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Border Security Bill: Debate Furies Over U.S. Presidential “Emergency Powers”

Well it's clear one side is losing and that's the American public, and particularly the hundreds of thousands of federal workers who are not being paid or who are not going to work. In terms of the political actors, you know, the polling that we have suggests that most Americans blame President Trump for the shutdown.

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A U.S. Border Patrol agent rides a vehicle on the beach in San Diego, Jan. 9, 2019, seen through the border wall from Tijuana, Mexico. VOA

U.S. President Donald Trump will sign a border security bill, averting a government shutdown on Friday, but plans to formally declare the southern U.S. border a “national emergency,” Senate Majority Leader Mitch McConnell said Thursday.

The declaration would clear the way for Trump to authorize new funding for a permanent physical barrier. The move would end contentious negotiations with Congress over funding for the wall, but some legal analysts worry it will set a dangerous precedent for presidents trying to negotiate with Congress.

In January, during a 35-day partial government shutdown caused by a dispute over border wall funding, VOA spoke with John Hudak, deputy director of the Center for Effective Public Management at The Brooking Institute, about the legal issues around a possible emergency declaration by the president.

QUESTION: What powers does a president have to declare a national emergency? Could he simply order government funds to be used to build a border wall?

So there are really two questions here. First, under the national emergencies act, the president has a fairly broad power to declare a national emergency. Now the declaration of that emergency is simply that — a declaration. And according to a pretty firm reading of that law, it’s hard to see where there is an exception to the president’s ability to do it.

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In terms of the political actors, you know, the polling that we have suggests that most Americans blame President Trump for the shutdown. Pixabay

The next part of that, though, involves the powers that the president can exercise under that law and there are obvious limitations on that, constitutional limitations and other limitations within the law that the president can’t violate. And unfortunately, or perhaps fortunately, we haven’t experienced serious questions about presidential power in this space. So it’s really left as an open question right now, in terms of the extent of presidential power that courts will need to sort out.

Q: Could Democrats block this in Congress? Is there any constitutional precedent for presidents simply going around Congress to fund a priority policy item?

So there is, within the law, the ability of Congress to stop a national emergency. It requires both houses of Congress to vote to say that the national emergency is over. Now democrats can certainly do that alone, in the House. They cannot, however, do it alone in the Senate, it would require several Republican votes.

However, this is the type of exercise of executive power that leaves a lot of Republicans uneasy. And you’re already starting to see those conversations among Senate Republicans, saying that if we’re all right with President Trump doing this over a border wall, would we also be all right with a Democratic president doing this over climate change or other issues?

And so I think it remains to be seen whether Congress will have the votes to stop presidential action in this area, whether they’ll have the political will to do it. But they certainly have the power to stop this type of behavior.

To the second part of your question, you know, presidents have tried to go around Congress in terms of spending money in the past or even moving money around within or across budget lines or accounts in the past.

And frequently presidents are stopped because the spending power in the constitution rests with the Congress and so this creates a real challenge for President Trump if he wants to start moving funds or re-appropriating funds or using funds that are not even appropriated, pushing up against that constitutional protection against that power. So he might have the power to declare a national emergency, but he cannot usurp the Constitution in the exercise of powers during that emergency.

The entrance to the Smithsonian's National Gallery of Art is padlocked as a partial government shutdown continues, in Washington, U.S., Jan. 7, 2019.
The entrance to the Smithsonian’s National Gallery of Art is padlocked as a partial government shutdown continues, in Washington, U.S., Jan. 7, 2019. VOA

Q: On the politics of the current shutdown, is one side or the other winning? Which sides appears to have an advantage at the moment? How does it end?

Well it’s clear one side is losing and that’s the American public, and particularly the hundreds of thousands of federal workers who are not being paid or who are not going to work. In terms of the political actors, you know, the polling that we have suggests that most Americans blame President Trump for the shutdown.

Also Read: Is 2020 U.S. Presidential Election Going To Be The Costliest In History?

A smaller percentage of Americans blame congressional Democrats and smaller still blame congressional Republicans. I think a lot of Americans look at this skeptically and say, “What has changed between the beginning of the president’s term and now that makes this such a dire emergency?” And I think it leaves a lot of Americans scratching their head. President Trump is playing to his base here, but unfortunately his base is a small percentage of the population. And most of the rest of the population is not with him on this issue of the wall. (VOA)

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No Evidence of Trump ‘Collusion’ with Russia in 2016 Elections: Mueller in Final Report

Mueller reached no conclusion and punted the decision to Barr and Deputy Attorney General Rod Rosenstein

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Trump knew nothing about son-in-law and White House adviser Jared Kushner's use of the WhatsApp encrypted messaging tool. VOA

In a big legal and political win for U.S. President Donald Trump, Special Counsel Robert Mueller concluded in his final report that there was no evidence that Trump’s 2016 presidential campaign or anyone associated with it colluded with Russia to influence the outcome of the vote, according to a summary of the confidential report released on Sunday by Attorney General William Barr.

That finding was emphatic, and validated Trump’s long-standing insistence that “there was no collusion” between his campaign and Russian hackers and meddlers who sought to change the outcome of Trump’s presidential battle with Democrat Hillary Clinton, the former secretary of state. Using Mueller’s own words, the Barr letter stated that “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

But on the question of whether Trump obstructed justice in the course of the investigation, Mueller reached no conclusion and punted the decision to Barr and Deputy Attorney General Rod Rosenstein, according to a letter Barr wrote to top Democrats and Republicans on the House and Senate judiciary committees summarizing the report’s “principal conclusions.” Complicating Mueller’s challenge in getting to the bottom of the question was Trump’s refusal to answer questions under oath and instead provide written answers. Barr and Rosenstein – who appointed Mueller as Special Counsel and oversaw the investigation– concluded that the evidence developed during the investigation “is not sufficient to establish that the President committed an obstruction-of-justice offense.”

That finding is certain to be a key bone of contention for congressional Democrats who are investigating Trump and his administration, especially given the Special Counsel’s assertion that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

House Speaker Nancy Pelosi, a California Democrat, tweeted that “The fact that Mueller’s report does not exonerate the president on a charge as serious as obstruction of justice demonstrates how urgent it is that the full report & documentation be made public without any further delay.”

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House Speaker Nancy Pelosi of Calif., speaks at an Economic Club of Washington luncheon gathering in Washington, March 8, 2019. VOA

Mueller submitted his report to Barr late Friday, nearly two years after he was appointed to investigate allegations of Russian interference in the 2016 election and collusion between the Trump campaign and Moscow.

After combing through the report over the weekend, Barr submitted a four-page letter to Congress absolving Trump of any collusion with the Russians or obstruction of justice in blocking the criminal investigation. Barr’s letter was made public shortly after it was delivered to Congress.

“It was complete and total exoneration,” Trump told reporters in Florida before returning to Washington Sunday afternoon. “This was an illegal takedown that failed and hopefully somebody is going to be looking at their other side.”

Here are five key take-aways from Barr’s summary of the Mueller report:

Trump was right: There was no collusion

The central question before Mueller was whether members of the Trump campaign or any other Americans conspired with Russians to tip the 2016 campaign in favor of the real estate tycoon. On that score, the Mueller report delivers a categorical vindication of the president.

While Mueller’s investigators uncovered evidence of Russian meddling in the U.S. election, “[the] investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities,” the summary quotes Mueller as writing.

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FILE – Republican presidential nominee Donald Trump gives a thumbs up as his campaign manager Paul Manafort looks on during Trump’s walk through at the Republican National Convention in Cleveland, July 21, 2016. VOA

The special counsel interpreted “coordination” fairly broadly to include both tacit and express agreements.But he found no evidence that members of the Trump campaign accepted offers of help from Russian operatives. “There was really an affirmative ‘No’” said Eric Jaso, a former associate special counsel for the Whitewater affair during former President Bill Clinton’s administration.“If they’d gone along and said yes, that would have fallen under the tacit agreement category.”

Mueller punts obstruction of justice question

Mueller’s decision to punt the question of obstruction of justice struck many legal experts as unusual.

The Special Counsel took up the question after Trump fired FBI Director James Comey over the Russia investigation and after Comey claimed that Trump had asked him to stop investigating his former national security advisor, Michael Flynn.

But Mueller drew no conclusion about whether Trump’s actions during the investigation amounted to obstruction of justice, according to the Barr summary.

“Instead, for each one of the relevant actions investigated, the report sets out evidence on both sides of the question and leaves unresolved what the Special Counsel views as ‘difficult issues’ of” whether Trump obstructed justice, Barr wrote.

With Mueller leaving the matter unresolved, it was left to the attorney general to make a determination. Barr wrote that after consulting with Justice Department officials, he and Rosenstein concluded that there was not enough evidence that Trump had committed obstruction of justice. The determination, he added, was made irrespective of a long-standing Justice Department guidance that a sitting president can’t be indicted.

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DOJ Notification to Congress Regarding the Conclusion of the Mueller Investigation. VOA

Before taking the helm of the Justice Department last month, Barr had written critically of the Mueller probe and called the investigation of Trump for possible obstruction of justice “fatally flawed.”

Rep. Jerry Nadler (D-NY), chairman of the House Judiciary Committee, called the decision “concerning” and said he’ll ask Barr to testify before the panel in the near future.

Jaso said the fact that Barr made the determination in concert with Rosenstein provides Barr with political cover.

“He can’t be just painted as toady of the president,” Jaso said.

No additional indictments

The Special Counsel investigation led to the indictments of 37 individuals and entities, mostly Russian operatives and a handful of former Trump associates. In the run-up to the Mueller report, speculation was rife that the Special Counsel would announce new indictments against individuals in the president’s orbit.

But Barr’s summary says the Special Counsel does not recommend any additional indictments in his report and says that there are no indictments under seal that have yet to be made public.

A redacted version in the works

The full extent of Mueller’s findings, including evidence concerning obstruction of justice, will remain unknowable until a more complete version of the report is released. In his letter, Barr indicated that he’ll share a redacted version of the full report at a future date.Barr said that he’s asked the Special Counsel to identify confidential information that must be kept classified and that as soon as “that process is complete, I will be in a position to move forward expeditiously in determining” what can be released. Democrats are demanding full disclosure and vowing to compel the attorney general to comply.

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Special Counsel Robert Mueller departs after a closed-door meeting with members of the Senate Judiciary Committee about Russian meddling in the election and possible connection to the Trump campaign, at the Capitol in Washington, June 21, 2017. VOA

Thorough investigation

Defenders of the Mueller investigation found a measure of vindication in the thoroughness with which the veteran prosecutor and former FBI director carried out the probe. According to Barr’s letter, the Special Counsel issued more than 2,800 subpoenas, executed nearly 500 search warrants, obtained more than 230 orders for communication records, made 13 requests to foreign governments for evidence and interviewed approximately 500 witnesses.

By all accounts, Mueller left no stones untouched in his dogged effort to probe whether the Trump campaign colluded with Moscow and whether the president sought to impede the investigation that followed.

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But Mueller appears to have steered clear of one line of inquiry that the president had said was off limits: Trump’s finances and whether the president’s business interests in Russia led him and his campaign into collusion.

“It does not say that thirdly or furthermore we investigated whether the Trump campaign or Trump himself had a desire to ingratiate himself with the Russians which somehow made him vulnerable to this effort,” Jaso said. (VOA)