1. Trump from Michael_Novakhov (198 sites): Palmer Report: Here’s what happens if the Arizona GOP tries to shoehorn Martha McSally into the Senate after losing to Kyrsten Sinema

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In a close race that took several days to finally call, Democratic candidate Kyrsten Sinema has now officially won the U.S. Senate race in Arizona over Republican candidate Martha McSally. This has led to a whole lot of mainstream media speculation that the Arizona GOP might try to shoehorn McSally into the Senate after all, by putting her in the other seat. This is entirely possible – but if it does happen, it may not matter much.



Arizona has a unique Senate situation. Republican John McCain passed away earlier this year, vacating a seat that he was supposed to hold until 2022. This prompted the state’s GOP Governor to appoint familiar Republican face Jon Kyl in his place, while scheduling a special election for 2020. As this was going on, Republican Jeff Flake announced his retirement, setting up a 2018 Senate race in Arizona with no incumbent. Sinema won, meaning that Arizona has gone from having two Republican Senators, to one Republican and one Democratic Senator.




The story goes that Kyl – who by all accounts doesn’t want the seat for the long haul – could step down, allowing the Governor to appoint Martha McSally in his place. This would create the surreal situation in which Kyrsten Sinema, and the opponent she just defeated, would be the state’s two Senators. But this would still give Arizona one Democratic and one Republican Senator, meaning that swapping Kyl for McSally wouldn’t change the overall Senate math at all.


The only appreciable change is that it would set up Martha McSally as an incumbent, so she could run for “reelection” in the 2020 special election. We believe she was going to run for that seat in 2020 anyway. The GOP could be thinking that making her an incumbent could boost her 2020 odds. But from the Democrats’s point of view, they just finished proving they can beat McSally in Arizona, and perhaps wouldn’t mind facing her again in two years.


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The post Here’s what happens if the Arizona GOP tries to shoehorn Martha McSally into the Senate after losing to Kyrsten Sinema appeared first on Palmer Report.

Palmer Report

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Just Security: Initial Reactions to OLC’s Opinion on the Whitaker Designation as “Acting” Attorney General

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Here are some very preliminary reactions to yesterday’s OLC opinion, in which Assistant Attorney General Steve Engel explained OLC’s pre-decisional advice to the President that he could lawfully designate the Chief of Staff to the Attorney General, Matthew Whitaker, to perform the functions and duties of the Office of Attorney General during the vacancy in that office that exists by virtue of Jeff Sessions’s resignation last Wednesday.

In sum, our tentative views are:

i. that OLC’s analysis is solid, very professional, and formidable—not remotely the hackwork that some are describing it as;

ii. that the two questions the opinion addresses—one statutory, the other constitutional—are genuinely difficult, and thus perhaps you ought to be wary of easy or over-confident answers;

iii. that OLC’s conclusion that the Whitaker designation is authorized by the Vacancies Reform Act of 1998 is possibly (but not certainly) correct, primarily because of an unexplained oddity of the 1998 Act, but that there are serious counterarguments, too, some of which OLC doesn’t address;

iv.  that if Whitaker now holds an “office” within the meaning of the Appointments Clause (an unresolved question the opinion does not purport to answer), OLC has not adequately explained why Trump’s designation of Whitaker would be consistent with that Clause and, in particular, why the Supreme Court’s decision in U.S. v. Eaton (1898) does not undermine rather than support the President’s designation here;

and therefore, at the very least,

v. that the “constitutional avoidance” canon may counsel in favor of a reading of the VRA that preserves the primacy of the AG Succession statute, pursuant to which Deputy Attorney General Rosenstein would perform the AG’s functions during the vacancy (however long it might last).

 

The Vacancies Act and the AG “Succession” Statute

Although the statutory question here is actually quite complicated and difficult, we’ll try to be relatively brief about our initial take in reaction to the OLC opinion.

OLC concludes that Congress has afforded the President two alternative options for filling the Sessions vacancy:

OPTION 1:  If the President did nothing, then Deputy AG Rod Rosenstein would perform the AG’s functions, as the AG-specific Succession Act, 28 U.S.C. 508, prescribes.  OLC does not deny that that would have been the only possibility before 1998.

OPTION 2:  According to OLC, however, in 1998 Congress dramatically changed the law that had been applicable to AG vacancies for the preceding 130 years, by giving the President the option of assigning the extensive and awesome powers of the office to someone else, including to any DOJ employee, such as Whitaker, who’s served at DOJ for at least 90 days in the past year and whose salary is at least equal to the rate of pay at level GS–15 of the General Schedule, even though such a person has not been Senate-confirmed to a DOJ office.

As we see it, the strongest arguments in the OLC opinion in support of this conclusion are:

(i) that although Section 3347(a) of the VRA by its terms recognizes that a statute such as the AG Succession Act is an exception to the VRA’s exclusivity, it does not foreclose the VRA’s possible applicability, as an alternative to such an office-specific succession statute;

(ii) that there’s nothing in post-1998 law indicating that Congress intended to make Section 508 the exclusive means of dealing with AG vacancies;

and, perhaps most importantly,

(iii) that although the Senate-passed version of the VRA would have expressly retained the exclusivity of Section 508 for purposes of AG vacancies, the VRA conference committee inexplicably, and without explanation, omitted the AG exception from the final, enacted version of the VRA, thereby (arguably) creating a sea change in the rules that had applied to AG vacancies since 1870.

The strongest counterarguments, in our view, are these five, the second and fourth of which former OLC Deputy AAG John Bies first floated in this July 2017 post:

(i) As the State of Maryland emphasizes in its brief challenging Whitaker’s designation, if the 1998 Congress truly did what OLC claims, it would, indeed, be a huge sea change from the rules the legislature had prescribed for the preceding 130 years—a system that worked well and to which no one publicly objected.  And as Justice Scalia was wont to say, “Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”

(ii) Section 508(a) provides—without any mention of the President—that “[i]n case of a vacancy in the office of Attorney General, . . . the Deputy Attorney General may exercise all the duties of that office.”  OLC’s reading of the VRA thus creates the anomaly whereby the President’s VRA designee (here, Whitaker) and the Deputy AG are simultaneously authorized to perform the AG’s duties.  (It’s obviously unlikely any DAG—removable by the President—would actually assert his authority to do so in such a case; but the point is that OLC’s reading leaves open that possibility—something Congress presumably would have precluded had it actually wanted to afford the President the option of using either mechanism.)  The OLC opinion does not address this anomaly.

(iii) Moreover, as a friend of ours flagged today, in a Department such as DOJ, OLC’s reading can also lead to another anomaly—one that is in fact currently occurring at the Department of Justice:  A mere agency employee, never considered by the Senate, now has supervisory authority over many Senate-confirmed officers (the DAG, the SG, the head of OLC, other Assistant Attorneys General, all confirmed U.S. Attorneys, etc.).  Can Congress really have intended such a counterintuitive and, frankly, bizarre situation?  The OLC opinion does not address this question, either.

(iv) Section 508 further provides that in a case where there’s no Senate-confirmed Deputy AG in office, the Associate Attorney General (assuming there is such an officer in place, unlike today, where there’s not) “shall” perform the AG’s duties.  (Moreover, even though subsection (a) says only that the Deputy AG “may” perform such duties, it might be fair to read that provision, too, to impose an obligation on the DAG (i.e., that Congress didn’t mean to suggest the DAG could decline to fill in.)  As one of us wrote previously with respect to a similar provision in the statute governing a vacancy in the Office of CFPB Director, Congress’s use of the mandatory “shall” might fairly be understood to at least create a presumption of congressional intent that Section 508 supersedes the permissive provisions of the VRA, which provide the President “may direct” certain individuals to perform such functions.  DOJ has, however, contested that view, and one district court accepted its argument (see pp. 22-23) that “shall” in the CFPB statute does not reflect a congressional intent to require application of the agency-specific statute rather than the VRA.

(v) Finally, and as the Maryland brief also emphasizes, OLC’s reading of the VRA would require resolution of the difficult Appointments Clause question we discuss below, whereas reading Section 508 to be exclusive (or at least to be applicable where possible) avoids teeing up the serious constitutional doubts in those cases where a President might use the VRA to designate someone other than a Senate-confirmed officer in the same agency to perform the duties of a Department head.

The Appointments Clause Question

OLC’s analysis of the Article II question is also very rich, and thorough—and it makes a strong case that the Appointments Clause does not impose a categorical rule that a President may never assign a non-Senate-confirmed person to perform the functions of a principal officer such as the Attorney General when that office is vacant.  Even so, the opinion never quite engages forthrightly with the characteristics that make this particular assignment so potentially problematic under the Constitution.

The gist of the Appointments Clause argument against Whitaker’s assignment is that the Office of the Attorney General is a “principal,” rather than an “inferior,” office (that’s undisputed), and that therefore the Appointments Clause requires that someone can hold that office, even on a “temporary” basis, only if the President appoints him to it by and with the advice and consent of the Senate.  Because the Senate hasn’t confirmed Whitaker to be AG, or “Acting” AG, goes the argument, Trump’s designation of him to perform the AG’s duties and functions is unconstitutional, even if the VRA authorizes it.

In order to put this question in context, it’s important to keep in mind a couple of things that distinguish the Whitaker assignment from the usual presidential practice of filling “principal” officer vacancies:

To begin with, in the vast majority of historical cases in which someone has stepped in to perform the functions of a “vacant” office of the head of a department, that “acting” official has been someone holding another office in that same department—usually a “deputy” or “first assistant”—whom the Senate has already confirmed for that underlying office.  In such cases, the Supreme Court has deemed the Senate to have already in effect approved that person’s authority to step into the principal’s shoes during vacancies:  The prospect of such an “acting” role is deemed part of the duties of the office for which the person was confirmed—those duties are said to be “germane” to the confirmed office.  From an Appointments Clause perspective, therefore, it doesn’t matter how the person was assigned to perform the functions of the higher office (although of course the assignment must be consistent with any relevant statutes).  (Shoemaker and Weiss are the leading cases on this point.)  In other words, where the “acting” officer is someone who was appointed by the President by and with the advice and consent of the Senate (colloquially known as a “PAS” appointee) to another office in the same agency, there’s no Appointments Clause issue at all.  That scenario accounts for mine run of cases.  But not this one.

Second, the Whitaker case deviates from this historical norm in another respect, as well, namely, that the President himself caused the vacancy: he gave Sessions an ultimatum of resigning or being removed.  Of course, in and of itself that’s hardly unheard of:  Jeff Sessions isn’t the first cabinet official to be removed by a President.  What is very rare, however, is that although the President reportedly planned to rid himself of Sessions many months ago, he did not announce a nomination of a replacement for the Senate’s consideration when he created the vacancy.  We’re not sure that’s never happened before with respect to the head of a department; but if has, it’s very rare.  (We’re aware of one partial analogy, but presumably it’s not one Trump would eagerly cite as a precedent:  After the Saturday Night Massacre in late October 1973, it took President Nixon 13 days to announce his intent to nominate William Saxbe to replace Elliot Richardson.  (The formal nomination came a few weeks later.)  But Nixon, of course—in contrast to Trump—had no inkling in advance that he’d be forcing Richardson to resign and therefore had no reason to be thinking about who the next Attorney General might be.  Moreover, it’s very unlikely that Trump will announce a new AG nominee within the next week.)

Now, as for OLC’s analysis:

The OLC memo rightly emphasizes that before enactment of the Vacancies Act of 1868, Congress enacted a series of statutes that authorized the President to choose persons other than PAS (i.e., Senate-confirmed) officers from the same department to perform the functions of a principal officer in the event of a vacancy (or a disability of the officer); that Presidents exercised such authority over 100 times; and that, in particular, Presidents on at least three occasions assigned others—two confirmed cabinet heads and one non-confirmed assistant to the AG—to perform the functions of the Attorney General’s office after AG resignations, even though there wasn’t even any statutory basis for such assignments and even though the Senate hadn’t had an opportunity to consider whether those three persons should be eligible to be assigned such authorities.

This pre-1868 practice has not been the norm with respect to vacancies in the office of a Department head for the past 150 years.  Even so, that early practice—almost never questioned on constitutional grounds for over 75 years—must surely have some bearing on the Article II question.

There are two possible theories that can explain the early practice.

1. First, our sense is that many (perhaps most) actors in the political branches early in the Nation’s history thought that the assignment of such functions to someone on an “interim” basis—even the significant functions of a cabinet official—did not necessarily make the assignee a constitutional officer at all, in which case the Appointments Clause would simply be inapposite. This argument is based on the idea that holding a constitutional “office” requires not only the performance of “significant authority pursuant to the laws of the United States” but also an assignment to a “continuing and permanent” position in the federal government.  Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018); see also United States v. Hartwell, 73 U.S. at 393 (holding that a clerk held an office because, inter alia, “his compensation was fixed by law” and “[h]is duties were continuing and permanent, not occasional or temporary”).

As OLC itself explained in a major 2007 opinion (at p.112), although the temporary nature of an assignment does not categorically preclude the possibility that it amounts to holding an “office,” in order to quality as an “office” “[t]he position should not be ‘transient’:  The less fleeting and more enduring it is (or is likely to be), the more likely it is to be a continuing seat of power and thus an office.”  See also id. at 77 (“for a position to be a federal office, it also must be ‘continuing,’ which means either that the position is permanent or that, even though temporary, it is not personal, ‘transient,’ or ‘incidental’”).  In other words, the person exercising the duties of an office does not necessarily “hold” that office if such exercise is merely “transient.”  Id. at 101 n.11.[1]

To some modern observers—especially those inclined to exaggerate the constraints of the Appointments Clause—this “transience” factor might appear to be a “trivial distinction[].”  NLRB v. SW General, Inc., 137 S. Ct. 929, 946 n.1 (2017) (Thomas, J., concurring).  We suspect, however, that it was much more commonly accepted earlier in our constitutional history than it might be today (concededly a topic for further research).  (At a minimum, it wasn’t universally accepted before 1868:  OLC cites an 1857 case, for instance (In re Boyle), in which the Court of Claims held that “the office of Secretary [of the Navy] ad interim is a distinct and independent office in itself” that had been held temporarily by the chief clerk of the Navy, and that the appointment was constitutional because the office was “inferior”).

If this understanding is correct, then it’s possible that Matthew Whitaker is simply not holding an office to which the Appointments Clause applies at all.  That’s why he (presumably) isn’t receiving the salary that Congress has prescribed for the Attorney General, and why he (presumably) hasn’t received a presidential commission to any new “office,” something that Article II, section 3 of the Constitution requires for “all the Officers of the United States.”  (We’re not sure of these facts, of course.  It’d be interesting to learn from the government whether Whitaker is, in fact, collecting an AG’s salary or has received a presidential commission.)

Although yesterday’s OLC opinion doesn’t expressly rely upon this not-an-officer theory, it’s noteworthy that OLC does not disclaim, it either:  Indeed, the opinion subtly but distinctly signals (p.6) that it’s an open question whether Whitaker is holding an office to which the Appointments Clause applies:  “[I]t does not matter whether an acting official temporarily filling a vacant principal office is an inferior officer or not an ‘officer’ at all within the meaning of the Constitution, because Mr. Whitaker was appointed in a manner that satisfies the requirements for an inferior officer.”  See also id. at 14 (characterizing the Supreme Court’s decision in Eaton (discussed below) as “emphasiz[ing] that the temporary performance of a principal office is not the same as holding that office itself”).

2. Assuming, however, that a temporary assignee does occupy an Article II “office” by virtue of his or her assigned functions—e.g., in Whitaker’s case, what we might call the “Office of the Acting Attorney General,” although there’s no formal position with that name—there’s another possible Appointments Clause explanation for the early practice, as well, one that depends crucially upon the Supreme Court’s 1898 decision in United States v. Eaton, 169 U.S. 331.

In Eaton, the U.S. counsel to Siam (under the Appointments Clause the equivalent of a principal officer whose appointment required Senate approval)—acting pursuant to a regulation, and with the approval of the State Department—appointed Eaton, a vice-counsel (not a Senate-confirmed officer) to take charge of the consulate after Boyd’s departure.  Eaton served as “acting” U.S. counsel at Bangkok for ten months.  In resolving a dispute about salary payments, the Court held that Eaton’s assignment as “acting” counsel didn’t violate the Appointments Clause even though the Senate hadn’t confirmed him.  It reasoned that because Eaton was “charged with the performance of the duty of the superior for a limited time and under special and temporary conditions, he is not thereby transformed into the superior and permanent official.  To so hold would render void any and every delegation of power to an inferior to perform under any circumstances or exigency the duties of a superior officer, and the discharge of administrative duties would be seriously hindered.”

In its opinion yesterday, OLC argues (pp. 14-15) that Eaton explains, or “confirm[s],” the extensive pre-1868 practice:  “In view of the long history of such appointments, Eaton simply confirmed the general rule.  It did not work any innovation in that practice.”  And that much seems correct—Eaton might be said to establish, and to confirm, a sort of “exigency” exception to the Appointments Clause, for circumstances in which someone is assigned to perform a principal officer’s duties “for a limited time and under special and temporary conditions,” lest the discharge of those duties “be seriously hindered.”

As the language of Eaton itself suggests, however, this exception is not unlimited:  The temporary assignment must be reasonably tailored to deal with the particular exigency that requires deviation from the ordinary processes the Appointments Clause requires.  So, for example, the OLC opinion appears to agree with Justice Thomas, who in the recent NLRB v. SW General case argued that the rationale of Eaton could not be used to justify an “acting” designation that had lasted more than three years “in an office limited by statute to a 4-year term.” 137 S. Ct. at 946 n.1.  Similarly, OLC approvingly cites one of its own opinions from 1977, in which it concluded that even though there was no “express statutory limit on the length” of the tenure of an “acting” OMB Director, “it may not continue indefinitely.  Within a reasonable time after the occurrence of a vacancy in the office of Director, the President should submit a nomination to the Senate.”  1 Op. O.L.C. at 289-290.

That is to say, the Eaton exigency/”special and temporary conditions” “exception” requires that the “temporary” assignment be “reasonable,” which we think is best understood to mean that it must be at least reasonably t


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1. Trump from Michael_Novakhov (198 sites): Putin and American political process – Google News: Flake: I Won’t Vote To Confirm Judges Until Senate Protects Mueller – RealClearPolitics

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RealClearPolitics

Flake: I Won’t Vote To Confirm Judges Until Senate Protects Mueller
RealClearPolitics
… shameful counter-offensive by the White House has taken place because another part of Special Counsel Mueller’s charge is to determine whether the Russians had any American cooperation in their effort to undermine the sanctity of our electoral process.

and more »

Putin and American political process – Google News

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): putin won US 2016 election – Google News: Flake: I Won’t Vote To Confirm Judges Until Senate Protects Mueller – RealClearPolitics

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RealClearPolitics

Flake: I Won‘t Vote To Confirm Judges Until Senate Protects Mueller
RealClearPolitics
U.S. Sen. Jeff Flake (R-AZ) Wednesday took to the Senate floor with Sen. Chris Coons (D-Del.) in an attempt to secure immediate passage of S. 2644, the Special Counsel Independence and Integrity Act. The bill, which passed the Senate Judiciary
GOP Sen. Jeff Flake, who is leaving office in January, vows not to vote on Trump judicial nominees until Senate CNBC
Jeff Flake threatens to block Trump’s judicial nominees until Senate votes on bill to protect MuellerBusiness Insider

all 602 news articles »

putin won US 2016 election – Google News

1. Trump from Michael_Novakhov (198 sites)


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trump putin – Google News: After chummy summit in Helsinki, Putin and Trump appear headed for bickering in Buenos Aires – CBC.ca

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CBC.ca

After chummy summit in Helsinki, Putin and Trump appear headed for bickering in Buenos Aires
CBC.ca
A closer look at the day’s most notable stories with The National’s Jonathon Gatehouse: Trump and Putin will have lots to talk about if they meet in Buenos Aires for G20; Prince Charles turns 70 but he may not be in a celebratory mood; legal cannabis

trump putin – Google News


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1. Trump from Michael_Novakhov (198 sites): putin won US 2016 election – Google News: Trump attacked the legitimacy of the midterms the same way his own officials warned Russia would – SFGate

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SFGate

Trump attacked the legitimacy of the midterms the same way his own officials warned Russia would
SFGate
The Department of Homeland Security warned that Russia would attempt to undermine the midterm elections by spreading doubts that votes were counted correctly — and President Donald Trump has done just that. Former US intelligence officials are …

putin won US 2016 election – Google News

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): FBI politicization – Google News: Stop politicizing hate crimes and start actually taking them seriously – Washington Examiner

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Washington Examiner

Stop politicizing hate crimes and start actually taking them seriously
Washington Examiner
The FBI has released its latest hate crime statistics. As is typical of these hyper-partisan times, the observer sees in them what they are conditioned to. The 2017 report acknowledges upfront that more police departments are reporting these incidents
The Daily 202: Hate crimes are a much bigger problem than even the new FBI statistics showWashington Post

all 115 news articles »

FBI politicization – Google News

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Lawfare – Hard National Security Choices: Government Seeks Expedited Consideration in Transgender Service Member Ban Litigation

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Last Wednesday, the government filed notices with the Ninth Circuit in Karnoski v. Trump and in the D.C. Circuit in Doe 2 v. Trump, informing the courts of the government’s intent to seek expedited review by the Supreme Court, bypassing the regular appeals process if necessary. In each case, the government is appealing preliminary injunctions which currently block implementation of a policy barring transgender individuals, with few exceptions, from serving in the military.

A three-judge panel of the Ninth Circuit heard oral argument in Karnoski on Oct. 10 and has not yet issued a ruling. In its Nov. 7 letter, the government asked for an expedited decision so that, if the ruling is adverse to the government, it may submit a petition for a writ of certiorari to the Supreme Court no later than Nov. 23, which it says is necessary to ensure the case can be heard during the current term. If the court does not issue a ruling by then, the government will file a cert petition before judgment, an unusual request that the Supreme Court will only grant “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” The government claims that review is urgently needed because “the district court’s preliminary injunction prevents the military from implementing a policy that, in its professional judgment, is necessary to ensure readiness, good order and discipline, steady leadership, unit cohesion, and effectiveness and lethality, among other interests.”

The D.C. Circuit set oral argument on the government’s appeal in Doe 2 for Dec. 10. The government accordingly notified the court of its intent to seek certiorari before judgment in that case, for the same reasons discussed above.

The plaintiffs in each case responded that there is no reason to accelerate the already-expedited appeal; that the government’s urgency is belied by its previous litigation choices, including its decision not to seek a stay from the Supreme Court pending appeal; and that the interlocutory appeal does not squarely present the merits issues on which the government apparently intends to seek certiorari before judgment. The plaintiffs also rebut the government’s claim of imminent injury, noting that the Obama-era policy allowing open service “has now been in effect for more than two years without any showing of any actual adverse effects …”

The documents filed in both cases are below:

Ninth Circuit: Government Request for Expedited Decision

Ninth Circuit: Plaintiff’s Response

D.C. Circuit: Government Notice of Intent to Seek Cert

D.C. Circuit: Plaintiff’s Response

Lawfare – Hard National Security Choices

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Lawfare – Hard National Security Choices: An Announcement: David Priess Becomes Chief Operating Officer of the Lawfare Institute

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I am delighted to announce an important new hire by the Lawfare Institute: David Priess is coming on board as our Chief Operating Officer.

Many Lawfare readers already know David’s work, on the site and elsewhere.

David served during the Clinton and George W. Bush administrations at the CIA as an intelligence officer, manager, and daily intelligence briefer as well as at the State Department as a desk officer in the Near East Bureau. He served, among other roles, as the daily intelligence briefer to then-FBI Director Robert Mueller and then-Attorney General John Ashcroft.

What a lot of readers don’t know is that since leaving the CIA almost 15 years ago, Priess has held management positions in private sector companies, with a specialization on small, growing entities. His experience overseeing operations, interacting with clients and stakeholders, and engaging in strategic planning have armed him well to join Lawfare’s leadership team in charting and managing the organization’s growth.

David is also a writer and speaker on national security, intelligence, and the presidency. For his 2016 book, “The President’s Book of Secrets: The Untold Story of Intelligence Briefings to America’s Presidents,” he became the first author to interview for one book every living former President, Vice President, and CIA Director from previous administrations, as well as nearly 100 other national security and intelligence leaders of the past half century. His new book, “How To Get Rid of a President: History’s Guide to Removing Unpopular, Unable, or Unfit Chief Executives,” conveys the rich stories of the many ways American presidents have left office.

Priess obtained his BA in politicial science from Illinois Wesleyan University, his MA in political science from Duke University, and his PhD in political science from Duke University. He has taught political science classes at Duke University, the George Washington University, and George Mason University.

We are very excited to have him on the team.

Lawfare – Hard National Security Choices

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): trump in financial times – Google News: Donald Trump’s dream of an Arab Nato is a fantasy – Financial Times

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Financial Times

Donald Trump’s dream of an Arab Nato is a fantasy
Financial Times
Before his visit to Saudi Arabia in May last year, Donald Trump and his entourage talked portentously about creating an “Arab Nato” to counter the regional ambitions of Iran. What happened next takes more than a tweet to describe. Mr Trump was

and more »

trump in financial times – Google News

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Russian Intelligence services – Google News: A cloud for Russia – DatacenterDynamics

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DatacenterDynamics

A cloud for Russia
DatacenterDynamics
The initial search service was successful because it was uniquely adapted to the Russian morphology (how words are formed) and could recognize inflection in search queries – providing more accurate results than alternatives, designed to index text in

Russian Intelligence services – Google News

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Lawfare – Hard National Security Choices: Let there be Merch!

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We are excited to announce, in plenty of time for the holidays, our new—and dramatically improved—Lawfare swag shop.

You want shirts? We’ve got lots of shirts, for women and men and everyone.

Onesies? We’ve got onesies.

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Lawfare – Hard National Security Choices

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Politics: Senate Republicans reelect Mitch McConnell as their leader, according to an individual familiar with the proceedings

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The Kentucky lawmaker led the GOP to victory in the midterm Senate elections, albeit by a narrow margin. Republicans have a 51-to-47 advantage, with two races in Florida and Mississippi unresolved. This is a developing story. It will be updated.

Politics

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Politics: Senate Democrats reelect Charles E. Schumer as their leader, according to an individual familiar with the proceedings

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Although Democrats fell short in claiming the Senate majority in the midterm elections, Schumer (N.Y.) held losses to a minimum despite a brutal political map. Ten Democratic incumbents sought reelection in states Donald Trump won in 2016. Six won, while one race — Florida — remains unresolved. This is a developing story. It will be […]

Politics

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): trump russian candidate – Google News: Review: “The Apprentice: Trump, Russia and the Subversion of American Democracy” – The Missourian (blog)

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The Missourian (blog)

Review: “The Apprentice: Trump, Russia and the Subversion of American Democracy”
The Missourian (blog)
Author Greg Miller, “Washington Post” national security reporter, skillfully recaps Putin’s covert plan to elect the candidate of his choice as U.S. president. The Pulitzer Prize winner reveals Trump’s ardent allegiance to Putin and his barefaced

trump russian candidate – Google News

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Lawfare – Hard National Security Choices: Document: Justice Department Office of Legal Counsel Memo on Designating an Acting Attorney General

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On Nov. 14, the Justice Department’s Office of Legal Counsel released a memo defending the legality of President Donald Trump’s Nov. 7 designation of Matthew Whitaker as acting attorney general. Read the document in full below.

 

OLC Acting AG memo (PDF)
OLC Acting AG memo (Text)

Lawfare – Hard National Security Choices

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Do police officers shootings increase trump election chances? – Google News: The Daily 202: Hate crimes are a much bigger problem than even the new FBI statistics show – Washington Post

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Washington Post

The Daily 202: Hate crimes are a much bigger problem than even the new FBI statistics show
Washington Post
THE BIG IDEA: The FBI announced on Tuesday a disturbing 17 percent increase in reported hate crimes last year. Law enforcement agencies disclosed 7,175 hate crimes in America during 2017, up from 6,121 in 2016. This is the third consecutive year that …

and more »

Do police officers shootings increase trump election chances? – Google News

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Lawfare – Hard National Security Choices: Israel’s Supreme Court Hands a Victory to Lara Alqasem, But the Future of Foreigners’ Free Speech Remains Uncertain

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On Oct. 18, the Israeli Supreme Court ruled in favor of the appeal of Lara Alqasem, the 22-year-old American student who was detained upon her arrival at Ben-Gurion International Airport and denied entry into Israel when border officials discovered her involvement in pro-BDS activities (BDS is the movement to boycott, divest from and sanction Israel). While the court based its decision on relatively narrow legal grounds, the ruling was attacked by conservatives for reflecting the “extreme liberalism” of an overactive judiciary and criticized by the left for not going far enough.

The decision to deny Alqasem’s entry was based on a 2017 amendment to the Entry to Israel law, preventing boycott activists from obtaining visas to enter the country. As Lawfare readers may recall, the law states that non-permanent residents cannot be granted visas, as a rule, “if they, or an organization they act for, has knowingly promulgated a public call to boycott” Israel or the settlements. The law came in the wake of several steps by the conservative-leaning Israeli government in recent years to combat international efforts to boycott and delegitimize Israel—efforts which it has identified as a major strategic threat. For many Israeli liberals, it was one of the latest expressions of “the closing of the Israeli mind”—a narrowing of the bounds of acceptable political discourse that threatens to stifle political dissent.

Delegitimization, Boycotts and Dissent: Some Context

Back in 2011 the Knesset approved a special “Boycott Law” that imposed civil tort liability on individuals publicly calling for a boycott of Israel or “an area under its control” (i.e. Jewish settlements in the West Bank). The law also empowered the government to impose various administrative sanctions on individuals or institutions that have either called for a boycott or committed to participating in one—including denying them certain subsidies and benefits and barring them from competing for government contracts.

In 2015 in Avneri v. The Knesset, a divided Supreme Court upheld the Boycott Law, striking down only one provision that provided for punitive damages. Justice Hanan Melcer, writing for the majority, held that while the law did implicate freedom of expression, it served the legitimate purposes of preventing harm to the state and protecting its citizens from unjustified discrimination—not unlike statutes that seek to combat unfair treatment based on national origin. It also served to protect free speech from the coercive impact of boycotts, which aimed to shut down, rather than promote, intellectual discourse. However, the court also held that to pass constitutional muster, the law must be construed narrowly—limiting liability to cases where plaintiffs could prove a causal link to concrete damage and where the defendants were aware that their call to boycott had a reasonable chance of actually causing harm. Four justices dissented, three focusing their ire at the provision’s conflating boycotts of the settlements with boycotts of Israel. Only one justice—Neal Hendel, who also wrote the court’s opinion in the Alqasem case—held the civil tort in its entirety to be an unconstitutional violation of free speech. (For more on Avneri and its significance, see Elena Chachko’s discussion on Lawfare.)

Also in 2015, the government tasked the Ministry of Strategic Affairs with spearheading the fight against BDS and “delegitimization.” Over the years, the ministry has sought to pursue shady policies like the establishment of a database of Israeli BDS activists, an initiative that was met with the ardent opposition of Israel’s attorney general. (It is unclear whether it was pursued further.) The ministry has over the same period aroused concerns that its activities—pursued with little oversight—serve to “securitize” criticism of government policies (a Justice Ministry bill even seeks to exempt the Strategic Affairs Ministry’s efforts to combat BDS from Israel’s Freedom of Information Act). Early this year, reports indicated that the ministry planned to transfer huge sums of money to a nonprofit corporation formed to promote global engagement and “non-governmental discourse” in the fight against delegitimization—including through what it called “mass consciousness activities” (As of late October, the collaboration appeared not to have gotten off the ground). It is the ministry that has busied itself with compiling blacklists of foreign BDS organizations whose members are to be denied entry to the country according to the 2017 amendment.

The Court’s Ruling in Alqasem: Prevention, not Punishment

Concern that the government had begun treating dissent as a strategic threat reached a crescendo last summer, following a slew of cases in which both Israelis and foreigners—including prominent Jewish-American journalist Peter Beinart—were subject to political questioning at the border, triggering an inquiry by the attorney general. Against this backdrop, the Alqasem case drew heightened attention both in Israel and abroad. The stakes seemed high, transcending the specific legal questions surrounding the revocation of a student visa: Would the court push back against a government that appeared to be exploiting its authority in order to police political opposition?

The facts of the case, as described by the court, were as follows: Lara Alqasem, an American college graduate, arrived in Israel after being accepted to Hebrew University’s master’s program in Human Rights and Transitional Justice and after obtaining a student visa from the Israeli consulate in Miami. When she landed at Ben Gurion Airport, authorities questioned Alqasem about her past activities in her college’s tiny chapter of Students for Justice in Palestine (SJP)—and her visa was revoked after officials determined she had been involved in BDS. The decision to deny her entry cited “considerations regarding the prevention of illegal immigration” and “considerations of public security, public safety or public order.”

Rather than be deported, Alqasem decided to challenge the decision and remained in detention for over two weeks as her case wound its way through the justice system. She argued that she hadn’t been a member of SJP since April 2017, and that even when she served as the chapter’s president, she was only marginally involved in promoting boycotts. In addition, she promised to refrain from participating in any BDS activities during her stay in Israel, affirming that—as indicated by her determination to study at an Israeli university—she currently does not support a boycott.

The case reached the Supreme Court after Alqasem’s initial appeals were rejected by the administrative immigration tribunal and by the District Administrative Court in Tel Aviv. The proceedings were joined by Hebrew University, which argued that the government’s policy could cause irreparable damage to Israeli academia and the university’s international relationships. The right-wing organization Im Tirzu asked to join the proceedings to argue for the government, asserting that allowing Alqasem to attend the university would cause “tension” among students that could lead to physical harm.

The case was heard by a panel of three judges: Justices Neal Hendel and Uzi Vogelman, both of whom had dissented in Avneri, and Justice Anat Baron, who joined the court in 2015, after the Avneri ruling. In the Alqasem decision, Hendel, writing this time for a unanimous court, emphasized that the purpose of the 2017 BDS law is preventive rather than punitive: It does not seek to punish activists for past statements, but rather to give the government an additional tool to fight the boycott movement and protect its citizens against discrimination. This tool, however, is subject to the general purposes of the Entry to Israel Law—the protection of Israeli sovereignty, public safety and security—which preclude purely punitive measures. Thus, the 2017 law allows the government to bar entry to individuals who seek to exploit their physical presence in the country to act against the State; but given the above purposes, it only applies to those that “threaten Israeli democracy and seek to subjugate it through the imposition of an aggressive and violent boycott.” In addition, it only applies to current activists (though the question of when an individual can be said to have ceased past activity could vary from case to case).

Hendel also referenced internal guidelines approved by the interior minister and the minister of strategic affairs that limit the application of the statute to senior members of organizations (or individuals) that act in an “active, consistent and continuous” manner to promote boycotts. While he accepted the interior ministry’s argument that the 2017 statute may not be exhaustive of its authority to prevent entry by boycott activists, he emphasized that even the broad discretion granted to the government in immigration matters had to be exercised in line with the Entry to Israel Law’s general purposes, outlined above.

The court held that the preventative rationales justifying the law simply did not apply in Alqasem’s case. Given the amount of time that had passed since her involvement in BDS, her young age, and her very minor role in the movement to begin with, Alqasem’s desire to study at an Israeli university was enough to negate any concern that she sought to exploit her presence in Israel to promote a boycott. Recommendations by college professors, describing her interest in Jewish studies and her eagerness to engage in open and respectful dialogue, were also cited by the court. At the same time, the court noted that that the decision to allow her into the country did not grant her carte blanche: If at any point she “returned to her problematic ways,” the minister could always revoke her visa and send her home. The fact that she had gotten a visa in advance, and relied upon it in making her plans, was given some weight by the court but was not a decisive factor; had she not so clearly distanced herself from BDS in the period leading up to her arrival, it would not have been enough to enable her to stay.

Justice Vogelman, in a concurring opinion, also emphasized the preventive nature of the law, which sought to prevent boycott activists from entering Israel and spreading their ideas from inside the country. Justice Baron took the most strident tone against the government, noting that the circumstances of Alqasem’s case create the inevitable impression that her visa was revoked simply for her political opinions—a “dangerous and extreme step that could lead to the disintegration of the pillars upon which Israeli democracy is built.”

The Preventive Paradigm in the Service of Ideological Screening

The court in Alqasem found itself navigating a difficult terrain. Only three years earlier, an extended panel of nine justices had upheld much of a law imposing civil liability and administrative sanctions on domestic boycott advocates—and even the portion of the law struck down by the court has since become the focus of renewed legislative efforts (last June, the Constitution and Law Committee of the Knesset voted to approve for first reading a new bill seeking to reinstate punitive damages for BDS activists). Furthermore, Israeli law—like many jurisdictions—grants the government particularly broad authority to regulate entry into the country, and aliens generally have no vested right to obtain a visa. Under these circumstances, the very fact that the court intervened at all is noteworthy.

At the same time, while the decision in Alqasem does place some limits on the government’s power to exclude aliens on ideological grounds, the use of the “preventive” paradigm in this context raises significant problems of its own.

Baron blasted the government for seeking to deport Alqasem for her political views rather than due to concern she would exploit her presence in Israel to further BDS. In Alqasem’s case, this nuance provided a legal basis for her to stay in the country. But for the free speech issues at stake, it’s a distinction without a difference. While the government may not be able to overtly punish people for having held objectionable opinions in the past, it can enlist the logic of “prevention”—verbiage usually associated with threats to national security—to keep them out of the country, as long as it can point to a reasonable “danger” that they continue to espouse such views and will spread them while they are here.

Worse, consider the implications of admitting a student into the country on the explicit condition that they refrain from engaging in certain noncriminal political speech. An unwitting result of the decision in Alqasem could be the creation of a class of individuals—foreigners—subject, while they are in the country, to a specialized regime of ideological scrutiny.

Foreigners, as noted, do not generally have a right to enter the country, and visas can be subject to all sorts of conditions. But censorship at the border chills the space for free discourse for everyone, marking certain beliefs as “off limits” and blocking at least one important avenue for the free exchange of ideas. Israelis have the right not to have their exposure to certain political opinions “managed” by the government; and even aliens, once they are present in the country, should not be threatened with deportation for engaging in speech that has not been criminalized—speech that constitutional considerations of proportionality preclude from criminalizing.

Alqasem left a lot of questions open. How will the BDS law be applied to people who promote boycotts of Israeli settlements rather than Israel itself—can they also be said to “threaten Israeli democracy” or undermine Israeli sovereignty? In addition, the justices took pains to note that a separate constitutional challenge to the 2017 law remains pending. As Elena Chechko argued in March 2017, it was always unlikely that the court would strike it down. The Alqasem ruling, it seems, makes that possibility even more remote.

Lawfare – Hard National Security Choices

1. Trump from Michael_Novakhov (198 sites)


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