Provisional Autonomy

Old men have their memories. College ended, and the sixties seemed to end, on the same bright June day of the last June of that decade. It was time to move on. Nixon was president. The counterculture lost. It was time to get a job and watch from the sidelines. The war wasn’t going to end. All the demonstrations had done next to nothing, and the following year there was Kent State – the student antiwar demonstrators shot dead by the Ohio National Guard. Sure, that was a mistake, a screw-up. Nixon and everyone else said they were sorry – that wasn’t supposed to happen – that would never happen again. Perhaps that was so, but everyone hunkered down anyway, and about that same time there was that first draft lottery. Everyone now knew who was going to Vietnam and who wasn’t. Everything was settled. There was nothing more to say.

Those years were a dull ache. Nothing was going to change. Nixon was reelected in a landslide, but then the oddest things started to happen. That third-rate break-in at the Watergate complex had been his doing, and the more he tried cover that up, the more he screwed up the cover-up. He could have said sorry, he had ordered that break-in, saying that he had made a stupid mistake and it would never happen again – the Kent State model – but he would have had to say that early on. He was trapped now. His only option was to try to stop the cascade of ongoing investigations.

That makes for a delicious memory – listening to the news on the car radio on a soft Saturday evening in October 1973 – driving along the Blue Ridge Parkway north of Asheville at the time. Attorney General Elliot Richardson had appointed Archibald Cox in May, after telling the House Judiciary Committee that he would appoint a special prosecutor to investigate the Watergate thing. The Department of Justice was independent. It didn’t answer to the president. Cox issued a subpoena for Nixon’s taped conversations, but Nixon would have none of that. That’s what was on the radio. It was the Saturday Night Massacre – Nixon told Attorney General Elliot Richardson ro fire Cox, right then and there. Richardson wouldn’t do that. He resigned, on the spot. Nixon then told Deputy Attorney General William Ruckelshaus to fire Cox. Ruckelshaus wouldn’t do that either. He resigned, on the spot. Nixon then ordered the Solicitor General Robert Bork – third in line as acting head of the Justice Department – to fire Cox. Bork did the deed – not that it did any good – the Supreme Court would soon rule that Nixon had to hand over the tapes anyway. But no one knew that on that evening. The news on the car radio that evening was amazing.

Old men have their memories. There was a time when the Department of Justice wasn’t political. Those folks enforced the law. No one was above the law, not even the president, even if each president did appoint his own attorney general.

So what? We have an independent judiciary. That’s the deal. Robert Bork did find that out. Years later, Ronald Reagan nominated him for the Supreme Court – perhaps to reward him for his effort to protect Nixon. The Senate refused to confirm him. He had betrayed the system – and he was a bit crazy anyway. Things had settled down, and Nixon was long gone by then.

This whole matter of an independent judiciary was settled long ago. Some of us remember, but now we’ll have new memories:

President Trump fired acting attorney general Sally Yates on Monday night after she ordered Justice Department lawyers not to defend his immigration order temporarily banning entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world.

In a news release, the White House said Yates had “betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States.” Trump named in her place Dana Boente, the U.S. attorney for the Eastern District of Virginia. Boente said he would enforce the president’s directive until he was replaced by Trump’s attorney general nominee, Sen. Jeff Sessions (R-Ala).

Yates is Richardson and Boente is Bork:

The move came just hours after Yates ordered the Justice Department not to defend Trump’s immigration order, declaring in a memo that she was not convinced the order is lawful. Yates wrote that, as the leader of the Justice Department, she must ensure that the department’s position is “legally defensible” and “consistent with this institution’s solemn obligation to always seek justice and stand for what is right.”

“At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful,” Yates wrote. She wrote that “for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.”

She thought she had provisional autonomy – the right and duty to look into the law in this matter and act accordingly – but lots of people make that mistake now:

The stunning events marked the latest sign of turmoil over Trump’s announcement Friday that he would shut the U.S. borders to refugees and those entering the country from seven Muslim-majority countries.

More than 100 State Department diplomats have signed a memo objecting to Trump’s order, arguing that it will not deter attacks on American soil. The document, which says Trump’s ban will generate ill will toward U.S. citizens, is destined for what’s known as the department’s Dissent Channel, which was set up during the Vietnam War as a way for diplomats to signal to senior leadership their disagreement on foreign policy decisions.

That’s just a memory too now as such people will be slapped down:

A Justice Department official said that hours after Yates released her memo refusing to defend the president’s executive order she was delivered a one-line letter from the head of the White House Office of Presidential Personnel saying that she had been removed. The White House then announced her firing with a statement criticizing her as “an Obama Administration appointee who is weak on borders and very weak on illegal immigration.”

“It is time to get serious about protecting our country,” the statement said. “Calling for tougher vetting for individuals travelling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country.”

That doesn’t speak to the law at all, just her attitude, and the “law” really was in trouble:

Yates’s refusal to defend to Trump’s immigration order – and her firing over it – capped a day in which resistance to the ban fomented inside the government and across the country.

Civil rights lawyers and others across the country increased the pressure on Trump on Monday to dial back the ban – filing legal challenges to the executive order as they worked to determine whether people were still being improperly denied entry or detained. Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, who worked on one of the legal challenges, said of Yates’s memo, “It sends a very strong message that there’s something very wrong with the Muslim ban.”

Earlier in the day, former president Barack Obama also weighed in on the executive action through a spokesman, seeming to back those demonstrating against Trump’s decree and declaring his opposition to “discriminating against individuals because of their faith or religion.”

Obama said that he was “heartened by the level of engagement taking place in communities around the country” – an apparent reference to protests at airports nationwide. He also disputed Trump’s claim that his ban was based on Obama administration decisions.

Many disputed that, so it was time to ask for Nixon’s tapes:

A Justice Department official familiar with the matter said Yates felt that she was in an “impossible situation” and had been struggling with what to do about a measure she did not consider lawful. A Justice Department official confirmed over the weekend that the department’s Office of Legal Counsel had been asked to review the measure to determine whether it was “on its face lawful and properly drafted.”

In her memo, though, Yates said her role was broader. She wrote that an Office of Legal Counsel review does “not address whether any policy choice embodied in an Executive Order is wise or just,” nor does it “take account of statements made by an administration or its surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose.”

That could be a reference to Trump’s campaign trail comments about a “Muslim ban” or the recent assertion by Trump surrogate Rudolph W. Giuliani that the president had asked him “the right way to do it legally.”

Both did say things, on record, that call this thing into question – roll the tapes – and it was like old times:

Democrats criticized Yates’s firing as an unfair termination of someone who was following the law. House Minority Leader Nancy Pelosi (D-Calif.) said, “What the Trump administration calls betrayal is an American with the courage to say that the law and the Constitution come first.” Senate Minority Leader Charles E. Schumer (D-N.Y.) said the termination “underscores how important it is to have an attorney general who will stand up to the White House when they are violating the law,” and said many have doubts about Sessions.

Others, though, turned their ire on Yates.

“It can’t be stated strongly enough how reckless, irresponsible and improper the behavior was of the acting attorney general, Sally Yates, in refusing to defend the president’s order,” senior policy adviser Stephen Miller told Fox News.

Miller accused Yates of “refusing to defend the lawful powers of the president.” He also said he had no doubt about the legality of the order.

That’s nice, but maybe he should have doubts:

Even with Yates gone, there remain serious questions about the implementation of the order. A lawsuit in Virginia asserted that dozens of people may have been forced to give up their green cards by Customs and Border Protection agents, although that figure could not immediately be substantiated. Lawyers in Los Angeles said they had received similar reports, though they were still exploring them.

The ACLU’s Gelernt said that lawyers were “having trouble independently verifying anything because the government will not provide full access to all the detainees.” Of particular concern, he said, was that the government had not turned over a list of detainees, as it had been ordered to do by a federal judge in New York. He said that lawyers might be back in federal court in the next day or so to forcibly get access to it.

The ACLU lawsuit in New York is perhaps the most significant of a growing number of legal challenges. The Council on American-Islamic Relations also filed a sweeping challenge Monday, alleging that the order is meant “to initiate the mass expulsion of immigrant and non-immigrant Muslims lawfully residing in the United States.” The lawsuit lists 27 plaintiffs, many of them lawful permanent residents and refugees who allege that Trump’s order will deny them citizenship or prevent them from traveling abroad and returning home. Lawyers with the Northwest Immigrant Rights Project filed a similar challenge in Washington state.

Bob Ferguson, Washington state’s attorney general also filed a lawsuit on Monday alleging broad, constitutional concerns with the order and its impact on Washington – making him the first state official to do so. That lawsuit has the support of Microsoft and Amazon.com, two companies based in Washington state.

This is a mess, but a familiar mess:

“Trump has commenced a course of conduct that is Nixonian in its design and execution and threatens the long-vaunted independence of DOJ,” Michigan Democratic Rep. John Conyers tweeted. “If dedicated government officials deem his directives to be unlawful and unconstitutional, he will simply fire them as if government is a reality show.”

But Trump’s former GOP rival, Sen. Ted Cruz, jumped to the President’s defense.

“After eight long years of a lawless Obama Department of Justice, it is fitting – and sad – that the very last act of the Obama DOJ is for the Acting AG to defy the newly elected President, refuse to enforce the law, and force the President to fire her,” Cruz said in a statement.

It seems to be October 1973 again, even with that other matter:

The White House on Monday warned State Department officials that they should leave their jobs if they did not agree with President Trump’s agenda, an extraordinary effort to stamp out a wave of internal dissent against Mr. Trump’s temporary ban on entry visas for people from seven predominantly Muslim countries.

Career officials at the State Department are circulating a so-called dissent cable, which says that Mr. Trump’s executive order closing the nation’s doors to more than 200 million people with the intention of weeding out a handful of would-be terrorists will not make the nation safer, and might instead deepen the threat.

“These career bureaucrats have a problem with it?” Sean Spicer, the White House press secretary, told reporters. “They should either get with the program or they can go.”

That was Sean Spicer channeling Nixon, with all sorts of people expecting provisional autonomy:

The visa ban has rattled other agencies, as well: the Defense Department, which says it hurts the military’s local partners in conflict zones like Iraq; the Department of Homeland Security, whose customs officers are struggling to enforce the directive; and the Justice Department, whose lawyers are charged with defending its legality.

But Mr. Spicer’s blunt warning posed an especially difficult choice for the more than 100 State Department officials who indicated they would sign the memo. They can sign a final version, which would be put on the desk of Rex W. Tillerson, Mr. Trump’s designated secretary of state, on his first day in office. Or, they can choose not to identify themselves, and rely on the leak of the letter to make their point without identifying themselves.

Under State Department rules and whistle-blower laws, it is forbidden to retaliate against any employee who follows the procedures and submits a dissent memorandum. One of the signatories, in a text message, said State Department signatories were trying to figure out what to do.

There’s a lot of that going around – people thinking that what they think matters – as if that’s part of their job – but not in Nixon’s world:

The fallout Monday from President Trump’s sweeping immigration order exposed painful rifts within the Republican Party, alarmed members of his Cabinet and fueled suspicions among his top advisers.

That left the defiant commander in chief stewing over who was to blame – capped by Trump’s remarkable decision late Monday to fire the acting attorney general because she refused to enforce the order as potentially unlawful.

For all the promises of Republican bonhomie, Trump and his aides kept GOP congressional leaders almost completely in the dark about the most consequential act of his young presidency: a temporary ban on refugees and on anyone from seven majority-Muslim nations.

It seems that people who thought that what they thought matters found out otherwise:

Defense Secretary James Mattis and Homeland Security Secretary John Kelly fumed privately to associates over the weekend because they had been caught unaware by a travel ban that was drafted and set into action largely in secret by the White House, according to three people who have spoken with them.

Inside the West Wing, tensions flared as differences in management style emerged between two factions: one led by chief strategist Stephen K. Bannon and senior policy adviser Stephen Miller, who wrote the immigration order, and the other composed of Chief of Staff Reince Priebus and his deputies, who are accustomed to operating with a more traditional chain of command.

As it became evident that the rollout of the executive order bordered between clumsy and dysfunctional, people in Trump’s orbit divided over who was at fault, with some blaming Miller. Others said it was Priebus who should have taken charge of better coordinating with the departments and communicating with lawmakers and the public.

“The problem they’ve got is this is an off-Broadway performance of a show that is now the number one hit on Broadway,” said former House speaker Newt Gingrich, an informal adviser to Trump.

Newt Gingrich can be absurdly colorful, but that’s not far off the mark:

The infighting spilled into public view Monday morning on MSNBC’s “Morning Joe.” Host Joe Scarborough, who spent part of Sunday visiting Trump at the White House, looked into the camera and directly challenged Miller.

“This weekend was a disgrace and it’s all on your shoulders,” Scarborough intoned.

His commentary was all but certain to be noticed by the president himself; Trump is such an avid watcher of the show that when Sen. Joe Manchin III (D-W.Va.) recently appeared, he received a congratulatory call from Trump just moments later.

Trump is an odd man, but then he’s just Richard Nixon:

Privately, the president seethed, venting about what he saw as unfair news coverage on a second straight weekend of mass protests, and quizzing confidants about their impressions of how his senior staffers were performing.

And meanwhile:

On Capitol Hill, many Republicans close to leadership were frustrated that they received little to no guidance, or advance notice, about Trump’s immigration and refugee directive. One top House office said it was able to glean the president’s plan only through unofficial back channels to the Department of Homeland Security.

Asked if he was consulted in drafting the order, Senate Majority Whip John Cornyn (R-Tex.) replied simply, “I wasn’t” – an echo of Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.), who told reporters Monday that the White House had not briefed him before signing the order.

The first substantive guidance to congressional Republicans came late Saturday – well after protesters had descended on the nation’s airports – in a two-page memo that offered some details on the policy but, to the chagrin of several Capitol Hill aides, very little political guidance. At the end was a pledge for the secretary of state to report regularly on “victims of female genital mutilation or honor killing by foreign-born nationals.”

What? Don’t ask. In fact, that was Archibald Cox’s problem forty-four years ago. He asked. He was fired – but things worked out anyway. Richardson and Ruckelshaus became heroes. Bork was the sleazy coward. Old men have their memories. We just wish we didn’t.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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