Once again, another week of drama sprang from multiple controversies encircling Donald Trump.
There is the imbroglio over Trump’s tax returns: Will the IRS comply with the House Ways and Means Committee’s demand for those documents or will it side with arguments made by Trump’s attorneys?
In a completely different context, another brewing battle: How much of the Mueller report will Congress see? In testimony Tuesday, Barr said he’d release a redacted report within a week and that he would not seek a court order to make information on grand jury matters public.
And then there’s the “purge”: the President has cleared the top ranks of Homeland Security, ousting leadership at a department responsible for immigration, natural disasters, counterterrorism efforts, and much more.
What will be the long-term consequences of these manifold controversies? It remains to be seen, but what’s clear now is their potential, for in each lies a seed for reform. To quote Albert Einstein, “in the midst of every crisis, lies great opportunity.”
Trump’s brazen disregard for principled decision-making warrants a serious discussion of codifying certain norms into hard laws. Take, for example, the impasse over his taxes. The tax return fight is yet another example of a controversy largely of Trump’s own making. The dispute arises because Trump has thumbed his nose at a custom followed by Richard Nixon and every president since. Nixon, of course, gave the most succinct argument for releasing taxes: “People have got to know whether or not their president is a crook.”
The pattern is now predictable: Trump flouts a norm; people take strong action to make him conform; he cries foul and claims overreach, as his supporters echo the invective. It happens again and again. Many people are bored by it and tune it out. It’s no longer something to shout about. It’s something to act on. As my daughter Maya might tell you, dad enjoys a bit of drama, but our focus belongs on issues more central to the lives of ordinary working people.
We can debate whether the President is entitled to the same tax privacy rights afforded to ordinary citizens, or whether lawmakers are driven by a legislative – rather than a political – purpose in demanding his tax documents. But had Trump followed the path of all his modern predecessors in releasing his taxes, there would be no gauntlet thrown down by the House Ways and Means Committee.
To cut down on some drama, we should pass a law that requires presidential candidates to disclose their personal and business tax returns. This is one of the proposals of the National Task Force on Democracy and Rule of Lawwhich I co-chair with former NJ Governor Christine Todd Whitman. Tax returns can shed light on conflicts of interest and self-dealing and can help shape tax policy in a way that deters corruption. As we write in the report, we need legislation that:
• Requires the president, vice president, and candidates for those offices to disclose their personal tax returns and the tax returns of any privately held businesses in which they have a controlling interest at the same time as they make other mandatory ethics disclosures pursuant to the Ethics in Government Act.
• Requires disclosure of returns for the three years preceding a candidate’s declaration that they are running for president or vice president and returns for every year a sitting president or vice president is in office for any portion of the year.
So let’s not squander the opportunity to cut down on the drama and use this crisis as a springboard for meaningful reforms.
Stay Tuned with Preet has been nominated for a Webby Award for the best individual episode of a podcast. The selection is Preet’s interview with Bill Browder, a financier who became the driving force behind the Magnitsky Act, and is not often described as President Putin’s #1 foe.
THE “ACTING” CABINET
One norm that President Trump has flouted is enshrined in our Constitution. Article II, section 2 of the Constitution provides:
“The President… shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…”
Officials are permitted to serve in an acting capacity for a period of time to accommodate disruptions such as firings, resignations, reassignments, and the like. But Trump has made a new art form of this measure born of necessity. We now have intermittent secretaries at the departments of Homeland Security, Defense, of the Interior, at the Office of Management and Budget, the Small Business Administration, at the UN ambassador’s office, even the White House Chief of Staff is serving in an acting capacity.
According to a Washington Post analysis, Trump has had “388 days on average in each of the years of his presidency in which a department was led by an acting director.” Turnover isn’t uncommon, but rather than swiftly fill vacancies, Trump has embraced acting officials. In fact, he told reporters back in January: “I like acting, it gives me more flexibility.”
The president can wield more power over unconfirmed officials than those duly appointed, so their welcome isn’t surprising. Acting officials are caretakers, and do not serve the nation well in the long-term as they are constrained in their ability to plan and to exercise the full authorities of the Secretary role.
To place concerns over the president’s “acting” cabinet in context, read this helpful historical overview of nominations courtesy of the U.S. Senate itself. Here’s some of what you’ll learn about –
The first time the Senate rejected a nominee in 1789 (Benjamin Fishbourn, fell short because he offended a senator earlier in his career)
The criteria George Washington applied in choosing his first cabinet (including, “the fitness of their character and health, rigorous training, and public recognition”)
How Andrew Jackson defined the relationship between the executive and Congress (“Jackson’s first set of nominations were a ‘batch of [newspaper] editors’ who had supported his presidential campaign and were clearly being rewarded for their political services”)
The shift in the balance of power between Congress and the presidency that took place in the 20th century, and more.
THIS IS WATER
It is not quite commencement season, but a speech delivered by the late novelist David Foster Wallace to the 2005 graduating class at Kenyon College provides a needed breather from the incessant day-to-day drama unfolding in Washington. The speech has gained cult status (some people have even tattooed quotes to their bodies) and it was published in book form in 2009. The speech is called, “This Is Water.”
Wallace challenges us to examine the “day-to-day trenches of adult existence.” He urges us to break out of the unconscious default setting of our minds and to exercise choice over how and what we think about. Speaking to the cliché idea that college teaches you “how to think,” here’s some of what Wallace told the students:
This is one part of what teaching me how to think is really supposed to mean: To be just a little less arrogant. To have just a little critical awareness about myself and my certainties. Because a huge percentage of the stuff that I tend to be automatically certain of is, it turns out, totally wrong and deluded. . .
Here is just one example of the total wrongness of something I tend to be automatically sure of: everything in my own immediate experience supports my deep belief that I am the absolute center of the universe; the realest, most vivid and important person in existence. We rarely think about this sort of natural, basic self-centeredness because it’s so socially repulsive. But it’s pretty much the same for all of us. It is our default setting, hard-wired into our boards at birth. Think about it: there is no experience you have had that you are not the absolute center of.
At a time when so many are convinced they have the better side of the argument, it is good to revisit the wise words from the great David Foster Wallace.
If you haven’t already, ORDER your copy of Doing Justice, also available as an audio book. Thank you to everyone for showing your support and joining Preet and the CAFE Team in our pursuit and exploration of justice.
HIDE & SEEK: TRUMP’S TAXES, MUELLER’S REPORT
Takeaways from Episode 20 of CAFE Insider:
Trump’s taxes: In seeking Trump’s tax returns from the IRS, the House Ways and Means Committee Chairman Richard Neal is relying on a provision of the tax code, 26 U.S.C. § 6103, often used to assess how changes to tax laws impact different groups of taxpayers. Chairman Neal is pinning the demand on Trump’s repeated claim that he’s under an audit. Though the statute is clear on its face – it says the IRS Secretary “shall furnish” the tax returns “upon written request from the chairman” – the question isn’t necessarily settled. Under some Supreme Court precedent, the Committee may be required to provide a legislative basis for why it needs the president’s returns. This was among the arguments made by Trump’s attorney William Consovoy in a letter he sent to the Treasury urging the General Counsel not to comply with Chairman Neil’s request. The more salient question isn’t legal or political, but rather logical: What’s the president hiding? Being under an audit does not legally prevent him from releasing his tax returns.
Congressional committees will not see grand jury information in Mueller’s report: Rule 6(e) of Federal Rules of Criminal Procedure requires grand jury materials to be kept secret, even from Congressional committees, except in a limited set of circumstances none of which are applicable to the Mueller report. An unrelated case that was decided by Court of Appeals for the D.C. Circuit last week holds that judges cannot read a “public interest” exception into the statute. The only other avenue for Congress to view the grand jury evidence is through the exception contained in Rule 6(E)(3)(i), which permits disclosure “preliminarily to or in connection with a judicial proceeding.” That means that the only way for Congress to gain access to Mueller’s grand jury information may be to open an impeachment inquiry, something top Democratic leadership isn’t inclined to do at this moment.
If you haven’t already, listen to “Hide & Seek: Trump’s Taxes, Mueller’s Report”
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THIS WEEK ON STAY TUNED
This week, Stay Tuned presents the first episode of our series of conversations with writers about their craft, their lives, and life lessons. There’s no one better to kick off this series than Bob Caro, the legendary two-time Pulitzer Prize winning author and biographer of LBJ and Robert Moses. His new book, Working, is a memoir on writing. In this sneak peek at the interview, Caro shares how he picks his subjects:
I never had the faintest interest in writing the book just to tell the life of a great man. From the minute I started thinking about writing books, I thought of using the lives of certain men as a way to examine political power because it’s political power that I was interested in. How it affects people’s lives, how it is created. I said, if you pick the right man, you can use the life of a man to show what you want to show about political power. You have to pick the right man.
The episode drops this Thursday, April 11.
SOMEONE TO FOLLOW
Elie Honig served as the chief of organized crime at SDNY and at the NJ Attorney General’s Office as the Director of the Division of Criminal Justice. Follow him @eliehonig for analysis of the latest cases and controversies.
That’s it for this week. We hope you’re enjoying CAFE Insider. Please send us your suggestions and questions at Insider@cafe.com.