Here’s a bit of contextually good news:
President Trump’s last-ditch effort to remove civil service protections from tens of thousands of career federal employees appears to have lost steam, facing time constraints and legal hurdles as the administration prepares to leave office, officials said.
This was to have been the finishing blow in Trump’s and the GOP’s long attempted murder of the independent Federal civil service.
Instead, it collapsed in a broad spectrum display of gaffers.
The order gave agencies until Tuesday to review potentially affected jobs. But as of Monday night, no…federal agencies had delivered a list of affected employees to White House officials for review, with the exception of the Office of Personnel Management, which also rushed to reshuffle much of its staff of roughly 3,500 people into the new category.
My guess as to why? An administration whose baseline level of competence was never that high found itself embroiled in weeks of election denialism. Eyes flew off the ball. If Trump had won, this would have all sailed through sometime over the next month or so. Without that luxury of time, and with a fair amount of WH staff distracted or disengaged, and confronting a bureaucracy that had less than zero interest in complying with Trump’s command? Not a chance.
This is a big Biden deal. If the White House had managed to drive this through, and especially if they had then managed to salt the executive branch with the same kind of folks who peopled the Iraq occupation, the damage they’ve already done to functional governance would have been made damn near permanent.
Trump and his cabal have still managed to do plenty of damage in the last two and a half months, of course. But thank Dog for the small mercy that they just aren’t good enough to swing the wrecking ball as far and hard as they want.
I never thought I’d be retweeting Ah-nold, but this is very good, and what we need now. He talks about his family in Nazi
Germany Austria (thanks, Amir Khalid). It’s, among other things, a warning to those who think Wednesday’s assault on the Capitol was a good thing.
And, since we’re doing explainers this morning, here’s Immanentize’s take on pardons.
People using past pardons (Nixon, draft dodgers) are making some big categorical errors in thinking this through.
So, here is how I think about it, as a criminal law matter. First, pardons are for criminal law questions only — that is, you can’t pardon someone out of a civil lawsuit.
Second, the basic unerring premise of criminal law is that every crime must have an act. One cannot punish thoughts alone, only acts (although conspiracy as a crime gets close). So — all crimes must be based on acts. But not all acts are criminal of course.
Third — the prior examples of “blanket” pardons were not all that blanket. Nixon’s pardon was never tested — but it was a pardon of a specific individual for all ACTS while in office (only then by specific dates). The Carter pardon was for a narrow set of crimes (selective service act crimes) for many but it also excluded a good number of people (AWOL offenses for example). So, a wide but finite number of people who avoided the draft, but only for a very narrow category of statutory crimes. So, not so much an ACTS pardon, certainly not a specific person pardon, but rather a bar to Federal prosecutions of certain specific federal crimes before a certain date. Carter’s memorandum was not really considered a pardon of individuals by many, rather a direction to Federal prosecutors not to charge crimes (which is always discretionary anyhoo). When Reagan became president, there was talk of him issuing a new order allowing the prosecutions again, but four years had passed and it seemed like a stupid fight to have. So, again, untested.
So, for a valid pardon to be made here, It seems that the president would have to pardon either specific people, or specific acts related to crimes. I think that he could pardon Q Shaman guy for all crimes committed that day. Or even committed during Trump’s term. A pardon of a Nixon type. But that could/would be tested. Trump could pardon everyone in the world for violating the trespass of public property crimes under a specific statute. A Carter-type “pardon.” But that might only be a prosecutorial discretion act which could end with his term in office.
What I do not think is legal as a pardon is what most people are calling “blanket” pardons. For any act or crime for any person that day. Is he really going to pardon the cop killer(s?). Or, suppose someone did plant a bomb in the Capital that day and it goes off after the pardon issues? The act was planting the bomb, can that conceivably be pardoned? I think not.
If he tries a blanket pardon of this type which has no precedent tested or not, there will be prosecutions and then we will know the outlines of the pardon power.
Further affiant sayeth not. And if there are typos, deal. It’s Sunday morning.
Nancy Pelosi says that she “spoke to the Chairman of the Joint Chiefs of Staff Mark Milley to discuss available precautions for preventing an unstable president from initiating military hostilities or accessing the launch codes and ordering a nuclear strike.”
I can tell her the available precautions, and I hope Milley did too: NONE
The President has sole authority to launch nuclear weapons. He is not required to consult anyone else, nor is there provision to force him to.
This situation came about because back in the Cold War, it seemed plausible that the President might not know about a nuclear attack until the missiles were on the way. That gave him a half-hour or less to decide. It was also assumed that we would elect only presidents capable of doing the job.
Nuclear strategists have pressed Congress to change the situation, but so far Representative Ted Lieu’s and Senator Ed Markey’s bill has gone nowhere. Maybe the next Congress will see fit to consider it.
No, there wasn’t a workaround when Nixon was wandering the corridors of the White House, drunk, talking to the portraits. We were lucky.
Nancy Pelosi can’t do a workaround with Mark Milley. That would be tantamount to a military coup, and I think that Milley is not interested in a military coup right now.
If this is a concern, Speaker Pelosi, and I think it is, then bring articles of impeachment to the floor of the House. NOW.
Cross-posted to Nuclear Diner
We had a whole weekend of national attention on President-Elect Joseph R. Biden and Vice-President-Elect Kamala D. Harris. He went golfing to try to ignore it, but today the neglect is setting in with full force.
So still-President Donald J. Trump fired his Secretary of Defense. That’ll show them! And you can call him Yesper, but Mark T. Esper defied The Master one too many times.
It seems pointless to fire anyone when you have only ten more weeks in the job, but as our very own Cole quoted Mary Trump,
Esper gave an interview on November 4 that he evidently asked to be held until he resigned or was fired. It’s been published. I think I would have wanted to have calmed down a bit before giving an interview and tried to avoid the whining, but you get the Secretary of Defense we just had, not the one we might want.
There’s a lot of speculation about why Esper was fired, and who’s next. The FBI’s Christopher Wray is the favorite. Also, too, someone in the White House has given instructions to agency heads to fire anyone who’s got a resume circulating.
I think Cole’s got it right. The positive side, I guess, is that as Trump eliminates people from the government, he becomes less able to do real damage, like start a war. It’s going to make the transition more difficult, but we knew that was coming.
And where are the other front-pagers? Open thread.
Earlier today, House Speaker Nancy Pelosi teased a press conference tomorrow: “We will be talking about the 25th Amendment.”
Anyone who has been following Donald Trump’s tweets lately, even in the most desultory way, has to have wondered what that amendment has to say about mental capability. Trump is recovering from covid-19, which is known to affect mental processes in some cases, and is taking dexamethasone, a steroid which is known to affect mental processes.
Details are coming out.
.@SpeakerPelosi and @RepRaskin to introduce legislation tomorrow to establish a commission under the #25thAmendment charged with evaluating the president's mental and physical capacity. pic.twitter.com/0BOMBujj8B
— Christine Pelosi (@sfpelosi) October 8, 2020
The relevant part of the 25th Amendment is Section 4:
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
The Vice President is necessary to declare that the President is unable to discharge the powers and duties of his office. But Congress has a role too. If Vice President Mike Pence finds it unseemly to initiate action to declare the President incapable, the House is generously offering to investigate the situation and provide cover if necessary.
At any rate, the Commission’s hearings should be interesting.
As a bunch of jackals have noted in the comments, Trump’s entered his burn it down phase:
President Donald Trump has ordered his negotiators to halt talks over a new stimulus package, after the two sides have struggled for months to reach a deal.
“I have instructed my representatives to stop negotiating until after the election when, immediately after I win, we will pass a major Stimulus Bill that focuses on hardworking Americans and Small Business,” Trump wrote in a series of tweets Tuesday afternoon.
Image: Albrecht Dürer, The Four Horsemen of the Apocalypse, 1498.