WASHINGTON, February 5, 2019 — When President Donald Trump arrives in the chamber of the House of Representatives to deliver his second State of the Union address Tuesday, the bipartisan-minded speech he is expected to deliver will be a dramatic departure from the apocalyptic rhetoric he frequently uses to describe his political enemies.
In a briefing with reporters last week, White House aides attempted to cast his annual message to Congress as an olive branch. In one excerpt of the speech, which is entitled“Choosing Greatness,” Trump is expected to call on Congress to “break decades of political stalemate, we can bridge old divisions, heal old wounds, build new coalitions, forge new solutions, and unlock the extraordinary process of America’s future.”
Trump’s turn to bipartisanship may only be a momentary break in character. Since the midterm elections, the president has consistently described those opposed to him interms both vague and extreme.
Midterm election rhetoric laced with concerns about the ‘radical left’
During the run-up to the 2018 midterm elections, applause lines warning of “radical Democrats” who“want to tear down our laws, tear down our institutions in pursuit of power, demolish our prosperity in the name of socialism and probably worse” were a staple of the president’s campaign stump speech. At least one tweet warned of “radical leftists” supporting Democratic candidates.
During the 35-day partial government shutdown he instigated over his proposed wall along the U.S.-Mexico border, Trump used a Pentagon event on missile defense to complain to an audience of military officers that the “radical Democrats” in the House majority had come from the “radical left.”
He also spoke of a “radical left” opposed to border security during his first prime-time Oval Office address, telling Americans: “The radical left can never control our borders.”
The president’s preferred phrase for his perceived enemies has filtered down to Congressional Republicans and conservative media, both of which are replete with examples of the use of terms like “left-wing,” “leftist,” “radical left,” and “radical Democrats.”
These can refer to anyone ranging from moderate Democrats opposed to the president’s border wall to so-called “Never Trump” conservatives who’ve remained stalwart in their opposition to a president they say is not one of them.
Trump’s epithets show the hallmarks of an ‘authoritarian statist,’ says consultant Rick Wilson
According to conservative strategist Rick Wilson, the use of such vague epithets by both thepresident and his supporters marks Trump as an “authoritarian statist” and canbe traced back to two inflection points involving Fox News architect Roger Ailes.
“One of the great tricks of authoritarians and statists is the amorphous other. There’s always a threat — the evolving threat of the other,” said Wilson, a veteran GOP ad maker and the author of “Everything Trump Touches Dies.”
Ailes, Wilson said, understood there was a mass of Democratic voters who were “not of the Ted Kennedy type,” meaning that they were not progressive on social issues.
Speaking of Republican strategy generally, he said, “We went after them on cultural issues and on describing an effete elite possessed of amazing power and pure evil trying to destroy our way of life.”
Wilson explained that such thinking became even preeminent in GOP politics in 2010 during the rise of the Tea Party, in part because the internet had lowered the cost of communicating to a targeted audience.
“If you poke the average guy in a focus group who’d easily use the term ‘cultural Marxism’ and ask ‘what does that mean, exactly?’ the dumbfounded stare is always the same,” he said. “They don’t know what it means, they just know that they hate it.”
Wilson noted that as a prominent anti-Trump Republican, he often is confronted by people who accuse him of being a “socialist, liberal, blah blah blah,” based solely on his opposition to President Trump.
“It always comes down to one thing — you don’t like Trump, therefore your politics are of the left.”
“That’s how they look at everything, though this one prism of ‘are you a socialist liberal or are you Trump supporter?’” “The only thing they can ever say is ‘you don’t like Trump, therefore you’re a leftist. It’s kind of shocking and frightening at the same time.”
Wilson said that none of the characteristics or beliefs shared by him or other anti-Trump Republicans could by any means be considered to be “of the left” – until now.
‘Stabbed in the back’ by moderate Republicans and mainstream conservatives
“[Trump is] great at playing the statist politics of these guys, who Republicans on paper believe are oppressive to human freedom,” Wilson continued. These are the same kinds of “games that Saddam [Hussein] played, and Kim [Jong-un] plays, and [Vladimir] Putin plays.”
Wilson theorizes that Trump’s praise of Putin as an exemplar of “strong leadership” stems from apolitical impulse akin to the “stabbed-in-the-back” myth popularized in Weimar Germany. In the current iteration, Wilson says, mainstream conservatives and moderates Republican stand-in for German Jews.
Charlie Sykes, editor of “The Bulwark” and author of “How The Right Lost Its Mind,” echoed many of Wilson’s sentiments about the zero-sum thinking common with Trump and his supporters. The constant demonization of a hard-to-define enemy is good politics for the president.
“In a lot of ways, this is not surprising for Trump because he’s much more effective running against someone and running against something than running for something,” said Sykes, who hosted a conservative talk radio program until 2016.
“[Trump] needs a foil, so casting the Democrats as dangerous and radical is going to be the formula for his 2020 campaign — to convince his base and swing voters that no matter what his feelings will be, the Democrats are much scarier, that they are coming to catch you, that they hate you.”
Virtue signaling to the right on religious freedom
Sykes said much of Trump’s appeal is predicated on his supporters’ belief that the other sidewants to destroy the things they care about most, particularly regarding religious freedom.
“That’s been a very bright, powerful message to groups like evangelical Christians who have been convinced that religious liberty is on the line because Democrats will rollover their rights,” he said.
Trump and his political allies are purposefully creating an exaggerated, cartoonish image of a political enemy that hates both him and America itself, said Sykes. That way, he doesn’t have to run against a specific policy or a specific idea.
“Trump is trying to make it not about him so that it’s not being pro-Trump or anti-Trump, it’s being pro-American, pro-values, pro-Christian religious liberty,” Sykes said. He referred to Pennsylvania state representative Rick Saccone, who lost a special election to Conor Lamb, a Democrat who now represents the state’s 18thCongressional district. Saccone said that Democrats “hate Trump, hate America and hate God.”
Trump’s rhetoric parallels recent history in strongman states like Turkey, Hungary, Poland and the Philippines
While Sykes maintained that casting his political opposition as vague yet terrifying was in Trump’s own political self-interest, Michigan State Political Science Professor Dr. Erica Frantz warned that the use of such rhetoric parallels recent history in places like Turkey, Hungary, Poland, and the Philippines — countries that have seemingly retreated from the practice of western-style democracy in favor of a more populist authoritarianism.
“What Trump has done is not unique to the United States,” she said. “It’s happened in other parts of Europe and in the developing world as well.” She believes that the American political climate is entering a situation in which anytime anybody speaks out against the president, he and his allies immediately label them as unpatriotic or not loyal to the United States.
“You have very vague rhetoric,” she said. “The virtue of vagueness is that it doesn’t have to pinpoint you to any specific thing.”
“Any category that is vague, loose, and encompasses anybody they don’t like is useful. In this instance, the ‘enemy’ is ‘the left.’”
Is Trump’s political rhetoric paving the way for anti-democratic behaviors?
Frantz noted that such behaviors are effective because pointing to political opposition as an enemy can easily paves the way for anti-democratic behaviors.
“Because those who support the incumbent are fighting against an enemy, they’re going to be more likely to accept such activity,” she said, calling Trump’s talk of declaring a national emergency at the border “very troubling in these contexts.”
“Historically speaking, we’ve seen emergencies being used as opportunities for these individuals to clamp down,” she said, citing Turkey’s ongoing national emergency used by President Recep Tayyip Erdogan as justification for the continued imprisonment of thousands of journalist, academics, and civil society activists.
Because the one thing that can hinder such authoritarian takeovers of an established democracy is resistance from the would-be authoritarian’s own party, elected Republicans’ failure to stand up to Trump could have lasting consequences, Frantz said – particularly if he is able to declare a national emergency on the border without much meaningful pushback or consequences.
Trump’s power within the Republican Party has been bolstered by his outsider status, she said. It’s “not usually not a good thing in established democracies when we see these outsiders suddenly swoop in and win office.”
Kellyanne Conway’s Hatch Act Defense Doesn’t Hold Water, Experts Say
As the House prepares for a hearing on her and other Trump administration officials’ Hatch Act violations, ethics experts say Conway’s defense is without merit.
WASHINGTON, June 24, 2019 — Counselor to the President Kellyanne Conway says a federal ethics law prohibiting government employees from using their position for partisan activities doesn’t apply to her. Ethics experts say she’s wrong.
The President’s close adviser and former campaign manager found herself in hot water early this month after the Office of Special Counsel -recommended she be fired for violating the 80-year-old ethics law multiple times. The office is an independent agency responsible for enforcing the Hatch Act’s prohibitions against partisan activity by federal workers.
The OSC is not a part of the Justice Department, and its activities are unrelated to the high-profile probe conducted by the Special Counsel’s Office that had been led by Robert Mueller.
While the White House has taken no action against her, the OSC’s report has attracted the attention of the House Committee on Oversight and Reform and its chairman, Rep. Elijah Cummings, D-Md. On Friday, Cummings’ office requested Conway’s presence at a Thursday hearing on Hatch Act compliance under the Trump administration.
If Conway follows the usual Trump administration practice of ignoring requests for administration officials to testify before Democratic-led House committees, Cummings plans to have committee members vote to authorize a subpoena for her testimony.
One person who will be testifying, however, is Special Counsel Henry Kerner, a Trump appointee who, according to prepared testimony released by the House Oversight Committee, plans to harshly criticize Conway’s conduct.
“As stated in OSC’s 2019 report to the President, Ms. Conway’s egregious and repeated Hatch Act violations, combined with her unrepentant attitude, are unacceptable from any federal employee, let alone one in such a prominent position,” Kerner is expected to say Wednesday. “Her conduct hurts both federal employees, who may believe that senior officials can act with complete disregard for the Hatch Act, and the American people, who may question the nonpartisan operation of their government.”
According to the OSC’s report, Conway “violated the Hatch Act during media appearances” by making derogatory statements about Democratic presidential candidates while she was speaking in her official capacity as Counselor to the President, and by retweeting Trump campaign messages on the same Twitter account she uses for official business.
The OSC report also noted that Conway had previously been found to have violated the law when she endorsed Alabama Senate candidate Roy Moore during a 2018 special election, and that she “scoffed at her responsibilities under the Hatch Act and ridiculed its enforcement” during a May 29 media availability, when she responded to questions about her past Hatch Act violations by asserting, “Let me know when the jail sentence starts.'”
“Her defiant attitude is inimical to the law, and her continued pattern of misconduct is unacceptable,” the report said.
Conway is defiant in a Fox News appearance
During a Monday appearance on Fox News, a defiant Conway hit back against the OSC’s findings by claiming that it isn’t clear that the law applies to her and other senior White House aides. She also accused the Office of Special Counsel of doing the bidding of “left-wing” groups who “want to put a big roll of masking tape over [her] mouth” and restrict her First Amendment rights.
Conway later took to Twitter to promote a memorandum by the White House Counsel’s office, which accused OSC of using an “overbroad and unsupported interpretation of the Hatch Act” that “risks violating Ms. Conway’s First Amendment rights and chills the free speech of all government employees.”
But ethics law experts say the arguments put forth by Conway and the White House Counsel don’t hold water.
According to Campaign Legal Center Ethics Counsel Delaney Marsco, Conway’s defense fails when it comes to both the facts and the law.
“The Hatch Act specifically says that any individual other than the president or vice president employed or holding office in an executive agency other than the Government Accountability Office is covered by the Hatch Act,” Marsco said in an interview with Breakfast Media. She added that the Office of Special Counsel has repeatedly said so “multiple times.”
Additionally, Marsco noted that the Supreme Court had two chances to say that the Hatch Act’s restrictions violate government workers’ First Amendment rights, and has declined to do so both times — first in 1947, and again in 1973.
Marsco said the argument Conway and the White House Counsel are putting forth by suggesting that her right to free speech is being violated shows “a fundamental misunderstanding of the law and the power that comes with being a federal employee.”
“The Hatch Act contemplates that being a member of the federal government gives you power, and you should not be able to use the power and influence you have as a federal government employee to influence the results of an election,” she said, adding that Conway’s conduct “undermines the faith the public has in the federal government.”
Conway would have an easy fix to avoid violating the Hatch Act on Twitter
She added that Conway could have avoided violating the Hatch Act on Twitter if she’d used a separate Twitter account in her official capacity as Counselor to the President. Her failure to do so, Marsco said, “blurs the lines” between what Conway might say on her own time and what she says in her role as a spokesperson for President Trump.
Nick Schwellenbach, a former Office of Special Counsel staffer and the current director of investigations at the Project on Government Oversight, said Conway’s claim that her criticism of candidates’ policy preferences doesn’t violate the law “mischaracterizes the full scope of what the Hatch Act prohibits.”
“[Conway] said [the Hatch Act] only prohibits talking about individual candidates, and that’s just not true,” Schwellenbach said in a phone interview with Breakfast Media.
“Political activity is not just saying, ‘hey, vote for this candidate, vote against this candidate, or vote against that one.’ It can be ‘vote for this party or support Republicans or support Democrats because of their policies,'” he said.
“You can do that on your free time as an individual, but if you’re the spokesperson for the White House, you can’t do that.”
Schwellenbach said the provision of the Hatch Act cited by Conway and the White House Counsel to support their argument that the law doesn’t apply to high-ranking White House officials doesn’t exonerate her, either.
That provision, Schwellenbach said, is limited in scope and meant to cover a limited set of activities, such as fundraising phone calls by a White House official who also holds positions within an incumbent president’s campaign.
“It’s about reimbursement,” he said. “Not going on TV.”
A third Hatch Act expert, Washington attorney Bradley Moss, said Conway’s claim that she is not covered by the Hatch Act is entirely without merit, and shows how uninterested the Trump administration is in complying with any of the ethical or legal obligations adhered to by both Republican and Democratic administrations.
“For generations, senior White House advisors have managed to find a way to comply with the requirements of the Hatch Act, or made adjustments to their practices if isolated violations were identified,” said Moss, a partner with the law firm of Mark S. Zaid, P.C. whose practice encompasses federal employment law matters.
“Kellyanne Conway’s outright disregard for the Hatch Act is consistent with this Administration’s general disinterest in complying with a range of ethical restrictions regarding which we have been accustomed to public officials treating with respect.”
White House Adviser Kellyanne Conway Should Be Fired For Repeated Ethics Violations, Watchdog Agency Says
WASHINGTON, June 13, 2019 — The independent agency responsible for ensuring compliance with the Hatch Act has recommended that Counselor to the President Kellyanne Conway be fired for repeated violations of that law.
The Hatch Act prohibits federal employees from engaging in partisan political activity while in federal employment.
Conway, the agency said, “violated the Hatch Act on numerous occasions by disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media.”
“Given that Ms. Conway is a repeat offender and has shown disregard for the law, OSC recommends that she be removed from federal service.”
As Conway’s supervisor, President Donald Trump is ultimately responsible for deciding whether she will be disciplined for violating a well-known law that has been on the books since 1939. But he did not take any action when she was found to have previously violated the same law.
In a statement, White House Deputy Press Secretary Steven Groves hit back at the agency’s “unprecedented actions” against Conway, calling them “deeply flawed” and a [violation of] her constitutional rights to free speech and due process.”
Groves added that OSC’s decision appeared to be influenced by “media pressure and liberal organizations.”
“Perhaps OSC should be mindful of its own mandate to act in a fair, impartial, non-political manner, and not misinterpret or weaponize the Hatch Act.”
This is a developing story, check back for details.
As Dems Probe Whether Census Is Being Rigged Against Minorities, Trump Claims Executive Privilege Over Commerce Department Docs
WASHINGTON, June 12, 2019 — President Trump will invoke executive privilege to keep the House Oversight Committee from viewing documents that could shed light on whether Commerce Secretary Wilbur Ross’ decision to include a citizenship question in the 2020 census was motivated by racial or political animus, a Commerce Department official said Wednesday.
In a letter to House Oversight Chairman Elijah Cummings, Commerce Department Legislative Affairs Director Charles Kolo Rathburn said Cummings’ decision to go ahead with a vote to hold Ross in contempt forced Trump’s hand.
“It is disappointing that you have rejected the Department of Commerce’s request to delay the vote of the Committee on Oversight and Reform on a contempt finding against the Secretary this morning. By doing so, you have abandoned the accommodation process with respect to the Committee’s January 8, 2019 request for documents and information and April 2, 2019 subpoena for documents concerning the Secretary’s decision to reinstate a citizenship question on the 2020 Census,” said Rathburn, a political appointee who is performing the duties of the Assistant Secretary [of Commerce] for Legislative Affairs because President Trump has not nominated anyone to fill the Senate-confirmed position.”
“Accordingly, I hereby advise you that the President has asserted executive privilege over the specific subset of the documents identified by the Committee in its June 3, 2019 letter — documents that are clearly protected from disclosure by the deliberative process, attorney-client communications, or attorney work product components of executive privilege.”
Additionally, Rathburn said Trump will use the privilege to withhold all documents the committee had subpoenaed on April 2 as part of its investigation into whether the his administration’s plan to add a citizenship question to the 2020 census was an attempt to reduce the counted population of Democratic-leaning minority groups.
The decennial census, a requirement laid out in Article I, Section II of the Constitution, is required in order to determine how many seats in the House of Representatives — and electoral votes — will be allocated to each state.
Because the Constitution requires the census to count “the whole number of persons in each state,” most experts say a question on citizenship — a subject which the census has not asked about in more than half a century — is unnecessary.
While the Commerce Department says adding the question is necessary — even without performing the statistical testing required by law — to better enforce the Voting Rights Act, experts also say adding such a question would result in fewer responses from Latino households in which some members are undocumented.
After a number of states sued the Trump administration in hopes of blocking Ross from adding a question that could potentially cause them to lose representation in Congress, a district court judge found the Commerce Department to have violated the Administrative Procedure Act by acting in an “arbitrary and capricious” manner when deciding whether to add the question.
The judge’s detailed finding of fact did not address whether the Trump administration’s decision to add the question was motivated by a desire to hurt Democrats or dilute minority representation, and the administration’s appeal is currently before the Supreme Court.
But the case was upended last month after the progressive advocacy group Common Cause obtained a cache of documents from the daughter of a deceased GOP redistricting expert.
Those documents reveal that the expert, Thomas Hofeller, had corresponded with Commerce Department officials and other top Republicans about how the GOP could gain an advantage from the addition of a citizenship question to the census.
As a result, members of Cummings’ committee are hoping to look into whether Ross or other administration officials committed perjury when testifying before Congress or as part of the lawsuit over the citizenship question.
While the President customarily has broad latitude when claiming executive privilege — meant to protect presidential communications so as to give the chief executive the benefit of candid advice — courts have placed some restrictions on its uses.
In 1974, a unanimous Supreme Court held in United States v. Nixon that a president could not use a claim of executive privilege to defy a judicial subpoena.
But one executive privilege expert — University of Virginia law professor Saikrishna Prakash — cautioned that the Nixon ruling does not apply to a Congressional subpoena.
“[The] Nixon [case]…was…an actual prosecution as opposed to Congress being involved, and the court…set aside the question of whether [executive] privilege ought to apply or how it would apply to Congress,” said Prakash, a Senior Fellow at UVA’s Miller Center.
“The [Supreme] Court has never said how the executive privilege applies to Congress if it does apply to Congress, but the lower courts seem to think that it does.”
Prakash predicted that the Trump administration’s invocation of executive privilege will be “the first step in a complicated dance” which will most likely end with some sort of negotiated settlement between the administration and Congress.
But if the White House asks the judicial branch to declare that the President can use executive privilege to block Congressional investigations, Prakash said it’s possible that a court would find that Congress’ interest in determining whether members of the executive branch broke the law to be sufficient enough to pierce the veil the administration hopes to draw around its actions.
“One could always say, ‘we’re worried about the possible, uh, possible, uh, uh, possible crimes by executive branch officials and therefore we need this information.’ If that’s enough to overcome the privilege, you might understand that as saying that, in effect, there is no privilege vis-a-vis Congress.”
“That might very well be the right answer, but it’s not an answer that the courts have given us yet,” he said, adding that House Democrats will most likely use such an argument if they try to enforce their subpoena in court.