Posts Tagged ‘Congress’

White House Aides Explore Alternative Ways to Pay for Border Wall

January 11, 2019

White House officials are divided over whether President Trump should declare a national emergency to obtain funding to build a border wall and end a partial government shutdown

The official described the move as “the best option” if no deal with Congress is attainable.

WASHINGTON—White House officials are divided over whether President Trump should declare a national emergency to obtain funding to build a border wall and end a partial government shutdown, but were exploring how the president could divert funding if he decides to do so.

The White House has asked the Army Corps of Engineers to examine potentially diverting money from other projects to pay for the wall along the U.S.-Mexico border, if Mr. Trump does decide to declare a national emergency. The administration is also exploring having the Department of Homeland Security request the funds from the Pentagon so that it can carry out its mission.

Inside the West Wing, Jared Kushner, the president’s son-in-law and senior adviser, has been lobbying for restraint, according to White House officials. Declaring a national emergency, an option Mr. Trump has been leaning toward, shouldn’t be used to try to win a messaging war against Democrats opposed to a wall, Mr. Kushner said in a recent Oval Office meeting, these officials said.

Instead, Mr. Kushner argued an emergency should be invoked only if it creates a clear path for the White House to build the wall, the key issue in the standoff between Mr. Trump and congressional Democrats that has led to the shutdown. “Let’s stop doing things just to do them,” Mr. Kushner said, according to officials familiar with the meeting.

Kellyanne Conway, Mr. Trump’s counselor, is also among the voices urging caution, saying a national emergency would “let Congress off the hook,” officials said.

Trump vs the Democrats: The Bases Are in Charge

Trump vs the Democrats: The Bases Are in Charge
The debate over border wall spending has become hardened recently because both parties are playing to their bases. It’s making a compromise difficult. WSJ’s Gerald F. Seib explains. Photos: Getty

The internal debate was ongoing Thursday, the 20th day of the shutdown, as Mr. Trump traveled to McAllen, Texas, to meet with Border Patrol agents working without pay. Later, Mr. Trump said he was canceling his late January trip to the World Economic Forum in Davos, Switzerland, citing the border-security and shutdown negotiations.

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US President Donald Trump visits the US-Mexico border with border patrol agents in Texas, January 10, 2019.

Mr. Trump, while saying he would still seek a compromise, views the emergency move as the most efficient way to end the lapse in federal funding, according to people familiar with his thinking. The shutdown will become the longest in U.S. history if it lasts until Saturday. Under such a scenario, Mr. Trump could sign a spending bill to reopen the government, while his emergency declaration would face immediate legal challenges.

President Trump speaks after he received a briefing on border security next to Sen. John Cornyn (L) and Sen. Ted Cruz (2ndR) near the Rio Grande in McAllen, Texas, on Jan. 10, 2019.

“I probably will do it—I would almost say definitely,” Mr. Trump said Thursday.

Some GOP lawmakers said Congress could take action to block such a move or at least issue a rebuke. Congressional aides said Thursday they are researching the legislative process, as lawmakers raise concerns that the precedent set by Mr. Trump, a Republican, would apply to a future Democratic president.

Acting White House chief of staff Mick Mulvaney is among those internally pushing for Mr. Trump to declare an emergency, officials said. About two month before he resigned, Defense Secretary Jim Mattis told Mr. Trump that a national emergency was a realistic option and that the Pentagon could help get the wall built, according to people briefed on the conversation. Mr. Mattis couldn’t be reached for comment on Thursday.

Under one option under consideration if Mr. Trump declares a national emergency, the White House has asked the Army Corps of Engineers to look into projects approved in a February 2018 bill providing disaster relief for Puerto Rico, Texas, California and Florida to see whether funding could be diverted to build the wall, said a congressional aide familiar with the talks.

Federal law allows the president to halt military construction projects and divert those funds for an emergency.

Another option being explored by the White House is having the Department of Homeland Security request the funds from the Pentagon so that it can carry out its mission. This sort of scenario took place last fall, when the department formally asked the Defense Department to provide troops to help safeguard the southern border. Mr. Mattis approved the request.

Supporters react during a visit by President Donald Trump at McAllen Miller International Airport in McAllen, Texas, Thursday, Jan. 10, 2019, in McAllen, Texas. (Joel Martinez/The Monitor via AP)
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One drawback to this approach is that it would tap into money that the Defense Department has set aside for military readiness, a defense official said Thursday.

If Mr. Trump invokes a national emergency, he risks angering some conservative allies, who may view it as an abuse of executive power.

Rep. Matt Gaetz (R., Fla.), who has spoken with Mr. Trump about the possibility of declaring a national emergency, expressed concern over him taking such bold executive action. Republicans—including Mr. Trump himself—were sharply critical of former President Obama’s exercising of executive power in dealing with immigrant children brought to the U.S. illegally by their parents, among other issues.

“I don’t want the next national emergency to be that some Democrat president says we have to build transgender bathrooms in every elementary school in America,” Mr. Gaetz quipped.

Invoking a national emergency in hopes of bypassing Congress also could boomerang, provoking lawmakers to pass legislation curbing the president’s executive power, said Alberto Gonzales, who served as attorney general and White House counsel under GOP President George W. Bush.

The House also could pass a resolution of disapproval aimed at terminating Mr. Trump’s declaration, and the measure would need a simple majority to pass through the GOP-held Senate, though aides are still researching the process. Mr. Trump could still veto the measure, but the debate would likely continue to postpone any construction, as would an expected lawsuit by Congress.

An effort on Capitol Hill among centrist Republican senators to cobble a compromise collapsed on Thursday. “It’s very difficult when we’re dealing with people who do not want to budge at all in their positions, and that’s the president and Speaker [Nancy] Pelosi,” said Sen. Susan Collins (R., Maine).

Mrs. Pelosi declined on Thursday to elaborate on the legal action that House Democrats would take if Mr. Trump declared a national emergency.

“If and when the president does that, you’ll find out how we will react,” the California Democrat said, adding that “the president will have problems on his own side of the aisle for exploiting the situation in a way that enhances his power.”

Mr. Trump has complained to his aides that “something has to happen,” according to a person close to the White House. White House officials involved in the negotiations increasingly believe that Mr. Trump will make the emergency declaration.

“The question is when to pull the trigger,” a White House official said. The official described the move as “the best option” if no deal with Congress is attainable.

Within the president’s Republican Party, there appeared to be more concern in Congress than inside the White House about such a move.

“I don’t think that’s the way we should go,” said Sen. Lisa Murkowski (R., Alaska) as she walked into a meeting of Senate Republicans hoping to find a consensus among the GOP over how to end the impasse.

“At the end of the day, I want to solve the problem, and that’s going to require Congress to act,” said Sen. Thom Tillis, a Republican up for re-election in North Carolina in 2020, as he walked into Senate Majority Leader Mitch McConnell’s office Thursday morning for the GOP meeting. “The president’s got to make a decision within the law, and I’m sure it’ll be subjected to legal challenges,” Mr. Tillis said of declaring a national emergency.

Write to Michael C. Bender at, Kristina Peterson at and Peter Nicholas at

Appeared in the January 11, 2019, print edition as ‘White House Aides Explore Alternatives to Pay for Wall.’




Trump’s calculated ’emergency’ plan to build a wall — Avoiding proper constitutional order

January 8, 2019

The budget standoff between President Trump and Congress has now entered its third week. The House won’t pass a spending bill that gives Trump the $5.6 billion he wants for his wall, or indeed any money for it. Trump won’t sign a bill that doesn’t contain it.

The resulting partial government shutdown is only now reaching the point at which it is starting to hurt, where essential government personnel are working without pay.

The Washington Examiner

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Trump is looking for a way around this, and he might have found one. He has announced that he may declare a national emergency and use that as a pretext to build the border wall that he promised and ran on.

Although such a move could solve the shutdown problem (at least for this year), it would do so at the expense of proper constitutional order. Even if this ad hoc solution is plausibly legal, it’s a terrible way to govern and just another sign that Congress has relinquished far too much of its rightful authority to oversee the executive branch.

Trump’s plan would be to declare an emergency at the border and use that emergency to justify spending military construction funds to build a wall.

Emergency governance has become standard practice. As of 2017, there were 28 different active federal national emergencies. Some are real and threatening, but few are imminent. Six date back to Bill Clinton’s presidency, which ended 18 years ago. More than a dozen public health emergencies were then in effect, and in any given year, literally hundreds of public disaster declarations are made, some more meritorious than others.

Such declarations are not always abuses of power, but they are often used merely to create certain advantageous legal situations or to free money for one purpose or another. The Congressional Research Service found in 2007 that emergency powers exist in law allowing the president to “seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.”

Just looking at that list, it should be clear that such power will inevitably be abused. Even though there are some checks (including judicial review of many “emergency” designations) against the creation of spurious emergencies, presidents have way too much power to act alone.

Even if you support the construction of a border wall, it should concern you that this kind of power will be in the hands of other presidents whose agenda you will not support. Conservatives rightly cried foul when former President Barack Obama claimed his agenda “couldn’t wait” for Congress. What has changed since then?

It’s possible that Trump will find a clever “emergency” method of funding his wall. (It’s also possible that it will be tied up in court until the end of his presidency, but who’s counting?) If it ends up being legal for a president to declare an emergency as an excuse for spending money without approval of Congress, it’s nevertheless a terrible sign that longstanding neglect of our constitutional machinery is degrading the system our founders created.

If lawmakers want to build a wall, they should start by designing a better barrier between congressional and executive powers.

Democrats plot to revive earmarks — Get ready for Pork!

December 13, 2018

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House Democrats are eager to revive the notorious earmark, which is any provision that allocates cash to a pet project in a particular congressional district, when they take back the majority in January.

There is no House rule banning earmarks, but the Republican majority curtailed the practice in 2011 following allegations of corruption and years of bad publicity about projects like Alaska’s “bridge to nowhere” that came with a $320 million price tag.

Now that Democrats are poised to take charge in January, there is nothing to stop them from inserting earmarks in the fiscal 2020 spending bills next year, and lawmakers said they are hoping to soon get a piece of the federal spending pie for specific needs in their districts.

“I hope they come back,” Rep. Jim Clyburn, D-S.C., who will take over as majority whip next year, told the Washington Examiner. “I was against them ever leaving.”

Clyburn and other proponents believe the earmark moratorium imposed by Republicans usurped the authority of Congress to direct spending.

Republicans and Democrats alike have argued that the earmark ban left directed spending up to the executive branch, which does not have the same ability or motivation to fund the needs of individual congressional districts. Lawmakers want the power back in order to give them more control over federal spending for their constituents.

“That’s my argument,” Clyburn told the Washington Examiner.

Democrats in particular are eager to wrest back control of the executive branch because most are so vehemently opposed to President Trump.

“Having the Trump administration decide what is going to happen in various congressional districts is not necessarily the right approach,” Rep. Zoe Lofgren, D-Calif., told the Washington Examiner.

Returning earmarks requires no congressional action, but Democratic leaders would have to give the green light when appropriations bills are drafted next year. They are poised to do so, top leaders said this week.

But Lofgren and other veteran lawmakers in both parties are wary of simply going back to the old earmarking practices that were deemed wasteful or outright corrupt.

According to Taxpayers for Common Sense, earmarks “quintupled” between 1996 and 2005 and included spending that earned public disdain.

In 2006, Rep. Randy “Duke” Cunningham was sentenced to eight years in prison for using his perch on the House Appropriations Committee to earmark money for military contractors in exchange for bribes.

Democrats in the majority at the time added accountability and transparency to the earmark process, but Speaker John Boehner, a staunch earmark opponent, imposed a moratorium when he took over in 2011.

House Republicans have since then increasingly clamored for a limited return of earmarks for waterway and other projects, but the GOP leadership had shied away from returning to a practice that was vilified just a decade ago.

Democratic leaders do not appear hesitant at all.

“I am for what the Constitution says the Congress has the authority and responsibility to do: raise and spend money,” said Rep. Steny Hoyer, D-Md., who will become majority leader in January.

But even those who want earmarks back are wary of simply permitting earmarks without making additional changes to ensure transparency and accountability.

“It would definitely need to be different than the way it was before,” Lofgren told the Washington Examiner.

Rep. Sander Levin, D-Mich., is a proponent of earmarks, which he said he was able to use to help the neediest in his district and to acquire federal dollars for low income housing and other projects.

“The problem with earmarks is they were abused,” Levin, who has served in Congress since 1983, told the Washington Examiner. “I think they need to essentially eliminate earmarks for private entities and have them only public. There needs to be a really good look at it.”

Hoyer reminded reporters this week of the earmark reform put in place by the Democrats when they took the majority in 2006. Those changes include limiting spending to public sector and nonprofit recipients and making them transparent in legislation posted online.

Democrats also required lawmakers affirm they have no financial interest in an earmark.

“To say that a member of Congress is unable to help his or her district, I think that is incorrect,” Hoyer said. “I expect to have the majority of both parties supporting this.”


Should We Give Politicians the Power to Swap Campaign Cash for Corrupt Earmarks?

Democrats and GOP likely to keep leadership in place

November 13, 2018

Meet the new bosses, same as the old bosses.

While House Speaker Paul Ryan is retiring, familiar faces are likely to run both parties in the House and Senate next year despite grassroots demands for a shakeup.

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Democrat Nancy Pelosi, the House minority leader who has been in charge of the caucus since 2002, believes she can garner the votes to regain the speakership, which she held from 2007 until 2011.

By Susan Ferrechio

Reps. Steny Hoyer, D-Md., and Jim Clyburn, D-S.C., are expected to maintain their long-held No. 2 and No. 3 posts in the House. Hoyer is currently minority whip and Clyburn is assistant minority leader; the two expect to be majority leader and majority whip, respectively, next year.

House Republicans also stand ready to re-appoint most of their current leadership team, GOP aides said.

Majority Leader Kevin McCarthy, R-Calif., has the votes locked up to become House minority leader in January while Majority Whip Steve Scalise, R-La., is all but guaranteed to win the position of minority whip, leadership aides said.

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On reason for Kevin McCarthy and Nancy Pelosi advantages: Both are top fundraisers for their party candidates.  (Aaron Bernstein/Pool via AP)

If the familiar lineup in both parties wins the leadership elections this month, it would defy the grumbling from small but important House factions, particularly within the Democratic caucus, who have sought to elevate fresh faces to the top party positions.

“I think it’s time for that generational change,” Rep. Linda Sanchez, D-Calif., the No. 5 House Democrat, said over the summer.

Pelosi and her leadership team have been in place for at least dozen years. Pelosi is 78, Hoyer is 79, and Clyburn is 78.

Pelosi’s election is likely, but not guaranteed. About a dozen House Democrats say they won’t support Pelosi’s bid for speaker and another dozen incoming freshmen have called for new leadership — though only a few of those newcomers have said their opposition is firm.

“Lots of ardent naysayers lost,” a top Democratic aide told the Washington Examiner, referring to some of the Democratic candidates who pledged to oppose her. “That’s the most important point.”

Pelosi can afford to lose a few votes as long as most of the undecided House races fall to the Democrats, as expected. She’ll need a simple majority of 218 votes to win the speaker’s gavel in the House floor vote on the opening day of Congress in January.

Democrats are expected to control more than a dozen seats above the 218 threshold.

“She’s got plenty of room to maneuver,” a Democratic aide said.

On the Republican side, a faction of more than two dozen members of the conservative House Freedom Caucus who were withholding their support of McCarthy have lost much of their leverage now that the GOP will be relegated to the minority.

The House GOP will elect its leadership team on Nov. 14 in a closed-door meeting.

McCarthy will only need the support of a simple majority of the GOP conference to win, rather than the 218 that would have been required if he had faced a floor vote for speaker.

His sole opponent, House Freedom Caucus founder Jim Jordan, R-Ohio, will have the backing of those two dozen conservatives but not much else, providing an easy path to victory for McCarthy.

“We have the votes and we are ready to go,” a top GOP aide familiar with McCarthy’s whip count told the Washington Examiner.

On reason for his and Pelosi’s advantages: Both are top fundraisers for their party candidates.

Pelosi raised nearly $130 million in the 2018 election cycle and is viewed as largely responsible for returning Democrats to the majority. McCarthy’s haul totaled $60 million for the cycle.

The two leaders are also considered their parties’ most able negotiators. Pelosi secured major funding increases for Democrats in the fiscal 2018 and 2019 spending bills while McCarthy can tout a close relationship with President Trump as well as his role as majority leader in passing more than 80 percent of the GOP’s legislative priorities in the 115th Congress.

Most Republicans also view McCarthy as the leadership candidate best positioned to help the GOP win back the majority in 2020, which would put him in line to become the next speaker.

“Fifteen of the seats we lost were seats won by President Trump in 2016 so there is a real opportunity for us to come back in two years,” a Republican leadership aide said.


Trump Defers to Congress on U.S. Response to Khashoggi Killing

October 24, 2018
  • Calls Saudi explanation ‘worst in the history of cover-ups’
  • Pompeo says U.S. is barring Saudi suspects from entering U.S.
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President Donald Trump speaks following a ceremony in the Oval Office at the White House in Washington, Tuesday, Oct. 23, 2018. (AP Photo/Manuel Balce Ceneta)
Trump Defers to Congress on U.S. Response to Khashoggi Death
Trump said he is passing responsibility to Congress for responding to the death of Khashoggi.

President Donald Trump said he is passing responsibility to Congress for responding to the killing of Jamal Khashoggi at a Saudi consulate in Istanbul, and he criticized the conflicting accounts from Saudi Arabia afterward as “one of the worst” cover-ups in history.

“In terms of what we ultimately do I’m going to leave it very much — in conjunction with me — up to Congress,” Trump told reporters Tuesday in the Oval Office. He added that he wants to receive a bipartisan recommendation on penalties.

Secretary of State Michael Pompeo later said the U.S. is moving against individuals it suspects were involved in the killing, without identifying their names or nationalities. The U.S. is revoking or blocking visas for 21 suspects in the incident, according to State Department spokeswoman Heather Nauert. Pompeo said the U.S. is also reviewing the possibility of sanctions against those people.

“These penalties will not be the last word,” Pompeo told reporters at the State Department Tuesday. “We’ve learned a lot over the past few days” and hope to learn a great deal more over next 2-3 days, Pompeo added.

The crisis over the Khashoggi killing continued for a third week as Turkish President Recep Tayyip Erdogan laid out his case Tuesday for why he believes Khashoggi’s death was premeditated and not the result of an interrogation or interview gone awry. The same day, Crown Prince Mohammed bin Salman showed up at a global investment summit in Riyadh that has seen its luster diminished as details of the killing — and Saudi responsibility — prompted a number of high profile leaders to skip the gathering.

Trump on Tuesday offered some additional criticism of the Oct. 2 killing and Saudi Arabia’s response to it, saying that it was “a very bad original concept.”

“It was carried out poorly,” Trump added. “And the cover-up was one of the worst in the history of cover-ups.”

Trump said of the attack on the journalist that “whoever thought of that idea, I think, is in big trouble.”

And in an interview with the Wall Street Journal published on Tuesday evening, the president, asked about Prince Mohammed’s possible involvement in the killing, said, “he’s running things and so if anybody were going to be, it would be him.” Trump also told the newspaper that he didn’t think the Saudi ruler, King Salman, knew that Khashoggi was a target.

Saudi Arabia has most recently said Khashoggi, a prominent critic of the crown prince, was killed after a discussion at the consulate erupted into a brawl. That account has been questioned by world leaders, and Turkish officials have leaked accounts of audio recordings indicating the journalist was ambushed, beaten, killed and his body dismembered.

Erdogan on Tuesday publicly challenged Saudi explanations and declared the killing a “ferocious” premeditated murder, demanding that Saudi Arabia hold accountable those responsible.

Turkish Outrage Over Khashoggi Hints at Changing World Order

Trump said CIA Director Gina Haspel and other U.S. officials looking into the killing should return from the region Tuesday evening and Wednesday. Trump said later that he would meet with officials involved in the inquiry on Wednesday.

“We’re all meeting tomorrow afternoon,” Trump said during a meeting with military leaders early Tuesday evening. “We’ve gained a lot of information. And we’ll know pretty much everything there is to know, I believe.”

Republicans and Democrats in Congress have both expressed deep skepticism about the Saudi explanation. Some lawmakers have called for stiff penalties on Saudi Arabia. but Congress is out of session to campaign for the Nov. 6 elections and won’t return until the middle of next month.

Trump had previously called Saudi versions credible and sent conflicting signals on how the U.S. should respond, last week calling the journalist’s killing “very bad” but repeatedly emphasizing that he didn’t want to endanger U.S. arms sales to Saudi Arabia, Saudi investment in the U.S. or the American alliance with the kingdom.

He repeated on Tuesday that it would be “foolish” to impede arms deals or investment flows.

(Updates with Trump comment to WSJ, in ninth paragraph.)

Trump allies want Congress to find anonymous op-ed author

September 7, 2018

Key congressional allies of President Trump are floating the idea that Congress could take steps to try and find out who wrote the anonymous op-ed in The New York Times disparaging the president.

That action could take the form of an investigation, legislation or hearings.

“We’re looking right now at what’s the appropriate action from a legislative standpoint to review what’s happened,” Rep. Mark Meadows (R-N.C.), the chairman of the conservative Freedom Caucus who also leads a subcommittee that conducts oversight of federal employees, told USA Today. “It is alarming when you have people … that would suggest resistance to the president that they’re serving, especially in light of discussion that may go into the national security realm.”

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Mark Meadows

Sen. Rand Paul (R-Ky.), a one-time presidential rival to Trump, suggested White House officials who hold a security clearance should undergo lie detector tests in an attempt to ferret out staffers speaking ill of the president.

And House Majority Whip Steve Scalise (R-La.) didn’t rule out the possibility of a congressional probe.

“I’m sure we have a number of members that are looking at it right now,” Scalise, the No. 3 Republican in House leadership, told The Hill.

Trump loyalists are enraged that there are administration officials working against the president, casting such agents as “cowards” and “spies” who should immediately resign. They have also lambasted The New York Times for printing an op-ed written by someone purportedly working as a senior administration official describing the actions of an internal resistance group.

But Speaker Paul Ryan (R-Wis.) told reporters Thursday at his weekly news conference that he didn’t think Congress should be getting to the bottom of the op-ed mystery.

Asked if Congress has any role to investigate, Ryan replied: “Not that I know of.”

Rep. Dennis Ross (R-Fla.), who serves on the House Oversight and Government Reform Committee, also poured cold water on the idea that Congress should get involved.

“Other than expressing your sentiment, there is little we can do, realistically,” Ross told The Hill.

House Majority Leader Kevin McCarthy (R-Calif.) — one of Trump’s closest allies on Capitol Hill and the frontrunner to become the next Speaker if Republicans retain control of the House — said the administration, not Congress, should investigate the matter.

“I think the White House should look into it,” he told The Hill on Thursday, while raising concerns that the anonymous official could continue working for the administration.

“I think that’s a real problem if that person stays in the job they currently are in,” he said.

The op-ed author described Trump as erratic, ill-informed and amoral. The writer also described a group of “unsung heroes” in and around the White House who have aggressively worked to halt Trump’s “agenda and his worst inclinations.”

Trump has called on The New York Times to reveal the identity of the author, saying he or she may have committed treason.

“If the GUTLESS anonymous person does indeed exist, the Times must, for National Security purposes, turn him/her over to government at once!” Trump tweeted.

Sebastian Gorka, former deputy assistant and strategist to Trump, told The Hill that treason is a very real possibility.

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File photo

“There are only two possible scenarios given the current lack of credibility the New York Times is suffering form and the wording of the piece: 1) This is a complete fabrication. 2) It was written by the low-level Obama-era holdover, not a ‘senior official’ given the complete lack of any evidence in the piece demonstrating that this was written by a person working close to the President,” Gorka wrote in a text message.

“If it is the latter, then this is a textbook case of Sedition. And if this were 1917 or 1944 it would be Treason,” added Gorka, an opinion contributor to The Hill. “No one elected this person, as a result they have no choice but to dutifully serve the duly elected President. Or resign. If they don’t General Kelly will root them out and President Trump will fire them.”

Some GOP lawmakers close to Trump found themselves facing questions about the Times op-ed at an unrelated news conference at the Capitol on Thursday.

“I don’t believe that that person is doing a good service to faithfully execute their job and the performance of their duties,” said GOP Rep. Lee Zeldin, who has campaigned with Trump in their home state of New York. “That person should not be inside of the administration and they should submit their letter of resignation and move onto something else.”

But Zeldin would not say whether the writer had committed treason, as the president intimated.

Another Trump ally, Rep. Louie Gohmert (R-Texas), interjected to say, “I think the job is called spy.”

Morgan Chalfant contributed.

Blame Congress for Politicizing the Court

September 6, 2018

When lawmakers hand power to bureaucrats, the people expect judges to act as superlegislators.


U.S. Supreme Court nominee Brett Kavanaugh at his confirmation hearing on Capitol Hill, Sep. 5.
U.S. Supreme Court nominee Brett Kavanaugh at his confirmation hearing on Capitol Hill, Sep. 5. PHOTO: CHRIS WATTIE/REUTERS

Brett Kavanaugh has been accused of hating women, hating children, hating clean air, wanting dirty water. He’s been declared an existential threat to the nation. Alumni of Yale Law School, incensed that faculty members at his alma mater praised his selection, wrote a public letter to the school saying: “People will die if Brett Kavanaugh is confirmed.”

It’s predictable now that every Supreme Court confirmation hearing will be a politicized circus. This is because Americans have accepted a bad new theory about how the three branches of government should work—and in particular about how the judiciary operates.

In the U.S. system, the legislative branch is supposed to be the center of politics. Why isn’t it? For the past century, more legislative authority has been delegated to the executive branch every year. Both parties do it. The legislature is weak, and most people here in Congress want their jobs more than they want to do legislative work. So they punt most of the work to the next branch.

The consequence of this transfer of power is that people yearn for a place where politics can actually be done. When we don’t do a lot of big political debating here in Congress, we transfer it to the Supreme Court. And that’s why the court is increasingly a substitute political battleground.

If there are lots of protests in front of the Supreme Court, that’s an indication that the republic isn’t healthy. People should be protesting in front of this body instead. The legislature is designed to be controversial, noisy, sometimes even rowdy—because making laws means we have to hash out matters about which we don’t all agree.

How did the legislature decide to give away its power? We’ve been doing it for a long time. Over the course of the past century, especially since the 1930s and ramping up since the 1960s, the legislative branch has kicked a lot of its responsibility to alphabet-soup bureaucracies. These are the places where most actual policy-making—in a way, lawmaking—happens now.

What we mostly do around this body is not pass laws but give permission to bureaucracy X, Y or Z to make lawlike regulations. We write giant pieces of legislation that people haven’t read, filled with terms that are undefined, and we say the secretary or administrator of such-and-such shall promulgate rules that do the rest of our jobs. That’s why there are so many fights about the executive branch and the judiciary—because Congress rarely finishes its work.

There are rational arguments one could make for this new system. Congress can’t manage all the nitty-gritty details of modern government, and this system tries to give power and control to experts in technical fields, about which most of us in Congress don’t know much of anything.

But the real reason this institution punts most of its power to executive-branch agencies is because it is a convenient way to avoid responsibility for controversial and unpopular decisions. If your biggest long-term priority is your own re-election, then giving away your power is a pretty good strategy.

But when Congress gives power to an unaccountable fourth branch of government, the people are cut out of the process. Nobody in Nebraska, Minnesota or Delaware elected the deputy assistant administrator of plant quarantine at the U.S. Department of Agriculture. If that person does something that makes Nebraskans’ lives difficult, where do they go to protest? How do they navigate the complexity of this town to do executive-agency lobbying? They can’t.

They don’t have any ability to speak out or to fire people through an election. When the administrative state grows—when there is this fourth branch of government—it becomes harder for the concerns of citizens to be represented and articulated by officials who answer to the people. The Supreme Court becomes a substitute political battleground. It’s only nine people. You can know them; you can demonize them; you can try to make them messiahs. Because people can’t navigate their way through the bureaucracy, they turn to the Supreme Court looking for politics. They look to nine justices to be superlegislators, to right the wrongs from other places in the process.

When people talk about wanting “empathy” from the justices, that’s what they’re talking about—trying to make the justices do something Congress refuses to do as it constantly abdicates its responsibility. The hyperventilating that we see in this process shows us a system that is wildly out of whack.

The solution is not to try to find judges who will be policy makers or to turn the Supreme Court into an election battle. The solution is to restore a proper constitutional order with the balance of powers. We need a Congress that writes laws, then stands before the people and faces the consequences. We need an executive branch that has a humble view of its job as enforcing the law, not trying to write laws in Congress’s absence. And we need a judiciary that applies written laws to facts in cases that are actually before it.

This is the elegant, fair process the Founders created. It’s a process in which the people who are elected can be fired, because the men and women who serve America by wearing black robes are insulated from politics. This is why we talk about an independent judiciary. This is why we shouldn’t talk about Republican and Democratic judges and justices. This is why we say justice is blind. This is why we give judges lifetime tenure.

And this is why this is the last job interview Judge Kavanaugh will ever have. Because he’s going to a job in which he’s not supposed to be a superlegislator.

Mr. Sasse, a Nebraska Republican, is a member of the Senate Judiciary Committee. This is adapted from his opening statement at Judge Kavanaugh’s confirmation hearings.

Appeared in the September 6, 2018, print edition.

Trump Administration Tries to Ease Republican Worries About Trade Fights

July 27, 2018

Truce with Europe is touted, but lawmakers push for accelerated efforts on other fronts

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A crowd listens to President Donald Trump as he speaks at Granite City Work, Granite City Ill, Thursday, July 26, 2018. Photo by Cristina M. Fletes, St. Louis Post-Dispatch



WASHINGTON—The Trump administration on Thursday touted its truce with Europe to nervous lawmakers as evidence that its trade policies are starting to show results, but Republicans pushed the administration to accelerate efforts to find similar solutions on other trade fronts.

President Trump flew to the agricultural and industrial Midwest Thursday to highlight what he said are the emerging successes from his hardball trade tactics, such as reopened steel mills protected by tariffs and European pledges to buy crops recently shut out of China, part of an accord reached on Wednesday with European Commission President Jean-Claude Juncker.

President Trump spoke about trade at U.S. Steel's Granite City Works in Granite City, Ill., on Thursday.
President Trump spoke about trade at U.S. Steel’s Granite City Works in Granite City, Ill., on Thursday. PHOTO: SAUL LOEB/AGENCE FRANCE-PRESSE/GETTY IMAGES

Mr. Trump’s aides said his threats were also starting to show results in the form of newly active negotiations from North America to Asia to Africa. They said that has raised the prospect of new trade gains amid the pain already felt in the U.S. from higher import prices and from exports lost due to retaliation by trading partners.

“This is a real vindication that the president’s trade policy is starting to work,” Commerce Secretary Wilbur Ross told reporters as he traveled with Mr. Trump. Mr. Trump, he said, hopes to push for a global reduction in trade barriers, “but to get there, we had to take a route of trying to make it more painful for the other parties to continue bad practices.”

Back in Washington, Trump advisers got an earful from angry lawmakers on Capitol Hill, who blasted the administration’s approach, criticized the Europe pact as weak, demanded faster relief for ailing constituents and pledged to ramp up efforts to tie Mr. Trump’s hands in shaping trade policy going forward.

“There was a lot of pushback on the strategy,” said Rep. Andy Barr (R., Ky.), following a closed meeting between House Republicans and two administration officials—Lawrence Kudlow, head of the National Economic Council, and Peter Navarro, a White House trade adviser. Mr. Barr is one of 24 GOP representatives whose re-election this November is rated a toss-up by the Cook Political Report, and he complained that bourbon makers in his district were being hurt by European retaliation for U.S. steel tariffs. “We want to know when we’re going to get a solution.”

With Republicans growing increasingly worried about losing control of the House this fall, fears aggravated by polls showing the unpopularity of Trump trade policies, Rep. Bill Huizenga (R., Mich.) read aloud to the White House advisers a text from a tool-and-die maker in his district who was facing higher raw-material costs because of the aluminum and steel tariffs. “I was making sure that they heard the message that this is not just uncomfortable—it’s painful and it’s damaging,” Mr. Huizenga later told reporters. He said that because his district also includes farmers, who are getting squeezed by the retaliatory tariffs, “we’re getting it coming and going in western Michigan.”

Many of the lawmakers said the GOP-led Congress should keep alive the prospect of legislation to curb Mr. Trump’s ability to impose tariffs on the table, even after the apparent thaw in relations between the U.S. and EU. Senate Finance Committee Chairman Orrin Hatch (R., Utah) indicated that he wasn’t ready to drop his threat to advance such a measure, which Republicans on his panel have been discussing for weeks, saying, “We’re still going with that.”

In the Europe statement, Mr. Trump and Mr. Juncker agreed to launch trade talks that would seek to eliminate tariffs, non-tariff barriers and subsidies on industrial goods, and would suspend Mr. Trump’s threat of auto tariffs as long as those negotiators were continuing. The two sides also agreed to try to reach an agreement to lift U.S. tariffs on European steel and aluminum and European tariffs imposed in retaliation, though they didn’t give a timetable for doing so.

As part of their campaign to reassure anxious lawmakers, Trump officials said they were moving to follow the European announcement with more trade deals. U.S. Trade Representative Robert Lighthizer told a Senate hearing Thursday morning that “we are close to beginning negotiations” with a number of countries, citing the Philippines and sub-Saharan Africa as specific prospects.

He said he was also optimistic about striking a deal soon to modernize North American Free Trade Agreement with Mexico and Canada, and followed his Senate appearance with meetings with his visiting Mexican counterpart to accelerate the process. “I think we’re close to the point where we’re going to have that finished,” Mr. Lighthizer said.

While the Trump team now seems in a rush to show progress in improving relations with a roster of trading partners, officials indicated they didn’t anticipate any quick fixes in their expanding battle with China. In fact, they suggested their motivation for striking deals with Europe and others was an attempt to line up allies in their standoff with Beijing.

“China is going to be a longer-term problem,” Mr. Lighthizer told lawmakers. The Trump administration has already imposed tariffs on $34 billion in Chinese imports, prompting equivalent retaliation from China, and the U.S. has proposed duties on more than $200 billion in additional imports.

Asked what he considered the most important part of the Europe agreement, Mr. Kudlow told Fox News that “No. 1: the United States and the EU will be allied in the fight against China…. President Juncker made it very clear yesterday that he intended to help us.”

A worker walked past steel coils at the U.S. Steel Corp. Granite City Works facility on Thursday.
A worker walked past steel coils at the U.S. Steel Corp. Granite City Works facility on Thursday. PHOTO: DANIEL ACKER/BLOOMBERG NEWS

Mr. Trump’s trip to the Midwest had him visiting a region that was crucial to his 2016 election victory, but where polls show his popularity slumping ahead of this year’s election. In Granite City, Ill., he held a rally at a steel factory that recently restarted long-idled blast furnaces, a move the company has attributed to the higher prices made possible by the metals tariffs.

A series of workers and managers came up and personally thanked Mr. Trump for helping get their jobs back.

In his visit to the Midwest, Mr. Trump also suggested a link between his agreement with Europe and his desire to keep a GOP majority in Congress this fall, saying his actions were designed to help farmers, who might otherwise vote for Democrats in the fall. But Mr. Trump, in that speech, and one earlier in the day in Iowa, appeared to exaggerate the extent that the Europe deal would help farmers, as sharply different explanations from Washington and Brussels emerged over just the breadth of agricultural talks.

“We just opened up Europe for you farmers,” Mr. Trump said in Iowa. And Mr. Lighthizer told Congress that “our view is that we are negotiating about agriculture, period. That’s part of the process.”

But the joint statement between the sides makes no mention of covering agriculture beyond a pledge to buy more soybeans, nor any promises to discuss addressing European agriculture tariffs and subsidies—a major source of trade tensions with the U.S. European officials said they had successfully rebuffed such a demand, making clear that no broader agricultural talks would be held. Officials on both sides said Europe also agreed to revive an old, unfilled pledge to buy more American beef.

The U.S. “heavily insisted to insert the whole field of agricultural products—we refused that because I don’t have a mandate and that’s a very sensitive issue in Europe,” Mr. Juncker told reporters after his joint announcement with Mr. Trump.

And while European officials did vow to try and buy more soybeans—to help offset American sales lost as a result of Chinese retaliation against the U.S.—they said that was really an affirmation of market forces, as prices for U.S. crops tumble, rather than a promise to buy a quota.

“We are not going to turn into some kind of a Soviet-style economy,” one said. “Market rules will remain in place.”

Write to Siobhan Hughes at and Jacob M. Schlesinger at

Appeared in the July 27, 2018, print edition as ‘Trump Tries to Ease GOP Trade Worries.’


Three Top FBI Cybersecurity Officials to Retire

July 20, 2018

Departures come as U.S. faces threat of cyberattacks

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Christopher Wray at the Aspen Security Forum
Three top cybersecurity officials are retiring from the Federal Bureau of Investigation.



Three of the top cybersecurity officials at the Federal Bureau of Investigation are retiring from government service, according to people familiar with the matter—departures that come as cyberattacks are a major concern for the country’s security agencies.

Senior U.S. intelligence officials warn that the country is at a “critical point” facing unprecedented cyberthreats, including Russia’s ongoing attacks on the American political system. The retirements also come as the FBI is facing regular criticism from President Donald Trump and his supporters, and is working to attract and retain top cyber talent.

Scott Smith, the assistant FBI director who runs the Bureau’s cyber division, is leaving this month. His deputy, Howard Marshall, also left in recent weeks. Mr. Marshall has accepted a job at Accenture , a consulting firm that is expanding its cybersecurity portfolio. Mr. Smith is also expected to move to the private sector.

David Resch, executive assistant director of the FBI’s criminal, cyber, response and services branch, is departing the bureau as well. Mr. Resch, who was named to his senior post by FBI Director Christopher Wray in April, supervised Mr. Smith and Mr. Marshall.

Additionally, Carl Ghattas, executive assistant director of the FBI’s national security branch, has decided to leave for the private sector. And Jeffrey Tricoli, a senior FBI cyber agent who oversaw a Bureau task force addressing Russian attempts to meddle in U.S. elections, left last month for a senior vice president position at Charles Schwab Corp. , the Journal reported last week.

The FBI confirmed the departures. One U.S. official said more people are expected to leave soon, declining to provide additional names.

Several people familiar with the moves said that while it was abnormal to see so many senior-level people leave at the same time, it wasn’t uncommon for agents to depart after becoming eligible for retirement benefits at age 50. However, Mr. Marshall’s exit was seen as “highly unusual,” according to one person, because he is stepping away before retirement age.

“As I retire after 28 years of government service to transition into the private sector, I have full confidence that under Director Wray’s steadfast leadership, the Bureau will remain the FBI the American people have depended on for 110 years,” Mr. Resch said in a statement provided by the Bureau.

An FBI spokeswoman said the agency had a surge of special-agent hires about 20 years ago, so many senior officials are now hitting the age where they qualify for pensions. The FBI expected a higher level of retirements to continue for the next couple of years, the spokeswoman said.

Some former FBI officials and others close to the Bureau said morale has been damaged by attacks from Mr. Trump and some congressional Republicans, who have criticized the agency for its handling of investigations into Russian meddling in the 2016 election and Hillary Clinton’s emails.

“One-and-one-half branches of our government appear to be committed to attacking the Bureau, its workforce and its mission on a near-daily basis,” said Sen. Mark Warner of Virginia, the top Democrat on the Senate Intelligence Committee.

The White House declined to comment.

Mr. Wray on Wednesday disputed any suggestion of flagging morale. The FBI had a special-agent attrition rate of 0.6% this past year, he said, and it receives so many applications annually that it is more selective than Harvard or Yale Universities.

“Would they (FBI agents) prefer not to get criticized? Of course,” Mr. Wray said during an interview at the Aspen Ideas Festival in Colorado. “But at the end of the day, the criticism we care about is the people who know our work.”

An internal FBI survey, obtained and published last week by the Lawfare blog, confirmed that morale overall remained high. But confidence in the vision and ideas of Mr. Wray and his leadership team fell from a year ago, when former Director James Comey was at the helm.

Mr. Trump fired Mr. Comey in May 2017. Mr. Wray on Wednesday noted the survey was taken shortly after he arrived last year.

Some former FBI officials said the pull of leaving was especially strong within the cyber division, which must compete with lucrative salaries and flexible lifestyles offered by technology firms in Silicon Valley and elsewhere.

Others cited bureaucratic frustrations. “There’s an internal tension in terms of how to staff cyber properly,” said a former official. “We constantly have new people in leadership reinventing the cyber program.”

Several cyber and law-enforcement experts said they were confident the work of the FBI’s cyber division would remain high but that turnover takes a toll.

“What is harmful is the churn,” said Leo Taddeo, former special agent in charge of the FBI’s New York cyber division and chief information security officer at Cyxtera Technologies. “Bringing on talent, training talent and then having that talent leave—it creates a gap.”


U.S. Senate leader asks for proposals to block future Russian meddling (Was the Obama Administration’s lack of cyber security criminal?)

July 19, 2018

U.S. Senate Majority Leader Mitch McConnell on Thursday said he had called on two key Senate panels to recommend additional action aimed at preventing future election meddling by Russia as well as hold hearings on Russia sanctions law.

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FILE PHOTO: U.S. Senate Majority Leader Mitch McConnell (R-KY) speaks to reporters at the Capitol as fallout continued over U.S. President Donald Trump’s Helsinki summit with Russian President Vladimir Putin, in Washington, U.S., July 17, 2018. REUTERS/James Lawler Duggan

McConnell, in a statement, said he asked the Republican chairmen of the Senate Banking and Foreign Relations Committees to act “as part of Congress’ ongoing efforts to form part of any national response to meddling by Russia or any other nation in our 2018 elections.”

Cyber-attack from Russia - Stock photo (picture-alliance/chromorange/C. Ohde)


Reporting by Susan Heavey and Tim Ahmann; Editing by Mohammad Zargham


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FILE PHOTO: House Minority Leader Nancy Pelosi (D-CA) speaks during a press conference on the Trump Administration’s tax cuts at the U.S. Capitol Visitors Center in Washington, U.S., on June 22, 2018. REUTERS/Toya Sarno Jordan/File Photo

Did Hillary’s email security negligence as U.S. Secretary of State invite Russian cyber meddling?

Hillary Clinton speaking during a campaign event in Columbus, Ohio, on Monday.

Personal, not secure, “home-brew” email server? Poster child for bad cyber security/National security.

Hillary Clinton was exonerated for mishandling classified email by:

Image result for james comey, photos

Vladimir Putin in Moscow in December. Credit Pool photo by Alexei Druzhinin



Ten Years of Russian Cyber Attacks on Other Nations

President Barack Obama announced the lifting of economic sanctions on Iran, a prisoner swap and the $1.7 billion settlement with Iran in the Cabinet Room of the White House on Jan. 17.

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John Emerson, Washington's man in Berlin, to meet with Guido Westerwelle, German foreign minister, over claims Angela Merkel's phone was tapped by US

Chancellor Merkel called President Obama demanding answers after reports emerged that the US may have been monitoring her phone Photo: YVES HERMAN/REUTERS

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James Clapper talking to a group of people
James Clapper

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U.S. Ambassador to the United Nations Samantha Power speaks at the Center for American Progress’ 2014 Making Progress Policy Conference in Washington November 19, 2014.  Credit: Reuters/Gary Cameron


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Chinese President Xi Jinping and U.S. President Barack Obama at a joint news conference in Washington, D.C. on Sept. 25.
Chinese President Xi Jinping and U.S. President Barack Obama at a joint news conference in Washington, D.C. on Sept. 25. Photo: Pete Marovich/Bloomberg News

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