An independent judiciary
Matthew Miller was the Justice Department’s public affairs boffin for a couple of years in the Obama administration. He explains why firing an Attorney General is not such a brilliant plan.
Under long-standing traditions in administrations of both parties, the attorney general is charged with enforcing the law free from political interference from the White House. This standard of independence, unique among Cabinet members, is designed to insulate questions of law from inappropriate political pressure, and presidents and attorneys general who have violated that standard have typically paid a grave price for doing so.
I guess no one explained that to Trump? Maybe no one who works for him is even aware of it?
It’s really not a good look to fire an AG for saying an order may be unlawful.
But then it’s also not a good look to issue a sweeping Executive Order without taking any legal advice. Trump and his minions literally seem to think he can Order any damn thing he wants to.
The legality of the underlying executive order is hotly debated. Four federal judges have already halted the administration from enforcing various aspects of it, and people affected by the ban continue to bring new lawsuits. The Justice Department’s Office of Legal Counsel did apparently approve the order on the narrow basis of “form and legality,” but since the Trump administration has not released a copy of the office’s opinion or answered questions about whether it raised any objections, we do not know the extent of its analysis.
They think he can Order any damn thing he wants to and do it as secretively and arbitrarily as he wants to.
But whatever one thinks about the executive order, the more fundamental issue is that in this case the decision whether to defend it in court rested not with the president, but with the attorney general. When Yates raised her objections to the order, she noted that she remained open to being convinced of its legality. The White House, which did not consult with her or other Cabinet members in drafting the order, could have worked with her to make changes that would satisfy her concerns about its legality. Instead, the president chose crisis and chaos.
Because he’s a Malignant Narcissist, and he cannot stand being “disobeyed.”
The White House’s statement announcing her firing revealed the political nature of Trump’s decision. It accused Yates — a career prosecutor with 25 years experience of putting violent criminals behind bars — of having betrayed the Justice Department. Instead of even attempting to wrestle with any questions of the attorney general’s proper role, the White House attacked Yates as being “weak on borders and very weak on illegal immigration.”
Earlier on Monday, White House press secretary Sean Spicer had announced that career State Department officials who disagreed with the president’s immigration order should “either get with the program or they can go.” In its attack on Yates, the White House made clear the president expects the same level of quiet obeisance from his attorney general.
He expects it from everyone.
But the thing is, as with the tax returns and the conflicts of interest and so much else, none of this is statutory – it’s a matter of custom. Trump could not give less of a fuck about what is custom.
Trump’s actions on Monday have now raised the ante for the Senate. Recusal might have previously been enough to put to rest concerns about Sessions’s independence, but now that Trump has made clear he expects his attorney general to follow orders without questioning them, the Senate must respond by rejecting that notion and showing it will confirm only someone who is truly independent. Sessions does not clear that bar.
There is no law that establishes the Justice Department’s independence. Like many democratic norms, it has rested on faithful adherence by committed public servants, attorneys who are willing to make independent judgments, and the oversight of Congress and the free press. Trump just made clear that he does not respect this tradition. It now falls to the rest of us to show that we do.
I hope we can.
It does bring up one thing about our written Constitution: it’s not complete in itself, with no role for precedent, tradition, and custom. We DO depend on all of that, just as we would with an unwritten or piecemeal constitution like the U.K. – we just depend on it to a lesser extent. But here, the “lesser” extent remains a critical one, and we’re hobbled by the expectation that all we need is explicitly formulated there in the Constitution and subsequent law.
One problem Trump has is that his understanding of the government would lead him to fail 7th grade Civics. And I think that goes for a lot of his advisors, too. Most knowledge in this country seems to be gleaned from television, movies, the Internet, and even music, not from an actual review of relevant items. So those of us who have learned at least something about how our government is supposed to work are miles ahead of Trump and friends…and most Trump voters, who also seem to think they elected him Emperor with a different title. To understand otherwise would make one “coastal elite” – even if one lives smack dab in the middle of the so-called heartland.
The 20th century had a long line of Presidents that moved a number of powers toward the Presidency – and Congress went along with it. We are now reaping the “rewards” of that apathy.
I suspect Trump’s understanding of the presidency isn’t that much different than that of the average American; we’ve been dealing with some sort of idea of a supreme President for so long, it was only a matter of time before all lines got blurred, and we had a president who felt he could do whatever he wanted. And if the other two branches let him get away with it, they are as much to blame as he is.
Jeff, that’s pretty much what I was getting at a couple of days back when I referred to the almost religious reverence US Americans grant to the constitution. No document, and certainly not one so brief, can cover all situations sufficiently for all time. When some people are prepared to run roughshod over convention, rules and even law; and others are prepared to enable them through apathy, fear or personal gain; that is when systems of government fail. Western democracy is only robust when the majority of players stick to the rules (unwritten or weak as they may be). As soon as enough people in power fail to behave correctly we get this kind of shit and potentially even failure.
That custom thing, I think that’s just everywhere with established norms. As democracies age, they work out what works, spot the boundaries they know they can’t cross. It doesn’t always get written down, exactly, or not in the law.
And that’s _why_ there has to be a heavy political price for going anywhere near them. People who try to game the system, effectively, by arguing, well, technically you never _said_! Even if it’s like playing chess and suddenly saying I’m gonna colour your queen black and call it mine… Because nothing technically _said_ I couldn’t.
I worry that this is in part the price of people being (I think, frequently, deliberately and manipulatively) made alienated from the process, made especially cynical about it, convinced it’s all just a shoddy, shameful game, so play to win, and anything’s fair. Nations and communities also stand on their common, understood, frequently unspoken values, things you don’t do, things that will absolutely get you struck off the dinner invitation list…
And absolutely, you can bet any number of his loud, braying thugs on the net are now going to be loudly bleating ‘but you never _said_’, and screaming holy hell if any other government body tries, as is only their damned responsibility in a system of checks and balances, to _check_ their chosen tyrant. Oh, and see also the usual ‘but it’s a crisis, to hell with tradition, he needs extraordinary powers’ gambit, and never mind that, dramatic and arresting as the terror events he’s using as a pretext are (and are meant to be, and note the usual convenient synergy between strongman one and violent extremist authoritarian two, as both will attempt to drive you to accept their rule through fear), they’re still about as much a statistical menace to anyone specifically in the mainland US as is being hit by lightning.
This is the absurdity that remains for me, here. I appreciate people get scared; isn’t like I’ve never felt that; I lived near enough to the plane that hit the Pentagon, once upon a time, and these things are designed to be visceral, terrifying, heart-wrenching and generating much alarm, between your sympathy for the suffering and fear that next it may be you or one of your own. But remember: it’s still fear they’re _using_, and a fear you need to manage accordingly, deal with sensibly, and, to my mind, whose very crude purpose you should deliberately try to frustrate, as well as you can by saying ‘fuck that, you ain’t scaring me into anything rash’. And also, really, a rather innumerate fear, at the end of the day, so many places. A bit like selling your house to buy lottery tickets, this, in terms of what you give up for the still faint odds being addressed, here. Let’s trash our entire international reputation and, effectively, let ourselves be _broken_ by this fear they continually try to make the only thing worth considering here, and never mind the groups that do only use these sensational events because that’s _all_ they can do, really, lacking the means to pose an actual, meaningful military danger…
All of which argues, back: go with proportional, measured responses, things you can afford, things that don’t splash ruin on everyone within miles, things that don’t break what you’re trying to protect in the first place. And when you catch someone grandstanging, playing this card for power, send them back to their crappy reality television show with a boot up their ass.
We need to start calling his immigration policy what it is, loudly: Surrender. Surrender to ISIS, surrender to terrorists. Let him be the one to wear the mantle of cowardice, of craven capitulation. ISIS wants these refugees trapped, forced to choose between life under the most extreme imams and death at sea, and Trump is giving them precisely what they want–a population of desperate, oppressed people with no escape.
USAians: Call your Senators and tell them what you think of this. And tell them to support Dianne Feinstein’s two bills to rescind Trump’s Executive Order.
And call your Congresscritter and tell them you want Trump impeached.
Do this every day. Call both offices for each official, the local and the one in D.C. Call, don’t email. They take calls seriously. They really do.
Courts interpret the Constitution, and courts rely on precedent.
But we are dealing with people who despise the legal (as well as social) precedents of the last fifty years or so. They’re going to do everything they can to ram through what legal thuggery they can, knowing that court proceedings are typically slow. While we play catch up, they’ll be appointing radical rightwingers to judiciary appointments
[…] a comment by AJ Milne on An independent […]
Freemage/#5, re ‘a population of desperate, oppressed people with no escape…’
That _too_. Exactly. And, yet again, I have to wonder: is this just that he’s completely clueless? Or is this deliberate. It’s _all_ fraught, from here, in fairness; take the refugees, there’s no guarantee their children are grateful a generation later if they find themselves in a ghetto, marginalized, buffetted about, fitfully inhabiting a confused identity at the intersection of family traditions, the local norms, various bigotries local and imported. But if you want to breed despair, nihilistic, destructive stupidity, and reaching for desperate solutions, you could hardly ask for a better recipe. _If_ any action were truly about security, you’d still want to balance that, say, right, we’ve technical improvements we want to work in, here, carefully, but whatever we do, let’s not tell the world you’re stuck under the psychopaths you already know, grown from the local pathologies, might as well live that, it’s all you’re likely to find available any time soon, and all that’s waiting for you here is hate, fear, and suspicion…
So, no, it _isn’t_ about that, I figure. It’s kinda past obvious. Forgive me if I seem slow to call it. I’d counter it’s I like to be thorough and careful. If a little plodding, now and then.