someone who doesn't learn from his previous mistakes about taking time to do something controversial with forethought and planning. It's a shame that someone who ran on the basis of his business experience as proof of what a great leader he would be can't manage simple competence in carrying out his wishes.

This Washington Post story on what led up to the firing either demonstrates that Trump drove the efforts to get rid of Comey because the President was furious that Comey was continuing to investigate the Russia story more than the leaks to the media or that the White House is packed to the brim with self-serving leakers who are quite happy to gossip about the President and what is going on behind the scenes. Either way, it's not a pretty picture. Reportedly, Deputy Attorney General Rosenstein is furious with being pegged as the reason Comey was fired.
Rosenstein threatened to resign after the narrative emerging from the White House on Tuesday evening cast him as a prime mover of the decision to fire Comey and that the president acted only on his recommendation, said the person close to the White House, who spoke on the condition of anonymity because of the sensitivity of the matter.
Can you imagine the earthquake if Rosenstein actually resigned after all of this?

All of this turmoil is going to make it even harder to find competent people to fill all the openings still remaining in this administration. It would take either a saint or a partisan to want to accept the job to head the FBI in these conditions. Such a candidate would have to face Trump's inappropriate demands about investigations that touch on him and his campaign and then that nominee would have to turn around and face Senate confirmation with Democrats howling for an independent prosecutor. What a mess.

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Beyond partisan motivations, Charles C. W. Cooke has an explanation why some people are divided about the Comey firing.
I had an interesting conversation last night with a fellow critic of President Trump’s. He was irritated that I had insisted that those watching the Comey situation remain “skeptical but not hysterical.” Now, he said, is “the time to be hysterical.”

I’ve been trying to understand why he was so vexed, and I think I’ve worked it out: He has assumed — and built into his thinking — that there is a huge Russia scandal in the background of all this. And I haven’t. I certainly think it’s possible that this goes deeper, and I remain as mistrustful toward this administration as I ever was. But I’m not going to credit theories about Watergate-level conspiracies without evidence, and my friend is. That’s the line that divides us.

That being so, his approach makes sense. If, like my friend, you are convinced that Trump is guilty and that we are just waiting for the smoking gun, you will work backwards from that point and conclude that Trump is obviously getting in the way of the investigation, and that this is obviously Watergate. If you aren’t sure that there is a big scandal looming, you’re likely to be circumspect and happy to watch it play out as a process.

Given the suspicions that there are circulating around the Russia investigation, it is crucial that Trump's new nominee for the position be someone who, at last at this point, has the confidence of people on both sides of the aisle. I'm not talking about the vicious partisans who will oppose anyone Trump picks or the pro-Trump mouthpieces who are obligated to support whomever he nominates. I think it would be a real mistake to pick someone with a partisan background. Politico has a list of possible replacements and I think it would be a mistake to pick Trey Gowdy, Chris Christie, or Rudy Giuliani. The nominee should not be a politician, especially one who has is associated with an investigation of Hillary Clinton as Trey Gowdy is or someone with their own questionable backgrounds or who are known as sharp-tongued partisans like Christie or Giuliani. I don't know enough to comment on some of the other possible nominees, but one name caught my eye - Kenneth Wainstein. Politico describes him as someone who might appeal to both parties and be viewed as a fair leader for the FBI.
A longtime federal prosecutor now in private practice, Wainstein served as the first head of the Justice Department's national security division when it was formed in 2006. He previously was the U.S. attorney in the nation's capital under President George W. Bush. Wainstein also brings FBI experience, having served as general counsel and chief of staff to FBI Director Robert Mueller.

Wainstein, who is widely respected by prosecutors and law enforcement officials, was reportedly considered by President Barack Obama as a replacement for Mueller in 2011 before Obama asked Mueller to extend his term by two years.
The reason I think positively about Wainstein is his role in writing a report that exposed the corruption in the UNC Chapel Hill athletic and academic program by offering phony classes. I think he demonstrated with that report that he could do a fair and detailed investigation and make a report even though the results would be unpopular in the state. There are some other names on the Politico list that sound as if they would have bipartisan support. If Trump can make a good choice, a lot of the outrage would dissipate. If the fear is that he's firing someone who was investigating the Russia story, it is crucial that he nominates someone who has credibility for pursuing that investigation. If Trump picks a partisan guy or tries to pick someone who would agree to shut down the investigation, this scandal will never go away no matter what gets reported.

Dan McLaughlin has a good article
explaining that it is in the Republicans' best interest to get the whole Russia story out there. McLaughlin starts off by saying that he thinks Comey is basically a decent man but had too many lapses in judgment to stay in office. However, it still looks suspicious to fire an FBI Director who is investigating the President and his associates. It's not unconstitutional or illegal for Trump to fire him, but it looks bad. That's why talking about a constitutional crisis is absurd - nothing has been done that is unconstitutional as far as we know. So McLaughlin has some advice for the Republicans. Since Democrats and their allies in the media are jumping up and down to pretend that there is clear evidence of Trump collusion with Russia, it behooves the Republicans to make sure that the story is fully ventilated.
If you look at the available facts, instead of wild speculation, this is nonsense. As I detailed at length at the time, there is no such investigation: Comey’s own testimony in March demonstrated that he was pursuing a counterintelligence investigation, aimed at Russia – not a criminal investigation of Trump. That makes all the difference in how such an investigation would proceed (it is likely to be conducted in secret, without any endpoint, and without the goal of indicting anyone) as well as what inferences we should draw from its existence (counterintelligence probes don’t require anything resembling probable cause to believe that any American has committed a crime). Of course, such investigations sometimes spin off criminal investigations; it appears that the FBI is handing out subpoenas to business associates of deposed National Security Advisor Michael Flynn, after revelations of the extent to which he was on the payroll of Russian interests before the election, and Flynn as well as others like Carter Page or Paul Manafort may potentially face legal jeopardy for failure to comply with foreign-lobbyist-disclosure requirements and other disclosure and ethics rules. But while that would be embarrassing to Trump, it’s a very long way away from the sort of thing that “could bring down a president.”

In political terms, the problem for Republicans is that as long as the investigation is secret, Democrats can continue to make it look worse than it is. They have a license to spin conspiracy theories like Marshall’s, without the need for any facts or evidence; they can just say “the FBI is investigating this,” knowing full well that’s not what the FBI is doing but that the FBI won’t say so. That seems to be precisely what ate at Trump,...

Given the Democrats’ obsession with promoting the narrative that Trump is not just teetering on the edge of a Watergate-style implosion but doing so specifically in a way that invalidates the legitimacy of the 2016 election (despite their pre-Election Day obsession with insisting that the result would be unquestioned), Republicans’ political interest should be in an open and transparent process that clears the air of all of this, and does so well ahead of the 2018 midterms. And that political interest dovetails with the national interest in a full accounting of what went on during the election – an interest that trumps even the FBI’s potential interest in counterintelligence. But none of the existing investigations are really adequate to the task. The FBI, as noted, is pursuing an open-ended probe behind closed doors that is unlikely to exonerate anybody. The House is institutionally ill-equipped to investigate a president of its own party, as has been generally true of House majorities for at least the past four or five decades. The Senate Intelligence Committee investigation is the most promising, but it, too, conducts closed hearings, has limited resources, and faces significant partisan obstacles to reaching conclusions that will inspire public confidence.

Nor would a special prosecutor fix any of these problems. Prosecutors are principally concerned with building prosecutable criminal cases, so naturally a prosecutor would head off in the direction of targets like Flynn rather than try to present an accounting of the facts, plus they, too, work in secret with grand juries. It’s still not too late for the solution that best fits what the public needs: a 9/11 Commission-type blue-ribbon bipartisan panel composed mainly of respected people outside of day-to-day active partisan politics, empowered to take testimony, compile documents, and prepare a public report. The FBI can be left to focus on the actual criminal cases (and such counterintelligence goals as it sees fit), but publicly defer to the panel the broader examination of the president’s role. If, as the conspiracy theorists believe, they actually found some smoking gun, there are plenty of political remedies (up to and including impeachment) for that. Meanwhile, by taking the matter out of the hands of the FBI and Justice Department, the question of presidential meddling will be mooted.

Follow the facts, and make them public, and the politics will take care of itself.

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Byron York reports that the Trump administration is trying to get the argument out there that the reason for the timing of the Comey firing was that they wanted to wait for Deputy Attorney General Rothstein to take office and put together a report on Comey's actions at the FBI. According to York, there were many on the Trump team that wanted to fire Comey during the transition. They thought that he seemed to be a weak and incompetent leader of the FBI.
First, it took a long time to get an attorney general in office. Facing Democratic opposition, Jeff Sessions, one of the president's first nominees, was not confirmed by the Senate until Feb. 8. Then, it took a long time to get a deputy attorney general in place. Rod Rosenstein, the deputy — and the man who wrote the rationale for axing Comey — faced similar Democratic delays and was not sworn in until April 26.

Only after Rosenstein was in place did the Trump team move ahead. That was true not only for chain-of-command reasons but also — probably more importantly — because Rosenstein had the bipartisan street cred to be able to be the point man in firing Comey. Even though his confirmation was delayed, Rosenstein was eventually confirmed by the Senate by a 94 to 6 vote, meaning that the vast majority of Democratic senators voted for him along with all of the Republicans.

How important was the arrival of Rosenstein to the bid to fire Comey? This, from a source in a Senate office Wednesday morning: "Many who are suggesting that there's something nefarious about the timing of the Comey firing are likely missing the fact that DAG Rosenstein was sworn in two weeks ago (April 26), and that the FBI Director reports to the DAG on the DOJ org chart. It seems completely normal that the DAG would review their top reports within the first couple weeks of starting."

Discount the part about "completely normal" — firing the FBI director, who has a ten-year term and was conducting a high-profile investigation into Russian interference in the 2016 election that touches on the president, was not a routine act. The point is, it took the arrival of Rosenstein to do it.

Where was President Trump on this? He was certainly part of discussions during the transition that included the Comey issue. But in his public statements, he was — true to form — unpredictable. Some who favored firing Comey were surprised by reports, just three days into the presidency, that Trump would keep the FBI director.

Of course, it is not news that people in the Trump circle are sometimes surprised by what the president says. It's also not news that when Trump says something, it's entirely possible that his organization, in this case the administration, is working on policy that is entirely different.
But when Trump declined to fire Comey in the beginning, he missed his opportunity to do so without encouraging a lot of conspiracy-mongering.
Now, despite having waited to observe the chain of command and have a deputy attorney general with bipartisan support carry out the firing, Trump is in a storm of controversy. How could he have expected otherwise? Democrats who just months ago wanted Comey fired are now comparing Trump's action to the Saturday Night Massacre. Given the intensity of partisan feelings over the Russia affair, the president undoubtedly knew that they would.

Certainly others did. In the first days of the administration, Michael Mukasey, attorney general under President George W. Bush, called on the president to fire Comey over Comey's mishandling of the Clinton case. Later, in March, Mukasey appeared on Fox, where Bartiromo asked him, "Are you surprised Jim Comey is still on his job?"

"I thought that the opportunity to ask him to leave was when the new administration came in," Mukasey said.

"That didn't happen."

"That didn't happen," Mukasey agreed, "and it can't really happen now because [Comey] has gotten himself embroiled in a dispute and it would look like he's being fired for political reasons."

Daniel Henninger discusses what he found by reading the Rosenstein memo about what went on in the FBI as they investigated Clinton's server and it is clear that James Comey way overstepped his duties as the head of the FBI to usurp the role of a federal prosecutor. That is what he should have been fired for. I guess the Obama administration felt constrained in firing him because he was investigating Clinton whom Obama was supporting. That inappropriate meeting between Bill Clinton and Loretta Lynch took the Attorney General out of the picture for the Clinton investigation and presented Comey with the delusion that he could perform Lynch's job for her. If Trump had fired Comey during the transition, he could have believably cited Comey's behavior in the Clinton server investigation as reason enough to do so. Of course, there is the whole hypocrisy taint since Trump praised Comey for reopening the investigation after the discovery of hundreds and thousands some classified emails on Weiner's server. But when has hypocrisy ever stopped a politician, much less Donald Trump?

Henninger then goes on to discuss what we know about the supposed Russian connections with the Trump campaign and makes a good point about the leaking that we've seen and not seen so far.
But what about the infinity of words produced Wednesday by the press, quoting Democrats and even themselves, that Mr. Trump fired Mr. Comey to subvert the FBI’s investigation of the president’s Russia entanglements? We say “entanglements” because nowhere has it been made remotely clear what the Trump-Russia connection may have been. What we read, endlessly, is that some strand or crumb “suggests that . . .”

As with Hillary’s server, there is a Rosetta Stone for the Russia story. It is the Barack Obama/Loretta Lynch decision in January to sign rules permitting the National Security Agency to disseminate “raw signals intelligence” to 16 other intelligence agencies without privacy protections for individuals.

Two months later, it was reported by the New York Times that Obama administration officials had done this to dispense information across the intelligence bureaucracies “about possible contacts between associates of President-elect Donald J. Trump and Russians.”

Of course, those “contacts” leaked into the water-collection barrels of the entire Washington press—either from officials inside 17 U.S. intelligence agencies or from Obama officials themselves, such as it-wasn’t-me Susan Rice.

The predictable tumult from the Obama-originated mass leaks then intimidated Congress into sending the House and Senate intelligence committees chasing after these “suggestions” of collusion.

Beyond Mike Flynn and Carter Page, why haven’t we seen more leaks pushing past the original stories? Why have the leakers gone silent, unless they leaked everything they had? Indeed why hasn’t there been a mega-dump into the press by now of all the original NSA “raw signals intelligence” à la the Pentagon Papers?
The answer isn't to appoint a special prosecutor.
Instead, calls are now bubbling up from this swamp—what else can you call it?—to appoint a special prosecutor, presumably to get to the bottom of the Russian collusion swamp, though without subpoena powers in Moscow.

No one outside Washington should be misled by the choruses calling for an “independent” prosecutor. This is special pleading.

For the political class it relieves them of responsibility for policing their own neighborhood. The media likes these prosecutors because they become Inspector Javerts, melodramatically chasing their targets for years, more often than not destroying reputations. The Justice Department’s guidelines make clear these special prosecutors are accountable to virtually no one. They don’t produce justice; they endanger it.

The “Trump is Nixon” narrative will rattle on, but it is a sideshow. The Trump White House can take care of itself (maybe). The serious issue revealed in all this—the server, the leaks, the investigations—is about institutional accountability, not just at the FBI, but across the intelligence bureaucracies, their masters in government, Congress and the media.

The American public deserves better than this endless Beltway spectacle. Rod Rosenstein deserves credit for saying that the road back to public seriousness had to start with firing James Comey.
Appoint someone reasonable and let the FBI demonstrate that they can conduct a decent investigation and present their findings to the public.

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For those who believed that Sally Yates took Ted Cruz to school during her testimony before the Senate, Josh Blackman explains why that is so not true. Surprisingly, it helps to listen to the whole exchange instead of an excerpt. It turns out that she made a rather crucial misstatement of the law in question.

Jonathan Turley, no Republican mouthpiece, examines Sally Yates' testimony more in depth and finds what she said about refusing to defend Trump's first travel ban order, simply amazing.
Yates was lionized by Democratic senators as a “hero” and has been celebrated in the media for her “courageous stand.” However, for those concerned about constitutional law and legal ethics, there is little to celebrate in Yates’ stand. Indeed, her explanation before the Senate only made things more confusing. It was a legal wonderland moment for the new Alice of the Beltway Wonderland: “Curiouser and curiouser!” cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English).”

There has been considerable speculation on why Yates would engineer such a confrontation, but what is more important is her justification for ordering an entire federal department to stand down and not to assist a sitting president. Yates’ prior explanation fell considerably short of the expected basis for such a radical step. She dismissed the review of the OLC by insisting that those career lawyers only look at the face of the order and did not consider Trump’s campaign statements and his real motivations. Of course, many question the use of campaign rhetoric as a basis for reviewing an order written months later by an administration. Most notably, Yates did not conclude that the order was unconstitutional (in contradiction with her own OLC). Rather, she said that she was not convinced that the order was “wise or just” or was “lawful.” She does not explain the latter reference but then added that she was acting on her duty to “always seek justice and stand for what is right.” That is a rather ambiguous standard to support this type of obstruction of a sitting president.
Turley notes some more of the problems with her answer to Ted Cruz's questions about the actual words of the immigration law.
So all of this leads to one of the few truly probing questions given Yates at the hearing. Sen. John Kennedy, R-La., asked, “Did you believe, then, that there were reasonable arguments that could be made in its defense?” In an astonishing response, Yates said no because she decided on her view of Trump’s real intent and not the language of the order. However, many judges disagree with implied motive as the appropriate standard for review, as evidenced by the oral argument this week before the Fourth Circuit. More importantly, at the time of her decision, many experts (including some of us who opposed the order) were detailing how past cases and the statutory language favored the administration. It is ridiculous to suggest that there were no reasonable arguments supporting the order.

Despite this record, Democratic senators heralded Yates as an inspiration. Blumenthal said that he hoped that young people were watching Yates and saying, “That's the kind of professional I want to be.” It is a curious message to send. According to this same standard, Attorney General Jeff Sessions would also be a hero if he ordered no one at the Justice Department to assist in defending environmental laws as an unconstitutional deprivation of state authority or anti-discrimination laws as a deprivation of religious liberty. There are also judges who might agree with him on those issues and he clearly does not view some of those laws as “wise or just.”
The Democrats never seem to look further than their noses to what the implications are of their policy choices. They ignored the argument that Obama's expansion of executive authority could be used by a president less to their liking. They ignored the obvious point that using the nuclear option on presidential nominations might come back to bite them if a Republican became president with a Republican Senate. And now they're setting up a standard whereby government officials can ignore enforcing or defending laws with which they disagree.

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Wendy Kaminer and Alan Dershowitz write today about the ACLU and how it has become more of a leftist organization and has abandoned its original mission to defend civil liberties no matter how objectionable the defendant might be.
The ACLU was once a nonpartisan organization focused on liberty and equality before the law. In recent years it has chosen its battles with an increasingly left-wing sensibility. In doing so, it has become considerably more equivocal and sometimes even hostile toward core civil liberties concerns of free speech and due process.
They might condemn speech codes on college campuses, but they also are pretty passive about censorship on campuses. They've also abandoned protections of due process rights of students.
The ACLU even sided with the Obama administration’s crusade against due process for college students accused of sexual misconduct. “Title IX is pretty awesome because it is expansive,” declares a 2014 ACLU blog post, referring to the antidiscrimination statute. “Title IX pushes universities to do a better job of creating a campus environment that discourages and, ideally, prevents sexual violence.” The ACLU has been silent about the widely documented proliferation of campus kangaroo courts that presume guilt and deprive the accused of the most basic procedural protections. (The official who oversaw these directives for the Obama administration’s last four years was a former ACLU attorney.)
As Kaminer and Dershowitz explain, the older generation of leaders has retired and the new guard is increasingly left wing moving toward being just another progressive special interest group rather than occupying its special place as the group one could depend on to defend civil liberties for even the most despicable such as the pro-Nazi marchers in Skokie, Illinois.
But the ACLU’s concern for the due-process rights of visitors and immigrants contrasts with its refusal to defend the due-process rights of American college students. They can’t rely on the ACLU to defend liberty and justice for all, regardless of politics or ideology. Neither can you.