F*ck Silence

by Joe Walsh

  If you aren’t convinced of how essential this is to the United States’ health, let’s think about how the shoe always seems to find its way to the other foot in politics. Do you remember when President Obama created the Deferred Action for Childhood Arrivals (DACA) program without the instruction of Congress? Holy hell, did Republicans—including myself—throw a fit. I remember when the media got after us for holding Obama’s feet to the fire and how affronted we were because of it. Going back to my old House colleague Mick Mulvaney, a fellow Tea Partier, who said it like this, according to reporter Tim Alberta: “When we do it against a Republican president [instead], maybe people will see it was a principled objection in the first place.”1 Mick was spot on. But now that Trump is president—and Mick is his chief of staff—the same Republicans who wouldn’t let Obama do whatever he wanted with his powers are letting Trump run wild. My party is no longer made up of defenders of the law but instead apologists for a president who abuses it. Just look at how Congress let Trump’s emergency declaration on the border go through, despite the principled and admirable objection of a handful of lawmakers on my side of the aisle. I’m here to tell you: if your reason for letting that stand is that “the Democrats would do the same to thing to us,” then just wait to see what the Democrats will actually do. Wait until a Democratic president declares a national emergency of gun violence and creates new restrictions on firearms without Congress’s sanction. Wait until that person makes the Green New Deal official policy because of a climate emergency. You don’t have to imagine all that much, since Democratic politicians have already telegraphed their interest in such an approach.2 Here’s the thing about mutually assured destruction: it’s supposed to be a deterrent, not an incentive to go bombs away on the other guy.

  So let’s look at the job of president through the lens of something other than conservatism and progressivism. Let’s look at it like ordinary, commonsense people who value our democracy and the rule of law, and let’s oppose people who would erode those foundations.

  What would such a group stand for? What would it believe?

  Well, first, it would believe that anyone running for president or occupying the Oval Office should not do anything that only an authoritarian would do. Only an authoritarian would use disinformation to sow doubt among the public about reality. Trump, whose administration has admitted to peddling “alternative facts,” pushes conspiracy theories, and then has the gall to treat the mainstream press as “fake,” does this all the time. Chillingly, this continuous campaign of lying has trickled its way down the government ranks. In October 2019, a Customs and Border Protection (CBP) officer asked a journalist from the website Defense One if he wrote propaganda four times before the man, news editor Ben Watson, relented, said yes, “[f]or the purposes of expediting this conversation,” and was handed back his passport.3 As Defense One noted, many other journalists have been harassed by CBP at ports of entry during the Trump administration.

  Authoritarians use their perches to threaten individuals or businesses that they don’t like personally, whether for political reasons, personal beefs, or any other conceivable excuse that doesn’t fall under the purview of law enforcement. Trump has done this with respect to the AT&T–Time Warner merger (the resulting entity of which owns CNN) and Amazon CEO Jeff Bezos (who owns the Washington Post).4 He’s done it by browbeating individual reporters whose coverage rubs him the wrong way. This sort of conduct is bullying, plain and simple. And it’s enabled by the extraordinary influence of the presidency.

  Authoritarians believe in and practice one-man rule—so they ignore the legislative process if it’s inconvenient to them. The perfect example is the national emergency on the southern border.

  They find dubious ways to install lackeys in Senate-confirmable positions without the Senate’s consent.

  They whip up mobs to intimidate political opponents and government institutions.

  In short, they run afoul of or undermine the Constitution, federal law, and other instruments of democracy. They insist that you ignore the evidence right in front of your face and instead accept their version of the “real world,” in which they are perfect and the individuals and institutions trying to hold them accountable are dangers or phonies. They go it alone—and snooker people into following them down a dark path. That word, “authoritarian,” might sound a little academic, I know—so let these examples give you an idea of what I mean. America has no business allowing such a person to be in charge of it.

  Donald Trump is the first US president in modern times to provide an example of this kind of autocrat. He’s a menace to our form of government. And he should not be emulated; rather, his style of rule should be rejected outright.

  Though that’s primarily a matter of presidents policing their own behavior, there are things Congress can do to formalize how it oversees the office. And given Trump’s presidency, it should. The current administration is a walking billboard for the need to curb abuses of executive power. Take the example of the national emergency on the southern border. Contrary to popular belief, the Constitution does not give the president authority to declare one. Rather, under the National Emergencies Act, the president may use powers delegated by Congress to declare the existence of a national emergency and invoke the authority to do certain things under law, such as take money that Congress has appropriated for a certain military construction purpose and use it for a different one. That happened with the border situation: the Pentagon allowed $3.6 billion worth of funds dedicated to such entities as a middle school on an army base, warehouses for hazardous materials, and firing ranges to be diverted to building the border wall.5 Now, I don’t think that should be allowed to stand—there’s no emergency to construct a big ol’ border barrier. (More on the specifics of that later.) But in general, the president’s authority under the National Emergencies Act doesn’t give him the ability to go around the process of legislating whenever he wants to. And that needs to be made clear by lawmakers. One option is the ARTICLE ONE Act from Utah Republican Senator Mike Lee, a strongly bipartisan bill that would make future emergencies declared under the NEA expire after thirty days, unless Congress votes to extend them.6

  Congress could also deter the kind of interference Trump has committed through the Justice Department that we’ve seen on certain antitrust cases. There’s nothing wrong with presidents setting law enforcement priorities. But law enforcement decisions about whether to prosecute a case and how prosecutors should proceed once a decision is made should be based on the facts and the law, period. The president’s preferences and priorities ought not to be involved. Historically, the White House has ensured that the Oval Office kept its distance from DOJ. The White House Counsel’s Office typically releases guidance at the beginning of a new administration outlining what kind of contact between the White House and Justice is appropriate and what isn’t. Trump’s administration is no exception, in fact; former White House counsel Don McGahn sent such a memo to all White House staff just a week after the inauguration.7 But this kind of language is informal and relies on a “scout’s honor” sort of arrangement to be upheld. It’s obvious that we need stronger protections on the books to ensure the independence of Justice Department law enforcement actions. Congress should approve legislation to mandate transparency of communication between the White House and the Justice Department to give the American people assurances that law enforcement is operating free of political interference.

  There’s also the issue of Trump going around the Senate to fill some of his cabinet posts. As I wrote earlier, the president controversially relied on a sort of “next man up” arrangement to make Matthew Whitaker former attorney general Jeff Sessions’s replacement; his administration created a new position inside the Department of Homeland Security from whole cloth to use that same theory to make Ken Cuccinelli the acting director of citizenship and immigration services. But although Trump has abused some permissions of the Federal Vacancies Reform Act (FVRA) to achieve this, he’s
not the first president to do so. During the previous administration, President Obama skirted the law to place people into powerful positions without going through the Senate confirmation process. One example is the case of Vanita Gupta, who served as Obama’s acting assistant attorney general for more than two years, longer than the FVRA allowed her to.8 This kind of circumvention or outright abuse of the system fundamentally undermines our system of checks and balances; it empowers the executive branch to ram through political appointees who would otherwise not make it through Senate confirmation. Congress should fix the gaps in FVRA that allow this, so that the Senate’s advice-and-consent role doesn’t become optional.

  Then there are the abuses of power related to the Mueller investigation. I know, I know—the president’s team has tried to make it fake news, old news, or no news at all since the special counsel first began looking into Russia’s interference in the 2016 election. But the ways Trump obstructed—yes, obstructed—that probe call for a response from Congress beyond just oversight and impeachment proceedings. There’s a need for legislation. Take the way the president dangled pardons for Michael Cohen and Paul Manafort in exchange for their not cooperating with Mueller. That fundamental misuse of the pardon power—potentially invoking it to save his own ass—is not exactly what the Founding Fathers had in mind when they wrote Article II of the Constitution. The pardon is a means by which to correct past wrongs, extend mercy to the deserving, and generally correct for politically motivated missteps. President Obama’s pardon of nonviolent drug offenders facing mandatory sentence minimums, for instance, was a perfect example of a worthy presidential pardon; likewise, President Trump’s pardon of certain incarcerated Americans such as Alice Marie Johnson is laudable. Congress should make clear its opinion that offering a pardon in return for obstructing justice or intentionally undermining the law—as Trump has reportedly thought about doing for officials who violate statutes to get the southern wall built—is unconstitutional. Lawmakers should also pass a bill beefing up congressional oversight of the process and making it more transparent, including requiring the executive branch to turn over materials relevant to a pardon that was issued for corrupt or self-protective reasons.

  Related to this, presidents cannot be allowed to obstruct the workings of justice, such as a DOJ investigation. In my opinion, the laws already on the books about obstruction of justice absolutely apply to a president’s abuse of his official powers. It’s a general principle that criminal laws apply to everybody—including the president and those close to him, including his advisers and aides. This is common sense to most Americans, because we believe in the rule of law, not of men—and therefore no man is above the law. But there’s been some disagreement about this statement within the Justice Department’s own ranks, based on a legal memo from the Office of Legal Counsel stating that a president cannot be indicted while in office. Mueller invoked that precedent when he declined to make a prosecutorial decision about the evidence of Trump’s obstructive behavior—instead he simply said that he could not exonerate the president of such an offense. Given these complications, I support Congress approving legislation reaffirming that obstruction-of-justice statutes apply to the president—making clear that the Department of Justice cannot immunize presidents from facing accountability for the crime.

  Beyond that, I think we need protections for special prosecutors who are appointed to investigate allegations of executive-branch wrongdoing. I certainly hope that the United States won’t need more of these kinds of investigations in the future. But when they’re warranted and they proceed, they need to be able to move forward independently, without presidents exerting their influence on what are supposed to be impartial proceedings. It’s simple fairness: if somebody is under investigation for having committed a crime, he doesn’t get to fire the prosecutor to get himself out of trouble. That applies to the president of the United States, too. Though it’s true that the president sits atop the food chain and can either appoint or remove certain senior executive-branch officials, he can’t do it for corrupt purposes. Trump’s interference with the Mueller probe, including his efforts to fire Mueller, have revealed cracks in the existing guardrails against political interference in high-profile investigations. The appropriate response is legislation reaffirming that the president cannot fire or interfere with the work of a special counsel, FBI director, attorney general, or any other law enforcement official for purposes of ending an investigation that involves him, his campaign, his family, or his business interests.

  I wish this kind of norm didn’t need to become a law; it’s a sign that presidents can’t be trusted to call their own fouls and need a referee. But it’s both appropriate and legal. Congress has the authority to enact criminal statutes to protect the integrity of congressional, grand jury, and judicial proceedings against obstructive acts by any person, including the president. The Constitution requires the president to “take care that the laws be faithfully executed,” prohibiting presidential action taken in bad faith—for instance, obstruction of justice. A president who obstructs justice not only is violating the law, he is violating the Constitution.

  Trump has had a difficult time—or just hasn’t cared about—disentangling his duty as president from conflicts of interest and outside influence, whether financial or governmental (or both). The most egregious—and impeachable—examples concern his soliciting the help of foreign states to win an election. In front of a microphone, for all the world to hear, he invited Russia’s help in 2016: “I will tell you this, Russia: If you’re listening, I hope you’re able to find the 30,000 emails [of Democratic opponent Hillary Clinton] that are missing.”9 He asked Ukraine for help in 2019 under the false pretense that Ukraine’s former prosecutor general had stopped an investigation into a company that employed Hunter Biden at Joe Biden’s urging: “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General [William Barr] would be great. Biden went around bragging that he stopped the prosecution so if you can look into it. . . . It sounds horrible to me.”10

  He said with reference to China, “China should start an investigation into the Bidens, because what happened in China is just about as bad as what happened with Ukraine.”11

  And he said he’d welcome that kind of assistance from anyone, Russia, Ukraine, China, or otherwise: “If somebody called from a country, Norway, ‘We have information on your opponent.’ Oh, I think I’d want to hear it. . . . It’s not an interference, they have information. I think I’d take it.”12 Trump is actually devoted to using the help of foreign governments to win election. He’s either too stupid to understand why this is wrong or doesn’t care that it is. Either way, this is another situation requiring an answer from Congress. We must do everything we can to prevent what Alexander Hamilton called “foreign powers . . . gain[ing] an improper ascendant in our councils.” Lawmakers should take additional steps to make sure that any offers of illegal foreign assistance are made public and promptly reported to the appropriate authorities, including the Federal Election Commission and the Federal Bureau of Investigation.

  All of that relates directly to abusing the system for his political interests; then there’s doing so to advance his financial interests. Recall the emoluments examples from a previous chapter: federal officials frequenting Trump properties and hosting events there and Trump himself directing official White House visits to Trump-branded locales and proposing that the next meeting of G7 nations take place at the Trump National Doral Miami golf resort in Florida (the last of which, thankfully, he backed away from after facing significant public pressure).13 That’s a big fat no-no. Congress should make a law requiring presidents—and, perhaps, all federal lawmakers—to divest from significant business holdings or, where feasible, put them into blind trusts.

  That’s not the only family business of note. The American people must have confidence that the president is acting first and
foremost in the interest of the public, not in the personal interest of himself or his family members. Yet the Trump family has been an integral—and official—component of the Trump presidency. All White Houses, including this one, should be held to the standards set out in the “Bobby Kennedy law”: “A public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official.”14 Moreover, Congress should pass legislation clarifying that antinepotism laws apply to the White House, a move well within its constitutional authority.

  All of the preceding detail in this chapter is . . . well, it’s a lot. It’s a sign that Donald Trump has turned the presidency into something it shouldn’t be: a job with unlimited ability to advance one’s own personal interests at the expense of the public’s. That’s a damn shame. One of the coolest things about our federal government—and maybe the one I value most—is that our Founders went out of their way to create an “energetic” executive that was still beholden to the people. “There is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than this,” Hamilton wrote about designing the presidency in The Federalist Papers, No. 69, “The Real Character of the Executive.” For a world that didn’t have much experience with rulers who weren’t monarchs or tyrants, it was a hell of a thing to write up plans for a president who would be strong—but not too strong. Here is Hamilton describing the difference: