Executive Privilege Again

No one wants to relive 1974 – Blazing Saddles was pretty good but The Towering Inferno wasn’t, and Kung Fu Fighting topped the music charts. Go figure, but at least that was the year The Brady Bunch was finally canceled. Patty Hearst was kidnapped by the Symbionese Liberation Army too. It was an odd year, but then America was preoccupied. It was all Watergate, all the time, and then there was July 24, 1974 – the Supreme Court ordered Nixon to release those damned tapes and it was over for him. Firing Archibald Cox had done no good. Offering edited transcripts had done no good. Claiming “executive privilege” wasn’t going to cut it – there is no such thing. There never was. No man is above the law. If the court says do it, you do it – even if you’re the president.

No one really expected Nixon to tell the Supreme Court to stuff it – no one would ever hear those tapes. That wasn’t going to work – he’d look like the crook he always said he wasn’t. But this was also a constitution crisis. This was the test of a proposition in the structure of government set up in the Constitution. The president couldn’t do any damned thing he pleased. There are limits. Congress has a say. The courts have a say. Those are the rules. This is not a monarchy.

Nixon resigned on August 9, 1974 – and that was followed by years of everyone saying that this is a nation of laws, not men. That sounded noble, and then clever, and then tiresome. America moved on. Everyone got it. We’d never do that again.

We did that again. We elected Donald Trump, who governs by executive order. Forget Congress. We will do this, or that, or some other thing. He decides. He signs the order. That’s that.

That’s also unsustainable. Nixon found that out. Now it’s Trump’s turn:

A federal judge in Washington state on Friday temporarily blocked enforcement of President Trump’s controversial ban on entry to the United States, and government authorities immediately began taking steps that would allow those previously affected to travel, according to a U.S. official familiar with the matter.

The ruling from U.S. District Court Judge James L. Robart was broader than similar ones before it, and it prompted officials to immediately communicate with airlines. At the same time, though, the White House said in a statement that the Justice Department would “at the earliest possible time” file for an emergency stay of the “outrageous” ruling from the judge. Minutes later, it issued a similar statement removing the word “outrageous.”

“The president’s order is intended to protect the homeland and he has the constitutional authority and responsibility to protect the American people,” the White House said.

That’s a claim of executive privilege. The president does have the constitutional authority and responsibility to protect the American people – no one disputes that – but there are limits. Removing the word “outrageous” seems to be a nod to that notion – the White House knows what’s going on here. They’ll argue that the courts are wrong in this matter, not that it’s outrageous that they even ruled at all. That probably didn’t come from Trump, but he’s new at these matters. They probably gave him a glass of milk and sat him down in front of the television. Reruns of Celebrity Apprentice will keep him calm.

Others will handle this:

The judge’s ruling set up a high-stakes legal confrontation between the new president and the judicial branch over his temporary ban on entry by citizens of seven majority-Muslim countries as well as refugees. In his opinion, Robart wrote that “fundamental” to the court’s work was “a vigilant recognition that it is but one of three equal branches of our federal government.”

“The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government,” he wrote.

It’s 1974 again, with a twist:

Robart granted a request from lawyers for the state of Washington who had asked him to stop the government from acting on critical sections of Trump’s order. Justice and State department officials had revealed earlier Friday that about 60,000 – and possibly as many as 100,000 – visas already have been provisionally revoked as a result of Trump’s order. A U.S. official said that because of the court case, officials would examine the revoking of those visas so that people would be allowed to travel.

Washington Attorney General Bob Ferguson hailed the case as “the first of its kind” and declared that it “shuts down the executive order immediately.” Robart, a judge appointed by George W. Bush, said in his written order that U.S. officials should stop enforcing the key aspects of the ban: the halting of entry by refugees and citizens from certain countries.

That might be a good idea:

Since it was first rolled out a week ago, Trump’s travel ban has been evolving – both because of legal challenges and as a result of decisions by the administration to walk back aspects of it. Green-card holders from the affected countries, for example, no longer need waivers to get into the United States, as they did when the order took effect. And the Department of Homeland Security asserted Friday that the order does not apply to dual citizens with passports from countries other than the seven listed.

The numbers of visas revoked, too, demonstrated the far-reaching impact of the order. Families have been split, students unable to pursue their education, and those in the United States unable to leave for fear of not being able to return – and not by the handful, but by the tens of thousands.

They really were making this up as they went along, and causing massive damage. Judge Robarts had his say – stop that right now. Come back when you’ve got your act together.

That fine, but this isn’t:

Airlines that had been stopping travelers from boarding planes to the United States were told by the government in a conference call Friday night to begin allowing them to fly, according to a person familiar with the call but who declined to be identified because it was a private discussion. The Trump administration, however, could again block the travelers if it were to win an emergency stay.

That’s a bit awkward. Those holding valid visas and the “green card” folks (fully legal permanent residents of the United States) – stay where you are, elsewhere. This will take some time. This ruling could be followed by a stay the next day, and that could be repeated more than a few times, and this will go to the Supreme Court sooner or later. Wait for that ruling, when they get around to it. In fact, everyone stay away. That’s easier for everyone concerned.

But this ruling was clear:

Judge Robart temporarily barred the administration from enforcing two parts of Mr. Trump’s order: its 90-day suspension of entry into the United States of people from the seven countries – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – and its limits on accepting refugees, including “any action that prioritizes the refugee claims of certain religious minorities.”

The order had suspended admissions of any refugees for 120 days and of Syrian refugees indefinitely. The goal, the president said, was to evaluate the process for vetting refugees and other immigrants in order to safeguard the country against terrorism.

The order said that when immigration from the seven countries resumed, persecuted religious minorities would be given preference, and in an interview the day of the signing, Mr. Trump said the United States would give Christians from those countries priority because they had suffered “more so than others.”

He really shouldn’t have said that. There are no “religious tests” for coming here, but there soon might be, even if they’re forbidden by law – or the Supreme Court could change that, but they might not. Who knows? For now, it’s this:

The president’s order allowed for exceptions in the “national interest,” but lawyers for some travelers had described getting one as a Kafkaesque exercise, with the State Department’s website warning that no emergency applications would be heard, and Customs and Border Protection agents at United States airports all but unreachable because their clients were not being allowed to board planes.

“It’s quite clear it was not all that thought out,” Judge Leonie Brinkema of Federal District Court in Alexandria, Va., said in yet another court hearing held Friday. “As a result there has been chaos.”

Another result has been this:

Just after two weeks of Trump’s presidency, majority of Americans want Barack Obama back as President suggests a poll. The new poll shows a significant percentage of voters already thinking that the real estate tycoon-turned-politician should be removed from office.

Those are the numbers:

A survey by Public Policy Polling reflects what the current American mind thinks of their newly-elected President.

The polls elaborate 52 percent saying they would rather have Obama as President, to only 43 percent who are glad that Donald Trump is at the helm.

“Usually a newly elected President is at the peak of their popularity and enjoying their honeymoon period after taking office,” said Dean Debnam, President of Public Policy Polling.

“But Donald Trump’s making history once again with a sizeable share of voters already wanting to impeach him, and a majority of voters wishing they could have Barack Obama back,” he said.

The poll reveals that 40 percent of voters already want to impeach Trump. That is up from 35 percent of voters who wanted to impeach him a week ago, added the survey.

“But when you get beyond the overall package, the pieces of the executive order become more clearly unpopular. 52 percent of voters think that the order was intended to be a Muslim ban, to only 41 percent who don’t think that was the intent. And the idea of a Muslim ban is extremely unpopular with the American people. Only 26 percent are in favour of it, to 65 percent who are against it,” the poll further elaborated.

Yes, two-thirds of the American public never wanted any of this mess, and there are others:

It’s not often that Silicon Valley’s competitors band together as one. But two weeks into Donald Trump’s presidency, the biggest names in tech are preparing to do just that, as the industry steels itself for what appears to be a virtual war with his administration.

A pair of executive orders signed by Trump last Friday, which banned the immigration of citizens from a half-dozen mostly Muslim countries and prohibited refugees from entering the United States, have wreaked havoc on an already tenuous relationship. Chief executives from the tech industry’s most powerful companies have criticized the decisions as being against their core values and bad for business. Now, a group including Apple, Google and Facebook is preparing to put its collective efforts together in a public letter opposing the administration’s early moves.

“We share your goal of ensuring that our immigration system meets today’s security needs and keeps our country safe. We are concerned, however, that your recent executive order will affect many visa holders who work hard here in the United States and contribute to our country’s success,” reads a draft of the letter, obtained earlier this week by Re/Code. “In a global economy, it is critical that we continue to attract the best and brightest from around the world.”

That also may be incompatible with Trump’s America First message. We have tens of thousands of unemployed coal miners. Use them, not the best and brightest from around the world.

No, Trump did not say that, but something is up. Trump’s America is a closed loop, or just closed. There’s the wall. There’s the travel ban. And there are those who don’t like that much:

The drafting of the letter comes in the wake of a stream of strongly-worded statements, company-wide protests and the severing of ties between tech executives and the president’s administration. On Thursday, Uber CEO Travis Kalanick informed employees that he was resigning from Trump’s business advisory council. “Joining the group was not meant to be an endorsement of the President or his agenda but unfortunately it has been misinterpreted to be exactly that,” Kalanick wrote in a memo to staff.

Just hours prior, Microsoft’s chief legal officer Brad Smith sent a public letter to the secretaries of Homeland Security and State, imploring them to grant exemptions to Trump’s order for certain visa-holders and students. “Microsoft has 76 employees who, together with their 41 dependents, have nonimmigrant visas to live and work in the United States and are impacted by the Executive Order,” Smith wrote. He noted that just in the past week, the order had created “substantial disruption for companies,” concluding that “the aggregate economic consequence of that disruption is high.”

Everyone knows that:

President Trump on Friday launched a broad effort to ease regulations on Wall Street, setting up what is likely to be a protracted battle over how to unwind rules put in place after the last financial crisis.

In an executive order, Trump ordered a review of the laws and regulations that govern the U.S. financial system in an opening bid to upend 2010’s financial overhaul law, known as Dodd-Frank. The complicated legislation, which took months to negotiate, touches nearly every aspect of the way banks operate and includes hundreds of rules, some of which have yet to be implemented.

“We expect to be cutting a lot out of Dodd-Frank,” Trump said during a meeting with business leaders Friday morning. “Because frankly, I have so many people, friends of mine, that had nice businesses, they just can’t borrow money… because the banks just won’t let them borrow because of the rules and regulations in Dodd-Frank.”

The prospect of another drawn-out battle over a Wall Street overhaul is being met tepidly by some financial executives, who are wary of reawakening populist passions. After being the target of so many attacks in the years after the financial crisis, many have begun to see their profits grow and stock prices surge again, and they have urged the administration to proceed cautiously.

Forget that:

On Friday, for instance, Trump also signed a memorandum that could delay a Labor Department rule that would require financial professionals advising on retirement rules to put their clients’ interests ahead of their own. The “fiduciary rule,” scheduled to go into effect in April, has long been a target of Republicans, including close Trump ally Anthony Scaramucci, founder of SkyBridge Capital. Critics say the legislation is burdensome and would prompt financial advisers to offer only the most ordinary advice to clients for fear they could run afoul of the rules.

Perhaps so, but that’s playing with fire:

One of the authors of Dodd-Frank, former representative Barney Frank (D-Mass.), was critical of new attacks on the law, taking note of how Trump is relying on people such as former Goldman Sachs leader Cohn, who come from the industry they would deregulate.

“This is a betrayal of his pledge to help the ordinary citizen against the big guys, against Wall Street. He is giving Wall Street what it couldn’t get through the political process,” Frank said.

And this didn’t help:

The administration’s efforts could also hit the Consumer Financial Protection Bureau, which was created by Dodd-Frank. Republicans have been pushing for an overhaul of the way the agency is run, including calling for its director, Richard Cordray, to be fired. But Democrats say the independent agency has played an important role in cracking down on big banks and corporations accused of misleading consumers.

Will Trump sign another executive order stating that the federal government will now assist big banks and corporations in misleading consumers, for the good of the economy? Anything is possible now, and Karen Tumulty and David Nakamura explain why that’s possible:

Stoking fear – a strategy that helped get Trump elected – is emerging as a central part of how he plans to carry out his governing agenda.

“He wants people to understand that he is aggressively going to combat anybody who seeks to do us harm and he’s going to put the safety and security of this country first,” White House press secretary Sean Spicer said. “He’s not going to sugarcoat it.”

That is a theme to which Trump has returned again and again at critical moments – from his acceptance speech at the Republican National Convention that conjured “crime and terrorism and lawlessness,” to his dark inaugural address, with its vivid image of “American carnage.”

Nixon did the same sort of thing, of course, but that’s dangerous:

Channeling and amplifying fear can be an effective campaign tool, but Trump’s critics say it is a dangerous way to lead a country.

“It is used to increase the public threshold for risk,” said Michael Gerson, a chief speechwriter for former president George W. Bush who writes an opinion column for The Washington Post. “Because poor neighborhoods can’t get any worse, why not try something new? Because America is already a jihadist battleground, why not take a radical and discriminatory new direction on immigration? Because the planet is in chaos, why not entirely reorient American foreign policy toward alliances and great power rivals?”

“Things, after all, can’t get any worse,” Gerson continued. “The problem is: Things can get a lot worse, and quickly.”

Others knew better:

Playing upon the nation’s anxieties about what might happen also stands as a stark contrast to how presidents have lifted the country out of actual crisis in the past.

Perhaps most famous was the line that most Americans can still recite from Franklin D. Roosevelt’s first inaugural address, when he told a country in the depth of the Great Depression that “the only thing we have to fear is fear itself – nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.”

There were also other presidents – Bill Clinton in the wake of the 1995 bombing of a federal building in Oklahoma City, Bush standing on the rubble of the World Trade Center in 2001 – who seemed to grow into the job as they summoned the nation to defy what it feared rather than succumb to it.

Scholars of the subject say they can think of no previous U.S. president so enamored as Trump with scare tactics.

“If he frightens people, it puts him in the driver’s seat. He’s in control,” said historian Robert Dallek. “These are what I think can be described as demagogic tendencies.”

That’s a bit obvious, as is this:

Timothy Naftali, a New York University professor who specializes in presidential and national security history, said, “We have a special word for seeing a threat everywhere. It’s called ‘paranoia.’ It’s good for mobilizing a base. It’s very bad for turning a base into a governing majority.”

Let’s see – demagogic tendencies – obsessive paranoia – claims of executive privilege that the courts shoot down. It is 1974 again.

Oops. We did that again, but perhaps this will end the same way. That almost seems possible now.

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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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