February 16, 2020

One of the stories I did not cover yesterday was that on Friday, the White House sent to Congress a memo explaining the rationale behind the killing of Iran military leader Qassem Soleimani last month. When it happened, if you recall, Trump and White House officials insisted the killing was imperative, and that the president did not have time to inform Congress, as required by law, because the threat from Soleimani was imminent.

The memo says nothing of the kind. It asserts that the assassination was “in response to an escalating series of attacks in preceding months” by Iran and the Iraqi militias it backed.

In early January, the administration had sent Congress a formal notification of the strike, as required by law, but the entire document was classified and lawmakers who saw it said it had no information about an imminent attack. Congresspeople described subsequent briefings as insulting and demeaning.

The new memo justifies the attack by relying on Article II of the United States Constitution and the 2002 Authorization of Military Force against Iraq. Proponents of the theory of the unitary executive, the theory I wrote about the other day that puts all of the authority for the executive branch of government into the president, make Article II do a LOT of work. It is the article that establishes the office of the president and gives that president certain powers, but they see it as giving him power to do anything he wants. As Trump said: “I have an Article II, where I have the right to do whatever I want as president.” This is a wildly radical interpretation of the scope of that article.

The other justification for the Soleimani strike in the White House document was the 2002 Authorization of Military Force against Iraq. That AUMF said “the President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to… defend the national security of the United States against the continuing threat posed by Iraq.” Although Soleimani was Iranian, the White House reads this AUMF as reaching beyond Iraq itself to “militias, terrorist groups, or other armed groups in Iraq.” Soleimani was believed to be supporting Iranian-backed Iraqi militias.

Congress disagrees that the 2002 AUMF gives Trump such broad powers. “To suggest that 18 years later this authorization could justify killing an Iranian official stretches the law far beyond anything Congress ever intended,” New York Democratic Representative Eliot Engel said. In a bipartisan vote, for the third time, the Senate has just passed a resolution blocking the president from taking military action against Iran without congressional approval. The House is expected to pass it, but the president is expected to veto it, and neither house has the votes necessary to override his veto.

Today more than 1100 former Justice Department lawyers, Republicans and Democrats both, called for Attorney General William Barr to resign after he intervened in the sentencing memo in the case of Roger Stone, apparently at the urging of the president. More stories have surfaced since, suggesting that Barr tried to intervene in the indictment of state-owned Turkish bank Halkbank, after Turkish President Recep Tayyip Erdogan pressed Trump to avoid charges and Turkish lobbyists spent millions with the Trump administration to try to stave off indictment. Geoffrey Berman, US Attorney for the Southern District of New York, went forward with a criminal prosecution despite the pressure. Today, career employees wrote to call for Barr’s resignation because they objected to his politicizing the Department of Justice. They also called for current department employees to act as whistleblowers for similar wrongdoing moving forward.

We also learned over the past few days that the moderate Senators exonerating the president in his impeachment trial have recently received grants for their states. On February 12, Senator Lisa Murkowski (R-AK) publicly thanked the U.S. Department of Transportation and our secretary of transportation, Elaine Chao, who is Senate Majority Leader Mitch McConnell’s (R-KY) wife, for allocating $20 million to the Port of Alaska to help it modernize. On February 13, Senator Susan Collins announced that Maine had been awarded more than $9.5 million to preserve and modernize affordable housing units for low income people and folks with disabilities.

So where are we, in just these three stories? We have a president and his top officials who insisted, on the record, repeatedly, that they had taken extraordinary military action against an imminent threat. The immediacy of that threat was how they justified neglecting to inform Congress, as required by law. Now, they have quietly admitted there was no such imminent threat, but insist the president has the right to do whatever he wants.

We have more than a thousand legal officials demanding the Attorney General resign for politicizing the Justice Department and jeopardizing the rule of law.

And we have two key Senate votes against convicting the president in his impeachment trial thanking the administration for large grants to their states.

If you heard about these stories anywhere else, what would you think was happening to the government of that country?

Notes:

Collins:

Murkowski:

Prosecutors: https://www.nytimes.com/2020/02/16/us/politics/barr-trump-justice-department.html

War powers resolution: https://www.washingtonpost.com/politics/2020/02/14/republican-senate-just-rebuked-trump-using-war-powers-act-third-time-thats-remarkable/

Soleimani: https://foreignaffairs.house.gov/_cache/files/4/3/4362ca46-3a7d-43e8-a3ec-be0245705722/6E1A0F30F9204E380A7AD0C84EC572EC.doc148.pdf

https://www.nytimes.com/2020/02/14/us/politics/white-house-memo-suleimani-strike.html

https://www.washingtonpost.com/politics/white-house-memo-on-soleimani-strike-makes-no-mention-of-imminent-threat/2020/02/14/651ce330-4f70-11ea-b721-9f4cdc90bc1c_story.html

Turkey: https://www.motherjones.com/politics/2020/02/report-barr-protected-turkish-bank-from-prosecution-to-appease-erdogan/

Trump and Article II: https://www.cnn.com/videos/politics/2019/07/23/rep-sean-maloney-trump-not-above-the-law-sot-ebof-vpx.cnn