The Threat of Domestic Terrorism

 Josh Meyer and Kevin Johnson at USA Today:

Washington failed to create a national strategy to counter right-wing extremism until the deadly siege of the U.S. Capitol last January triggered an urgent reassessment of the threat, according to USA TODAY interviews with dozens of current and former government officials and a review of government documents. Federal agencies were slow to recognize the threat rising from the homeland and work together to counter it. Resources were poured into international terrorism while domestic extremist groups grew and operated in the open. Some key programs at the Justice Department and elsewhere were launched, stopped and then restarted. Investigators frequently lacked key sources to help them infiltrate movements and thwart attacks. Overlaying all of that, current and former officials say, was the fact that the U.S. government lacked a coordinated and sustained strategy to combat right-wing extremism. Now, one year after the assault on the Capitol, many of those officials question whether Washington is up to the task of containing a problem that has embedded itself deeply into the fabric of America.

...

In recent years, after authorities said right-wing domestic terrorists were a threat on par with the Islamic State group, the National Counterterrorism Center expanded its purview. It now has a small unit to help the FBI and DHS on domestic extremism. Now, “it’s not just militant Islamists but also militias in Michigan,” said Seamus Hughes, deputy director of the Program on Extremism at George Washington University in Washington, D.C., and former lead National Counterterrorism Center staffer on U.S. efforts to counter violent extremism.

The Federalist Papers and a Court Case

Judge Ketanji Brown Jackson explaining why former White House counsel Don McGahn has to testify before Congress:

DOJ’s arguments to the contrary are rooted in “the Executive’s interest in ‘autonomy[,]’” and, therefore, “rest[] upon a discredited notion of executive power and privilege.” Id. at 103. Indeed, when DOJ insists that Presidents can lawfully prevent their senior-level aides from responding to compelled congressional process and that neither the federal courts nor Congress has the power to do anything about it, DOJ promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards. In reality, it is a core tenet of this Nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny. See The Federalist No. 51 (James Madison); see also Buckley v. Valeo, 424 U.S. 1, 120 (1976). Thus, when presented with a case or controversy, it is the Judiciary’s duty under the Constitution to interpret the law and to declare government overreaches unlawful. Similarly, the House of Representatives has the constitutionally vested responsibility to conduct investigations of suspected abuses of power within the government, and to act to curb those improprieties, if required. Accordingly, DOJ’s conceptual claim to unreviewable absolute testimonial immunity on separation-of-powers grounds—essentially, that the Constitution’s scheme countenances unassailable Executive branch authority—is baseless, and as such, cannot be sustained.

...
 To the contrary, the Framers spoke specifically to the importance of maintaining an established rule of law to regulate government conduct—and, thus, to the significance of the judicial function—when they explained why a system that separates the powers of government and includes checks on the exercise of government power is crucial to sustaining a democracy:

...[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of the attack. . . . It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

The Federalist No. 51 (James Madison). The Framer’s specific reference to providing
government officials in each of the separate branches with “the necessary constitutional
means and personal motives to resist the encroachments of the others[,]” id., is especially noteworthy, because, here, DOJ’s artificial limit on the federal courts’ jurisdiction to consider disputes between the branches seemingly decreases the incentive for the Legislature or the Executive branch to behave lawfully, rather than bolsters it, by dramatically reducing the potential that a federal court will have occasion to declare conduct that violates the Constitution unlawful. And there can be no doubt that providing the branches with the power to limit each other’s behavior, for the protection of the People, was the original intent of the Framers, as evidenced both by the constitutional scheme they adopted and by the remarks they made to explain the separation-of-powers construct. Indeed, far from DOJ’s present suggestion that the separation-of-powers construct means that the political branches must resolve their disputes in the political arena and never head to federal court, Federalist No. 51 proceeds to explain that political checks are not the sole solution, and that the branches themselves must also be vested with the power to police the abuses of the others. See id. (“A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. . . . We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights.”).

...
 In short, DOJ’s implicit suggestion that compelled congressional process is a ‘zero-sum’ game in which the President’s interest in confidentiality invariably outweighs the Legislature’s interest in gathering truthful information, such that current and former senior-level presidential aides should be always and forever immune from answering probing questions, is manifestly inconsistent with a governmental scheme that can only function properly if its institutions work together. See The Federalist No. 51 (James Madison).

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Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. See The Federalist No. 51 (James Madison); The Federalist No. 69 (Alexander Hamilton); 1 Alexis de Tocqueville, Democracy in America 115–18 (Harvey C. Mansfield & Delba Winthrop eds. & trans., Univ. of Chicago Press 2000) (1835). This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States. Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life.

Justice and Constitutional Design

At The Hill, Stuart M. Gerson  former Acting Attorney General; Peter D. Keisler former Acting Attorney General; and Carrie Cordero former Counsel to the Assistant Attorney General for National Security.

[W] hile federal law enforcement activities fall under the leadership and guidance of the Attorney General, the criminal justice system functions as an interconnected network of federal, state and local law enforcement, and federal and state judges and courts. Each official and officer in this system takes no oath to any elected official, but instead to upholding the law, and the constitution.

The decision to charge someone with a crime and bring the full weight of prosecutorial power must always be nonpartisan, and never borne of retribution, ambition or malice. Although selection of prosecutors and judges often involves political affiliation and political processes, those selections must be made in a way that brings confidence that justice will be administered without regard to politics. Americans should demand that the Justice Department be led by an Attorney General of sufficient qualifications who has been subject to the rigor and legitimacy of a Senate confirmation.

Above all, our national leaders and political partisans of all stripes must remember that we depend upon our Department of Justice to act in a fair and independent manner and with a constant eye on the rule of law. That department is not the law firm of the chief executive or any political appointee but, instead, is the representative of all the people and the abiding institutions of America.

Finally, no person is above the law. Lawyers can and will argue whether the mechanics of the criminal justice system can reach the highest office, and the details of who in government is subject to what legal process. Regardless of how the courts might resolve these types of questions, the constitution provides a system for removing corrupt officials from federal office. In any case, whether an inquiry as to removal from office derives from the current set of far-reaching investigations or otherwise, the exercise of this authority does not create a constitutional crisis; instead, it is an exercise of constitutional design.

The Federal Prosecutor

Attorney General Robert Jackson, December 1, 1940:

But outside of federal law each locality has the right under our system of government to fix its own standards of law enforcement and of morals. And the moral climate of the United States is as varied as its physical climate. For example, some states legalize and permit gambling, some states prohibit it legislatively and protect it administratively, and some try to prohibit it entirely. The same variation of attitudes towards other law-enforcement problems exists. The federal government could not enforce one kind of law in one place and another kind elsewhere. It could hardly adopt strict standards for loose states or loose standards for strict states without doing violence to local sentiment. In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law, letting the chips fall in the community where they may. Just as there should be no permitting of local considerations to stop federal enforcement, so there should be no striving to enlarge our power over local affairs and no use of federal prosecutions to exert an indirect influence that would be unlawful if exerted directly.

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

Rosenstein on Justice

Deputy Attorney General Rod J. Rosenstein Delivers Remarks at the Bar Association of Montgomery County’s Law Day CelebrationRockville, MD ~ Friday, May 4, 2018

 The interplay among the branches is incredibly complex, and our Constitution contemplates numerous checks and balances.

In the executive branch, we take an oath. We pledge to support and defend the Constitution of the United States against all enemies, foreign and domestic. We promise to bear true faith and allegiance to the same. We attest that we take this obligation freely, without any mental reservation or purpose of evasion. And we commit to well and faithfully execute the duties of the office, so help me God.

Faithfully enforcing the law is not about following a simple set of instructions. As the great champion of the law Robert H. Jackson put it, “law enforcement is not automatic.” Enforcing the law requires discretion and judgment.

When carrying out our enforcement duties, the executive branch is required to enforce the law as written by the legislature, and as interpreted by the judiciary.

At the Department of Justice, our duty is in our name. Attorney General John Ashcroft famously said that we are the only cabinet department with a name that articulates a moral value.
...

Our Bill of Rights, containing the first ten amendments, is often regarded as the pride of American government. But the Constitution originally had no Bill of Rights. The issue was considered during the Constitutional Convention in Philadelphia in 1787, but the Constitution was ratified without it.

The Framers were more concerned about our government’s structure than a written guarantee of rights, because a written guarantee is only as powerful as the system in place to protect it. Our constitutional structure, and the separation of powers embodied in that structure, represents our government’s defining feature.

Justice Scalia explained that “it is those other humdrum provisions—the structural, mechanistic portions of the Constitution that pit, in James Madison’s words, ‘ambition against ambition,’ and make it impossible for any element of government to obtain unchecked power— that convert the Bill of Rights from a paper assurance to a living guarantee.”

The Founders dispersed power both horizontally and vertically. The three branches of the federal government check one another. The states and the federal government check one another. And the people check both the federal and the state governments.

Our system of government is not self-executing. It relies on wisdom and self-restraint. In a democratic republic, liberty is protected by cultural norms as well as by constitutional text.

Lawyers and judges bear great responsibility for implementing and explaining those principles. The further we get from the founding generation, the less we appreciate how much everything depends on people rather than paper.

Presidents and Attorneys General

From the Comey memos:

At about this point, he asked me to compare AG Holder and AG Lynch. I said I thought AG Holder was smarter and more sophisticated and smoother than AG Lynch, who I added is a good person. He said Holder and President Obama were quite close. I replied that they were and it illustrated, in my view, a mistake Presidents make over and over again: Because they reason for a President come from Justice, they try to bring Justice close, which paradoxically makes things worse because an independent DOJ and FBI are better for a president and the country. I listed off John Mitchell, Ed Meese, and Al Gonzales as examples of this mistake, and he added Bobby Kennedy.

The Best Words

Juliet Eilperin and Lena H. Sun at The Washington Post:

The Trump administration is waging a linguistic battle across official Washington, seeking to shift public perception of key policies by changing the way the federal government talks about climate change, scientific evidence and disadvantaged communities.

The push drew fresh attention after employees at the Department of Health and Human Services were told to avoid certain words — including “vulnerable” “entitlement” and “diversity” — when preparing requests for next year’s budget. But the effort to disappear certain language and replace it with other terms is much broader, sparking resistance from career officials in multiple federal agencies, outside experts and congressional Democrats.

Climate change, for example, has for months presented a linguistic minefield; multiple references to it have been purged repeatedly at the Environmental Protection Agency and the Interior Department. In late summer, the Office of Juvenile Justice and Delinquency Prevention issued a document to employees and contractors bearing a column of words and phrases to be avoided, alongside a column of acceptable alternatives.

Perhaps the Trump officials drew inspiration from Newt Gingrich's 1996 GOPAC memo: 

  As you know, one of the key points in the GOPAC tapes is that "language matters." In the video "We are a Majority," Language is listed as a key mechanism of control used by a majority party, along with Agenda, Rules, Attitude and Learning. As the tapes have been used in training sessions across the country and mailed to candidates we have heard a plaintive plea: "I wish I could speak like Newt."

   That takes years of practice. But, we believe that you could have a significant impact on your campaign and the way you communicate if we help a little. That is why we have created this list of words and phrases.

   This list is prepared so that you might have a directory of words to use in writing literature and mail, in preparing speeches, and in producing electronic media. The words and phrases are powerful. Read them. Memorize as many as possible. And remember that like any tool, these words will not help if they are not used.

   While the list could be the size of the latest "College Edition" dictionary, we have attempted to keep it small enough to be readily useful yet large enough to be broadly functional. The list is divided into two sections: Optimistic Positive Governing words and phrases to help describe your vision for the future of your community (your message) and Contrasting words to help you clearly define the policies and record of your opponent and the Democratic party.

   Please let us know if you have any other suggestions or additions. We would also like to know how you use the list. Call us at GOPAC or write with your suggestions and comments. We may include them in the next tape mailing so that others can benefit from your knowledge and experience.

Optimistic Positive Governing Words

   Use the list below to help define your campaign and your vision of public service. These words can help give extra power to your message. In addition, these words help develop the positive side of the contrast you should create with your opponent, giving your community something to vote for!

active(ly) activist building candid(ly) care(ing) challenge change children choice/choose citizen commitment common sense compete confident conflict control courage crusade debate dream duty eliminate good-time in prison empower(ment) fair family freedom hard work help humane incentive initiative lead

learn legacy liberty light listen mobilize moral movement opportunity passionate peace pioneer precious premise preserve principle(d) pristine pro- (issue): flag, children, environment, reform prosperity protect proud/pride provide reform rights share strength success tough truth unique vision we/us/our

Contrasting Words

   Often we search hard for words to define our opponents. Sometimes we are hesitant to use contrast. Remember that creating a difference helps you. These are powerful words that can create a clear and easily understood contrast. Apply these to the opponent, their record, proposals and their party.

abuse of power anti- (issue): flag, family, child, jobs betray bizarre bosses bureaucracy cheat coercion "compassion" is not enough collapse(ing) consequences corrupt corruption criminal rights crisis cynicism decay deeper destroy destructive devour disgrace endanger excuses failure (fail) greed hypocrisy ideological impose incompetent insecure insensitive

intolerant liberal lie limit(s) machine mandate(s) obsolete pathetic patronage permissive attitude pessimistic punish (poor ...) radical red tape self-serving selfish sensationalists shallow shame sick spend(ing) stagnation status quo steal taxes they/them threaten traitors unionized urgent (cy) waste welfare

Sally Yates v. Trump

Before Trump fired her for refusing to defend his Muslim ban, Acting Attorney General Sally Yates explained:

On January 27, 2017, the President signed an Executive Order regarding immigrants and
refugees from certain Muslim-majority countries. The order has now been challenged in a number of jurisdictions. As the Acting Attorney General, it is my ultimate  esponsibility to determine the position of the Department of Justice in these actions.

My role is different from that of the Office of Legal Counsel (OLC), which, through
administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted. Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just.

Similarly, in litigation, DOJ Civil Division lawyers are charged with advancing
reasonable legal arguments that can be made supporting an Executive Order. But my role as leader of this institution is different and broader. My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.

Consequently, for as long as I am the Acting Attorney General, the Department of
Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.

CNN reports:

Video of Yates' 2015 confirmation hearing as deputy attorney general shows Sen. Jeff Sessions grilling her about her responsibility to then-President Barack Obama should he require her to execute "unlawful" views. Sessions is now Donald Trump's pick to lead the Justice Department.

"You have to watch out because people will be asking you to do things and you need to say no. You think the attorney general has the responsibility to say no to the President if he asks for something that's improper?" Sessions asks Yates.

"A lot of people have defended the Lynch nomination, for example by saying, 'Well, he appoints somebody who's going to execute his views, what's wrong with that?' " the GOP senator from Alabama asks, referring to Obama's 2014 nomination of Loretta Lynch as attorney general.

"But if the views the President wants to execute are unlawful, should the attorney general or the deputy attorney general say no?"

Yates replies: "Senator, I believe the attorney general or the deputy attorney general has an obligation to follow the law and the Constitution and to give their independent legal advice to the President."

 

Reagan and the Law

At Bloomberg, Cass Sunstein recalls his time as a young lawyer in the Justice Department.  The Reaganites, he said, came in and did two smart things.

First, they reassured an anxious civil service. Within the Justice Department, for example, no one doubted that important policies were going to shift, sometimes in dramatic ways. But William French Smith, Reagan’s incoming attorney general, made it clear to career staffers that he deeply admired their traditions and their professionalism. Far from giving federal employees a sense of opposition and suspicion, he said (and demonstrated every day) that he liked and respected them.

Theodore Olson, the new head of the Office of Legal Counsel, where I worked, did the same thing -- and more. Charming and warm, he offered an immediate sense of humility, emphasizing how much he had to learn.

Within a month, lawyers who had faithfully served a Democratic administration had become fiercely loyal to Smith and Olson, and were proud to work for them. That was critical for the new president, because he had to depend on thousands of career staff for both information and execution.

Second, Reagan and his team sent unambiguous signals about the primacy of law. Many of Reagan’s supporters wanted him to venture some pretty dramatic changes -- for example, overruling Roe v. Wade (which protects the right to abortion) by congressional enactment; stripping the federal courts of jurisdiction in controversial areas; getting federal judges out of the business of school desegregation; and restoring school prayer.

Early on, however, the White House made it clear to the government’s lawyers that it wanted objective legal advice. Even more important, the ultimate authorities (including the president) bowed to that advice, even if it turned out to be a firm “no.” If the Department of Justice said that a particular course of action was legally unauthorized, the White House wouldn’t pursue it.

How Many Crimes?

George Will writes:

In 2009, Harvey Silverglate’s book “Three Felonies a Day” demonstrated how almost any American could be unwittingly guilty of various crimes between breakfast and bedtime. Silverglate, a defense lawyer and civil libertarian, demonstrated the dangers posed by the intersection of prosecutorial ingenuity with the expansion of the regulatory state.

In 2013, Glenn Harlan Reynolds, University of Tennessee law professor and creator of Instapundit, published in the Columbia Law Review “Ham Sandwich Nation: Due Process When Everything is a Crime.” Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the proliferation of criminal statutes and regulations backed by criminal penalties, what becomes of the mens rea principle that people deserve criminal punishment only if they engage in conduct that is inherently wrong or that they know to be illegal?

Now comes “Rethinking Presumed Knowledge of the Law in the Regulatory Age” (Tennessee Law Review) by Michael Anthony Cottone, a federal judicial clerk. Cottone warns that as the mens rea requirement withers when the quantity and complexity of laws increase, the doctrine ofignorantia legis neminem excusat — ignorance of the law does not excuse — becomes problematic. The regulatory state is rendering unrealistic the presumption that a responsible citizen should be presumed to have knowledge of the law.

There are an estimated 4,500 federal criminal statutes — and innumerable regulations backed by criminal penalties that include incarceration. Even if none of these were arcane, which many are, their sheer number would mean that Americans would not have clear notice of what behavior is proscribed or prescribed.

The Holder Legacy: FAQ

Attorney General Eric Holder has announced that he is stepping down.

What is his legacy?

A New York Times editorial lists several issues:

• Same-sex marriage: he refused to defend the Defense of Marriage Act, part of which the Supreme Court has now struck down.
• Voting rights:  he successfully fought voter-identification laws and other changes in voting procedure.
• Criminal justice:  he supported a law eliminating differences in sentences for crack v. powder cocaine, and has called for an end to mandatory minimums.

What controversies surrounded his tenure?

Matt Apuzzo reports at The New York Times:

Mr. Holder approved of the National Security Agency’s authority to sweep up millions of phone records of Americans accused of no crime. He subpoenaed journalists and led a crackdown on their sources. He defended the F.B.I.’s right to track people’s cars without warrants and the president’s right to kill an American who had joined Al Qaeda.

“This is an attorney general who displayed an odd approach, an odd schism between civil rights and civil liberties,” said Elizabeth Goitein, a lawyer with the Brennan Center for Justice, a group that frequently supported Mr. Holder’s civil rights policies.

Clarance Page notes:

His refusal to turn over some internal documents related to a botched gunrunning probe known as Fast and Furious, for example, resulted in a House vote in 2012 largely along party lines to hold him in contempt of Congress.

What has the AG's impact been on California? 

Bob Egelko writes at The San Francisco Chronicle:

[Law professor Rory] Little said California has also been affected by Holder’s position on immigration, in which he supported legislation to allow undocumented minors to gain legal residency if they attended college or served in the armed forces. Although Congress rejected the measure, Obama enacted a version of it by executive order, and Holder’s support gave Gov. Jerry Brown “a lot of leverage to pass a California version,” which lowered tuition and extended financial aid, Little said.

Even on medical marijuana, Little said, Holder’s policies have been “the most liberal and the most forgiving of any attorney general since marijuana was illegalized in the 1920s.”
That’s not a universal view. After Justice Department officials issued much-publicized memos declaring that prosecution of state-approved medical marijuana operations would be their lowest priority — in line with Obama’s pledge as a presidential candidate — California’s four U.S. attorneys announced a crackdown on pot suppliers in October 2011. They have since filed civil suits that have led to evictions and closures of hundreds of dispensaries.

That campaign has slowed, but the Justice Department is still seeking to shut down Harborside Health Center in Oakland, the nation’s largest licensed medical marijuana provider.

Voting Rights and Partisan Politics

The Washington Times reports from Kinston, North Carolina:

Voters in this small city decided overwhelmingly last year to do away with the party affiliation of candidates in local elections, but the Obama administration recently overruled the electorate and decided that equal rights for black voters cannot be achieved without the Democratic Party. The Justice Department's ruling, which affects races for City Council and mayor, went so far as to say partisan elections are needed so that black voters can elect their "candidates of choice" - identified by the department as those who are Democrats and almost exclusively black.

In an August letter, the Department explained its reasoning:

[The] elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice. Black candidates will likely lose a significant amount of crossover votes due to the high degree of racial polarization present in city elections. Without party loyalty available to counter-balance the consistent trend of racial bloc voting, blacks will face greater difficulty winning general elections. Our analysis of election returns indicates that cross-over voting is greater in partisan general elections than in the closed primaries. Thus, statistical analysis supports the conclusion that given a change to a non-partisan elections, black preferred candidates will receive fewer white cross-over votes.

At the conservative Heritage Foundation, Hans Von Spakovsky writes: "The DOJ is improperly using the Voting Rights Act to guarantee that Democratic candidates win elections, rather than using it as intended to ensure that minority voters have the same opportunity as other voters to get to the polls and elect their candidate of choice."