The Outsider Perspective, brought to you by The Beltway Outsiders.
Good Friday Morning! It’s Inauguration Day. Today is the day we swear in Donald J. Trump as the 45th President of the United States of America. Today marks the 58th Inauguration in America’s history. The time between the Obama’s leaving and the Trumps entering the White House is marked by a frantic 5 hour dash by staff completely changing the White House. So while you’re watching the swearing-in ceremony, know that there is a large team moving furniture and belongings in and out of the White House.
Trump marks a distinct shift in our nation’s history. For the first time, a person will enter the White House without any previous political, military, or prior government executive experience. Trump is also going to enter the White House with dark clouds dogging him every step of the way. Which is where I’m going to begin today: the very likely scenario Congress attempts or is pressured to impeach Trump in the next 4 years. That section will be followed by a look at President Obama’s decision to commute the decisions of several convicted felons. Finally, I’ll wrap up with a look at why the nomination hearings filling up a lot of the outrage airspace is a waste of time. The must read links follow.
The likely scenario Democrats and other groups demand a Trump impeachment
If it seems odd to you that I’m leading out the first section of the inauguration of a new President, talking about how he could be impeached, you shouldn’t be too shocked. Current betting sites have Trump being impeached within the first 6 months of his Presidency at 4-1 odds. And while a good amount of that money is based on one-way traffic, people who hate Trump, it’s all based on two very real scenarios that could play out over Trump’s Presidency: 1) The emoluments clause, and 2) It’s revealed Trump has compromising connections to the Russians.
Before going any further, I want to note: I don’t think either attempt could succeed in impeaching Trump. Any impeachment would have to be driven by Democrats. They don’t have the numbers in the House or Senate to drive any serious impeachment attempt for 2 years. Even if they regained the House in 2018, it’s a long shot they have any chance at the Senate until 2022. In an impeachment process, the House would have to vote on the charges and the Senate would have to try and convict the President. A Senate vote would require a 2/3 vote. The odds of this happening are infinitesimally small. BUT. I do not believe this will stop two groups: 1) Democrats and 2) their enablers in the media (I think a 3rd group could rise up here too — potentially by conservatives who have been shoved out of the party by Trump and his surrogates).
The Emoluments Clause
Within days of Trump being elected, this little know and arcane clause in the Constitution was flying around Democratic circles as a means to impeach Trump. When I say this clause is arcane and not well known, you could have polled attorneys and current law students and I’d guess 90-95% of them couldn’t name this clause. Case law isn’t well developed around this clause and the legal definitions are not well fleshed out. The pertinent text of the Constitution is:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.
For the layman, the emoluments clause basically says a person in one of the offices listed in the clause can’t accept foreign gifts (this is a very broad paraphrase). Democrats have argued that Trump’s businesses receiving gifts and payments from foreign countries would amount to a violation of this clause. Democrats are pushing to do two things: 1) impeach, or 2) launch a lawsuit against Trump for violating the clause. I think this effort will fail for a few reasons.
First, I don’t think the claim is justiciable under the Constitution. In order to sue for an issue like this, you have to have standing. And generally speaking, it is highly likely that a court looking at this would decide that this is whats called: “a political question.” Meaning, a court would say only the political process (Congress) can address the matter, not the courts. There’s even an open question as to whether or not the emoluments clause even applies to the President (for the legal geeks out there, I recommend posts by Con Law Prof. Josh Blackman: here and here; as well as legal blog Volokh Conspiracy posts: here and here). In short, there are a number of procedural hurdles this argument has to get past.
Second, and perhaps far more importantly, any case of this magnitude would end up before the Supreme Court. By the time the Court ruled on the matter, the Trump Supreme Court appointee would be on the bench. Also important, John Roberts would be most likely to write the opinion. And I just can’t see him ruling on the matter in a substantive way. He’d likely kick the case out on some procedural ground like standing. Roberts holds a very limited view of the role for the Supreme Court. Especially regarding hotly contested political issues. The odds of him directing the Court to solve this problem, unless it is the only viable option left, are small.
Third, in the event of an impeachment hearing on the emoluments clause, Democrats lack the voting power necessary to get the House or Senate to act. There’s enough gray area in the emoluments clause to allow Paul Ryan and Mitch McConnell to ignore any attacks. Especially for the first 6 months (sorry gamblers). Even if Democrats regain the House in 2018, they lack a viable path to regain enough seats in the Senate to convict Trump of any charges (the closest year Democrats have of gaining seats in the Senate is really 2022 — no joke). So the most you’re likely to see on the impeachment front, is action in the House (similar to the other two impeached Presidents, Andrew Johnson and Bill Clinton).
In the end, without even touching the substance of the emoluments clause, this argument appears dead on arrival. Democrats will likely try something on this front. They’ve attacked Trump’s tax returns, businesses, and potential conflicts for 6-8 months. And a number of left-wing legal scholars/groups want to challenge this clause. Their problem is that it’s also the weakest possible front to attack strategically.
The Russian Connection
The far more troubling issue for Trump is his potential ties to Russia. Last week, I covered the various reports that have been released/leaked regarding Trump and Putin. More digging has found even more troubling news on that front, via McClatchyDC:
The FBI and five other law enforcement and intelligence agencies have collaborated for months in an investigation into Russian attempts to influence the November election, including whether money from the Kremlin covertly aided President-elect Donald Trump, two people familiar with the matter said.
The agencies involved in the inquiry are the FBI, the CIA, the National Security Agency, the Justice Department, the Treasury Department’s Financial Crimes Enforcement Network and representatives of the director of national intelligence, the sources said.
Investigators are examining how money may have moved from the Kremlin to covertly help Trump win, the two sources said. One of the allegations involves whether a system for routinely paying thousands of Russian-American pensioners may have been used to pay some email hackers in the United States or to supply money to intermediaries who would then pay the hackers, the two sources said.
The informal, inter-agency working group began to explore possible Russian interference last spring, long before the FBI received information from a former British spy hired to develop politically damaging and unverified research about Trump, according to the sources, who spoke on the condition of anonymity because of the sensitive nature of the inquiry.
The short version: US defense and spy agencies are worried the Kremlin is funneling money and resources to moles and sources on the Trump staff. This money and support was used to help facilitate the cyber attacks on various political, private, and government groups (most notably the DNC). Most troubling of all, however, is that the evidence here is strong enough that these agencies have been granted FISA warrants to dig deeper:
The BBC reported that the FBI had obtained a warrant on Oct. 15 from the highly secretive Foreign Intelligence Surveillance Court allowing investigators access to bank records and other documents about potential payments and money transfers related to Russia. One of McClatchy’s sources confirmed the report.
The evidence from the now infamous 35 page Steele dossier (the Buzzfeed report) would not be enough to grant FISA warrants, which require probable cause. However, other evidence apparently has given investigators enough push to get those warrants. Those same investigators also have known what is in the Steele dossier for months now. Between that evidence and the classified information they have also, something has tipped them off to serious potential problems involving Trump’s team and the Kremlin. And whatever the intelligence community knows will soon be the knowledge of the Senate Intelligence Committee investigating the Kremlin’s ties to the election, as former NSA analyst and military historian John R. Schindler noted:
Since the Senate Intelligence Committee will be conducting an investigation into Trump’s Russian links, including subpoena powers and full access to what the IC knows, the president-elect may have a great deal to worry about. The clearest sign of Trump’s concern is that, almost 24 hours after the report appeared, he hasn’t taken to Twitter to denounce or mock it. His uncharacteristic silence indicates serious trouble in the Trump camp.
Neither are the Senate and the IC all that Trump has to worry about. Several European intelligence agencies have watched the new president’s clandestine ties to Putin with interest and alarm. For small countries close to Russia, the prospect of an American president colluding with the Kremlin is terrifying. What they know was hinted at in a tweet by Harri Ohra-aho, in response to an all-caps claim tweeted by Trump: “I HAVE NOTHING TO DO WITH RUSSIA – NO DEALS, NO LOANS, NO NOTHING!” Ohra-aho’s response, which translates as “Lord, give me patience, AND NOW!” is important mainly because the tweeter is a two-star general serving as the chief of Finnish military intelligence.
Plenty of intelligence services know parts of the truth about our 45th president’s potentially unsavory ties to Moscow. Starting tomorrow, Trump will try hard to shut down IC inquiries, but he cannot curtail the Senate investigation and doesn’t have any power to silence worried allies and partners who consider him a threat to their countries.
What does this all mean? It means that the Senate, the body with the power to convict, is going to be on the leading edge of all the evidence allegedly connecting Trump, his people, and his businesses to Russia. Democrats will have reason to stretch this out because its a political gold mine for them. Strong hawks on security like John McCain, Lindsey Graham, and Marco Rubio will have problems supporting a Kremlin-aided Trump White House. And Eastern European countries that fear Putin’s Russian excursions on their land will want to out any of these connections for their own protection. They need America pushing Russia back. They do not want to return to the former Soviet bloc. Expect those countries to act in their own self-defense.
While the chances any impeachment works are slim, Trump can be harmed politically by such a movement. Especially if Republicans can get pulled along, like I suspect some would with strong evidence of a compromised Trump-Kremlin White House. The results of the Senate Intelligence Committee’s investigation poses the biggest threat for the incoming White House.
President Obama’s decision to commute sentences
As his Presidency winds to a close, President Obama spent his time commuting the criminal sentences of hundreds convicted felons. On his last full day in office, he commuted the sentences of 330 people for drug related crimes. But it was his decisions earlier in the week to commute the sentences for political reasons that draws particular ire: commuting the sentence of convicted domestic terrorist Oscar Lopez-Rivera and convicted intelligence leaker Bradley/Chelsea Manning. Neither should have had their sentence commuted.
Oscar Lopez-Rivera admitted and was convicted of leading the domestic terrorist group FALN. His apartment was used to make and plant 130 bombs across multiple US cities, planted with the express purpose of killing US citizens. He led, recruited, and trained those under him in these activities and sought to overthrow the US government in Puerto Rico. He is lauded as a hero among the far fringe left for his leftist views. He wanted to turn Puerto Rico into a “Communist Paradise,” akin to Cuba. Many on the left worship him with the same veneration as dead Cuban dictator Fidel Castro. There is little that separates Lopez-Rivera and a jihadist terrorist in the Middle-East. It should be noted: Lopez-Rivera never showed any remorse for his actions. The terror he wanted to unleash on the US was no different than the Boston Marathon bombers.
Private Bradley/Chelsea Manning stole and leaked US military documents, secrets, and materials to a Russian intelligence front, Wikileaks, which was then used by America’s enemies to target, attack, and kill US soldiers and officers abroad. Manning’s acts were similar in scope and scale to Edward Snowden’s leaks. Manning’s leaks included military files and plans on how to execute attacks against al-Qaeda and the Taliban in Afghanistan. During Manning’s trial, government prosecutors presented documents from Osama Bin Laden’s compound that showed OBL actively asked for, read, and used the Manning leaks to plan and conduct attacks against US troops in Afghanistan. The files also allowed terrorist groups to understand how the US was tracking them in combat zones and how to better hide themselves from the American military.
Manning’s lawyers and defenders often refer to Manning as a whistle blower. But Manning never used any of the whistleblower options available:
Manning began stealing US diplomatic cables in December 2009 and established contact with Julian Assange’s WikiLeaks the next month. Having never alleged a wrongdoing nor tried to pursue it up the chain of command – as a whistle-blower would – Manning provided classified information to WikiLeaks that was first made public in February 2010. The leak that caught attention came on 5 April 2010, when WikiLeaks released a video under the title, “Collateral Murder,” of an air attack by the US in Iraq in July 2007, which killed, among others, Reuters journalists Saeed Chmagh and Namir Noor-Eldeen.
Manning was arrested in late May 2010, having already handed over 91,000 classified documents from Afghanistan and nearly 400,000 from Iraq, which were released by WikiLeaks in July and October, respectively. Again, whistle-blowers try to limit the scope of what they leak to make the point they feel they need to; Manning dumped years’ worth of data without ever having read it.
These documents, along with Snowden’s trove, have been used by all of America’s enemies to attack her on the ground and in cyberspace. Those enemies include ISIS, al-Qaeda, Russia, China, Iran, and anyone else that wants to inflict harm on America. It should not be ignored that Russia’s cyber attacks against the US gained vastly more prominence after these leaks were made. Manning and Snowden helped open the gates to America being attacked. And for Manning’s actions, Obama has pardoned a traitor to the country. To quote the Spectator:
In any case the pardon is a telling final gesture from the outgoing President. Aside from betraying his comrades and his country Manning also betrayed many brave Afghans and others who had (unwisely, as it turned out) trusted the country Manning so blithely betrayed.
In pardoning him, Barack Obama has sent out the message that if there is anyone in the U.S. Armed forces or intelligence services who doesn’t like something then they should not speak with a senior officer or keep their concerns within the service. No – instead anybody with any concerns should download the equivalent of truck-loads of the country’s secrets and ensure they are made available to the world. Preferably through the most hostile anti-American activists available. No country can effectively operate when it allows and encourages such behaviour. We knew that an America made incapable of operating effectively was the ambition of Wikileaks. How strange that it should appear to have been an ambition of a U.S. President as well.
Obama commuted the sentences of Lopez-Rivera and Manning because both fit pet causes within the Democratic party (socialist extremists and transgender rights). America has been made significantly less safe as a result. Obama may receive cheers for these actions on the progressive cocktail party circuit, but these moves are nothing less than a betrayal of America.
Why the nomination hearings still don’t matter
I’ve treated the nomination hearings in Congress as a back burner issue so far. Frankly, most of the nominees should pass fairly easily, despite Democratic attempts to lengthen the process. Case in point, this week I’ve watched an inundation of news regarding Trump’s picks for Education and Energy. Various news sources and social media posts are upping the outrage meters over whatever a nominee says.
It’s worth a reminder at this point, that same outrage was directed at the DOJ and State nominee hearings last week. No one is really focusing on those hearings this week. From what I can tell, the outrage pattern on most of these hearings lasts about 48 hours before the new shiny outrage story pops up. Any outrage this week will be washed away by the Inauguration Day festivities and all the pre-planned protests.
Again, the odds of Trump losing any of his nominations right now is slim to none. An occasional GOP Senator may vote against a nominee, but they will only do so if the vote allows it. The irony is that Democrats probably could have picked off a nominee if they were smart, as one observer pointed out this week:
You know what the Dems could have done instead of putting on a grandstanding fundraising show that Cruz would be proud of? They could have cut a deal. They could have gone to McConnell and said “We’ll give you most of these without much trouble, but we want a no vote on Tillerson. We have to send a message to Trump and he’s one where some of your people have concerns.”
Instead they went the Leroy Jenkins route.
Democrats ran headlong into the nomination fights with no plan, no direction, and every man, woman, and child for themselves. Which brings me to what I see as the reality of the situation. Democrats aren’t interested in the nominees. The hearings are about posturing and positioning as party leaders in the new Clinton-less era.
Democrats had no post-Clinton plan. Their party is decimated on all fronts and different factions are fighting for the remaining scraps. Which is why you see Elizabeth Warren, Cory Booker, Al Franken, and others trying to make a scene. They’re trying to boost their power, prestige, and positioning for 2020. Each person wants to be the new power broker that runs the party. On a broad level, the party is split between the Bernie Sanders wing and the Hilary Clinton/Barack Obama wing. But if you break it down more, you see schisms between Warren, Booker, Franken, Sanders, Pelosi, and Schumer. Everyone is fighting for influence. Trump’s nominee’s are foils for the Democratic civil war.
They know they’ve lost the nomination fight. And they don’t care. They want attention, media, and the center of power in the new Democratic Party.
Links worth your time
The Russian president is using a country’s vulnerability to try to peel it away from NATO, and it may be working. “This is the application of foreign policy using intelligence techniques,” an expert said.
“Russia’s campaign to influence the 2016 US presidential election could go down in history as Putin’s masterpiece. Yet it is a mission he accomplished with an elegant simplicity that much of the media coverage has overlooked. This was not a complicated, high-tech, impossible-to-understand orchestration, but a simple plan drawn up by a leader who has masterminded geopolitical misinformation. Instead of leaflets, TV commercials, and posters, Putin accomplished his feat using much simpler, cheaper, and more effective means: bots that spread misinformation on social media sites including Facebook and Twitter, anonymously-operated third party sites that churn out fake news, and official state-run news networks like RT and Sputnik.”
Top Lawmakers Left in Dark About Planned Iran Uranium Shipment – The Weekly Standard
“The Obama administration left top lawmakers, including leaders on the congressional committees charged with overseeing American foreign policy, in the dark about a secret deal to send Iran more than one hundred metric tons of natural uranium, according to statements provided to THE WEEKLY STANDARD. The United States and world powers have agreed to send Iran 116 metric tons of natural uranium from Russia in exchange for Iran exporting heavy water, another nuclear-related substance that it has stockpiled in violation of the landmark nuclear agreement. The uranium shipment, which experts said could be enough for over 10 nuclear bombs, only came to light after it was publicly reported earlier this week. Previous reports had revealed other details of heavy water exchanges, including a U.S. payment of roughly $10 million.”
4 Recent Examples Show Why No One Trusts Media Coverage Of Trump – The Federalist
“If the media can’t be trusted to fairly report on successful governors, genius Yale professors, or Martin Luther King III, they can’t be trusted to have the emotional distance, objective aims, respect, tolerance, journalistic skills, or sanity to cover Trump himself. A strong media is required to hold politicians accountable and help preserve a functioning republic. Our media, who are swinging wildly from eight years of sycophancy into an era of cartoonish hostility, are in no position to hold anyone accountable. This is a crisis, and one that nearly everyone except those in the media establishment and the political movement they support seems to recognize.”
Obama and the Limits of ‘Fact-Based’ Foreign Policy: How America’s best and brightest once again steered the country to failure – The Atlantic
“They were the best and the brightest. But, most of all, they believed they were right. Although the scale of disaster was considerably different, the same that was said of those who oversaw foreign policy under Presidents John F. Kennedy and Lyndon Johnson could be said of the Obama administration. These were academics, intellectuals, and technocrats who were not only very smart; they took pride in being practical, grounded in reality, and wedded to facts. After the supposed anti-intellectualism and ideological rigidity of the George W. Bush administration, many of us welcomed the prospect of a president who was cerebral and professorial. Even those sympathetic to President Barack Obama’s foreign-policy instincts, however, will agree that it didn’t quite go as planned.”
Why Vladimir Putin Hates Us – The Observer
“Misunderstanding what makes our enemies tick is old hat in Washington. During the Cold War, our academic mavens, highly paid by the Pentagon to prognosticate about the Kremlin’s inner workings, paid little attention to Soviet public statements. Such aggressively anti-Western Marxist-Leninist pronouncements, often threatening nuclear war, were dismissed by our experts, academics plus Intelligence Community eggheads, who insisted that these ravings were just for show: in private, Soviet political and military leaders were calm and rational men just like us. Of course, after the Cold War we learned that the Kremlin leadership said the same nutty things in private, dripping with Communist hatred for the capitalist West, that they yelled in Red Square. It’s tough enough for any person to maintain a completely different public persona than his private one, while for a whole regime it’s impossible. Therefore, pay attention to what your enemies state openly—there’s a good chance they believe it.”
Trump’s 2020 Fortunes Depend Upon His Performance in More Urban Counties – The Decision Desk HQ
“Over sixteen years, the Republican Presidential candidate added less than 200,000 more votes to his tallies from the 10 counties constituting 10% of the total vote. the Democrats ballooned by three million. This pattern of urban explosion in votes isn’t exactly new, but in the last few decades, it was joined by suburban counties also shifting to the Democrats. Even as Republicans were making inroads in exurban and rural pockets, their dominance of suburbia had faded, and their electoral “lock” enjoyed from 1968 to 1988 fell apart.
Republicans have been able to avoid the worst of the urban imbalance because many of the largest counties have been concentrated in states they’ve admittedly abandoned in Presidential years, and which won’t affect the outcome of the election. But as the Texan margin slipped from 2000 to 2008, and from 2008 to 2016 (falling even more dramatically when compared to 2012), Republicans have to watch their backs in their largest electoral prize.”
Why has time forsaken Home Improvement? – The AV Club
“The nostalgia beast is a ravenous one, and with each passing day, it chews our pop-culture memories into an increasingly formless web-slurry. With the 1990s digesting within its belly at an incredible rate—accelerated by the Snapchat-length attention spans of former ’90s kids, and intensified by the boundless need for “remember when?” content—it seems we’ve managed to memorialize and/or reboot everything from that decade, worthwhile and not, in record time. Yet even within our incredibly lowered standards of sentimentality—where our merely remembering something is the same as it being memorable—the 25th anniversary of Home Improvement’s premiere passed this week without much beyond the slapdash fanfare of a “Where Are They Now?” slideshow. … And it’s a strange afterlife for a show that vied with—and even bested—Friends, Seinfeld, Roseanne, and other widely syndicated, thoroughly picked-over ’90s icons in the ratings. Why has Home Improvement been so largely forgotten?”
Thanks for reading!