Rosenstein Update

Not to step on Dave’s post, but this is a fast moving story. Here’s the most recent reporting:

What does this exactly mean? Here’s a quick explainer on the Vacancy Act that Steve Vladek at Lawfare did when VA Secretary Shuklin was either fired (according to Shulkin) or resigned (according to the White House):

One of the obscure federal statutes that has come to prominence in the Trump administration is the Federal Vacancies Reform Act of 1998 (FVRA), a statute designed to increase the president’s flexibility with respect to filling vacancies within the executive branch on a temporary basis. Most discussion of the FVRA has centered on the Justice Department, and whether President Trump could use the statute to replace Attorney General Jeff Sessions, Deputy Attorney General Rod Rosenstein, or both, with someone from outside of the Justice Department. But the real action with the FVRA has largely involved the Department of Veterans Affairs—with respect to which the White House has now completely bungled matters, twice.

Let’s start at the beginning: When a federal office becomes vacant, the default is usually that the “first assistant” to that office is entitled to exercise the functions of the office (but does not formally ascend to the office) on a temporary, or “acting,” basis. But both because numerous positions don’t have obvious “first assistants” and because sometimes there’s no one holding that position, either, Congress in 1998 sought to provide a bit more flexibility to the president when filling many—if not most—vacancies in federal offices.

Thus, as the FVRA provides, when an executive branch officer whose position requires Senate confirmation “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” the default is still the “first assistant,” but the president can override that default—and choose any other executive branch officer holding a Senate-confirmed position, or some senior, non-Senate-confirmed officers from the relevant agency, to exercise the functions of the office for no more than 210 days. The two big questions that the FVRA raises but does not answer are whether (1) it overrides all agency-specific succession statutes, such that the FVRA process is always available; and (2) even if it does, whether it applies when the vacancy is created by the president—i.e., when the prior permanent officeholder is fired, rather than dies or resigns.

The former question is hypertechnical. (With regard to the Justice Department, at least, the Office of Legal Counsel has concluded that it can be used in lieu of the more specific DOJ succession statute.) The latter question is much more important—and much less clear. Although the text of the statute could be read to encompass allvacancies (and at least one senator said on the floor that it would apply to firings), there are strong prudential and contextual arguments militating in the other direction—including that the purpose of the FVRA is to give the president flexibility to deal with unexpected vacancies, not to create vacancies himself and then sidestep existing succession schemes. Indeed, if the answer to both questions is “yes,” then the president would have the power not only to create vacancies in every executive branch office, but to fill them on a temporary basis with individuals who were never confirmed by the Senate either to that specific position, or, in some cases, at all. It’s easy to see, then, why the FVRA has loomed large in the repeated rumors over succession at the Department of Justice.

But for all of the focus on the Justice Department, the real flashpoint for the FVRA lately has been the Veterans Affairs Department (with an honorable mention to the Consumer Financial Protection Bureau). In late March, President Trump fired the VA Secretary, David Shulkin, and named a Pentagon undersecretary, Robert Wilkie, to serve as acting secretary under the FVRA. (The VA has its own succession statute, but that statute expressly incorporates other authorities.) Thus, Wilkie raised the big FVRA question: Does it apply when the vacancy is created by the president firing the incumbent? (Veterans’ groups brought a lawsuit arguing that the answer was no.)

Shortly after Shulkin was fired, however, the White House began arguing—loudly—that Shulkin had not been fired, but that instead, he had resigned. The only reason why this could have mattered is the FVRA: If the statute does not apply to vacancies created by the president, then Wilkie could not have been named to serve as acting VA secretary—and any actions he undertook in his capacity as acting VA secretary were subject to legal challenge. Thus, the White House, at least, seemed wary of the second FVRA question. (President Trump also ran into different statutory problemwhen he nominated Rear Adm. Ronny Jackson, the White House doctor, to hold the position on a permanent basis, but that issue was mooted by Jackson’s withdrawal.)

This brings us to the latest VA-based FVRA kerfuffle: Last Friday, President Trump surprised everyone (including the putative acting secretary) by announcing at a public event that he was nominating Wilkie to hold the position of VA secretary on a permanent basis. Small problem: The FVRA expressly prohibits such a move. Although the FVRA allows lots of folks to hold an office on an acting basis, one of the few exceptions is an individual who has not been the “first assistant” to the office for at least 90 days who is then nominated by the president to hold the office permanently. Put another way, Wilkie’s formal nomination, by dint of the FVRA, disqualifies him from continuing to serve as acting secretary. This is not an open question about the FVRA; it’s compelled by the plain text.

Wholly apart from what this whole mess says about how seriously the Trump administration takes the VA (which is to say, not), it also suggests two important, related points about the FVRA: First, the White House is at least outwardly wary of the open question concerning its application in cases in which the vacancy is created by firing. It might therefore be a bit gun-shy about relying on the FVRA in a higher-profile case going forward. Second, the White House (or, at least, the president) doesn’t seem to fully understand the FVRA—as evidenced by the Wilkie mess. Neither of these conclusions is earth-shattering, of course. But both could be important markers for the vacancy fights to come.

This is going to be an ongoing, fast moving story. Expect it to change several times over the next few hours until all the details are nailed down. And then expect that regardless of those actual details, the White House will claim that Rosenstein resigned, so they can just use the Vacancy Act to slide someone already approved by the Senate into the position. They’ve done this several times now – at VA and the Consumer Financial Protection Bureau – to circumvent the rules.

I think it is also important to note that once again the President is trying to fire or force out by pressuring a senior appointee to resign and he can’t bring himself to actually do it. He either has someone else do it, as was the case with Comey and now, potentially, Rosenstein or he does it by passive-aggressive tweet.

Update at 12:15 PM EDT

Here’s what I think happened, someone called up Jonathon Swan at Axios, and leaked that Rosenstein was resigning, in order to create a fait accompli by boxing in the President Swan, like The New York Times‘ reporters on Friday, appears to have been manipulated and used by their sources for those sources’ own interests.

We are off the glass and through the map.

Happy infrastructure week!!!

Open thread.

Personal Security Arrangements

This morning, in the lees of my post about how the Senate GOP majority is likely to misplay their hand in regard to Dr. Christine Blasey Ford*, commenter dimmsdale asked the following question:

Adam, if you know, Id be curious to get an expert’s view of the kind of protection she should have. Thinking the sort of services Gavin DeBecker offers. do I have that right?

I’m generally familiar with DeBecker’s work, but cannot comment on exactly what his firm does as I’ve no first hand experience with it or him. I do hold a personal security and close quarters combatives tactical certification from a training course I took when I was in graduate school back in 1994. I took the course from one of DeBecker’s competitors. Other than working as one of the lead bouncers (coolers) at a large entertainment venue/nightclub for a few years in grad school, I have never actually been employed to do this type of work. I had the opportunity to take the course, decided it would be an interesting adjunct to martial arts training, and the added bonus was that British Special Operations legend Lofty Wiseman was one of the instructors!

Over the summer, I was contacted by one of our readers asking what I recommended for a friend who needed personal security protection due to an ongoing set of legal issues. My sanitized (references to location, person, etc.) recommendations are below as an answer to dimmsdale’s question.

  1.  I’m not sure I still have enough details, so keep that in mind when reading the following.
  2. The first thing your friend’s attorney needs to do is contact the local police and get something documented on the record about: a) the harassment that’s already happened and b) the general concern for your friend’s safety. This may include needing to request a restraining order/order of protection.
  3. If your friend and her attorneys are seriously concerned, then professionals need to be hired. Have the attorneys check to see if they can hire local law enforcement off duty to a) stay with your friend and park their cruisers in her driveway while doing so and b) serve as a personal security detail.
  4. If local law enforcement where you’re at doesn’t do this, then the attorneys need to ask for increased police patrols in her neighborhood and at her place of work.
  5. If local law enforcement where you’re at doesn’t do this, then the attorneys need to hire professionals who work in work in your state. Usually these will be private investigators/private security professionals licensed to work in your states and often these folks are retired law enforcement, military, and/or intelligence personnel. They should be licensed, bonded, and insured. If the latter is not the case, then your friend’s attorney will need to ascertain the liability insurance that will be need to be purchased, and then purchased, in order to legally protect whomever you’ve hired to provide personal security.
  6. If they’re targeting your friend, change her appearance. If she’s got long hair, cut it short. If she’s got short hair, change the style and start letting it grow out or get a good wig. If she’s blonde, die it a dark color. If she’s brunette or has black hair, dye it blonde. If she’s conservative, style it provocatively and die it hot pink, purple, and green. If she likes to dress casual – jeans,  t-shirts, button down shirts, pullovers, – put her in bonnets, sundresses, and sandals. If she likes to wear skirts and dresses, put her in jeans, boots, and button down shirts. If she dresses professionally, dress her casually, if she dresses casually, dress her professionally. Basically make it harder to quickly identifier on the street, in a restaurant or store, or in a crowd. The same suggestions apply to men using appropriate male attire.
  7. Get a dog and put it in her house as an early warning system. And make sure it isn’t unattended outside as pros, or knuckleheads who think they are, will try to bait and either sedate or bait and kill the dog to get it out of the way.
  8. If she doesn’t have it already, order a decent home surveillance camera system and have it installed. Something that uploads to the cloud and streams to her phone and her attorneys’ phones.
  9. If they’ve got a good target on her car, get her a different car with different tags.
  10. If possible, just get her out of town to some place safe where she can be protected. Or relocate her in town. Some place with limited access and clear sight lines with people she can trust. Don’t just stash her at a hotel or B&B.
  11. If you all are this worried about her security, don’t try to DIY this. Have it all done properly and professionally. Have the attorneys document everything they felt had to be done, have her and the attorneys and whichever professionals are hired document anything that might be suspicious or a concern, no matter how slight or coincidental or seemingly explainable.
  12. If she has a firearm: a) ascertain if she actually believes she can use it if she has to, b) ascertain if she’s got the training to do so under stress, c) and then it has to be on her person at all times. Home carry, bathroom carry, shower carry (make sure to protect against rust), on the nightstand when she sleeps, carry outside the home to work, the store, church, etc. Anywhere she can legally have it and carry it would need to be carried. And it has to be on body carry. No purse carry. No trunk or glove box carry. On the body where it can be unlimbered and brought to bear on target quickly and effectively. If she doesn’t really believe she could use it and/or is uncomfortable carrying it everywhere then it either needs to go into a proper safe and stay there for the duration or given to a friend who’s not involved in any of this mess for safekeeping. Otherwise it’ll be taken from her and used against her. Same thing if she’s got a “front closet” shotgun or rifle. It’s either always within arm’s reach when at home or it’s secured in a safe. She can’t be in the bedroom sleeping and the shotgun is in the front hallway closet where she can’t get to it.
  13. If you’re going to hire professionals, defer to their judgement on whether your friend should be armed.

Updated at 11:46 PM EDT

14. Turn off the geolocation on your devices and social media so you can’t be tracked through using your various social media accounts or through your fitness monitoring device.

15. There are two options for what to do about online/social media. Either shut and lock everything down and go completely dark, or lock everything down as much as possible security wise, but continue to use it to give the impression that nothing out of the ordinary is going on.

Also, Anne Laurie sent this along from the ACLU:

If the #MeToo movement had caught on in 1997, the many people coming forward would still have had to worry about getting sued, in addition to the myriad other consequences of challenging their harassers. But because it caught on in 2017, they also have to worry about getting hacked and being subject to mass online attacks, trolling, and other forms of harassment that can unfortunately be the cost of speaking out.

I’m a technologist with the ACLU’s Speech, Privacy, and Technology team, but outside of my day job, I’ve been working for the better part of a decade with people — mostly, but not all, women — who have been targeted online. I’ve also been a sexual-misconduct whistleblower myself, so I know the personal cost of speaking out. People often feel powerless in the face of unknown threats from the internet, but there’s a lot that whistleblowers can do to stay safe while coming forward.

The digital defense tips below are for individuals. They address threats against specific people, not the systemic problem of harassment. There’s an important conversation happening about how institutions — from universities to software platforms to law enforcement — handle online threats. In the meantime, though, these are some concrete things that individuals can do to feel a little safer about speaking out and confronting power.

Much more at the link!

I CANNOT STRESS ENOUGH that you want professionals involved if you are seriously concerned for her safety and well being!!!!! And I can’t stress enough that these discussions should be had with her attorneys and between them and local law enforcement and then whichever professionals are hired.

In the case of Dr. Blasey’s, there are a couple of other items to be considered. The first is that because a lot of the threats that have been made have been made online, and because her email has been hacked and she’s been impersonated online and in social media, her attorney needs to get the local FBI Field Office and the state police/state bureau of investigation involved. The former will also, partially, get around the White House’s refusal to ask the FBI to do a supplementary background check regarding her allegations against Judge Kavanaugh. The second, as I stated in item #11 in the list of suggestions above, is that Dr. Ford, her family, and her attorney should not try to establish their security as a DIY project. Given the political moment we’re living in, this is not the time to wing it. Unfortunately one of the prices of Dr. Blasey’s courage in coming forward is that her life as she and her family know it is now over.


* There was a robust discussion in the comments last night as to whether it is Dr. Blasey, Dr. Ford, or Dr. Blasey Ford. My understanding from the reporting is that she uses Blasey as her professional surname and Ford, which is her married name, as her personal surname. I’m using Dr. Blasey because unless/until it is otherwise reported, this is how she wishes to be professionally known.

The GOP Senate Leadership Is Not Going to Avoid Trapping Themselves In Regard To Dr. Christine Blasey Ford

In the comments to BettyC’s thread about Dr. Christine Blasey Ford’s accusation I made the following statement  (emphasis mine):

And before anyone asks, yes, I too believe her. She had nothing to gain and everything to lose, including her life given the political moment we’re living in, to come forward about this.

The New York Times has reported (emphasis mine):

In the letter to the Judiciary Committee on Tuesday evening, Dr. Blasey’s lawyers said that she has been the target of “vicious harassment and even death threats” since her name was made public on Sunday in an interview published in The Washington Post. Her email has been hacked, she has been impersonated online and she and her family have been forced to relocate out of their home, according to the lawyers, Ms. Banks and her partner, Debra S. Katz.

Josh Marshall highlighted a converging of Republican senatorial talking points, including by Senator Collins.

But I want to note what appears to be clearly a unified strategy among Republican Senators to put the onus on Professor Ford personally and blame her if the hearing doesn’t happen. They’ve unilaterally announced a process and are now arguing that Ford is at fault if she doesn’t agree. Look at the specific wording.

Read these quotes, which clearly come from a pre-arranged agreement.

Mitch McConnell said Ford will have “the opportunity to be heard.”

Sen. Grassley’s spokesperson: “Our staff reached out to Dr. Ford’s lawyer with multiple emails yesterday to schedule a similar call and inform her of the upcoming hearing, where she will have the opportunity to share her story with the Committee. Her lawyer has not yet responded.”

Sens Collins and Cornyn are referring to Ford’s non-response so far.

Sen. Collins: “That’s very puzzling to me…I really hope that she doesn’t pass up that opportunity.”

Sen. Cornyn: “That’s pretty telling, she hasn’t responded to the committee’s normal processes and we don’t know if she’s coming or not but this is her chance. This is her one chance. We hope she does.”

The Lajes’ Protocol IV: The President, the House Permanent Select Committee on Intelligence, and the Politicization of the DOJ

The President has ordered a selective declassification of a very limited amount of information related to one of the FISA warrant applications pertaining to Carter Page, as well as text messages intended to make Comey, McCabe, Strzok, Page, and Ohr look bad.

My professional take on this is that this declassification order is part of a preplanned strategic communication strategy to try to get the news media off of reporting that is not positive for the President, his administration, the GOP majority in both chambers of Congress, the Kavanaugh nomination, and the upcoming midterms. Apparently the Man from Lajes, also known as Congressman Devin Nunes, agrees.

Here’s Congressman Schiff’s, the ranking member on the House Permanent Select Committee on Intelligence, statement on what the President ordered:

What’s interesting is that the DOJ and FBI doesn’t seem to have any idea how to proceed.

David Kris, the former Assistant Attorney General for National Security, had this to say:

Also, from Joyce Vance, a former US Attorney, and Julie Zebrak, formerly of both the Department of Justice and the Department of the Treasury’s Financial Crimes Enforcement Office.

Here’s what I think is going to happen: the selectively unclassified and unredacted material will be released. Like every previous one of these attempts by either the President and/or his allies like Congressman Nunes, it will quickly be picked apart and make them look silly. Even more important, as was the case a couple of weeks ago regarding what Bruce Ohr’s actual work for the DOJ was about, the US intelligence community will selectively leak in order to knock this selective declassification back. And at the end of the day all that will have happened is the President and his allies in Congress like Congressman Nunes will have simply further damaged and weakened the Department of Justice, the FBI, and other parts of the intelligence community in order to protect their own political and/or legal fortunes.

This is a blatant and obvious attempt to try to change the news reporting, but I just don’t think it is going to work. Especially given the track records of the people involved. The Fox News and MAGA on social media crowd will embrace it, Russian bots and trolls will try to amplify it, but there is too much legitimate news breaking right now for this to really break through. The news for the rest of this week is going to be the Kavanaugh nomination meshugas, the trade war, including new competing tariffs, with China, violent, serial criminal activity by Customs and Border Patrol and ICE officers, and the ongoing news regarding the coming mid-term elections.

Stay focused!

If this is what the senior Florida Republicans think is coming, then no amount of chaff is going to distract the news media from the actual targets!

Open thread.


Breaking: Special Counsel Mueller Notifies the Court that LTG (ret) Flynn is Ready for Sentencing

What we’ll be looking for is exactly what LTG (ret) Flynn allocutes to in his sentencing hearing. You’ll notice that even though LTG (ret) Flynn is not running for office, nor are any of the people he worked for and with in the midterms, that the Special Counsel’s Office has requested a sentencing date at the end of November. After the midterm elections.

Open thread!

A Brief Housekeeping Note

Imagine my surprise to get back from the dog park to find eleven comments in moderation. One from a long time commenter who, for some reason known only to WP, got stuck there as happens from time to time to a variety of our regular commenters. And ten from new commenters all either demanding to see all of Professor Ford’s therapy sessions files and notes and/or referring to our own regular commenters who either expressed that they believe her or recounted their own similar experiences in a variety of disgusting ways. And, amazingly, these remarks were not directed to me or Alain or any of the other identifiably male front pagers or commenters in BettyC’s thread, just the women – both front pagers and regular commenters. Now why is that?

Now here’s the housekeeping note: I move comments like these directly into the trash. I then notify Cole about what I did with the details so he can review, and if he decides I’ve acted rashly, reverse the action I took. I get that those of you in the “fuck your feelings” and “we can’t afford to be PC” crowd are, in fact, a bunch of pissant, pissy, whiny, intolerant, small minded snowflakes that believe you’re constantly looked down upon, under constant verbal, political, social, economic, and religious assault, and are history’s only true victims. I only have the following to say to you:


For a bunch of self declared alpha males and females, you’re the whiniest, neediest bunch of people the world has ever seen.

This housekeeping note has been brought to you by my personal manual of etiquette and decorum.

Have a nice night.

Open thread!

I’m Not Really Sure FEMA Is On Top of Things Regarding Hurricane Florence…

Oy vey…

If you haven’t gotten out: LEAVE NOW!!!!

Stay safe!

Open thread.

* Just as a bit of a postscript, but this is classic waste, fraud, and abuse. People should be terminated and some of them should be going to jail over this. I spent a fair amount of time monitoring social media and providing information to military colleagues, including former students, involved in the response to link them up with people well outside the cities that needed water and food and other necessities. FEMA’s malfeasance here completely undercut everything trying to be accomplished by the Joint, Interagency response. That FEMA screwed up this badly making the response that much worse is disgusting.