Category Archives: politics

Trump is right on Nord Stream 2

President Trump was right to criticize Chancellor Angela Merkel’s plan for a new pipeline carrying Russian natural gas to Germany. This project threatens European independence and the North Atlantic Treaty Organization, and it was opposed by the Obama administration and many Senate Democrats, although not much was done to stop the pipeline’s construction. Numerous European countries have also been sharply critical of Mrs. Merkel’s energy plans. Mr. Trump has correctly sought to diminish Moscow’s European energy footprint, belying claims he is a stooge of Vladimir Putin.

In 2015 the European Commission cited Russia’s politically motivated disruptions of energy exports as one of the main causes of Europe’s energy insecurity. Moscow is the largest energy exporter to Europe; Gazprom alone supplied almost 40% of Europe’s natural gas in 2017. According to World Bank data, Gazprom’s European gas prices last year were more than double the U.S. domestic price. Russia has also repeatedly used its gas to blackmail Europe, cutting off the supply in 2006, 2009 and 2014, and causing severe shortages in Eastern Europe.

Germany has sought for years to maintain a special energy relationship with Moscow as a means of securing its own energy-supply predominance in Europe. Once the Nord Steam expansion is completed, it will account for 80% of Russian gas imported to Europe, making Germany the Continent’s major gas-distribution hub.

The Nord Stream 2 project has received particularly strong support from the center-left Social Democratic Party, a key member of Mrs. Merkel’s shaky governing coalition. Gerhard Schröder, a former SPD chancellor, has served as chairman of Nord Stream 2 AG, a Gazprom-owned consortium.

Berlin signed the original Nord Stream pipeline deal with Russia during Mr. Schröder’s chancellorship in 2005. In 2017 the Russian government nominated Mr. Schröder to the board of Rosneft, the Russian oil giant. German media report that Mr. Schröder was paid some €250,000 annually at Gazprom, and is expected to be paid €300,000 to €425,000 at Rosneft. But Germans have largely shrugged at the spectacle of a former chancellor on Russia’s payroll.

Many other European countries, however, have been critical of Germany’s Russian-energy romance. Thirteen EU states vehemently oppose the Nord Stream expansion. They are concerned about the loss of transit-fee revenue from existing pipelines that run mostly through Ukraine and the security risk of Russia’s growing dominance over Europe’s gas market. They have demanded the European Commission transfer negotiating power over the pipeline from Germany to the EU.

The new pipeline would enhance Russia’s blackmail capability by enabling Moscow to cut off gas supplies to Eastern Europe without subjecting Western Europe to the same treatment. Not surprisingly, Eastern European states have taken the lead in trying to develop alternatives. In 2016 Croatia and Poland led the formation of the Three Seas Initiative, or 3SI, which united 12 states from the Baltics to the Balkans.

At a 3SI summit in Warsaw in June 2017, Mr. Trump pledged that the U.S. would bolster exports of liquefied natural gas to Europe so the Continent “can never be held hostage to a single supplier.” That statement was anchored in the administration’s broader strategy of transforming the U.S. into a pre-eminent low-cost global energy supplier.

Russia’s gas stranglehold is a source of vulnerability as well as power. Europe accounts for more than 80% of Gazprom’s exports. Energy accounts for almost half of Russia’s exports and 40% of its national budget. The implementation of a 3SI energy plan would drain Russia’s pocketbook and frustrate its geopolitical ambitions.

Moscow has recognized the challenge and done its best to block efforts to diversify European energy supplies. Russian proxies have moved to delay or stop the 3SI project. According to the Croatian media, Gasfin, a Luxembourg company acting as Gazprom’s cat’s-paw in Europe, is supporting local environmentalists opposed to construction of a new LNG terminal on Croatia’s Krk Island. Gasfin has even purchased land on the island so that it can hobble the project via legal challenges—while at the same time suggesting that Gazprom might support the Krk project if it receives only Russian gas. During Croatian President Kolinda Grabar-Kitarovic’s visit to Russia last October, Mr. Putin publicly offered a partnership to gasify Croatia.

Mr. Trump’s leadership on this issue has had tangible results. Poland has committed to buying LNG from the U.S. and has already completed a new LNG terminal. It will not renew a contract with Gazprom set to expire in 2022, ending a 74-year exclusive partnership. U.S. LNG imports to Europe rose 22% last year, and will likely keep growing.

Yet the fate of 3SI is uncertain. The Trump administration should ramp up its energy strategy in two ways. First, promote U.S. investment in all facets of 3SI projects. Second, nudge European countries to accept a long-term package of sanctions on Russian energy, patterned after Carter- and Reagan-era sanctions, including restrictions on technology transfers and financing of Russian gas production and exports. If the Europeans balk, the U.S. should impose such sanctions unilaterally.

An all-out U.S. effort to stop Nord Stream 2 would help restore credibility in the aftermath of the Helsinki summit. Over time, this strategy would reduce Moscow’s European gas exports dramatically, freeing Europe from Moscow’s blackmail. American energy exports to Europe would be reliable and fairly priced. More Americans would have jobs, trans-Atlantic ties would be stronger, and it would be a major blow to the Putin regime.

Mr. Rivkin, a constitutional litigator, served in the Reagan and George H.W. Bush administrations at the White House Counsel’s Office and the Energy and Justice departments. Mr. Zuzul is a former Croatian foreign minister and ambassador to the U.S.

Source: https://www.wsj.com/articles/trump-is-right-on-nord-stream-2-1532289915

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A Champion of Constitutional Safeguards

Days before President Trump announced his choice of Judge Brett Kavanaugh for the Supreme Court, Senate Democrats had vowed to oppose any nominee. Backed by an activist-fueled propaganda machine, they now will unleash relentless personal attacks—on Judge Kavanaugh’s Catholic faith, his “elitist” Yale degrees, his service in the George W. Bush administration.

As with the attacks last year on Justice Neil Gorsuch, they should be unavailing. Over Judge Kavanaugh’s 12 years on the U.S. Circuit Court of Appeals for the District of Columbia, he has developed an impressive record as a legal thinker and a champion of the Constitution’s structural safeguards against overweening government.

Typical is a 2008 dissent in which Judge Kavanaugh concluded that the Public Company Accounting Oversight Board was unconstitutionally structured because it improperly insulated the agency from political accountability. The opinion was a tour de force of historical exposition and originalist methodology—that is, interpreting the Constitution’s text as it was originally understood. The Supreme Court ultimately agreed, adopting the reasoning of Judge Kavanaugh’s dissent.

Yet he is equally wary of unbridled executive authority, as a 2013 case shows. When the Nuclear Regulatory Commission declined to proceed with licensing the proposed waste repository at Yucca Mountain, Nev., which the agency appeared to oppose on policy grounds, he wrote: “The President may not decline to follow a statutory mandate or prohibition simply because of policy objections.”

In articles and speeches as well as formal opinions, Judge Kavanaugh has been a leading critic of Chevron deference, the courts’ practice of giving agencies free rein to interpret their own statutory authority. In a 2016 law-review article, he wrote that Chevron encourages the executive branch “to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints,” cutting Congress out of the picture. “The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is.”

On that score, Judge Kavanaugh rivals the late Justice Antonin Scalia in his ability to make sense of Congress’s often knotty statutory constructions. Judge Kavanaugh considers textualism to be an important restraint on judges that prevents them from imposing their policy preferences. As he put it in that 2016 article: “When courts apply doctrines that allow them to rewrite the laws (in effect), they are encroaching on the legislature’s Article I power.”

That’s why the Democrats’ formulaic charges of partisanship won’t stick. In case after case, Judge Kavanaugh sided with the Obama administration in the war on terror. He turned away a constitutional challenge to ObamaCare on jurisdictional grounds, while writing that the government’s defenses of the law were “unprecedented” and without “principled limit.”

Across three successive administrations, Judge Kavanaugh has frequently ruled against the government. According to Jennifer Mascott of Scalia Law School, he “has written 40 opinions finding agency action to be unlawful and joined majority opinions reversing agency action in at least 35 additional cases.” That’s a muscular record on a court often criticized for deference to government.

Democrats may make an issue of a 1998 academic article in which Judge Kavanaugh—who early in his career worked in the Office of Independent Counsel during the Clinton administration—questioned whether the Constitution permits criminal prosecution of a sitting president. He didn’t actually reach a conclusion on the question, but the Justice Department’s Office of Legal Counsel did, holding that a sitting president cannot be indicted. Since that opinion is binding on special counsel Robert Mueller, there’s no prospect the issue will reach the Supreme Court.

Democrats will also roll out culture-war issues like abortion and same-sex marriage. There is nothing in Judge Kavanaugh’s judicial or scholarly record to indicate how he would vote on any of those issues. Only one sitting justice, Clarence Thomas, has said he favors overturning Roe v. Wade, so the status quo on abortion seems likely to prevail for some time. As for same-sex marriage, there appears to be little appetite on the court to revisit it, and even less reason to believe that a case doing so is likely to arise, given its rapid public acceptance.

At any rate, it would be improper for Judge Kavanaugh to answer senators’ questions about how he would vote on any particular issue. Since Justice Ruth Bader Ginsburg’s appointment in 1993, her “Ginsburg Rule”—“no hints, no forecasts, no previews”—has stood. Judges do not decide abstract issues but concrete cases with specific facts, arguments, and governing law. Judges have a duty to decide cases as they arise, without prejudgment. Like Justice Ginsburg, Judge Kavanaugh can and should be questioned on his record. And a fine record it is.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Grossman is an adjunct scholar at the Cato Institute.

Source: https://www.wsj.com/articles/a-champion-of-constitutional-safeguards-1531189515

 

Mueller’s Fruit of the Poisonous Tree

Trump has the Constitution on his side

By David B. Rivkin Jr. and Lee A. Casey

June 12, 2018 in the Washington Post

The Constitution vests all executive power in the president. He has the authority to determine what matters will, and will not, be investigated and prosecuted by the U.S. government. This is also a core part of the president’s obligation to “take care that the laws be faithfully executed” — and it remains so even if done through an unorthodox channel such as Twitter.

So it is puzzling to see so much criticism of President Trump’s demand that the Justice Department investigate allegations about his presidential campaign being improperly subjected to an FBI counterintelligence probe. Same goes for his instruction to the Justice Department and the FBI that they should grant congressional requests for information about that matter.

Indeed, Trump would have been well within his authority, and well within precedent, to order an investigation entirely independent of the Justice Department and the FBI, as President Lyndon B. Johnson did when he created, by executive order, the Warren Commission to investigate the circumstances of President John F. Kennedy’s death.

When critics claim that a president cannot direct federal law-enforcement activities, they are implying that subordinate executive-branch officials can both judge and act upon their own assessment of a president’s motivations. There is no basis in the Constitution’s language, statute or Supreme Court precedent for such a notion. Those who object to a president’s instructions may resign, but they cannot usurp executive authority and defy him.

Imagine a world where this kind of insulation from presidential control existed. Such a system would create more opportunities for misconduct than the constitutionally enshrined system. Unlike appointed officials and employees, the president is accountable to the electorate. If he misuses his power, the voters can punish him. And if he abuses his authority, Congress can remove him from office through impeachment proceedings. By contrast, when FBI Director J. Edgar Hoover was, for all practical purposes, insulated from presidential control, his tenure lasted decades and encompassed law-enforcement abuses and civil rights violations.

Only in one post-Watergate statute did Congress limit the president’s ability to oversee criminal investigations by providing for appointment of an independent counsel who could be removed only for cause. The Supreme Court upheld this law in Morrison v. Olson, even though it trenched upon the president’s executive authority, concluding that the statute did not unduly limit the president’s power because the imposition was slight. Effectively treating all federal prosecutors as independent and placing the entire federal law-enforcement apparatus beyond the president’s supervision would fly in the face of Morrison.

Besides, with accountability being a paramount constitutional virtue, there is another fundamental constitutional problem with the kind of insulation that Trump’s critics propose. Congressionally mandated insulation of independent counsels at least left Congress politically accountable.

By contrast, bureaucratic self-­insulation is inherently imprecise and destroys accountability. And unlike the statutorily based insulation that the Supreme Court reviewed in Morrison, self-insulation evades judicial review. This is anathema to our constitutional architecture and the rule of law.

Similarly, the Justice Department’s assertion of executive privilege to shield from disclosure documents — such as those sought by Congress on federal surveillance of the Trump campaign — is also a core presidential function. This power is grounded in the president’s right — as the head of a co-equal branch of government — to maintain his independence and do his job. As the Supreme Court noted in United States v. Nixon, in which White House tape recordings of the president’s own conversations were at issue, the “privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”

The court found, of course, that the privilege is not absolute. In Nixon and other cases, courts have required production of confidential executive materials. None has suggested, however, that a president’s voluntary decision to provide materials to Congress can be gainsaid, either by subordinate executive-branch officials or the courts. If the president determines to provide such materials to Congress, then the relevant agency officials must comply with his decision or resign. They have no legal authority to overrule such a presidential decision or to impose additional conditions on how Congress handles these materials.

This is true, though the documents being sought involve law-­enforcement materials. Indeed, as explained in a letter to Congress by Attorney General William French Smith in 1982, it has been Justice Department policy since at least President Franklin D. Roosevelt’s administration not to withhold such documents if they may “contain evidence of criminal or unethical conduct by agency officials.” Thus, to the extent Justice Department officials now object to Trump’s orders to provide the materials Congress seeks regarding surveillance of his presidential campaign, those objections cannot be sustained even under the department’s own policies.

Whatever one feels about the wisdom of Trump’s directives, fidelity to the Constitution best protects our democracy in the long run.

David B. Rivkin Jr. and Lee A. Casey, who practice appellate and constitutional law in the District, served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. Rivkin also served in the White House counsel’s office in the George H.W. Bush administration.

Source: www.washingtonpost.com/opinions/yes-trump-has-the-power-to-investigate-the-fbis-probe-of-his-campaign/2018/06/12/dfaf7f84-6e5a-11e8-afd5-778aca903bbe_story.html

 

What’s at Stake in the Attack on Haspel

Gina Haspel reportedly offered last week to withdraw her nomination as director of the Central Intelligence Agency. The White House declined and now must stand behind her as she faces an unjustified assault involving the Bush administration’s enhanced-interrogation program.

Shortly after 9/11, the administration concluded that it needed to obtain as much actionable intelligence as possible to avert future attacks. It decided to explore, and ultimately adopted, the use of interrogation methods against some al Qaeda operatives far more rigorous than would have been permissible against lawful prisoners of war.

The administration was properly mindful of U.S. statutes and obligations under the United Nations Convention Against Torture. Even unlawful enemy combatants may not be subjected to torture or to cruel, inhumane or degrading treatment. Where to draw the line? It was not for the CIA, much less Ms. Haspel, to answer that question, but for the Justice Department’s Office of Legal Counsel, which advises federal agencies on the law.

OLC’s guidance, in the form of several memos issued in 2002 and 2003, was communicated through the CIA’s general counsel to agents in the field and was the basis on which the enhanced-interrogation program was carried out. The guidance was precise and unambiguous. It listed all the legally permissible interrogation techniques, backed up by appropriate safeguards. The details of this program were fully and repeatedly briefed to the so-called congressional Gang of Eight—the House and Senate majority and minority leaders and chairmen and ranking members of the intelligence committees. None raised a word of objection.

But as the fear of terrorism receded, one of OLC’s memos was leaked to the press, in June 2004. It ignited a debate, in and out of government, over what the administration’s opponents labeled “torture.” (We supported the administration in these pages.) OLC soon withdrew that memo and issued revised guidance on Dec. 30, 2004. Although narrower and more cautiously reasoned than the original, the new guidance stated unequivocally that “we have reviewed this Office’s prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum.”

The CIA program ended in November 2007, and President Obama formally banned coercive interrogations in January 2009. Congress also passed a series of statutes limiting the CIA’s interrogation protocols to the benign techniques featured in the U.S. Army Field Manuals.

To assuage concerns about Ms. Haspel’s career, the CIA has offered to make the relevant materials available to the Senate for review behind closed doors. It should resist the request of some senators to declassify her entire personnel file. Since Ms. Haspel spent almost her whole career in clandestine service, was posted overseas on numerous occasions, and ran covert assets against hard targets, such disclosure would be certain to expose sensitive operations, jeopardize the safety of U.S. and allied intelligence agents, and damage national security.

Ms. Haspel has been criticized for her role in the CIA’s 2005 destruction of videotapes showing interrogations. At the time, she served as chief of staff to Jose Rodriguez, director of clandestine programs, who authorized the destruction. Given the existence of written transcripts, which included descriptions of the specific interrogation techniques being used, retention of the tapes was not required by law or regulation. There was also justifiable concern that the tapes might be leaked someday, revealing the identity of covert CIA operatives. When Mr. Obama’s deputy CIA director, Mike Morrell, investigated the matter, he wrote that he “found no fault with the performance of Ms. Haspel,” who had acted “appropriately.” Mr. Rodriguez was reprimanded only for not obtaining explicit approval of his superiors before destroying the tapes.

What is at stake here is not just the career of a courageous, dedicated public servant. Like other government employees, intelligence officers cannot ignore the policy decisions of their political superiors. Those appointees, and ultimately the president, are accountable for their actions—as are the congressional leaders who raised no objection to enhanced interrogation at the time. If agents are blamed following the directives of their superiors, the CIA’s ability to protect the U.S. will be fundamentally compromised.

The White House is right to stand behind Ms. Haspel—not only because she risked life and limb in the service of her country, but because of the important principles at stake.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/whats-at-stake-in-the-attack-on-haspel-1525731820

Unappointed ‘Judges’ Shouldn’t Be Trying Cases

Trump Is Right to Pardon Scooter Libby, an Innocent Man

President Trump has pardoned I. Lewis “Scooter” Libby, convicted in 2007 of perjury and obstruction of justice. The president was right to do so. Mr. Libby’s conviction was a travesty.

Mr. Libby, who served as Vice President Dick Cheney’s chief of staff, got caught up in a special counsel’s investigation about the disclosure to the press of a CIA agent’s identity. It appears Mr. Cheney was the investigation’s real target. Mr. Libby’s lawyers have said prosecutors offered to drop the charges against Mr. Libby if he would incriminate his boss. But, there was “no there, there.” Neither Mr. Libby nor Mr. Cheney had anything to do with the “leak” or with covering it up. No one was charged with a crime in the “outing” of the agent, Valerie Plame, and it’s not clear it was a crime.

The Intelligence Identities Protection Act of 1982 makes it a crime to reveal the identity of a “covert” intelligence agent. Ms. Plame was a midlevel employee stationed at Central Intelligence Agency headquarters. In early 2002, she urged her superiors to tap her husband, retired diplomat Joe Wilson, to investigate claims that Saddam Hussein had tried to buy processed uranium in Niger. The CIA interpreted Mr. Wilson’s report as supporting that claim, but a year later he publicly declared the evidence was dubious and became a vocal critic of President Bush’s Iraq policy.

The late Robert Novak wrote a column revealing that Mr. Wilson had gone to Niger at Ms. Plame’s urging. Mr. Wilson asserted that the revelation of his wife’s CIA employment was meant to punish him. But her identity was well-known around Washington, suggesting that she had not taken “affirmative measures” to conceal her “intelligence relationship to the United States,” a necessary element of the crime.

Special counsel Patrick Fitzgerald was appointed by his friend James Comey, then deputy attorney general. From the start, Mr. Fitzgerald knew that the critical “leak” to Novak had come from then-Deputy Secretary of State Richard Armitage. He nevertheless commenced an extensive investigation to “discover” what had happened.

The charges against Mr. Libby were based on his description of various conversations he had with journalists at the time, including the New York Times’s Judith Miller. Based on notes she had made containing the word “bureau” in association with Ms. Plame’s job, Ms. Miller became the only reporter to testify that Mr. Libby had discussed Ms. Plame’s CIA connection with her. Mr. Fitzgerald called her testimony “critical” in his closing argument to the jury, which found Mr. Libby guilty on four of five counts.

But Ms. Miller later realized her testimony had been mistaken. Ms. Plame published a memoir in late 2007, months after Libby’s trial. In Ms. Miller’s 2015 book, “A Reporter’s Story,” she writes that one particular point in Ms. Plame’s account immediately caught her eye: Ms. Plame’s CIA “cover” had been as an employee of a State Department bureau. Mr. Libby would have known the CIA has “divisions,” not “bureaus.” He could not, therefore, have been the person who revealed Ms. Plame’s CIA connection to Ms. Miller.

Ms. Miller did not recognize her mistake when preparing her trial testimony, because she did not know that Ms. Plame had a State Department cover. Had she known, she would not have claimed she and Mr. Libby had discussed Ms. Plame’s CIA status. But Mr. Fitzgerald knew, and Ms. Miller believes he deliberately led her away from the truth.

All this means that Mr. Libby was telling the truth about his conversations with Ms. Miller, and that he did not deliberately mislead Mr. Fitzgerald’s grand jury or the FBI. For her part, Ms. Miller had not lied at Mr. Libby’s trial; she had given false testimony in good faith. “With the information about Plame’s cover that Fitzgerald had withheld, it was hard not to conclude that my testimony had been wrong,” she writes. “Had I helped convict an innocent man?

She had. It is now established that Mr. Libby never told any reporter about Ms. Plame, never knew that she had any special status, and had no reason to lie about any of this—and that the “leak” had caused no harm to the CIA, its personnel or operations. But the time for Mr. Libby’s appeals has long passed.

One court partially righted the wrong Mr. Libby suffered. In 2016, the District of Columbia Court of Appeals, a local tribunal, restored Mr. Libby’s license to practice law in the nation’s capital. This action was based on a report by the D.C. Bar’s Office of Disciplinary Counsel, which specifically noted that Mr. Libby had consistently maintained his innocence, that he never denied the seriousness of the offenses of which he was convicted, and that Ms. Miller, as a “key prosecution witness . . . has changed her recollection of the events in question.”

Long ago, Hillary Clinton’s friend and law partner Vince Foster wrote that Washington was a place where “ruining people is considered sport.” He left those words in a note found after his 1993 suicide. Foster’s observation is undeniably true—but should not be. Mr. Trump promised to change the way Washington works, and has himself experienced the full force of this detestable Washington pastime since before he took office. By granting Scooter Libby a full pardon, he has taken a step toward changing Washington’s culture, and he has righted a grievous wrong.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department in the Reagan and George H.W. Bush administrations.