[Lost in the Sauce] Trump attempts to rule by fiat, courtesy of John Yoo

Welcome to Lost in the Sauce, keeping you caught up on political and legal news that often gets buried in distractions and theater… or a global health crisis.


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John Yoo returns

Do you remember John Yoo? During the George W. Bush administration, Yoo worked in the DOJ’s Office of Legal Counsel (OLC) under Attorney General John Ashcroft. While there, he authored the so-called Torture Memos, which provided a legal rationale for the torture of detainees during the War on Terror. Yoo also provided a legal opinion backing the Bush Administration’s warrantless wiretapping program. He is a member of the Federalist Society and, surprisingly, still holds a prestigious position at UC Berkely.

Trump has seized on a recent argument by Yoo that the Supreme Court’s DACA ruling actually gives the president immense new powers. In his view, President Obama lacked the legal authority to implement the DACA program through an executive order – yet, in a 5-to-4 decision by Chief Justice Roberts, the Supreme Court did not strike down Trump’s challenge to the law. For this reason, Yoo believes that Trump, too, has the authority to use executive orders to create and subvert practically any laws he chooses.

However, this argument ignores that SCOTUS only rejected the way the Trump administration went about trying to abolish DACA. The majority found that Trump had the authority to revoke the program, had he gone through the proper procedures to do so lawfully:

“We do not decide whether DACA or its rescission are sound policies,” Roberts wrote. “The wisdom of those decisions is none of our concern. Here we address only whether the Administration complied with the procedural requirements in the law that insist on ‘a reasoned explanation for its action.’ “

Back to Yoo’s article:

Suppose President Donald Trump decided to create a nationwide right to carry guns openly. He could declare that he would not enforce federal firearms laws, and that a new “Trump permit” would free any holder of state and local gun-control restrictions.

Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency. And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two.

According to Axios, Yoo’s National Review piece has been “spotted atop Trump’s desk in the Oval Office,” and the president “has brought up the article with key advisers.” Yoo told the Guardian that he has been consulting with White House officials on the matter.

Then, in July, Trump appeared on Fox News where he told Chris Wallace:

“We’re signing a health-care plan within two weeks, a full and complete health-care plan that the Supreme Court decision on DACA gave me the right to do. So we’re going to solve — we’re going to sign an immigration plan, a health-care plan, and various other plans . . . The Supreme Court gave the president of the United States powers that nobody thought the president had, by approving, by doing what they did — their decision on DACA.” (video)

Ruling by fiat?

Fast forward to last week – the health-care plan never arrived, neither did the immigration plan Trump spoke of. Instead, Trump is beginning to exercise his alleged “powers that nobody thought the president had” by issuing four so-called executive orders to bypass Congress’s coronavirus relief negotiations.

Despite Trump’s marketing, only one is an executive order, the other three are memos.

  • The extra $400 a week in unemployment benefits is actually only $300 a week from the federal government and only provided if states can pick up the tab for 25% ($100) of the total $400 additional benefit. Covid blasted huge budget holes in every state in the nation; it is unlikely most will be able to provide thsi requisite 25%. Furthermore, each state will have to set up an entirely new system to deliver the aid, which will take a long time.
  • Trump did not prevent evictions, he just asks the HHS and CDC to “consider” whether an eviction ban is needed. Trump also didn’t provide any more money to help renters, but simply calls on the Tresury and HUD to see if they could find any more funds to help out.
  • The hyped – and crtiicized – payroll tax “cut” is actually just a deferral. The memo defers the due date through December 31. That’s all. Payroll taxes will still be due.
  • Similarly, Trump’s final memo defers student loan payments until the end of the year.

Where did Trump’s immense new powers go? Actual legal experts who examined Yoo’s arguments explain that they never existed in the first place.

“I think [Yoo] must be on some kind of drug,” said Laurence Tribe, a longtime constitutional scholar at Harvard. The court’s decision “did not even remotely provide a blueprint for the kind of lawlessness John Yoo seems to be trying to convince this president” to undertake, Tribe said. Leah Litman, a constitutional law professor at the University of Michigan, said the Trump administration’s tendency to cut corners on such legal requirements has had consequences. “The administration has a horrendous track record in the Supreme Court and in the lower federal courts in cases involving the Administrative Procedure Act, which requires the administration to give reasonable arguments and legitimate explanations for its policy choices,” Litman said.

“Yoo’s argument is based on a misunderstanding of the DACA policy, and an even worse misunderstanding of the Supreme Court’s decision in the DACA case,” [Litman] said. “Neither would stand up in court under any kind of scrutiny.”

Even Trump’s limited suggestions regarding the pandemic are likely to be challenged in court, as he himself acknowledged. But at least his paying customers got some free pens.

Facebook tilts the scales

Facebook reportedly cleared misinformation “strikes” against several posts by conservatives in an apparent attempt to prevent them from being banned. “It appears that policy people have been intervening in fact-checks on behalf of exclusively right-wing publishers to avoid them getting repeat-offender status,” a Facebook employee wrote in an internal policy discussion group.

…some of Facebook’s own employees gathered evidence they say shows Breitbart — along with other right-wing outlets and figures including Turning Point USA founder Charlie Kirk, Trump supporters Diamond and Silk, and conservative video production nonprofit Prager University — has received special treatment that helped it avoid running afoul of company policy. They see it as part of a pattern of preferential treatment for right-wing publishers and pages, many of which have alleged that the social network is biased against conservatives.

  • Furthermore, NBC News cited anonymous Facebook employees who said members of company leadership “deleted strikes during the review process that were issued to some conservative partners for posting misinformation over the last six months.”

An Instagram ‘bug’ heavily favored Trump re-election’s campaign content over Biden’s for months… Not only has the algorithm been returning more Trump-brand content on tag searches but that content has been overwhelmingly positive with nary a negative connotation to be seen.

Facebook’s fact-checkers have ruled claims in Trump ads are false — but no one is telling Facebook’s users because the company specifically exempts politicians from its rules against deception. Ads containing the falsehoods continue to run freely on the platform, without any kind of warning or label.

Fact-checkers were unanimous in their assessments when President Trump began claiming in June that Democrat Joe Biden wanted to “defund” police forces…Enabled by Facebook’s rules, Trump’s reelection campaign has shown versions of the false claim on Facebook at least 22.5 million times, in more than 1,400 ads costing between $350,000 and $553,000

The Daily Caller has been paid tens of thousands of dollars by GOP campaigns while providing fact-checking services for Facebook… The Daily Caller’s fact-checking subsidiary Check Your Fact partnered with Facebook’s fact-checking program last year. However, the Daily Caller itself has published right-wing disinformation, false stories and content written by white supremacists.

Facebook Refuses to Take Down Another Fake Nancy Pelosi Slurring Video… Like last time, instead of removing it, Facebook has instead decided to add a disclaimer to the video calling it “partly false.” The post has thousands of interactions and the video can still be viewed as of last Monday morning.

Nearly two dozen state attorneys general sent an open letter to Zuckerberg last week demanding the company improve its civil rights record. Citing a rise in hate crimes and online harassment, the attorneys general asked Facebook chief executive Mark Zuckerberg to step up enforcement of the social media company’s hate speech policies.

Court cases

The U.S. Court of Appeals for the D.C. Circuit ruled 7-2 that the House has legal standing to compel former White House counsel Don McGahn to testify before the House Judiciary Cmte. The appeals court left open other legal arguments against the subpoena to McGahn, leaving it unclear when or if the former White House lawyer will actually be hauled before the House panel.

Three judges on the Eighth Circuit Court of Appeals used Chief Justice Robert’s recent abortion ruling to allow several Arkansas abortion restrictions to go back into effect. It is rather complicated, but essentially Robert’s ruling protecting abortion access in Louisiana included language that makes it easier to restrict in certain cases; even if an abortion restriction has literally no benefit, it can still go into effect as long as it’s not a “substantial burden.”

In yet another unsigned emergency stay, the conservatives on the Supreme Court ruled in favor of officials at Orange County jail, allowing them to continue depriving inmates with basic sanitary equipment and COVID testing during the pandemic. “This Court normally does not reward bad behavior, and certainly not with extraordinary equitable relief,” Sotomayor wrote in dissent.

The conservative justices, aided by Roberts, have issued an extraordinary number of emergency stay orders under Trump. These orders are unsigned, provide no substantive analysis, and often go unnoticed by major media – yet allow challenged government programs to go into full effect even though lower courts have struck them down.

So, for example, during the 16 years of the George W. Bush and Obama administrations, the government asked the justices for such emergency relief only eight times — and the justices granted half of the applications. Moreover, none of the eight decisions to grant or deny such relief was 5-4.

But in just three years, the Trump administration’s Justice Department has sought 29 emergency stays from the Supreme Court — including 11 during the court’s current term alone. And the justices, or at least a majority of them, have largely acquiesced, granting 17 of the applications in full or in part, rulings that have had significant and lasting ramifications on the ground — and that have often been quite divisive on the court.

Journalist Mark Joseph Stern: “SCOTUS’ five conservatives have quietly changed the rules regarding these emergency stays, but haven’t explained why. Among other things, they’ve decided that they always understand the facts better than the district court, which is a radical shift…. the Supreme Court is not supposed to jump in every time a lower court issues a decision that five justices don’t like. Maybe I’m cynical, but I think Chief Justice Roberts knows the public doesn’t pay nearly as much attention to these emergency orders—which increasingly come in the late afternoon, evening, or even dead of night—so he can go hard-right without worrying about too much backlash.”

New York’s attorney general sued the National Rifle Association on Thursday, seeking to put the powerful gun advocacy organization out of business over claims that top executives illegally diverted tens of millions of dollars for lavish personal trips, no-show contracts for associates, and other questionable expenditures.

Further reading:

  • A New York state Supreme Court judge on Thursday denied President Donald Trump’s effort to delay the proceedings in a defamation lawsuit filed against him by longtime magazine columnist E. Jean Carroll, a move that allows her to pursue his DNA sample in an effort to prove claims he sexually assaulted her in the 1990s.
  • A federal appeals court Tuesday blocked in three states the Trump administration’s controversial “public charge” rule that critics say has a chilling effect on immigrants who may need to seek medical assistance
  • Judge again tells Devin Nunes he can’t sue Twitter over fake cow’s tweets
  • Judge dismisses Republican lawsuit seeking to block proxy voting
  • Louisiana Supreme Court Won’t Review Life Sentence For Man Who Stole Hedge Clippers

Appointees and nominees

Trump placed failed nominee into position anyway, without the Senate’s consent. Retired Army Brig. Gen. Anthony Tata formally withdrew his nomination to be the Defense Department undersecretary of defense for policy and Trump instead named him “the official Performing the Duties of the Deputy Undersecretary of Defense for Policy reporting to the Acting Undersecretary of Defense for Policy Dr. James Anderson.”

Jeff Hauser, executive director of the Revolving Door Project, said keeping someone like Tata in place when members of the president’s own party are opposed to him is scandalous. “To me, avoiding the Senate’s explicit advice and consent provision to install cronies for whom he has received little if any senatorial advice, and absolutely no consent, is an impeachable offense,” Hauser said. (WaPo)

  • Reminder: Anthony Tata called Obama a “terrorist leader,” suggested that John Brennan should prepare for execution or suck “on a pistol,” and said Islam is the “most oppressive violent religion I know of.”

Trump’s nominee to become U.S. Ambassador to Germany, retired Army Col. Douglas Macgregor, has a history of pro-Russia comments and Islamophobic remarks. For instance, Macgregor appeared on Russia Today to support Russian separatism in Ukraine. In other media interviews, he repeatedly advocated to institute martial law at the US-Mexico border and “shoot people” if necessary.

  • Note that Macgregor’s support for Russian separatism in Ukraine is directly opposed to the “official” U.S. and NATO position, while being identical to the Russian position. Like Trump’s ordered withdrawal of US forces from Germany, it will be welcomed only by the Kremlin.

Trump’s nominee for a top special operations post at the Pentagon ran a company that may have trained some of the Saudis who assassinated journalist Jamal Khashoggi. Louis Bremer sits on the board of directors of a military training company named Tier 1 Group. According to Washington Post columnist David Ignatius, the CIA warned other U.S. government agencies that Tier 1 employees may have trained some of Khashoggi’s killers.

He was asked about the allegation at his Senate hearing on Thursday (clip):

Louis Bremer: “I do know that we train Saudi nationals as part of our engagements with the kingdom as an allied nation. We train other nations, as well. But I have no knowledge of that.”

Sen. Tim Kaine: “So, until today, you had not been aware that an allegation had been made that a company on which you sit as a director, with a small board of directors, had potentially been involved in training the Saudis who were particpants in the assassination of Jamal Khashoggi?”

Louis Bremer: “Senator, I don’t have any recollection of that.”

  • Sen. Angus King, I-Maine, responded to Bremer’s account with skepticism. “Having served on a number of corporate boards myself, it’s hard for me to believe that a mention of your company by name in a column by David Ignatius — one of the leading foreign affairs commentators in the country — would not come to your attention nor to the attention of the board,” King said (video).

Further reading:

  • Official Convicted in Iran-Contra Affair Is Appointed Trump’s Envoy to Iran
  • At least three former clients of acting Homeland Security chief Chad Wolf have received millions in government contracts from DHS since he’s held senior positions within the agency.

Immigration news

More than twice as many immigrants have died in the custody of Immigration and Customs and Enforcement this fiscal year than last after two detainees died this week. That brought this year’s total to 17, compared with eight deaths last year.

There’s been a major increase in the use of force against immigrants at ICE detention centers during the pandemic… ICE officials do not proactively report these cases unless media outlets request the information, and the agency does not compile data from use-of-force incidents within detention centers nationwide.

Trump administration bails out charter jet firm that helps deport migrants…The two awards to Classic Air under its ICE contract since the pandemic began, each for $50.7 million, were the largest it’s received under the contract since it was inked three years ago.

U.S. Citizenship and Immigration Services introduced perhaps its most arbitrary, absurd modification yet to the immigration system: It began rejecting visa applications unless every single field was filled in, even those that obviously did not pertain to the applicant.

“Middle name” field left blank because the applicant does not have a middle name? Sorry, your application gets rejected. No apartment number because you live in a house? You’re rejected, too. No address given for your parents because they’re dead? No siblings named because you’re an only child? No work history dates because you’re an 8-year-old kid?

All real cases, all rejected.

More than 2,000 unaccompanied children have been expelled since March under an emergency declaration enacted by the Trump administration, which has cited the coronavirus in refusing to provide them protections under federal anti-trafficking and asylum laws.

ProPublica: Her Rapist Threatened to Make Her “Disappear.” Instead of Asylum, ICE Put Her in a Hotel and Sent Her Back.