Welcome back. An astonishing amount has happened over the break, so let’s dive back in.
THE TOP LINE
The US assassinated Iranian Maj. Gen Qassem Soleimani in what may be a violation of US and international law — in flagrant violation of Congress’s war powers. Much more on this below in the section entitled “Wag the Dog,” I mean “Congressional War Powers.”
Impeachment part II: it’s unclear when the Senate will begin its trial, but there’s a lot of news from the courts. Details below.
ICYMI we covered approps, the NDAA, and House impeachment in our December 23rd newsletter, which is soooo good we’re linking to it here.
Don’t miss our latest 5 articles: Paid Parental Leave: Coming to a Congressional Office Near You; First Branch, Second Rate Funding; Tools Every Congressional Staffer Should Know About; The Legislative Branch is More Than Congress; and CBO Changes Make Finding Bill Scores Easy.
CONGRESSIONAL WAR POWERS
A US military drone assassinated senior Iranian military leader Qasem Soleiman, an Iraqi military official, and others. This action is viewed as significantly increasing the likelihood of war. Assassination of senior foreign officials prompted major governmental reforms in the 1970s, including a ban on assassination codified in an executive order (now EO 12333); also the President can’t go to war without Congress’s ok — does he have it? It does not look like an attack was imminent.
Whither the Gang of Eight? Only Majority Leader McConnell was briefed in advance of the killing; Speaker Pelosi and Senate Minority Leader Schumer were left in the dark, although Trump oddly found time to loop in Senator Lindsey Graham. When criticized, Trump effectively endorsed a Tweet suggesting Democrats are in league with the Iranians. After the fact, Trump sent a War Powers notification to Congress, but kept it entirely classified, which is unusual because everyone in the world knows about the assassinations and that’s not how classification is supposed to work. Dems say the notice was “brief and insufficient.” Each chamber has the power to unilaterally release the notification — which looks like this — and there is precedent for the release of classified information in the House.
Prior to the attack, some in Congress attempted to use the NDAA to (1) prohibit unauthorized military operations against Iran and (2) repeal the 2002 AUMF, which, along with the 2001 AUMF, has been used to justify all sorts of military actions that Congress never approved. Both legislative efforts failed — exemplifying the unwillingness of some to exercise or prioritize the legislative branch’s lawful war-making (and war-preventing) authority. Legislation concerning US intervention in the war in Yemen had passed both chambers only to be vetoed by the president in May, which is why inclusion of War Powers or AUMF language in a must-pass bill like the NDAA is the most likely path to enactment.
Iran War Powers Resolution. The Senate went first, adopting the NDAA (S. 1790) on June 27 by 86-8, with 5 Ds and 3 Rs opposing. The next day, the Senate considered an amendment (S. Amdt. 883), to prohibit the unauthorized use of force versus Iran (here’s the language), which failed 50-40 because a 60 vote threshold was required. Action moved to the House, which on July 12 considered its own NDAA (H.R. 2500) that included an amendment (H. Amdt. 554, see p. 382) prohibiting unauthorized use of force versus Iran, adopted 251-170, including 223 Ds, 27 Rs, and 1I. The House adopted its NDAA 220-197.
• Action stopped for nearly six months until a conference report emerged on December 9, creating a squeeze play. The House went first, agreeing to the gigantic (and unreadable) conference report — that did not contain the War Powers language and had many other surprises — fewer than two days later, on December 11, by a vote of 377-48, with 41Ds, 6Rs, and 1I voting against it largely on the grounds of the AUMF. The Senate then agreed to the conference report 86-8. The president signed it into law on Dec. 20; the assassination was on January 3rd, 15 days later.
War Powers language? Here’s the Senate version (the House language is longer): PROHIBITION OF UNAUTHORIZED MILITARY OPERATIONS AGAINST IRAN.
(a) IN GENERAL.—No funds authorized by this Act may be used to conduct hostilities against the Government of Iran, against the Armed Forces of Iran, or in the territory of Iran.
(b) RULE OF CONSTRUCTION.—Nothing in this section may be construed— (1) to restrict the use of the United States Armed Forces to defend against an attack upon the United States, its territories or possessions, or its Armed Forces; (2) to limit the obligations under the War Powers Resolution (50 U.S.C. 1541 et seq.); or (3) to affect the provisions of an Act or a joint resolution of Congress specifically authorizing such hostilities that is enacted after the date of the enactment of this Act.
AUMF. As part of the consideration of the NDAA, efforts were made to end the 2002 Authorization of the Use of Military Force, which authorized the use of force against Iraq. (There’s also a 2001 AUMF, authorizing force against the perpetrators of 9/11, that was the subject of a separate provision). Rep. Lee offered H. Amdt. 555 (text) to repeal the 2002 AUMF, which the House agreed to 242-180, including 227 Ds (4 voted against), 14 Rs, and 1I. I cannot tell whether a similar amendment was offered in the Senate, although there is a bipartisan resolution (S.J.Res. 13) that would repeal the 2002 AUMF. Needless to say, an AUMF repeal was not included in the final NDAA. Why did the House recede?
What’s next? The House and Senate will have to decide whether to release the president’s War Powers notification and they will also need to decide whether to hold hearings. There also may be renewed energy behind passing resolutions that end or limit the 2001 and 2002 AUMF, potentially increasing the likelihood that such a measure could be sustained over a presidential veto. And perhaps this will give additional grounds for the House to consider as part of its impeachment proceedings.
POWER OF THE PURSE?
Trump to ignore transparency reqs. mandated in approps bills. The recently-enacted appropriations bills require the executive branch to share info with Congress (and the public, in some instances) on a number of matters, but a White House signing statement declared presidential intent to ignore many of those requirements. These signing statements are part of an ongoing effort by the Executive Branch to undermine laws enacted by Congress.
Still scratching your head about how Trump can pay for a border wall with funds Congress appropriated for other purposes? CRS explains the exploited loopholes here.
Dreamers. I don’t see why it’s the executive branch’s business, but apparently Trump threatened to veto the approps bill if Congress retained language to allow it to hire dreamers to work on Capitol Hill. I can think of some people who shouldn’t be allowed to work in the Executive Branch, FWIW.
While we’re talking about executive overreach, CRS has a reminder that it is Congress, not the Executive, who has plenary power to regulate immigration.
Congress stiffed whistleblowers by nixing a House-passed provision from the NDAA that would allow whistleblowing employees to receive a 45-day stay on a personnel action before the Merit System Protection Board if the Office of Special Counsel requested one on the basis that the action undertaken was because of a prohibited personnel action (e.g. whistleblower reprisal).
Trump retweeted the link to a Washington Examiner story that allegedly named a whistleblower whose complaint helped finally prompt Speaker Pelosi to officially start the House’s impeachment inquiry. Trump’s behavior is simply unacceptable, and I’m so pleased that the Senate will hold him to account. By the way, articles of impeachment never expire.
Litigation. House lawyers argued in a recent filing that the DC Circuit Court still must move expeditiously to resolve the House’s subpoena of former White House Counsel Don McGahn, despite DOJ arguments that speed is no longer necessary because Trump could still be impeached on other grounds. For those who are curious, the docket is here.
On that litigation. A double-header argument before the D.C. Circuit heard arguments on whether the House can obtain grand jury testimony gathered for the Mueller investigation and whether Don McGahn can be compelled to testify. A decision is possible by the end of January, but you can bet Trump will appeal if he loses, just like he did before the District Court, and Trump’s DOJ signalled it would run out the clock, er, go to the Supreme Court if necessary. (One of the judges here is a Trump appointee who previously served in the Trump administration as the head of OIRA; she took Brett Kavanaugh’s old seat. Small world.)
Buzzfeed acquired documents related to the Mueller investigation that Congress sued for access to. See what they turned up.
The no-deal deal. We will never know what Bolton’s deputy, Charles Kupperman, would have said when forced to testify before the House Intel Committee because the House and the White House agreed the case was moot after the House (oddly) withdrew the congressional subpoena, despite Judge Leon’s efforts to expedite the proceedings. This could be good for Kupperman’s career: Mulvaney adviser Robert Blair was promoted after refusing to appear before Congress. See the Kupperman opinion here and the docket here.
No progress on Senate trial rules. Both Majority Leader McConnell and Minority Leader Schumer said Friday that the Senate was no closer to choosing rules for the Senate impeachment trial.
Newly released unredacted emails show that Trump administration sounded the alarm early about the legality of withholding aid from Ukraine.
Minority Leader Schumer wants the Senate to hear from some of these from officials (including Mike Pompeo, John Bolton, and Mark Esperis) during the Senate’s impeachment trial. Sen. Schumer also wants Senators to be able to view documentary evidence as part of the trial (according to this Dec. 23 letter), especially evidence the Administration withheld from the House. Sen. Schumer has spelled out the procedures he wants for the trial.
Oh, Joe. Former Senate President Joe Biden said he would defy a subpoena to testify in the Senate, repeated it several times, and then reversed his position a day later. Calling Biden as a witness at Trump’s impeachment trial is a move right out of Boston Legal, but Biden’s response plays right into the hands of the defense. On that, all we can say is Denny Crane.
The U.S. Supreme Court issued its annual year-end report on the federal judiciary.
Pot Meet Kettle: Politico covered the CJ’s hypocritical warning about fake news and call for more civics education. We add: the Court erected barriers to public understanding by (1) resisting efforts to publish federal court orders online at no cost, (2) resisting the publication of data that measure federal court activities, (3) avoiding establishing ethical rules that bind the Supreme Court itself, and (4) preventing real-time broadcasts of argument before the high court (c.f. the Oyez project).
Civics education isn’t just for high school kids; the press and educators should be more empowered to tell the tale of issues before federal courts. The CJ does not help his argument by eliding over the successful Republican efforts to pack the courts with ideologically extreme judges, some of whom the ABA says are not qualified.
FIX CONGRESS + CONGRESSIONAL OPS
The Washington Post profiled Doug Letter, the House’s General Counsel. The OGC’s offices are so small — how small are they? — they are so small that one attorney (part of a dozen total paid staff) works in a closet. Also, additional lawyers are volunteering pro bono (which points to insufficient funding), and 15 lawsuits involving the House are pending. Unmentioned in the story: the Bipartisan Legal Advisory Group, which directs when OGC intervenes.
More money for GAO, please. The conservative case for the folks with the green eyeshades: “a return of about $338 for every dollar invested in GAO.”
It’s 2020, what’s Congress doing to bring tech capacity into the future? Fedscoop has a rundown of options for improving Congress’s capacity for legislating on tech & science. The article also discusses efforts, led by the Fix Congress committee, to improve the tech Congress uses to conduct its business.
Speaking of the Fix Congress Committee, WaPo has a great overview of their work.
By the numbers, “today’s Senate is the least deliberative in the modern era,” according to the WaPo. In 2019, 25% of all votes came on legislation; in 2005 it was 85%. In 2019 the Senate spent only 257 hours in actual debate; in 2017 it was 407 hours. The analysis makes the point — true in my experience — that the only legislation moving is either at McConnell’s direction or has a super-super-super majority of support.
ACMRA-lite. Section 8092 of the 2020 Approps Act requires agencies to publish reports to Congress online, but only “upon the determination by the head of the agency that it shall serve the national interest,” and subject to exceptions. While this is a welcome step, it is a pale imitation of the Access to Congressionally Mandated Reports Act, enacted by the House and favorably reported by HSGAC in the Senate, that would require all congressional reports to Congress to be published online except for provisions that can be withheld pursuant to FOIA, and also compile a catalog of all such required reports in one central location.
@Hill Staff it’s not too late to sign on as a co-sponsor of an excellent common-sense transparency bill. The Congressional Budget Justification Transparency Act of 2019 will make federal spending more efficient by organizing and providing transparency around budget information; learn more here.
Federal Data Strategy. The White House released a federal data strategy that appears to be (in part) an extension of the Obama Administration’s Open Government Partnership, most notably publishing and updating federal data inventories. The Data Coalition will hold a briefing on Jan. 7 to explain what it does, and Alex Howard has covered how the White House is “failing” to engage the public in the strategy. Notable are the deadlines embedded in the plan.
Judicial financial disclosures. The Free Law Project obtained the financial disclosure reports for federal judges for 2017 — which is much more difficult than it should be — and will make the info available to requesters. A small donation would help them analyze the data.
Smoked. Apparently, a federal employee’s participation in reviewing a major rule affecting a multi-billion industry did not preclude him from later representing the industry on the same rule.
Savings & Loans. Sen. Ted Cruz’s challenge to a campaign finance law that limits the use of contributions to pay back candidate loans can go forward. Apparently shaking down donors to repay personal loans to your campaign after you’ve been reelected doesn’t seem problematic to the Senator. In his filings, Sen. Cruz compared himself to Rosa Parks.
The Office of Congressional Workplace Rights was directed to improve process for handing workplace harassment and discrimination in 2018. While OCWR has implemented the majority of the requirements, GAO determined that the office still hasn’t set up a long term record retention program despite the mandate it be in place by summer 2019.
Mark Meadows Coda. Did he time his retirement announcement to help his wife’s friend?
Rep. Duncan Hunter apparently is still a Member of Congress because his resignation does not appear to have been read on the House floor as of the date of this newsletter.
ODDS & ENDS
Sadly, Rep. John Lewis was diagnosed with pancreatic cancer last month. 3/4s of people who develop the cancer die within one year of diagnosis.
Tennessee Rep. Phil Roe announced on Friday that he will not be seeking reelection in 2020. He is the RM of the Veteran Affairs Committee.
Across the pond? Does civil society in the US have something to learn from the UK’s newly launched Parliamentary Monitor, which takes a data-driven approach to assessing the parliament’s work?
30% is the magic number for critical mass of gender representativeness, with Canadian MPs occupying 29% (or 98) seats in Parliament. Men still do disproportionate talking as members of the Cabinet. By comparison, 105 women were elected to the US House (24%), of whom 90 are Democrats (20%) and 15 (3%) are Republicans. Of the 25 women in the Senate, 17 are Democrats and 8 are Republicans.
Redundant MP staff. As part of this BBC story on British MP staff who’ve lost their jobs, I ran across these staff pay bands detailing minimum and maximum salaries, and this guidebook for staff on how to handle the dissolution of parliament (when, technically, there are no MPs). Hey Select Committee on the Modernization of Congress, this guidebook is pretty useful. Also, this is interesting: “If you have completed two years’ continuous service with the same MP, you will generally receive a redundancy payment, calculated on the number of completed years of continuous service, age and weekly salary.” (Calculator)
Hey, history nerds: the House historian has a collection of behind the scenes stories available online; plus you can follow them on twitter if you want some content to break up the usual headache that is your twitter timeline.
Someone may want to remind Hustler that threatening the president is a felony. Wherever you fall on the political spectrum, these holiday cards (which were potentially sent to GOP Members of Congress) are in poor taste.
Kevin Kosar, Vice President for Research Partnerships at the R Street Institute, caught a 32-pound catfish. Congrats, Kevin!
• Data Coalition is hosting an informational conference call on the White House’s Federal Data Strategy’s Year 1 Action Plan.
• 2020 Election Security-Perspectives from Voting System Vendors and Experts, hearing before the Committee on House Administration on January 9.
• “Congressional Oversight 2020: A Seminar,” Virginia Tech’s School of Public Affairs, January 10th at Virginia Tech Research Center, 900 N. Glebe Road, Arlington. RSVP.
• Workshop for H & S Cmte Clerks handling oversight investigations, Levin Center at Wayne Law, January 10 in 340 Dirksen. RSVP.
Down the Line
• Emerging Case Law on Congressional Oversight, Levin Center, January 24 at National Press Club. RSVP.
• State of the Union is happening February 4.