F*ck Silence

by Joe Walsh

  Taking advantage of the FVRA is how he made Matthew Whitaker acting attorney general in replacement of Jeff Sessions. A refresher about the circumstances here: Trump all but bullied Sessions out of office because he wouldn’t act like Trump’s legal bodyguard. In a July 19, 2017, interview with the New York Times, Trump said, “So Jeff Sessions takes the job [of attorney general], gets into the job, recuses himself [from the Russia investigation]. I then have—which, frankly, I think is very unfair to the president. How do you take a job and then recuse yourself? If he would have recused himself before the job, I would have said, ‘Thanks, Jeff, but I can’t, you know, I’m not going to take you.’ It’s extremely unfair, and that’s a mild word, to the president.”12 Six days later, he tweeted, “Attorney General Jeff Sessions has taken a VERY weak position on Hillary Clinton crimes (where are E-mails & DNC server) & Intel leakers!”13 Two days later he was questioning Sessions publicly again: “Why didn’t A.G. Sessions replace Acting FBI Director Andrew McCabe, a Comey friend who was in charge of Clinton investigation but got. . . . . . . big dollars ($700,000) for his wife’s political run from Hillary Clinton and her representatives. Drain the Swamp!”14 The full background of this browbeating aside, the attorney general leads the Department of Justice, which is an independent law enforcement agency, not the president’s own legal arm, which is the White House counsel. DOJ has historically operated and is supposed to operate without White House influence—much less the president calling the attorney general all but a flimsy dipshit in public. The bullying went on for another sixteen months before Sessions finally gave in and quit at Trump’s request.

  In his place, the White House announced, would be Whitaker—a man who, in private life, had publicly opposed the Mueller probe, had been a Trump mouthpiece on TV during the summer of 2017, and had been appointed Sessions’s chief of staff (a position not requiring Senate confirmation) in September of that year. He was elevated from that role to AG when Sessions left office—with the justification of the FVRA. The law permits the “first assistant” to an official, whatever that means, to fill the previous officer’s job if the officer has left because of death, resignation, or vague circumstances that didn’t allow the officer to fulfill his or her responsibilities—but not firing. Another key point here: this applies even if the “first assistant” wasn’t confirmed by the Senate, like Whitaker. So Trump promoted Whitaker by evading Congress under questionable circumstances, since Sessions’s removal was one of those “he said, he said” situations: the official said he had resigned, but the employer said he had been canned. A lot of smart people disagreed about the legality of Whitaker’s appointment. But the upshot is that by using a well-intended law that was ripe for abuse, the administration staffed one of the most important roles in the federal government with a flunky that the Senate was unlikely to confirm. You can’t trust Donald Trump to do the upstanding thing and not abuse the law.

  Whitaker moved on, and after three-plus months Trump replaced him with William Barr, the current attorney general. But that pesky FVRA is still there, and it hasn’t been reformed. So Trump has also used it to make Ken Cuccinelli, the former attorney general of Virginia and another fierce Trump defender on cable news panels, the acting director of U.S. Citizenship and Immigration Services (USCIS), the agency tasked with overseeing citizenship, visas, and—somewhat of relevance these days—asylum applications. The way Trump pulled it off was even crazier than the way he had swung it with Whitaker. Cuccinelli met none of the FVRA criteria to fill a Senate-confirmable position; he wasn’t even an employee of the executive branch prior to being appointed. So what the Trump administration did was make him “principal deputy director” of USCIS, a position that hadn’t previously existed. Because that newly created position was next in line to director and the directorship was vacant, the argument was that the FVRA allowed Cuccinelli to fill the top position. “Seems legit,” as they say. Cuccinelli’s road to Senate confirmation, like Whitaker’s, was likely impassable at the time he was selected. As Senator John Cornyn, the number two Republican in the Senate, put it, “He’s made a career of attacking other Republicans and frankly attacking President Trump, so I doubt he’ll have the support to get confirmed.”15 A reminder: Cornyn’s in the majority. That wouldn’t be a case of “Democratic obstruction.”

  Now, most cheating card players don’t announce to the table that they’re stacking the deck. That’s obvious, right? Well, Donald Trump is an epic dumbass. He’s a person with so little knowledge of government process and appreciation for doing things the way they’re supposed to be done that he practically stood up and shouted during an interview with CBS, “I’m slipping myself an ace every time, you suckers!” Here’s a partial transcript from July 2019 with Face the Nation’s Margaret Brennan:

  Margaret Brennan: You’ve had a lot of change-up in your administration recently too. . . . An acting chief of staff. An acting interior secretary.

  President Donald Trump: It’s OK. It’s easier to make moves when they’re acting.

  Margaret Brennan: So you are going to shake up—

  President Donald Trump: Some, and some not.

  Margaret Brennan: —positions.

  President Donald Trump: Some are doing a fantastic job. Really—I like acting because I can move so quickly. (My emphasis.)16

  Really, I like acting because I can move so quickly. I mean, it’s so helpful, to ignore the Constitution. An overrated document, really. That’s what people are saying.

  What an idiot.

  Trump acts as though he’s above Congress in other ways, too. Take its role of making laws. This particular sin is one that has usually struck a nerve with conservatives. Probably the most notorious example to people of my ilk was when President Obama said, “We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen, and I’ve got a phone.” Meaning that if he didn’t get a bill he wanted from Congress, he’d just sign an executive action that got his wishes part of the way—or even all of the way—there. I remember when that kind of talk pissed Republicans like me off. Take Mick Mulvaney, a fellow Tea Party rep who was elected to Congress the same year I was. Mulvaney thought we were unfairly maligned for opposing Obama when he said things such as his “pen and phone” comment—and then did things such as creating the Deferred Action for Childhood Arrivals program (DACA) from whole cloth. “When we do it against a Republican president [instead], maybe people will see it was a principled objection in the first place,” Mulvaney told then–National Review reporter Tim Alberta in 2016.17

  But Mulvaney, now Trump’s acting chief of staff, is not doing it against a Republican president. Instead he’s aiding and abetting a Republican president who is overstepping his bounds. And too many Republicans in Congress are sitting idly by.

  A substantial piece of evidence comes from early in 2019, when Trump declared a national emergency on the southern border. He made the declaration so he could get funds for the border wall he had promised during the 2016 campaign. There’s just one problem: Congress had already decided not to give him the money. That’s its prerogative, and the Constitution says so. Congress had funded a few rounds of fencing largely to replace existing, subpar barrier, but it had not doled out cash for a whole, brand-new wall. It’s not as though Congress hadn’t debated whether it should—it had. Repeatedly. It had taken votes. And up to the moment Trump announced the emergency, it had voted against his wishes. That’s how it goes sometimes; that’s how the system works. But to restate: Trump does not appreciate the system if it doesn’t benefit him. It’s not that he’s frustrated by it and airs his grievances, which, I dunno, pretty much every chief executive who has had to deal with a legislature has ever done. There’s nothing wrong with that. Bitching and moaning? It’s all part of the “war of ideas,” a consequence of ensuring that the people’s representatives have a say in how their constituents’ tax dollars are spent. It’s what a government loo
ks like when there isn’t one-man rule. When there is, a government looks like this: Trump says there’s an emergency—that emergency being that Congress didn’t do what I wanted it to do—then takes money that Congress had appropriated for one purpose and uses it for a different purpose that Congress had rejected. That is the case here.

  Trump says he gets this power from the National Emergencies Act (NEA), a statute from the 1970s that laid out a process for presidents to declare emergencies and Congress to regulate them. There hadn’t been such a definition in law before; there is no specific presidential “emergency power” in the Constitution, and for almost two centuries, Congress and several presidents (including Lincoln and Franklin D. Roosevelt) just winged it. So the need for something like the NEA was pretty indisputable. But presidents shouldn’t be able to manipulate it for something that isn’t, by definition, an emergency. An emergency, by definition, occurs suddenly. It demands immediate action. But the very language in Trump’s declaration implies that neither of these things was the case on the border. “The problem of large-scale unlawful migration through the southern border is long-standing,” the declaration reads, “and despite the executive branch’s exercise of existing statutory authorities, the situation has worsened in certain respects in recent years.” (My emphasis.)18 A “long-standing” problem that has deteriorated over a course of “years” is a complaint about a trend, not a point in time. Forget about a wall. A wall will take years to build, which doesn’t address the circumstances of an “emergency.” If what was going on in California and Texas was really an emergency, Trump would’ve sent tens of thousands of troops to the border immediately. Instead, he opted for a cowardly con job to deceive his voters into thinking that he’s really, really fighting for a campaign promise. Recall that bit about his reassuring federal officials that he’d pardon them if they broke the law to build the wall: “President Trump is so eager to complete hundreds of miles of border fence ahead of the 2020 presidential election that he has directed aides to fast-track billions of dollars’ worth of construction contracts, aggressively seize private land and disregard environmental rules.”19 Trump’s various disregards for the law fit together like a flowchart: fill a vacancy illegally with a lackey, reassure the lackey that he’ll pardon him if he breaks the law, and go around Congress both times.

  No man is above the law, including the president. He isn’t above the Constitution. And as of this writing, the one part of Article II he doesn’t like to talk about is coming back to bite him. It reads, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

  If you ask me—if you read the words in this chapter and elsewhere in the book—he’s guilty.

  Chapter 3

  The Constitution Breaker, Part Two

  Let’s hit “pause” for a minute. Though people of my ideology are fond of talking about the United States’ founding documents and the men who wrote them, I’m not trying to imitate a lecture in constitutional law here. It’s not my background, and it’s not my style. But it is helpful and necessary to describe, just a bit, what parts of our Constitution the president has treated as optional—like a sometimes-but-not-all-the-time sort of arrangement. The previous chapter tells only part of the story of how Trump has broken his presidential oath, which reads, “I do solemnly swear that I will . . . to the best of my ability, preserve, protect and defend the Constitution of the United States.” That goes for all of it. It goes for Article II, which describes the scope of the presidency. And it goes for the First Amendment, one of the most consequential sets of guarantees and protections for private citizens against a government ever written into law the world over. Putting it here for reference:

  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

  Even though Trump himself is not “Congress” and he’s technically not “making laws” to shut down the First Amendment, this language applies directly to him. It’s been settled by the courts that the First Amendment prohibits public officials in general from using government power to retaliate against individuals for their speech.1 And Trump is the most powerful public official in the nation.

  So the question is: Is he fulfilling his responsibility to uphold the First Amendment? Let’s see, uhh . . . he’s tweeted “fake news” more than six hundred times and said it out loud who knows how many hundreds of times more; he’s called the media the “enemy of the people” at least a few dozen times; he’s obsessed with “opening up” libel laws; he wants to place speech regulations on social media companies; he unconstitutionally “blocks” people whose speech he doesn’t like from seeing the words he posts to those very same social media platforms; his White House suspends the access of reporters whose coverage the administration finds negative; he encourages Americans to boycott businesses affiliated with media companies he despises; he . . . yeah, it doesn’t really seem as though he cares about the First Amendment. The rap sheet is pretty long.2

  Before we get into the details of it, though, let’s frame this by showing just how Trump doesn’t understand First Amendment rights. He tramples over them, sure, but that’s because of his complete ignorance. Take his views about freedom of the press, which he articulated during a White House forum in July 2019 featuring—ironically—fringy internet trolls who routinely spread false info.3 He said, “See, I don’t think that the mainstream media is free speech either because it’s so crooked. It’s so dishonest. So, to me, free speech is not when you see something good and then you purposely write bad. To me, that’s very dangerous speech, and you become angry at it. But that’s not free speech.” (My emphasis.)4 It’s rarely easy to interpret Trump’s train of thought. But the statement “I don’t think that the mainstream media is free speech” is clearer than Casper the Friendly Fucking Ghost.

  It’s every bit this simple: If, in his opinion, your speech is favorable to him, it’s “free speech.” If, in his opinion, your speech is unfavorable to him, then it’s not protected by law: either it warrants legal action or it falls outside the rights guarded by the Constitution. Read those two sentences again and again and again and again, until that little voice in your head whispers, “Well, that sounds an awful lot like Mao. That sounds an awful lot like Vladimir Putin.” You see, in America—my America, your America, and, as much as he may not like it, Donald Trump’s America—people can say things and reporters can report things that completely piss us off, and it’s their constitutionally protected right to do it. There are exceptions, of course, such as for defamation. But ask yourself: How many times has Trump or his administration called a news story “fake” and followed up even by trying to prove it? How many times have they presented evidence to support their claims? How many times have they actually argued that a media organization met the legal standard for defaming a “public figure” like Trump: in the words of Supreme Court justice William Brennan in the 1964 case New York Times Co. v. Sullivan, “that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false”? If you guessed “virtually zero,” “virtually zero,” and “absolutely zero,” you’ve won today’s prize.

  I wrote this earlier and I’ll write it again: I get that the media have biases against the Right. I get that they often frame political stories in a way that’s unfair to conservatives; that when Alexandria Ocasio-Cortez botches the rollout of a far-reaching, controversial environmental agenda, the story is really that “Ocasio-Cortez Team Flubs a Green New Deal Summary, and Republicans Pounce,” and that when the press turns its attention to gun control, it often fails to report accurately about firearms. We absolutely ought to call out these lapses when we notice them—and the Left ought to have a field day wi
th Fox News! There’s nothing wrong with either side of this sort of pushback. But Trump has taken something reasonable like attentiveness to fairness in the media and turned it into the basest, most dangerous rallying cry: “the enemy of the people” bullshit. That sort of overreaction is light-years from bias.

  Believe it or not, there’s a more appropriate—and arguably effective!—way for conservatives to go about setting the press straight. Indeed, it’s possible to back up accusations of incorrect reporting. For example, I remember “Rathergate,” when CBS almost sank President George W. Bush’s reelection campaign with a story about allegedly incriminating National Guard documents that the network utterly failed to verify.5 That moment in 2004 was a watershed for right-wing internet media—because they helped expose CBS’s negligent reporting6 and force the termination of several people at the network. They sensed wrongdoing—but then they put in the work and got a result. Team Trump doesn’t present those kinds of cases, maybe because they’re so rare. Here’s what digs at Trump so deeply: journalists typically bust their asses to make sure their stories about him are well sourced and filled with facts, and because they do their due diligence and their reports don’t make him look so great a lot of the time, Trump doesn’t have the goods to say they’re working in bad faith, much less truly breaking the law. All he has is a pathetic cry that he makes over and over: “Fake news! Fake news!” Each tweet drips with tears.

  Well, Joe, there’s nothing illegal about the president saying “Fake news!” all he wants, so what’s the big deal? you may ask. That’s an essential question to thinking about this issue. After all, Nixon’s vice president, Spiro Agnew, called the media “nattering nabobs of negativism,” and no one said he should be given a trial date for it. (That came for other things.) First, I’d say that a relentless campaign to undermine our country’s free press—which we absolutely need to hold powerful people and institutions accountable—is bad regardless of the legality of it. It’s reckless, it resembles the behavior of a strongman more than a president, and it has the side effect of creating a culture in which people think the First Amendment is there to protect only their tribe, not their political rivals. (More on that later.) But second, bellyaching about “fake news” is only the tip of the iceberg, especially when it happens on average—literally—every other day.* How do you think someone of that perspective, with that amount of fixation, that level of power, and that indifference to being held accountable, acts when he isn’t tweeting? “Fake news” is smoke, and the fire’s somewhere close by. Look to history as a guide, as this First Amendment lawsuit against Trump does: “The Nixon Administration was particularly antagonistic to the press and subjected those on an ‘enemies list’ to illegal wiretaps, tax audits, and office searches. It threatened to take action against broadcast licenses owned by the Washington Post in retaliation for its coverage of the Watergate scandal, proposed an official monitoring system through the FCC [Federal Communications Commission], and manipulated tax and antitrust enforcement efforts to punish the press,”7 the complaint reads. You see, rarely is talk just “talk” when it comes from a regime that acts as though it’s above the law. If the president says the media are an enemy, the chances are that he acts on it. That was the case with Nixon—and now it’s the case with Trump.