This Is a Constitutional Crisis

Today in Our Terrible, Horrible, No Good, Very Bad Constitutional Crisis, in three parts:

One. Heidi Przybyla at NBC News: Senator Tim Kaine Demands Release of Secret Trump War Powers Memo.
Democratic Sen. Tim Kaine is demanding the release of a secret memo outlining [Donald] Trump's interpretation of his legal authority to wage war.

Kaine, a member of the Armed Services and Foreign Relations Committees, sent a letter Thursday night to Secretary of State Rex Tillerson seeking a 7-page memo the administration has kept under wraps for months.

Kaine has been leading the charge for Trump to outline his legal rationale for a U.S. bombing campaign in Syria last April in response President Bashar al-Assad's chemical attacks on civilians in that country. The Virginia Senator and others worry that such action compromises congressional oversight over military action.

There is a new urgency to obtain the memo given increasing U.S. involvement in Syria and recent Trump administration rhetoric on North Korea. Shortly after the 2017 bombing raid, several members of Congress called on Trump to justify it under U.S. and international law. Article I of the U.S. Constitution gives Congress the power to declare war.

"The fact that there is a lengthy memo with a more detailed legal justification that has not been shared with Congress, or the American public, is unacceptable,” Kaine said in the letter to Tillerson, obtained by NBC News.

"I am also concerned that this legal justification may now become precedent for additional executive unilateral military action, including this week's U.S. airstrikes in Syria against pro-Assad forces or even an extremely risky 'bloody nose' strike against North Korea," wrote Kaine.

...Kaine's bid for more disclosure is part of a broader controversy over how legislation passed shortly after the Sept. 11, 2001 attacks is being used for an open-ended battle against Islamic terrorist groups, including ISIS, that are not covered under the current version of what's called an AUMF, or authorization to use military force.
Kaine, like any sensible citizen of the United States, is concerned that Trump is not only distressingly inclined to start a war, but that he will start one without the consent or oversight of Congress. Because that's what Trump has repeatedly indicated he would do, like the dictator he clearly seeks to be.

Two. Walter Schaub at the LA Times: Trump's Ethics Office Has Blessed an Unethical Legal Defense Fund for the President's Associates.
Under cover of last week's feverish reaction to the FBI memorandum released by Rep. Devin Nunes, the Office of Government Ethics quietly dumped documents revealing a new low point in the agency's 40-year history. In a letter signed Jan. 29th, but withheld from public view until the memo frenzy was peaking, the agency's Trump-appointed acting director, David Apol, blessed a shockingly permissive arrangement for funneling cash to White House appointees and others linked to Trump.

The fund, which will reimburse legal fees stemming from the Russia investigations, represents a radical and dangerous departure from established practice for government-employee legal defense funds. It's formulated under, of all things, an IRS designation for political organizations. Even its name, the Patriot Legal Expense Fund Trust, echoes the tribal politics of our time. The name may suggest something more sinister still, that the cash is for "patriots" loyal to the president.

...Despite its name, it is set up not as a trust but as a limited liability company — an LLC — and its funds can go to any of the White House staffers, campaign workers or other Trump associates who get caught up in the Russia investigations. The fund's charter is largely silent as to the selection process except to grant absolute power to the fund manager, who alone passes judgment on who is worthy or unworthy of support.

...The manager isn't required to individually screen each donor to check for ethical conflicts. Instead, the Patriot Fund relies mainly on an honor system. Donors complete online forms to self-certify that their gifts comply with the rules.

...According to the charter, the Patriot Fund won't strictly refuse money from prohibited sources. Instead, it allows the manager to track bad and good donations separately. Money from prohibited sources would count only toward distributions to recipients outside the government, who aren't subject to federal ethics rules. This is a shell game. For legal purposes, any bad money taints the whole fund because money is fungible: Every dollar the fund accepts from a questionable source and pays to a nongovernmental beneficiary frees up a dollar for those who do work for the government. All the book-cooking in the world can't remove the taint.

Finally, the charter includes a provision authorizing distributions from the Patriot Fund to Trump's reelection campaign. This is unprecedented in my experience — legal defense funds are not also campaign fundraising tools. And depending on the tax status of the Patriot Fund LLC — whether it is a partnership or a corporation — distinct election law rules either prohibit or limit direct campaign contributions. How exactly the fund will reconcile itself with these laws is a mystery.
Schaub, who resigned as Director of the Office of Government Ethics early in Trump's presidency, ends the piece by lamenting: "Acting Director Apol's decision to bless the bizarre charter of the Patriot Fund is a heartbreaking breach of applicable laws and the executive branch's ethical norms."

Trump has consistently demonstrated contempt for the law, and this is no exception. But it is quite a notable exception, in that the Orwellian-named Patriot Fund is being established in a way that tacitly allows money from foreign governments to be used to defend the president and his pals against charges that they received material support from foreign governments.

The Patriot Fund is quite literally a way for foreign conspirators to fund the defense of traitors.

In the White House.

Three. Josh Dawsey, Matt Zapotosky, Devlin Barrett, and Ellen Nakashima at the Washington Post: Dozens at White House Lack Permanent Security Clearances.
Dozens of White House employees are awaiting permanent security clearances and have been working for months with temporary approvals to handle sensitive information while the FBI continues to probe their backgrounds, according to U.S. officials.

People familiar with the security-clearance process said one of those White House officials with an interim approval is Jared Kushner — the president's son-in-law and one of his most influential advisers.

The issue of clearances has become a major area of concern since White House staff secretary Rob Porter resigned after allegations surfaced that he had been violent toward his two ex-wives — accusations he has denied.

...Kushner's situation has drawn intense scrutiny, in part because his conduct is under investigation as part of the probe into possible Russian coordination with Trump associates and because he has repeatedly amended disclosure forms to add new information.

It is unusual for senior White House personnel to wait more than three months for a permanent top secret/sensitive compartmented information clearance though it has happened, said a former senior White House official in the Obama administration familiar with the process.

One senior official in the Obama administration had to wait two years for a variety of reasons, the former official said, but that was a rare case.

"If you're on the speed track, it can be a matter of four to six weeks," he said.

...Law enforcement officials say the biggest red flags in clearance reviews tend to be when investigators catch a person lying — either on disclosure forms or in face-to-face interviews with agents.
Dozens of members of this administration, including one of the president's chief advisors, still don't have security clearance after more than a year, and they aren't honest enough to get that clearance, but the White House has nonetheless decided to trust them with the highest levels of classified information, even when they are under investigation for foreign collusion, and why not since the president himself is under investigation for foreign collusion, too.

Nothing matters anymore. Not ethics rules, not the law, not national loyalty, not the separation of powers, and certainly not the Constitution.

Not to the United States president, anyway.

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