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Defying the Odds

Defying the Odds
New book about the 2016 election.

Thursday, November 22, 2018

Thankful for the Separation of Powers

In  Defying the Oddswe discuss Trump's character and impact on America.

Asawin Suebsaeng,  Erin Banco, and Betsy Woodruff at The Daily Beast:
On Tuesday night, The New York Times reported that Donald Trump had asked his aides to explore ordering the Justice Department to prosecute Hillary Clinton and James Comey. Though the wish ultimately went unfulfilled, the fact that it was made was widely condemned as an extreme abuse of power by legal experts and law-enforcement veterans.
For right-leaning allies of the president, however, the problem wasn’t that Trump contemplated prosecuting his former political opponent, it’s that he balked at following through on it.
“The advice that he shouldn’t order the Justice Department, assuming it was given, to get back to enforcing the law on Mrs. Clinton and James Comey, that’s political advice, not legal advice,” Tom Fitton, who heads the conservative watchdog group Judicial Watch, said. “Hillary Clinton benefited from a sham investigation into her email practices, and this Justice Department refuses to do anything about it. And the president would be derelict in his job to not ask why justice isn’t being served by this Justice Department… It’s reassuring that he is broaching the question.”
Mark Sherman at AP:
President Donald Trump and Chief Justice John Roberts clashed Wednesday in an extraordinary public dispute over the independence of America’s judiciary, with Roberts bluntly rebuking the president for denouncing a judge who rejected his migrant asylum policy as an “Obama judge.”
There’s no such thing, Roberts declared in a strongly worded statement contradicting Trump and defending judicial independence. Never silent for long, Trump defended his own comment, tweeting defiantly, “Sorry Justice Roberts.”

The pre-Thanksgiving dustup was the first time that Roberts, the Republican-appointed leader of the federal judiciary, has offered even a hint of criticism of Trump, who has several times blasted federal judges who have ruled against him.
Before now, it has been highly unusual for a president to single out judges for personal criticism. And a chief justice’s challenge to a president’s comments is downright unprecedented in modern times.
 Heather Hurlburt at New York:
The first casualty of President Trump’s deployment of active-duty troops to our southern border – or maybe the second, if you count the line between military policy and naked partisanship as the first – has been clarity. Over the last ten days, we’ve had reports that troops were finishing their mission and leaving the border, and then reports that they weren’t. The administration changed the rules to limit where would-be refugees could apply for asylum, until a court said it couldn’t.
Now there’s been another bewildering development. According to Military Times’ Tara Copp, a memo came down from the White House on Tuesday evening authorizing active-duty troops at the border to fulfill some functions of law enforcement for the “protection of border agents” – including searching and detaining people, crowd control, and “lethal force, where necessary.”
National security lawyers all over the country lifted their heads from their Thanksgiving preparations in alarm. It has been very settled law for more than a century that active-duty troops may not be used for law enforcement functions within U.S. borders. That law, the Posse Comitatus Act, was passed just after the Civil War and Reconstruction, specifically to protect state governments from having policies they didn’t like enforced by federal military personnel on their soil. The exceptions are extreme: the president can “use military force to suppress insurrection or enforce federal authority,” per the Congressional Research Service. It’s worth noting that servicemembers always have the right to use force for self-defense – but the idea is that troops are not to be used in roles where they might choose to use force for other reasons.