Saturday, June 22, 2019

Iran And Impeachment

Did the impeachment question play into Trump's decision not to launch an attack on Iranian assets? The obvious answer is: Maybe yes, maybe no. However, there's a second question: Did impeachment play into Democrat calculations? While the answer remains the same--maybe yes, maybe no--my inclination is to believe that it was a significant factor. Consider this--it's a video that purports to show Chuck and Nancy in a celebratory after the meeting at the White House:

Well now we know why Chuck and Nancy were celebrating last night. They thought the Deep State had goaded Trump into war, exactly as they planned with their FF. Trump outsmarts them again!


Now, it's entirely possible that Chuck and Nancy were in a celebratory mood because they agree with the likes of Pat Buchanan and Carlson Tucker that war with Iran would guarantee Trump as a one-term president. That would be understandable. However, depending on how such a war proceeded, as well as other political factors, I believe that the Dems may have believed that war with Iran could have put them in a stronger position to impeach Trump for exceeding his war powers--and to make the impeachment stick.

As I understand it, the argument for authority to enter into war against Iran rests on the 2001 AUMF. Here's an excerpt from a Bloomberg article that goes into that issue in considerable detail:

Underlying the debate over war powers is the Constitution’s ambiguous language, which makes the president commander-in-chief of the military but gives Congress the authority to declare war. It’s also a dispute over the 2001 “authorization for the use of military force” -- or AUMF -- that Congress passed to endorse military action in Afghanistan days after the Sept. 11 attacks. Presidents have invoked it to justify interventions abroad ever since. 
In the Democratic-controlled House, members passed an annual defense funding bill on Wednesday with a provision sponsored by Democratic Representative Barbara Lee that would repeal that AUMF. The Republican-controlled Senate is likely to strip out the provision when it acts on the appropriations measure. 
The 2001 authorization of force focused on al-Qaeda, the terrorist group behind the Sept. 11 attacks, and those associated with it. 
Senators left a classified briefing Wednesday on last week’s tanker attacks convinced that Iran was behind them but divided on whether Trump could invoke the 2001 AUMF to carry out military retaliation against the Islamic Republic.
Members who were in the briefing disagreed on whether administration officials alluded to alleged ties between al-Qaeda, a Sunni militant group, and Shiite-led Iran in what may be the latest rationale for a president to take military action under the existing AUMF.

Libertarian law professor, Ilya Somin (of the Scalia Law School at George Mason U.), argued last month that an attack on Iran without Congressional authorization would violate the War Powers Act. That's significant, because Somin is, self confessedly, more hawkish than most libertarians. He makes his argument with particular reference to the US's role in the Yemen conflict and the Congressional resolutions in opposition to that role. Somin is well aware that Obama also violated the War Powers Act, but of course Obama is no longer president, so he can't be impeached. Trump is president, and the fact that Obama got away with something in the past is no argument against impeaching Trump for actions in the present. Somin:

Even as  the debate over a possible US confrontation with Iran continues, the US continues to support the Saudi-led war against Iranian-backed Houthi rebels in Yemen. Last month, President Donald Trump vetoed a congressional resolution that would have terminated US military aid to Saudi Arabia and its allies in the Yemen conflict; the resolution was backed by virtually all congressional Democrats, as well as seven Republican senators and sixteen GOP members of the House. 
But Trump's veto of the resolution is not enough to make the US role in this conflict legal. It is still in violation of the 1973 War Powers Resolution (also known as the War Powers Act). That legislation forbids the "introduction" of US forces into "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances," for a period of more than 90 days without congressional authorization (an initial 60 day period, followed by an additional 30 day extension). Significantly, the WPR defines "introduction" into hostilities to include "the assignment of member[s] of [the US] armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities." 
Trump's veto of the recent Yemen Resolution does not change that. ... The Trump administration, like the Obama administration before it, remains in violation of the WPR. 
This case is by no means the first recent illegal presidential use of war powers. The Obama administration, for example, started an illegal military intervention in Libya, which violated both the War Powers Act and the Constitution (which reserves the power to initiate war to Congress). Obama also started—and Trump continued—the war against ISIS without proper congressional authorization. But the fact that illegal US involvement in the Yemen conflict is not a unique case doesn't make it right. To the contrary, the ongoing nature of the problem makes it all the more important for Congress to reassert its control over the initiation of war. ... 
There is plenty of room for reasonable disagreement over how best to deal with the danger posed by Iran. I am very skeptical that all-out war is the right approach. But I am also somewhat more hawkish than many other libertarians, and more open to various types of military action than many of them.
But regardless of the specific policy in question, we should be able to agree that the US should not initiate war without proper legislative authorization. For the moment, President Trump seems to have overruled his more hawkish advisers and tried to pull back from military confrontation. But that decision should not rest in the hands of the president alone. As James Madison put it, "the trust and the temptation would be too great for any one man."

I recommend the entire article.

The overriding point is this: An impeachment based on presidential abuse of his war making powers would automatically have more support among GOPers than any other basis for impeachment. If the war were going badly, if Iran had unleashed the terrorist capabilities that it's alleged to have around the world, the GOP support could come close to tipping the scales toward conviction. Even if the war were not an immediate disaster, it would tend to box in the president. So, again, it's no wonder that Chuck and Nancy might be in a celebratory mood. Of course this is a chess game, but if the King should be willing put into play, placed in jeopardy, that gives Dems reason for good cheer.

In this context, the recent words of a retired Major General are worth considering:

There is no need to start shooting at Iran. Indeed, if you thought the war in Iraq was a difficult slog, then a war with Iran would be infinitely harder. 
The United States should instead be using all of its diplomatic power to reduce tension before a minor miscalculation turns into a major conflagration. Rather than suspecting that Iran wants to get into a fight, Washington should listen to the words of senior Iranian officials like the Supreme Leader, who hopes to avoid a conflict. 
The Washington foreign-policy elite will make the case that Iran is an implacable adversary that wants regional hegemony; that its nuclear weapons development is an imminent threat and that the current crop of rulers in Tehran cannot be reasoned with. Other people will comment that the maximum pressure campaign against Iran’s economy is not working well enough or fast enough, and that more aggressive options may be necessary. 
All or some of that may be true. But none of it justifies the American people tolerating their president’s carting them off to yet another foolhardy war against an “enemy” that can be dealt with through less coercive means. 
If the administration doesn’t get smart, then Americans may experience the same sorry process that is no more thought through than the strategic tour de force that has brought them the wars in Iraq and Afghanistan.

All that said, let's turn to another player in all this whose name has not come--to my knowledge. That would be Bill Barr, the Attorney General.

Anyone glancing at my remarks about Barr might be excused for thinking that I think he walks on water. In actual fact I don't agree with all his views, although I do believe that he's by far the right man for the job at this point in time. In the past I've emphasized--with specific reference (obviously) to the Russia Hoax--Barr's wealth of legal and political experience in national security and intelligence related issues. Of great relevance to the question of Iran and impeachment is the fact that Barr was Deputy AG during the Gulf War and AG for the last two years of the Bush 1 administration--during which the Gulf War and related concerns still loomed large. In fact, Barr ended up being a key legal adviser with regard to the Gulf War. With that in mind, Trump would be a fool if he didn't turn to Barr in the current crisis for advice. It's true that Bolton and Pompeo both have legal backgrounds, but they're pygmies compared to Barr when it comes to the combination of legal knowledge and political experience in warfare related matters.

In the past I've pointed out that Barr is well known as a resolute defender of the unitary executive theory. There are both "strong" and "weak" versions of the theory, and they both have implications for the question of a president's war making powers. What are Barr's views? That's difficult to say for a number of reasons, but an article from just a month ago examines Barr's views, to the extent that they can be determined. The article itself, Bill Barr’s Extreme Views on War Powers Mean Congress’s Window to Stop War with Iran is Now, was written by former members of the Obama administration and, I think, can be fairly characterized as relentlessly hostile toward Barr. Nevertheless, that should actually provide us with some insight into the tack that Democrats might take with regard to impeachment, as well as the thinking behind Trump's decision.

While Trump's veto of the Yemen resolution--and the possibility that Barr offered advice on that veto--gives me pause, my expectation is that Barr recognizes the difference between past presidential exercises of war power and the present situation. In the leadup to the Gulf War G. H. W. Bush was careful to assemble broad support, as did G. W. Bush for Desert Storm. While the military actions that were recently contemplated certainly didn't rise to the level of those two conflicts, Ilya Somin is certainly correct (IMO) in maintaining that it would nevertheless fall under the War Powers Act. My hope and expectation is that Barr, with all his experience, would recognize that in the current situation the danger to the executive would be greatly increased by an unambiguous act of war without Congressional authorization that unambiguously relates to the actions that were undertaken. Trump's decision accomplished many things, and one of those things was avoiding that predicament while also refusing to cede any executive authority.

Now, turning to that article and the question of what Barr's actual views might be ... As you read, please disregard the natural inclination to view the views expressed by the authors of the article as hypocritical, in failing to criticize Obama's actions. As I said above, Obama is no longer president. The only person who is currently under threat of impeachment is Donald Trump, and hypocrisy is no bar to that.

The article begins with a clear statement of perspective that, quite frankly, could well be taken to reflect the view of many supporters of Trump:

For those who believe a U.S. war with Iran would be disastrous for regional stability, U.S. national interests, and the civilians who would be caught in the crossfire—and for those who believe any decision on bringing the country into war must require public debate and congressional approval—this is a worrying  moment. In this post, we will explain (1) why President Trump’s stated preference for staying out of war with Iran is not a sufficient anti-war insurance policy; (2) why Attorney General William Barr’s extreme past positions on unilateral presidential power could cut out any required role for Congress in authorizing or rejecting war; and (3) what Congress can—and must—do to retain its constitutional role and to keep the administration from dragging the country into a war it doesn’t need or want.

Starting from that perspective, the authors recognize that Trump is on record as opposed to involving the US in further wars. Nevertheless, they sound a warning which, in all fairness, applies to Obama as well as other past presidents. It is their rationale for urging Congressional action and not relying on Trump's stated preferences:

Over the years, successive presidents have staked out increasingly expansive claims of unilateral authority to use force without congressional approval, as reflected in opinions of the Office of Legal Counsel (OLC) in the Department of Justice. And while even these opinions could not—at least in recent years—fairly be read to justify unilaterally drawing the country into full-blown war, we should not stake much on OLC serving as a brake, considering the views of the current Attorney General under whom that office sits. Even read against the backdrop of OLC’s executive-power-friendly past opinions, Attorney General Bill Barr’s views on the President’s unilateral war powers stand out as alarmingly expansive.

The authors then turn to Barr's expressed views, and at this point I think the weakness of their analysis and their characterization of Barr's views begins to show. The authors rely on an interview with Barr that took place in Spring 2001. In that interview Barr did straightforwardly repeat the legal advice he gave to G. H. W. Bush:

We knew the issue would eventually come, and the President would need some advice on the parameters of his power. First, I believed that the President did not require any authorization from Congress, and I believed that the President had constitutional authority to launch an attack against the Iraqis. But I also knew that it didn’t much matter what I thought, because that’s what he was going to do. He believed he had the authority to do it, and that’s ultimately more important than what I believe.

What's important to note here is that Barr is expressing his conclusion regarding a very specific fact situation. He's not making the blanket assertion that a president has unilateral authority to launch attacks against foreign countries for any reason or simply on a whim. Barr then gives his own version of his words to the President:

I said, "Mr. President, there’s no doubt that you have the authority to launch an attack. I explained why I thought he did under the Constitution as Commander-in-Chief, and I gave him some different theories."

"Theories". Not simply, Hey, my theory of the Constitution says you're CINC so, go for it! Multiple theories. But then, after a brief discussion of an additional theory--a theory in addition to those already presented--that a preemptive, defensive action could be undertaken if the already deployed troops were believed to be threatened, Barr recounts the discussion that ensued. I believe it deserves to be quoted in full, because it illustrates that Barr has a broader view that embraces both law and politics in the exercise of power by a president:

I said, "However, Mr. President, even though you have the power to do this unilaterally, without any consultation with Congress or what have you, you certainly would be in a better position, the strongest possible position, if Congress did pass a resolution. It would not be the law. It wouldn’t be a statute authorizing you to do it, but a resolution supporting what you did." 
The reason I say that is because on the Hill at that point they were actually talking about passing a resolution that said the opposite, that he could not use force unless he got their approval. There were some in the administration who were saying, "Just let them do it, screw them, ignore them, and let them pass whatever they want." 
I said, "I think it’s better to get up there and engage, to get up there and see if we can head off that kind of resolution and, in fact, get a resolution in support of it." He said, "Well, suppose they pass a resolution saying I cannot do it. What impact does that have?" I said, "It’s irrelevant. It’s not a statute. It’s just an expression of opinion. They can’t change the Constitution by expressing their opinion on the matter. I would say you could still do it." 
But I said, "I think, under Justice [Robert H.] Jackson’s opinion in Youngstown, if Congress is with you on this and does something supportive, then you’re in your strongest possible position. But even if they don’t, I think you’re okay."
[I need to add here that Justice Jackson's opinion, while very influential, is nevertheless not a holding in the strict sense. It's basically a legal opinion, not actual binding precedent.] 
And Cheney said, "You’re giving him political advice, not legal advice." I said, "No, I’m giving him both political and legal advice. They’re really sort of together when you get to this level." Then there was a debate as to whether he should get up on the Hill and push. I was saying he should, and Boyden Gray was saying he should. There were others who were opposed. Eventually he made the decision after that meeting that he would. The White House went full bore on that vote and got the vote turned around, and then ultimately won the vote. That was an interesting experience. I enjoyed that.

So from this we see that, while in 2001 Barr was maintaining that President Bush was authorized to launch an attack against Iraq--for multiple theories that he doesn't express. However, Barr was also strongly maintaining--against opposition that may have included the Vice President--that the president should engage with Congress on this issue.

As a result, I think it would be speculative to transpose Barr's views as of 2001 to the present. Barr, I believe, is keenly aware of the political dynamics at the present time. He is a determined supporter of the executive, but also--as the interview shows--ready to advocate flexible approaches rather than simply tilting at a windmill in the name of a theory. That approach, expressed in a situation in which the president was not under the threat of impeachment already, would apply all the more to the present. Thus, my belief is that Trump did the right thing, and my hope is that he did consult with Barr.


  1. Context matters. Trump has been under serious attack by the Deep State since before his election, and that aggression continues to this day. You can't get any more serious than an attempted coup, and the current offensive is to politically justify a successful impeachment and conviction in the Senate. I count at least 6 sitting RINO senators that would likely vote to convict if the House impeached and made a plausible argument for removing Trump from office. That's still a long way from success, but the Deep State would then be emboldened to escalate still further.

    The Deep State is continually trying to goad Trump into making a fatal mistake, and he is not getting much help in fending off these attacks. If Trump starts firing the Deep State plants in his administration, the medial will cry Saturday Night Massacre. If he unilaterally declassifies the smoking gun documents, the media will cry political dirty trick revenge. If he stands pat and attempts to wait out the assault, they will continue to ramp up their attacks with increasing severity. He needs and deserves some support from the sidelines. Lindsey Graham could spin up his Senate Judiciary Committee and begin firing back. McConnell could tamp down the RINOs in his caucus and let them know that there will be serious repercussions for continued treachery. But most of all, Barr could bring forth a straightforward indictment of Strzok (amendable later with more charges) and send a message that he too is playing for keeps and the DC Double Standard is no more.

    1. I unwisely thought that Graham might provide the needed support, after he won praise during the Kavanaugh hearings.

      McConnell has his own issues, and has only limited sway over senators--that's the reality of the Senate. The same dynamic works among Dems, where a freshman Dem senator regularly votes for Trump's judicial nominees, thumbing her nose at Chuckie. That's the way the Senate is.

      I don't expect an early indictment of Strzok simply because he is almost certainly an important witness for the cases against Brennan, Comey, and Clapper--in the big scheme Strzok is a small fish.

    2. While Gentleman Jeff Sessions was doing absolutely nothing, congressional investigations of FBI/CIA/etc. were necessary to try to provoke the DoJ into action.
      Now, congressional investigations of FBI/CIA/etc. would interfere with Barr/Durham. I think Graham knows that so is happy to simply cheerlead.

    3. Possibly so. I'm turned off by his war mongering--that's not the kind of support Trump needs, IMO. Attorney General is a position in which any president needs to loyal, honest, and above all competent adviser. Trump now has an AG in Barr who exhibits all those qualities, so I hope he's using him as a close adviser on many, even most, issues--both political as well as legal.

  2. I think Strzok will fight to the bitter end and not turn state's evidence against the coup conspirators. He strikes me as being a committed ideologue who would prefer a martyr outcome. Lisa Page is another story altogether. She has young children and a lengthy prison term would devastate her home life. She has every incentive to cooperate and also would make a compelling witness in later prosecutions. If Strzok is indicted, my guess is that the dam breaks as far as whistleblowers coming out of the shadows and stepping up with evidence and testimony. I don't see these people taking on personal risk until they see demonstrable evidence that Barr is serious.

    1. Obviously I don't know any of these people personally. However, ...

      1. Anyone who has lawyered up, and virtually all of them have, will probably seek a deal. The exception, IMO, will not be ideologues but people with the most to lose and who think the expense of a trial for some reason is worth the gamble. But that calculation will be based on strictly legal factors--what they think DoJ can prove. Strzok has a huge incentive to cooperate and get the best deal possible--the possibility of serious jail time. That will not be easy for him, a former LE.

      2. The other factor, of course, is the willingness of DoJ to make deals. That is likely to be fairly limited. I do think Strzok, because of his key role as runner between the major players will be offered a deal.

      3. If you want to know who Barr's real targets are, look no further than the 1/5/17 Oval Office meeting.

    2. Anyway, the notion that any of these people are waiting to be convinced that Barr/Durham are serious is seriously--half baked. Barr/Durham have decades long track records. The defense lawyers have already advised their clients just how serious Barr/Durham are. Any lawyer telling his client otherwise runs the risk of a malpractice suit later on. The various targets are NOT waiting to be convinced that Barr/Durham are serious. They're waiting for them to finish the documentary parts of the investigation, hoping to enter negotiations. The smart ones have explored making proffers if they think they have valuable, time saving info.

      OTOH, for prosecutors to simply go ahead with indictments at this stage runs the very real risk of turning off cooperation when it's needed most--at the investigative stage. This investigation is still very much in process. Strzok is at the heart of it, but he's down the ladder from the real targets. He's already cooperated "fully" with OIG, so you should know from that that he's not looking to be a martyr.

    3. The simple fact is that there won't be indictments before Horowitz finishes his FISA report. Not unless he comes out with some other report. In the meantime, Barr/Durham are honing in on the ICA.

  3. I agree that the criminal targets are very fearful of the Barr/Durham investigations and fully aware of their legal exposure. But the problem isn't just a few bad apples at the highest levels of the Obama Administration. It is the systemic nature of the corruption that infected the Executive Branch during Obama's 8 years in office. That criminality became (and still is) pervasive and corrosive. To remedy that you will need many whistleblowers to come forward with tales all across the spectrum of agencies and levels of personnel. We have already seen examples where a few brave whistleblowers have been persecuted by Obama holdovers while on Trump's watch. This needs to change. The solution is not just a Trial Of The Century, it's chemotherapy for the cancer in the bureaucracy.

  4. Stop misrepresenting me.

    Nobody said there's just a few bad apples.

    Nobody's talking about just a Trial of the Century.

  5. Changing the subject for a moment, has there been any clarification of the question whether our $240 million shot-down drone was or was not flying over international waters. Seems to me this is an important point.

    1. Absolutely, it is. Right now it's still a matter of dueling GPS coordinates between the US and Iran. But it's a bit more complicated than that.

      H Bruce Franklin, a former Air Force navigator and intelligence officer, writes (in part):

      "Assuming that for once Washington is telling the truth, it is still undeniable that Iran has a legal right to demand identification from any aircraft flying this near its territory. The United States maintains Air Defense Identification Zones extending out 200 miles form our borders and routinely uses jet fighter planes to intercept aircraft flying within these zones if they have not identified themselves. (On the other hand, the Strait of Hormuz is 21 miles at its narrowest point.) Any unidentified drone flying within 17 miles of the US would most likely be shot down."

      You can see why it would be a good idea to have Barr in on these discussions. And why a bad decision could be used against Trump for impeachment purposes. He has very little leeway for error, and neither the Dems nor the Neocons care about protecting his presidency.

    2. The Dems and the Neocons may not care about the DJT presidency, but about 165 million of us care a great deal. We're called voters.

      And we're looking forward to them hearing from us in 2020 again. If the Dems think that they have problems now, just wait until they impeach him.

      They'll find out that celebrity worship and owning the media only go so far.

  6. FWIW:

    While the Iranians might be lying, so might we...


    1. One wonders whether Trump might have been told the truth, might have demanded it, and that was part of the reason he canceled the war.