HE KNEW FOR WEEKS!

Joshua Roberts/REUTERS

THE HUFFINGTON POST

White House Admits Trump First Learned Flynn Lied In Late January…
Spicer Spins: ‘Laws Weren’t Broken’…
Resigned Over ‘Trust’ Issues…
Flynn Questioned By FBI Over Russia Calls…
Dems: Investigate Now!…
Chaffetz: ‘It’s Taking Care Of Itself’…
FINEMAN: White House Already In Flames…

The most dysfunctional White House in memory

Illustration by Lauren Hansen | Image courtesy iStock

THE WEEK

It’s three whole weeks into the Trump administration, and this is already looking like the most dysfunctional White House in memory. While we had plenty of other things to worry about when contemplating a Donald Trump victory during the campaign, this should have been utterly predictable.

White House jobs are famously stressful — long hours, high stakes, and public scrutiny combine to exact a toll on everyone working there. That’s why it’s rare for high-ranking staff to last a full eight years; even four is a marathon, and many people leave after a year or two. But we’d normally expect people to last more than a month. For at least one of Trump’s key advisers, this hasn’t happened.

National Security Adviser Michael Flynn got the boot first. He had conversations with the Russian ambassador on the day the Obama administration imposed sanctions on Russia for interfering in the election, yet claimed that the sanctions never came up; among other people, he told this to Vice President Mike Pence, who went out and defended him publicly. Nine separate officials told The Washington Post that Flynn lied; apparently he wasn’t aware that the ambassador’s phone was being monitored, despite the fact that as the former head of the Defense Intelligence Agency, it might have occurred to him. On Monday, Kellyanne Conway said that Flynn has “the full confidence of the president,” but still: If you have the VP lie on your behalf, you probably aren’t going to be around for too long. And indeed, on Monday night, Flynn resigned.

Some of Trump’s other advisers are surely looking over their shoulders, as well. Press Secretary Sean Spicer has often earned Trump’s displeasure (much as he has proven his loyalty by backing up every one of Trump’s absurd falsehoods to an angry press corps), and seems perpetually on thin ice. Chief of Staff Reince Priebus — the one charged with keeping the whole ship moving forward — has been a frequent target of rumors and backbiting. After meeting with the president, Trump friend and conservative publisher Christopher Ruddy went on CNN and called for Priebus’ ouster, then told Politico that Trump has “always been successful and had strong people around him, and he’s in the process of figuring out who those people are.” Ruddy later said Priebus convinced him things might improve, but it wasn’t exactly a ringing endorsement for the staff.

It’s true that Trump has been successful in his business of real estate and brand licensing — which he’ll remind you, again and again and again. But the Trump Organization, whatever its merits as a business, is not the federal government. Voters often assume that someone with a business background “knows how to get things done” and can therefore “make government run like a business,” meaning, operate with an efficiency and effectiveness that far exceeds the ability of ordinary pencil-pushing bureaucrats. The trouble is that government is nothing like a business.

Its systems work in very different ways. Its fundamental goal is different — not making a profit, which is straightforward, but serving the public interest, which is enormously complex and requires meeting hundreds or even thousands of subsidiary goals. And perhaps most importantly, the president may be the most powerful person in the world, but he has to deal with an array of competing nodes of power, each of which has its own goals. There are 535 members of Congress, interest groups of varying stripes, the court system, entrenched bureaucracies, even members of his own staff, all of whom will be acting in their own interests, sometimes in direct opposition to his.

Trump seemed to be completely unprepared for this fact, and it’s part of the reason why he’s having such a hard time. As a businessman, when he says, “Put more gold leaf on the walls in that foyer,” that’s what his underlings do. But the orders a president gives aren’t necessarily followed. He can try to keep out Muslim immigrants, only to find that some “so-called judge” can overrule him. It’s no doubt a disorienting experience.

And since it was a core part not just of Trump’s campaign but his genuine feeling that the people who have been running the government in recent decades are incompetent and stupid, it’s no surprise that he has stocked his administration with people who have never worked in government before — and therefore don’t really know how it works. This is particularly true of his inner circle. Their bungles infuriate him, which leads to distrust, which makes them ready to undermine him. The White House at the moment, reports Mike Allen, is characterized by “insecurity, ass-covering, and endless leaking. Those who don’t fear for their hide are busy gaming out how they rise when someone falls. Trump feeds all of this. It’s why an insider describes the White House hierarchy as ‘fragile.'”

Paul Waldman

White House posts wrong versions of Trump’s orders on its website

AP APTOPIX TRUMP A USA DC

President Trump shows off his signature on an executive order about the Dakota Access pipeline, one of five executive orders with incorrect version posted to the White House website.(Photo: Evan Vucci, AP)

USA TODAY

WASHINGTON — The White House has posted inaccurate texts of President Trump’s own executive orders on the White House website, raising further questions about how thorough the Trump administration has been in drafting some of his most controversial actions.

A USA TODAY review of presidential documents found at least five cases where the version posted on the White House website doesn’t match the official version sent to the Federal Register. The differences include minor grammatical changes, missing words and paragraph renumbering — but also two cases where the original text referred to inaccurate or non-existent provisions of law.

By law, the Federal Register version is the legally controlling language. But it can often take several days for the order to be published, meaning that the public must often rely on what the White House puts out — and that’s sometimes inaccurate. For example:

► The controversial travel ban executive order suspended the Visa Interview Waiver Program and required the secretary of State to enforce a section of the Immigration and Naturalization Act requiring an in-person interview for everyone seeking a non-immigrant visa. But the White House version of the order referred to that provision as 8 U.S.C. 1222, which requires a physical and mental examination — not 8 U.S.C. 1202, which requires an interview.

► An executive order on ethical standards for administration appointees, as it appears on the White House website, refers to”section 207 of title 28” of the U.S. Code. As the nonprofit news site Pro Publica reported last week, that section does not exist. The Federal Register correctly cited section 207 of title 18, which does exist.

Transparency advocates said the discrepancies raises unnecessary concerns about the Trump’s executive actions. “These last-minute edits suggest the Trump White House needs to revisit their vetting, sign-off, and publication processes for executive orders,” said John Wonderlich, executive director of the nonpartisan Sunlight Foundation.

The White House has faced questions about the vetting of executive orders, especially the order suspending travel for nationals of seven majority-Muslim countries. That order caused confusion inside and outside the administration and led to the firing of acting Attorney General Sally Yates when she refused to defend it in court.

Trump has signed almost all of his executive orders in public ceremonies. The White House Staff Secretary’s office then sends the original, signed copy to the Office of the Federal Register, which is part of the National Archives. The Federal Register says its version is the exact text of what the president approved.

“We would never correct something that the president signs,” said Jim Hemphill, special assistant to the director of the Federal Register. “Once the president’s signature is on that, that’s a legal document that we would never change.”

The White House did not respond to a request for comment Monday. It’s unclear whether the press office somehow released out-of-date copies of executive orders, or whether the president signed new orders correcting mistakes before they were sent to the Federal Register.

Among the other discrepancies:

► An executive order asking the secretary of Labor to re-examine the “Fiduciary Rule” is missing the beginning of a sentence describing what rule the memo is referring to. The official version reads, “The Department of Labor’s (Department) final rule entitled, Definition of the Term ‘Fiduciary.’ ” The White House version simply says “Term ‘Fiduciary.’ ”

► A memorandum on construction of the Dakota Access Pipeline contained minor grammatical changes, with the official version putting instructions to the secretary of the Army in the passive voice. Instead of “the Secretary of the Army shall promptly provide a copy of this memorandum” to Congress, the final text said “a copy of this memorandum shall be provided immediately.

The Federal Register renumbered a presidential memorandum on a plan to defeat the Islamic State to include a Section 3. The White House version put all the effective clauses in Section 2. 

10 things you need to know today: February 14, 2017

Drew Angerer/Getty Images

THE WEEK

1. Michael Flynn resigns as national security adviser
Michael Flynn resigned late Monday as President Trump’s national security adviser, after just over three weeks on the job. Flynn quit hours after The Washington Post reported that the Justice Department had warned the White House that Flynn had discussed sanctions with Russia’s ambassador before Trump’s inauguration, and could be subject to blackmail. Flynn, a retired general, initially denied that he had discussed sanctions with Ambassador Sergey Kislyak, and Vice President Mike Pence backed up that claim in interviews. Flynn said in his resignation letter that he had inadvertently briefed Pence with “incomplete information,” and said he had apologized to Pence and to Trump.

Source: The New York Times, The Washington Post

2. Crews work to repair California dam as storms loom
Crews are rushing to repair the damaged emergency spillway at California’s Oroville Dam on Tuesday, as approaching storms threaten to raise water levels in Lake Oroville, renewing the possibility that the overflow channel could fail. The potential for catastrophic flooding has forced officials to evacuate 188,000 people living downstream from the area, about 150 miles northeast of San Francisco. The water level dropped by about 3.5 feet early Monday, giving crews time for emergency repairs. Forecasters warned that a moderate storm on Wednesday and a “really big and strong storm” on Friday could renew the danger of a catastrophe.

Source: USA Today, Los Angeles Times

3. Trump and Trudeau discuss trade, avoid clash over immigration
Canadian Prime Minister Justin Trudeau met with President Trump at the White House on Monday, where both leaders stressed the importance of their countries’ bond while acknowledging sharp differences over immigration and other policies. Trudeau said he would not lecture Trump over his executive orders seeking to temporarily halt the U.S. refugee program and suspend travel from seven majority-Muslim nations, but that Canada would continue to “pursue our policies of openness” while maintaining security and serving as a “positive example in the world.” Trump said he wanted “to have a big, beautiful, open door” but “we cannot let the wrong people in.”

Source: BBC News

4. A divided Senate confirms Steven Mnuchin as treasury secretary
The Senate on Monday narrowly confirmed Steven Mnuchin as treasury secretary over strong Democratic opposition. All 52 Republicans and one Democrat, Sen. Joe Manchin of West Virginia, voted in favor of confirmation in the 53-47 vote. Democrats said Mnuchin did not belong in the job, accusing him of allowing avoidable foreclosures at Pasadena’s OneWest Bank, which he led after the financial crisis. Republicans said Mnuchin was well qualified. “Under any objective standard, Mr. Mnuchin has ample experience, credentials, and qualifications for this important position,” Sen. Orrin Hatch (R-Utah) said Monday, accusing Democrats of “pointless delays” to confirming Mnuchin.

Source: Los Angeles Times

5. Suicide bombing kills 13 during Pakistan protest
A suicide bomber detonated explosives on a crowded street outside the provincial legislature in Lahore, Pakistan, on Monday, killing at least 13 people and injuring dozens more. The blast hit as hundreds of pharmacists and drug company officials were protesting peacefully. Two senior police officials and four officers were among the dead. “The spot where the blast took place is always under threat,” said Rana Sanaullah, law minister for Punjab province. The government has put in place complex security arrangements, but the demonstration “gave the opportunity to terrorists to strike,” he said.

Source: The Washington Post

6. Judge denies request to halt Dakota Access Pipeline construction
A federal judge on Monday denied a request from the Standing Rock Sioux and Cheyenne River Sioux tribes to temporarily halt construction of the last stretch of the Dakota Access Pipeline. The tribes say the oil pipeline would threaten their water source and sacred grounds if it is built on its proposed path under Lake Oahe. The U.S. Army Corps of Engineers granted an easement to Energy Transfer Partners to finish the 1,170-mile pipeline after President Trump signed an executive order calling for reviving the project, which former President Barack Obama halted to explore alternative routes. Protesters continue to oppose the project, but Trump said “everybody is going to be happy in the end.”

Source: Reuters, ABC News

7. Trump’s approval rating hits new low
President Trump’s approval rating has fallen to an all-time low, according to a Gallup tracking poll released Monday. As of Feb. 11, just 40 percent approve of the job Trump is doing as president, while 55 percent disapprove. Around the same time in former President Barack Obama’s first term, Obama boasted a 65 percent approval rating and a 21 percent disapproval rating. Trump’s latest numbers mark a steep drop from when he first took office; on Jan. 22, he stood at an even 45 percent approval and 45 percent disapproval rate.

Source: Gallup

8. Virginia judge blocks Trump travel ban
A federal judge in Virginia on Monday temporarily blocked federal officials from enforcing President Trump’s travel ban against residents or university students in the state, marking the latest in a series of setbacks for Trump’s executive orders on immigration and refugees. Judge Leonie M. Brinkema said the ban probably violates First Amendment protection of religious freedom, and would cause “irreparable injury” to Virginia residents and institutions. The executive order barred travelers from seven Muslim-majority countries from entering the United States for 90 days. Brinkema said she did not issue a nationwide injunction because she wanted to “avoid any claim” that it is “defective because of overbreadth.” Earlier in the month, a Seattle judge blocked the ban nationwide, and an appeals court last week ruled against reinstating it.

Source: The Washington Post

9. U.N. condemns North Korea missile launch
The United Nations Security Council on Monday condemned North Korea’s recent missile launch, calling it a “grave violation” of Security Council resolutions. U.S. Ambassador to the United Nations Nikki Haley had called on the Security Council to “hold North Korea accountable” and show its isolated communist leaders that “these launches are unacceptable.” The U.N. secretary-general’s office said Pyongyang “must return to full compliance with its international obligations and to the path of denuclearization.” North Korea rejected the U.N.’s statement, saying its missile program was for self-defense.

Source: ABC News, Reuters

10. U.S. places Venezuelan official on drug-kingpin blacklist
The Treasury Department on Monday put Venezuela’s new executive vice president, Tareck Zaidan El Aissami Maddah, on a blacklist for alleged drug traffickers. The U.S. accused El Aissami, a former minister of justice and interior, of helping to run a vast network that transported drugs from South America to the U.S. and the U.K. The blacklisting freezes El Aissami’s assets in the U.S., and bars him from doing business with U.S. companies. U.S. officials said the move was not meant to punish the government of Venezuelan President Nicolas Maduro, although diplomatic ties between the U.S. and his socialist government are frayed.

Source: Los Angeles Times

I asked 8 experts if we’re in a constitutional crisis. Here’s what they said.

shutterstock-3

Not yet. But maybe soon?  Shutterstock

VOX POLICY

Are we in a constitutional crisis?

Well, no. As silly as the president declaring “SEE YOU IN COURT” in all caps on Twitter is, it’s not exactly a sign that he’s willing to bypass the judiciary altogether, which really would portend a crisis.

But with Trump tweeting attacks on “so-called judges,” and warning that decisions contrary to his wishes could lead to terrorist attacks, and Customs and Border Patrol officials at the nation’s airports initially ignoring court orders and according to some reports doing so on orders from the White House, it’s an understandable worry to have. Slate’s Mark Joseph Stern was one of the first to invoke the “C” word, the day after the executive order came down. On Thursday, Sen. Richard Blumenthal (D-CT) declared, after President Trump started openly disputing that his Supreme Court pick had criticized Trump’s treatment of the judiciary, that the country was, “careening, literally, toward a constitutional crisis.”

So I decided to ask eight leading experts — six constitutional law professors and two political scientists — for their thoughts. They were unanimous that the situation as it exists now doesn’t count as a constitutional “crisis”; some cast doubt on whether that term, which has no firm definition, is even useful.

“Trash-talking the federal courts on Twitter does not create a constitutional crisis,” Yale’s Jack Balkin explained. “It’s a really bad idea, but there are many really bad ideas that are not constitutional crises.”

But most experts said that if Trump were to start defying court edicts, that would very possibly qualify, and even his mere rhetoric ramps up conflict with the judiciary in a counterproductive and perhaps dangerous way.

And they were sure to add that even if we’re not in a constitutional crisis, that doesn’t at all imply that what is happening is normal, or moral, or fair, or decent. “I don’t like the phrase ‘constitutional crisis’ because it has this contention that unless the whole system is up for grabs, we shouldn’t care about an 18- or 19-year-old kid in Chicago who is so anxious about being deported he takes his own life,” Aziz Huq, a constitutional law professor at the University of Chicago, noted. “Crises happen everywhere on a micro scale. Just because they are happening to people on the margins doesn’t make them less important.”

Defining a “constitutional crisis”

The Bombardment of Fort Sumter

The Civil War: definitely a crisis.

Library of Congress

There are two major papers in the American constitutional law literature on the concept of a “constitutional crisis.” The first, from Princeton political scientist Keith Whittington, was written in the wake of the impeachment of President Clinton and the contested 2000 election, both of which provoked fears that the US was either in, or barely avoided, a constitutional crisis. Whittington argued that neither came close to qualifying.

“Constitutional crises arise out of the failure, or strong risk of failure, of a constitution to perform its central functions,” he wrote. That didn’t happen in the impeachment (which unfolded according to the procedures laid out in Articles 1 and 2) or in the 2000 election (in which decisions of executive branch officials in Florida were challenged through normal legal channels and all actors respected the ultimate decision of the US Supreme Court, whether or not they thought it was rightly decided).

So what would qualify? Whittington divided constitutional crises into two categories. Operational crises occur “when important political disputes cannot be resolved within the existing constitutional framework.” That is, the Constitution itself is failing, and is allowing people engaged in a political conflict to each behave in ways that together can result in calamity. A “crisis of constitutional fidelity,” by contrast, occurs when, “important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions.” That’s when what the Constitution prescribes is clear, but one or more politician or branch of government willfully defies it.

The secession crisis of 1860 was, Whittington argues, both an operational and a fidelity crisis. It was a fidelity crisis because some political actors — namely the seceding Southern states — refused to obey the dictates of the Constitution and explicitly rejected its power over them. But it was an operational crisis too, because, “the text of the Constitution was silent on the question of secession, and it provided no clear mechanism for resolving the contested question of whether and how states could secede from the Union.”

Whittington told me via email that he doesn’t think the current standoff between Trump and the judiciary qualifies as either a fidelity or operational crisis. While Trump’s comments are, he says, “certainly disquieting,” he adds that “disagreements between the executive and the courts are not uncommon, and are sometimes expressed rather strongly.”

What would change matters is if Trump were to receive an unfavorable ruling from the Supreme Court — and ignore it. “If the president were really to contemplate ignoring a decision by the U.S. Supreme Court, we’d be in nearly uncharted waters,” Whittington adds. He noted that the US has come close to that scenario in the past, but that in just about every case either the president or the Court backed down before an explicit violation occurred. For instance, in 1974 the Supreme Court ruled that Richard Nixon had to hand over the Watergate tapes to the special prosecutor’s office, and Nixon briefly considered not complying, as he strongly felt the president should not be subject to judicial proceedings outside of impeachment. But strong pressure from congressional Republicans and the threat that he would be impeached anyway caused him to back down and comply.

Balkin agrees that open defiance of clear court dictates could qualify as a crisis. He and UT Austin’s Sanford Levinson published the other widely cited article besides Whittington’s categorizing and analyzing constitutional crisis. In addition to Whittington’s two categories, they add a third: when two or more political actors each strongly believe the other is violating the Constitution or constitutional norms. In fidelity crises, it’s clear that only one side is violating the Constitution. In operational crises, it’s clear both sides are obeying the Constitution. In type three power struggle crises (“power struggle” is my term, not theirs, but it’s clearer than “type three”), each side has a real argument that it’s obeying and the other isn’t.

Balkin and Levinson offer a number of examples of power struggle crises, including the Nullification Crisis (in which South Carolina claimed it had the constitutional right to not enforce a federal tariff, Andrew Jackson claimed it didn’t, and each had arguments for why they were right), the conflict between Andrew Johnson and Congress over each one’s role in Reconstruction, and the Little Rock Crisis in 1957 between the government of Arkansas and the Eisenhower administration.

“We are not having a constitutional crisis, at least not yet,” Balkin told me via email, elaborating on a blog post he published on the topic. “Trump has not announced that he is going outside the Constitution, and he has not openly defied a judicial order. … If he does either of these things, and he won’t back down, then we would be in a constitutional crisis.”

Maybe not a crisis, but “hardball”?

No expert I talked to, including Whittington and Balkin, characterized the current situation as a constitutional crisis. “As far as we know, the executive is complying” with court orders, Yale’s Heather Gerken says. “That’s not a constitutional crisis. That’s a constitution working.”

Luckily, the legal literature has developed other, arguably clearer, categories for talking about heated conflict like this. In 2004, Mark Tushnet, now at Harvard Law, introduced the concept of “constitutional hardball”: when political actors are clearly acting within their legal and institutional limits, but are violating past practices or norms in a way that feels unprecedented and provides advantage to their side.

For example, he argues that Republican efforts to redistrict congressional seats in Texas and Colorado in 2003, after they had already redistricted for the census, count as constitutional hardball, as does the impeachment effort against Bill Clinton, as does Democrats’ obstruction of appellate nominees in the early George W. Bush administration. In none of those cases was anybody acting outside their prerogative per the Constitution. But in every case, they were using those powers in new and tough ways that caught their opponents off guard.

“In the current spat, if there is hardball going on, it takes the form of White House people bypassing the established systems for vetting executive orders,” Tushnet told me. “Not submitting them to career people in the Office of Legal Counsel, but sending it apparently only to the political, shadow person they sent over there. They can say, ‘We did send it to OLC,’ but the person who got it is not the kind of person who’d ordinarily be used to vet these issues.”

But he was open to the idea that Trump’s rhetoric against the judiciary could count too. “The more or less formal definition of constitutional hardball is that it consists of actions that are inconsistent with settled ways of doing things. In a political context, statements and rhetoric count as actions,” he explained. “I want to say I didn’t draw that distinction when I initially developed the idea. Now that we’ve had more examples, rhetoric can count as a form of constitutional hardball.”

Constitutional “showdowns” are important, but not crises

Nixon leaves the White House in 1974

Certainly one way to avoid a constitutional showdown.

Bill Pierce/The LIFE Images Collection/Getty Images

The University of Chicago’s Eric Posner and Harvard’s Adrian Vermeule introduced the parallel concept of “constitutional showdowns,” in 2008. The idea is similar to the idea of hardball, but focuses more on the precedents that such conflicts can create. A constitutional showdown, Posner and Vermeule wrote, is a “a disagreement between branches of government over their constitutional powers that ends in the total or partial acquiescence by one branch in the views of the other and that creates a constitutional precedent.”

They cite, as examples, the conflict between Nixon and the Supreme Court over the Watergate tapes (in which Nixon totally acquiesced and a new precedent was created limiting the president’s powers), the conflict between the Court and Harry Truman over seizing a steel mill (Truman backed down, creating another precedent limiting presidential powers), Abraham Lincoln’s refusal to obey an order from Chief Justice Roger Taney to release a man arrested by Union troops in 1861 (which created a new precedent enhancing the president’s war powers), and Andrew Jackson’s refusal to help enforce a Supreme Court ruling in 1832 that Georgia’s laws did not apply in Indian territory (which set a precedent, since contradicted by events like the Little Rock Crisis in 1957, of presidents not always acting to enforce federal rulings against state governments).

Posner has been clear that he views Trump’s attacks on the judiciary as a very serious matter. He used a New York Times op-ed to urge Supreme Court nominee Neil Gorsuch to condemn Trump’s behavior (presaging Gorsuch’s comments that Trump’s rhetoric is “disappointing and disheartening”). But he has also written that the present situation doesn’t rise to the level of “constitutional crisis.” “If Trump ordered border agents to disregard judicial orders blocking the executive order,” that would qualify, he told me in an email.

But for now we’re in a constitutional showdown of a more ordinary variety. “I think showdowns are unavoidable because constitutional rules do not necessarily keep up with the times (while amendment has proven to be too difficult to revise them in a timely fashion), and government depends on cooperation among different institutions,” Posner said. And who is right in each showdown can vary. You can think it was right of Lincoln to claim the power to suspend habeas corpus in wartime, but not for Jackson to decline to use federal force to protect Indian rights (and then to use it to commit ethnic cleansing).

“But,” he added, “the rule that the president obeys a judicial order in peacetime is ancient, and it is well established to be a good one except if the judiciary goes haywire, which is certainly not the case here.” Violating that norm would go further than Nixon, Truman, Lincoln, or even, arguably, Jackson went. And Trump ordering border agents to enforce his executive order when judges are telling them not to would violate that norm.

Suppose we get into a crisis. Could Trump then be stopped?

While no one I talked to declared the situation right now a crisis, many expressed concern that President Trump is all too willing to provoke one.

“Remember Trump’s statement before the election: ‘I’ll accept the results, if I win’?” Alice Ristroph, a law professor and political theorist at Seton Hall who has written about constitutional crises, says. “I think this administration will accept and preserve the basic structure of the American constitutional system if that system can be manipulated to give the administration what it wants. If Trump is overruled by the courts, who knows what will happen. Maybe a crisis.”

So what happens then? A lot depends on how institutional actors respond. Aníbal Pérez-Liñán, a comparative political scientist at the University of Pittsburgh who studies presidential democracies in Latin America, including constitutional crises experienced there, notes, “Many countries modeled their constitutions after the US, but most presidential regimes have experienced much more turbulent histories. The reason for American stability lies in the fact that politicians in both parties historically exercised civility and reached deals to process their disagreements.” That norm, of course, would take a major battering if Trump rejected a Court edict.

In that case, there would be two broad possibilities. One is that Trump, despite an initial rejection, somehow backs down. For that to happen, someone would have to persuade or force him. It could be his close advisers telling him he’s gone too far. It could be his own vice president and Cabinet, who could threaten to remove him by invoking the 25th Amendment. But institutionally, the people who are supposed to keep him in check in a case like that are members of Congress.

“The crucial thing for both the Court and the president is how Congress, and particularly the congressional Republicans, position themselves on a potential conflict,” Whittington says. “If the Republicans make it clear that they would not support presidential defiance of the Court, it would strengthen the hand of the judiciary. … It would seem unlikely that congressional Republicans, or even the president’s own Cabinet, would be willing to do lasting damage to the courts over these sorts of normal policy disagreements.”

But what if no one stops him?

Polish Constitutional Tribunal

A protest in front of the Polish Constitutional Tribunal in 2016.

Mateusz Wlodarczyk/Pacific Press/LightRocket via Getty Images

And what if no one keeps him in check? Then you get the possibility that the Court will be duly chastened, a new precedent will be set where its powers are greatly reduced, and the president emerges more powerful than before. “Purges of supreme courts or constitutional tribunals have been a common affair in Latin America, where many presidents have little tolerance for dissent,” Pérez-Liñán notes. Poland’s governing party has recently been cracking down on its Constitutional Tribunal in similar ways, raising serious concerns that the rule of law is eroding and democracy is backsliding.

Tushnet argues that a move like this by Trump, unchallenged, needn’t necessarily amount to democratic backsliding. It would usher in a new “constitutional order,” in Tushnet’s words, but such transitions can be either good or bad and aren’t always harbingers of democratic collapse.

“It might be that what the president is on the way to doing is becoming an authoritarian unconstrained by law entirely,” he explains. “But it could be that the president’s position is, ‘With respect to border control and national security, the courts have overstepped their bounds, I’m acting to make sure we have an appropriate relationship with the courts in that domain, and I don’t have a general quarrel with the rule of law.’ … It could be a component of a new settlement of relations among the branches that would not be a departure from core notions of the rule of law.”

“I don’t like what Trump is doing,” he clarifies, “but I’m willing to present it in a conceptual or constitutional theory framework that is independent of my particular views of this particular president.”

Huq, of the University of Chicago, notes that it’s hardly unusual for executive branch officials to drag their feet in implementing court decisions. Think of state officials failing to desegregate after Brown v. Board of Education, or the aftermath of Boumediene v. Bush, a 2008 Supreme Court decision that ruled Guantanamo detainees had a right to federal court review of their detention but that did not result in many detainees getting that review or being released, due, Huq argues, to “internal bureaucratic resistance.”

“But,” he also notes, “it’s hard to think of examples when the resistance starts off before the cases have been fully litigated. Where there’s zero willingness, up front, to comply. I can’t think of cases where resistance and refusal to comply have been coupled with an attack on the judiciary and an attempt to offset blame for bad political outcomes on the judiciary. That’s another example of a norm with respect to the Constitution that we’ve just blown apart.”

That’s what makes Trump’s case so different. In a recent paper titled “How to Lose a Constitutional Democracy,” Huq and his University of Chicago colleague Tom Ginsburg argue that a wholesale “authoritarian reversion,” along the lines of Hitler’s rise to power in 1933 or Gen. Sisi’s coup in Egypt in 2013, is unlikely in the US, for a variety of reasons. But “constitutional retrogression” — the slow erosion of democratic norms and institutions — is becoming more common abroad, and poses a real risk for the US. That’s the process by which Vladimir Putin’s Russia, Hugo Chávez’s Venezuela, Recep Tayyip Erdoğan’s Turkey, and Viktor Orbán’s Hungary have moved away from democracy and toward authoritarianism.

In other countries, constitutional amendments to bolster incumbent leaders’ power have played a significant role. But Huq and Ginsburg don’t think that’s likely, not least because Article 5 of the Constitution makes amendments extremely difficult to pass. Instead, they write, “The most likely motor of antidemocratic dynamics in the American political system is the presidency, acting with the acquiescence of a co-partisan Congress.” Helping along a presidency-driven retrogression would be an acquiescent judiciary (perhaps chastened by a president who doesn’t obey Supreme Court rulings he doesn’t like) and an erosion of electoral competition due to, say, voter ID laws and partisan districting.

“What I would count as democratic backsliding is a substantial negative change along three different elements or institutions happening at the same time,” Huq says. “Those three elements are the necessary institutional foundations of democracy, such that if you don’t have those institutional features, you can’t really have democracy. One is the possibility of political competition. The second is the rule of law. The third is the quality of liberal rights of speech and association that are necessary to the democratic process.”

Trump ignoring a court order would harm the rule of law but not necessarily the other two; in itself, it might not constitute backsliding. It could just be a rearranging of power between the branches, as Tushnet suggests. But Trump’s past actions and statements suggest the other two criteria could be in danger too.

Huq doesn’t think we’re in a constitutional crisis (“I don’t know what the term ‘constitutional crisis’ means, which I feel like is a very law professor thing to say,” he jokes) or that we’re engaged in democratic backsliding. But he thinks the danger is real and worth considering.

“My view,” he says, “is that we’re very vulnerable.”

Biden’s daughter launches a made in the USA clothing line, proceeds benefit underserved communities

NEW YORK, NY - FEBRUARY 07:  Dr. Jill Biden, Livelihood founder Ashley Biden and Vice President Joe Biden attend the GILT and Ashley Biden celebration of the launch of exclusive Livelihood Collection at Spring Place on February 7, 2017 in New York City.  (Photo by Jamie McCarthy/Getty Images for GILT)

A family that serves together.

DAILY KOS

Former Vice President (sob) Joe Biden’s daughter is meshing her skills in fashion design with the family’s penchant for public service. She’s partnering with e-tailer Gilt to launch a new clothing line that makes a political statement. From Teen Vogue:

Ashley’s line, called Livelihood, is produced exclusively for the e-commerce site Gilt, which has previously partnered with philanthropic initiatives like (RED). With her day job as a social worker in Delaware, she was able to see firsthand how communities suffered from a lack of resources. In fact, the two ZIP codes that will benefit from the first round of funding are Anacostia, D.C., where Ashley was first posted, and Wilmington, Delaware, where she was born.

With the proceeds, Ashley says, community boards will be created to decide what initiatives need the funding the most. “I want a janitor, a school teacher, the local pastor, whomever is involved in the community to sit at the table and to pick the projects for economic development,” she tells Teen Vogue. Economic development could mean anything from “education, community centers, literacy programs, tutoring, or workforce development,” she adds.

Former VEEP Biden touted her commitment to community:

“Her commitment to trying to change the world for the better is more intense than even mine has been,” added former Vice President Joe Biden speaking to the crowd. Sharing this sentiment was Gilt’s president, Jonathan Greller, dressed in a navy Gilt x Livelihood zip-up under his natty navy blazer. “It’s a great vision,” said Greller, adding, “all the product is made in the USA [and] when you can connect [shopping] back to philanthropy or to the arts and culture, it’s really important to have great companies like Gilt and Hudson’s Bay Company working with great organizations.”

This stands as the polar opposite to Ivanka Trump’s (now failing) $100 million clothing line that is manufactured entirely overseas, mainly in Asia. Like father, like daughter.

Jen Hayden

Read Michael Flynn’s Resignation Letter From the Trump Administration

TIME Politics

National Security Advisor Michael Flynn resigned from the Trump Administration Monday night, blaming the “fast pace of events” during the transition for his misstatements about phone calls with a Russian ambassador.

Flynn had been on thin ice for several days after reports surfaced that he misled Vice President Mike Pence about whether he discussed sanctions with Russian Ambassador Sergey Kislyak.

His resignation, first reported by CNN, came late Monday night.

Here is a full transcript of his resignation letter.

In the course of my duties as the Incoming National Security Advisor, I held numerous phone calls with foreign counterparts, ministers, and ambassadors. These calls were to facilitate a smooth transition and begin to build the necessary relationships between the President, his advisors and foreign leaders. Such calls are standard practice in any transition of this magnitude.

Unfortunately, because of the fast pace of events, I inadvertently briefed the Vice President Elect and others with incomplete information regarding my phone calls with the Russian Ambassador. I have sincerely apologized to the president and the Vice President, and they have accepted my apology.

Throughout my over thirty three years of honorable military service, and my tenure as the National Security Advisor, I have always performed my duties with the utmost of integrity and honesty to those I have served, to include the President of the United States.

I am tendering my resignation, honored to have served our nation and the American people in such a distinguished way.

I am also extremely honored to have served President Trump, who in just three weeks, has reprinted American foreign policy in fundamental ways to restore America’s leadership position in the world.

As I step away once again from serving my nation in this current capacity, I wish to thank President Trump for his personal loyalty, the friendship of those who I worked with throughout the hard fought campaign, the challenging period of transition, and during the early days of his presidency.

I know with the strong leadership of President Donald J. Trump and Vice President Mike Pence and the superb team they are assembling, this team will go down in history as one of the greatest presidencies in U.S> history, and I firmly believe the american people will be well served as they all work together to help Make America Great Again.

Michael T. Flynn, LTG (Ret)
Assistant to the President/ National Security Advisor

Ryan Teague Beckwith

KREMLIN PAL THROWS IN TOWEL

Win Mcnamee via GETTY IMAGES

THE HUFFINGTON POST

FLYNN GONE IN 24 DAYS… Apology: ‘Inadvertently Briefed’ Pence With ‘Incomplete Information’… EARLIER: DOJ Reportedly Warned White House That He Could Be Vulnerable To Russian Blackmail… Army Investigating Potential Payment From Russian Gov’t… PETRAEUS A Potential Replacement!…