The Conflicts of J. Edgar Comey
The FBI chief refuses to tell Congress who requested to ‘unmask’ Mike Flynn’s name.
Kimberley A. Strassel
April 6, 2017 7:20 p.m. ET
We interrupt the Russia-scandal program to ask two simple questions of one of the nation’s top law-enforcement officers: What exactly is FBI Director Jim Comey doing about the only crime that has so far been revealed in this Russia probe? And is he too conflicted even to be doing it?
That crime is of course the leaking that toppled Donald Trump’s first national security adviser, Michael Flynn. The media and Democrats have done their best to avoid covering this, for the simple reason that some of them were complicit. Yet in the entire speculative drama over Russian interference in American elections, so far this is the only crime that is beyond any doubt.
It’s a serious crime, too. Someone in the U.S. government obtained highly classified information about a conversation between an incoming presidential adviser and a foreign official. Someone then leaked Mr. Flynn’s name and the contents of that conversation to the press, resulting in his resignation. As even Mr. Comey recently confirmed, the leaking of such material is an “extraordinarily unusual event.” It is also a felony, punishable by up to 10 years in federal prison.
Why? Because such leaks expose American intelligence sources and methods, putting national security at risk. Moreover, leaking the names of private citizens under surveillance (with the express intent to cause harm) is among the grossest violations of civil liberties. It is what police states do.
The Washington Post story about Mr. Flynn’s conversation cited as its sources “nine current and former officials” who “had access to reports from U.S. intelligence and law enforcement agencies.” That means at least nine current or former Obama administration officials or bureaucrats should be looking at criminal charges.
Which brings us to Mr. Comey. Leaks are in the FBI’s purview, and this case ought to be a slam dunk. Unlike in some leak investigations, Mr. Comey has a trail of bread loaves to follow. Someone in the U.S. government had to take the first step of “unmasking”—requesting the identity of—Mr. Flynn. There are records of such requests, easily accessible by the FBI.
The process is then straightforward: March the unmasker to the FBI and require that official—under oath—to confess if he or she passed Mr. Flynn’s name to the media. If not, demand to know to whom that person gave the information. Track down the leakers. Ask a grand jury to indict.
But there’s also the obvious fact that the FBI is one of only a few agencies with the power to grant an unmasking request. Mr. Comey may well have been involved in granting the request to unmask Mr. Flynn. It’s possible he has known the name of the unmasker for months.
Yet the incredibly political Mr. Comey came to Capitol Hill and refused even to confirm the existence of a leak investigation (in contrast to his eagerness to confirm a probe into possible Trump ties to Russia). Worse, sources tell me that Mr. Comey is willfully obstructing Congress’s own investigation into the leaks. He has refused requests for documents that would show who unmasked Mr. Flynn. He has refused to provide that name in a closed meeting to the speaker of the House or the leaders of intelligence committees.
This is enormously problematic, since Mr. Comey has glaring conflicts of interest here. After all, it is possible Mr. Comey’s staff are among the leakers. He has an interest in avoiding an agency scandal.
Mr. Comey is, in fact, obstructing oversight of his own agency. It is Congress’s duty to investigate failings in the intelligence system. It is Congress that authorizes surveillance programs in the first place. And one of its main jobs is to assure itself and the public that intelligence and law-enforcement agencies aren’t abusing surveillance, violating citizens’ privacy. Can anyone say J. Edgar Hoover ? Mr. Comey should not have the power to stymie an outside investigation into his own agency’s practices.
The obvious answer here is for Mr. Comey to start being transparent to congressional oversight. You’d think his fellow heads of intelligence agencies would be pressuring him to get straight, given the grave risk he’s posing to their own organizations. Section 702 of the Foreign Intelligence Surveillance Act, one the government’s most vital snooping tools, expires at the end of this year. I’m told that—given the appalling leak mess, and the Obama administration’s likely abuse of its spying authority—not a single Republican is yet committed to reauthorization.
If the FBI director won’t open up, maybe it’s time for a Justice Department attorney with the appropriate jurisdiction to start an investigation. Because no matter how much Mr. Comey acts the boy scout, he is not above supervision.
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The Republicans Relearn Politics
The health-care bill is far from dead, and a contentious debate is a sign of vigor.
House Speaker Paul Ryan in the U.S. Capitol, March 13. Photo: jim lo scalzo/European Pressphoto Agency
Kimberley A. Strassel
March 16, 2017 7:02 p.m. ET
With a hat-tip to Mark Twain, reports of the death of the Republican health-care bill have been greatly, vastly, even bigly exaggerated. What we are witnessing isn’t a legislative demise, but the rebirth of a long-lost Washington concept: politics.
From the moment Speaker Paul Ryan unveiled his ObamaCare repeal-and-replace bill, the media have declared it a doomed project. The newspapers have run out of synonyms for division, disunity, discord, conflict, struggle, mess. Since the only thing the media enjoy more than bashing Republicans is helping Republicans bash each other, the cable stations have offered a nonstop loop of a handful of GOP naysayers and grandstanders (cue Rand Paul) who wish the bill ill.
Perhaps the talking heads can be excused for their dim outlook. The Obama administration marked one of the more dysfunctional and destructive periods in Washington—eight years of threats, executive rule, noncommunication and opposition politics. So it is undoubtedly confusing for some people suddenly to watch an honest-to-goodness legislative process, with all its negotiating, horse-trading and consensus-building.
Under prior management, Nancy Pelosi did her thing, Harry Reid did his thing, President Obama did his thing, and the three tried not to talk if at all possible. The Obama legislative affairs team couldn’t have found Capitol Hill with a map.
Today’s negotiations over the health bill feature a White House that is working hand-in-hand with congressional leaders to get to yes. Even as the critics looped on cable TV, the Trump administration was working with House leaders on a substantive amendment to the bill to address conservative concerns before the legislation hits the floor.
Vice President Mike Pence held a listening session Wednesday with the Republican Study Committee, an influential bloc of 170 House conservatives. President Trump met last week with conservative activists. Sources confirm daily telephone round robins among Mr. Ryan, Mitch McConnell, President Trump, Mr. Pence, White House chief of staff Reince Priebus, and Secretary of Health and Human Services Tom Price.
One sign of progress: Rep. Mark Meadows (of the Freedom Caucus) and Sen. Ted Cruz (of Cruz-Still-For-President) penned a joint op-ed Thursday for this newspaper’s online edition, laying out their demands for the health-care bill. These two super-critics have not only refused to walk away from the negotiating table but are positioning themselves potentially to take credit for changes.
President Obama disdained Congress and didn’t want to legislate. He waited to see if he liked what his Democratic underlings brought him. Today veterans of the legislative process are professing admiration for the way Mr. Trump is handling this deal.
On the one hand, the president has made clear that the Ryan bill must be the vehicle for repeal and replace, and that the consequences of failure would be severe. His rally planned for Monday in Kentucky (cue Rand Paul again) is designed to demonstrate the pressure he can exert on Republican holdouts.
On the other hand, Mr. Trump has wisely refrained from publicly committing to the specifics of the bill, instead using behind-the-scenes meetings to listen, negotiate, nudge. He has, to his credit, ignored all those putative allies telling him to ditch Mr. Ryan & Co.
Speaker Ryan is avoiding his predecessor’s mistakes, too. During the Obama years, Speaker John Boehner struggled to control his conference and the legislative process. True, Mr. Ryan is negotiating, but he’s also relentlessly driving the bill through the chamber. By Thursday, it had cleared three committees, with only three GOP defections. Next up is the Rules Committee, and then it comes to the floor. Mr. Ryan is banking on these deadlines to drive Republicans to make their final deals and then get behind the bill.
He also seems to understand his chamber’s outsize role here. The bill can pass the House only with conservative support. Once gained, that support will make it much harder for GOP senators to balk. Leadership will be able to focus on the demands of a much smaller number of skeptics, and Mr. Trump will be able to target his considerable powers on defectors.
Could all this break down? Yes, but then again, a bill dies only when leadership stops pushing it. Mr. Ryan shows no sign of stopping. This is how it works. Go read your old copy of “Showdown at Gucci Gulch,” which tells how the 1986 tax reform was “dead” a dozen times—until it wasn’t.
This process takes time because the GOP is itself relearning the political craft. It was easy in the Obama years to back “perfect” House legislation, since it would never get through the Senate. It was easier to oppose than it is to propose. Some conservative lawmakers seem to have realized only now that they’d have been better off working in their committees to improve today’s health-care bill than to complain and then later ask for changes.
Is health-care reform inevitable? No. But is it a lost cause? Not even close. Oh, this will be ugly and messy and painful. But only because that’s how real, old-fashioned politics works.
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Appeared in the Mar. 17, 2017, print edition.
Stolen from the WSJ:
The Left Learns to Love Dubya
Liberals call Bush a hero now that there’s a new Republican Hitler in town.
The former president speaking at the Ronald Reagan Presidential Library, March 1. Photo: Agence France-Presse/Getty Images
Kimberley A. Strassel
March 2, 2017 6:59 p.m. ET
George W. Bush gave Democrats a gift this week—which should be a reminder of the perils of demonizing political opponents. But don’t bank on the left accepting his gracious offering.
Promoting his new book about veterans on NBC’s “Today” show, Mr. Bush was asked to weigh in on the fight between Donald Trump and the media. “We need an independent media to hold people like me to account,” he told Matt Lauer. “Power can be very addictive and it can be corrosive, and it’s important for the media to call to account people who abuse their power.”
The press and liberal groups gushed, and hundreds of headlines approvingly quoted the former president. “Why you should listen when George W. Bush defends the media,” declared a headline at the Washington Post. “George W Bush: a welcome return,” raved the Guardian, which went so far as to call him a “paragon of virtue.” The leftist site ThinkProgress ran a blog post titled “George W. Bush defends the Constitution to rebuke Trump.”
Miss me yet?
Suddenly, they do—though only in the most self-serving way. President Bush would have made the exact same defense of the First Amendment while he was in office (and indeed, he later explicitly said that his words were not meant as a criticism of Mr. Trump).
Mr. Bush is a straight-up guy. While president, he treated the press and his political opponents with general courtesy—attending their events, living with their bias. He ran as a uniter and was far more genuine in his outreach than his grandiose successor. He didn’t lie, or bully, or sic his IRS on his opponents, or spy on reporters. He took responsibility for his actions, notably big decisions like going to war.
Not one bit of that earned him any credit. Go back and read the headlines from the Bush administration. They vary in substance from today’s coverage, but not the least in tone. Bush Derangement Syndrome entailed a vicious, daily assault by a media contemptuous of Mr. Bush’s intelligence, intentions and integrity. He was compared to Hitler and terrorists, accused of racism, homophobia and sexism. He was a plutocrat, out to rip off the nation’s old and poor. He orchestrated conspiracies ranging from 9/11 to the spread of avian flu. He lied, people died.
None of this was true, but the goal of the media and the left from the start of the Bush presidency was to demonize and delegitimize the man and his agenda. It worked to a degree, in that it helped put the White House into the hands of Barack Obama—who, in contrast to Mr. Bush, used the power of his office to continue vilifying his opponents. Mr. Trump’s smash-mouth politics are simply a continuation of this trend.
Which brings us to the president’s Tuesday address to Congress, and the shocked faces of all those women in white. Democrats were counting on Mr. Trump to unleash another gloomy tirade, the easier to continue demonizing him. Instead a gracious Mr. Trump called for unity, offered to work with the other side, and dangled some liberal priorities in front of Democratic noses—infrastructure spending, immigration reform. Nancy Pelosi looked verklempt.
Democrats have been so eager to paint Mr. Trump as a right-wing lunatic that they’ve actually started to believe it—at their peril. The reality is that Mr. Trump is one of the least ideological Republican leaders in modern history. He wasn’t even a member of the GOP until recently.
And while he clearly intends to uphold his campaign promises, he’s a negotiator who is always up for a deal. This is a man the Democratic Party can work with, if it chooses.
The Democratic temptation will be to continue to resist and obstruct. The party will tell itself that this strategy worked against Mr. Bush, that it worked for the Tea Party against Mr. Obama, that Mr. Trump will surely grow more unpopular.
Then again, the Trump phenomenon is rooted in voters’ growing disgust with politics as usual. Although Mr. Trump’s personal approval ratings are far from stellar, the latest poll from this newspaper and NBC shows that voters appreciate the president’s directness, his decisiveness, and his intention to get things done. The poll also shows a growing sense of optimism and a sharp turn against the Democrats. Obstruction would be taking a big chance in these times.
In the end, Democrats have to decide why they are in Washington: to follow through on some promises to voters, or to play politics? Their widespread and instantaneous dismissal of Mr. Trump’s outreach on immigration suggests the latter. “The speech he gave,” complained Senate Democratic leader Chuck Schumer, “was one of the most anti-immigrant speeches that we heard any president ever give.”
But we are no longer living in the Bush days. Derangement syndrome holds a much bigger risk for today’s idea-free Democratic Party than it did 12 years ago.
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Stolen from the WSJ:
Kimberly Strassel has uncovered a long-forgotten requirement for congressional actions which may make the much needed undoing of the Obama regulation nastiness much easier.
A GOP Regulatory Game Changer
Legal experts say that Congress can overrule Obama regulations going back to 2009.
Kimberley A. Strassel
Jan. 26, 2017 7:48 p.m. ET
As published in the WSJ
Todd Gaziano on Wednesday stepped into a meeting of free-market attorneys, think tankers and Republican congressional staff to unveil a big idea. By the time he stepped out, he had reset Washington’s regulatory battle lines.
These days Mr. Gaziano is a senior fellow in constitutional law at the Pacific Legal Foundation. But in 1996 he was counsel to then-Republican Rep. David McIntosh. He was intimately involved in drafting and passing a bill Mr. McIntosh sponsored: the Congressional Review Act. No one knows the law better
Everyone right now is talking about the CRA, which gives Congress the ability, with simple majorities, to overrule regulations from the executive branch. Republicans are eager to use the law, and House Majority Leader Kevin McCarthy this week unveiled the first five Obama rules that his chamber intends to nix.
The accepted wisdom in Washington is that the CRA can be used only against new regulations, those finalized in the past 60 legislative days. That gets Republicans back to June, teeing up 180 rules or so for override. Included are biggies like the Interior Department’s “streams” rule, the Labor Department’s overtime-pay rule, and the Environmental Protection Agency’s methane rule.
But what Mr. Gaziano told Republicans on Wednesday was that the CRA grants them far greater powers, including the extraordinary ability to overrule regulations even back to the start of the Obama administration. The CRA also would allow the GOP to dismantle these regulations quickly, and to ensure those rules can’t come back, even under a future Democratic president. No kidding.
Here’s how it works: It turns out that the first line of the CRA requires any federal agency promulgating a rule to submit a “report” on it to the House and Senate. The 60-day clock starts either when the rule is published or when Congress receives the report—whichever comes later.
“There was always intended to be consequences if agencies didn’t deliver these reports,” Mr. Gaziano tells me. “And while some Obama agencies may have been better at sending reports, others, through incompetence or spite, likely didn’t.” Bottom line: There are rules for which there are no reports. And if the Trump administration were now to submit those reports—for rules implemented long ago—Congress would be free to vote the regulations down.
There’s more. It turns out the CRA has a expansive definition of what counts as a “rule”—and it isn’t limited to those published in the Federal Register. The CRA also applies to “guidance” that agencies issue. Think the Obama administration’s controversial guidance on transgender bathrooms in schools or on Title IX and campus sexual assault. It is highly unlikely agencies submitted reports to lawmakers on these actions.
“If they haven’t reported it to Congress, it can now be challenged,” says Paul Larkin, a senior legal research fellow at the Heritage Foundation. Mr. Larkin, also at Wednesday’s meeting, told me challenges could be leveled against any rule or guidance back to 1996, when the CRA was passed.
The best part? Once Congress overrides a rule, agencies cannot reissue it in “substantially the same form” unless specifically authorized by future legislation. The CRA can keep bad regs and guidance off the books even in future Democratic administrations—a far safer approach than if the Mr. Trump simply rescinded them.
Republicans in both chambers—particularly in the Senate—worry that a great use of the CRA could eat up valuable floor time, as Democrats drag out the review process. But Mr. Gaziano points out another hidden gem: The law allows a simple majority to limit debate time. Republicans could easily whip through a regulation an hour.
Imagine this scenario: The Trump administration orders its agencies to make a list of any regulations or guidance issued without a report. Those agencies coordinate with Congress about when to finally submit reports and start the clock. The GOP puts aside one day a month to hold CRA votes. Mr. Obama’s regulatory legacy is systematically dismantled—for good.
This is aggressive, sure, and would take intestinal fortitude. Some Republicans briefed on the plan are already fretting that Democrats will howl. They will. But the law is the law, and failing to use its full power would be utterly irresponsible. Democrats certainly would show no such restraint were the situation reversed. Witness their treatment of Mr. Trump’s cabinet nominees.
The entire point of the CRA was to help legislators rein in administrations that ignored statutes and the will of Congress. Few White House occupants ever showed more contempt for the law and lawmakers than Mr. Obama. Republicans if anything should take pride in using a duly passed statue to dispose of his wayward regulatory regime. It’d be a fitting and just end to Mr. Obama’s abuse of authority—and one of the better investments of time this Congress could ever make.
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I have been predicting this very move that our outgoing kommisar is making. I've been predicting it for more than a year.
It was eminently foreseeable given the arrogance of Obama.
We will never be rid of his malevolent touch.
Stolen shamelessly from the WSJ:
Obama’s Midnight Regulation Express
The goal is to issue more rules than the new administration could ever repeal.
Kimberley A. Strassel
Dec. 22, 2016 6:59 p.m. ET
Barack Obama isn’t known for humility, though rarely has his lack of grace been more on display than in his final hours in office. The nation rejected his agenda. The president’s response? To shove more of that agenda down the nation’s gullet.
Notice the growing and many ugly ways the Obama administration is actively working to undermine a Donald Trump presidency. Unnamed administration sources whisper stories about Russian hackers to delegitimize Mr. Trump’s election. These whispers began at about the same time Hillary Clinton officials began pressuring electors to defy election results and deny Mr. Trump the presidency. How helpful.
Trump transition-team members report how Obama officials are providing them with skewed or incomplete information, as well as lectures about their duties on climate change. (No wonder Mr. Trump is bypassing those “official” intelligence briefings.)
The Energy Department is refusing to provide the transition team with the names of career officials who led key programs, like those who attended U.N. climate talks.
Sen. Ron Johnson recently sent a letter to President Obama voicing alarm over “burrowing,” in which political appointees, late in an administration, convert to career bureaucrats and become obstacles to the new political appointees.
But perhaps nothing has more underlined the Obama arrogance than his final flurry of midnight regulations. With each new proposed rule or executive order, Mr. Obama is spitefully mocking the nation that just told him “enough.”
The technical definition of a midnight regulation is one issued between Election Day and the inauguration of a new president. The practice is bipartisan. George W. Bush, despite having promised not to do so, pushed through a fair number of rules in his final months. But Jimmy Carter and Bill Clinton were more aggressive, and Mr. Obama is making them look like pikers.
Mr. Obama has devoted his last year to ramming through controversial and far-reaching rules. Whether it was born of a desire to lay groundwork for a Clinton presidency, or as a guard against a Trump White House, the motive makes no difference. According to a Politico story of nearly a year ago, the administration had some 4,000 regulations in the works for Mr. Obama’s last year. They included smaller rules on workplace hazards, gun sellers, nutrition labels and energy efficiency, as well as giant regulations (costing billions) on retirement advice and overtime pay.
Since the election Mr. Obama has broken with all precedent by issuing rules that would be astonishing at any moment and are downright obnoxious at this point. This past week we learned of several sweeping new rules from the Interior Department and the Environmental Protection Agency, including regs on methane on public lands (cost: $2.4 billion); a new anti-coal rule related to streams ($1.2 billion) and renewable fuel standards ($1.5 billion).
This follows Mr. Obama’s extraordinary announcement that he will invoke a dusty old law to place nearly all of the Arctic Ocean, and much of the Atlantic Ocean, off limits to oil or gas drilling. This follows his highly politicized move to shut down the Dakota Access pipeline in North Dakota. And it comes amid reports the administration is rushing to implement last-minute rules on commodities speculation, immigrant workers and for-profit colleges—among others.
Any action that is rushed is likely to be shoddy, especially if it’s from the federal government. The point is for Mr. Obama to have his way and to swamp the Trump administration with a dizzying array of new rules to have to undo. That diverts manpower from bigger and better priorities.
President Obama is hoping this work will prove too much and his rules will stand. He’d be making a good bet. George W. Bush promised to undo last-minute Clinton regulations. Yet a paper done in 2005 by Jason M. Loring and Liam R. Roth in Wake Forest Law Review found that a whopping 82% were left to stand.
Then again, a Republican Congress seems ready and willing to invoke the Congressional Review Act, which allows legislators to reject rule-making. More important, Mr. Trump and his team seem to understand that Americans are angry at Mr. Obama’s tendency to rule like an autocrat. They also surely know how damaging many of these Obama parting gifts (particularly energy rules) will prove to their own agenda.
A Trump administration could send a powerful message to future presidents and build public support by highlighting the “midnight regulation” phenomenon and then making it a priority to ax every final Obama order. Single them out. Make a public list. Celebrate every repeal. That would be as profound a rebuke to the Obama legacy—a legacy based on abuse of power—as any other.
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