Trump Supporters Thrive on the Drama, and Endanger National Security

Today, Florida Representative Matt Gaetz engaged in a political stunt by leading a group of about thirty Republican House members to storm into the Sensitive Compartmented Information Facility ("SCIF") where the House Judiciary Committee was to take the deposition of the Deputy Assistant Secretary of Defense for Russia, Ukraine and Eurasia, Laura Cooper, endangering national security in the process.  The SCIF is a facility set up to permit members of Congress to receive classified information concerning national security while keeping the information secure.  No electronic devices are permitted inside the hearing room.  A special room outside of the hearing room exits so everyone who enters the hearing room can lock up their cell phones and other electronic devices.

Nonetheless, Gaetz and his Republican cohorts violated protocol, storming into the hearing room uninvited without locking up their electronic devices.  Indeed, a tweet appeared on Gaetz Twitter account celebrating the intrusion.  After Chairman Adam Schiff abruptly ended the proceedings, the SCIF had to be swept to ensure no electronic devices that could spy on the hearings had been left behind.  As Mieke Eoyang, Vice President for the Third Way's National Security Program (@MiekeEoyang) reported on her Twitter account, many members of Congress are targets for foreign intelligence due to what they know about national security.  Yet, at the same time some Congress members fail to observe strict steps to secure their sensitive conversations. Knowing what is discussed within the SCIF would be a boon to foreign adversaries, says Eoyang, which is why breaching protocol by bringing electronic devices into the hearing room is such a danger to national security.

Despite the threat to national  security, Trump supporters are likely to be thrilled with Gaetz's brazen political stunt.  Hard core Trump supporters thrive on the drama, regardless of the threat to the nation, both from hostile foreign entities, and from the autocratic tendencies of the chief executive and his administration.  Indeed, Trump supporters love the "in your face" combative tactics that Trump and his defenders have adopted in opposition to the current impeachment inquiry.

Trump supporters have long memories.  Their unwavering loyalty can be traced back to the Impeachment of President Bill Clinton.  Clinton was, of course, caught lying whiles testifying under oath about a sexual encounter with a White House intern.  He was impeached for perjury, however, the Democrats rallied behind their President.  As a result, Clinton survived the removal trial in the Senate.  Conservative voters decried how the Democrats could continue to support a man, nicknamed Slick Willie for his perceived dishonesty.  As successive Republican leaders, such as Newt Gingrich and Bob Livingston, resigned from Congress amid marital infidelity allegations, conservative talk show hosts, such as Rush Limbaugh, lamented that Republicans would rather throw their leaders under the bus than stand up and fight when such allegations were made. 

When Trump came along in the middle of the 2016 Republican presidential nomination campaign, he turned the event into a slugfest.  He slapped his opponents with derogatory nicknames, like Little Marco Rubio, and Lyin' Ted Cruz, that injected drama for low information voters, who otherwise found the crowded field of candidates uninteresting.  Conservative voters had found a candidate who could fight, and who would enjoy their undying support.  Trump was, in essence, their Bill Clinton.

Indeed, the support from Trump from these voters was so strong, it didn't matter that his White House was reported to be in chaos, it didn't matter that Trump would blab highly confidential intelligence to Russian officials, and, of course, it didn't matter that Trump was willing to engage in lawlessness, such as obstructing the investigation into Russian interference in the 2016 election on several occasions.

Those same supporters blindly defend Trump, despite what factual evidence of his wrong doings emerge.  Despite public statements by Trump that he asked a foreign leader for dirt on a political opponent, their support is undying.  The release of the memorandum of his telephone call with Ukrainian President Volodymyr Zelensky confirming that asked Ukraine to investigate Joe Biden and his son, Hunter did not change their minds.  Even with evidence piling up indicating that Trump was withholding military aid to Ukraine, approved by Congress, until the Ukrainian Government would announce that it had opened that investigation, Trump supporters still believe his claims that the phone call was "perfect."

When Acting Chief of Staff, Mick Mulvaney, admitted in a press conference that the flow of funds was held up until Ukraine made steps to combat corruption, which in the President's mind included the investigation, core Trump supporters' loyalty never wavered.  After admitting the facts that make up the quid pro quo, Mulvaney infamously told the press corps, "get over it."  While Washington pundits continue to buzz about the admission, it has hardly moved any hard core Trump supporters.  Within days, Mulvney's admonition to the press to "get over it"  found itself emblazoned on t-shirts for sale on Trump's 2020 campaign website.   (Research has shown that t-shirt saying, "I voted for Trump, Get Over It" were available through the website even before Mulvaney's press conference.  However, I could not find the simple "Get Over It" alone on a t-shirt until after Mulvaney's said it to the press.)  Despite Mulvaney's admission of the President's gross illegality and abuse of power, Trump supporters could themselves get "in your face" with a defiant message, indicating Trump was still their man, no matter his outrageous offenses.

Trump supporters just don't care about the threat to national security when it comes to being loyal to "their man."  Trump supporters did not protest Trump's tweeting of a classified spy satellite image taken of an Iranian rocket installation.  They do not protest Trump's continual discrediting of the U.S. intelligence community.  They don't mind that Trump met with Russian President Vladimir Putin in secret multiple times.  Certainly, they won't mind now that Representative Gaetz has led so many Republican representatives to breach security protocol in such an audacious manner.  Indeed, his political stunt plays right into their wheelhouse, having show that they prefer the drama and confrontation that is the hallmark of the Trump Administration.

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.