Refusing to Cooperate with the Impeachment Inquiry, Trump Shows His Disdain for the House of Representatives

Throwing down a gauntlet in front of House Speaker Nancy Pelosi, President Donald Trump announced that he will no longer permit his Administration to cooperate with the House of Representative's impeachment inquiry.  In furtherance of Trump's defiance of the House, U.S. Ambassador to the European Union, Gordon Sondland, who played a key role in Trump's pressuring of Ukrainian President Volodymyr Zelensky to investigate political rival Joe Biden, failed to testify at a House hearing.  Sondland skipped the hearing at the instruction of Trump's State Department.  Counsel to the President, Pat Cippollone confirmed the decision to impede the House investigation through a letter to Democratic House leaders, written on the President's behalf on White House stationary.

While this move to escalate the tension between the Democratically-controlled House and the Trump Administration will play well with Trump's supporters, who revel in the idea of a no-holds-bar fight with ideologically opposed parties, Trump's outward contempt for the House risks a more aggressive push for his impeachment.

Although Trump holds the Democratic leaders in Congress in disdain, congress is obliged to oversee the actions of the Executive Branch.  This is all part of the checks and balances of the U.S. Constitution, which seeks to ensure that no one branch of government dominates over the other two.  It is a power meant to guard against tyranny and authoritarianism. 

Given the gravity of the current situation, the President must be willing to provide information to Congress, and make members of his Administration available for testimony.

In this regard, some communications with the President may be privileged due to national security or the public interest. But a wholesale refusal to cooperate with congressionally issued subpoenas can hardly be justified, especially after the President himself released a memorandum of a telephone call between Trump and Zelensky where Trump clearly requested the Ukrainian President's help in gathering dirt against Trump's political rival, Joe Biden.  As the head of the Federal Elections Commission confirmed in June of this year, the act of soliciting something of value (in this case research on an opponent) in connection with a federal election is in and of itself a violation of law.  If the President pressured Ukraine by withholding congressionally approved military aid, his behavior becomes all the more egregious.

In the middle of this situation stands the U.S. Ambassador to the E.U.  Trump dismissed the U.S. Ambassador to Ukraine, Marie Yovanovich, because she stood in the way of Trump's efforts to have Ukraine investigate Joe Biden and his son, Hunter.  Despite the fact that Ukraine is not a member of the European Union, Sondland took over the role of coordinating the U.S. Government's policy with respect to the Ukraine.  Recently, text messages involving Sondland surfaced, strongly suggesting that Trump was using the military aid to pressure Ukraine.  Sondland's testimony, therefore, is important to determine the extent of the President's malfeasance.

Trump's refusal to permit Sondland, or any other member of the Administration, to cooperate with the House inquiry appears as a powerful indication that Trump has something to hide.  Moreover, given that Robert Mueller and his team of investigators have already documented Trump's tendency to obstruct official investigations, the President is courting yet another reason for his impeachment; that is obstruction of Congress.

In this regard, the President's Counsel charges that the impeachment inquiry violates the President's due process rights, and fails to follow accepted procedures from prior impeachment inquiries.  Cipollone's criticism of the House is misguided as he fails to recognize the purpose behind the separate steps of the impeachment and removal process, as well as the breadth of authority the Constitution grants the House over impeachment proceedings.

The Constitution is not concerned with the personal rights and interests of the person who happens to occupy the Office of President.  Nor should it be.  The Constitution is concerned with the well-being of the Republic.  In this regard, the President acts as a fiduciary, a person who is required to suppress his or her own personal interests, in favor of making decisions that are in the best interests of the people of the United States.

This is why impeachment is not a criminal proceeding, nor should it be treated as one.  Impeachment is about the integrity of the U.S. Government.  At one point in his political career, the President's staunchest defender in the Senate agreed with this principle.  Senator Lindsey Graham, serving as a Representative in the House of Representative in 1999, said of impeachment:

• You don’t even have to be convicted of a crime to lose your job in this constitutional republic if this body[, the House of Representatives,] determines that your conduct as a public official is clearly out of bounds in your role. . . .  Impeachment is not about punishment. Impeachment is about cleansing the office. Impeachment is about restoring honor and integrity to the office.

At the time, Graham was arguing in favor of the impeachment of President Bill Clinton, who lied while under oath about a sexual relationship he had with a White House intern.  Graham not only pressed for Clinton's impeachment in the House, but also served as a House Manager during Clinton's trial in the Senate.  As Manager, Graham was tasked with presenting the reasons why the House concluded Clinton should be removed from office.

 

Yet, consistent with the President's narcissism, Trump's public defense against impeachment has, many times, focused on Trump's personal interests, and not the best interests of the United States.  Thus, Trump makes claims concerning personal legal rights, like the argument that his lawyers should be permitted to cross-examine witnesses and call witnesses of their own.

 

But impeachment is not a criminal proceeding.  It is a political one.  Article I of the Constitution grants the House of Representatives "the sole Power of Impeachment."  There are no other provisions in the Constitution which define the role of the House in impeachment, or the procedures that the House must follow.  It is therefore up to the House itself to define its own rules and proceed accordingly.

 

The Constitution is very specific on effects of an impeachment.  It stands as but the first step in a process to determine whether to remove a person from civil office.  Pursuant to Article II, once the House has impeached the President, the Senate then holds a trial, with the Chief Justice of the Supreme Court presiding.  The Senate can only convict with a two-thirds majority.  Article II, Section 3, Clause 7 of the Constitution limits the effect of impeachment:

• Judgment in cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.

The Constitution may use words such as "trial" and "conviction" which are reminiscent of criminal law.  But it is clear that impeachment is not meant to be punishment.  The Constitution reserves the decision on whether a person removed from office will be subject to any criminal proceeding and criminal punishment to the appropriate law enforcement authorities.

 

Nonetheless, analogies can be made between criminal process and the impeachment and removal of a president.  In this regard, impeachment can be seen as similar to a grand jury proceeding, through which a prosecutor can seek an indictment.  This is the decision to charge a person with a crime and hold a trial.  But even in criminal law, at that first stage of a criminal prosecution, not all of the personal rights enumerated in the Constitution apply.  A person subject to a grand jury proceeding is not entitled to the right of legal counsel or the right to cross-examine witnesses.  Moreover, the Government in a grand jury proceeding is not required to present evidence that favors the accused.

 

To support the argument that the House is proceeding unfairly, the White House relies on certain procedures followed in prior impeachment processes.  But again, this fails to recognize that the House has the "sole Power of Impeachment."  The House is not bound to follow any procedures established in prior impeachment proceedings.  In addition, because impeachment is a political act, not a criminal law proceeding, it is not subject to judicial review.  Under the political questions doctrine, the courts will not hear a case when the Constitution textually commits the issue to one of the political branches of government, that is Congress or the Executive.  Because the text of the Constitution unequivocally gives the power over impeachment to the House, the courts will not review the exercise of that power.  What process the House will follow that leads up to a vote on articles of impeachment is simply up to the discretion of the House and its leaders.

Another argument that Trump uses to support his decision to thwart the impeachment inquiry is that the Democrats in the House are attempting to overturn the 2016 presidential election.  He likens impeachment to a coup.  But again, impeachment and removal from office are powers granted the House and Senate in order to protect against the abuse of office by the President.  It is an entirely appropriate procedure to invoke when a president uses his authority to conduct foreign policy in manner that benefits himself privately.  The Constitution protects against the abuse of the impeachment and removal power by dividing authority between the House and the Senate.  Thus, impeachment itself does not remove a president from office.  Rather, he must be convicted after a trial in the Senate.  Moreover, in order to convict, the Constitution requires a super-majority of two-thirds before a president can be removed from office.  Safeguards therefore exist to ensure that the process is a deliberative one, and not merely a negation of an election.

Indeed, even if the President is impeached, his Vice President will assume the Office of President.  The President and Vice President run together on the same ticket.  Presumably, with both the President and Vice President coming from the same political party. the Vice President will agree with the major policy objectives of the President.  An impeachment, therefore, does not overturn an election.  It simply is one step in removing a person who has shown an unfitness to hold the Office, leaving the President's political party in charge of Executive Branch.

Sadly, Trump's presidency has never been about what is best for the American people.  It has always been about Trump's self-aggrandizement.  He has sought outright flattery from his Cabinet members.  He attempts to enforce personal loyalty, and not loyalty to the Constitution and the rule of law.  He has publicly stated that he sees nothing wrong with accepting help with finding disparaging information on a political opponent from a foreign source.  He has viewed an investigation about national security, namely the investigation of Russian interference in the 2016 election, as an investigation of himself instead of as the counter-intelligence investigation it was.  When he sees an investigation as potential detrimental to his personal interests, he engages in witness tampering and otherwise attempts to obstruct that investigation.  His current refusal is simply a continuation of that behavior.  His continued willingness to thwart the law and investigations into his conduct  should be considered as a violation of the trust he holds from the American people, and featured prominently in the House's deliberations on whether to impeach him.

By: William J. Kovatch, Jr.

 

Can Trump Declare a National Emergency to Build His Wall? The Answer Is a Little More Complicated than Trump Would Like You to Believe.

It has been about three weeks since President Trump refused to sign legislation that funded the government, but did not appropriate money for his border wall, causing a partial government shutdown. With 800,000 government employees poised to miss their first paycheck since the shutdown, Trump addressed the country on prime time TV to make his case for the wall.  The day after the televised statement, Trump met with Speaker of the House Nancy Pelosi and Senate Minority Leader Chuck Schumer to discuss the possibility of re-opening the government.  According to Schumer, Trump pounded on a table and stormed out the room complaining that the meeting was a waste of his time when Pelosi made it clear she would not support Trump’s wall.  Schumer has referred to Trump’s behavior as rule by temper tantrum.

This week, a small number of House Republicans joined House Democrats in voting for a continuing resolution which would have re-opened the government without providing funds for the wall.  The support from House Republicans possibly signals growing pressure to end the shutdown and re-open the government.  In response, Trump has stepped up his talk of declaring a national emergency in order to fund the construction of the wall without congressional approval.  Trump has said multiple times that the law is 100% behind him in declaring the national emergency.

While the President may want the public to think that this is a simple question, under U.S. law, this is really two questions.  The answer to one may be simple.  The answer to the other may not.

The first question is whether the President has the authority to declare a national emergency.  In answering this question, it is important to keep in mind that the Constitution does not mention emergency powers of the President.  This means that the President would not have the unilateral authority to claim broader authority than those specifically granted through the Constitution unless Congress has acted. 

In this regard, through the National Emergencies Act of 1976, Congress granted the President the authority to declare a national emergency through a proclamation published in the Federal Registry. Thus, the answer to the first question is indeed simple.  Yes, the President may declare a national emergency.

But the President cannot claim unlimited powers through the declaration of a national emergency.  That is, he cannot use the declaration of a national emergency as a carte blanche power grab.  To the contrary, the powers available to the President are limited. To define the breadth of presidential emergency powers, it is again necessary to look to congressional action.

The National Emergencies Act of 1976 does not itself grant emergency powers to the President  Congress has passed numerous laws granting the President specific powers usable during a period of national emergency.  The National Emergencies Act was meant to define how the President may invoke the emergency powers granted by other statutes.

Before the President can use any emergency power granted by statute, the President must state the specific power to be used.  He can do this either through the original Proclamation, or through a subsequent Executive Order published in the Federal Register.

Determining whether the President may use the declaration of a national emergency specifically to build a border wall requires an analysis of numerous statues.  So far, in his public comments concerning the wall, Trump has identified the existence of construction projects that were included in the budget, but for which funds have not been spent or encumbered.

This points to two specific statutes Trump may be planning to invoke to fund his wall.  The first permits the reallocation of funds appropriated for military construction projects that have not yet been obligated:

In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.

10 U.S.C. 2808.

The second permits the termination of an Army civil works project that is not essential for national and use the funds for Army civil works projects that are essential for national defense:

In the event of a declaration of war or a declaration by the President of a national emergency in accordance with the National Emergencies Act that requires or may require use of the Armed Forces, the Secretary, without regard to any other provision of law, may (1) terminate or defer the construction, operation, maintenance, or repair of any Department of the Army civil works project that he deems not essential to the national defense, and (2) apply the resources of the Department of the Army’s civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense.

33 U.S.C. 2293.

The question that remains in the application of these statutes is whether the border wall is for the use of the armed forces, or is essential for national defense.

These are questions that are likely to be addressed through litigation should Trump invoke emergency powers to fund the building of the wall.  One hurdle to those who may challenge Trump’s actions is whether a federal court will even intervene to decide the issue.

There are times when a court has jurisdiction over a case, but nonetheless decides that it is not appropriate to issue an opinion.  This is called the doctrine of justiciability.  One such circumstance where a court may find a case non-justiciable is the political question doctrine.

The political question doctrine springs from the idea that courts may decide issues of law, but are not an appropriate forum for political issues.  The courts may find an issue non-justiciable as a political question, for example, when a matter is explicitly assigned to a particular branch of government through the Constitution,  The Constitution explicitly grants Congress the power to declare war.  As a result, courts are not likely to review such a declaration of war.

The political question doctrine may be invoked where the court could not resolve an issue without expressing a lack of respect for a coordinate branch of government, where it is impossible for a court to devise a manageable standard to resolve the issue, where the resolution of the issue first requires a policy decision that is beyond the discretion of the court, and whether there is a possibility of embarassment that varying policy decisions would be made by different branches of government.

This is not to say that the courts will never question the President’s use of an emergency power.  To the contrary, in 1952 the U.S. Supreme Court addressed President Truman’s attempt to seize U.S. steel mills during a strike in order to provide a steady supply of steel for military use during the prosecution of the Korean War and found the action to be unconstitutional.  Youngtown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Concerning the merits of whether a national emergency exists, a federal court is likely to find that issue to be a non-justiciable political question.  One main reason is that Congress provided no criteria for determining when such an emergency exists.  In this circumstance, courts are likely to be uncomfortable to define the criteria that creates an emergency whole cloth, without further guidance from Congress.  Indeed, the lack of a definition of criteria could very well be intentional to allow the President flexibility in responding to a complicated situation that may need immediate action.

On whether the actual exercise of the power invoked is appropriate presents a different type of question.  Under either statute, appropriated but unspent construction funds cannot be reallocated for just any question.  They must be appropriated for a project necessary for national defense or for the use of the military.

The main intended purpose of the wall is to stem the entry of aliens into the United States who lack legal authority to come in.  That is an immigration issue.  The President has mentioned the need to stem the inflow of illegal drugs.  That is a criminal justice purpose.  The President has variously claimed that there is an imminent threat of the entry of known terrorists.  However, statistic undercut this argument.  Only a handful of known terrorists have been apprehending in recent years attempting to cross the southern border legally.  Thus, whether the wall is essential to national defense appears to be a question a court can decide with clear standards and without causing undue embarrassment to the coordinate branches of government.

Likewise, a court could easily determine which governmental department will use the wall.  The U.S. military is prohibited from enforcing domestic criminal law.  The military is not charged with enforcing immigration law.  That job falls to the Department of Homeland Security and the Justice Department.  Thus, again, the question may not be considered a political one.

Trump is correct that the law is behind him if he were to declare a national emergency concerning the inflow of undocumented aliens over the southern border.  But that does not mean that the specific invocation of powers would be an easy question.  To the contrary, the appropriation of funds for a border wall by reallocating budgeted but unspent funds for construction projects will likely spark complicated litigation.

By: William J. Kovatch, Jr.

Due Process Prevails; Jim Acosta’s Press Pass Reinstated

In a victory for the principle of Due Process, US District Court Judge Timothy Kelly granted injunctive relief to CNN and its White House correspondent Jim Acosta requiring the White House to re-issue Acosta’s press pass immediately. The White House revoked the press pass last week, after a contentious exchange between Acosta and President Trump, where Acosta pressed the President for answers concerning the so-called caravan of migrants, mostly from Honduras, traveling on foot through Mexico to the US border. 

Publicly, Press Secretary Sarah Huckabee Sanders justified the action, tweeting a video she claimed showed Acosta had assaulted a young intern who was attempting to retrieve a microphone from Acosta. The video itself was a clip originating from Alex Jones’ Infowars organization that many claimed had been doctored. 

Judge Kelly noted that once the White House had opened its grounds to Acosta by issuing the press pass, he had a First Amendment right to access. The White House could not arbitrarily revoke that right without giving Acosta Due Process of Law. Judge Kelly noted that the Department of Justice attorneys arguing the case could even not tell  him who in the White House made the decision to revoke Acosta’s credentials. The Judge also noted that the justification posited by the White House that Acosta had touched an intern inappropriately was likely untrue and that the evidence upon which this claim was based was of questionable accuracy. 

The President responded to the ruling claiming that this was about decorum. He stated that he intended to write rules and regulations over reporter behavior at press conferences. 

Such rules would begin to address the Due Process concerns over arbitrary revocation of press credentials. Due Process requires at a minimum notice of the Government’s reasons for taking away a right, and an opportunity to be heard. Any new procedure should, at the least, include a way to challenge White House action, and appeal it. 

But rules and regulations on press behavior can lead the White House to further issues. Any White House action must be neutral to the viewpoint of the reporter in question. That is, the President cannot revoke a press pass simply because he does not like the questions or leanings of the reporter in question. Whether a reporter is legitimately being rude or lacking in decorum, then, would depend on whether Trump was simply using the argument as pretext to punish a reporter who aggressively questions him on a topic the President wants to avoid. That is, the President could not punish a reporter who used follow up questions to prevent the President from answering in incomplete or misleading answers. The President also cannot define rudeness as failing to emphasize news the President perceives to be beneficial to him. 

Today’s decision, while not a final decision in CNN’s lawsuit against Trump, nonetheless is a victory to those who wish to reign in Trump’s authoritarian tendencies by countering his ability to make arbitrary and capricious decisions without adhering to proper legal processes. It is a victory for limited government. 

By:  William J. Kovatch, Jr. 

Jim Acosta Deserves Due Process

Due Process of Law is a bedrock principle of the US Constitution. No one can be deprived of life, liberty or property without Due Process of Law. It is a principle that applies to the Federal Government through the Fifth Amendment, and to the State Governments through the Fourteenth Amendment. 

The concept of Due Process is actually fairly simple at its core. If the Government wants to take away a person’s right, whether it be property or a federal benefit, the Government must give notice of its intent to do so. The notice must sufficiently disclose the Government’s reasons. The person must be given a meaningful opportunity to defending his or her right. The Government must give the person a fair hearing. 

Due Process is messy. It’s inefficient. Due Process causes delay. That is by design. That is because a democracy is not supposed to do the most expedient thing; it is supposed to do the right thing. Thus, while it may be expedient to trample on the rights of a minority class for the benefit of the majority, Due Process prevents that from happening unless the Government has a darn good reason. To put simply, minority rights are protected against pure majority rule. 

And this is what frustrates President Trump time and time again in the manner that he runs the Federal Government. Trump wants things done his way, right away, no questions asked. To tell him he can’t do things his way is a mark of personal disloyalty, not a mark of true patriotism that values the rule of law above all else. 

Coming from the business world, Due Process is not the way Trump operates. He is used to demanding personal loyalty of his employees. He is used to winning negotiations through leverage and strength, not legal virtue. 

It should therefore come as no surprise when Trump expresses disdain for Due Process. We can’t have undocumented aliens come in the country and be given a hearing with the Immigration Courts. That will take too long. We can’t have recounts in the State of Florida. That’s just delay. We should just recognize who the winner is now and move on. 

One of the most egregious examples of Trump’s disdain for Due Process is his treatment of CNN Reporter Jim Acosta. It’s no secret that Acosta’s relentless questioning irritates Trump. He has routinely called Acosta rude and tried to evade Acosta’s questions. Last week, Trump revoked Acosta’s press pass. 

Ostensibly, the White House revoked Acosta’s press pass on the allegation that Acosta assaulted a young woman intern attempting to retrieve the microphone from Acosta. Press Secretary Sarah Huckabee Sanders even tweeted a video to back up her claim. 

The problem is that the White House acted without giving Acosta notice of its intent to revoke his credentials or an opportunity to defend himself. In short, the White House denied Acosta Due Process. 

The denial of Due Process is particularly egregious in this case. Many claim that the video Huckabee Sanders released, which happened to originate from Alex Jones’ Infowars, was doctored. Governments should never be permitted to take away a person’s right through trumped up evidence. Thus, the evidence must be tested and Acosta must be given an opportunity to attack its reliability. Jim Acosta must be given Due Process. 

Acosta and CNN have filed a lawsuit over Acosta’s press credentials. One of the allegations is the denial of Due Process in violation of the Fifth Amendment. It is a decision that the court must decide properly in order to reign in Trump’s resistance to Due Process and temper his more dangerous authoritarian tendencies. 

By: William J. Kovatch, Jr. 

Trump’s Bullying of the Press has become Intolerable

Back in 2016, it was not unusual to log in to Facebook, and see that a friend had shared something that looked like a news story, detailing how someone who had a beef with Hillary Clinton had gone missing or committed suicide under suspicious circumstances. If you did a little detective work, like trying to Google the story, you often found that not only was the story false, but that the website that hosted it was somewhere in Bulgaria. 

Fake news. 

But in the last two decades or so, something strange had happened. New cable news channels and news sites on the web proliferated, and tended to pander to one political leaning or the other. Thus it became possible for people to chose a source of news that further supported their pre-existing world view by printing stories and editorials consistent with that view. 

If a story floating around Facebook or Twitter fit into a person’s world view, that person was more likely to believe it without checking the source, and share the story in the hope of convincing others of his or her world view. 

Secretary Clinton was a prime target for this fake news, as conspiracy theories of the so-called Arkansas mafia threatening women who claimed sexual abuse by her husband, Bill Clinton, had proliferated for years. Likewise, the suicide of Secretary Clinton’s colleague, Vince Foster, fueled belief that there was a conspiracy to cover up wrongdoing in the White Water affair. So of course to Clinton detractors news of mysterious disappearances and suicides of Clinton associates made sense.

It was in this way that fake news influenced voters in the 2016 presidential election. 

But as the term “fake news” became more popular, the definition became twisted by those who found themselves the target of unflattering news stories or critical editorial pieces. 

After the election, for example, but before Trump’s inauguration, a news story broke that a former British spy had compiled a dossier that allegedly showed that the Russian Government had compromising information on the President-Elect; the so-called Steele Dossier. Many of the allegations were salacious, and at the time there was no corroboration of many of the allegations. At a press conference after the story broke, Trump refused to take questions from CNN, calling the network “fake news” for publishing accounts of the Steele Dossier. 

Trump then expanded the term to include stories with anonymous sources that were allegedly leaks from the White House staff. Eventually, Trump applied to term to any news story that he disliked, that portrayed him in a negative manner, or that failed to discuss news Trump believed reflected well on him, such as the economy. To Trump, fake news was not just false stories created out of whole cloth. It was any story that he believed reflected poorly on him. 

It became a common term in his war against the press. Fake news became the enemy of the people.  Reporters who did not buy the official White House line, and who insisted on following up with tough questions at press conferences were deemed rude. Women reporters with tough questions were ridiculed. 

As Trump became more belligerent with the press, his sycophantic fans attending his political rallies followed. Members of the press were shouted down at Trump rallies. If a person confronted a Trump fan with news sources showing that their memes and outlandish claims were wrong, the inevitable response was, “Well, you must have got that from CNN.  That’s fake news.” Thus the moniker fake news permitted Trump fans to ignore facts, avoid the cognitive dissonance of seeing that their beliefs were wrong, and attack the purveyors of news stories critical of their President. 

But Trump’s war against the press has taken a startling new twist. In a post mid-term election press conference, White House pool reporter Jim Acosta, as is his routine, asked tough questions of the President and had tough follow-up questions. Trump’s response was to order that the microphone be taken from Acosta. An intern grabbed for the microphone, and Acosta resisted, continuing with his tough line of questions. When Acosta eventually relinquished the microphone, Trump called him rude and said CNN should be ashamed for hiring him. 

For supporters of the free press, this exchange was bad enough. Here was the President avoiding the tough questions could reflect badly on him. He picked a fight with a reporter who had refused to kowtow to his bullying. 

But what happened the next day was utterly shocking. The White House had revoked Acosta’s press credentials. Worse, to justify this action, the White House released video of the press conference claiming it showed that Acosta had assaulted the intern who tried to take away him microphone. Almost immediately, news sources demonstrated how the video had been doctored to speed up the exchange and make it appear as though Acosta had reacted to the intern with a Karate-chop. 

Warring against the free press with harsh rhetoric is one thing. But to exclude a reporter, who has been critical of the President and willing to follow up with tough questions countering the official White House line, based on doctored evidence is intolerable. It is the action of a bully, a man whose autocratic tendencies prohibit him from receiving criticism, a man who believes he is entitled to positive press coverage. 

The American people should not let this stand. They cannot permit Trump to expand the definition of fake news to such an extend that the guarantee of a free press in the First Amendment of the Constitution becomes meaningless. They cannot allow a President to single out for punishment a reporter trying to hold that President accountable. 

By: William J. Kovatch, Jr. 

President Trump May Have Done DACA Recipients a Favor

It may not look like it now, but by announcing an end to the Deferred Action for Childhood Arrivals program, also known as DACA, president Trump may actually have done its recipients a favor. 

DACA was a popular program, with many people denouncing the president for announcing his intentions to end it. DACA allowed young people, who were not born in the United States but brought here illegally by their parents, to come out of the shadows and become productive members of society without fear of deportation. 

But relying on the continuation of DACA was bad policy. 

First, DACA was of questionable constitutionality at best. DACA was not created or even authorized by legislation. Instead, President Obama took a small piece of executive authority meant to address situations where the application of immigration law was harsh on an ad hoc basis, and turned it into a huge program. DACA is based on presidential authority to grant deferred action. This is nothing more than a promise not to seek the removal of a person who is otherwise in violation of immigration law. It is not directly authorized by Congress. Rather, it stems from the theory that the person who is enforcing the law has the discretion to choose not to come down with the full force of the law when there is a violation. Think of a police officer who witnesses a minor crime, but chooses not to arrest a person. 

The problem is that by taking this small piece of executive discretion and creating a full program out of it, affecting hundreds of thousands of people, President Obama infringed on the role of the legislative branch. That is, he essentially created law without Congress passing legislation. This can be seen as a violation of separation of powers. 

Several states saw it that way. Citing the extra expenditures the states believed they were incurring on people who were present in the country illegally, these states threatened to sue the federal government to end DACA. These states had been successful in shutting down a similar program that granted deferred action to foreign born parents of U.S. citizens and permanent residents by filing suit in the Fifth Circuit. If the states had filed a lawsuit over DACA, there was a real danger that the program could have been ended by the courts and declared unconstitutional. 

Second, DACA was a very weak solution to the problem.  DACA did not grant the young people who applied for it a legal status. That is, the program did not give the recipients a legal right to stay in the United States. It only gave the recipients a promise not to seek their removal. As a creature of executive discretion, this meant that the promise could be broken by the same executive who granted it. DACA did not lead to permanent residency. It did not lead to citizenship. All DACA did was to keep the young people who applied for it in a holding pattern. Going back to the separation of powers, this is because the president does not have the authority to create legal status, only to ignore the consequences when a person has violated the law. 

Third, the continuation of DACA permitted Congress to remain lazy. While DACA was in place, the young people brought to the country illegally but raised as Americans were not going to be deported. They were given legal authority to work and pay taxes. Even if there was no path to citizenship, there was no immediate pressure on Congress. Why, then, should Congress act?  Just pretend that this non-solution was working and let things continue as is.

Ending DACA is now forcing the issue with Congress. If Congress believes these young people are deserving of relief, Congress must now pass real legislation to protect them. Presumably, this legislation will include a true legal status instead of a mere promise not to deport. Perhaps Congress will even create a method for those who merit it to earn true permanent residency and eventual citizenship. Then, these young people who were brought up to be Americans will truly become Americans. 

Finally, DACA has made these young people more sympathetic. It is easy to say enforcement only and illegals deserve to be sent back, when you haven't met a hard working and moral undocumented individual. But DACA allowed these young people to work openly. It allowed them to win the respect of professors, fellow students, bosses and co-workers alike. When you met a person just making an honest living because of DACA, it was hard not to like them. 

And that sympathy will turn into political pressure. People don't want to see their neighbors, co-workers, friends deported. Businesses, including industrial Giants, will not want to see valued employees suddenly unable to work. Congress will be under pressure to create a real legislative fix. 

The termination of DACA may yet result in a better future for young people brought to this country illegally by their parents. If Congress acts, it could result in a more secure legal status and a path to citizenship. If Congress doesn't act, it will give the American public yet one more thing to add to the list of congressional failures and reasons to vote members out of office. 

William J. Kovatch, Jr. 

Electoral College Victory, Popular Vote Loss: The New Norm in U.S. Presidential Elections?

When I was a boy learning about civics back in the 1980s, the idea that a person could win the Electoral College, but lose the popular vote was a novelty.  Sure it had happened three times already in U.S. history.  But the last time was in 1888, when Benjamin Harris beat Grover Cleveland.  As old as some of my teachers were, none of them had lived through that election.

Indeed, the latest examples for us were the Electoral College landslides of 1980 and 1984. We had teachers who liked to point out that a shift of just a few thousand votes in West Virginia in 1960 would have given Richard Nixon the Electoral College victory despite losing the popular vote.  But the fact was, it hadn't happened in almost 100 years.

But now it has happened twice in a sixteen year period.  Both elections involved a popular vote that was so close between the two major candidates that less than one percent separated them.  Both elections involved neither party receiving a majority of popular votes due to third party candidates.  In both instances, the Republican candidate emerged victorious in the Electoral College.

What was once a novelty of our system I believe has become a more likely outcome in future presidential elections.  It all has to do with demographics, and how the Electors are distributed.

Representation in the Electoral College rides off of a state's representation in Congress.  Each state gets the same number of Electors as it has Representatives in the House and Senators.  The District of Columbia gets at least the same number of Electors as the least populous state, which right now is three.

We all know that each state gets two Senators regardless of population.  That gives states with smaller populations the advantage.  In a state like California, there are approximately 680,000 people per Elector.  But in a state such as Montana, there are about 330,000 people per Elector.  Thus, if you live in a state with a smaller population, your vote in the presidential election has a greater weight.

When you compare the election results since the 1990s, what you see is that Democratic voters tend to congregate in states with a large population along the coasts.  Indeed, the Democratic candidates won by huge margins in New York and California.  Smaller western states, such as Montana, Idaho Utah, North Dakota and South Dakota tend to vote Republican.  That means that proportionally speaking, because of where voters live, Republican voters tend to count more in presidential elections. 

We all know, then, that presidential elections come down to the battleground states.  These are the states where the populations tend to be split more evenly among Democratic and Republican voters.  In those years where the elections are close, but the trend in these battleground states is to break with the Republican candidate, it will be more likely that the Republican will win enough states to secure an Electoral College victory, but when the tally of nation-wide popular votes is reported, win less than the Democratic counterpart.  Unless Democrats move out of cities like New York City and Los Angeles and into more rural areas, this trend is likely to continue.

Whether you believe this system should be changed is largely determined by whether your candidate wins.  The loudest calls for change in the Electoral College have not surprisingly come from Democratic voters.  But I recall a discussion during the 2000 campaign, that imagined the alternative possibility.  Namely, it was postulated that George W. Bush could win the popular vote but lose to Al Gore in the Electoral College.  It was further postulated that the Bush Campaign was ready to litigatie if that occurred.  Of course, we know that the opposite was true, that Al Gore narrowly lost the Electoral College and commenced litigation in Florida over the manner by which paper ballots were counted.  It was a contentious legal battle that very quickly found its way to the Supreme Court, and had this country uncertain for some time over who won the election.

In the end, the Electoral College is a method enshrined in the Constitution.  It can be changed, but only by a constitutional amendment.  Given that all of the methods of amending the Constitution require a super majority and that our electorate appears to be evenly split, it seems likely that the Electoral College is here to stay for quite some time.

By:  William J. Kovatch, Jr.