Senate delivers a blow to the Imperial Presidency

Only a president as stubborn and heedless as Donald Trump could have committed himself so implacably to such an unpopular and inexplicable war — with such an unsavory and murderous ally — as to stir an otherwise submissive Senate to actively assert war powers it has blithely ceded to the executive branch for at least 17 years, if not all the way back to the Vietnam War.

But that’s exactly what Trump did by refusing to disengage from the calamitous Saudi-led bombing campaign laying waste to Yemen – even after the Saudis used American intelligence and bombs to target civilians; even after more than 85,000 Yemeni children died of starvation; even after the United Nations labeled it “the worst man-made humanitarian crisis of our time;” and even after the war’s architect, Saudi Crown Prince Mohammed bin Salman, was determined by U.S. intelligence officials to have ordered the ambush execution of a U.S.-based journalist.

And the Senate responded on Thursday with a resounding, bipartisan, 56-41 vote to demand an end to U.S. military support to the Saudi war in Yemen.

Other presidents might have not have pushed things this far, if not for moral reasons then for political ones. “I think even a normal Republican president would have given up by now,” said Mark Weisbrot, the president of Just Foreign Policy.

And it’s not as if Trump has strongly held principles about such things. Weisbrot speculated that perhaps Trump was letting his ultra-hawkish national security adviser John Bolton make the call.

Regardless, the Senate has woken from a long slumber during which its Constitutional role as the only branch entitled to declare war withered and the imperial presidency grew out of control, with the commander-in-chief asserting broad unilateral powers to engage in hostilities even when there was nothing remotely like an immediate threat to the American people.

Suddenly, on Thursday, the Senate was standing tall. “The bipartisan character of the vote transformed the Senate’s decision into a fundamental ratification of the enduring significance of the War Powers Resolution,” Yale law professor Bruce Ackerman wrote me in an email.

It was the Senate’s very first invocation of the resolution since it was passed in 1973 — over the veto of Richard Nixon — to check the president’s power to commit U.S. forces to an armed conflict without the consent of Congress.

“It was a very big deal,” said Andrea J. Prasow, deputy Washington director for Human Right Watch.

“It’s a precedent that anybody who likes war doesn’t want,” said Weisbrot.

It also changes the media narrative significantly – and maybe permanently.

“Reporters and editors couldn’t get the idea that Congress actually has the power under the Constitution — reaffirmed by the War Powers Resolution — to decide whether the U.S. military can participate in a war,” Weisbrot said. “The political culture surrounding the imperial presidency is so strong.”

And although some pundits are saying the vote was more about rebuking the Saudis for the murder of Jamal Khashoggi than it was about Yemen and reasserting war powers, the fact is that both houses of Congress were already well on their way to taking action against the war before Khashoggi was killed – and even before a spate of particularly brutal bombings targeting civilians, including a devastating attack on a school bus in early August, killing 40 children.

As I wrote in September, it was more than a year ago that the House overwhelmingly passed (336 to 30) a resolution stating that Congress had not authorized U.S. military assistance in Yemen. And the Senate resolution that passed on Thursday almost passed in March.

Nothing more will happen during this Congress. Ackerman called out House Speaker Paul Ryan for using an amendment to the omnibus Farm Bill to suspend the War Powers Resolution’s mandate that explicitly prevents congressional leaders from blocking a floor vote.

With support from top House Democrats, the resolution is sure to come up – and win passage – in the House during the next congressional session.

Ackerman worries that Senate Majority Leader Mitch McConnell will follow Ryan’s lead and illegally refuse to allow the House bill onto the Senate floor. Weisbrot argued that if McConnell had a way to block a vote, he would have done so before Thursday’s session.

And the ACLU has expressed strong concerns that the language of the resolution is too vague to have much practical effect even if both chambers pass it – and override a veto.

So what’s next for a newly assertive Congress?

“This one’s not over yet, so everyone I know is focusing on this, because this is the most people dying,” Weisbrot said. But, he noted, “it’ll have effects on other wars, because it’s establishing a number or precedents.”

Prasow of Human Rights Watch said she hopes Congress starts demanding more information about where the military is involved overseas. “What I would love to see the new Congress take up is secrecy with respect to U.S. use of force,” she said.

But Mariah Zeisberg, a political science professor at the University of Michigan and author of War Powers The Politics of Constitutional Authority, was less impressed by the Senate’s apparent turnaround.

“The challenge is politically significant because Saudi conduct in the war in Yemen is significant and because Khashoggi’s murder is significant,” she said. “But I don’t see this as a resurgent Congress reasserting its war powers.”

The problem, she explained, is that the War Powers Resolution is too deferential to the presidency. “That the resolution must be approved by the president to become law tells us that this is not a constitutional challenge so much as a political one,” she said.

“That certain legislators want to portray any questioning whatsoever of the presidency as a challenge of constitutional proportions tells us more about degraded norms in Congress than it does about the Constitution.”

When Congress creates, authorizes and funds an agency, should a president be able to sabotage it from within?

The 226-page list of positions subject to presidential appointment.
Donald Trump has appointed manifestly unqualified hacks to gut agencies whose missions they oppose – bringing new urgency to efforts to reform the political-appointment process.

The fact is that congressional legislation creates these agencies, authorizes them to engage in certain activities and programs, and funds them. So it should be more of an issue when the president tries to destroy them from within.

University of Texas public policy professor Don Kettl tells me that even when previous Republican presidents expressed hostility for a particular agency, their appointments were not nearly as radical as Trump’s. “There’s usually been a grudging respect for the mission of the departments,” he said. “I just don’t recall any time in the past where there’s been such an intent to appoint people interested in doing the bureaucracy in.”

The problem, as with so many other instances in which Trump’s excesses have gone unchecked, is Congress.

“Congress has abdicated its responsibilities in very real ways,” says Max Stier, head of the Partnership for Public Service, a nonprofit that tries to make government work better.

One problem, he says, is that there are entirely too many political appointees. According to the government’s official “Plum Book,” there are more than 1,200 positions appointed by the president that require Senate confirmation – and about 2,000 more that he can simply install on his own.

“I’m quite confident that you could quite easily get rid of more than half — and I would argue more than two thirds — of the Senate confirmed ones and you would be just fine,” Stier says.

It makes sense that a president should be able to install enough people to put his policy stamp on an agency. “But then there’s the entourage,” Stier says – the senior advisers, senior counsels, special counsels, chiefs of staff, deputy chiefs of staff. “They’re just free radicals that interfere with an effectively run organization.”

And Congress has also failed to properly exercise its authorization and appropriation powers. Stier argues that Congress should regularly review and update what the agencies are authorized to do, and should provide budgets that reflect those authorizations — on time and for more than a single year.

“Congress has a ton of power if it uses it, and uses it right,” Stier says.

The poster child in Trump’s agency sabotage is the Consumer Financial Protection Bureau, created by Congress in 2010 to protect ordinary Americans from defective financial practices.

As the Washington Post reported last week, in gripping detail, Trump has filled the upper echelons of the CFPB with people who oppose its very existence, undermine its mission, and torment the people who work there.

And as I reported yesterday, employee confidence in senior leadership there dropped precipitously in the annual Best Places to Work in the Federal Government ratings produced by Stier’s group.

Ketl says that although it’s hard to entirely unwind an agency, “there are people scattered throughout the Trump team who have discovered that there are certain levers of power they can use that allow them to go a surprising way down the road of Trump’s goal of disabling some of these agencies.”

“It turns out that if you can put the right people in the right places, you can pull the bricks out bit by bit and cause a substantial amount of destabilization,” he says.

Trump appointed Office of Management and Budget director Mick Mulvaney to also be acting director of the CFPB last November – invoking the controversial Federal Vacancies Reform Act to install an outsider who had called the bureau a “sick, sad” joke, instead of allowing the deputy director to run things on a temporary basis.

It wasn’t until last week that Senate Republicans confirmed another White House official and Trump loyalist, Kathy Kraninger, to be CFPB’s director.

The Senate, of course, could have rejected Kraninger because of her startling lack of any relevant experience – that’s the easiest and most straightforward way Congress can block the appointment of people bent on sabotage.

But Mulvaney wouldn’t have been in charge for more than a year if Congress had made the federal vacancy-filling rules more precise, and had more explicitly mandated that senior career professionals be left in charge until the president’s nominee is confirmed.

Going forward, Congress could also establish formal qualifications and performance plans for political appointees. “There has never been a real appreciation for what the leadership responsibilities are when the political appointees come in,” Stier says. In fact, political appointees “typically don’t see their job as the health of the organization they’re responsible for… they see their job as policy creation and, when forced to, crisis management.”

The performance plans should be supplemented by real-time performance information, Stier says. “You need transparency around performance.”

And while there’s probably not a lot of room for progress while the Senate is controlled by Trump’s party, there’s still one thing the House can do.

“You can hold lots of embarrassing hearings” and call attention to congressional mandates that are being ignored or violated, Kettl says. “That’s the sort of thing you can do and there’s every indication that the Democrats in the House will do.”

Trump appointees are kneecapping federal workers who protect consumers, workers, students and the environment

Trump signing a bill repealing a CFPB rule that banned companies from using mandatory arbitration clauses. (White House photo)

While Donald Trump makes big headlines with bluster and lies, his political appointees are quietly sabotaging the government by making it difficult for career employees to do their jobs – especially in agencies focused on protecting consumers, workers, students and the environment.

And you can actually measure it.

The annual Best Places to Work in the Federal Government ratings produced by the Partnership for Public Service track employee engagement and effective leadership by department, agency and subcomponent, showing how they compare to each other — and how they change year-to-year..

After three years during which more than 70 percent of federal agencies improved their ratings, this year the ratings at about 60 percent dropped – in some cases, precipitously.

The biggest drop among midsize agencies – down 25 percent on employee engagement and down 36 percent on senior leadership effectiveness — came at the Consumer Financial Protection Bureau. That’s hardly a surprise, considering that the CFPB was the subject of a must-read but largely overlooked Washington Post article last week, headlined How Trump appointees curbed a consumer protection agency loathed by the GOP.

“You can track the movement of the employee engagement score by the quality of leaders because it’s the leadership that is most, most relevant,” said Max Stier, who heads the partnership.

Right behind CFPB in terms of precipitous drops in employee ratings: the National Labor Relations Board, the Department of Education, and the Environmental Protection Agency.

The ratings — derived from the 2018 Federal Employee Viewpoint Survey – are not a perfect barometer of whether an agency is functioning effectively, but they certainly suffer when employees aren’t allowed to the job they hired on to do.

“It’s not about happy employees,” Stier told me. “It’s about employees who are engaged and thus performing better on behalf of the American people.”

Some of the declines in agency subcomponents were particularly dramatic – although whether that’s due to incompetence or malevolence is hard to say without further reporting.

The subcomponent posting the biggest year-to-year drop is also the one with the lowest ranking overall in 2018: the Domestic Nuclear Detection Office within the Department of Homeland Security. That’s somewhat alarming.

Others with big drops include offices caught in political crosshairs: the Office of the General Counsel and Office of the Administrator at the EPA, the Antitrust Division at the Department of Justice, and the offices handling special education and federal student aid at the Department of Education.

Getting the highest rankings for senior leadership among large agencies: NASA, the Departments of Health and Human Services, the Intelligence Community and the Pentagon. The lowest went to the Department of Homeland Security, the Department of Agriculture and the Department of the Interior.

Tomorrow: Stier and University of Texas public policy professor Donald Kettl on reining in political appointees who are out to destroy their agencies.

Below: Midsize agencies ranked by biggest drop in employee engagement:

Impeachment Watch: It’s not just about Trump, it’s about reining in the ‘preposterous power of the presidency

Bob Bauer (NYU photo)

In a must-read interview on Bloomberg Opinion, former Obama White House counsel Robert Bauer makes the case that impeachment proceedings against Donald Trump may be essential to rebalancing our badly listing democracy.

And he acknowledges that both political parties bear responsibility for concentrating too much power in the executive branch at the expense of Congress,

Bauer’s interview-by-email with Bloomberg’s Francis Wilkinson is either ironic or confessional, given his role in the Obama White House. He served as White House counsel precisely as Obama abandoned his campaign promises to roll back George W. Bush’s extreme power grab and instead opted to grab yet more.

But either way, Bauer is certainly well informed.

“The experience with Donald Trump and his administration,” Bauer tells Bloomberg, “is forcing a reckoning with a problem that has been obvious for some time: the preposterous power, responsibility and expectations that have come to define the office of the presidency.”

Democrats and Republicans both contributed to what Bauer likens to cancerous growth of the president’s institutional authority because “they take offense at the expansion of presidential power except in the circumstances where they would like to take advantage of it.”

But combine an office that is “exceptionally powerful and susceptible to abuse” with “a candidate selection system that is arbitrary” and there’s always been a risk of a president like Trump, Bauer writes.

Trump comes to government without any understanding of how government works, of norms governing the exercise of his own authority, and so forth. Add to that the absence of a moral compass or appreciation of the role of lawyers or the rule of law, and the scale of this problem we face with the presidency in the constitutional order — a problem we have every reason to believe could arise again after Trump — could not be clearer.

So what to do? “The re-invigoration of democracy” requires that “[i]nstitutional imbalances, like that between Congress and the executive, have to be rectified,” Bauer argues.

Specifically, Trump’s behavior “cannot go unaddressed,” which means that “we have to slowly get away from the idea that impeachment is a source of constitutional crisis rather than a constitutional response to crisis brought on by systematic executive misconduct.”

Bauer concludes:

If the record supports it, and there is growing evidence that it does, Congress should not hesitate to initiate a full-fledged and well-designed inquiry into grounds for impeachment. Whatever the outcome, there is enormous merit in clearly identifying and enforcing limits and putting future executives on notice.

Reining in Trump’s out-of-control presidency, by this logic, is the necessary first step toward reestablishing a healthy system of checks and balances.

Impeachment watch: A possibility turns into a probability

Nadler on CNN.

The impeachment of Donald Trump is all of a sudden looking more like a probability – or maybe even an inevitability — rather than a possibility.

A new, specific, credible accusation of Trump’s involvement in a specific, criminal act is allowing Democrats and some media figures to go where they previously hesitated to go, despite a nearly two-year long drip-drip of corruption and criminality.

The sentencing memo for Trump’s former fixer Michael Cohen filed on Friday by the U.S.Attorney’s Office in Manhattan accuses Trump of coordinating and directing two felony campaign finance violations.

Jerry Nadler, the New York Democrat who will take over the House Judiciary Committee in three and a half weeks – and therefore will make the decision about opening impeachment proceedings — said that Trump’s actions, if proven, easily qualify as high crimes and misdemeanors.

“Certainly, they would be impeachable offenses, because, even though they were committed before the president became president, they were committed in the service of fraudulently obtaining the office. That would be the — that would be an impeachable offense,” Nadler told Jake Tapper on CNN on Sunday.

That’s not quite the same as saying impeachment proceedings are imminent. “You don’t necessarily launch an impeachment against the president because he committed an impeachable offense. There are several things you have to look at,” Nadler said. “One, were there impeachable offenses committed, how many, et cetera? And, secondly, how important were they? Do they rise to the gravity where you should undertake an impeachment?”

But Nadler clearly thinks this is only the tip of the iceberg.

But the fact of the matter is that what we see from these indictments and charging statements is a much broader conspiracy against theAmerican people involving these payments, involving an attempt to influence the campaign improperly, with improper payments involving the Russians trying to get influence in the campaign, involving the president lying for an entire year about his ongoing business arrangements, business dealings with the Russians, involving obstruction of justice.

And unlike the last Congress, Nadler said, “The new Congress will not try to shield the president. We will try to get to the bottom of this, in order to serve the American people and to stop this massive conspiracy — this massive fraud on the American people.”

We have to look at these crimes, and what did the president know and when did he know about these crimes? You have to look at the Russian interference with the campaign, and what did the president know about that, and to what extent did he cooperate with that, if he did?

We have to look at his business dealings and his lying about that. We have to look at the fact that he surrounded himself with crooks. His campaign manager, his deputy campaign manager, his national security adviser, all of them, and a host, a bunch of other people, they all were meeting with the Russians. They all expressed interest in meeting again. 

None of them reported it to the proper authorities. They have all been indicted for one crime or another. The president invent — created his own swamp and brought it to the White House. These are all very serious things. 

Two other House Democrats were blunt. Rep. John Garamendi of California told CNN:”You might call it the opening days of an impeachment. We’re getting to that point now. We’re in this situation where high crimes and misdemeanors have occurred.

And Texas Rep.Joaquin Castro asked MSNBC: “When the evidence becomes so clear that you very likely have a criminal sitting in the Oval Office, what is the Congress left to do at that point?”

Former Richard Nixon lawyer and key Watergate figure John Dean said: “The House is going to have little choice the way this is going other than to start impeachment proceedings.”

And MSNBC’s Lawrence O’Donnell said Friday night that “if history means anything in the Trump era, if precedent means anything in the Trump era, Donald Trump will be — must be — impeached because of the crimes prosecutors say he committed in the Michael Cohen case.”

Members of the elite political media, meanwhile, remain squeamish about the topic, refusing to take it too seriously. Some are asking a few questions about impeachment – but most are still treating it like a fringe idea.

They are certainly not treating it as the central organization principle for covering Trump from this point forward, as they ought to be.

For instance, the New York Times second-day story on Saturday didn’t really get around to the issue of impeachment until the 13th paragraph. And by Monday, mention of impeachment in the news columns was relegated to speculation that former Gov. Chris Christie of New Jersey was a possible contender for White House chief of staff because he “could help Mr. Trump in an impeachment fight.”

The prospect of impeachment did make it to No. 8 in the Associated Press’s list of “10 things to know for today”. And Reuters covered Nadler’s remarks. But good luck finding any real mention in Axios’s AM newsletter or Politico Playbook.

That’s not surprising. For journalists who have been covering Trump day in and day out as if he were almost normal — suppressing their entirely appropriate sense of outrage — it’s going to be hard to admit that all this time, he was committing flatly impeachable offenses, in plain sight, and they weren’t saying so. 

Senators consider adding some bite to the toothless resolution calling for U.S. to end support for Saudi war in Yemen

Defense Secretary James Mattis meets with Saudi Crown Prince Mohammed bin Salman at the Pentagon in March.

Senators vowing to pass legislation to end U.S. involvement in the Saudi war in Yemen that has “teeth” will need to craft something tougher than the mostly symbolic resolution that is currently headed for a floor vote.

Last week’s procedural vote on S.J. Res 54, introduced in the Senate by Bernie Sanders, represented an extraordinary rebuke of the Trump administration and a rare instance of Congress reasserting constitutional war powers it has mostly ceded to the executive branch.

But the resolution, reflecting language first introduced in the House by California Democratic Rep. Ro Khanna over a year ago, is so full of loopholes that its practical effects – even if it became law, presumably over a Trump veto – might be negligible.

The ACLU, in a letter to House members last month actually encouraged a “no” vote, arguing that the resolution “could inadvertently extend and increase fighting in Yemen, rather than end or reduce it.”

One big problem is that the resolution vaguely calls for Trump to remove U.S. forces “from hostilities” in Yemen, rather than forbidding specific activities. ACLU national security project director Hina Shamsi wrote on the ACLU website, that the previous administration twisted the legal meaning of that phrase. “In essence, the Obama administration narrowed the definition of hostilities virtually out of existence where airstrikes are concerned.”

The resolution also carves out an exception for U.S. forces “engaged in operations directed at al Qaeda or associated forces,” tacitly supporting the administration’s flawed contention that its own deadly raids in Yemen fall under the authorization of military force that Congress passed shortly after the 9/11 attacks.

What the ACLU recommends is specifics: A resolution that prohibits such things as “refueling of Saudi aircraft, military advice and information, logistics, and other support to the Saudi-led coalition.”

Some top Republicans are now expressing enthusiastic support for cutting further military support for Saudi Arabia. Senate Foreign Relations Chairman Bob Corker told CNN yesterday that the plan that emerges will “have teeth.”

But having Republicans involved in the drafting of new language is a double-edged sword.

Outrage is clearly growing on both sides of the aisle at Trump’s attempts to ignore the apparently overwhelming evidence that Saudi leader Mohammed bin Salman personally ordered the ambush slaying and dismemberment of U.S.-based dissident journalist Jamal Khashoggi.

But the new legislation could also end up even weaker than the current resolution. South Carolina Republican Senator Linsday Graham, despite his defiant talk, has introduced a draft “Sense of the Senate” resolution that would have exactly zero practical significance.

Connecticut Democratic Sen. Chris Murphy, who has been trying to end U.S. support for the war for three years, told Roll Call he is concerned that Republicans will try to “water this down.”

Does Murphy himself have any desire to toughen it up, instead? His office didn’t respond to a request for comment.

See previous coverage of U.S. support for Yemen:

How to get an up-or-down vote on U.S. involvement in the Saudi war in Yemen

What shared elements of Trump foreign policy are former Obama officials now willing to renounce?

Trump justifies his embrace of Saudi leader by endorsing the bloody U.S.-supported war in Yemen

Congress gets a spine and nobody notices because it’s about Yemen