— 24 —
THE SECRETARY OF TRUMP IS ALWAYS RIGHT
John Kelly
Secretary of Homeland Security
Homeland Security secretary John Kelly is loyal to a fault. “I work for one man. His name is Donald Trump,” says Kelly, when he is asked by congressional committees about the messes made by Trump and the West Wing cabal that has turned governing into chaos.
Translation: Even if Kelly disagrees with a policy, even if he has doubts about whether Trump is doing the right thing, he’s not going to share those anxieties with the members of Congress who are charged with providing oversight of Kelly and one of the most powerful departments in the federal government. And the fifth secretary of the Department of Homeland Security (DHS) is certainly not going to share with the American people any concerns about the unsettling and bizarre behaviors of the president who made him part of the cabinet.
That’s a far cry from the image of Kelly that was perpetuated by his advocates, and by the retired Marine Corps general himself, during the assessment of his nomination to join Trump’s team. Kelly got high marks when he told the Senate Homeland Security and Governmental Affairs Committee: “I have never had a problem speaking truth to power, and I firmly believe that those in power deserve full candor and my honest assessment and recommendations.”
That blunt talk fit with his image as a marine who had, during forty-five years of service in war zones from Vietnam to Iraq, earned a reputation for speaking his mind. This was the guy who, when he was asked in 2003 about how hard taking the capital of Iraq might be, answered: “Hell these are Marines. Men like them held Guadalcanal and took Iwo Jima. Baghdad ain’t shit.” As it happened, Iraq proved to be a heavier lift than Kelly anticipated; a decade after the invasion, he was saying: “If you think this war against our way of life is over because some of the self-appointed opinion-makers and chattering class grow ‘war weary,’ because they want to be out of Iraq or Afghanistan, you are mistaken. This enemy is dedicated to our destruction. He will fight us for generations, and the conflict will move through various phases as it has since 9/11.”
It was Kelly’s linking of border security issues with the “war on terror” that reportedly got Trump and his transition team excited about the general in the first place. While serving as head of the U.S. Southern Command, the general told a 2015 Senate Armed Services Committee hearing that “terrorist organizations could seek to leverage those same smuggling routes [in Central America and Mexico] to move operatives with intent to cause grave harm to our citizens or even bring weapons of mass destruction into the United States.”
That bold language was “a little over the top” in the view of Frank Sharry, the executive director of the immigration reform group America’s Voice. But members of the Senate comforted themselves with the expectation that Kelly’s experience with national security issues would lead him to speak truth to Trump’s power on the issues of immigration policy, deportations, border walls, Muslim bans and domestic policing that are within the purview of a Department of Homeland Security with a $40 billion budget and 240,000 employees in the twenty-three federal agencies it oversees.
After the Senate approved Kelly’s nomination by a lopsided 88–11 vote on the day Trump was inaugurated, however, the general lost his voice. He did not speak truth to power. Rather, he reinforced power that would have been better served by blunt questioning and open objection.
In late January 2017, after the rollout of the president’s executive order banning travel from seven Muslim countries went horribly awry—with mass protests, immediate legal challenges, judicial orders blocking its implementation and an international outcry—Kelly was called before Congress to explain the whys and wherefores of the chaos. “This is all on me,” the secretary announced, taking full blame for the failed attempt to impose a religious-test restriction on refugees and visitors that critics correctly labeled as a “Muslim ban.”
That may have sounded like an honorable acceptance of responsibility when no one else in the administration was acting responsibly. But when a member of the cabinet speaks to Congress they are supposed to give a clear and accurate assessment of what has transpired. And Kelly failed to provide that. Kelly may well have approved of the ban; he told the House Homeland Security Committee in his February 7 appearance that he thought it was “entirely possible” terrorists were entering the country after the courts blocked implementation of Trump’s executive order, and he griped that objections to the order were part of a “very academic, very almost in a vacuum discussion.” He also repeated the White House talking point that said: “This is not, I repeat, not a ban on Muslims,” even though lawyers, judges, diplomats and scholars said it was.
Despite the public apologias and explanations, however, the fact is that the Muslim ban was never “all on” Kelly. Quite the opposite. The travel ban was, by virtually all accounts, the work of White House strategists Steve Bannon and Stephen Miller. Indeed, in a Wall Street Journal report based on leaks from inside the administration: “Mr. Kelly was also frustrated at not knowing the details of the travel ban earlier, so he could prepare his agency to respond, according to people familiar with the matter. Mr. Trump signed the executive order that created the ban late Friday afternoon. Mr. Kelly was only informed of the details that day as he was traveling to Washington, even though he had pressed the White House for days to share with him the final language, the people said.”
“The tensions between DHS and the White House have led to uncertainty at the top of an agency charged with keeping Americans safe within US borders. The agency struggled to respond to demonstrations and scenes of confusion at various airports after the immigration order,” explained the Journal, which noted that “even though he was not involved in the order’s preparation, Mr. Kelly was peppered with questions about it. Democrat Senate minority leader Charles Schumer spoke with Mr. Kelly twice at the time to press for details.” The newspaper suggested that “the problems at DHS reflect a growing unease among government workers with a series of abrupt policy changes dictated by a close-knit group inside the West Wing of the White House.”
Kelly did not acknowledge those tensions when he appeared before the House committee. Indeed, he downplayed press reports about clashes with Bannon and tried to paint a picture of smooth relations that strained credulity. His “I work for one man” response to questions from the committee was another way of saying that frankness was not on the agenda.
That’s a problem because cabinet members do not work for one man. They are not extensions of the president. They may serve at the behest of a president, but they swear an oath to the Constitution and they have responsibilities to consult with the legislative branch as well as the executive. When they fail in that responsibility, they create problems that are greater than leaks. They may even obscure wrongdoing, or facilitate wrongheaded actions.
This is why cabinet members are not supposed to be yes-men and apologists.
Yet, Kelly sounded like just that when he was asked in early March 2017 about Trump’s allegation that President Barack Obama ordered the wiretapping of Trump Tower phones during the 2016 campaign. Trump’s charge was explicit and exceptionally serious. “Terrible! Just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory. Nothing found. This is McCarthyism!” the president tweeted on March 4. He even outlined legal remedies, tweeting: “Is it legal for a sitting President to be ‘wire tapping’ a race for president prior to an election? Turned down by court earlier. A new low!” and “I’d bet a good lawyer could make a great case out of the fact that President Obama was tapping my phones in October, just prior to Election!”
Obama, Trump asserted, had undermined “the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!”
There was only one problem with the charge, which the president apparently picked up from right-wing Internet chatter. As the BBC noted with regard to the charges: “They were not backed up by any evidence.?
?? None. Even if contacts with Trump aides might have been swept up as part of legitimate surveillance by U.S. intelligence agencies of international communications, there was no reason to believe that President Obama had ordered wiretapping of the campaign. It was such a stretch that, when CBS Face the Nation host John Dickerson pressed the president in early May on the question of whether he stood by his accusation against Obama, Trump replied defensively: “I don’t stand by anything.”
But John Kelly sure stood by Trump.
Kelly admitted, when he appeared on CNN on the Monday after Trump’s initial tweeting of those claims about Obama, that he had nothing to add to the discussion. “I don’t know anything about it,” the top national security figure told CNN’s Wolf Blitzer. But then Kelly went off the rails.
“If the President of the United States said that, he’s got his reasons to say it,” the secretary of homeland security announced. “He must have some convincing evidence that took place… I don’t pretend to even guess as to what the motivation may have been for the previous administration to do something like that.”
When Kelly uttered his “for the previous administration to do something like that” line, he was asserting that the wiretapping had either occurred or, at the least, was likely to have occurred. Yet, former director of national intelligence James Clapper was already saying that “there was no wiretap against Trump Tower during the campaign conducted by any part of the National Intelligence Community.” Former CIA and NSA director General Michael Hayden was saying that there was “no body of evidence” for Trump’s claim that Obama ordered those election season wiretaps. “What was claimed is inconsistent with the way I know the system works,” Hayden told Fox Business’s Neil Cavuto. And the New York Times reported that FBI director James Comey had asked the Justice Department immediately after Trump tweeted his claims to publicly reject the “assertion that President Barack Obama ordered the tapping of Mr. Trump’s phones.” According to the Times, officials said: “Mr. Comey, who made the request on Saturday after Mr. Trump leveled his allegation on Twitter, has been working to get the Justice Department to knock down the claim because it falsely insinuates that the FBI broke the law.”
Kelly’s response: “Jim Comey is an honorable guy. And so is the President of the United States. And the President must have his reasons.” Kelly’s loyalty to Trump was unyielding. And, as such, Kelly was failing Trump and the nation Kelly is supposed to serve.
“To have to go through these kinds of games that are being played right now—and they’re dangerous games, where the credibility of the FBI and the credibility of our intelligence agencies are called into question—is just sending a terrible message not only to the American people but to the world,” said Leon Panetta, a former CIA director and secretary of defense. “Everybody is asking: What the hell is going on in Washington, D.C., right now? When that happens it weakens us, weakens our country.”
When Panetta served as Barack Obama’s second secretary of defense, then-general Kelly served as his senior military assistant. Panetta endorsed Kelly as an “excellent choice” for the Homeland Security post in December of 2016. But he was not echoing Kelly’s bizarre deference to Trump the following March.
“No such wiretap took place. There is no evidence to support what the president has alleged,” said Panetta, who argued that “President Trump has to understand he is now president of the United States, that he won the election in last November and he became president of the greatest country on Earth. He’s not the head of ‘The Apprentice’ now, he’s not a TV personality. He doesn’t have, you know, the convenience of basically saying whatever he wants to the American people and to the world without substantiating that there is any kind of truth to what he’s saying.”
A veteran staffer in Republican and Democratic administrations, Panetta did not merely blame the president. “So, look,” he said, “presidents of the United States have a staff. They’re supposed to have people around them who are able to determine what the truth is and a president who is responsible will take the time to ask that staff and the people who are working for him ‘what is the truth and what can I say?’”
One of the people who is supposed to speak that truth to power, even presidential power, is Homeland Security secretary John Kelly. He swore to the Senate that he would do just that. Yet, when it came time to speak truth, to clarify, to make sure that a falsehood was not propelled forward or legitimized, Kelly failed out of an excess of loyalty. That was embarrassing for Kelly, for the administration he serves and for the country to which he owes a higher loyalty.
— 25 —
THE CAPTAIN OF THE WRECKING CREW
Alexander Acosta
Labor Secretary
The essential battleground state of the 2004 presidential campaign was Ohio, and as the election approached, supporters of embattled President George W. Bush announced an exceptionally controversial scheme to station citizen “challengers” at polling places. As a Brennan Center for Justice report explained: “Only a few weeks before Election Day, the Ohio Republican Party announced its plan to deploy thousands of citizen challengers across the state, mostly in African-American voting precincts. The announcement led to multiple voting rights lawsuits and sparked a media firestorm.”
The firestorm ultimately led Ohio Republicans to abandon their initial plan. But, the Brennan Center analysts noted in their 2012 report “Voter Challengers” that “the ensuing controversy shined a national spotlight on the disruptions that partisan and discriminatory challenge efforts can cause.” It also shined a light on Alexander Acosta.
Acosta wasn’t Trump’s first choice for the Department of Labor post. The president’s initial pick was Andrew Puzder, a wealthy fast-food CEO with a record of taking fiercely anti-worker positions on issues ranging from wages to workplace safety, and an even more unsettling record as a fiercely anti-worker boss. As his confirmation hearing approached, opposition from labor unions hit a fever pitch and media outlets began to uncover more sordid stories from Puzder’s past. “Maybe Mr. Puzder should quit before the public learns more about him,” Massachusetts senator Elizabeth Warren wrote in late January of 2017. By early February, Puzder accepted the counsel, from Warren and a number of Republicans, and withdrew his name from consideration.
Trump needed a quick replacement, so he went with an insider favorite who knew his way around the Washington swamp. Acosta was an experienced government hand, with a long history of working the conservative Republican side of the aisle. When he finished Harvard Law School, he clerked for future Supreme Court justice Samuel Alito, who was then serving as a judge on the U.S. Court of Appeals for the Third Circuit. After a stint as a senior fellow with the right-wing Ethics and Public Policy Center, Acosta served for nine months during George W. Bush’s first term on the National Labor Relations Board, as a conservative but relatively mainstream member. Then he was plucked from that position and appointed by Bush as the assistant attorney general with responsibility for leading the U.S. Department of Justice’s Civil Rights Division.
It was in that latter role that Acosta intervened just before the 2004 presidential election in a pair of lawsuits brought by Ohio civil rights activists who argued that an Ohio law that permitted the challenging of the right of voters to cast their ballots was unconstitutional.
A former Justice Department official argued, in a McClatchy DC bureau report published June 24, 2007, under the headline “Ex-Justice official accused of aiding scheme to scratch minority voters,” that Acosta’s Ohio intervention amounted to “cheerleading for the Republican defendants.”
So-called challenge statutes have long been a subject of controversy. A September 10, 2012, Demos study, “Bullies at the Ballot Box: Protecting the Freedom to Vote Against Wrongful Challenges and Intimidation,” argued that “there is a real danger that voters will face overzealous volunteers who take the law into their own hands to target voters they deem suspect. But there is no place for bullies at the ballot box.” Th
e Brennan Center warned in an August 31, 2015, summary of its work on voting rights issues that “when challenges are used improperly, they can have the effect of intimidating voters or suppress voter participation.”
One lawsuit filed by Donald and Marian Spencer, a pair of veteran civil rights activists from the Cincinnati area, argued that Ohio’s 1886 “challenge statute” was what the Los Angeles Times in a November 1, 2004, report described as “a vestige of ‘Jim Crow’ laws and created the possibility of disenfranchising a voter without due process of law.”
Acosta cannot have been unfamiliar with these concerns. Yet the assistant attorney general dispatched what the Los Angeles Times referred to as “an unusual letter brief supporting the statute.” Acosta’s letter urged the judge to uphold the “challenge statute” in order to maintain “the balance between ballot access and ballot integrity.” “Challenge statutes, such as those at issue in Ohio, are part of this balance,” wrote Acosta, according to the November 1, 2004, Los Angeles Times report on the Ohio controversy. “They are intended to allow citizens and election officials, who have information pertinent to the crucial determination of whether an individual possesses all of the necessary qualifiers to being able to vote, to place that information before the officials charged with making such determinations.”
Acosta’s letter also argued that “nothing in the Voting Rights Act facially condemns challenge statutes” because “a challenge statute permitting objections based on United States citizenship, residency, precinct residency, and legal voting age like those at issue here are not subject to facial challenge… under the Act because these qualifications are not tied to race.”