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Monday Evening Massacre

January 31, 2017

At 5:30 a.m. on Sunday, October 21, 1973, as it did every Sunday morning, my blue plastic wind-up alarm clock went off, and I dutifully got out of bed, got dressed, and trudged six blocks to the corner of State Street and Buchanan Avenue to unbundle 80-some copies of the Lancaster Sunday News for delivery on my paper route. I was a news junkie even at 16 years old, and I always gave the headlines a quick scan before starting off on my paper route. The page one headline that morning was about the Saturday Night Massacre – the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus in protest of President Richard Nixon’s order to fire Watergate Special Prosecutor Archibald Cox.

Even with the limited perspective of a teenager, I immediately knew that this was historic. I also knew that the import of the news was that Nixon’s days as president were, and ought to be, numbered. Two hundred and ninety-two days later, on August 9, 1974, Nixon became the only president in our history to resign the office.

Yesterday, Acting Attorney General Sally Yates, a transition holdover from Barack Obama’s administration, issued a letter to Justice Department attorneys directing them that they were not to  defend in court President Donald Trump’s executive order suspending all refugee immigration and all visa-based immigration from seven specified Muslim-majority countries, “unless and until I become convinced that it is appropriate to do so.”

Attorney General Yates’s letter was deliberately ambiguous about whether her position was that Trump’s executive order was illegal or bad policy, or both.

President Trump responded, entirely predictably, by firing Attorney General Yates. Literally within minutes, reporters and commentators were comparing the firing to Nixon’s Saturday Night Massacre. The comparison is mostly inapt, for several reasons.

First, Attorney General Yates, unlike Special Prosecutor Cox, holds her position at the pleasure of the president, and can legally be fired for any reason or no reason at all. The regulations that applied to special prosecutors limited Nixon to firing Cox only for wrongdoing, which a federal court later found to have been lacking – Cox was fired for doing his job, which was to seek out evidence of crimes committed within his jurisdiction.

Second, Cox was investigating a corrupt and criminal enterprise that was ultimately shown to have been directed from the Oval Office, a broad effort to discredit Democratic presidential candidates in order to ensure Nixon’s re-election in 1972. Nixon’s decision to dismiss Cox was prompted by Cox’s refusal to drop his effort to get access to the Oval Office tape recordings that would reveal the degree of President Nixon’s involvement in the Watergate burglary and subsequent cover-up.

My opinion is that Trump’s executive order violates constitutional and federal statutory guarantees, that it is incomprehensibly cruel and inhumane, and that it diminishes not only American stature in the world but also American security at home. But I don’t think there is a fair case to be made that Trump’s suspension of most Muslim immigration is comparable to Nixon’s nearly treasonous conspiracy to steal the 1972 presidential election. And in any event, Trump’s firing of Yates does not mean that the executive order will stand – federal judges will continue to pass on its legality, as they did in the last few days. On the other hand, had Nixon been successful in abolishing Cox’s office, the effort to bring to light the Oval Office tape recordings that ultimately brought down the Nixon presidency would probably have ended.

Third, there is plenty of room for debate whether Yates’s actions were ideal. Reports this morning indicate that she had not been consulted about the executive order, although she was the acting attorney general. Instead, the Trump White House had gone around her to consult her staff, the Office of Legal Counsel, which approved the executive order as to form and legality. Yates’s letter indicates that she disagrees with the Legal Counsel determination. Yates considered not just the words of the executive order, but the intentions behind it, which she assessed by public statements made by Trump and others, describing the executive order as the implementation of Trump’s campaign promise to impose a temporary ban on Muslims entering the United States.

To the extent that Attorney General Yates’s letter was based on an assessment of the executive order’s legality, she was in good company. Over the weekend, five federal judges found, in the words of Judge Anne Donnelly, that there is a “strong likelihood” that the executive order is unconstitutional. But it appears that Yates did not discuss her legal conclusions with the White House before sending her directive to Justice Department lawyers, as I think a lawyer should do. Her letter left room for a change of mind, providing for the possibility that she could be convinced that defense of the executive order is “appropriate.” Given even that much doubt, a lawyer owes her client an opportunity to make his case.

To the extent that Yates’s letter may have been based on an assessment that the executive order’s propriety was not “wise or just” as a matter of policy, Yates’s letter was certainly improper. A lawyer’s job is to advocate her client’s position unless that position is legally indefensible; if a lawyer finds herself morally or otherwise unable to advocate a legally defensible position, her duty is to resign.

Therefore, whereas Archibald Cox was fired solely and explicitly for correctly and appropriately doing his job, the correctness and appropriateness of Sally Yates’s performance of her job is considerably less clear.

But I said that the parallel to the Saturday Night Massacre was only “mostly inapt.” The true impact of Nixon’s firings of Richardson, Ruckelshaus and Cox was in the reaction of tens of millions of Americans, like my reaction when I read that Sunday morning headline. Our reaction was outrage. Congressional offices were flooded with mail and telegrams (it was 1973; there were no e-mails, let alone tweets) from voters demanding Nixon’s impeachment. For the first time in the 16 months since the Watergate break-in, a plurality of Americans favored impeachment.

I mention impeachment not to suggest that Trump will or even should be impeached, but to indicate the depth of anger Nixon’s actions provoked. The question is whether Trump’s action will provoke similar anger now. The inexplicable cruelty of his executive order as applied to many of the specific cases that have made news generated tremendous anger. Whether voters care that Trump fired an Obama holdover who probably only had a few days left to serve is a matter that remains to be seen.

Unfortunately, I think the media’s focus on the Saturday Night Massacre comparison obscures a much more important problem revealed by the executive order and its aftermath. To me, the incident illustrates how completely unprepared Trump and his team are to govern the country. It is a study in arrogance and incompetence.

Apparently, the Trump White House drafted the executive order in-house, with little to no input from the bureaucracies that would be charged with implementing the order and managing its effects. Even just from a narrow legal point of view, immigration is a complicated subject involving international law, constitutional law, federal law, and agency regulations. There are scores of types of immigrants, from green card holders to tourists; there are student visas, employment visas, highly specialized visas like those available to Iraqis who served as translators for the American military, and so on.

Immigration law is enforced not just by a half-dozen agencies within the Department of Homeland Security, which posts employees in every international airport in America as well as in hosts of places around the world, but also in effect by every airline that flies passengers into the United States. Immigration law is interpreted in every American embassy and consulate around the world.

No competent manager expects to be able to issue a complex directive to bureaucracies that vast and dispersed, without so much as a minute of preparation or a word of guidance, and have that directive implemented effectively and efficiently.

Nor does a competent manager issue a complex directive without carefully vetting it for unexpected consequences. At the very least, a competent manager wants to make sure that the action taken doesn’t blow up in the manager’s face. The Nixon White House was confident they could ride out the storm provoked by the Saturday Night Massacre; they could hardly have been more wrong.

Trump’s executive order blew up in Trump’s face. Iraqi interpreters who put their lives on the line to assist American troops, who then applied for visas and successfully completed the arduous, years-long vetting process, who obtained lawful visas and then boarded planes to this country without any further legal impediment to their immigration, were arrested upon arrival, denied access to their attorneys and families, and summarily scheduled for flights back home.

Legal residents of the United States who happened to be returning home at the time the executive order was signed were given similar treatment. This included not only students traveling abroad for research and employees traveling to visit families, but even green card holders who are legally entitled to permanent United States residence.

Americans can be callous about people in abstract categories like “Muslims” or “immigrants,” but Americans are strikingly compassionate when it comes to identifiable individuals and their personal stories. The effects of the executive order on identifiable individuals as it went into effect prompted compassion, and provoked outrage – and a spontaneous uprising of protests around the country unmatched by anything I can remember in American history.

The impact on military translators, for example, has even some Republicans in Washington questioning Trump’s executive order.

Almost immediately the White House was furiously backpedalling. No, the executive order doesn’t apply to green card holders after all. No, the executive order isn’t an absolute ban, because it provides for “waivers” – at least 81 of which had been issued before the first court-issued stay of deportations under the executive order. And no, the executive order isn’t a “Muslim ban,” it’s all about national safety and security.

The premise of the executive order is that vetting of refugees in general, and of immigrants born in the seven specified Muslim countries, is inadequate to separate those who do and don’t intend to come here to do us violence. One can only wonder what additional vetting was done in the hours during which the 81 “waived” immigrants had been detained. What did the administration learn by asking them a few questions? Are we to believe that the “extreme vetting” we’ve been promised will consist of nothing more than an additional interview with the applicant?

The executive order applied to non-refugee immigrants only if they were born in seven specified countries: Iran, Iraq, Libya, Somalia, Syria, Sudan and Yemen. It has widely been pointed out that no one born in any of those countries has successfully committed a terrorist act inside of the United States back to, and including, the September 11 attacks.

Most of the 9/11 hijackers were from Saudi Arabia, which wasn’t included in the executive order’s immigration ban. The Boston Marathon attack was committed by two men born in Chechnya. The Orlando nightclub attack was carried out by an American-born son of Afghan immigrants. The Times Square bomb was planted by a man born in Pakistan. The Northern Virginia attacks were committed by a man born in Ethiopia. The San Bernardino shootings were carried out by an American-born man of Pakistani descent and a Pakistani-born woman. The 2016 New York and New Jersey bombings were done by a man born in Pakistan.

There are exceptions. The 2010 car bomb plot in Portland, Oregon, was hatched by a man born in Somalia, who grew up in the United States and was a naturalized citizen. In 2011, the FBI foiled an Iranian-directed plot to bomb the Saudi and Israeli embassies in Washington. The 2016 mass stabbing at Ohio State University was done by a Somali refugee.

By far, more terrorist attacks have been committed on American soil by American citizens of European descent than by immigrants from the seven countries banned by Trump’s executive order. And by far, more terrorist attacks have been committed on American soil by people born in Muslim-majority countries not included on Trump’s list than by people born in countries included on the list.

Domestically, Trump’s executive order has galvanized popular opposition and organization. One illustrative example: the ACLU raised more money last weekend than it ordinarily raises in a calendar year. Democrats on Capitol Hill may finally find their backbones.

Some Republican officials and leaders have voiced public concern about the executive order, if not quite outright opposition. Privately, I suspect that Republicans have expressed stronger views.

American corporations are concerned that some of their foreign-born employees may be at risk, impairing American business interests. American universities are concerned that duly enrolled students who hold lawful visas will not be able to return from winter breaks, impairing our influence on rising generations in some of the world’s most troubled countries. American scientists are concerned that Trump’s executive order will limit international scientific cooperation, impairing the advancement of human knowledge.

Internationally, Trump’s executive order has seriously harmed American standing. Western leaders have decried the executive order – although, ironically, Trump may have inadvertently given mainstream European politicians the cudgel they need to beat back their own right-wing nativist challengers. While Trump was trying to cozy up to Great Britain’s Prime Minister Theresa May, she diplomatically but clearly and firmly disavowed Trump’s anti-refugee position. German Chancellor Angela Merkel, a critical ally for any American president, denounced the executive order.

Iran immediately announced reciprocal restrictions on Americans, so that, for instance, Iranian-Americans will not be permitted to visit their Iranian families as long as Iran is on Trump’s ban list. Maybe related and maybe not, today Iran launched a ballistic test missile, a metaphorical if not literal shot across Trump’s bow.

Iraq also announced reciprocal restrictions on Americans coming to Iraq. Trump’s ban on Iraqi visitors applies, at least unless waivers are given, not only to Iraqi terrorists but also to Iraqi terror fighters – for instance, Iraqi air force recruits who train in the United States. Iraq’s reciprocal ban similarly applies to American personnel coming to Iraq to help in the fight against ISIS.

Consultation with the State Department would have anticipated of all of these international issues – just as consultation with Homeland Security officials would have uncovered enforcement issues, and consultation with the acting attorney general would have uncovered legal issues.

But Donald Trump doesn’t do consultation. No one who is convinced that he is smarter than everyone else does consultation. No one who believes that “I alone can fix it” does consultation. What purpose after all does consultation serve if no one but the consulter is smart enough to tie his own shoes?

Maybe consultation will improve once Trump has cabinet members of his own selection to consult with. But I suspect that this is just the first of a series of screw-ups. Basing his entire professional experience on an enterprise that was subject to the control-by-fiat of a single man, Trump has no concept of the complexity of federal government, let alone international affairs. Recipe for disaster: combine Trump’s impulsive narcissism with his governmental inexperience.

The executive order was a gesture to Trump’s base voters. It didn’t need to make operational sense to serve its political purpose, and therefore none of the problems the executive order created will erode Trump’s base. But on the other hand, the executive order didn’t need to have any immediate effect to serve its political purpose, either. Much better advised would have been an executive order suspending issuance of new visas to people from the seven named countries, and issuance of new refugee approvals, while continuing to allow those with visas, green cards and other lawful approvals to enter.

This more circumspect approach would have accepted the vetting of those whose vetting had already been completed. Absent the proposed deportation of actual arrivals in the United States, it is far from clear that anyone would have legal standing to challenge that more circumspect executive order in court; certainly there would not be five federal court orders holding that the proposed deportations of those arrivals were probably unconstitutional. Absent the proposed deportation of actual arrivals in the United States, the national eruption of protest would almost certainly not have occurred, the galvanization of opposition, the contributions to the ACLU, would have been avoided. The international reaction would likely have been more muted.

Similarly, a better written executive order would have given much greater prominence to the waiver provision. The waiver provision could have been presented as an additional step in the vetting process – so, for instance, Iraq’s inclusion on the list of seven suspended countries could have been presented in a way that made clear that the suspension was merely a matter of form for our military ally in the fight against ISIS.

It also might have been nice to let Iraqis know the executive order was coming. Reports have indicated that the Iraqi government learned of the executive order from the news media. Our allies around the world must be wondering just how much an alliance with the United States is worth during a Trump presidency.

Finally, the executive order should have omitted provision for future prioritization of claims of religious persecution by members of religious minorities. The provision was politically unnecessary, since the base would have been satisfied with the suspension of refugee immigration and the suspension of immigration from the seven Muslim-majority countries. And the provision was operationally unnecessary, since Trump only needed to ask his incoming secretaries for legislative or regulatory proposals to implement a preference for religious persecution claimants. But the provision was legally counterproductive, because it highlighted the anti-Muslim purpose of the executive order. And the provision was diplomatically counterproductive, because it offended our critically important Muslim allies, not to mention the fair-minded population of the entire world.

The executive order was incompetently written and incompetently implemented. While it shores up Trump’s anti-Muslim base, it seriously harms Trump’s credibility among everyone else. It may be that the Trump White House thinks it needs no credibility among everyone else, but a truly shrewd negotiator or a truly capable strategist never gives anything away unnecessarily. In a complex world, there will surely come a time that Trump needs cooperation from people, corporations, and countries that this executive order hurt, either materially or morally. It is less likely this week than it was last week that such cooperation will be offered when Trump needs it.

The episode was, in the words of Senators John McCain and Lindsey Graham, a “self-inflicted wound.” Given the underlying features of Donald Trump personally and of his administration, it is unlikely that this will be Trump’s last self-inflicted wound.



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