Tagged: Trump

The Latest in Lawsuits: Secrecy and Hijacking

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A new suit requesting declaratory relief, injunctive relief, and mandamus relief has been filed by Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive (NSA). (Complaint)

CREW and NSA have brought a civil action against Trump under the Presidential Records Act (PRA), the Declaratory Judgment Act, and Article II, Section 3 of the Constitution (the President has a duty to “take care that the laws be faithfully executed”). The action challenges the actions of Trump, his staff, and the Executive Office of the President that “seek to evade transparency and government accountability.” This is the politest way ever of saying that Trump and his palarounds are liars who are frantically spinning “alternate facts” and trying to hide their actions and information from reporters and the public. More insidious is the notion that the Executive Office of the President is hijacking the roles of executive agencies and, in doing so, avoiding transparency and accountability.

CREW and NSA have two main challenges in their suit.

First, they are challenging the Defendants’ communications practices that allegedly “knowingly prevent the proper preservation of records” that the Defendants either generate or receive when they are carrying out constitutional, statutory, or other official duties of the President. So, basically, the Plaintiffs are arguing that the Trump ’n’ cabal are actively doing things that keeping official records from being properly kept as required by law.

Second, Plaintiffs are asserting the Defendants’ are overstepping the boundaries of their power by usurping agency duties and responsibilities through consolidating power in the White House – if proven, this is also illegal. The Plaintiffs argue that the Executive Orders coming out of the White House are cloaked in secrecy which is preventing federal agencies from being able to comply with their statutory duties under three statutes: the Federal Records Act (FRA), the Administrative Procedure Act (APA), and the Freedom of Information Act (FOIA).

Plaintiffs make the point that their lawsuit is coming at a time of suspect activity in the Executive Office. Some examples of potential misconduct and questionable decision-making that CREW and NSA point at are the pressuring of James Comey to terminate the FBI’s investigation of former National Security Advisor Michael Flynn, as well as Trump’s firing of Comey after Comey refused to terminate the investigation. Plaintiffs argue that the question of whether these actions were illegal may only be resolved through access to contemporaneous records that explain what Trump did and why. Therefore, there is a huge need for transparency right now, specifically.

Our government’s checks and balances include ones that are implemented through congressional and judicial oversight. In order for Congress and the judiciary to keep tabs on what’s going on within the Executive Branch, they need to have access to records of the President’s actions. Compliance with record-keeping responsibilities under the PRA and the FRA is incredibly important for the functioning of our government.

CREW and NSA suggest that Trump and his dudes are either ignoring or just full-on flouting their responsibilities under the two Acts. Plaintiffs allege (based on information they claim to have)that the White House is using certain email messaging applications that destroy messages as soon as they are read, regardless of whether those messages are presidential records. Some of Trump’s tweets, subject to federal record-keeping obligations, have been deleted. Additionally, Plaintiffs assert that Trump has implied that he’s been secretly recording conversations with Administration officials – and who the heck knows whether those recordings are being preserved. There are also allegations, sourced from at least one news report, that when ongoing congressional and FBI investigations were disclosed, White House officials purged their phones of potentially compromising information.

Interjection: YOU GUYS. If this stuff is true, it’s a big deal. If the White House is using software to erase the contents of messages upon their being read, if phones are being purged…this is BAD.

Plaintiffs extend their challenge to the alleged [unconstitutional] consolidation of power in the White House. They argue that the centralization of government decision-making within the White House ensures that decisions normally made or implemented by Executive Branch agencies are able to “evade disclosure under laws like the FOIA, preservation under laws like the FRA, and public review and comment under the APA.”

Essentially, this Trump-power-absorption is wreaking havoc on the order of operations of our government. Records that the public would ordinarily have a right to access under the law (because ordinarily, the records would be agency records subject to disclosure under FOIA) are now improperly cloaked as presidential records subject to the President’s exclusive control and beyond the reach of the public. Additionally, decisions that would ordinarily be subject to review under the APA (for example, when agencies make decisions about propagating or changing regulations, those regulations must go through a public notice and comment period, accessible to the public at large) are also shielded from review as “presidential decisions.”

This is insidious. It is also scary. In simple terms, if what the Plaintiffs are alleging is true, the White House is eradicating a paper trail. They’re enabling themselves to act with impunity because without a trail, it will be very, very, very difficult to demand any kind of accountability.

By acting as they have, Trump’s Troops have prevented federal agencies from complying with the statutory responsibilities. Their actions have also violated the constitutional requirement that the President take care that the law be faithfully executed.

Plaintiffs have a laundry list of facts that they have included in their Complaint.

Included in this list (which you can read yourself in its complete form, beginning on page 13 of the Complaint – along with links to related articles) are:

  • The Executive Office’s issuance of gag orders on federal agencies.
  • Trump requiring congressional staffers to sign non-disclosure agreements before allowing them to help him draft his first Muslim travel ban executive order.
  • Making the White House visitor logs private.
  • Trump’s various claims that he has continued his private sector practice of taping conversations.
  • Trump’s (and his staffers’) heavy use of electronic messaging tools and platforms to conduct presidential and federal business.
  • The Administration’s disregard for the NARA’s guidance on using electronic communication and the use by some staffers of Signal, an encrypted peer-to-peer messaging application, to communicate about presidential or federal business.
  • Signal has a disappearing message function that allows a user to set a timer to delete the message from all devices.
  • Some of Trump’s staffers may be using the chat app Confide, which erases messages as soon as they’re read.
  • There are no policies or procedures in place to record any of these conversations and communications, which are arguably Presidential records.
  • Congress has become concerned with these secret, likely erased, communications. Jason Chaffetz (yeah, that guy) wrote a letter requesting that Trump identify all policies and procedures related to non-official electronic messaging (email, texting, social media, etc.) and official electronic messaging, and policies and procedures related to properly securing and preserving communications and presidential records.
  • Prior to March 24, 2017, Trump’s staff purged their phones because they expected to be subpoenaed in connection to the various investigations in which Trump was embroiled.
  • Trump uses his personal Twitter account, not the President’s account.
  • The White House should be capturing all Tweets from both the personal and Presidential account. It is not, however.
  • Trump has issued at least 43 executive orders. Executive orders are meant to be issued by and signed by the President and the President alone. Government personnel outside of the President and his staff have had significant roles in preparing, reviewing, and commenting on draft executive orders, including executive agencies. (This is important because this suggests that agency rules are masquerading as executive orders in order to circumvent the mandated rulemaking process under the APA.)

The Plaintffs’ claims are as follows:

  1. For a Declaratory Judgment that the knowing use by defendants of messaging apps that prevent the preservation of presidential records violates the Presidential Records Act
  2. For a Declaratory Judgment that the failure of the President, his staff, and the EOP to issue guidelines concerning the use of messaging apps that prevent document preservation violates the Presidential Records Act
  3. For a Writ of Mandamus and Injunctive Relief compelling President Trump, his staff, and the EO to comply with their non-discretionary duties under the PRA
  4. For a Declaratory Judgment that Defendants’ use of the executive order process to remove records and rulemaking from the FRA and FOIA and the APA is contrary to law and violates the President’s constitutional obligation to take care to faithfully execute the law

They want the court to:

  1. Declare that the Defendants’ knowing use of messaging apps that prevent the preservation of presidential records violates the Presidential Records Act;
  2. Declare that the Defendants’ failure to issue guidelines concerning the use of messaging apps that prevent document preservation violates the Presidential Records Act;
  3. Order all Defendants, in the form of injunctive and mandamus relief, to refrain from using methods of communication that destroy records before any determination can be made as to whether they should be preserved as presidential records under the Presidential Records Act;
  4. Declare that the Defendants’ use of the executive order process to remove records from the Federal Records Act and public access under the Freedom of Information Act, and the rulemaking process of the Administrative Procedure Act, are contrary to law and the President’s constitutional obligation to take care that the law be faithfully executed; and
  5. Grant such other and further relief as the Court may deem just and proper.

Daayyum.

Keep an eye on this one, guys. It’s not headline news yet, but CREW’s and NSA’s assertions run deep and are weighty claims. If their allegations are true, then Trump is hijacking the government in a very, very serious way, and erasing the paper trail as he does it.

***

Some “Brief” (because there’s no such thing as truly brief where laws are concerned) Background on the Laws at Issue

(I’ve also included citations to the laws, so anyone interested can sift through. Otherwise, just skip right over ‘em.)

Presidential Records Act

The PRA was enacted in 1978 in response to Watergate. It is meant to establish public ownership of presidential and vice presidential records, impose record-keeping requirements on the President and Vice President, and to the National Archives and Records Administration (NARA) to preserve presidential records and make them publicly available. The PRA states that “[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records[.]” 44 U.S.C. § 2202.

The Act directs the President to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records[.]” 44 U.S.C. § 2203(a). In other words – the President is to document everything. Period.

“Presidential records” is broadly defined to include documentary materials “created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President” in conducting activities related to the President’s constitutional, statutory, or ceremonial duties. 44 U.S.C. § 2201(2). In other words…all the President’s elbow-rubbers are included here. Excluded from presidential records are “personal records” which are defined as those “of a purely private or nonpublic character” unrelated to the President’s constitutional, statutory, or ceremonial duties. 44 U.S.C. § 2201(3). I imagine that if a President wanted to write Harry Potter fan fiction under a pseudonym, it would fall under “personal records.”

“Documentary materials” is also broadly defined and includes “electronic or mechanical recordation’s.” 44 U.S.C. § 2201(1). The PRA’s legislative history explains that Congress intended the scope of “Presidential records” to be “very broad since a great number of what might ordinarily be construed as one’s private activities are, because of the nature of the presidency, considered to be of public nature, i.e., they effect the discharge of his official or ceremonial duties.” (So maybe that HP fanfic would be a Presidential record after all, depending on its contents.) The broad definition of “documentary materials” also helps ensure that the President and NARA preserve records that have or, maybe more importantly, are later found to have, great historical value. This way, documents default to “Presidential records” – save first, ask questions later.

There’s also a whole process under the PRA for the destruction of presidential records. The only way the Prez gets to destroy his or her non-personal records is after s/he has affirmatively determined that the records “no longer have administrative, historical, or evidentiary value[.] 44 U.S.C. § 2203(c). After a President has made this determination, s/he must then obtain the written views of the Archivist of the United States that the Archivist does not intend to take action to the contrary. 44 U.S.C. § 2203(c)(1)-(2). The Archivist must then state, in writing, that s/he has no intention of taking action with respect to the destruction of the specified presidential records.

We’re not done yet.

After al of this, then the President has to notify the appropriate congressional committee sixty days before the proposed disposal date of the President’s intention to dispose of the records. 44 U.S.C. § 2203(d). For anyone keeping count this is a four-step, and pretty lengthy, process. In writing the PRA, Congress wanted to guarantee that records were only destroyed after multiple entities deliberated and weighed-in.

(By the way, the Archivist is in charge of the records after the conclusion of the President’s term and must make those records publicly available as “rapidly and completely as possible consistent with provisions of this chapter.” 44 U.S.C. § 2203(g)(1).)

Anyway, as technology has advanced, obviously the PRA has had to evolve as well. In 2014, Congress amended the Act to expand the scope of means of communication. The 2014 amendment prohibits the President, his staff, and the EOP from using non-official electronic message accounts unless they: (1) copy one of the President’s official electronic messaging accounts, or that of his staff or EOP, or (2) forward a complete copy of the presidential record to an official electronic messaging account of the President, his staff, or EOP. 44 U.S.C. § 2209(a)(1)-(2). The President must comply with this requirement within twenty days after the presidential record in question is created or transmitted. An intentional violation means being subject to disciplinary action. 44 U.S.C. § 2209(b).

It should be a given, but “electronic messages” means “electronic mail and other electronic messaging systems that are used for the purposes of communicating between individuals.” 44 U.S.C. § 2209(c)(2).

That Presidential Twitter account, though.

One last thing worth noting is that although presidential records aren’t subject to the FOIA while the President is in office, most records become subject to FOIA requests five years after the President has left office.

The Federal Records Act

The FRA is like the PRA but for federal agencies. Congress enacted and amended the FRA to assure “[a]ccurate and complete documentation of the policies and transactions of the Federal Government,” and [j]udicious preservation and disposal of records.” 44 U.S.C. § 2902(1), (5). The head of each federal agency is charged with keeping track of and saving just about everything that relates to the agency’s actions. 44 U.S.C. § 3101. Further, the head must “establish safeguards against the removal or loss of records [the federal agency head] determines to be necessary and required by the regulations of the Archivist.” 44 U.S.C. § 3105.

Unlike the PRA, the public or other interested parties may request the disclosure of these records through FOIA.

The Administrative Procedure Act

Ah, the APA. Brings back stressful law school flashbacks. The APA governs the internal rule making procedures of federal agencies. 5 U.S.C. §§ 551-559. In short, a federal agency creates a rule that is subject to the APA when it seeks to “implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4).

As I briefly mentioned above, the APA requires agencies engaging in rule making to provide public notice of a proposed rule making in the Federal Register, to provide interested persons with a meaningful opportunity to comment on the proposed rule, and to engage in reasoned decision making, considering all public comments. One rules or made, they are subject to judicial review and must be consistent with the statutory text authorizing the agency to promulgate regulations.

Freedom of Information Act

FOIA was enacted in 1966 and established a statutory right of public access to information held by Executive Branch agencies upon request. Congress wanted to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The Act carries a “strong presumption in favor of disclosure,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991), and its “limited exceptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976).

In short, the government should be transparent and the public should have access to its decisions and various decision-making processes. This is important in order to keep corruption in check and to hold those in charge responsible for their actions.

Under FOIA, just about every single record created by a federal agency must be made publicly available. There are a few specific exemptions however. Included in the government entities that fall outside of the APA’s definition of “agency” is the Office of the President, which is not subject to FOIA.

The Constitution

At issue in CREW’s and NSA’s complaint is Article II, Section 3, which is the “Take Care Clause.” The Take Care Clause says that “[the President] shall take care that the laws be faithfully executed[.]” U.S. Const., art. II, § 3. The Supreme Court has interpreted the Take Care Clause as imposing a “duty” or “obligation” on the President to ensure that Executive Branch officials comply with Congress’ law. Kendall v. United States ex rel. Stokes, 37 U.S. 524, 613 (1838).

(So the President can’t just run amok, usurping agency responsibilities, ignoring Acts aimed at the Executive Office, etc. etc.)

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Spark Notes: Trump v. Judge Orrick (Or Trump’s Newest Loss in Federal Court)

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Keep shutting it down, Federal Courts, keep shutting it down.

As I’m sure you all know by this point (because typing up summaries puts me at a severe time disadvantage, it seems – I clearly need to make friends with all the clerks), earlier today, Judge William H. Orrick “lolnoped” Trump’s executive order pertaining to sanctuary cities. And he did it in 49 pages, so it’s clear that Trump really got his goat with this kingly “I SHALL TAKE ALL THE MONIES FROM YOU, YOU PLEBES” mentality.

QUICK AND DIRTY (with more in-depth summary following)

(Also, here’s the full opinion: https://www.scribd.com/document/346375526/Sanctuary-City-Order and here’s the executive order in question: https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united)

Essentially, two California counties and a city challenged Executive Order 13768 (specifically Section 9), “Enhancing Public Safety in the Interior of the United States.” The Order outlines a number of immigration enforcement policies and also purports to yank funds to the extent that funds can be yanked (without otherwise violating other federal laws…) from sanctuary cities. Additionally, the Order establishes a procedure that makes sanctuary cities ineligible to receive federal grants.

Well, the counties of Santa Clara and San Francisco, and the city of San Francisco were stirred up and challenged Section 9 of the Executive Order as facially unconstitutional [i.e. no digging needs to be done to turn up the unconstitutional stuff] and have also brought motions for a preliminary injunction seeking to enjoin its enforcement [i.e., slam the big red “STOP” button].

The counties-plus-a-city had four main arguments as to why the EO shouldn’t be enforced and I’ll list them:

(1) It violates the separation of powers doctrine in the Constitution because Trump’s trying to improperly wield congressional spending powers (Executive can’t do the job of the legislature or judiciary and vice versa);

(2) It’s way, way, way overbroad and equally as coercive – to that point that even IF the President got to have spending powers, the Order would still exceed them and violate the Tenth Amendment’s prohibition against commandeering local jurisdictions (could fill a class on this, but basically, the federal government can’t come in and force local governments to enforce federal mandates. For example, a case about the Brady law that went to the Supreme Court resulted in the Supreme Court saying, “no, fed. gov’t, you can’t make local officials enforce your federal law – you need your own people to do it.” [Also, THIS IS A GROSS SIMPLIFICATION OF THE DOCTRINE. Look it up for a real summary!.]).

(3) Not only is it obscenely broad and coercive, it’s wildly vague and adrift without standards to the point that it violates the Due Process Clause of the 5th Amendment, and is void for its vagueness.

(4) It seeks to deprive local jurisdictions of congressionally allocated funds without any notice or opportunity to be heard, which means that it violates the procedural due process requirements of the 5th Amendment as well.

The Government, in true Government form (at least as of late), sidesteps the counties-plus-a-city’s arguments and instead makes ye olde tired standby argument of “THEY AREN’T ALLOWED TO SUE US” aka that the counties-plus-a-city lack standing. The Governments says that this is because the EO didn’t change any existing law and the counties-plus-a-city aren’t “sanctuary jurisdictions” pursuant to the Order (aka “they ain’t got skin in the game, can’t complain). In even truer Government form, they started going for the whacked out arguments next and claimed that the EO is actually just an exercise of the President’s “bully pulpit” and was meant to highlight a changed approach to immigration enforcement. (Which sounds a lot like the Government is trying to get out of having their shenanigans shut down by saying “we didn’t want this to do anything, anyway!”) The Government further emphasizes this position by essentially saying that the Order is just a repetition of already existent law and ran backwards from the possibility that the EO was unconstitutional by firmly asserting that the EO certainly couldn’t affect any of the billions of dollars in federal funds that the counties-plus-a-city receive every year beyond three federal grants in DOJ and DHS that have conditions requiring compliance with immigration law.

Judge Orrick is like, “Great work, guys, glad you remember Con Law 101 and that the Order can’t do anything more than enforce whatever law is already on the books” to whatever poor schmuck Government lawyers had to take this thing to oral argument.

Buuutttttt Judge Orrick also points out that the section of the EO in question was apparently written someone without that Con Law 101 understanding because its plain language “attempts to reach all federal grants, not merely the three mentioned at the hearing.” Plus, thanks to President Tweets-a-lot and Attorney General Missed-the-part-where-Hawaii-is-a-state, public comments have basically undermined and eroded any semblance of narrow scope. President Tweets-a-lot called it a “weapon” to used against jurisdictions that disagree with his preferred policies of immigration enforcement (and good ol’ Sean Spicer was quick to back him up). And Attorney General Missed-the-part-where-Hawaii-is-a-state got very self-important and warned that noncompliant jurisdiction would suffer “withholding grants, termination of grants, and disbarment or ineligibility for future grants” and the “claw back” (literally said claw back, that’s Sessions, not the Court) of any funds previously awarded. So thanks to the EO’s language and the loudmouths in government, the Court doesn’t think the section is “reasonably susceptible to the new, narrow interpretation offered at the hearing.” (Note: this “new, narrow interpretation” only surfaced for the first time AT the hearing, suggesting the poor Government lawyers knew they were doomed.)

Judge throws in a line about the implausibility of the Government’s “new interpretation” for good measure.

However, given this “new interpretation” the Government and the counties-plus-a-city appeared to be in rough agreement about the EO’s constitutional limitations. This wasn’t really helpful, however, because there are still potential Constitutional issues. Under the Constitution, Congress gets the spending power, not the President, so the EO can’t constitutionally place new conditions on federal funds. The Tenth Amendment mandates that any conditions on federal funds be TOTALLY CLEAR and also made in a timely fashion. They also have to have some relation to the funds at issue and the incentive can’t be coercive. I.e., federal funding that has zilch to do with immigration enforcement can’t get yanked just because El Jefe disapproves of a jurisdiction’s immigration strategy.

The Court found that the counties-plus-a-city succeeded in their motions. They demonstrated that they were likely to face immediate irreparable harm if they didn’t get their injunction, that the were likely succeed on the merits of the case (basically, that their four arguments held water like a rugged camelback), and that the balance of harms and public interest weighed in their favor. Therefore, the Court granted the preliminary injunction.

MORE IN-DEPTH SUMMARY

Trump issued Executive Order 13768 on January 25, 2017. It’s very puffed-up with self-righteous language “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United State.” (Anyone else picturing little green people?) It also states that the policy of the executive branch is to “ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” Then Section 9 gets into more detail (and also includes the establishment of that public “comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens” that we all heard so much about back in January. It’s so gross). More on point, Section 9 refers to Section 1373 of Chapter 8 of the US Code, which prohibits local governments from restricting government officials or entities from communicating immigration status information to ICE.

The Court gets into a lot of detail (ok some) with respect to this as well as with respect to civil detainer requests (which is what ICE civil detainers make when they want a local law enforcement agency to keep someone locked up for up to 48 hours after that person’s scheduled release – several courts have held this to be in violation of the 4th Amendment), but I’m not digging into all of this here, so feel free to read-up elsewhere.

The counties-plus-a-city all have policies and practices with respect to federal immigration enforcement and those policies and practices are at odds with the EO. Basically, they’re trying to create trust and respect between law enforcement and residents, foster cooperation, and ensure community security” and the EO…isn’t. The counties-plus-a-city also all receive federal funding. Santa Clara got about $1.7 billion in the 2015-16 fiscal year, which made up about 35% of its total revenues. Most of that money goes towards providing residents with essential services. In support of its motion, Santa Clara pointed out that losing any substantial amount of federal funding would result in substantial cutbacks to safety-net programs and would require the county to lay off thousands. San Francisco gets about $1.2 billion from the federal government (out of a $9.6 billion total yearly budget). If it lost a substantial amount of that federal money, residents would be waving good by to medical care, social services, meal programs, and infrastructure maintenance.

After addressing the State of Things, the Court gets into Justiciability (aka Can It Hear This Case?). Government is all “this is not justiciable because the counties-plus-a-city cannot establish an injury-in-fact, which they need to in order to establish standing, AND ALSO these claims aren’t ready to be listened to yet.” Court thinks about it and disagrees. Judge Orrick: “I conclude that the Counties have demonstrated Article III standing to challenge the Executive Order and that their claims are ripe for review.”

Standing (aka concrete and particularized injury that is actual or imminent which is traceable to the defendant and can be fixed by a favorable decision from the court):

The Government persists in insisting no standing because (1) the EO doesn’t change the law, just directs the AG and Secretary to enforce existing law; and (2) the counties-plus-a-city’s claims of injury are not sufficiently “concrete” or “imminent” because they aren’t designated as “sanctuary jurisdictions” and the Government has not withheld any federal funds.

Court: No.

Haha, actually though, Judge Orrick thinks the Government is full of it. To make its first argument, it essentially has to read out ALL THE MEANING from all the words used in the EO. Because the EO *does* change the law. The Court goes into a very detailed analysis of the language in the order and the rules of construction to demonstrate exactly why the Government is so wrong. The Court states, “the defunding provision is entirely inconsistent with law in its stated purpose and directives because it instructs the Attorney General and the Secretary to do something that only Congress as the authority to do – place new conditions on federal funds.” (Basically, the Court is like, “guys, you can’t defend a meaning that can only exist if it exists outside the entire context of the Order and the language of the section itself.) At the end of the day, “the Government’s construction is not reasonable. It requires a complete rewriting of the Order’s language and does not ‘save’ any part of Section 9(a)’s legal effect. There is no doubt that Section 9(a), as written, changes the law.”

The Counties-plus-a-city: We’re allowed and you’re dumb.

The counties-plus-a-city say they absolutely have standing because they have demonstrated a well-founded belief that the EO will be enforced against them.There is a line of cases that allows for “pre-enforcement standing” when a plaintiff can show that it has an intent to engage in course of conduct (arguably with constitutional interest) that is proscribed by statute, and that there is a credible threat of prosecution [of the plaintiff] under the statute. The Government [once again, as is its recent habit] mischaracterizes the law on this and tries to argue that this exception only applies in situations involving criminal penalties or First Amendment issues. Judge Orrick sets it straight though and gives the REST of the relevant case law which establishes that “where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat.”

And, yes, the counties-plus-a-city have pre-enforcement standing because their policies are proscribed by the language of the EO and they are likely to be designated “sanctuary jurisdictions” based on the meaning contained within the EO. Additionally, the Government has already indicated an intent to enforce the EO generally, and against the counties-plus-a-city more specifically. (Remember President Tweets-a-lot’s statements mentioned above?) This isn’t the first time, and likely won’t be the last time, that Trump’s mouth undermines whatever argument the Government is trying to make in court. Trump actually went so far as to threaten California specifically in February. Finally, the counties-plus-a-city’s claims implicate a constitutional interest: the rights of states and local governments to determine their own local policies and enforcement priorities pursuant to the Tenth Amendment. (NO COMMANDEERING ALLOWED.) The counties-plus-a-city all have policies that “reflect local determinations about the best way to promote public health and safety,” which stand in stark contrast to the EO’s assertion that sanctuary jurisdictions are a “public safety threat[].” The fact that they have policies in place and the EO [they argue] seeks to undermine their judgment and compel them to change their policies to enforce the Federal government’s immigration laws implicates a constitutional interest: violation of the Tenth Amendment.

That the counties-plus-a-city are threatened with the loss of federal grants presents an injury in the form of budgetary uncertainty. The Court reminds everyone that a “loss of funds promised under federal law [] satisfies Article III’s standing requirement.” [As a lawyer myself, I can’t imagine what sort of knots all the Federal lawyers are having to tie themselves into – they keep being forced into cases where they are so overtly on the wrong side of the law it leaves an onlooker incredulous.] The counties-plus-a-city need to be able to plan ahead and mitigate potential sudden loss of federal funds. They can’t make decisions without knowing what their monetary future holds. Do they need to cut certain services? Do they need to change local policies? Much of the federal money received is in the form of reimbursements for services already provided. If that money is suddenly cut off, the counties-plus-a-city will face significant debt. TL;DR the counties-plus-a-city adequately demonstrated that budgetary uncertainty of the type threatened by the EO can constitute an injury-in-fact for Article III standing.

Altogether? The counties-plus-a-city meet the requirements for pre-enforcement standing. BOOM. Pack up yo lunch, Government, cause you’re not welcome at this table.

Next, the Court turns to “ripeness” which is basically “is it time for us to listen to this grievance and make a decision?” In legalese: “A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.” The Government here is going “no, no, no, no” because according to it, lots of Section 9 is dependent on contingent future events, including clarification of terms. (Lol, because they’ve just realized that it’s a mess.) The Government cites a case, Judge Orrick promptly is unconvinced (you know the drill by now). This time, mostly because the Government is being redundantly dumb again and forgetting that “contingent future events” must always be at issue in a pre-enforcement case – before actual enforcement occurs, the enforcement agency must determine what the statute means and to whom it applies. The Court points out that under the Government’s line of reasoning, basically every single pre-enforcement case would be kept out of courts. As far as Judge Orrick is concerned, the counties-plus-a-city’s claims “do not require further factual development, are legal in nature, and are brought against a final Executive Order. They are fit for review.”

The Court concludes that the counties-plus-a-city established standing.

I think that table in that dark, back corner might be open?

Finally, the Court addresses whether the counties-plus-a-city’s are putting forward strong arguments that have a likelihood of success if the case were to go to hearing (because no court should grant an injunction on the basis of a water-in-a-fishnet argument). The Court says yes.

The EO’s attempt to place new conditions on federal funds is an improper attempt to wield Congress’s exclusive spending power and is a violation of the Constitution’s separation of powers principles. Further, the EO probably violates at least three of the restrictions on Congress’s spending power. (I mentioned them in the top part – no ambiguity and can’t be imposed after funds have been accepted; nexus between funds at issue and purpose of federal program; no coercion.) The Court then analyzes how and why the EO violates these three restrictions. As far as Judge Orrick is concerned, the EO is about as violative as it could be – weird shadow threats with a who-knows-when implementation timeframe, at risk are ALL THE FEDERAL FUNDS EVERRR; and um, ok, highly coercive (we’ll take away your money, make you cut fundamental services to your citizens, and publicly shame you on our list if you don’t do exactly what we say).

The EO is also probably violative of the Tenth Amendment because (1) it’s trying to compel states and local jurisdictions to enforce a federal regulatory program through coercion; and (2) it’s trying to compel states and local jurisdictions to comply with ICE civil detainers by directing the AG to “take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” The Court states, “[b]y seeking to compel states and local jurisdictions to honor civil detainer requests by threatening enforcement action, the Executive Order violates the Tenth Amendment’s provisions against conscription.” Basically, the Federal government can incentivize states as much as it wants to get them to voluntarily adopt federal programs, it can’t use methods that are so coercive as to compel, and the EO is attempting to use coercive methods to circumvent the Tenth Amendment’s direct prohibition against conscription.

The EO is way vague. Sort of like when you don’t want to hang out with someone, but you also don’t hate them, so you’re just sort of wishy-washy about the date and time and all the other information one might need to actually hang out. That kind of vague. Under the Fifth Amendment, a law is unconstitutionally vague and void if it fails to be [crystal] clear about what conduct is actually prohibited and exactly how it will be enforced. As far as Judge Orrick is concerned, the EO gets a big fat “x” in both of those boxes. It’s impossible to say exactly what conduct might subject a state or local jurisdiction to enforcement action, it doesn’t define “sanctuary jurisdictions” (ooo, fun fact: back in February, the DHS Secretary himself said that he “do[esn’t] have a clue” how to define “sanctuary city” despite the EO giving him unlimited discretion to make such designations), and who the heck knows what “appropriate enforcement action” means. The Court asks, “What does it mean to ‘hinder’ the enforcement of federal law? What federal law is at issue: immigration laws? All federal laws? The Order offers no clarification.” (Yes, the law is this pedantic and yes, it needs to be.)

Finally, the EO is premised on yanking money willy-nilly with no kind of procedural due process (as required under the Fifth Amendment) whatsoever for that yankage. State and local governments have a legitimate claim of entitlement to congressionally appropriated funds. Those funds are very much like those owed on a contract. The counties-plus-a-city have a legitimate property interest in the federal funds that Congress has already appropriated and that the counties-plus-a-city have accepted. Meanwhile, the EO apparently strives to make the counties-plus-a-city ineligible for their funds through some vague (see above), discretionary and undefined process. The EO has no instructions! No guidance! No process! The Court thinks that the counties-plus-a-city would likely succeed on this claim.

At the end of all of this, the Court also determines that the counties-plus-a-city will suffer both an irreparable harm from budgetary uncertainty and constitutional injury. The Government tried to stick it out with a weird argument about the counties-plus-a-city failing to allege a “deprivation” but rather alleging a violation of constitutional structure. The Court is quick to reject this. First, the Ninth Circuit, which is where this case is unfolding, doesn’t recognize a distinction between personal and structural constitutional rights (seriously, why doesn’t the Government DO ITS HOMEWORK). Second, even if the Court did recognize that distinction, the counties-plus-a-city have alleged a deprivation of their personal constitutional rights – hellooooo Tenth Amendment argument; what is UP Fifth Amendment Due Proces argument.

As the final cherry topper – the counties-plus-a-city hit a full preliminary injunction jackpot when the Court also decides that the balance of harms and public interest weighs in favor of an injunction – because the harms to be suffered by counties-plus-a-city might also be suffered nationwide.

IT IS SO ORDERED.

Sunday Funday: Trump just can’t extricate himself from all these lawsuits

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Donald Trump just has horrible luck with the court system. Maybe because he’s wholly ignorant of the law, maybe because he just doesn’t care, or maybe due to a mixture of the two. Whatever the case, he (and a few of his supporters) are still stuck in a lawsuit thanks to misunderstanding the First Amendment of the Constitution and blatant misreadings of relevant statutes.  The US District Court for the Western District of Kentucky just issued an Opinion on Friday refusing to dismiss the lawsuit.

A year ago, the plaintiffs in the case were protesters at a Trump rally at which Trump allegedly directed his supporters to “Get ‘em out of here.” After this directive, several of his supporters apparently followed his orders and physically attacked the plaintiffs. One of the protesters is black and was shoved and then struck, one was seventeen and a high school student at the time and was punched in the stomach. Once the ruckus started, Trump apparently tried to backpedal, allegedly saying, “Don’t hurt ‘em. If I say ‘go get ‘em,’ I get in trouble with the press.” Ultimately, the attack [understandably] forced the protesters out of the rally and they later filed suit.

The lawsuit alleges assault and battery by the Defendant Trump Supporters in addition to incitement to riot, vicarious liability, and negligence on the part of Trump and his campaign. (That is, Trump encouraged the disorder and is responsible for the actions of his supporters.) The Trump Defendants filed a motion to dismiss, the defendant supporters filed similar motions and the Court decided to grant in part and deny in part. (I.e., some claims passed muster, others did not, and the Court found that most of the plaintiff’s claims were sufficient to carry the case to hearing.) I’ve only summarized Trump’s crew’s arguments, not those of the Defendant Trump Supporters, but you can read those starting on page 17 of the Court’s opinion.

In order of the Court’s discussion:

Trump Defendants (Trump and his campaign) sought to dismiss incitement of riot, vicarious liability, and negligence, gross negligence, and recklessness.

I. Incitement to Riot

The Trump Defendants argued that it isn’t plausible to say that Trump was addressing the audience members or that he intended for violence to ensue when he directed his supporters to remove the protesters (he was clearly just talking to even security). Then they claimed that because the plaintiffs never alleged that a riot actually occurred, the claim is deficient. Finally, they asserted that regardless, Trump’s statement was protected by the First Amendment.

Court:

Mmmm….nope. None of these contentions warrant dismissal at this point in the case.

Plausibility: The Court said that just because there is an alternative plausible explanation for why a defendant did something does not mean that the plaintiffs’ explanation is therefore implausible and subject to dismissal. Precedent establishes that pleadings in a case do not have to be “probable,” just “plausible.” And the plaintiffs allege numerous facts that support the notion that Trump’s words were directed to his audience. They cite numerous occasions where Trump made comments that endorsed or encouraged violence against protesters. They point to the fact that one of the Defendant Protesters interpreted Trump’s words as an instruction and took action. Presumably, if Trump had intended for security to handle the protesters, he would have directed his supporters to stop what they were doing, not offer guidance as to how to go about it (“Don’t hurt’em.”). Therefore, the Plaintiffs’ allegation is plausible and the Trump Defendant’s failed to identify an “obvious alternative explanation” for Trump’s statement that would warrant dismissal of the incitement claim.

Occurrence of a Riot: The Court had a pretty easy time with this one because the statute on which Plaintiff’s rely does not actually require the occurrence of an actual riot. Instead, it just provides that “[a] person is guilty of inciting to riot when he incites or urges five (5) or more persons to create of engage in a riot.” Further, the Trump Defendants were unable to find any case that established such a requirement. They tried to argue that the complaint doesn’t actually allege that five or more persons were involved in the Plaintiffs’ mistreatment or that there was “tumultuous and violent conduct” but again, this isn’t an argument relevant to the statute at issue. The only relevant action to the statute is that someone provoked, urged, or stirred up someone(s) else to commit a crime. There were more than five people at Trump’s rally, Trump was allegedly speaking to all of them, some of them acted. Further, Plaintiffs and one of the defendants described a “chaotic and violent scene in which a crowd of people turned on three individuals and those individuals were injured as a result.” That is enough. Five or more didn’t have to act. There didn’t need to be a riot. All that was required was incitement, and the Plaintiffs alleged sufficient facts as to prevent this claim from being dismissed.

First Amendment (my favorite because they attempt to get this case thrown out on the basis of the First Amendment is so laughable to anyone who has ever taken Constitutional Law – which the lawyers here presumably did): There is caselaw literally everywhere that holds that incitement of violence is not protected by the First Amendment. You cannot go around stirring up people to commit crimes and then claim that you were allowed to do it “because, First Amendment.” Sorry Charlies, that’s a no fly zone. The Court cited a whole long list of cases to back this up. Most to the point? Bible Believers v. Wayne Cty., “[W]hen a speaker incites a crowd to violence, his incitement does not receive constitutional protection.” Speech is considered “incitement to riot” if (1) it explicitly or implicitly encourages the use of violence or lawless action; (2) the speaker intends for his speech to result in violence or lawless action; and (3) the imminent use of violence or lawless action is the likely result of the speech. If someone is encouraging action, it might be incitement. The Court determined that the Plaintiffs adequately alleged that Trump’s statement meets the criteria.

I almost feel bad for Trump’s lawyers. They’re making such terrible legal arguments that one has to wonder whether they’re going to find a sharp decline in the number of clients interested in hiring them for their services. Frankly, the conspiracy theorist in me thinks maybe they know it’s absurd, but they want to get these arguments on the record to pave the way to use them in the future, perhaps with greater success, and dismantle our Constitution.

II. Vicarious Liability

The Plaintiffs made the argument that the two named Supporter Defendants were acting as Trump’s agents when the incident occurred. Trump Defendants argued that they cannot be held vicariously liable for the protesters actions. Yeah, the Plaintiffs were stretching here and the Court agreed with the Trump Defendants.

Court: “Agency” requires a fiduciary relation between people – there has to be the manifestation of consent by one of the people to the other person that s/he will act on his behalf and subject to his control. While employment isn’t necessary to form this relationship, there must be a “right to control” the agent’s conduct and Plaintiffs failed to demonstrate that Trump had this right over his supporters.

The principal (in this case, Trump) has to have control over the manner in which the agent acts. Merely telling someone to take an action is not sufficient to establish agency. More precisely, “An individual is the agent of another if the principal has the power or responsibility to control the method, manner, and details of the agent’s work.” The Court determined that Plaintiffs failed to include appropriate supporting factual allegations for their allegation that Trump’s supporters were his agents and therefore Trump Defendants are vicariously liable. Because of this, the Court dismissed this complaint.

III. Negligence

The Court’s agreement with the Trump Defendants stopped at vicarious liability. Negligence requires a showing of duty, causation, breach of that duty, and subsequent damages caused by that breach (yay! Torts 101). The Trump Defendants argued that they could not be liable for negligence because they had no duty to Plaintiffs, the security at the event was adequate, there is no alleged causal connection between Trump’s words and Plaintiffs’ injuries (lol, really?), and Plaintiffs assumed the risk of the injury (oh brother, one never makes this argument. Absent injuries in something like contact sports, it’s difficult to argue that someone consented to being harmed without some sort of explicit agreement. Further, most states hold that you can’t consent to be on the receiving end of an illegal act). Finally, the Trump Defendants tried to argue that the Plaintiffs created a new negligence theory that, if accepted by the Court, would violate the First Amendment.

The Court dismissed all of these arguments out of hand. It tackled the so-called “new negligence claim” first and determined that the Trump Defendants’ assertions regarding it were baseless. The Trump Defendants asserted that the Plaintiffs failed to allege “any knowledge on the part of the Defendants” that Trump’s audience might be predisposed to violence. The Plaintiffs specifically alleged that “the directive to eject a Black woman, when several members of a group that Trump knew or should have known was a recognized hate group were present in the audience, was entirely reckless, or at least negligent/grossly negligent.” So, that prompts the question: did the Defendants just fail to read the complaint?

The Court also wasn’t convinced by the argument that allowing the Plaintiffs’ negligence claim to go forward would be in violation of the First Amendment. The cases cited by the Trump Defendants involved defamation or other false statements, which do not apply here. The one exception was a 1975 case that addressed a defendant who made threats against the president and Justice Marshall on the Supreme Court stated that the Court “should be particularly wary of adopting [a negligence] standard for a statute that regulates pure speech.” First, the Court here pointed out that this is not a categorical rule, and second, there’s still the fact that incitement is not entitled to First Amendment protection. Thus, the 1975 case is also inapplicable to the facts alleged in this matter.

The Plaintiffs also sufficiently alleged that the Trump Defendants had a duty to them. Although “a proprietor is not the insurer of the safety of its guests,” the rule in Kentucky is that “every person owes a duty to every other person to exercise ordinary care in his activity to prevent foreseeable injury.” Soooo stirring up a potentially volatile situation is probably going to be a violation of that duty.

Foreseeability isn’t a high bar to meet. In Kentucky in the proprietor-patron context, a plaintiff must show that (1) the proprietor had knowledge that one of his patrons was about to injure the plaintiff and he failed to exercise ordinary care to prevent such injury; or (2) the conduct of some of the persons present was such as would lead a reasonably prudent person to believe that they might injure other guests. Basically, if you’re holding an event and you see that somebody there is about to attack someone else there and you DON’T take some sort of ordinary preventative action, there’s foreseeability that harm is about to occur. OR, if you are watching people at your event get riled up in such a way as to cause violence and it would be apparent to Joe Blow off the street that yeah, maybe they’re going to hurt someone, there’s foreseeability.

Further, an act or omission might be negligent if the person acting either realizes or should realize that what they’re doing involves an unreasonable risk of harm to another person through someone else’s conduct, which is intended to cause harm, even if that conduct is criminal. So Trump Defendants aren’t absolved of liability just because someone did something criminal if that criminal act was a reasonably foreseeably consequence of Trump’s negligent act. The Court also pointed out that the Trump Defendants cited more inapplicable cases, none of which involved a defendant who had allegedly triggered the criminal act of a third party.

Bolstering the Plaintiffs’ argument for the foreseeability prong of the negligence test is the Plaintiffs’ allegation that Trump supporters were wearing t-shirts that identified them as supporters of the Traditionalist Worker Party; that Trump therefore knew or should have known that his audience included members of “a recognized hate group;” and that order the removal of an African-American woman was thus particularly reckless. The Plaintiffs further alleged that protestors had been attacked at earlier rallies. Therefore, the Court found that the Plaintiffs adequately alleged that their harm was foreseeable and that the Trump Defendants had a duty to prevent it.

The Trump Defendants also tried to claim that the Plaintiffs failed to plausibly allege proximate cause. I don’t know how they argued this with a straight face, I really don’t. It seems so absurd. Like, you hollered a directive and then people did stuff and somehow you’re trying to say that there wasn’t cause and effect? What? The Court was on the same page and found that the Plaintiffs plausibly alleged that Trump intended for the audience to act on his words. He said to “get ‘em out” and then people in the crowd began pushing and shoving the protestors. The Trump Defendants’ argument that Trump’s statement could not have been the proximate cause of any violence because it was likely not directed at the crown was laughable (or, as the Court put it “without merit”). Come on, dudes. You’re giving all of us lawyers a terrible name (and it’s not like we’re not already struggling in the public perception department).

The Court was likewise unimpressed with the concern that the complaint failed to allege the type or cost of security present or needed at the rally. The Plaintiffs argued that the Trump Defendants were negligent in relying on audience members to remove protestors rather than relying on professional security handle the task. Their argument had nothing to do with whether there were sufficient numbers of security officers present.

Finally (and maybe my other favorite) the Court smacks down the “assumed the risk” argument with one sentence: “The doctrine of assumption of the risk was abolished in Kentucky decades ago.”

Seriously. These lawyers are horrible. Did they not read any caselaw? Were there so few arguments to be made in defense of Trump that they just had to make really, really bad ones?

See ya in court, Trump. When you break the law, it chases you. And you’ve managed to tick off our entire judiciary and your lawyers are seemingly not good at their jobs, so good luck out there. You’ll need it.

What’s actually in Trump’s Anti-Environment Executive Order

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Toxic Smog in Manhattan on November 24, 1966

 

What’s the rundown on Trump’s climate change executive order? What’s it say, subsection by subsection? Where can you go read it for yourself? All the important questions. Here are the spark notes. (Short story: Trump has gutted environmental protections in a horrific way.)

The executive order is titled, “Promoting Energy Independence and Economic Growth” which sounds really nice, but the order doesn’t actually promote either of those things. In fact, the US economy will probably take a hit thanks to our backsliding on climate issues. Read it here.

Section 1 – Policy

(a) The devil is in the details here. Initially, it sounds pretty hunky dory: there’s some talk of promoting clean and safe development, of encouraging economic growth, but what this policy section is actually saying is significantly less than hunky dory. Basically: yeah, we want to cleanly and safely develop our country’s energy resources buuuut we can’t have regulation getting in the way. Fun fact: regulation is what keeps things clean and safe. Without regulation, industry can act carte blanche. In other words, “clean and safe” are great buzz words, but have no bearing on what this order is actually doing. There’s also a line in this subsection about how the development of the natural resources is essential to ensuring geopolitical security. This is kind of a joke, though, because coal, for example, is not going to ensure any kind of geopolitical security in this day and age.

(b) This subsection actually alludes to renewable resources, but in sort of a throwaway way. It essentially states that it is in our national interest to make sure electricity is affordable, reliable, safe, secure, and clean. YAY! But wait…the order is also saying it’s in our national interest that it can be “produced from coal, natural gas, nuclear material, flowing water, and other domestic sources, including renewable sources.” The problem here is that there are some real issues with including coal, natural gas, and nuclear material in a list describing energy sources that are supposedly “safe, secure, and clean.” This is double-talk. Orwell would be proud.

(c) Here, Trump directs the executive departments and agencies to “immediately review” existing regulations that “potentially burden the development or use of domestically produced energy resource.” After this, those departments/agencies are to “appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.” Scary stuff. Almost every single regulation in place that encourages the development of clean energy is putting a damper on “dirty” energy industries. For example, emission controls on coal power plants? That’s a burden. And keep in mind that the EPA is now headed by a man who has been embroiled in lawsuits against EPA and is currently trying to undo our clean air regulations. (So how closely do you think EPA is going to be looking at our health and safety?) It also bears noting that this subsection does not talk about our health and safety. Instead, it refers to “public interest.” “Public interest” is a notoriously vague phrase that can be imbued with almost anyone’s particular view and agenda. Its presence here is not reassuring.

(d) Subsection (d) is another piece of policy fluff and includes the following statement, “[A]ll agencies should take appropriate actions to promote clean air and clean water for the American people, while also respecting the proper roles of the Congress and the States concerning these matters in our constitutional republic.” The sentence starts out sounding like encouragement for environmental protection and ends with a dog collar.

(e) This sets up a cost-benefit analysis that is probably rarely going to come out in favor of the environment or our health, given the subject nature of “benefit.” Verbatim (the bad grammar is the order, not me): “It is also the policy of the United States that necessary and appropriate environmental regulations comply with the law, are of greater benefit than cost, when permissible, achieve environmental improvements for the American people, and are developed through transparent processes that employ the best available peer-reviewed science and economics.” Presumably, environmental improvements will only happen “when permissible” (awkward comma placement; shoulda been a semicolon), which is pretty deplorable because that means that environmental improvements are a bonus, not a goal. Also, don’t forget that if Congress passes the HONEST Act (Honest and Open New EPA Science Treatment Act – boy, if that’s not a loaded and creepy title, I don’t know what is), the EPA would be banned from using scientific studies and methods that are not yet publicly available in order to write and put in place new environmental regulations. The quick and dirty? If passed, the Act will handcuff EPA and sever it from much of the scientific evidence on which it relies. To the untrained ear, requiring only the use of information that is “publicly available online in a manner that is sufficient for independent analysis and substantial reproduction of research results” SOUNDS great. But here’s the catch, some valuable and important research cannot be made public by law. Research premised on medical records, for example. Then there’s another catch – the Act has an astronomical price tag but a tiny budget: it would cost around $250 million/year, but only has $1 million allotted to it. The upshot of all of this? EPA won’t be able to research improvements to our environment, even if it wanted to.

Section 2 – Immediate Review of All Agency Actions that Potentially Burden the Safe, Efficient Development of Domestic Energy Resources

(a) This subsection directs all heads of agencies to review existing regulations, orders, guidance documents, policies, etc. that “potentially burden the development or use of domestically produced energy resources with particular attention to oil, natural gas, coal, and nuclear energy resources.” Yes, that is correct. The agencies are to pay special attention to our dirtiest resources and our non-renewable resources and be sure that they are protected from being burdened.

(b) We finally get a definition of “burden.” It means “to unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources.” All I have to say is that environmental lawyers everywhere had better be jumping on that “unnecessarily” because that word is going to be where all of the argument unfolds. Without that word, just about nothing can be done that has any sort of unwelcome or negative impact on the coal, oil, natural gas, or nuclear energies.

(c) 45-day deadline for turning in plans to carry out the aforementioned review.

(d) 120-day deadline to submit draft final reports detailing agency action with respect to review. The reports all must include “specific recommendations that, to the extent permitted by law, could alleviate or eliminate aspects of agency actions that burden domestic energy production.” Honestly, I hope some smartass agency submits a report that says dirty energy is a burden to the production of clean energy. “We find that the long shadows of coal plants are directly impeding the development and installation of solar farms across the US. They are burdening not just energy production but jobs that would be created from this clean energy resource. We therefore recommend a complete shutdown of all such plants and have included a detailed plan of how this is to be achieved.”

(e) Reports to be finalized within 180 days.

(f) The Office of Management and Budget and the Assistant to the President for Economic Policy will work together to coordinate the recommended actions that the agencies included in their final reports.

(g) Agencies should work fast to suspend, revise, rescind, etc. any actions identified that are burdensome to domestic energy production.

Section 3 – Rescission of Certain Energy and Climate-Related Presidential and Regulatory Actions. THIS is the whammy. Bet you were reading through those earlier sections thinking “ok, this isn’t great, but maybe there are workarounds… It doesn’t seem as bad as the media made it out to be.” That’s because the media was specifically talking about Section 3. Section 3 is awful. Section 3 is a big “up yours” to the earth.

(a) Revokes the following Presidential actions: “Preparing the United States for the Impacts of Climate Change” (Executive Order 13653. November 1, 2013); “Power Sector Carbon Pollution Standards” (Presidential Memorandum, June 25, 2013); “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment” (Presidential Memorandum, November 3, 2015); and “Climate Change and National Security” (Presidential Memorandum, September 21, 2016). If you have the time and interest and don’t mind spiking your blood pressure/diving headlong into rage and despair, I definitely recommend checking out the texts of those documents on the Federal Register website.

(b) Revokes the following reports: “The President’s Climate Action Plan” (Report of the Executive Office of the President of June 2013) and “Climate Action Plan Strategy to Reduce Methane Emissions” (The Report of the Executive Office of the President of March 20140).

(c) And the hits just keep coming. This subsection orders the Council on Environmental Quality to rescind its final guidance entitled, “Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews.” This one hits really close to home because during a summer internship, I wrote a memo on why the Federal Energy Regulatory Commission should consider greenhouse gas emissions in their Environmental Impact Statements on pipeline projects. It referred to documents and memos by the CEQ. This rescission is really bad. Really, really bad.

(d) Direct more agency review of any actions implicated by subsections a, b, or c (above) and to suspend, revise, or rescind them.

Section 4 – Review of the Environmental Protection Agency’s “Clean Power Plan” and Related Rules and Agency Actions. This section seems to be here just to really make sure that no pesky environmentally friendly regs sneak through.

(a) Pruitt is supposed to eliminate (ok, “suspend, revise, or rescind”) the final rules and guidances issued pursuant to them addressed below in subsection (b).

(b) The rules to which we should all wave goodbye: “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units;” “Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units;” and “Federal Plan Requirements for Greenhouse Gas Emissions from Electric Utility Generating Units Constructed on or Before January 8, 2014; Model Trading Rules, Amendments to Framework Regulations; Proposed Rule.”

(c) Pruitt is to review and suspend, revise, or rescind the “Legal Memorandum Accompanying Clean Power Plan for Certain Issues” which was published in conjunction with the Clean Power Plan.

(d) Pruitt has to let Jeff Sessions know what actions he’s taking so that Sessions can go ahead and gear up for legal battles.

Section 5 – Review of Estimates of the Social Cost of Carbon, Nitrous Oxide, and Methane for Regulatory Impact Analysis. Oh boy you guys, this section is bad, too.

(a) The lip-service here is to ensuring sound regulatory decision making and making sure that analyses of costs and benefits are based on the best available science and economics. (Almost sounds like a joke at this point.)

(b) This subsection disbands the Interagency Working Group of Social Cost of Greenhouse Gases and have the following documents withdrawn as no longer representative of governmental policy: “Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis (May 2013);” “Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis (November 2013);” “Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis (July 2015);” “Addendum to the Technical Support Document for Social Cost of Carbon: Application of the Methodology to Estimate the Social Cost of Methane and the Social Cost of Nitrous Oxide (August 2016);” and “Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis (August 2016).” The EPA still has its page up on the IGW: https://www.epa.gov/climatechange/evaluating-climate-policy-options-costs-and-benefits. It did good things. You can also access the August 2016 report here: https://www.epa.gov/sites/production/files/2016-12/documents/sc_co2_tsd_august_2016.pdf. I can’t imagine that either will be long for this world.

(c) Requires agencies to follow a 2003 guidance when monetizing the value of changes in greenhouse gas emissions resulting from regulations. They should also consider domestic versus international impacts and appropriate discount rates.

Section 6 – Federal Land Coal Leasing Moratorium: Trump’s lifted the moratoria on Federal land coal leasing activities. YAY! Bring back smog and smoke and a dying industry.

Section 7 – Review of Regulations Related to United States Oil and Gas Development

(a) Pruitt is to review “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources,” which is a final EPA rule, and any rules or guidances issued pursuant to it. He is then to take actions directed by Section 1 (above) and suspend, revise, or rescind as necessary.

(b) The Secretary of the Interior also must review a list of final rules in accordance with Section 1 (above) and suspend, revise, or rescind asap. Here are the rules: “Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands;” “General Provisions and Non-Federal Oil and Gas Rights;” “Management of Non Federal Oil and Gas Rights;” and “Waste Prevention, Production Subject to Royalties, and Resource Conservation.”

(c) Pruitt or the Secretary of the Interior must alert Jeff Sessions to any actions taken so that, once again, Sessions can prepare to do legal battle.

Section 8 – General Provisions. This is the normal disclaimer that is in every Executive Order. I’m not going to summarize it, but you can go read it if you’re interested.

On the Chopping Block: Here’s what those 19 agencies really are and what they really do.

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I took a long hiatus. I’m back because I can’t stand silently by while Trump eliminates 19 actually-really-wonderful agencies in order to “save money” (in the grand scheme of things, these agencies cost pennies on the dollar and, frankly, if it’s saving money we’re concerned about, maybe we shouldn’t be spending $4.5 billion on a wall between the US and Mexico).

You know that old adage, “You don’t know what you got ‘til it’s gone?” I’m not sure there has been a truer representation of that than this. Typing up this list was heartbreaking. [Also, I was working FAST so please excuse typos or awkward sentences/phrases.]

What was on the chopping block? Poor people and education, basically. Foreign assistance (but we’re bloating the military…). Also the arts. Like I said, heartbreaking.

 

The United State African Development Foundation (USADF)http://www.usadf.gov/:

The USADF is an Independent US Government Agency that provides grants of up to $250,000 to community groups and small enterprises that benefit under-served and marginalized groups in Sub-Saharan Africa.

Now, if you just don’t think ANY of our money should be leaving our borders (really myopic and naïve, but okay), I guess there’s not a lot that can be said to convince you that part of power is responsibility and, beyond that, simple decency. The USADF has helped support and fund more than 1,500 small enterprises and community-based organizations in more than 20 African countries. It’s also been involved in implementing a food security project in the Sahel region of West Africa.

And its cost? About $22 million dollars (so it wasn’t exactly bleeding us).

 

The Appalachian Regional Commission (ARC)https://www.arc.gov/:

ARC is a federal-state partnership that works with the people of Appalachia (an historically impoverished region and oft-overlooked region of the country that includes all of West Virginia and portions of AL, GA, KY, MD, MS, NY, NC, OH, PA, SC, TN, and VA) to create opportunities for self-sustaining economic development and improved quality of life. Congress established ARC in 1965 in order to help bring the region into socioeconomic parity with the rest of the United States. The Commission serves a population of more than 25 million people in an area of 205,000 square miles.

All of ARC’s activities must advance on of five strategic investment goals:

(1) Create economic opportunities

(2) Develop a ready workforce

(3) Invest in critical infrastructure, including the Appalachian Development Highway System

(4) Leverage natural and cultural assets

(5) Bolster leadership and community capacity

Most of its funds go towards grants, which require performance measures, and a regional research and evaluation program helps inform the agency’s work. Basically, ARC is focused on teaching communities how to “fish for themselves.” ARC targets its resources to the areas of greatest need and least half of its grants have historically gone to projects that benefit economically distressed areas.

And it’s had a positive impact. In 1960, there were 295 high poverty counties in Appalachia, now there are 91. It’s reduced infant mortality rate by 2/3 and doubled the percentage of high school graduates. ARC’s programs have helped create or retain over 101,000 jobs through projects that include entrepreneurship, education and training, healthcare, telecommunications, business development, and basic infrastructure. Additionally, ARC grants have leveraged almost $2.7 billion in private investments – nothing to sneeze at.

 

The US Chemical Safety and Hazard Investigation Board (aka the Chemical Safety Board aka CSB)http://www.csb.gov/:

The CSB is an independent US federal agency that is charged with investigating industrial chemical accidents and conducts root cause investigations of chemical accidents at fixed industrial facilities. It’s authorized by the Clean Air Act Amendments of 1990 and has existed since January of 1998. It’s role? “To investigate accidents and determine the conditions and circumstances which led up to the event and to identify the cause or causes so that similar events might be prevented.” The CSB is under its own auspices and does not take direction from any other agency or the executive branch.

Its “notable” investigations included:

(1) Texas City Refinery Explosion

(2) Xcel Energy Cabin Creek Hydroelectric Plant Fire in October of 2007

(3) Port Wentworth Imperial Sugar Plant explosion in February of 2008

(4) Deepwater Horizon explosion in 2010

(5) Chevron Refinery fire in August of 2012

(6) West Texas fertilizer fire and explosion in April of 2013

Once the CSB is gone, there isn’t another agency or organization that will take on the CSB’s roles. We’ll be back to unexamined accidents.

The CSB’s chairperson, Vanessa Allen, issued a statement on Trump’s proposed closure of the agency. If you’re interested, you can read it here: http://www.csb.gov/statement-from-the-csbs-chairperson-vanessa-allen-sutherland-on-fy-2018-budget/

 

The Corporation for National and Community Service (CNCS) – https://www.nationalservice.gov/

Let me put it this way, you might not be familiar with CNCS, but I bet you’re familiar with AmeriCorps. Guess what? AmeriCorps is run by CNCS and without CNCS, there is no AmeriCorps

CNCS is a federal agency created in 1993 (under George H. W. Bush) that engages more than five million Americans in service through AmeriCorps, Learn and Serve America, Senior Corp, USA Freedom Corps, President’s Volunteer Service Award, and the Presidential Freedom Scholarship Program. Its mission is to “support the American culture of citizenship, service, and responsibility.” Although it is a government agency, CNCS behaves like a foundation and is the largest annual grant maker supporting service and volunteering in the United States.

CNCS’s focus areas include:

  • Disaster services – preparation, mitigation, response, and recovery efforts that relate to disaster events
  • Economic opportunity – addresses unmet needs of economically disadvantaged individuals, including financial literacy, affordable housing, and employment-related assistance
  • Education, – addresses unmet educational needs within communities, especially those that help at-risk youth to achieve success in school and prevent them from dropping out
  • Environmental stewardship – addresses matters energy and water efficiency, renewable energy use, at-risk ecosystems, and behavioral change leading to increased efficiency
  • Healthy futures – address unmet health needs, including access to health care, increasing physical activity and improving nutrition in youth, and increasing seniors’ ability to remain in their own homes
  • Veterans and Military Families – addresses unmet needs of veterans, members of the armed forces, and family members deployed military personnel

Anyway, all that is gone in the FY 2018 budget.

 

The Corporation for Public Broadcasting (CPB)http://www.cpb.org/:

Sesame Street. Mister Rogers. (Ok, that’s PBS, but PBS falls under the auspices of CPB, although it is run by private groups and has been since 1969.)

Fresh Air. Car Talk. The State of Things. (Ok, that’s NPR, but NPR also falls under the auspices of CPB and has since 1970. Unlike PBS, NPR produces and distributes programming.)

The CPB was created in 1967 in order to ensure universal access to non-commercial high-quality content and telecommunications services. It achieves this by distributing more than 70% of its funding to more than 1,400 locally owned public radio and television stations.

The CPB has received around $500 million dollars a year to fund media. Rooughly 95% of CPB’s appropriation goes directly to content development, community services, and other local station and system needs. Public broadcasting stations are funded by a combination of private donations from listeners/viewers, foundations, and corporations. Funding for public television comes in roughly equal parts from government (state and federal) and the private sector. Stations that receive CPB funds must meet certain requirements. For example, they must either maintain or provide opportunity for open meetings, open financial records, a community advisory board, equal employment opportunity, and lists of donors and political opportunities.

 

Delta Regional Authority (DRA)http://dra.gov/:

Similar to ARC, the DRA’s mission is to improve the quality of life for the residents of the Mississippi River Delta Region which consists of 252 counties and parishes in parts of AL, AR, IL, KY, LA, MS, MO, and TN. The agency is led by a federally appointed co-chairmen and the governors of the eight states mentioned. Under federal law, at least 75% of DRA funds must be invested in economically dstressed counties and parishes. Approximately half are awarded for transportation and basic infrastructure improvements.

DRA’s mission is to help economically distressed communities to leverage other federal and state programs four Congressionally mandated priority funding categories:

(1) Basic public infrastructure in distressed counties and isolated areas of distress

(2) Transportation infrastructure for the purpose of facilitating economic development in the region

(3) Business development, with emphasis on entrepreneurship

(4) Workforce development or employment-related education, with emphasis on use of existing public education institutions located in the region

Like ARC, DRA has had a discernible [positive] impact. Since 2010, 11,452 jobs have been created; 14,766 jobs have been retained; 64,831 families have received improved water and sewer; and 7,202 individuals have received job training. [Also, economically, DRA receives far more money from private sources than it does from the government, which makes its eradication extra ridiculous. But because it is a government agency, it can’t simply continue to exist if it is eliminated in the budget.]

 

The Denali Commissionhttp://www.denali.gov/:

The Denali Commission is an independent federal agency established in 1998 that exists to provide critical utilities, infrastructure, and economic support throughout Alaska – specifically paying attention to Alaska’s remote communities. It delivers federal services in the most cost-effective manner (again, why is this on the chopping block?) by reducing administrative and overhead costs. The Denali Commission’s mission is to provide job training and other economic development services in rural communities, and it was established with a specific focus on promoting rural development and providing power generation, transition facilities, modern communication systems, water and sewer systems and other infrastructure needs in rural Alaska.

I guess Trump doesn’t like Alaska.

 

Institute of Museums and Library Services (IMLS)https://www.imls.gov/:

IMLS essentially wants to spread knowledge and make it widely accessible and engaging, IMLS’s mission is “to inspire libraries and museums to advance innovation, lifelong learning, and cultural and civic engagement.” It lists its strategic goals as being:

  • Placing learners at the center and helping to support engaging experiences in libraries and museums that prepare people to be full participants in their local communities and our global society. (In other words, they want to widen horizons, foster curiosity, create open and eager minds, and share new knowledge.)
  • Promoting museums and libraries as strong community anchors that enhance civic engagement, cultural opportunities, and economic vitality.
  • Supporting the stewardship of museum and library collections and promoting the use of technology to facilitate discovery of knowledge and cultural heritage.

IMLS also advises the President and Congress on plans, policies, and activities to sustain and increase public access to information and ideas. (Are you starting to notice a trend, here, with respect to what Trump is trying to nix? Because I am.) It supports the full range of libraries in the US, including public, academic, research, special and tribal, and supports the full range of museums in the US, including art, history, science and technology, children’s museums, historical societies, tribal museums, planetariums, botanic gardens, and zoos.

If you’re curious about the nitty-gritty funding issues, the website is very helpful and has all kinds of easily accessible facts and figures. In fact, I’ll make it easy for you, here’s the link (try not to feel too sad about the requested funding now that you have the knowledge that the President just wants to eliminate them entirely): https://www.imls.gov/sites/default/files/budgettable_14-17.pdf

 

The Inter-American Foundation (IAF)http://www.iaf.gov/:

The IAF is an independent agency created in 1972 that funds development projects undertaken by grassroots groups and nongovernmental organizations (NGOs) in South America and the Caribbean. It began as an experimental alternative to traditional, government-to-government foreign assistance and, since beginning operations in 1972, has awarded 4,920 grants worth more than $665 million dollars. (Take a second to do the math there and recognize what a paltry sum that is based on other government expenditures.)

IAF’s mission statement is “to (1) strengthen the bonds of friendship and understanding among the peoples of this hemisphere; (2) support self-help efforts designed to enlarge the opportunities for individual development; (3) stimulate and assist effective and ever wider participation of the people in the development process; and (4) encourage the establishment and growth of democratic institutions, private and governmental, appropriate to the requirements of the individual sovereign nations of this hemisphere.” Again, another agency that isn’t costing us very much but is doing wonderful things for the less privileged of the world. In a world where kindness and empathy are rare commodities.

Grant recipients are closely monitored and required to report semi-annually on their progress. IAF compiles this information annually into a results report (available – for now – on their website). An independent review of IAF found that its approach “favors inductive reasoning in contrast to other aid agencies’ reliance on deductive methods.” In other words, rather than articulating questions and testing hypotheses, IAF begins with observation first and from observation follows relevant questions. This is immensely valuable because it results in a greater understanding of issues and people and provides an opportunity for more useful and effective solutions to problems.

 

The U.S. Trade and Development Agency (USTDA)https://www.ustda.gov/:

The USTDA is another independent agency. It was established in 1961 to advance economic development and U.S. commercial interests in developing and middle income countries. Essentially, the agency helps companies create U.S. jobs through the export of U.S. goods and services needed for priority development projects in emerging economies. USTDA links U.S. businesses to export opportunities by funding project preparation and partnership building activities that then help to develop sustainable infrastructure as well as foster economic growth in partner countries.

USTDA also supports efforts to mitigate global climate change (And there it is. There’s why Trump wants to eliminate it) by helping partner countries develop renewable energy resources, invest in cleaner forms of traditional energy and modernize electric grids in order to increase their efficiency, reliability, and sustainability. In 2013, USTDA was named a Smart Grid Pioneer by “Smart Grid Today” for its efforts. In 2015, the agency committed over half of its energy investments to renewable power. If allowed to come to fruition, the projects would have the potential to unlock over $4.3 billion in financing and produce over 2,400 megawatts of new renewable energy (so, in addition to being environmentally friendly and intelligent, it’s also a potential goldmine). The new renewable energy would reduce CO2 equivalent emissions by an estimated 12 million metric tons a year as compared with new traditional power generation.

I could ramble on and on about USTDA; I suggest you do some of your own reading. Its elimination is tragic from an energy advancement perspective. Its worked to create sustainable cities, investing in intelligent solutions for transportation and energy, and working towards safe and efficient urban infrastructure. Thanks a lot, Trump.

 

Legal Services Corporation (LSC)http://www.lsc.gov/:

The LSC is a publicly funded, 501(c)(3) non-profit corporation established by Congress in 1974. In short, its purpose is to ensure equal access to justice under the law for all Americans by providing civil legal assistance to those who would otherwise be unable to afford it (think public defenders but federal). [In fiscal year 2015, LSC had a budget of $375 million to fund civil legal aid. AGAIN, not exactly breaking the bank. Not by a long shot. Fun fact: LSC tried to get $390 million in 2009, but Senator Grassley said “There’s just a lot of money being wasted.” Because, again, screw poor people who need legal help but can’t afford it.]

LSC is the largest single funder of civil legal aid in the United States and distributes more than 90% of its total funding to 134 independent nonprofit legal aid programs. More specifically, LSC grantees help people who live in households with annual incomes at or below 125% of the federal poverty line (for a single person that’s roughly between $11,880/year and $16,400/year). Eligible clients include the working poor, veterans and military families, homeowners and renters, families with children, farmers, the disabled, and the elderly.

“Justice for only those who can afford it is neither justice for all nor justice at all.” Texas Chief Justice Nathan Hecht.

 

National Endowment for the Arts (NEA)https://www.arts.gov/:

Here’s one with which just about everyone is familiar, I think, so I’m not going to say as much about it. You should still get familiar with it, though (they have a statement on their website about its proposed elimination). The NEA was created in 1965 and offers support and funding for projects exhibiting “artistic excellence.” Like EVERY OTHER AGENCY ON THE LIST the NEA is not costing us much money and has never received more than $167.5 million annually. It is “dedicated to supporting excellence in the arts, both new and established, bringing the arts to all Americans; and providing leadership in arts education. [Also, Reagan tried to get rid of it in 1981, but nevertheless, it persisted.]

 

National Endowment for the Humanities (NEH)https://www.neh.gov/:

Here’s another one with which just about everyone is familiar. The NEH was established in 1965 and is an independent federal agency. It is dedicated to supporting research, education, preservation, and public programs in the humanities. To further its goal of lending support, the NEH provides grants to cultural institutions for high-quality humanities projects (museums, archives, libraries, colleges, universities, public television, and radio stations, as well as individual scholars).

It has several special initiatives that include:

(1) Bridging Cultures Initiative: Explores ways in which the humanities promote understanding and mutual respect for people with diverse histories, cultures, and perspectives.

(2) Standing Together: Promotes an understanding of the military experience and supports returning veterans.

(3) “We the People” Initiative: Designed to encourage and enhance the teaching, study, and understanding of American history, culture, and democratic principles.

Guys, the NEH has done so much. Don’t let them kill it.

 

Neighborhood Reinvestment Corporation d/b/a NeighborWorks Americahttp://www.neighborworks.org/Home.aspx:

NeighborWorks America is a congressionally chartered nonprofit organization started in 1978 that supports community development in the U.S. and Puerto Rico. It provides grants and technical assistance to more than 240 community development organizations in urban, suburban, and rural communities nationwide. The organization provides training for housing and community development professionals and administers the National Foreclosure Mitigation Counseling Program (created in 2007), which helps those dealing with foreclosure.

 

The Northern Border Regional Commission (NBRC)http://www.nbrc.gov/:

Similar to ARC and DRA, the NBRC is a federal-state partnership formed in 2008 that strives to foster economic and community development in impoverished areas. Specifically, the NBRC operates in Maine, New Hampshire, Vermont, and New York. It provides grants in four areas:

(1) Economic and Infrastructure Development Investments;

(2) Comprehensive Planning for States (helps member states to develop comprehensive economic and infrastructure development plans for their NBRC counties);

(3) Local Development Districts;

(4) General Planning

The NBRC’s mission is “to catalyze regional, collaborative, and transformative community economic development approaches that alleviate economic distress and position the region for economic growth.”

Again, Trump just really doesn’t want to help give the little guy a leg up. At all.

 

Overseas Private Investment Corporation (OPIC)https://www.opic.gov/:

OPIC is the US’s development finance institution created in 1971 – it mobilizes private capital to help solve critical development challenges and, in doing so, purports to advance the foreign policy of the US and national security objectives. It helps businesses gain footholds in emerging markets with the intent of catalyzing revenue, jobs, and growth opportunities both in the US and abroad.

OPIC achieves its mission by providing investors with financing, political risk insurance, and support for private equity investment funds, if commercial funding cannot be found elsewhere. And GUESS WHAT, the institution operates on a self-sustaining basis at NO NET COST to American taxpayers. But…OPIC also has high environmental and social standards, including human and workers’ rights (because it wants to raise those standards in countries where it funds projects), so Trump probably felt it needed to go.

 

The United States Institute of Peace (USIP)https://www.usip.org/:

USIP is a non-partisan, independent, federal institution established in 1984 that analyzes conflicts around the world. It was formed by the United States Institute of Peace Act and calls for the Institute to “serve the people and the Government through the widest possible range of education and training, basic and applied research opportunities, and peace information services on the means to promote international peace and the resolution of conflicts among the nations and people of the world without recourse to violence.” In other words, USIP is supposed to teach, to help, to foster learning, and to strive to determine how to promote peace and resolve conflicts in ways that don’t involve picking up a weapon and killing someone.

USIP operates programs in conflict zones, conducts research and analysis, operates a training academy and public education center, provides grants for research and fieldwork, and convenes conferences and workshops. It also is working to build the academic and policy fields of international conflict management and peacebuilding.

In terms of budget? USIP hasn’t gotten more than $43 million. That’s less than one-tenth of 1% of the State Department’s budget and one-HUNDREDTH of 1% of the Pentagon’s budget.

 

The US Interagency Council on Homelessness (USICH)https://www.usich.gov/:

The USICH is an independent federal agency in the executive branch, created in 1987, that works to implement the federal strategic plan to prevent and end homelessness. The USICH’s mission is to “Coordinate the federal response to homelessness and to create a national partnership at every level of government and with the private sector to reduce and end homelessness in the nation while maximizing the effectiveness of the Federal Government in contributing to the end of homelessness.”

The USICH created objectives around five main themes in order to explain its strategy to address homelessness:

(1) Increase leadership, collaboration, and civic engagement – Inspire and energize Americans to commit to preventing and ending homelessness; strengthen the capacity of public and private organizations by increasing knowledge about collaboration, homelessness, and successful interventions to prevent and end homelessness.

(2) Increase access to stable and affordable housing – Provide affordable housing to people experiencing or most at risk of homelessness; improve access to mainstream programs and services to reduce people’s financial vulnerability to homelessness.

(3) Increase economic security – Increase meaningful and sustainable employment for people experiencing or most at risk of homelessness; improve access to mainstream programs and services to reduce people financial vulnerability to homelessness.

(4) Improve health and stability – Integrate health services with assistance programs and housing to reduce people’s vulnerability to and the impacts of homelessness; advance health and housing stability for youth aging out of systems such as foster care and juvenile justice; advance health and housing stability for people experiencing homelessness who have frequent contact with hospitals and criminal justice.

(5) Retool the Homeless Crisis Response System – Transform homeless services to crisis response systems that prevent homelessness and rapidly return people who experience homelessness.

All-in-all, seems like a pretty worthwhile agency.

 

The Woodrow Wilson International Center for Scholars (Wilson Center)https://www.wilsoncenter.org/:

Created in 1968, the Wilson Center is a Presidential Memorial that was established as part of the Smithsonian Institution. It is a highly regarded think tank that is ranked among the top ten in the world. (Man, we’ll be SO COOL in the eyes of the rest of the world if we eliminate a top ten think tank!) Its mission is “to commemorate the ideals and concerns of Woodrow Wilson by: providing a link between the world of ideas and the world of policy; and fostering research, study, discussion, and collaboration among a full spectrum of individuals concerned with policy and scholarship in national and world affairs.”

It has over 30 specialized programs that include:

  • Africa Program
  • Asia Program
  • Brazil Institute
  • Canada Institute
  • Cold War International History Project
  • Environmental Change and Security Program
  • History and Public Policy Program
  • Kennan Institute
  • Kissinger Institute on China and the United States
  • Mexico Institute
  • Middle East Program
  • North Korean International Documentation Project
  • Project on Emerging Nanotechnologies

Ultimately, the Wilson Center works hard to stay engaged in the global dialogue of ideas (and boy do we need that now more than ever). They’ve also issued a statement regarding Trump’s proposed eradication of them: https://www.wilsoncenter.org/article/wilson-center-statement-fy2018-budget-plan

****

Here’s what this boils down to: Trump has no interest in protecting the little guy, our veterans, our poor. He has no interest in protecting the environment, US business interests abroad. He has no interest in fostering conversation, expanding horizons and understanding, or working towards peaceful coexistence. These 19 eliminations tell the story of what Trump stands for and it’s pretty demoralizing. None of us – regardless of place on the political spectrum – should herald this as a success. This is what it is: an embarrassing display of ignorance, lack of imagination, and lack of compassion. As Representative Joe Kennedy III said in response to the AHCA, “it is an act of malice.”

Our President is waging war against us, all of us. Make sure that Congress knows we don’t want this budget.

That tangled Russian web: a rundown

fbitrump

Ok, if you’re like me, you’re probably finding it difficult to keep track of the procession of events unfolding around us. There’s chaos – a White House administration that rarely seems to share a page; there’s running roughshod across the Constitution – Executive Orders, barring members of the press from White House briefings; there are lies – Kellyanne Conway and fake terrorist attacks; Trump and fake terrorist attacks; there’s a Congress whose members are refusing to communicate with their constituents while working furiously to roll back healthcare from about 20 million of them; there’s Bannon – who, rumor has it, is drafting the Executive Orders and Presidential Memorandums, who has also vowed to dismantle the administrative state (Leninist that he is); the list goes on and on and on and on. I’m 90% convinced that the insanity is pre-calculated to wear us out, confuse us, and force us to give up on pushing back.

Then there’s also Russia, and holy heck is there a tangled web there. So I’ve decided to pull together a “starter” outline of the progression of events that led us to where we are now – with a national security advisor who resigned due to ties with Ukraine’s pro-Russian government and a president who is trying to lead an all-out assault on the country’s intelligence agencies. Are we living in a James Bond movie right now??

Spring of 2016 (yes, there was already ongoing investigation at this early date)

Sources to get you started:

Who: An informal, inter-agency working group made up of the FBI, CIA, National Security Agency, the Justice Department, the Treasury Department’s Financial Crimes Enforcement Network, and representatives of the Director of National Intelligence.

What they were doing: Looking at possible Russian involvement with the US election system. This was prompted after the CIA received a recording that showed the Russian government planned to disrupt the election. Specifically, the CIA director was given a tape recording of a conversation about money from the Kremlin going into the US presidential campaign. It was passed to the US by an intelligence agency of one of the Baltic States.

What else they were doing: In June, lawyers from the National Security Division in the Department of Justice drew up an application to intercept the electronic records from two Russian banks the Fisa court (named after the Foreign Intelligence Surveillance Act). This initial application was denied. In July, the lawyers returned to the court with a more narrowly drawn order. This, too, was rejected.

Summer of 2016

Sources:

Who: Christopher Steele, a former British intelligence agent (who was, at that time, still unnamed). He’d been a former senior intelligence officer who specialized in Russian counterintelligence but was working for a US firm that gathers information on Russia for corporate clients (ugh, the dirty underbelly of global corporatism). Steele had been assigned the task of researching Trump’s dealings in Russia and elsewhere.

What he was doing: The project on which Steele was working was an opposition research project funded by a Republican client who was critical of Trump. The project’s financing later switched to a client allied with Democrats. Steele said it started off “as a fairly general inquiry.” But then he came across troubling information: He turned up an established exchange of information between the Trump campaign and the Kremlin of mutual benefit. He also noted that the “Russian regime has been cultivating, supporting and assisting TRUMP for at least 5 years. Aim, endorsed by PUTIN, has been to encourage splits and divisions in western alliance.” [If true, Russia is a seriously conniving SOB. Not that we’re probably any less conniving, given the sorts of things the CIA has been involved with.] Steele felt that there was enough of an issue (the information was “sufficiently serious”) to share with the FBI. (Buzzfeed published an article in January with all of Steele’s findings with a disclaimer that the information was unverified. )

Who: Paul Manafort, who briefly served as Trump’s campaign manager before stepping down.

What he was doing: Well, resigning. But he was resigning because of news reports covering his business connections in Russian and his work as a consultant for a pro-Russian political party in Ukraine. New reports also suggest that Manafort was facing blackmail while he served as Trump’s presidential campaign chairman, and there are also reports that he was taking out puzzling real estate loans.

Fall of 2016

Sources:

Who: That inter-agency investigatory group.

What they were doing: On October 15, 2016, a new judge on the Fisa court granted lawyers their order for permission to intercept the electronic records from those two Russian banks. Neither Trump nor any of his associates are explicitly named in the order, but ultimately, the investigation was looking for transfers of money from Russian to the United States. If proved, each one would be a felony. A lawyer outside of the DOJ (but who was nonetheless familiar with the case) said that three of Trump’s associates were the subject of the inquiry and that it was clear that the investigation was “about Trump.” This investigation was obviously very active going into the election and during that period, Harry Reid wrote Comey to accuse him of holding back “explosive information” about Trump. This was after Reid was a part of an eight-person intelligence briefing at which they were barred from taking notes.

Who: Reporters in Washington.

What they were doing: In October, reporters tried to determine whether anonymous online reports that a computer server related to the Trump Organization engaged in a high level of activity with servers connected to Alfa Bank, the largest private bank in Russia. A Slate investigation detailed the server activity but concluded “we don’t yet know what this [Trump] server was for, but it deserves further explanation.”

Who: The Department of Homeland Security and Office of the Director of National Intelligence.

What they were doing: On October 7, DHS and ODNI delivered a joint statement saying that the U.S. intelligence community believed Russia was behind a hacking operation “to interfere with the U.S. election process.” They also stated, “We believe, based on the scope and sensitivity of these efforts, that only Russia’s senior-most officials could have authorized these activities.” The statement finished with urging state and local election officials to “be vigilant and seek cybersecurity assistance from DHS.”

Winter of 2016

Sources:

Who: Former President Barack Obama

What he was doing: Besides NOT TELLING the American people that all of this was going on, on December 9, Obama also order the U.S. intelligence community to review Russia’s hacking operation. He asked that it produce a public report before his term ended. On December 29, his administration sanctioned Russia after determining that the country hacked the Democratic Party in an effort to influence the U.S. election. Along with this, the administration expelled 35 Russian intelligence officials from the U.S. and closed Russian intelligence-gathering facilities in New York and Maryland. [Why are there clandestine foreign intelligence-gathering facilities over here? More importantly, why are they allowed to just Netflix and chill while the government knows about them and goes about its business?] Additionally, Obama signed an executive order that sanctioned nine individuals and groups for being involved in election-related hacking.

Who: Senate Majority Leader Mitch McConnell/Congress

What he was doing: At this point in time, McConnell was very much about investigating Russia. He even said “The Russians are not our friends.” He made this hard-hitting piece of commentary on the same day that House and Senate lawmakers from both parties called for an investigation into the matter. [Yeah, so about that, guys…] But, true to form, McConnell said this after having formerly dismissed the intelligence assessments from earlier in the fall that suggested Russia was trying to sway the elections. I guess you could say he’s an opportunistic kind of fellow. BUT, caveat, McConnell did not want a panel inquiry and Paul Ryan agreed with this, announcing that the House Intelligence Committee was already “working diligently on the cyber threats posed by foreign governments and terrorist organizations.” Both argued that the alleged attacked were a partisan issue and Ryan said “As we work to protect our democracy from foreign influence, we should not cast doubt on the clear and decisive outcome of this election.” [Is it just me, or is there some direct contradiction happening in that statement?]

January 6, 2017

Source:

Who: ODNI [As an aside, that might be my favorite government acronym]

What they were doing: ODNI released a declassified version of its report to Obama on Russia’s role in the election. The report is full of information (you know, if you have a free hour to sift through it, I recommend it), but ODNI concludes, with “high confidence” that Russian President Vladimir Putin ordered the hacking operation in an effort to hurt Clinton’s campaign and help elect Trump. The report determined that the GRU (Russia’s military intelligence service) gave the information it obtained from the DNC and Clinton campaign’s emails to WikiLeaks. It also stated that Russia’s effort to influence the 2016 U.S. presidential election “represented a significant escalation in directness, level of activity, and scope of effort compared to previous operations aimed at U.S. election” and that it was the boldest influence effort yet in the U.S.

January 10, 2017

Sources:

Who: The leaders of the Senate Intelligence Committee

What they were doing: In a joint statement issued on January 13, Chairman Richard Burr and Vice Chairman Mark Warner said that the U.S. intelligence community’s October 2016 report, which concluded that Russia had stuck its nose into the election, “raised profound concerns.” They went on to say that the panel would conduct an inquiry into Russia’s role in the election and that the investigation would include a review of the U.S. intelligence assessment released in October. It would further inquire into “any intelligence regarding links between Russia and individuals associated with political campaigns.” The two senators also stated that they planned to hold hearing and conduct interviews of current and former administration officials (and issue subpoenas to compel testimony, if necessary.) Senator Warner added, “This issue impacts the foundations of our democratic system, it’s that important. This requires a full, deep, and bipartisan examination.”

January 15, 2017

Sources:

Who: Vice President Mike Pence

What he was doing: Pence was getting in on the denial action (because, who knows, if Trump gets impeached there could be blowback onto Pence). In interviews on Face the Nation and Fox News Sunday [because where else would he go to be interviewed], Pence insisted that Flynn did not discuss U.S. sanctions against Russia in conversations with Kislyak (Russian diplomat who has served as Russia’s Ambassador to the U.S. since 2008) before Trump took office. [But note that Pence made his assertion based on what Flynn told him, rather than on any objective information; also Flynn probably did discuss the sanctions] Why is any of this relevant? Because under the Logan Act, it’s illegal for a private citizen to communicate with foreign governments or officials to try to influence foreign policy. While Flynn was a top foreign policy advisor to Trump during the campaign and the national security advisor-designate during the transition, he remained a private citizen until formally taking over as national security advisor after Trump was sworn in as president.

February 2, 2017

Sources:

Who: The Senate Subcommittee on Crime and Terrorism

What they were doing: The Subcommittee announced that it was launching its own separate probe into Russia’s election hacking. Senators Lindsey Graham (Chairman) and Sheldon Whitehouse (Ranking Member) gave a joint statement and said, “Our goal is simple – to the fullest extent possible we want to shine a light on Russian activities to undermine democracy.” They explained their goals as being as follows: (1) Gain a full understanding of the American intelligence community’s assessment that Russia did take an active interest and play a role in the recent American elections; (2) Learn more about the methods Russia has used to target democratic nations and elections; (3) Explore possible avenues to help prevent and deter future foreign influences from impacting American elections and institutions; (4) Assure that Congress provides the FBI tools it needs to keep its investigative work protected from political influence.

February 9, 2017

Source:

Who: The Washington Post

What they were doing: The Washington Post published a story showing that Flynn had indeed talked about the sanctions on Russia in his calls with the Russian ambassador. More importantly, the Post’s story stated that the calls started before Trump had won the election on November 8.

February 13, 2017

Sources:

Who: Michael Flynn

What he was doing: Michael Flynn was busy resigning. His resignation letter was supremely annoying in that it included the following statement, “I inadvertently briefed the Vice President Elect and others with incomplete information regarding my phone calls with the Russian Ambassador.” [Pretty sure we call that “lying about what I did” but okay.] But Flynn also couldn’t let it go and tried to defend his actions by saying that “such calls are standard practice” and refusing to admit to any wrongdoing. [Probs cause of the Logan Act…]

February 14, 2017

Sources:

Who: Sean Spicer

What he was doing: Damage control. Spicer stated that Trump learned of Flynn’s phone calls about two weeks before his resignation. But, like much of what has happened in this administration, everyone is on a different page her. The Vice President’s office said that Pence found out about the “true content” of the calls (and Flynn’s lies) through reading about it in the media reports, about two weeks after Trump found out. [So Trump “found out” but then didn’t actually tell anyone, including his VP.]

Who: The New York Times

What it was doing: The NYT published a story reporting that U.S. intelligence agencies had intercepted communications between several people associated with Trump or his campaign and Russian government officials during the election. [So, probably everybody knew about all of this. Except maybe Pence, actually.]

February 16, 2017

Sources:

Who: Donald Trump

What he was doing: Trump was vigorously defending Flynn’s actions in a lengthy news conference at the White House [because, let’s be honest, all of his news conferences are lengthy]. Trump was asked whether any officials with his campaign had communicated with Russia during the election and Trump said “nobody that I know of.” He also launched into another diatribe about “fake news” and that any reports about his campaign’s ties to Russia were fake, stating, “Russia is a ruse. I have nothing to do with Russia. Haven’t made a phone call to Russia in years.”

February 17, 2017

Source:

Who: FBI Director James Comey

What he was doing: Comey had a closed-to-the-press briefing with the Senate Intelligence Committee panel investigating Russia’s interference with the 2016 election. According to Senators Warner and Burr, the briefing was closed to the press because they don’t want the investigation to “default to a partisan food fight that doesn’t serve the public interest.”

February 24, 2017

Sources:

Who: Donald Trump

What he was doing: Trump is in an all-out war with U.S. intelligence agencies. He called the FBI a dangerously porous agency and stated that leaks of classified information from within the agency were putting the country at risk. He characterized law enforcement and intelligence agencies as misguided, irresponsible, and politically motivated. These criticisms appeared to be related to the fact that the White House asked the FBI to rebut an article that detailed contacts between Trump’s associates and Russian intelligence officials and the FBI refused.

And now…we sit around and wait and see where this circus lands.