Norms Watch: Tracking the Erosion of Democratic Traditions (Mar. 31- Apr. 7)

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FOREIGN POLICY AND NATIONAL SECURITY

Trump’s foreign policy was tested this week in response to a chemical attack on civilians in Syria and a missile launch from North Korea. While Secretary of State Rex Tillerson ambiguously responded in a mere twenty-three words to North Korea, Trump held the actions of al-Assad as a consequence of the policies of his predecessor Barack Obama.

 

Trump Responds to Assad’s Chemical Warfare by Blaming Obama

The White House’s slow and strange reaction to the gas attack on civilians in Idlib, Syria on Tuesday “highlighted the vacuum in the Trump administration’s foreign policymaking: the incident was met first by silence, then by criticism of Barack Obama,” writes Julian Borger for The Guardian. Initially, the White House had difficulty even reacting to the event.

When the White House did condemn the acts, blame was directed at Barack Obama. White House Press Secretary Sean Spicer said the attack was reprehensible, adding “These heinous acts are a consequence of the past administration’s weakness and irresolution.” His remarks illustrate another pattern of behavior within the White House, Trump points the finger at others when it suits him, and this week, “the president couldn’t help but take a potshot at his predecessor,” James Hohmann writes for The Washington Post.

Such responses from the White House raise the concern that dangerous actors around the world will see “in Trump a novice and know-nothing,” a prideful president “obsessed with strongman personas,” writes Charles Blow for The New York Times. Our adversaries could test Trump’s resolve, and then it’s “about whether this draft dodger’s ignorance and insecurities could haphazardly plunge our country — and indeed the world — into an armed conflict.”

 

Trump Launches Missile Strike on the Assad Regime

In response to the chemical weapons attack, Trump said on Thursday night the US had carried out a cruise missile attack against Assad regime’s Al Shayrat airbase in Syria after notifying Russian officials of the impending strike. For a discussion on the legality and implications of the strike, which was done without Congressional notification, see more from Just Security’s Marty Lederman and Harold Koh.

 

Tillerson’s Bizarre Statement in Response to North Korean Missile Launch

In the latest of a series of test firings, this week North Korea fired a ballistic missile into the sea off the Korean Peninsula, and Secretary of State Rex Tillerson responded in a total of 23 words. The enigmatic statement said that the US has already “spoken enough about North Korea.” Tillerson, as the country’s chief diplomat, has offered “zero guidance as to what the US response will be,” writes CNN’s Chris Cillizza.  Vagueness in diplomacy matters, because “misunderstandings can cause international incidents — or worse.” As Cillizza asks, will North Korea or China read Tillerson’s response as a provocation, dismissal, or something else entirely?

While it is not unprecedented for a president to appoint a business executive to lead the State Department, the first few months of Tillerson’s tenure, and recent days, suggest he does not fully understand the job, writes Eliot Cohen for The Atlantic. The Secretary of State serves as the “expositor of an administration’s foreign policy,” but Tillerson only seems to minimize public statements and engagement with the press. Cohen added,For a democracy’s foreign policy to succeed it must be understood and argued out. That task the secretary of state has hitherto avoided.”

Kushner’s Trip to Iraq

First reported by the New York Times, Jared Kushner traveled to Iraq this week on the invitation of Gen. Joseph Dunford, the chairman of the Joint Chiefs of Staff. It is the latest reflection of Kushner’s high profile within the White House which has delegated power to a relative “who has no previous government or diplomatic experience.” While the role of chief foreign policy advisor is not normally filled by the president’s son-in-law, Kushner’s trip may not be such a bad idea if this is indeed the role he’s going to play. As Trump’s top advisor on foreign policy, Kushner “needs to travel as broadly as possible,” tweeted Ian Bremmer. On Tuesday, Forbes published an interview from February with the president’s son Eric Trump, who said that “[n]epotism is kind of a factor of life.” It certainly seems to be in the Trump administration.

The visit also raised security concerns from the Pentagon. Senior White House officials confirmed Kushner’s visit to Iraq before he had landed, a breach of protocol, writes The Washington Post. Military officials normally provide information about trips to journalists under the condition that they are not reported until the senior official lands. When reporters heard of the visit and contacted the White House on Sunday night, senior administration officials confirmed the trip, making a mistake on the timeline and believing Kushner was already on the ground.

 

CORRUPTION and CONFLICTS OF INTEREST

Ethics concerns captured headlines this week surrounding the release of the personal financial statements of nearly 200 members of the Trump administration, shedding light on the wealthiest administration in American history. The disclosures highlight the scope and scale of business entanglement across the government, especially sweeping for Jared Kushner and Ivanka Trump, together reportedly holding up to $740 million in assets.

 

The Wealthiest White House in History

On Friday night, Mar. 31, the White House released the personal financial statements of 180 members of the Trump administration, revealing Trump has assembled one “extraordinarily wealthy group of advisers.” The Trump White House is now “considered the wealthiest in United States history.”

The disclosures offer “a hint of how an explosion in spending has expanded the lucrative array of private political work in Washington, enriching even the anti-establishment activists and operatives who sided with Mr. Trump.” Trump staffers’ sources of income read “like an encyclopedia of conservative wealth and influence,” writes The New York Times. Trump’s aides have earned money working for organizations backed by conservatives like the Kochs or Mercers, for Republican campaigns, and for right-leaning media outlets such as Fox News or Breitbart.

 

Trump’s “Ethics Plan” Allows Him to Withdraw Money Whenever He Wants

First reported by ProPublica, previously unreported changes to Trump’s trust, signed on Feb. 10, stipulate that the trust “shall distribute net income or principal to Donald J. Trump at his request” or whenever trustees Donald Jr. and Trump’s longtime attorney Allen Weisselberg “deem appropriate.” Effectively, “Trump can draw money from his more than 400 businesses, at any time, without disclosing it.”

The initial document obtained by ProPublica in January designated Trump as the “exclusive beneficiary” and made no restrictions on withdrawal. It is not immediately clear why Trump has since made the change. The ability to withdraw profits could give the president more details on the finances of his business, and just like anyone else, Trump could just find the extra source of income helpful. Whatever the reason, the line of separation between Trump and his businesses seems thinner and thinner.

 

Ivanka Trump and Jared Kushner Still Profiting from Sprawling Business Empires

The ethics filings also indicate that Ivanka Trump and her husband Jared Kushner “will remain the beneficiaries of a sprawling real estate and investment business still worth as much as $740 million, despite their new government responsibilities,” reported The New York Times. The couple could face an ethical quagmire, or ethical landmines, ahead.

Though the White House announced a plan to avoid conflicts of interest between Mr. Kushner’s business ties and his new government position, ethics experts have maintained the plan is not sufficient. Kushner is keeping parts of his family business, some of which are heavily dependent on “foreign investment from undisclosed sources.” Larry Noble, former general counsel and chief ethics officer for the Federal Election Commission, said while Kushner has removed himself from management, “he is still financially benefiting from how the businesses do.” Noble added, “Given his level in the White House and broad portfolio, it’s hard to see how he will recuse himself from everything that may impact his financial interest.” Meanwhile, Ivanka has kept her stake in the Trump Washington, D.C. hotel, and has retained ownership of her brand-name line of international clothing and accessories.

As federal employees, Kushner and Ivanka are now required to adhere to various ethics and transparency rules, and under federal law, they may not participate in government policy in areas that impact their individual financial holdings. While Kushner and Ivanka have resigned from all positions at their companies, and divested from 58 of the potentially most problematic investments, like the president, they have not ceded ownership. The plan thus places the couple “in danger of running afoul of both constitutional and statutory prohibitions.”

Kushner and Ivanka “have so many potential conflicts of interest that if they abide by ethics laws and past White House practices, they won’t be able to advise the president on three of his top priorities: Trade, tax reform and Wall Street deregulation,” explain Richard Painter, Norman Eisen, and Virginia Canter in an editorial for USA Today. Even more troubling, as assistants to the president, Kushner and Ivanka must be able to quickly advise the president at any time, raising serious questions about how all these recusals can be fully implemented and monitored — and whether they will be.”

 

Kushner Keeps Stake in High-Rise with Shady Business Partners

As revealed by the White House financial disclosures this week, Kushner has retained his stake in Trump Bay Street, a luxury building in Jersey City, New Jersey. Kushner’s family developed the building, and the family pays royalties for the Trump brand-name on the property. The Kushners financed the high-rise through loans obtained via the EB-5 Immigrant Investor Program, a controversial government program offering expedited visas for foreign nationals who will pay a minimum of $500,000 for qualified investments in the US. As Josh Vorhees reports for the Atlantic, the financing for the building began with Nicholas Mastroianni II, a Florida businessman who was profiled by Fortune in 2014 with the headline: “The tangled past of the hottest money-raiser in America’s visa-for-sale program.”

A Tweet from the Georgian Ambassador Shows How Trump’s Hotel Violates the Constitution

A tweet from Ambassador Kaha Imnadze may have inadvertently revealed that Trump is violating the Emoluments Clause of the Constitution. On Thursday morning, the Georgian ambassador sang the hotel’s praises in a “clear example of how foreign governments are using Trump’s hotels to curry favor with his administration,” writes Laurel Raymond for ThinkProgress. Norm Eisen, former ethics adviser under Barack Obama, said there are rumors of “quite a few of these forbidden foreign government payments to Donald Trump that are taking place in secret.”

 

Presidential Marketing for Mar-a-Lago

While it is a longstanding tradition in American politics for a foreign dignitary to visit a presidential home, Mar-a-Lago is not Trump’s personal vacation home, but a profitable piece of his global real estate empire, writes Julie Bykowicz and Terry Spencer for The Associated Press. Trump has chosen to retain ownership of his businesses, a move that breaks with presidential precedent, and which means that he will profit whenever his properties perform well. The resort doubled its membership fee after he was elected, and the resort’s hotel and room reservations fill up fast when Trump is in town. Since assuming office, Trump has also used his 17 trips to his Trump-branded golf courses (two in Florida, one in Virginia) as an opportunity for marketing, and dined on two occasions at his Washington, D.C. hotel.

Even if the president and vice president are exempt from certain federal ethics regulations, there is an overarching principle that any public official should steer away from financial gain from office, said Kathleen Clark, a former ethics lawyer for the District of Columbia and a law professor at Washington University in St. Louis. Clark added that Trump is “a very effective marketer, and he’s using the presidency as though it’s just part of him being famous and doesn’t come with other moral, if not legal, obligations.” When asked during a recent briefing whether Trump was concerned about pushback or criticism from voters on the cost of Trump’s trips, Spicer said, “No, he feels great.”

Billionaire Candidate for Advisory Role in National Security Keeps Ties with Defense Industry

Stephen Feinberg, under consideration for an advisory role in national security, is seeking to keep his $1.6 billion stake in his $30 billion investment firm Cerberus Capital Management, the 17th biggest U.S. Army contractor in 2015. To separate himself from his businesses, one source told Bloomberg that Feinberg would keep the stake but divest it into a trust, and another said he would also step down as CEO.

Nick Schwellenbach, director of investigations at the Project on Government Oversight, which monitors federal spending, said the situation was risky, asking, “How can we be assured that this person who potentially stands to benefit financially from his recommendations and decision making is making decisions that are in the broad public interest?”

 

WHITE HOUSE

As usual, the unfolding Russia investigations continue to embroil the Trump administration.  This week, Michael Flynn was in talks to request immunity as a condition for testifying before the FBI and Congress, a White House staffer gets into some trouble with his tweeting, and the Treasury remains understaffed on the eve of Trump’s ambitious plan for tax overhaul.

 

More Omissions, More Questions from Flynn

Former National Security Advisor Michael Flynn “failed to list payments from Russia-linked entities on the first of two financial disclosure forms released Saturday by the Trump administration,” reports The New York Times. Certainly not the “first disclosure lapse” for Flynn, who was fired after failing to notify White House officials, including Vice President Mike Pence, that he had discussed economic sanctions with the Russian ambassador Sergey Kislyak. The “latest revelation is likely to increase the former national security adviser’s legal woes,” writes Daniel Politi for The Atlantic. As Sen. Lindsey Graham (R-SC) said at a town hall on Saturday, the Flynn story is “getting weirder by the day.”

While the first form signed in February omits a paid speech Flynn delivered in Moscow and other payments from Russian-tied companies, the second form appears to include all the work Flynn has completed since 2014, including the names of the companies he worked with. Flynn’s attorney Robert Kelner explained the discrepancy to POLITICO, He disclosed the speaker bureau arrangement [in January] and when asked to update the form with specific speaking events he did so.”

 

Flynn Requests Immunity Before Speaking to Investigators

First reported by the Wall Street Journal, Flynn has been in talks to request immunity from prosecution from the FBI and congressional intelligence communities in exchange for giving an interview on the Russia investigation.

While a request for immunity is not an admission of wrongdoing and could be sought by witnesses in fear their words could be used against them, the move “could also be a purely prophylactic measure.” According to Flynn’s attorney Robert Kelner, “No reasonable person, who has the benefit of advice from counsel, would submit to questioning in such a highly politicized, witch hunt environment without assurances against unfair prosecution.” The public display of the request may also indicate that Flynn has nothing much to say at all, writes Just Security’s Alex Whiting. If Flynn had valuable information, he would have approached prosecutors quietly to reach a deal, seeking to minimize the risk of compromising the investigation. Interestingly, on the subject of the Clinton campaign, Flynn told NBC’s Meet the Press last September, “When you are given immunity, that means you have probably committed a crime.”

On Sunday, the top Democrat on the House Intelligence committee, Rep. Adam Schiff (D-Calif.) said he treating the immunity deal with “healthy skepticism.” Meanwhile, Trump expressed support for Flynn in the form of a 4:04 a.m. tweet.

 

Nunes Recuses Himself from the Russia Investigation

On Thursday, House Intelligence Committee Chairman Devin Nunes (R-Calif.) announced he would step aside from the investigation into Russian interference into the presidential election, and contacts between members of the Trump campaign team and Russian officials. His recusal came alongside the announcement that the House Ethics Committee will be investigating whether Nunes made unauthorized disclosures of classified information, including whether he violated federal law and the chamber’s rules when he announced at a press conference that intelligence agencies had incidentally collected information about Trump associates.

Trump Accuses Susan Rice of Committing a Crime

In an interview with The New York Times on Wednesday, Trump said he believed the former national security adviser Susan Rice may have committed a crime by unmasking the identities of Trump associates swept up in incidental surveillance by intelligence agencies. According to the paper, “Mr. Trump gave no evidence to support his claim, and current and former intelligence officials from both Republican and Democratic administrations have said they do not believe Ms. Rice’s actions were unusual or unlawful.”

While Rice has been the center of controversy this week surrounding reports that she was responsible for unmasking the identities of Trump associates, she said that requesting the identities of government officials in intelligence reports is sometimes necessary for the job. There is nothing unusual or improper about such requests, an official told CBS News.

Trump Plans Tax Overhaul, but the Treasury is Empty

The next item on Trump’s legislative agenda is tax overhaul, but it appears that the president does not have the personnel installed to make it happen, writes The New York Times. It has been nearly three decades since tax overhaul was successfully attempted, and it was a ten-month endeavor, and certainly “not easy.” Other than the Treasury Secretary Steven Mnuchin, none of the other 27 political appointees have been confirmed to the department. While Trump blames Democrats for delaying the confirmation process, 21 of the 28 political appointee positions have even yet to be nominated. Paul O’Neill, the first Treasury secretary to serve under President George W. Bush, said, “There are no people in the driver’s seat,” adding, “I think it’s really a big problem.”

Tweet from White House Official May Violate the Hatch Act

Ethics experts said that a Saturday tweet from White House social media director Dan Scavino Jr. urging Trump supporters to “defeat” Rep. Justin Amash (R-Mich.) may have violated the Hatch Act, a federal law banning officials from using their positions for political activity.

Richard Painter, ethics adviser under George W. Bush, said that Scavino would have been fired in the Bush White House, stating, “This is use of official position for a partisan election. You can’t avoid it.” The White House defended that the tweet was not in violation of the Act “as it clearly comes from his personal account and not his official White House account.” According to Painter, however, the personal account was “chock full of official stuff” listing his official position, and including a photo inside the White House. By Sunday morning, Scavino had wiped the official references and photo from his profile.

 

 

MEDIA

This week Trump extols Fox News, while continuing to divert media attention toward Hillary Clinton.

 

Trump Tweets about the “Amazing Reporting” at Fox News

While Trump had toned down his personal commentary on the media, since last week and again over the last few days Trump has again taken to Twitter to provide his reviews.

On Friday, Mar. 31, Malia Zimmerman and Adam Housley on Fox News reported on Friday that the U.S. intelligence official providing evidence of the incidental surveillance on Trump is someone “very well known, very high up, very senior in the intelligence world.” On Monday morning, Steve Doocy, host of “Fox and Friends,” began his morning broadcast by highlighting Fox’s “bombshell report about the unmasking of the Trump team,” adding that “what Trump was saying is turning out to be true.”

Trump was clearly appreciative of the efforts, tweeting the first time on Saturday morning about the story, the second time on Monday morning at 3:15 a.m., and the third time again on Monday morning at 5:51 a.m.

Trump is Still Tweeting about Hillary

Meanwhile, Trump continues the hunt for Hillary this week, even quipping about a presidential debate. As Nolan McCaskill writes for POLITICO, it’s zero tweets for Neil Gorsuch, and two for Hillary Clinton on the day that the Senate Judiciary Committee advanced Trump’s nominee for Supreme Court.

Image: U.S. Navy 

About the Author(s)

Katerina Wright

Former NYU Law Center for Human Rights and Global Justice Student Human Rights Scholar with Just Security