1. Trump from Michael_Novakhov (198 sites): Palmer Report: The real reason Donald Trump has survived in office this long

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We’ve seen the same cycle on repeat for the past two years. Donald Trump tries an idiotic stunt aimed at fending off his worsening criminal scandals. The stunt has zero effectiveness, and only serves to make him look even stupider. He only survives because the complicit Republican Party once again invokes its majority in the House and Senate to protect him at all costs. Then the media marvels at how Trump’s idiotic stunt has somehow saved him. Enough.



The media has worked so hard to convince the public that Donald Trump’s simplistic swings-and-misses are actually secretly brilliant moves, even a number of members of the Resistance have come to accept it as fact. But the facts tell a very different story. Trump’s biggest gambits for fending off his scandals have consisted of things like firing James Comey, which merely resulted in Robert Mueller taking over in more powerful fashion, and releasing the Nunes memo, which had literally zero impact on anything.




If the Democrats had control of the House or the Senate during Trump’s first two years, he wouldn’t have lasted those two years. There would have been legitimate congressional investigations into every one of his scandals, all of them on live national television. Everything in Trump’s life would have been subpoenaed, including his tax returns, and it would have all been aired out publicly a long time ago. Trump would be out of office by now, and likely on criminal trial by now.



Special Counsel Robert Mueller has had to do things the hard, slow, quiet way, in court and behind the scenes, because he’s been all alone in his battle against Donald Trump. That all changes now, because unlike Mueller, the House Democrats can simply make everything public, and blast it out to the media on an all day, every day basis. The GOP’s total control has been the only reason Trump has survived this long. Now he’s lost his safety net, and his fall is about to come swift and hard. In the meantime, let’s stop trying to decipher why his stunts have worked, because none of them have actually worked.

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“Russia investigations” – Google News: MSNBC’s Rachel Maddow connects the dots between Russians trying to shut down Mueller investigations – Raw Story

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MSNBC’s Rachel Maddow connects the dots between Russians trying to shut down Mueller investigations  Raw Story

MSNBC anchor Rachel Maddow on Monday revealed the bizarre link between a “lurid” murder-for-hire case in North Carolina and apparent Russian efforts to …

“Russia investigations” – Google News


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1. Trump from Michael_Novakhov (198 sites): Palmer Report: Jimmy Carter calls out Donald Trump

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Last week, after realizing he was never going to convince the American people that his racist border wall was smart or necessary, Donald Trump tried a different tactic. He claimed that unnamed past U.S. Presidents had privately told him that they wished they’d built a border wall when they were in office. It it turns out, Jimmy Carter has something to say about that.



After Donald Trump’s obviously false claim, representatives for Barack Obama, George W. Bush, Bill Clinton, and the late George H.W. Bush all quickly stated that no such conversations ever took place. It’s taken Jimmy Carter a bit longer to respond, but he’s now released this statement via Twitter: “I have not discussed the border wall with President Trump, and do not support him on the issue.”




President Carter was the only one left who hadn’t yet spoken up, meaning he was the only one Donald Trump could have been referring to. By disputing him, Carter is – politely but unmistakably – calling Trump a liar. So now what?



As always, Donald Trump is counting on his base to be too uninformed, too uninterested in the truth, or some combination of both, to ever find out that he’s clearly lying. Then again, it’s not clear why Trump’s base would care what any former U.S. Presidents might have to say about anything. At this point anyone still supporting Trump is clearly standing against the United States anyway.

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1. Trump from Michael_Novakhov (198 sites): “Putin and American political process” – Google News: The crisis in world leadership – NewsDay

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The crisis in world leadership  NewsDay

We all have very short memories. Looking back over the 20th Century, we can see how a global conflict like the First World War can break out over what seems …

“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): Donald Trump | The Guardian: What does 2019 hold for Kim Jong-un and North Korea?

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Kim Jong-un goes into 2019 with diplomatic momentum to build on after last year’s historic meeting with the US president, Donald Trump. As Kim attempts to negotiate a fresh summit, the Guardian’s Tania Branigan looks at his leadership so far and Emma Graham-Harrison describes a rare trip to Pyongyang and the humanitarian conditions for ordinary North Koreans. Plus: Catherine Shoard, at the start of the annual film awards season, argues prizes are not necessarily a mark of quality

Donald Trump has revealed that negotiations are underway to secure a location for a new summit with the North Korean leader, Kim Jong-un, after the historic meeting between the two men in Singapore last year.

It came after Kim warned in a New Year’s speech that Pyongyang may change its approach to nuclear talks if Washington persisted with sanctions.

Continue reading…

Donald Trump | The Guardian

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1. Trump from Michael_Novakhov (198 sites): “Donald Trump” – Google News: Networks set to air Trump’s prime time address; Pelosi, Schumer demand equal time – CNN

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Networks set to air Trump’s prime time address; Pelosi, Schumer demand equal time  CNN

Following news that the networks would air Trump’s immigration address, House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer said in a …

“Donald Trump” – Google News

1. Trump from Michael_Novakhov (198 sites)


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“Conspiracy Against US” – Google News: Big Apple Eateries Freed From No-Tip Conspiracy Case – Law360

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Big Apple Eateries Freed From No-Tip Conspiracy Case  Law360

Several upscale New York restaurants and their celebrity chefs can slip a suit alleging they cooked up a no-tipping scheme to boost menu prices, a federal judge …

“Conspiracy Against US” – Google News


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1. Trump from Michael_Novakhov (198 sites): “Trump personality profile” – Google News: It takes two: Do you really need a ‘good husband’ to succeed in politics? – Independent.ie

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It takes two: Do you really need a ‘good husband’ to succeed in politics?  Independent.ie

For all its power, dynamism and (supposed) cut and thrust, politics can be a lonely outpost, whether you’re male or female. The hours are erratic. The ‘robust’ …

“Trump personality profile” – Google News

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1. Trump from Michael_Novakhov (198 sites): “trump as danger to National Security” – Google News: This is presidential malpractice – CNN

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This is presidential malpractice  CNN

Julian Zelizer writes that President Trump’s upcoming speech about the border risks being one of the more striking misuses of presidential addresses in recent …

“trump as danger to National Security” – Google News

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1. Trump from Michael_Novakhov (198 sites): “Elections 2016 Investigation” – Google News: House panel demands accounting from Utahn tasked in Clinton, Trump probes – KSL.com

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House panel demands accounting from Utahn tasked in Clinton, Trump probes  KSL.com

Two House panels want an accounting from U.S. Attorney for Utah John Huber of his investigation into whether the Justice Department and the FBI abused its …

“Elections 2016 Investigation” – Google News

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Palmer Report: Nancy Pelosi fires back after Donald Trump’s last ditch border stunt

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Now that everything else has failed when it comes to his border wall and government shutdown, Donald Trump is about to escalate his failure. He’s planning to give a nationally televised speech on Tuesday evening, presumably full of racism and lies, aimed at convincing the American people to support his idiotic wall. Nancy Pelosi isn’t having any of it.




Donald Trump is, in effect, asking the major television networks for the opportunity to spread lies, without any host or moderator to intervene and call him out. Because of this, Nancy Pelosi and Chuck Schumer are firing back. They’ve jointly issued the following public statement:




“Now that the television networks have decided to air the President’s address, which if his past statements are any indication will be full of malice and misinformation, Democrats must immediately be given equal airtime.”



We’ll see what the television networks do. But given that MSNBC and CNN have begun employing tactics such as a split screen so that Donald Trump and his people can be fact checked in real time while giving live speeches, it’s difficult to imagine they won’t at least consider giving Nancy Pelosi equal time to provide a rebuttal after Trump’s debacle.

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The post Nancy Pelosi fires back after Donald Trump’s last ditch border stunt appeared first on Palmer Report.

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1. Trump from Michael_Novakhov (198 sites): “Donald Trump” – Google News: This is presidential malpractice – CNN

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This is presidential malpractice  CNN

Julian Zelizer writes that President Trump’s upcoming speech about the border risks being one of the more striking misuses of presidential addresses in recent …

“Donald Trump” – Google News

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): “Donald Trump” – Google News: Trump trying to make his case for border wall – CNN

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Trump trying to make his case for border wall  CNN

… © 2019 Cable News Network. Turner Broadcasting System, Inc. All Rights Reserved. CNN Sans ™ & © 2016 Cable News Network. Terms of *service* | Privacy …

“Donald Trump” – Google News

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1. Trump from Michael_Novakhov (198 sites): Palmer Report: “Knock it off” – federal judge tells off Robert Mueller’s latest courtroom adversary

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We’re still waiting to see what the Supreme Court is going to do with the escalating legal battle between Special Counsel Robert Mueller and an unidentified foreign government-owned company that’s been trying to defy a subpoena. Even as that storyline plays out, Mueller and his team are engaged in other ongoing Trump-Russia courtroom battles as well. One of them now involves fireworks.




Awhile back, Robert Mueller brought criminal charges against a Russian company named Concord Management and Consulting for meddling in the 2016 U.S. presidential election. Concord is trying to convince the federal judge in the case to order Mueller to turn over additional evidence ahead of trial. Suffice it to say that the effort is not going well for the defense – at all.




The judge just told the defense team, “I’ll say it plain and simple: knock it off,” adding that its legal filings have been “unprofessional, inappropriate and ineffective.” So what’s the problem? According to Politico, the defense lawyers have been making bizarre moves such as quoting the movie Animal House in their filings. It appears to be some kind of stunt aimed at annoying the judge into recusing herself, but we can’t imagine that’ll go anywhere.



In any case, this marks yet another Trump-Russia court battle in which things are going well for Robert Mueller, or going poorly for his adversaries, or both. Concord Management and Consulting must not think it has any valid way of mounting a defense, if it’s already resorting to these antics, which clearly aren’t working. This suggests Mueller will end up winning the inevitable court trial.

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1. Trump from Michael_Novakhov (198 sites): 1. Trump Circles: Elections from Michael_Novakhov (16 sites): “Putin Trump” – Google News: Trump’s visit to Iraq is a distraction from America’s shaky foreign policy – Highlander Newspaper

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Trump’s visit to Iraq is a distraction from America’s shaky foreign policy  Highlander Newspaper

On Wednesday, Dec. 26, President Donald Trump made an unannounced visit to al-Asad Air Base in the Al Anbar Province of Iraq. Trump and First Lady …

“Putin Trump” – Google News

1. Trump Circles: Elections from Michael_Novakhov (16 sites)

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Politics: Scott’s standing among Hispanics faces test with Trump’s demand for wall money

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The newly elected senator from Florida deflected questions about anti-immigrant rhetoric and disaster response, but he will encounter votes that will force him to be with or against the president.

Politics

1. Trump from Michael_Novakhov (198 sites)


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“Manafort” – Google News: Hey Apple, what happens on iPhones doesn’t stay there, and your ‘clever’ CES ad is promoting a dangerous illusion – Business Insider

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Hey Apple, what happens on iPhones doesn’t stay there, and your ‘clever’ CES ad is promoting a dangerous illusion  Business Insider

Apple has a big — and misleading — ad on display in Las Vegas during this year’s CES convention. The ad states, “What happens on your iPhone, stays on …

“Manafort” – Google News


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1. Trump from Michael_Novakhov (198 sites): Palmer Report: Mick Mulvaney gets laughed off of CNN

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With most of Donald Trump’s advisers having already departed amid controversy and scandal, and very few of them having been replaced, and with Trump too far gone to do his own dirty work in interviews, the small handful of people still in the building have been tasked with doing Trump’s lying for him. Chief among them: Mick Mulvaney, who now holds approximately thirteen White House job titles, and sucks at all of them.




Mick Mulvaney, who comes across as a mix of a shame emoji and the guy who played the dad on ALF, appeared on CNN with host Jake Tapper this weekend. Mulvaney’s job was clear: sell Trump’s lies. It’s not that any reasonable CNN viewer was going to buy them, but Mulvaney was only performing for Trump himself, who was surely lying in bed and watching it on television.




Tapper asked Mulvaney if he thinks Trump is to blame for the “coarsening of our national discourse.” Mulvaney’s ridiculous yet straight faced answer: no. Tapper seemed dumbstruck, and asked the question again. Mulvaney’s response this time: a roundabout version of no. At this point, Tapper openly laughed in Mulvaney’s face, signaling the absurdity of the denial.



This came on the same day Sarah Huckabee Sanders, a cross between a stupidity emoji and a pile of vomit, appeared on Fox News, also tasked with selling Donald Trump’s lies. It was her back luck, as Fox host Chris Wallace wasn’t in the mood for lies, and quickly fact checked her to her face. Notably absent from the weekend talk show circuit was Stephen Miller; we assume he was to busy suffering a spray-on hair malfunction.

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1. Trump from Michael_Novakhov (198 sites): Donald Trump | The Guardian: Mike Pence: Trump undecided on declaring national emergency over border wall demand

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White House counsel is reviewing whether the president has the ability to declare a national emergency in this situation

Vice-president Mike Pence said Donald Trump has yet to decidewhether he will declare a national emergency over his demand for a wall along the southwest border – the key sticking point in negotiations over the partial government shutdown that has affected 800,000 federal employees.

White House counsel is reviewing whether the president has the ability to declare a national emergency in the current situation, Pence told reporters on Monday. He added that the administration would prefer to secure the funding for border security from an agreement with Congress.

Related: Trump threatens national emergency in ‘next few days’ over wall and shutdown

Related: Trump to visit US-Mexico border as showdown over wall continues

Continue reading…

Donald Trump | The Guardian

1. Trump from Michael_Novakhov (198 sites)


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“Trump – Russia Investigations” – Google News: Senators renew attempt to protect special counsel Mueller – KUTV 2News

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Senators renew attempt to protect special counsel Mueller  KUTV 2News

WASHINGTON (AP) — Republicans and Democrats on the Senate Judiciary Committee are renewing their attempt to protect special counsel Robert Mueller’s …

“Trump – Russia Investigations” – Google News


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1. Trump from Michael_Novakhov (198 sites): Lawfare – Hard National Security Choices: Declaring an Emergency to Build a Border Wall: The Statutory Arguments

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As the government shutdown drags on, President Trump has made multiple statements hinting that, if Congress refuses to appropriate $5.6 billion in new appropriations to fund a wall along the southern border, he will declare a national emergency in order to access existing Pentagon funds for the effort. On Dec. 18, Trump tweeted, “Because of the tremendous dangers at the Border, including large scale criminal and drug inflow, the United States Military will build the Wall!” On Jan. 4, the president acknowledged the possibility of using emergency powers to fund the wall, saying, “We can call a national emergency because of the security of our country … I haven’t done it. I may do it … We can call a national emergency and build it very quickly.” On Jan. 6, he told reporters, “I may declare a national emergency dependent on what’s going to happen over the next few days.” This may not be idle talk: according to Reuters, Vice President Mike Pence has said that the White House counsel’s office is examining the legality of declaring such an emergency in order to construct a wall.

Building a wall was one of the central promises of Trump’s 2016 presidential campaign. The Trump administration initially requested that Congress appropriate $25 billion for the project after Mexico refused to pay for it, as Trump had promised on the campaign trail, but Congress specifically denied the funds in 2017 and 2018. After Congress passed a number of stopgap measures to continue funding the government while talks continued on money for the wall, on Dec. 22 Trump refused to sign another temporary measure, which caused the government to shut down.

In short, the president is looking for a way to end the government shutdown while keeping his campaign promise to build the wall. But in the absence of an appropriate statutory authority on which to rely to build the wall, such action would be unconstitutional: Article I, Section 1 of the Constitution assigns the role of making laws to Congress, and Article I, Section 9 specifies that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The question, therefore, is what existing statutory authorities the president could reasonably rely on to use already-appropriated funds to build the wall.

Construction Authority

With the caveat that it remains unclear precisely what legal authority or authorities Trump has in mind, it is possible to make some educated guesses about what administration lawyers may be considering.

The first question is what legal authorities might actually be available for the purpose of using already-appropriated funding to build a wall on the U.S.-Mexico border. Congressional oversight of military construction programs is extensive, and as a general matter, all military construction projects must first be authorized by Congress. The General Accounting Office (GAO) in B-213137, 63 Comp. Gen. 422, 433 (1984) interpreted 41 U.S.C. § 12 to require specific congressional authorization for military construction projects and to prohibit the use of other, more general appropriations for such projects. Congress typically authorizes military construction projects in the annual Military Construction Authorization Act, with project authorizations broken down individually in the accompanying conference report. As such, the large general-purpose pot of Pentagon funding known as Operation & Maintenance (O&M) funding generally cannot be used for construction purposes.

But the Defense Department’s emergency military construction authorities contain two exceptions to this requirement of congressional authorization. The first, outlined in 10 U.S.C. § 2803, allows up to $50 million of appropriated funds for military construction to be spent on not-specifically-authorized construction projects if those projects are for the purpose of national security and protecting the safety of U.S. troops. According to Defense Department guidance from 2013, the relevant legislative history indicates that this authority may not be used for projects denied authorization in previous Military Construction Appropriations Acts—and unfortunately for the administration, the wall fits this description. In any event, the $50 million authorized under § 2803 would be a drop in the bucket of the $5.6 billion Trump is currently requesting and would fall well short of the estimated cost for the wall, which is likely somewhere between $12 billion and $25 billion.

The second exception, outlined in 10 U.S. Code § 2808(a),provides that:

 “[i]n the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) 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.” (Emphasis added.)

If such a national emergency is declared, the secretary of defense must notify the appropriate congressional committees and provide an “estimated cost of the construction projects, including the cost of any real estate action pertaining to those construction projects.” The authority terminates “with respect to any war or national emergency at the end of the war or national emergency.”

The portion of this law that references a “declaration of war” can be quickly dispensed with. There is no authority for the president to declare war: that power is expressly reserved to the Congress in Article I, Section 8 of the Constitution. Therefore, Trump could only invoke this authority by declaring a national emergency, consistent with Trump’s recent statements. Presidents have invoked § 2808 by declaring national emergency at least twice: in 1990 in Executive Order 12734 in response to Iraq’s invasion of Kuwait, and in 2001 in Executive Order 13235, following the terrorist attack of Sept. 11, 2001.

Under a plain reading of this language, it would seem the authority to engage in military construction projects would only apply to national emergencies that require use of the armed forces—and construction done pursuant to the authority would also need to be related to that specific use of the armed forces. In other words, the ongoing conflict in the Democratic Republic of the Congo, for example, could not serve as the basis for a national emergency that would authorize building the wall on the border with Mexico. The president also likely couldn’t declare a national emergency with respect to the Mexican border and then construct something that would not in any way support the mission of the U.S. armed forces in responding to the supposed emergency.

It is not obvious that the current situation at the U.S.-Mexico border requires the presence of the military. According to a report by Customs and Border Protection (CBP), CBP apprehensions along the southwest border plummeted by approximately 80 percent from Fiscal Year 2000 to FY 2017, from a high of over 1.6 million to around 300,000. Though numbers rose slightly in FY 2018, the administration has not presented evidence that CBP officials require military assistance to prevent immigrants from entering the country.

Nonetheless, in November 2018, a White House memo reportedly “authorized a more forward-leaning role for the active-duty forces, permitting troops to work alongside Border Patrol agents in duties such as crowd control and temporary detention.” Trump’s deployment of troops to the border in October was widely criticized as an election-year ploy, but it also may have had the effect of laying the groundwork for a national emergency determination that would allow Trump to build the wall using existing military construction funds pursuant to 10 U.S.C. § 2808(a). That is, because troops are currently stationed at the border, there is a better case that an emergency related to the border would require the use of the armed forces under § 2808(a).

But what would the basis of the emergency be? The government might point to an alleged crisis in border enforcement generally, though as noted, publicly available data does not indicate such a crisis. Recent statements by administration officials suggest that the government may also seek to make a more specific argument about terrorism. Various administration officials, including Secretary of State Mike Pompeo, Secretary of Homeland Security Kirstjen Nielsen and White House Press Secretary Sarah Huckabee Sanders, have publicly made the link between terrorism and what is happening at the southern border. On Jan. 6, for example, Sanders said in an interview that “nearly 4,000 known or suspected terrorists come into our country illegally [in FY 2018]. And we know that our most vulnerable point of entry is at our southern border.” (Though the source of Sanders’s information is unclear, NBC has since reported that CBP stopped only six individuals listed as known or suspected terrorists from crossing the U.S.-Mexico border in the first half of FY 2018.)

If the president finds that the situation at the border “requires the use of the armed forces,” the next question is whether construction of a wall could be construed as “necessary to support such use of the armed forces.” This, in turn, raises the issue of what U.S. troops are actually doing and responding to at the border. The New York Times has reported that the approximately 5,900 American troops on the border are spread between southwestern Texas and southern California in small bases, where they have helped set up concertina wire and other security barriers. USA Today reported on Jan. 4 that the Department of Homeland Security requested from the Department of Defense more support from active-duty military troops to bolster CBP officers along the southern border, in particular more combat engineers to install concertina wire and more aircraft and crews to transport CBP officers. One can imagine the administration making an argument that the troops need the wall for their mission to keep terrorists and/or civilian invaders out of the United States, and the concertina wire they are laying is not sufficient for them to respond effectively. How convincing one finds this argument is a different question.

Declaring Emergency

Beyond the limitations outlined in § 2808(a), the statute does not provide any explicit criteria or guidance for the president regarding what type of circumstances would qualify as a “national emergency” for purposes of this construction authority. Both the courts and Congress have typically been deferential to presidential declarations of national emergencies. For example, in the context of economic sanctions under the International Emergency Economic Powers Act (IEEPA)—which was enacted in part to limit the president’s ability to declare unending national emergencies—courts have generally deferred to the executive’s decisions regarding whether a particular foreign policy issue creates a national emergency sufficient to invoke IEEPA’s authorities, along with the underlying factual determinations by the executive branch.

If the administration were to tie the need for a wall to the threat of terrorism, it might seek to piggyback on the national emergency already declared in Executive Order 13224 by President George W. Bush, which authorized the use of economic sanctions to address terrorism and threats of terrorism committed by foreign terrorists against U.S. nationals or the United States. An executive order by Trump to extend that national emergency declaration to cover construction pursuant to 10 U.S.C. § 2808 would look very similar to the two prior executive orders in which § 2808 was invoked: these orders rested on national emergencies that had already been declared.

§ 2808(a)’s reference the National Emergencies Act (50 U.S.C. 1601 et seq.), which was enacted in 1976 as a way to rein in the proliferation of emergency powers, provides the affirmative authorization to the president to issue a national emergency declaration. But it also provides a process-oriented framework for congressional involvement in the event the president declares such a national emergency. Under the National Emergencies Act, any such declaration of a national emergency must “immediately be transmitted to the Congress and published in the Federal Register.” A national emergency covered by these provisions terminates if either a joint resolution is enacted or the president issues a proclamation terminating the emergency. Such a joint resolution terminating the emergency would enjoy expedited consideration in Congress but would still need either the signature of the president or enough votes to override a presidential veto. The statute states that every six months “each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated.”

This language, however, is not legally binding on Congress. And as Elizabeth Goitein points out, the law has neither stemmed the declaration of national emergencies nor encouraged declarations that the national emergency is over.

It is worth noting that under these provisions, even a valid termination of the national emergency by the president or via a joint resolution would not affect “(A) any action taken or proceeding pending not finally concluded or determined on such date; (B) any action or proceeding based on any act committed prior to such date; or (C) any rights or duties that matured or penalties that were incurred prior to such date.” This raises the question of whether these sections would allow the project to go forward if, for example, the administration were to sign a contract obligating the funds to build the wall before Congress terminated the national emergency.

Other Possibilities

Several other legal authorities are worth mentioning in the event the Trump administration decides to invoke them in connection with a national emergency declaration.

Over the years, myriad national emergency authorities have been given to the president through legislation, and the Brennan Center for Justice usefully categorized them last month. These authorities authorize a panoply of types of activities—related to things like public health, federal personnel, and criminal prosecution and detainment—that would not by their terms authorize construction of a wall. In my review, only about few would seem close to being on-point for the purpose of constructing Trump’s proposed wall:

  • Under 33 U.S.C. § 2293, the secretary of the Army may terminate or defer any Army civil works project and apply the resources, including funds, personnel, and equipment, of the Army’s civil works program to authorized civil works, military construction, and civil defense projects that are essential to the national defense, without regard to any other provision of law “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 [50 U.S.C. §§ 1601 et seq.] that requires or may require use of the Armed Forces.”
  • Under 50 U.S.C. § 98f (a)(2), any officer or employee of the United States designated by the president may order the release of materials in the strategic raw materials stockpile for use, sale, or other disposition, if the officer or employee determines that the release is required for purposes of the national defense during a national emergency.
  • Under 40 U.S.C. § 905, procedures for providing notice to local government and prospective purchasers before purchase or sale of real property in urban areas by an administrator of general services may be waived during a period of national emergency proclaimed by the president.
  • Under 7 U.S.C. § 4208, legal provisions intended to protect farmland do not apply to the acquisition or use of farmland for national defense purposes during a national emergency.
  • Under 42 U.S.C. § 4625 (c)(3)(B), a provision that persons displaced by a federal project may not be required to leave their dwelling unless they have had a reasonable opportunity to relocate to a comparable replacement dwelling does not apply in the case of a national emergency declared by the president.
  • Under 10 U.S.C. § 2662 (f), the secretary of the military department concerned, or the secretary of defense with respect to Department of Defense transactions, may waive advance reporting requirements for real property transactions “if the Secretary concerned determines that the transaction is made as a result of … a declaration of a national emergency by the President pursuant to the National Emergencies Act (50 U.S.C. §§ 1601 et seq.).

Another statutory authority that could potentially be used to support construction of the wall, and which would not require the declaration of a national emergency, is 10 U.S.C. § Section 284, which authorizes the secretary of defense to “provide support for the counterdrug activities or activities to counter transnational organized crime of any other department or agency of the Federal Government or of any State, local, tribal, or foreign law enforcement agency” for the purposes set forth in the section if requested by another Federal agency or State, local, or tribal governments in support of law enforcement efforts. Those purposes include, among other things, “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States,” as well as the “[t]he establishment (including an unspecified minor military construction project) and operation of bases of operations or training facilities


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1. Trump from Michael_Novakhov (198 sites): Lawfare – Hard National Security Choices: Can President Trump Fund the Wall By Declaring a National Emergency?

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President Trump has announced that he will address the nation on Tuesday at 9:00pm Eastern Standard Time, in relation to his ambition to have Mexico U.S. taxpayers fund a $5 billion border wall. Perhaps it will be no more than an effort at rhetorical positioning, as the White House and House Democrats struggle to assure the other is blamed for the mounting ill-effects of the shutdown.  But it also is possible that the speech will be a platform for Trump to declare a formal emergency under the National Emergencies Act of 1976, and from that foundation to invoke certain statutory authorities that he might claim enable him to get the funding he needs by redirecting military construction funds.

In case that occurs, I’ve got a primer on what you need to know to track what is happening and how it is likely to play out.  (And whether it occurs or not, I’ve also got a bingo card for you to use during his speech).

1. What statutes authorize redirection of funds during “national emergencies”?

The key statutes are 10 USC 2808 and 33 USC 2293.  Section 2808 allows redirection of Department of Defense construction funds that have not yet been obligated, under certain conditions.  Section 2293 does something similar with respect to the Army’s civil works construction funds.

 

2. What is the initial predicate for invoking these authorities?

Both statutes require either that there be a Declaration of War (not relevant here) or else a proper, formal declaration of “national emergency” in accordance with the 1976 National Emergencies Act (NEA). 

 

3. Is it hard for a president to declare a national emergency?

Nope, not at all. The NEA makes no attempt to dictate conditions for when this can be done.  It’s all about process, transparency and (easily-overcome) sunset rules.  Thus, if President Trump wishes to state that the border is in a state of disarray or exposure such that it constitutes a national emergency under the NEA, he is pretty much free to do so. Check out this December 2017 overview of then-current national emergencies, for an illustration of when the power has been used in recent years.

 

4. Does any national emergency count, for purposes of Sections 2808 and 2293?

No, actually.  Section 2808 only applies if the emergency in question “requires the use of the armed forces.”  Section 2293 is similar but broader, requiring that the emergency in question “requires or may require use of the Armed Forces.”

If President Trump decides to pursue this approach, you can expect him to spend time in his speech dwelling on the military role as it relates to border control (no doubt including reference to the recent “caravan” related deployment in late 2018), in support of an assertion that the border is not only an emergency situation but one that specifically requires military involvement.  Indeed, if he goes this route he likely will announce further deployments to correspond with it (and rhetorically buttress the case that this key statutory element is satisfied).

 

5. Assume there is the “right” kind of national emergency. Does any spending go, at that point?

No.  Section 2808 allows only spending on “military construction projects,” and within that category it only allows spending on those projects that “are necessary to support such use of the armed forces” (that is, supporting the use of the armed forces in response to the declared emergency). 

Would that apply here? President Trump presumably would assert that the border wall is a military fortification of sorts, and that it is key to supporting the military role in providing border security. And so the argument would turn on whether one accepts the predicate about the military’s role in the first instance. On one hand, it’s obvious that, in some contexts like an armed invasion, border control can be a military matter of the first order.  On the other hand, that is not the situation we currently face (though we should expect rhetoric in the speech about terrorists) and not the way we largely have handled the southern border.

Clearly, much turns on who gets the final say on these questions. More on that in a moment. First, let’s conclude this question by looking at Section 2293.

Section 2293 applies only to allow spending on projects that are “essential to the national defense.” This perhaps sounds more demanding than the 2808 standard of necessity to support a military mission, but because it is so amorphous—and thus does not so clearly require a military-specific link—it might actually prove to be broader. Again, the framework leaves a considerable amount of wiggle room, thus making the identity of the final decisionmaker especially critical.

 

6. Can a decision to invoke either statute be challenged in court?

You’d need someone with standing.  The House Democrats might take a shot at it, but legislative standing is difficult to establish to say the least.  Other possible litigants with standing might include a landowner who faces eminent domain as a result of this (and there would be *MANY* of those), or perhaps someone who was going to receive a contract from the Defense Department had the military funds not been reprogrammed (as to them: reporters need to be all over the question of which projects won’t get funded thanks to massive redirection of DOD spending, should things go this direction).

 

7. Let’s assume someone does have standing. Won’t the courts just defer to the Commander-in-Chief on whether military necessity and national defense were sufficiently implicated?

In normal times, that is certainly the safe bet; there is a longstanding, robust “national security fact deference” tradition.  Indeed, I wrote all about the underlying justifications for such deference (and their limitations) in this article. But we are not in normal times. The border litigation quickly would join the Travel Ban and Steel Tariffs litigations as instances in which a formal claim of national security justification would run up against serious skepticism about whether that justification was just a litigation smokescreen masking different reasons motivating the president. The outcome in Travel Ban suggests that it remains unwise to bet against the executive branch in such cases, of course, but one never knows these days.

Lawfare – Hard National Security Choices

1. Trump from Michael_Novakhov (198 sites)


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