January 11, 2020

First off, today, a correction to last night’s letter. Harvard Law Professor Laurence Tribe, one of the nation’s premier constitutional scholars and the one I trust to get it right, pointed out this morning that I didn’t get it right last night on the meaning of the concurrent resolution. I was reading the 1973 War Powers Act as I wrote, and quoted it as saying that a concurrent resolution required the president to remove troops.

Tribe wrote to call our attention to the importance of INS v. Chadha, a 1983 legal challenge to the ability of Congress to override the President. “After INS v. Chadha,” Tribe wrote, “no mere concurrent resolution can have binding legal force. Chadha is understood to require giving POTUS an opportunity to veto such a resolution.” He explained what this meant: “When Speaker Pelosi said that what the House did had legal effect, she meant only that it established the historical fact that Trump was acting without the congressional authorization that some believe is constitutionally essential — not that the House vote of disapproval, if accompanied by a Senate vote of disapproval, would have binding legal effect notwithstanding Trump’s veto.“

So I had it right on January 9, and my own correction on January 10 was wrong. Sorry about that, and huge thanks to Professor Tribe, and to all of you who keep me on the straight and narrow.

The biggest story today is a hold-over from yesterday. It appears that at the same time U.S. forces attacked and killed Soleimani, they also tried to kill a senior Iranian military official in Yemen, Abdul Reza Shahlai. Shahlai organized financing for militias in Yemen. The strike failed.

Why does a failed strike on Shahlai and the killing of Soleimani matter to our system of government? Bad guys, right? No American disputes that. And most Americans can’t even find Yemen on a map, so who cares?

Aside from the question of overseas intervention, which is long and complicated and beyond my reach here tonight, as I’m still dragging, what is at stake in these strikes, and in the Ukraine Scandal, and in so much of what Trump has done since taking office, is the rule of law.

Trump launched the Soleimani strike without informing Congress, which he was required to do under the 1973 War Power Act unless there was an “imminent” attack that meant he had to act more quickly than he could have if he were to inform the “Gang of Eight,” the top leaders of both parties in both the House and Senate, and on the intelligence committees of both houses.

But neither Trump nor Secretary of State Mike Pompeo have been able to provide information that suggest there was such an imminent attack. Pompeo told Fox News Channel personality Laura Ingraham that Soleimani was planning an attack, but then said: “We don’t know precisely when and we don’t know precisely where, but it was real.” Trump told Ingraham that Soleimani was about to attack four embassies, but his own people contradict that. The lack of information coming out of this administration except on the propagandistic Fox News Channel led 13 former press secretaries, foreign service and military officials yesterday to call for the White House to resume regular press briefings. “In any great democracy, an informed public strengthens the nation. The public has a right to know what its government is doing, and the government has a duty to explain what it is doing.”

If the attack on Soleimani was made in tandem with an attack on another Iranian official, but this time a man in Yemen, it weakens further the idea that there was an imminent threat to America.

And if there was not an imminent threat, Trump, by law, had to confer with Congress.

The same issue is at stake in the Ukraine Scandal, and in the impeachment trial. Does Trump have to obey our laws, or is he out of their reach so long as he is in office?

In the Ukraine scandal, Trump withheld congressionally-appropriated money from Ukraine that it desperately needed in its fight against Russian incursions. Trump’s people knew the hold was illegal, and tried to hide it. Before Trump would release the money, he wanted Ukraine President Volodymyr Zelensky to announce an investigation into the Bidens, with the hope of weakening Joe Biden, a Democratic frontrunner, before the 2020 election. This violated election laws, among other things.

To keep witnesses from testifying about the Ukraine scandal, Trump has asserted what his lawyers call “constitutional immunity,” saying that high-level officials have protection from testifying before Congress. He has stonewalled the production of documents, and his lawyers have tried to argue in other cases that not only can the president not be indicted while in office—as a Department of Justice memo asserts—but that he cannot even be investigated. Thus subpoenas for his financial records in criminal investigations are off-limits, he says. So far, judges aren’t buying this, noting, as Judge Ketanji Brown Jackson did, that “no one is above the law.”

The common thread in these three issues is that Trump claims the ability to break the law with impunity because he is president. And with that law-breaking comes what looks like a general unwillingness to abide by the terms of our democracy. He is leveraging the power of the presidency to try to skew the 2020 election. He tried to smear Joe Biden (remember, had it not been for the whistleblower, the entire Ukraine scandal would not have come to light, and Zelensky had already scheduled an interview on CNN in which Trump’s people expected him to announce an investigation into the Bidens. Can you imagine where we would be now if that had happened?). Trump believed that a strike on Soleimani would be popular, both with his base, and with congresspeople who are about to vote on his impeachment.

Make no mistake: a president who is above the law is a dictator. The reason people keep harping on the legality of the Soleimani killing is not because they like terrorists but because if we do not defend the rule of law, we will have permitted both its destruction, and the destruction of the democracy on which it depends.

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Notes:

Pompeo: https://www.politico.com/news/2020/01/10/pompeo-spars-with-reporters-over-imminent-soleimani-threat-097175

Trump four embassies: https://www.washingtonpost.com/national-security/trump-now-claims-four-embassies-were-under-threat-from-iran-raising-fresh-questions-about-intelligence-reports/2020/01/10/02f8d154-33e7-11ea-a053-dc6d944ba776_story.html

Press briefings: https://www.cnn.com/2020/01/10/opinions/ex-press-secretaries-open-letter-on-press-briefings/index.html

Popularity of strike: https://www.newsweek.com/trump-iran-impeachment-soleimani-strike-1480980