[guest post by Dana]

This morning, President Trump announced that he was declaring a national emergency on the Southern border. By doing this, it would allow him to access more funding money for his wall than what was in the compromise bill. Also, signing the bill would prevent another government shutdown:

President Trump declared a national emergency at the border on Friday to access billions of dollars to build a border wall that Congress refused to give him, transforming a highly charged policy dispute into a fundamental confrontation over separation of powers.

In a televised announcement in the Rose Garden, Mr. Trump said he would sign the declaration to protect the country from the flow of drugs, criminals and illegal immigrants coming across the border from Mexico, which he characterized as a profound threat to national security.

“We’re going to confront the national security crisis on our southern border and we’re going to do it one way or the other,” he said. “It’s an invasion,” he added. “We have an invasion of drugs and criminals coming into our country.”

But as he sought to deny that he was taking action because he could not persuade Congress to give him the money, he may have undercut his own argument that the border situation required urgent unilateral action. “I didn’t need to do this, but I’d rather do it faster,” he said. “I want to get it done faster, that’s all.”

…

The border emergency declaration, which Mr. Trump signed later in the day, enables Mr. Trump to divert $3.6 billion budgeted for military construction projects to the border wall, White House officials said. Mr. Trump will also use more traditional presidential budgetary discretion to tap $2.5 billion from counternarcotics programs and $600 million from a Treasury Department asset forfeiture fund.

Combined with the $1.375 billion authorized for fencing in a spending package passed by Congress on Thursday night, Mr. Trump would then have about $8 billion in all to advance construction of new barriers and repairs or replacement of existing barriers along the border this year, significantly more than the $5.7 billion that Congress refused to give him.

When the news came out yesterday that President Trump was planning on signing the compromise border security measure as well as declaring a national emergency in order to get more funding than the bill allotted, Republican senators voiced concerns about Constitutional violations and bypassing Congress:

“I wish he wouldn’t have done it,” said Sen. Chuck Grassley (R-Iowa), who McConnell interrupted on the Senate floor to make his announcement. “If [Trump] figures that Congress didn’t do enough and he’s got to do it, then I imagine we’ll find out whether he’s got the authority to do it by the courts.”

“In general, I’m not for running the government by emergency, nor spending money. The Constitution’s pretty clear: spending originates and is directed by Congress,” said Sen. Rand Paul (R-Ky.), who like almost everyone else on Capitol Hill wants more information. “So I’m not really for it.”

…

“I’m not enthusiastic about it, but I don’t know whether that’s actually going to happen, and if so, what follows from there. I don’t know what authority he may or may not invoke,” said Sen. Pat Toomey (R-Pa.).

“I have some concerns,” added Sen. Roy Blunt (R-Mo.). “There are ways you could transfer funds that I could be fully supportive of, and there are other ways that I’d have a lot of problems with.”

“I always kind of take pause to the assertion of executive power,” said Sen. Thom Tillis (R-N.C.). “The main reason is it could detract attention away from the long-term solution that can only occur through an act of Congress.”

Sen. Marco Rubio also pushed back and warned about thwarting the Constitution:

We have a crisis at our southern border, but no crisis justifies violating the Constitution.

And here’s Susan Collins on the issue:

“I think it’s a mistake,” said Sen. Susan Collins, Republican of Maine. “The National Emergencies Act was contemplated to apply to natural disasters or catastrophic events such as the attacks on our country on 9/11. For the President to use it to re-purpose billions of dollars, that Congress has appropriated for other purposes that has previously signed into law, strikes me as undermining the appropriations process, the will of Congress and being of dubious constitutionality.”

The bill itself contains limitations that run counter to President Trump’s overall immigration wants.

Given Nancy Pelosi’s warning that the national emergency tables could eventually be turned against Republicans if the president went this route, we can be fairly certain now that this will happen:

“If the president can declare an emergency on something he has created as an emergency, an illusion that he wants to convey, just think about what a president with different values can present to the American people,” Pelosi said.

“You want to talk about a national emergency? Let’s talk about today,” Pelosi said, referring to the first anniversary of the school shooting in Parkland, Florida, that left 17 dead on Feb. 14, 2018.

She said the shooting was “another manifestation of the epidemic of gun violence in America.”

“That’s a national emergency. Why don’t you declare that an emergency, Mr. President? I wish you would,” she said. “But a Democratic president can do that. A Democratic president can declare emergencies as well.”

The “national emergencies” that would seem to fit the bill for the Democrats might include climate change, income inequality, gun violence, and/or the opioid crisis.

Pelosi and Chuck Schumer together said:

“Declaring a national emergency would be a lawless act, a gross abuse of power of the presidency and a desperate attempt to distract from the fact that President Trump broke his core promise to have Mexico pay for his wall. It is yet another demonstration of President Trump’s naked contempt for the rule of law.

Oh, yeah, and this:

Sarah Sanders told reporters that the president has already signed the bill.

UPDATE: David French has written a great “lawsplainer” regarding President Trump’s declaration of a national emergency. It is well worth reading in its entirety. Insightful and clarifying.

One thing that is abundantly clear from reading the full text of President Trump’s declaration of a national emergency on the southern border — he’s barely even deigning to explain why there is a particular crisis today, or why that crisis is so grave that it requires the military to combat it. At its heart it’s a contemptuous document. It’s the proclamation of a monarch, not an argument by a president. And it should fail in court.

Before today, legal writers were guessing at the statutes the president would use to justify defying the will of Congress and using the military to build his border wall. Now we know. In his declaration, he’s exclusively using 10 U.S.C. 2808 to reallocate up to $3.6 billion from Department of Defense construction projects — more than double the amount that Congress allocated for wall construction in its border compromise. (He intends to use other funds as well for wall construction, but those aren’t applicable to the emergency declaration.)

This statute bears virtually no resemblance to the sweeping congressional grants of presidential discretion that allowed Trump to lawfully implement his travel ban or that allow presidents to declare national emergencies. Instead, it’s a much more carefully drafted law, with carefully defined terms. A court that does its job — applying the plain meaning of the words on the page — should have little patience for the Trump administration’s arguments.

I do not dispute that Trump likely can declare a national emergency, in large part because Congress has placed few meaningful restraints on that power, but such declarations don’t allow him to do anything he wants; they mainly serve to unlock other statutes which grant him other powers.

Read the whole thing.

(Cross-posted at The Jury Talks Back.)

–Dana

[guest post by Dana]

During an interview with Scott Pelley of 60 Minutes, former Deputy Director of the FBI Andrew McCabe opened up about his order for an investigation into President Trump after the 2016 election:

Former FBI Deputy Director Andrew McCabe told CBS News’ “60 Minutes” that he ordered obstruction of justice and counterintelligence investigations into President Donald Trump after a conversation with him immediately after he fired James Comey as FBI director.

"I was speaking to the man who had just run for the presidency and won the election for the presidency, and who might have done so with the aid of the government of Russia, our most formidable adversary on the world stage," McCabe said. "And that was something that troubled me greatly. "

One day after that conversation, McCabe said he "met with the team investigating the Russia cases."

"And I asked the team to go back and conduct an assessment to determine where are we with these efforts and what steps do we need to take going forward," he said. "I was very concerned that I was able to put the Russia case on absolutely solid ground in an indelible fashion, that were I removed quickly and reassigned or fired, that the case could not be closed or vanish in the night without a trace."

"I wanted to make sure that our case was on solid ground," he continued. "And if somebody came in behind me and closed it and tried to walk away from it, they would not be able to do that without creating a record of why they'd made that decision."

Also, according to Pelley, McCabe also admitted that law enforcement and senior intelligence officials discussed whether Trump could be ousted under the 25th amendment:

…Pelley provided more details about the interview, including McCabe’s description of the aftermath of Comey’s firing, saying there were “meetings at the Justice Department at which it was discussed whether the vice president and a majority of the Cabinet could be brought together to remove the president of the United States under the 25th Amendment.”

“These were the eight days from Comey’s firing to the point that Robert Mueller was appointed special counsel,” he continued. “And the highest levels of American law enforcement were trying to figure out what do with the president.”

Interesting that they believed Mike Pence might be willing to sign on to removing Trump from office. Apparently, that Pence signed on to the Trump-Pence ticket in spite of the troubling revelations about Trump’s character wasn’t enough for McCabe to recognize Pence’s unwavering loyalty to Trump. Pence told Andrea Mitchell that he had no knowledge of any 25th amendment discussions, and said any such thing was “absurd”. He also said that he “”couldn’t be more proud” of Trump’s accomplishments in office, “and the words of a disgraced FBI agent won’t change that fact for the American people.””

Of course the president took to Twitter in response:

The full interview on 60 Minutes is scheduled to air Feb. 17.

P.S. Andrew McCabe is currently promoting his new book “The Threat: How the FBI Protects America in the Age of Terror and Trump,” which is set to be released Feb. 19.

(Cross-posted at The Jury Talks Back.)

–Dana