Show sidebar

Norms Watch: Tracking the Erosion of Democratic Traditions (Feb. 10-17)

FOREIGN POLICY AND NATIONAL SECURITY

Trump’s dysfunctional national security apparatus is in turmoil this week, following the resignation of National Security Adviser Michael Flynn, and Trump’s discussion of sensitive security matters in the Mar-a-Lago public dining room.  

Flynn’s Resignation

On Monday night, Trump’s National Security Adviser Michael Flynn resigned after revelations that Flynn had misled Vice President Mike Pence about his inappropriate contacts with Russia. Flynn stated he had “inadvertently briefed the vice president-elect and others with incomplete information regarding my phone calls with the Russian ambassador.” Even aside from the significant national security concerns and legal implications of the calls, Flynn’s policy discussions before Trump had assumed office breached longstanding protocol, as “the norm has been for the president-elect’s team to respect the sitting president.”

Over the last few days, Flynn’s resignation has fully embroiled the Trump administration in crisis. The murky circumstances surrounding the resignation are raising new and important questions, such as why Pence was left in the dark, who told Flynn to contact Russia, and what did the contacts imply more broadly about White House relations with the Russian government.

On Thursday, Kremlin spokesman Dmitri Peskov denied that senior Russian intelligence officials had repeated contacts with members of the Trump campaign team and other members of his inner circle. The messages from Moscow, however, have been inconsistent. Last Friday, Peskov denied that Flynn discussed sanctions with Sergey Kislyak, Russian ambassador to the U.S., at odds with Flynn’s admission on Monday.

According to the Washington Post, officials in the administration emphasized that Flynn’s resignation was driven by internal White House dynamics. White House Press Secretary Sean Spicer said that Flynn resigned as a “matter of trust,” because he had mislead Pence and others in the administration, not because of any implications of relations with Russia. Spicer also stated that Trump had known about the concern around Flynn’s lies for two weeks, and stressed on Tuesday that there was “nothing wrong” with Flynn’s actions.

During an extraordinary press conference on Thursday, Trump explained that when he looked at the information on Flynn, “I said, I don’t think he did anything wrong. In fact, I think he did something right.” Flynn, however, may now be in legal jeopardy, wrote the Washington Post on Thursday night. Current and former government officials told the paper that Flynn lied to FBI agents during an interview on Jan. 24, where he claimed not to have discussed American sanctions against Russia with the Kremlin’s ambassador before Trump had assumed office, a claim disproved by the transcripts of his communications intercepted by US intelligence agencies investigating the matter. Law enforcement officials told CNN on Thursday evening that the FBI would likely not be pursuing any charges against Flynn, although lying to the FBI is a felony. Officials stated that they didn’t believe Flynn was purposefully misleading them.

Investigation into Flynn’s Russian Connections

Proposals for further investigation into Flynn’s contacts proved to be divisive in Congress this week. The Senate Judiciary Committee has requested more details from the Justice Department on Flynn’s resignation, reported The Hill, while the Senate Intelligence Committee is also moving ahead in its investigation on Russian interference in the election and leaks this week.

Yet on Tuesday, Rep. Jason Chaffetz (R-Ut.), chairman of the House Oversight Committee, said his panel would not be leading an investigation on the resignation, saying “I think the situation has taken care of itself.” Chaffetz added that the House Intelligence Committee, already looking into the issue of Russian hacking, was charged with handling issues of intelligence matters. Even after Democrats blasted Chaffetz for his decision, the Utah Republican on Wednesday night called on the Justice Department’s inspector general to investigate the intelligence leaks leading to Flynn’s resignation instead of the former National Security Advisor’s contact with Russian officials.

House Intelligence Chairman Rep. Devin Nunes (R-Calif.), also dismissed calls for a new probe investigating reports of contacts between Russia and Trump campaign staffers in an interview with POLITICO on Wednesday morning. Several republicans expressed vocal opposition to further investigation of Flynn’s conduct, including Sen. Rand Paul (R-Ky.) who said, “I just don’t think it’s useful to be doing investigation after investigation, particularly of your own party.”

Trump’s Choice to Replace Flynn Turns the Offer Down

On Thursday night, Ret. Vice Adm. Bob Harward declined Trump’s offer to replace Flynn as national security adviser.  According to the Washington Post, some sources said Harward was unable to get a confirmation from Trump that he could select his own team, and others said he was motivated by family considerations. CNN reported that a friend of Harward said he felt the White House was just too chaotic.

National Insecurity in the Trump Administration

When it comes to the problems of the National Security Council, the Flynn resignation is “just the tip of the iceberg” writes Foreign Policy’s David Rothkopf.

The New York Times described the paper flow of executive orders as unpredictable, reporting that a senior Pentagon official had first seen a draft executive order on prisoner treatment through media leaks and rumors. NSC staffers have reportedly been instructed to keep briefing documents to one-page memos with pictures and charts, and staffers must adapt to the volatile policy momentum from Trump’s early morning tweets. While traditionally senior directors of the NSC attend presidential phone calls in the Oval Office with foreign leaders, staffers have not been invited in by Trump. The NSC has had difficulty hiring qualified staffers, and Flynn’s resignation and likely departure of K.T. McFarland only reinforce gaps in the workforce.

Trump Coordinates Response to North Korean Missile Testing from a Public Mar-a-Lago Dining Room

On Saturday night, President Trump and his aides coordinated a response to the North Korean ballistic missile test in the public dining room at the Trump Organization’s Mar-a-Lago resort. According to the New York Times, Trump’s conduct was “a remarkable public display of presidential activity that is almost always conducted in highly secure settings.” The media depicted the chaotic scene with images of aides using cell phones to help Trump and Japanese Prime Minister Shinzo Abe read the documents in the dim lighting of the patio, as waiters continued to serve the salads and main course until Trump and Abe later left the dining room. Club members, with front seats to an emerging national security crisis, posted photos of the entire event on Facebook.

On Tuesday, White House Press Secretary Sean Spicer said that there had been no discussion of classified material during the dinner, adding that Trump had been briefed before and after the dinner in a secure location. Chairman of the House Oversight Committee Jason Chaffetz (R-Ut.), however, found Spicer’s comments to be of little reassurance, remarking that documents and discussions around international missile tests “are presumptively sensitive.” On Tuesday, Chaffetz wrote a letter to White House Chief of Staff Reince Priebus, demanding details on what documents had been viewed in the presence of other diners and employees of the resort, and asking for information on the vetting process of guests to ensure that there were no foreign agents in attendance.  Chaffetz also referenced the Mar-a-Lago guest who posted a picture with the U.S. official charged with carrying the nuclear “football,” a briefcase that enables the president to authorize a nuclear attack.

Earlier on Saturday before the incident, Trump had nonchalantly referred to the upcoming evening as a “working dinner.”

 

MEDIA

This week, Trump used the media and leaks from the intelligence community as scapegoats for Flynn’s downfall rather than the former general’s inappropriate contact with Russia. Meanwhile, journalists consider whether the Trump administration’s actions are always truly “unprecedented.”

Leaks, Leaks, Leaks

The morning after Flynn’s resignation, Trump attempted to divert attention away from the substance of Flynn’s calls by instead focusing on leaks from within the government, posting on Twitter early on Tuesday:

While Trump apparently loved leaks in the time of Clinton’s email scandal, his views have since changed, writes the New York Times. A story run by the paper last Friday reported that some Trump staffers had already been using encrypted communications after hearing that Trump’s team was considering a program to monitor cell phones and emails. Leaks are clearly troubling Trump, as he tweeted a series of angry ramblings between the hours of 3am and 6am on Wednesday morning:

Speaking on Wednesday at a bilateral press conference with Israeli Prime Minister Benjamin Netanyahu, Trump blamed Flynn’s downfall on the “fake media,” stating: “Michael Flynn, General Flynn is a wonderful man. I think he has been treated very, very unfairly by the media, as I call it, the fake media in many cases. And I think it’s really a sad thing that he was treated so badly.” CNN’s Jake Tapper responded to Trump, “The media, of course, did not fire Gen. Flynn. President Trump did. What the media did do, was reveal to the nation that Gen. Flynn had lied to the country and to the Trump team.”

Trump also emphasized how the information on Flynn was released to the public, referencing “the documents and papers that were illegally — I stress that — illegally leaked. Very, very unfair.” Laura R. Handman, a lawyer representing media outlets on First Amendment issues, told the New York Times that Trump’s concern for disclosure is not unusual, stating that a disdain for leaks is “pretty much a constant in the Oval Office.”

The sheer volume of leaks, however, is unusual. Fran Townsend, CBS News senior national security analyst and former Homeland Security Adviser under President George W. Bush, said the amount of information being leaked is “stunning.”

Trump’s Thursday Press Conference: “I Inherited a Mess”

On Thursday, Trump held an impromptu press conference to announce his new pick for labor secretary, Alexander Acosta, capitalizing on the opportunity to yet again lambast the media, defend his administration, and brag about his electoral victory. Trump said his administration was “running like a fine-tuned machine,” and blamed White House challenges on his predecessors, saying, “To be honest, I inherited a mess, a mess, at home and abroad, a mess.” Just Security’s Kate Brannen compiled a list of all of Trump’s Russia denials during the conference.

According to the New York Times, Thursday’s press conference “was marked by an extraordinarily raw and angry defense the likes of which has never been seen in a modern White House.” Visibility irritated, Trump said the “dishonest” press was “out of control.” Trump’s lengthy attack on the press prompted criticism from even Trump’s preferred media outlets, as Fox News anchor Shepard Smith demanded answers from Trump, and not “ridiculous throwaway lines.”

The New York Times has posted the full video and transcript here.

Trump Stacks “Real News” in the Briefing Room

The Trump team’s invitation to Gateway Pundit—a conservative outlet with a reputation “for reporting obvious hoaxes as legitimate news”—to join the official White House press briefings reflects the latest efforts from the administration to “drain the swamp” and bring in outlets more favorable to the Trump agenda. Trump has come under criticism again this week from media outlets, including POLITICO and The Hill, who are calling out Trump for taking questions only from conservative-leaning outlets.

Responsive Norm: MSNBC Host Will No Longer Interview Conway

Stating that Trump senior aide Kellyanne Conway is no longer credible, MSNBC host Mika Brzezinski said she would no longer be interviewing Conway on her show. Brzezinski stated, “I don’t believe in fake news or information that is not true.” While not a norms violation, it is highly unusual to see a cable news network reject a sitting government official from speaking on network programming. Earlier this week, Fox conservative commentator Bill O’Reilly called for more disciplined messaging from Trump staff on television, adding, “It seems every time someone from the Trump administration goes on television, there’s controversy.”

Responsive Norm: Leaks Informing Government

Trevor Timm, writing for the Columbia Journalism Review, argues that “leaks to the press are vital for democracy.” Yet in the Trump administration, he adds, leaks are not only “allowing the public to put pressure on the government to pull back awful policies, but it’s even informing other people within the Trump administration.” Former Rep. Joe Scarborough (R-Fl.), now host of the MSNBC program Morning Joe, praised the Flynn leaks, and said, “the only reason we’re finding out about it now is because a patriot did leak this to the Washington Post, did get this information out there, or else we wouldn’t have even known about it.”

Responsive Norm: Really Unprecedented?

This week, journalists are evaluating claims of “unprecedented” actions taken by the Trump administration. Writing that Trump’s attack on a federal judge was hardly unprecedented in American history, Salena Zito cautioned that “Americans … would be better served if the reporting of and reaction to such moments enabled them to understand what is and isn’t unprecedented and how that fits into our system of governance.” Daniel Drezner at the Washington Post responded that while Trump critics can be too quick to declare Trump’s actions as the first in history, he warned that even if there is precedent, “[p]rior bad actions by past presidents do not exculpate Trump’s words or deeds.”

 

AGENCIES

This week, Trump reinvigorated tensions between the intelligence community and the White House. As another one of Trump’s cabinet appointees withdrew his nomination, the administration is still struggling to fill critical positions in government.

Trump Plans Review of Intelligence Agencies

Reported late Wednesday night, Trump is planning a broad review of intelligence agencies led by Stephen A. Feinberg, a government outsider and co-founder of Cerberus Capital Management. According to the New York Times, just the prospect of Feinberg leading a review is raising concerns, as members of the community fear that the effort could “curtail their independence and reduce the flow of information that contradicts the president’s worldview.” The planned review, in conjunction with recent statements from Trump blaming Fynn’s downfall on illegal leaks from intelligence agencies, is reigniting Trump’s long-standing feud with intelligence agencies.

On Thursday, Trump told reporters, “We’re going to find the leakers and they’re going to have to pay a big price.” Former Director of National Intelligence James Clapper cautioned against an investigation that could be “destructive” to the intelligence community.

Is The Intelligence Community Keeping Information from Trump?

According to the Wall Street Journal, intelligence officials are withholding sensitive information from Trump, underscoring the “deep mistrust” between the White House and the intelligence community. The Office of the Director of National Intelligence denied the accusation, stating, “Any suggestion that the U.S. intelligence community is withholding information and not providing the best possible intelligence to the president and his national security team is not true.”

Trump Team Skips Pre-Checks for Officials and Cabinet Nominees

Last Friday, the New York Times reported that the Trump team broke with the practice of recent Democratic and Republican administrations to pre-screen and grill nominees before FBI background checks and before financial disclosure paperwork is submitted to the Office of Government Ethics. The Trump administration did not ask White House officials and cabinet nominees to complete the “sex, drugs, and rock’n’roll” questionnaire used by the last two administrations to both prepare candidates and to protect the president. According to the paper, the Trump administration has now hired an ethics compliance team, and is circulating a new, “slimmed-down” version of the questionnaire.

Trump’s list of nominees, however, continues to pose problems. On Wednesday, Trump’s candidate for Labor Secretary Andrew Puzder, a fast-food executive, withdrew his nomination, representing “the latest defeat for a White House besieged by infighting and struggling for traction even with a Republican-controlled Congress,” writes the New York Times. Puzder’s resignation comes at a tumultuous time for the Trump team, just two days after Flynn’s resignation, a week after Trump’s nominee for Secretary of the Army Vincent Viola resigned, and a week after Education Secretary Betsy DeVos was approved by a tie-breaking vote. There are also concerns that Trump’s pick for Budget director Rep. Mick Mulvaney (R-S.C.) didn’t pay taxes on a nanny, and Steven Mnuchin, nominee for Treasury secretary, did not fully disclose information about financial holdings, adds the New York Times.

Tillerson’s Low Profile

The new Secretary of State Rex Tillerson has been keeping a low profile, reports the New York Times. Tillerson did not attend three critical meetings in Washington this week, missing sessions with Russia’s ambassador, the Canadian prime minister, and the Israeli prime minister. According to the article, Tillerson has traveled without the “customary scrum of reporters,” has hardly made any public statements, and has yet to host a news conference. Since Tillerson’s confirmation two weeks ago, the State Department has not held its customary daily briefing.

Open Applications to be a Presidential Appointees in the Trump Administration

Looking for a job in Washington? The administration is facing a “larger-than-usual hole in the experience bureaucracy” and looking to hire. While Trump’s online job postings have been the subject of discussion since November, on Tuesday, a new posting appeared on the D.C. job site District Daybook advertising open applications for “Presidential Appointees for President Donald Trump Administration.” The advert states that the President is making appointments for positions which both do and do not require Senate confirmation.

Of note, the posting also stated: “Consideration is taken for possible conflicts of interest. Financial holdings and sources of income must be disclosed. Any conflicts must be remedied by divestiture, the creation of special trusts, and other actions.” Looks like Trump, who has refused to fully divest from his own businesses, seems to be issuing orders of do what I say, not what I do.

 

CHECKS AND BALANCES

This week, Trump aide Stephen Miller rejected the notion of legislative supremacy, deepening concerns about the administration’s views of the judiciary.

Miller says Judiciary is Taking Too Much Power

Senior Trump policy aide Stephen Miller made the rounds on the Sunday talk shows this weekend. On Fox News Sunday, Miller defended Trump’s authority to issue executive actions, stating the “President’s powers here are beyond question.” While speaking to John Dickerson on CBS’s “Face the Nation,” Miller said, “I think it’s been an important reminder to all Americans that we have a judiciary that has taken far too much power and become in many cases a supreme branch of government.” He added, “One unelected judge in Seattle cannot make laws for the entire country.”

Speaking on CBS’s Meet the Press, Miller stated:

I also want to be clear we’ve heard a lot of talk about how all the branches of government are equal. That’s the point. They are equal. There’s no such thing as judicial supremacy. What the judges did, both at the ninth and at the district level was to take power for themselves that belongs squarely in the hands of the president of the United States.

Eleven constitutional law experts reacted to Miller’s rejection of judicial supremacy in an article compiled by Just Security’s Ryan Goodman. For excerpts of Miller’s interviews on Sunday, see here. Meanwhile, Trump commended Miller, apparently pleased with his representation.

 

THE WHITE HOUSE

As chaos unfolded in Washington this week, lies, infighting, and confusion spread from and within the White House.

Infighting within the White House

Reports of distrust and infighting within the White House captured headlines this week. According to POLITICO, Trump has complained aloud about his press secretary Sean Spicer, and chief of staff Reince Priebus, to friends and allies. On Monday, Trump’s friend Christopher Ruddy, CEO of Newsmax Media, told CNN that Priebus “clearly doesn’t know how the federal agencies work.” As “a strikingly frank public assessment of one of Trump’s top staffers by a close friend,” Ruddy’s critique illustrates some of the finger-pointing among Trump’s allies. The “incessant reports of infighting among Trump’s aides” only continued as the week went on, with Pence’s position next coming under scrutiny given that he was not briefed on Flynn’s contacts with Russia until after the media reported the story.

On Wednesday, Priebus and chief strategist Steve Bannon furiously denied that there was any tension between them, insisting they work closely together. According to The Hill, Trump staffers were particularly angry with a story published on Tuesday by Breitbart News, the conservative outlet formerly run by Bannon, blaming Priebus for White House disorder. Bannon told The Hill that “Reince is doing an amazing job.”

Miller Continues to Push Debunked Voter Fraud Claim

Speaking on Sunday with ABC’s George Stephanopoulos on “This Week,” senior policy adviser Stephen Miller continued to push Trump’s baseless claim that Trump lost New Hampshire because “thousands” of people were bused in from Massachusetts to vote there illegally. When pressed for evidence by Stephanopoulos, Miller said it was a fact that there are massive numbers of non-citizens registered to vote, adding he was “prepared to go on any show, anywhere, any time, and repeat it and say the President of the United States is correct, 100%.” As the claim has been widely debunked, Miller’s statements only provide evidence of an administration continuing to push falsehoods.

Trump Refers to Warren as “Pocahontas”

Sources told CNN on Sunday night that Trump told senators in a closed-door meeting, “Pocahontas is now the face of your party,” in reference to Sen. Elizabeth Warren (D-Mass.). Pocahontas is “his insult of choice” for Warren, writes CNN. Trump began calling Warren “Pocahontas” already this summer during the campaign. In response, Sen. Al Franken (D-Minn.) said the nickname was “unacceptable” and “racist.”

Responsive Norm: Twitter Warfare

On Friday, CNN reported that “Twitter trolling Trump is also becoming a must for ambitious Democrats on Capitol Hill.” The article drew attention to prominent politicians such as Hillary Clinton, Sen. Cory Booker (D-NJ.) and Sen. Chris Murphy (D-Conn.) who have stepped up their Twitter game. Interestingly, NPR reported on Tuesday that Trump’s tweeting, and the responsive Twitter backlash, has not had a significant impact to Twitter’s bottom-line.

FLOTUS Breaks Protocol by Not Showing Around Abe’s wife

When Japanese Prime Minister Shinzo Abe and his wife Akie visited the capital last week, Mrs. Abe made a number of pre-scheduled stops without first lady Melania Trump. Melania appeared to break with tradition, as the first lady customarily plays the role of tour guide and hostess, accompanying the spouse to various landmarks in Washington. A statement from the office of the first lady explained that Melania “was informed that Mrs. Abe had previous commitments during her stay in DC.”

 

LAW, ETHICS, AND TRUMP’S BUSINESSES

This week, the Trump Organization expands its footprint in the Dominican Republic and China, testing Trump’s own pledge against any new foreign deals while in office.

Business as Usual for the Trump Organization, Pursuing Foreign Deals

Reported by NPR on Tuesday, while Trump’s lawyer Sheri Dillon pledged in January that no foreign deals would be made during the Trump presidency, “the buck seems to have stopped here.”

Late last week, stories broke that the Trump Organization is pursuing a licensing deal for a beachfront resort in the Dominican Republic.  The Trump Organization’s general counsel defends that the project is not a “new” deal, as the original agreement was signed in 2007, though has been stalled for years amidst the financial crisis and “a later dispute over Trump’s fees.” The deal was nonetheless surprising to many, surfacing “unexpectedly” from published photos of Eric Trump visiting the property in the Dominican Republic. According to NPR, the Trump Organization is also seeking to “expand a golf course and hotel in Scotland.”

Meanwhile, deals initiated before Trump’s inauguration continue ahead. On Saturday, the Trump Organization will open its newest branded property—a golf course in Dubai, and next week, a new Trump International Hotel and Tower will be opening in Vancouver. Even beyond foreign deals, domestic players could be seeking special White House favors, and with any of the company’s expansions “comes the persistent thrum of ethical qualm,” writes the New York Times.

Trump Seeks Valuable Trademark Rights in China

Reported on Tuesday by the Associated Press, after battling the Chinese court system for decades, Trump is likely to hear a decision this week on his claims to the Trump trademark for building services in China. According to the AP, ethics lawyers say the trademarks raise red flags, posing a conflicts of interest concern and potential violation of the emoluments clause of the Constitution. Norman Eisen, chief ethics lawyer for Obama, said that Trump’s acceptance of the registration of the property rights as a sitting president was a “terrible idea,” and said it was “fair to conclude that this is an effort to influence Mr. Trump that is relatively inexpensive for the Chinese, potentially very valuable to him, but it could be very costly for the United States.” Richard Painter, ethics lawyer under George W. Bush, echoed these concerns, stating foreign governments could expect favors in return under these types of “highly improper” arrangements.

OGE Recommends Disciplinary Measures against Conway

On Tuesday, Walter Schaub, the director of Office of Government Ethics, wrote a letter to White House legal counselor Stefan Passantino recommending disciplinary actions against Trump aide Kellyanne Conway, who last week while speaking from the White House urged Americans to buy Ivanka Trump’s products. The letter stated, “Under the present circumstances, there is strong reason to believe that Ms. Conway has violated the Standards of Conduct Act and that disciplinary action is warranted.” Schaub requested that the White House respond by Feb. 28.

House Ways and Means Committee Rejects Plans to Request Trump’s Tax Returns

Voting on party lines, the House Ways and Means Committee on Tuesday rejected requests from Democrats asking for Trump’s tax returns. Under federal tax law, the chairman of the Ways and Means Committee can request tax returns, reports The Hill. Democrats requested Trump’s tax returns to address the president’s potential conflicts of interests, and in the interest of national security in light of Flynn’s resignation.

Image: Win McNamee/Getty

Tags: ,


About the Author

is the NYU Law Center for Human Rights and Global Justice Student Human Rights Scholar with Just Security.