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Westlake Legal Group > Posts tagged "donald trump"

Politico: Will Florida vote debacle get Bondi a Cabinet appointment?

Westlake Legal Group trump-bondi-sessions Politico: Will Florida vote debacle get Bondi a Cabinet appointment? The Blog recounts Pam Bondi kirstjen nielsen Jeff Sessions Florida donald trump Department of Justice Department of Homeland Security attorney general

Pam Bondi may well have emerged as Donald Trump’s first pick to replace Jeff Sessions anyway, but the mess unfolding in Florida may have given her an edge. Politico’s Marc Caputo and Anni Karni hear that Trump has begun relying on Bondi’s analysis to navigate the developments in the Lack of Sunshine State. That can only help Bondi move up the list of nominees for the next Attorney General — or perhaps another Cabinet position:

For the longtime close friend of Trump’s, the timing of the Florida recount, which the president has seized on to push unsupported theories about widespread voter fraud, offers a new chance to be front and center in his mind while he is also reorganizing his Cabinet and quickly shedding officials he has grown weary of. …

Throughout the early days of the transition and administration, Bondi pointedly refused to talk about her discussions with the administration, although she told some close associates she wasn’t interested in a job that would be a step down from her current role as the elected chief legal officer of the nation’s third most populous state.

But with a major cabinet shuffle underway — Trump is looking for replacements for both his attorney general and his Homeland Security secretary — Bondi’s name is being talked about again.

“He trusts her,” said Roger Stone, a longtime Trump adviser who lives in Florida. “They’ve always had an excellent personal rapport. She’s got a good TV presence; she’s very telegenic and that’s important to the president.”

Biondi’s name has already come up for the empty AG position, although not as prominently as Chris Christie’s. Of all the political picks to replace Sessions, Bondi might be the least troublesome in terms of the Senate confirmation process. Caputo and Karni report that the idea of Bondi as AG has gotten some pushback within the White House, apparently related to demands she made when they reached out for an earlier position in the administration. Another source tells them it wouldn’t matter, though, if Trump really wants her in the position. “If Trump could snap his fingers,” the source says, “she would be Attorney General tomorrow.”

Caputo and Karni raise another possibility, one that opened up this week. Kirstjen Nielsen is apparently on the way out at Homeland Security, according to several media outlets. Bondi might make a good fit there, and would still have the direct access to the president that she demanded in the earlier. That seems more of a stretch, however; Bondi’s experience fits the DoJ better than Homeland Security, although it certainly overlaps into it. She may not be too eager to take over the immigration-enforcement portfolio either, given Trump’s expectations of results and the grim reality of existing law.

From Trump’s perspective, Bondi should be an ideal candidate for the AG position, if Bondi can get through a Senate confirmation hearing. He’d have to consult with Mitch McConnell first to make sure, but it gives him precisely what he wants — a close ally at the DoJ with the resumé that demonstrates undeniable qualifications for the job. If Bondi’s serving as sherpa in the Florida debacle, that’s going to keep the DoJ more in mind than Homeland Security, too.

The post Politico: Will Florida vote debacle get Bondi a Cabinet appointment? appeared first on Hot Air.

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Trumpy Bear is not fake news

Westlake Legal Group Trumpy-bear Trumpy Bear is not fake news The Blog donald trump

Watching the TV ad for this I was 80% certain this was a fairly clever SNL spoof. Let’s start with the faux Biblical intro that emphasizes that this stuffed animal is a tough guy. Then there’s the look of this thing, with the orange hair and orange eyebrows. The “secret zipper” that reveals an American flag cape is a nice touch too.

But the best part is the testimonials from hardhat-wearing construction workers, Harley riding Marines and firefighters, each of whom is carrying the stuffed animal as if carrying a five-year-old’s toy is a totally normal thing for a grown man to do. Not only is it normal, but it’s also a sign you’re a genuine tough guy. Is this really going to mark you as tough if you carry it into a biker bar? Maybe it would because you’d have to be pretty fearless to try it.

So this has to be satire, right? Not according to Snopes. The company that is marketing this, Exceptional Products, is real and has a history of producing infomercials for various items. Exceptional Products told Snopes this particular product was the brainchild of someone named V.L. Lange. They sent Snopes a statement from Lange confirming the bear is real and claiming the veterans in the ad were speaking from the heart:

In 1902 the teddy bear was born and named after President Teddy Roosevelt. When President Donald Trump was elected to office as the first non-politician president, I felt it was time to name an American fearless grizzly bear after our new Commander in Chief. I designed the Trumpy Bear in a recognizable image of our current president.

This iconic bear should be viewed as the symbol that anyone can run for president of this great country of ours. The weight of the responsibilities that come with the presidency can be a burden that I, for one, could never endure.

And no, this is not a joke. I want it to be perfectly clear that the men who served in our military spoke from their hearts in the Trumpy Bear commercial. Any vilification of a veteran should never be tolerated.

Trumpy Bear actually went on sale last October according to AdAge and there are plenty of them being resold on eBay. The company refused to comment on sales figures when asked by Snopes.

What’s most interesting about this isn’t the bear but the psychology behind it. Does this ad really work and if so what does that say about the buyers responding to it? I suspect most of the people getting this are not bikers or firefighters but pro-Trump grandmothers buying them for their grandkids. But who knows, maybe there really are a few tough guys in the hinterlands strapping one of these to their gas tank and daring anyone to make a comment about it.

Maybe the genius of this bear is what it says about tough guys in general. Sure they can run into a burning building or throw-down with a fleeing suspect if the time comes. But underneath all that, they have a soft side, a plush side if you will. Maybe down deep every tough guy is just a teddy bear who needs a hug, albeit one that respects America and their manhood. It’s not the craziest MAGA insight I’ve heard in the past two years.

The post Trumpy Bear is not fake news appeared first on Hot Air.

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WATCH: Tugendhat’s message to Trump – “In Iraq and Afghanistan, when it was -15 or 50 degrees, we soldiered on”

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New asylum rules challenged in court almost immediately

Westlake Legal Group asylum New asylum rules challenged in court almost immediately The Blog naturalized citizens Illegal Immigration illegal aliens donald trump asylum

When Ed covered the details of the new asylum rules yesterday, he predicted that they would likely be challenged in court. Well, as the saying goes, that didn’t take long. Several groups from the usual list of liberal suspects were in court on Friday, claiming that limiting approvals of asylum requests based on the applicants’ violations of U.S. immigration laws was beyond the power of the White House. But is it really? The Washington Post certainly seems sympathetic to the idea.

Attorneys for the American Civil Liberties Union and other immigrant advocacy groups filed suit Friday in the Northern District of California to block the Trump administration’s plan to deny asylum protections to migrants who cross the Mexico border illegally.

The suit accuses the administration of attempting to violate the Immigration and Nationality Act and the Administrative Procedure Act, alleging that Trump administration officials have improperly rushed to implement the new restrictions while also asserting executive powers that lie beyond the scope of what the Supreme Court upheld in its “travel ban” decision this year.

The suit came hours after Trump issued a decree Friday morning that set in motion his administration’s effort to close off asylum benefits for those who enter the United States illegally. The measures are to take effect Saturday.

This policy not only makes sense in legal terms but is really long overdue. When someone comes to America from Honduras, Guatemala or other countries in that region with a claim of fleeing violence or persecution and seeks legal asylum, they are asking for a favor, not demanding some inherent right they are entitled to. They could have sought refuge in Mexico, just as hundreds of members of the current Honduran caravan have already done. And if you’re asking to take refuge in our country, that carries with it an implicit agreement that you are coming here peacefully with an intention to obey our laws. Starting the conversation by violating immigration law and immigrating illegally isn’t a very good way to win favorable consideration.

As to the ACLU’s claims about this being an overreach of executive branch power, Ed already covered quite a bit of that territory. The group is claiming that this is somehow different from the “travel ban” which the Supreme Court ultimately upheld. In that ruling Chief Justice John Roberts said that the Immigration and Nationality Act of 1965 “exudes deference to the President in every clause.” How the ACLU believes they can prove that asylum requests from illegal immigrants crossing the southern border are any different remains a mystery.

So that should be the end of it, right? Not at all. As predictably as the sunrise, the ACLU has taken their case to court in the United States District Court for the Northern District of California. This means that any appeal to a decision there will be heard by the U.S. Court of Appeals for the Ninth Circuit. That’s the same court which has found a way to go against Donald Trump on every decision from the travel ban to whether or not he could have an extra slice of toast at breakfast. So odds are that this new rule will have to be decided by the Supremes yet again. At this point, you might choose to breathe a sigh of relief that Brett Kavanaugh made it over the finish line.

The post New asylum rules challenged in court almost immediately appeared first on Hot Air.

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Hmmm: DC Circuit orders briefs on Sessions’ exit in Mueller challenge

Westlake Legal Group c91a56ed-5c28-4cbb-96bb-72fc52e9f77e Hmmm: DC Circuit orders briefs on Sessions’ exit in Mueller challenge The Blog Senate confirmation Rod Rosenstein Robert Mueller principals Federal Vacancies Reform Act donald trump DC Court of Appeals beryl howell Andrew Miller

What does the change at the Department of Justice have to do with Robert Mueller’s legal predicate to prosecute cases in federal court? Nothing at all … I think. Nevertheless, the DC Circuit judges handling the appeal by a Roger Stone associate challenging Mueller’s status have ordered briefs by both sides to cover the forced resignation of Jeff Sessions as Attorney General, so the court has at least some curiosity on the topic:

A federal appellate court panel on Friday ordered Robert Mueller as well as attorneys trying to knock the special counsel out of his job to file new legal briefs that explain how this week’s shakeup atop the Justice Department could influence their case.

In a one-paragraph order, the three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit told Mueller and lawyers for a former aide to Roger Stone that they have until Nov. 19 to turn in briefs that sift through Wednesday’s firing of Attorney General Jeff Sessions and the legal reaction it may have created. …

The Whitaker-Sessions shakeup came up briefly Thursday during oral arguments in the D.C. Circuit courtroom as it considered the case between Mueller and Andrew Miller, the former Stone aide who is challenging the special counsel’s appointment on constitutional grounds.

There, Judge Karen Henderson said the judges would set aside Sessions’ departure for the hearing but likely would ask for supplemental briefing to address the legal issues tied to the handover from Rosenstein to Whitaker.

Remember that the issue in this challenge had little to do with Jeff Sessions. Andrew Miller found himself in contempt of court in August for refusing to comply with a subpoena from the special counsel office after arguing that Mueller lacked standing to issue one. Miller is challenging the ruling from Judge Beryl Howell that Mueller is duly authorized to issue subpoenas in his role as special counsel, an argument which touches on the same issues emerging over Matt Whitaker’s temporary appointment as acting AG — whether a principal officer requires specific Senate confirmation.

Howell wrote that Mueller isn’t a principal officer, because he reports to a Senate-confirmed principal officer, or in this case a Senate-confirmed deputy to the principal officer:

The witness argues that the Special Counsel is a principal officer who must be, but was not, nominated by the President and confirmed by the Senate. Witness’s Mot. at 14. In the alternative, the witness contends that if the Special Counsel is an inferior officer, Congress did not “by Law” vest his appointment in the Attorney General. Id.at 8. Finally, the witness posits, even if Congress statutorily authorized theSpecial Counsel’s appointment, the DAG did not validly appoint him, as the Attorney General’s recusal did not allow the DAG to serve as Acting Attorney General. …

The primary criterion to determine principal-inferior officer status is whether an officer “is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” Id. at 663. Edmond “emphasized three factors” in applying this standard: whether an officer is (1) “subject to the substantial supervision and oversight of” another Executive officer who is, or is “subordinate” to, a principal officer; (2) “removable . . . without cause;” and (3) subject to “another executive branch entity’s . . . power to reverse the [officer’s] decisions,” such that the officer has “‘no power to render a final decision on behalf of the United States unless permitted to do so by other Executive Officers.’” …

As explained in further detail below, governing statutes give the Acting Attorney General broad authority to direct and supervise the Special Counsel. The Acting Attorney General has delegated and can rescind all authority the Special Counsel enjoys, see 28 U.S.C. §§ 509, 510, 515(a); Appointment Order ¶¶ (b), (c), thus enabling the Acting Attorney General to oversee the Special Counsel’s work and countermand the Special Counsel’s actions. Moreover, no statute limits the Attorney General’s authority to remove a Special Counsel. The Special Counsel thus satisfies Edmond’s “direction and supervision” test for inferior officer status. The regulations, being rescindable at will, do not alter this conclusion, and if anything serve to emphasize the breadth of the Attorney General’s powers of direction and supervision. The Special Counsel is therefore an inferior officer.

All of this worked well as long as the Attorney General was confirmed to the position by the Senate, which was the case until, oh … Wednesday. This part of Howell’s original ruling might indicate that Whitaker’s ascension into that role without specific Senate confirmation opens the door to delegitimizing Mueller through no fault of his own, emphasis mine:

Indeed, Edmond held that an officer with a presidentially-nominated, Senate-confirmed superior is inferior even if all three other Morrison factors—the magnitude of an officer’s duties, jurisdiction, and tenure—weigh toward principal officer status. 520 U.S. at 661–62 (concluding that a Coast Guard Court of Criminal Appeals judge was an inferior officer despite that “the last two [Morrison factors—limited jurisdiction and tenure] do not hold . . . here” and that such judges “are charged with exercising significant authority on behalf of the United States”).

Does Rod Rosenstein qualify as such without Sessions in place? He might have if he’d been elevated to a position where he reported directly to Trump. However, Howell ruled that Miller failed to sustain an argument that a deputy AG is itself a “principal officer,” an argument for equating the status of Mueller with that of Rosenstein:

The witness alludes to “centuries of practice [of] treating Deputy and Assistant Cabinet Secretaries as Princip[al] officers,” Witness’s Reply at 19, but fails to support this assertion with any authority. 28 The witness argues that “it seems obvious that” officers such as the DAG, the Solicitor General, the Assistant Attorneys General, and non-interim U.S. Attorneys are principal officers “notwithstanding the hierarchical superiority of the Attorney General,” given the “great power” they wield. Id. This litigation presents no need to determine whether any of these officers are principal or inferior, as the Attorney General’s power to remove a Special Counsel gives the Attorney General greater direction and supervision over a Special Counsel than over any of these officers. See supra Part III.B.1.a. 29

The witness claims that some officers are so important that they “need to be principal officers and subject to scrutiny at appointment, Senate advice and approval, and impeachment.” Witness’s Mot. at 14. Congress, however, is free to subject inferior officers’ appointments to the advice-and-consent process—this, indeed, is “the default manner of appointment for inferior officers.”

If Rosenstein isn’t the acting AG, then he’s not a principal officer. If the court rules that Whitaker doesn’t qualify under the Vacancies Reform Act to ascend to the role of principal officer, then, at least technically, Mueller’s shorn of his legal authority to compel testimony and prosecute cases until a Senate-confirmed person assumes Session’s authority, either temporarily or permanently. Or at least that’s what Miller is likely to argue.

Will it work? If it does, expect holy hell to break out in Congress, perhaps even among some Republicans who might be wondering why Trump didn’t just make Solicitor General Noel Francisco acting AG instead. Perhaps the court will be convinced that Whitaker’s confirmation in 2004 as US Attorney satisfies the requirement — but if they did, as Allahpundit pointed out earlier, then they should have been satisfied of Mueller’s standing based on his own Senate confirmation as FBI director in 2001.

The post Hmmm: DC Circuit orders briefs on Sessions’ exit in Mueller challenge appeared first on Hot Air.

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WSJ: Prosecutors have evidence Trump violated campaign finance laws

Westlake Legal Group trump-arms-crossed WSJ: Prosecutors have evidence Trump violated campaign finance laws The Blog Special Counsel payoffs John Edwards impeachment donald trump Department of Justice David Pecker Campaign Finance 2020 election

Plenty of attention has fallen on a Trump Tower meeting in June 2016 and its relation to the Russia-collusion probe. Donald Trump might actually have more to fear legally from an entirely different Trump Tower meeting and others like it. The Wall Street Journal reports this afternoon that witnesses and a document trail shows Trump actively took part in discussions to silence women claiming sexual affairs through payoffs, in one instance with an August 2015 meeting where Trump recruited National Enquirer publisher David Pecker to cut deals to keep them quiet:

The Trump Tower meeting and its aftermath are among several previously unreported instances in which Mr. Trump intervened directly to suppress stories about his alleged sexual encounters with women, according to interviews with three dozen people who have direct knowledge of the events or who have been briefed on them, as well as court papers, corporate records and other documents.

Taken together, the accounts refute a two-year pattern of denials by Mr. Trump, his legal team and his advisers that he was involved in payoffs to Ms. McDougal and a former adult-film star. They also raise the possibility that the president of the United States violated federal campaign-finance laws.

The Wall Street Journal found that Mr. Trump was involved in or briefed on nearly every step of the agreements. He directed deals in phone calls and meetings with his self-described fixer, Michael Cohen, and others. The U.S. attorney’s office in Manhattan has gathered evidence of Mr. Trump’s participation in the transactions.

Just how much trouble can Trump get in if prosecutors can sustain this evidence? That’s not very clear, as the WSJ itself notes. The Department of Justice got burned on this kind of case several years ago when it prosecuted a criminal case against John Edwards. He argued that the money wasn’t intended to influence the election but to avoid personal embarrassment and keep his wife from finding out about his mistress. A jury acquitted Edwards on one charge and hung on the rest, but the DoJ declined to prosecute further after being accused of turning a civil violation into a literal federal case.

The names and the personalities may be different (and so is the scope), but it’s essentially the same issue. Prosecutors might find it easier to seat a jury more hostile to Trump as a defendant than it was with Edwards, but that’s not supposed to be the basis for prosecution either. The DoJ might well be skittish about pushing criminal prosecutions in these cases rather than just assessing large fines in any circumstances, but especially so when it comes to a sitting president.

Under the rules of politics from just a few years ago, however, the revelation of serial lying about such issues and behavior would be enough to kill a political career. These days, however, it’s all part of the reality-TV show environment which we have created. In fact, it’s a little amazing that Trump even bothered to hide the affairs in the first place, given his utter lack of discretion about such things for most of his adult public life. He was playing by the old rules that he was busy proving no longer matter.

It still might be enough to get a Democratic House to produce articles of impeachment, but that won’t go anywhere either. It’s all about consensual sex, after all, which Democrats assured us was a completely illegitimate issue for impeachment — even if a cover-up meant committing perjury, not just campaign finance rules. If Trump has his campaign pay significant fines for the violations and returns the value of the contributions back to Pecker and others, that should suffice, although the House might well issue an official censure of Trump just to make sure it’s on the record.

If Robert Mueller finds more substantial grounds for impeachment, this will certainly be added to the articles that the House produces. If not, this will just become part of the argument in the 2020 election, and legitimately so. However, as 2016 demonstrated, character debates only work when there is a clear difference in character. Nominate carefully, Democrats.

The post WSJ: Prosecutors have evidence Trump violated campaign finance laws appeared first on Hot Air.

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More House Dems: You bet Trump tax returns will be key part of our agenda

Westlake Legal Group neal-taxes More House Dems: You bet Trump tax returns will be key part of our agenda The Blog tax returns Richard Neal House Democrats donald trump Bill Pascrell 2020 election

Good to know they take this governing thing seriously. Rep. Bill Pascrell, one of the senior members on the House Ways and Means Committee, tells The Hill that the new majority plans to exercise its authority to get to the biggest issues facing the American people. Rather than that being how much tax Americans pay, the new Democratic majority wants to focus like a laser on how much tax Donald Trump has to pay:

House Democrats want to get their hands on President Trump’s tax returns, and plan to make the issue a key part of their agenda upon taking the majority next year. …

Democrats want to know if and how Trump is avoiding taxes, particularly in the wake of a lengthy New York Times story published in early October that said Trump and his family engaged in “dubious” tax schemes in the 1990s so that the president’s parents could avoid gift and estate taxes.

They also want to see how Trump is benefiting from the tax-cut law he signed last year, which to date is his biggest legislative accomplishment. And they want to learn about any conflicts of interests that Trump may have, including any links to foreign governments.

Rep. Lloyd Doggett (D-Texas), the top Democrat on the Ways and Means tax-policy subcommittee, said on a call with reporters Wednesday that obtaining Trump’s tax returns is “important in both guaranteeing our national security and in protecting the integrity of the tax code.”

This echoes what Rep. Richard Neal, the upcoming Democratic chair of Ways and Means, told The Hill the day after the election, as well as Rep. Eric Swalwell’s concurrence later that day:

House Democrats expecting to make this a transparency issue might run into a few surprises, however. Yahoo’s Rick Newman reminds everyone that a subpoena for tax records doesn’t guarantee compliance, and even if it succeeds, publishing them is another matter entirely. All Democrats have won is the right to request the returns:

While Neal can ask for the returns, Trump can instruct his Treasury Secretary, Steven Mnuchin, to say no. “Congress has a legitimate right to ask for the information as part of its oversight role,” says Steve Rosenthal of the nonprofit Tax Policy Center, a tax lawyer and former counsel to Congress’s Joint Committee on Taxation. “What is less clear is whether the president would turn over his returns voluntarily. I think he’ll resist. They could construct some executive argument saying this is a fishing expedition.”

That’s an easy claim to make because this clearly is a fishing expedition. Newman notes that a court fight over a refusal would have to wind its way to the Supreme Court, where a solid conservative majority might demand more probable cause for an intrusion on privacy before approving the demand.

Even if they succeed in getting their hands on the returns, though, there may not be much they can do with them. The law restricts publication of returns, although House Democrats might rely on an age-old mechanism, Newman writes — the leak:

If the House does eventually get Trump’s tax returns, the next question is whether they could legally make them public, which is an unsettled matter that revolves around whether there’s a legitimate legislative reason to make such information public. There’s some irony here, because in 2014, House Republicans made public the tax returns of 51 nonprofit organizations the Ways and Means chairman, Dave Camp, had obtained from the IRS using the same statute Neal would use to get Trump’s returns. So Republicans established a precedent for going public. And if Trump’s returns didn’t find daylight through legal means, it’s hard to believe somebody wouldn’t leak them to the press.

That may be why courts will take a very dim view of a House fishing expedition in the first place. Congress had a reason to demand and publish those returns, which was the malfeasance of the IRS itself in dealing with non-profit applications for tax-exempt status. Even with that, Camp and other Republicans came under considerable criticism for exposing the tax records of those taxpayers.

To some extent, though, all this misses the point. Bret Stephens warned Democrats yesterday that conducting a nakedly partisan attack on Trump via its newly minted majority authority would backfire spectacularly in two years:

It’s also a reminder that, in politics, intensity is not strategy. You have to be able to convert.

The Resistance didn’t convert.

It didn’t convert when it nominated left-wing candidates in right-leaning states like Florida and Georgia. It didn’t convert when it poured its money into where its heart was — a lithesome Texas hopeful with scant chance of victory — rather than where the dollars were most needed. It didn’t convert when it grew more concerned with the question of how much Trump did not pay in taxes than with the question of how much you pay in taxes. …

he result of the midterms means, if nothing else, that the president survived his first major political test more than adequately. And unless Democrats change, he should be seen as the odds-on favorite to win in 2020.

To repeat: I’d hate to see that happen. I want Trump, and Trumpism, to lose. But if the Resistance party doesn’t find a way to become a shrewder, humbler opposition party, that’s not going to happen. The day Democrats take charge in the House would be a good opportunity to stop manning imaginary barricades, and start building real bridges to the other America.

Starting off by indulging in Trump obsession is not a great way to show they’ve learned anything.

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Showdown: Trump signs EO suspending asylum consideration on all illegal entries

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If you enjoyed the legal battle over three different versions of the so-called “travel ban,” get ready for the fun of Asylum Ban 1.0. Using the same legal argument that ended up prevailing at the Supreme Court on the order restricting visas from a handful of failed states, Donald Trump signed an executive order this morning suspending all grants of asylum for those entering the country illegally. It’s the first major move on the migrant “caravans” marching northward through Mexico since before the midterm elections, although it might not actually apply:

President Trump signed a proclamation Friday morning banning migrants who enter the country between official ports of entry from seeking asylum in the United States. Officials from the Department of Homeland Security and Justice Department told reporters that the proclamation would go into effect at 12:01 a.m. Saturday and be in effect for 90 days.

On Thursday afternoon, administration officials released the text of an interim regulation outlining new restrictions on asylum seekers at the border in anticipation of the president’s proclamation.

The interim rule, which will be published in the Federal Register and open for public comment Friday morning, establishes “a mandatory bar to asylum eligibility” for refugees crossing the southwestern border between official ports of entry. It contains a finding that granting asylum in those circumstances “would be detrimental to the interests of the United States.”

During a call with reporters Thursday afternoon, senior administration officials explained that Trump would be exercising the same “use of authority that the Supreme Court upheld in Trump v. Hawaii,” better known as the travel ban case, to make such a determination about migrants who enter the U.S. from Mexico.

In one sense, this makes perfect sense. The proper way to apply for asylum is to make that application at an official border crossing, at which point the US government can grant temporary entry while considering the application. Those who cross illegally have essentially violated the integrity of that system by denying US sovereignty over its own borders. A lot of people try claiming asylum after getting caught across the border, and the EO would eliminate that dodge and force people to apply lawfully.

That, however, is exactly what the caravans claim they will do. Their spokespeople and the media have reported all along that the thousands of people involved plan to eventually present themselves at border crossings and demand asylum properly. What then? In the past, these movements have resulted in massive delays and bottlenecks at border crossings, but eventually the US has managed to sort through the applications and make the decisions. Presumably, the massive increase in logistical support from the military will help unravel that when the caravans arrive.

The White House will undoubtedly find itself in court, perhaps as soon as today, over this EO. They’re preparing a defense based on alternatives available to migrants, but the New York Times reports that critics have already begun pushing back:

Lawyers for immigration advocacy organizations said they violated a founding principle of federal asylum: to judge each person’s asylum claim on its own merits. And the lawyers said federal and international law made it clear that the United States must provide immigrants the opportunity to claim asylum regardless of whether they entered the country legally or illegally.

Trump administration officials defended the new approach, saying the president is responding to statistics that show that most migrants who seek asylum are eventually denied — but not before many of them skip their court hearings and choose to illegally stay in the United States.

Once the president makes a proclamation identifying who is barred by the new regulations, an official said, those people could apply for two other, smaller programs that are much less likely to result in them being allowed to stay in the United States.

An administration official who briefed reporters said the two programs would satisfy the United States’ treaty obligations — a claim critics say is not true. The official, who spoke on the condition of anonymity to provide details of the rules before they are published, said the new regulations were supported by laws that gave the president broad authority to control who entered the United States.

The problem for the critics is the same one they eventually failed to overcome in the travel-ban case. The Immigration and Nationality Act gives the president very wide latitude to issue proclamations that suspend entry of aliens or impose “restrictions he may deem to be appropriate.” In Trump v Hawaii, Chief Justice John Roberts wrote that the INA “exudes deference to the President in every clause”:

It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187. The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in §1182(f) is that the President “find[ ]” that the entry of the covered aliens “would be detrimental to the interests of the United States.” The President has undoubtedly fulfilled that requirement here. He first ordered DHS and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. He then issued a Proclamation with extensive findings about the deficiencies and their impact. Based on that review, he found that restricting entry of aliens who could not be vetted with adequate information was in the national interest.

Even assuming that some form of inquiry into the persuasiveness of the President’s findings is appropriate, but see Webster v. Doe, 486 U. S. 592, 600, plaintiffs’ attacks on the sufficiency of the findings cannot be sustained. The 12-page Proclamation is more detailed than any prior order issued under §1182(f). And such a searching inquiry is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. See, e.g., Sale, 509 U. S., at 187–188.

The Proclamation comports with the remaining textual limits in §1182(f). While the word “suspend” often connotes a temporary deferral, the President is not required to prescribe in advance a fixed end date for the entry restriction. Like its predecessors, the Proclamation makes clear that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequacies and risks” within the covered nations. Finally, the Proclamation properly identifies a “class of aliens” whose entry is suspended, and the word “class” comfortably encompasses a group of people linked by nationality.

In other words, challenges to this order are not likely to succeed, especially since this order focuses on aliens who have already violated the law. The only way to change this would be to rewrite immigration laws — and the only way to do that would be to bargain with Trump and the Republican majority in the Senate.

That is the ultimate aim of this EO, not stopping the migrant caravans. Trump is using his executive authority to its full extent under statute to pressure Democrats to agree to his four-pillar deal on DACA and the border wall. Will it work? Maybe, but the White House is likely betting more on its challenge to the recent DACA decision in the Ninth Circuit. If the Supreme Court allows Trump to dismantle DACA, then Democrats will have no choice but to cut a deal or to cut their “dreamers” loose.

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Trump: Didn’t discuss Mueller with Whitaker before appointment as acting AG; Update: Trump in October: “I mean, I know Matt Whitaker”

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Did Donald Trump appoint Matthew Whitaker in order to curtail the special counsel probe? “Matt Whittaker is a highly respected man,” Donald Trump declared in a presser this morning, “but I didn’t know Matt Whitaker.” Trump insisted he never discussed Robert Mueller with Whitaker, but that he chose Whitaker because he is “very highly respected by law enforcement”:

Trump said Whitaker was “highly thought of” but stressed he does not know him personally.

“I didn’t speak to Matt Whitaker” about special counsel Robert Mueller’s probe, Trump told reporters at the White House.

Maybe Trump didn’t speak to Whitaker about Mueller, but he certainly knows Whitaker. Reporters pointed to a Washington Post profile by James Hohmann on Whitaker, which noted that Trump met with him “dozens” of times instead of with Jeff Sessions, the man he replaced this week. Another Washington Post report quotes sources in the White House as saying that Whitaker’s personal loyalty was the deciding factor in his advancement to acting AG:

The White House official said the president liked Whitaker, who was a “backslapping, football kind of guy” who had briefed Trump on many occasions because the president preferred not to talk to Sessions.

“The president never wanted to see Jeff. So a lot of other people at DOJ got to see the president,” the person said.

Whitaker, a former U.S. attorney who ran an unsuccessful campaign for a Senate seat in Iowa, played college football at the University of Iowa. In 2014, he chaired the campaign of Sam Clovis, a Republican candidate for Iowa state treasurer. That might present another potential ethics complication for Whitaker’s supervision of the special counsel; Clovis went on to work as a Trump campaign adviser and has become a witness in Mueller’s investigation.

Just how credible is it that Trump wouldn’t have discussed the Mueller investigation with Whitaker before making the decision? The reason Trump dumped Jeff Sessions this week (and belittled him publicly for over a year before that) is that Sessions wouldn’t reverse his recusal on Mueller. Vanity Fair’s Gabriel Sherman reported this week that Don Jr is now worried that he’s about to be indicted for making false statements to investigators and Congress, which might be the big score Mueller gets out of Rick Gates. Don Jr’s lawyer denies this, but risks still abound in this probe, including the still-mysterious grand jury subpoena that got high-priority treatment by the courts.

With all that at stake and with his unhappiness over Sessions’ failings as a wingman, it never came up at all? Maaaaybeee, but that seems as unlikely as Trump’s claims not to know Whitaker personally.

Trump did score a point back against the notion that Whitaker is ineligible for the position under the Vacancies Reform Act. Whitaker has been confirmed by the Senate in the past, Trump reminded everyone, when he was appointed US Attorney:

The president also rejected the notion that Whitaker, who formerly served as a is ineligible to serve as attorney general, a position held by some legal experts who say the Justice Department leader must be confirmed by the Senate.

The president said Mueller wasn’t Senate confirmed, “so don’t talk to me about Whitaker.” The special counsel’s office is not subject to Senate confirmation, while the attorney general is. Mueller was also confirmed by the Senate as FBI director in 2001.

Whitaker got Senate confirmation in 2004, but left that position in 2009 after Barack Obama took office. Whether that covers the requirement or not may be the subject for considerable debate. In their New York Times op-ed decrying Whitaker’s appointment as unconstitutional, George Conway and Neal Katyal acknowledged that earlier confirmation but dismissed it, writing that “Mr. Trump can’t cut and paste that old, lapsed confirmation to today.” It’s not entirely clear why he can’t, however, other than as a matter of taste. If Trump appointed someone confirmed in 2016, would there still be a defect? 2012? The law doesn’t appear to make those distinctions, and it’s unlikely to be adjudicated before Trump appoints a permanent replacement for confirmation.

Trump doesn’t think much of Conway’s argument anyway. His irritation at the spouse of his chief political adviser was quite apparent, and it might extend to Kellyanne Conway too.

Update: Just a month ago, this is what Trump had to say about Matt Whitaker, emphasis mine (skip to 34:47):

Well, I’d never talk about that, but I can tell you Matt Whitaker is a great guy. I mean, I know Matt Whitaker, but I never talk about conversations that I had. But, you know, the Washington Post gets it wrong a lot.

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Iain Dale: If only we had a government with Cox and Balls

Iain Dale is an LBC presenter, a commentator with CNN and the author/editor of over 30 books.

Oh, how the Prime Minister may regret crossing Tracey Crouch, who resigned last week as Sports Minister over gambling regulation.

Why? Because Tracey is writing the Prime Minister’s biographical essay for the second volume of The Honourable Ladies, a two volume book I am editing with Jacqui Smith, containing essays about the 491 female MPs elected since 1918. I’m sure that last week’s feeling of complete let-down by the Prime Minister will have no impact on the conclusions which Tracey will draw in her analysis of Theresa May’s career so far.

The main question we should ponder if whether she will have been restored to ministerial office by the time the book comes out next September. Or maybe it should be whether the Prime Minister herself will still be in office.

– – – – – – – – – – –

So farewell, Faisal Islam. He’s been poached by the BBC as their new Economics Correspondent, replacing Kamal Ahmed, who is taking on a new management role there.

Faisal’s departure from Sky News could well trigger quite a substantial lobby domino effect, depending on who is appointed to replace him. Beth Rigby, currently deputy political editor at Sky must fancy her chances, and I suspect that Sophie Ridge is a leading candidate too.

Another standout internal candidate would be Niall Paterson, who used to be a political correspondent at Millbank, then covered the defence beat and now co-presents the weekday breakfast show.

If they want to look outside their own team, I’d say Tom Newton-Dunn would be a strong candidate. He has been wanting to get into TV for some time and recently lost ou narrowly to Deborah Haynes for the Sky Foreign Editor job.

Of course, whoever gets the job will operate in the long shadow which Adam Boulton continues to cast. He is Mr Politics at Sky, and I suspect Faisal always found it quite difficult to make his own mark. Adam is a giant among political journalists, and there will be some who would happily make a case for him to return to his old job. He was brilliant at it.

– – – – – – – – – –

Those of you who have followed this column for some time will realise I have a slightly puerile sense of humour. So be warned, here goes.

It was pointed out to me yesterday that if Geoffrey Cox had been a member of Gordon Brown’s Cabinet, there would have been a Cox and Balls in the same government. Arf arf. And that if Geoffrey had been in Parliament in the 1980s when the Tories held Hayes and Harlington, not only would we have had Cox, but also Dicks – as in Terry Dicks.

And, of course, in David Cameron’s day we’d have had both Cox and Willy (Hague). There is also a very large Johnson on the backbenches. And as for Jeremy Hunt…  [More, more – Ed].

– – – – – – – – – –

Tonight, I am supposed to be having dinner with a Cabinet minister. However, I’m prepared for it to be cancelled just in case there is an emergency cabinet meeting on Saturday morning. The speculation is that the Prime Minister has done a deal with the EU over Brexit, and that she will lay it before her Cabinet before putting it to a relatively quick parliamentary vote.

Who knows if these rumours are true? And as to the contents of this deal? Well, obviously I have no idea – but I suspect that it is a deal which no-one will particularly like, but that it will be one which we will all have to live with. I am not a flat earther on it, but I do believe that if we are to stay in the Customs Union beyond the end of the transitional period, it can only be described as Brexit in Name Only.

We have to be able to sign unfettered free trade agreements with countries all over the world. I interviewed Mark Regev, Israel’s Ambassador, on Tuesday, and he told me that scoping discussions with Liam Fox were already at an advanced stage. We need to be able to sign these kind of agreements on January 1, 2021. My suspicion is that there will be many countries who will think that it’s just not worth the candle if we remain aligned to EU regulations beyond that date. I hope I’m wrong.

– – – – – – – – – –

Assuming that the Prime Minister can get the support of her Cabinet for a deal – and I’d have thought that this is likely, – we can expect a vote in Parliament around the first week of December.

In the end, it may come down to how many Labour MPs will support any deal struck by May. Clearly, such an agreement wouldn’t meet Keir Starmer’s ludicrous six tests but, since Labour say that a No Deal Brexit is the worst of all worlds, you could argue that it could justify voting for the deal – and then tell voters that this is in the national interest.

I suspect that it won’t happen, but if Labour did go down that road I think they would garner an awful lot of support. My current bet is that the deal will go through because enough of its MPs will vote for it to counteract the Conservative MPs who vote against. That could trigger internal mayhem in the Labour Party.

– – – – – – – – – –

I predicted on Monday that if the Democrats won the House of Representatives, Donald Trump would still claim victory. Guess what? They, did – and so did he.

I’m not sure these results really change an awful lot. The Senate balance means that even if the House tried to impeach the President over the next two years, it would fall at the first hurdle.

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