Email #312: “the very core of our system of government”?

You praised President Trump’s elimination of Deferred Action for Childhood Arrivals because you said it was an “unlawfully-contrived program.” You said President Obama had “used his ‘pen and phone’ to overstep his authority and unilaterally rewrite our nation’s laws” in a manner that was “wholly unconstitutional” and compromised “the rule of law.”

Obama created DACA in 2012 after the nearly identical DREAM Act failed to pass in the Senate. The administration stopped deporting illegal immigrants who matched the proposed DREAM Act criteria anyway. You responded with the Preventing Executive Overreach on Immigration Act, saying: “President Obama declared war against the Constitution by changing our immigration laws on his own and Congress today began its fight against this unprecedented power grab.”

When the courts blocked Obama’s immigration order, you applauded: “The case of United States v. Texas is fundamentally about preserving the separation of powers and its outcome will have drastic implications for our Republic… I am hopeful that the Supreme Court will stop President Obama’s lawlessness so that we protect the Constitution and the intent of the Founding Fathers that the legislative branch, which reflects the will of and is accountable to the American people, makes the laws, not the President.” Due to the death of Justice Scalia, the Court deadlocked in a 4-4 decision.

But you demonstrated your continuing commitment to this issue by creating the House Judiciary Committee’s Task Force on Executive Overreach last January, correctly noting that “presidents of both parties have aggrandized their power and usurped Congress to legislate from the Oval Office. This is not a Republican or Democratic issue; it’s an American issue and touches the very core of our system of government.” You said the Task Force “will study this troubling trend and also look for solutions to prevent the executive branch from exceeding its constitutional authority. The separation of powers and its checks and balances are designed to protect individual liberty and we must ensure that it is preserved for future generations.”

And now President Trump has given the Task Force a lot more to study.

The President tweeted last week: “Since Congress can’t get its act together on HealthCare, I will be using the power of the pen to give great HealthCare to many people – FAST.” He then used that power to issue executive orders that violate provisions of the Affordable Care Act. He said during the signing: “I just keep hearing repeal-replace, repeal-replace. Well, we’re starting that process.”

But as you have so forcefully argued in the past, no President has the power to create legislation and no President has the power to alter or repeal legislation once it’s been created by Congress–including in this case the Affordable Care Act. By the standards you applied to President Obama, President Trump’s “lawlessness” and “power grab” is usurping Congress too.

Fox News reported: “President Donald Trump is taking his first steps to fulfill his vow to dismantle Obamacare on Thursday, signing an executive order that … would allow consumers to buy short-term policies, which don’t have to comply with Obamacare’s protections for those with pre-existing conditions.”

The Wall Street Journal says the executive orders “initiate the unwinding of the Affordable Care Act, paving the way for sweeping changes to health-insurance regulations by instructing agencies to allow the sale of less-comprehensive health plans to expand.” The newspaper also said the President was “using his authority to accomplish some of what Republicans failed to achieve with their stalled congressional health-care overhaul.”

President Trump’s “Obamacare relief” orders follow the same steps and executive abuses that you so vigilantly opposed under President Obama. After his party failed to pass the legislation he wanted, the President is using his pen to overstep his authority and unilaterally rewrite our nation’s healthcare laws. According to you past arguments, President Trump’s directives to bypass ACA provisions and create unlawfully-contrived healthcare associations are wholly unconstitutional and compromise the rule of law.

The only difference is political. You opposed the DREAM Act, and so it was simple for you to oppose DACA. But you supported ACA repeal bills, and so you agree with the goals of the President’s executive orders. While I empathize with the difficulty and irony of your position, anything short of a condemnation of President Trump with the same vigilance and vigour that you condemned President Obama’s “war against the Constitution” will expose you as an unprincipled hypocrite.

As much as I have disagreed with so many of your past actions, I am sincerely hopeful that you will rise to this situation and place the Constitution before your political party. As you said, the very core of our system of government is at stake.

Email #295: “this careless, this reckless”?

Of all the factors that contributed to Donald Trump winning the Presidency, Secretary Clinton’s use of a private email server is perhaps the largest. On October 28, the day FBI Director Comey announced he was reopening his investigation due to the discovery of a previously unknown trove of emails on a computer in a Clinton aide’s home, Clinton was leading in polls by 6%. A week later she was leading by only 3%. During that week, the Comey letter was the lead story on almost every mainstream news source.

You said on the day of Comey’s announcement: “the more we learn about Secretary Clinton’s use of a private email server, the clearer it becomes that she and her associates committed wrongdoing and jeopardized national security. Now that the FBI has reopened the matter, it must conduct the investigation with impartiality and thoroughness.” Although your contradiction is disturbing (you call for “impartiality” while declaring certainty that we will learn more about her wrongdoing), it demonstrates just how deeply concerned you were about a senior member of the executive branch using a private email server.

But now we learn that senior members of the current executive branch have been using private email servers too. They include: Jared Kushner, Stephen Miller, Gary Cohn, Ivanka Trump, former chief of staff Reince Priebus, and former chief strategist Steve Bannon. Secretary Clinton’s use of a private email server came to light only because of a special investigation into the Obama administration’s handling of Benghazi. Similarly, the use of private email servers by members of the Trump administration is only coming to light because of Special Counsel Mueller’s investigation into Russian election collusion.

When Director Comey made his October 28th announcement, he had no knowledge of the content of the newly discovered emails. Despite your insistence that the FBI would learn of more “wrongdoing,” they did not. The FBI did, however, conduct their investigation with “thoroughness.” Your constituents in Virginia and Americans across the nation expect the same thoroughness from the chair of the House Judiciary Committee.

Regardless of the Special Counsel’s investigation, how are you conducting oversight of the executive branch regarding the use of private email servers? According to James Norton, senior Homeland Security official in the Bush administration: “These private email accounts become targets of phishing attacks or other types of ways of collecting information. It’s an issue not only for the person who owns that account, but the person who is receiving the emails. It is introducing risk into the system.”

You expressed a similar opinion regarding Secretary Clinton in July 2016: “if she’s going to be president of the United States and is this careless, this reckless with America’s national secrets, that’s an issue in a campaign, but it’s also an issue for anybody who wants to serve in the White House.”

And we now know there are six officials who have been serving in the White House since January who have demonstrated the same use of private email servers. Since you said, “This is something that will dog her throughout this process, and it should,” are you now going to “dog” the Trump administration with the same vigilant concerns? Or were your dogged attacks on Secretary Clinton political rather than principled?

Perhaps the Trump administration’s use of private email servers does not rise to the same level of carelessness as Secretary Clinton’s. The only way to know is to investigate.

Email #212: “Most troublesome of all”?

Just as there is a process for creating laws, there is a process for creating the rules and regulations that enforce those laws. This week a court struck down the EPA’s two-year stay on enforcing a methane regulation, deciding that it is “an order delaying the rule’s effective date, and this court has held that such orders are tantamount to amending or revoking a rule.”

As you know, the EPA must first write a Notice of Proposed Rulemaking and list it in the Federal Register for others to comment on. Only after considering those comments can the EPA issue a final rule, list it on the Federal Register, and codify it by adding it to the Code of Federal Regulations. The EPA ignored that process by effectively revoking a current rule created to enforce the Clean Air Act.

In the past you have argued that the process for developing regulations is essential and that rules that did not follow it were illegitimate. You said in March that you opposed the Stream Protection Rule because the Office of Surface Mining Reclamation and Enforcement (OSM) did not follow the process:

“Most troublesome of all, OSM did not comply with the requirement to engage in meaningful consultation with the impacted state governments during the yearlong development of this rule. In fact, several states dropped out of the rule development process altogether due to frustration with OSM.”

Why then are you not objecting to the EPA’s actions now? They too are not complying with the requirement to engage in meaningful consultation. Worse, they have eliminated the rule development process altogether.

Do you not care about the process and were only using it as an excuse to oppose the Stream Protection Rule? Is this yet another example of your evoking a principle in one situation and then ignoring that same principle in a different situation? Do you have any guiding principle other than political convenience?

Email # 156: “It defies logic”?

President Trump has long criticized FBI Director James Comey for not pursuing Secretary Clinton more aggressively for her handling of classified emails. He tweeted last July:

“FBI director said Crooked Hillary compromised our national security. No charges. Wow!”

He tweeted the same opinion earlier this month:

‘‘FBI Director Comey was the best thing that ever happened to Hillary Clinton in that he gave her a free pass for many bad deed!’’

You responded similarly to Comey’s announcement that Clinton would not be prosecuted:

“It defies logic and the law that she faces no consequences for jeopardizing national security.”

But when Comey announced publicly that he was reopening the Clinton case just days before the election, Trump approved:

“I was not his fan. But I’ll tell you what he did, he brought back his reputation. He brought it back. He’s got to hang tough because there’s a lot of — a lot of people want him to do the wrong thing. What he did was the right thing.”

You approved too:

“The FBI’s decision to reopen its investigation into Secretary Clinton reinforces what the House Judiciary Committee has been saying for months: the more we learn about Secretary Clinton’s use of a private email server, the clearer it becomes that she and her associates committed wrongdoing and jeopardized national security.”

And yet now we are to understand that the President Trump fired Director Comey not despite but specifically because of his reopening of the Clinton case? Deputy attorney general Rod J. Rosenstein explained in the memo that accompanied the President’s letter dismissing Comey:

“The FBI’s reputation and credibility have suffered substantial damage, and it has affected the entire Department of Justice. I cannot defend the director’s handling of the conclusion of the investigation of Secretary Clinton’s emails, and I do not understand his refusal to accept the nearly universal judgment that he was mistaken. Almost everyone agrees that the director made serious mistakes; it is one of the few issues that unites people of diverse perspectives.”

Do you agree with the deputy attorney general? If so, why have you never expressed any criticism of Comey for the timing of his second investigation and its well-documented influence on the outcome of the election? Have you, like the President, completely reversed your opinion in the last week?

Other members of Congress are very concerned. Senator Burr said on Tuesday:

“I am troubled by the timing and reasoning of Director Comey’s termination.”

Senator Corker said:

“his removal at this particular time will raise questions.”

Senator Lankford said:

“the American people need clarity and deserve an explanation for his immediate firing.”

Senator McCain said:

“I have long called for a special congressional committee to investigate Russia’s interference in the 2016 election. The president’s decision to remove the FBI Director only confirms the need and the urgency of such a committee.”

Rep. Amash said:

“My staff and I are reviewing legislation to establish an independent commission on Russia. The second paragraph of this letter is bizarre.”

Amash was referring to President Trump’s letter to Comey:

“While I greatly appreciate your informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgement of the Department Justice that you are not able to effectively lead the Bureau.”

The President’s statement is “bizarre” because multiple members of his campaign are under investigation for possible collusion with Russia in its well-documented interference in the election. These are concerns voiced by your fellow Republicans in Congress, and so none can be dismissed as politically biased. The President’s decision, however, appears highly biased.

As chair of the House Judiciary Committee, it is your job to oversee the executive branch, and yet you said nothing about the influence Comey’s reopening of the Clinton case had on the election. Your response to Comey’s firing also says nothing:

“The FBI is the premier law enforcement agency in the world and it is critical to have a director who holds the trust of the American people. It is clearly the President’s prerogative to remove the FBI Director, as was recommended by the top two officials at the Department of Justice. I would like to thank Director Comey for his many years of faithful service, and I look forward to working closely with the White House to identify a suitable successor as quickly as possible.”

Your statements of the obvious would be comically vapid if they did not also distract from the fact that Comey was unexpectedly fired in the midst of his investigation into the Trump’s campaign’s ties to Russia–and just a week after requesting funds to expand that investigation.

The FBI’s reputation and credibility have suffered substantial damage, but yours are suffering far worse. What will it take for you to set politics aside and do your job?

Your behavior defies logic.

Email #147: “credible allegations”?

Thank you for your form letter regarding the range of investigations into the Trump administration.

You say that your House Judiciary Committee will “investigate any credible allegations of criminal activity by the Executive Branch,” and you list three specific areas of oversight that you say you will conduct as chair:

1) “misconduct of executive branch officials,”

2) “allegations of leaks of classified information,” and

3) “improper interference with our democratic institutions or efforts to improperly or illegally interfere with our election.”

You also state that you oppose “ineffectual,” “disruptive” or “politically-charged” inquiries that “only satisfy the interests of narrow constituencies” or “jeopardize the integrity of the very investigations called for by the resolutions.”

As an apparent result, you prevented your committee from approving three resolutions of inquiry that would have asked the Attorney General for information relating to:

1) “criminal or counterintelligence investigations targeting President Trump, former National Security Advisor Michael Flynn, and other White House personnel,”

2) “any Trump investments involving foreign agents or governments, records of communication between Trump campaign or transition employees with the Russian government,” and

3) “and any record relating to the president’s Twitter postings on March 4, 2017” (which accuse President Obama of illegally wiretapping Trump Tower during the election campaign).

Removing your statements of opinion regarding these two lists, it is impossible to determine why you consider only the first three to be “credible.”

Criminal and counterintelligence investigation into the President, his former National Security Advisor, and other White House employees falls clearly under your first “credible” category: “misconduct of executive branch officials.” The media has reported a range of disturbing allegations regarding Michael Flynn, including his undisclosed employment by Russian agencies. Are you suggesting that all of these reports are false or otherwise not “credible”?

Similarly, the U.S. intelligence community unanimously concluded that Russia attempted to influence the Presidential election by harming Hillary Clinton’s campaign and therefore promoting Donald Trump’s. Moreover, at least three individuals with major roles in the Trump campaign are under investigation for their ties to Russia. And yet according to your letter, requests for information regarding communications between members of the Trump campaign and Russian are not “credible” but are instead “ineffectual,” “disruptive” and “politically-charged.”

Ironically, one item on your two lists does appear motivated to “only satisfy the interests of narrow constituencies.” That’s your own request into the leaks that revealed Michael Flynn’s previously undisclosed connection to Russia and led to his resignation. Rather than investigating Flynn himself, you only wish to investigate the White House whistle-blower who outed him.  What constituents would this satisfy?

You say “it is important to maintain effective and strong oversight of the other branches of government” and that you “take Congress’s role to uphold our constitutional framework of three co-equal branches of government very seriously.” You also assure me “that whichever political party occupies the White House, I will continue to uphold our Constitution and its system of three coequal branches that are accountable to the American people.”

However, your other statements—including those within the very letter attempting to assure me—provide evidence of exactly the opposite. You appear to be motivated solely by the party occupying the White House, ignoring and even blocking attempts at oversight of the Trump administration for political reasons.

Misconduct is misconduct. All investigations are “disruptive” to those being investigated, and any investigation of a sitting president is necessarily “politically-charged.” These are not excuses to ignore and block them–they are reasons for you to steer these needed investigations through a fair, vigorous, and transparent process. Please place your Constitutional responsibilities ahead of your political affiliation and hold the executive branch accountable.

Email #142: “drastic implications for our Republic”?

On January 25, President Trump signed an executive order that empowered “State and local law enforcement agencies across the country to perform the functions of an immigration officer” and declared that “jurisdictions that willfully refuse to comply … are not eligible to receive Federal grants.”In short, any place that doesn’t spend its resources enforcing immigration laws loses its federal funding.

But, as you know, only Congress can place those kinds of conditions on federal dollars, and so on Tuesday, Judge William H. Orrick ruled that the President was overstepping his powers and blocked his executive order. San Francisco city attorney Dennis Herrera responded:

“This is why we have courts — to halt the overreach of a president and an attorney general who either don’t understand the Constitution or chose to ignore it.”

Although you dislike so-called Sanctuary Cities like San Francisco, you must still be pleased with the judge’s ruling. As you have pointed out many times in your own statements:

“Our constitutional system of three co-equal branches of government and a Bill of Rights therefore prevent one branch from assuming too much authority without a challenge from the other branches of government.”

As chair of the House Judiciary Committee, that responsibility of challenging the executive branch falls on you. You were vigilant about it in the past. You wrote in April 2016 in response to the Supreme Court case challenging President Obama’s executive actions on immigration:

“The case … is fundamentally about preserving the separation of powers and its outcome will have drastic implications for our Republic…. he does not have the authority to change our nation’s immigration laws on his own. I am hopeful that the Supreme Court will stop President Obama’s lawlessness so that we protect the Constitution and the intent of the Founding Fathers that the legislative branch, which reflects the will of and is accountable to the American people, makes the laws, not the President.”

Since Donald Trump became President, however, you seem unconcerned about such “lawlessness.” I assume this is because the President is also the leader of the Republican party, and so you are in the difficult position of having to challenge your own boss.

Alternatively, your criticisms of Obama were never principled: you were only using the Constitution as a prop to feign outrage and score political points. In which case your failure to hold the executive branch accountable now is consistent: you prioritize your duties to your party over your duties to your country.

Fortunately, Judge Orrick has stepped in and done your job for you.

Email #135: “the least transparent President”?

Donald Trump tweeted in 2012: “Why is @BarackObama spending millions to try and hide his records? He is the least transparent President — ever — and he ran on transparency.”

The claim is, like so many of the President’s claims, unfounded hyperbole. But the principle it evokes is still important and one we can all agree about:

Government should be transparent.

Despite Trump’s complaint, the Obama administration was comparatively transparent. It released literally millions of names of visitors to the White House, including those of lobbyists and big donors. Anyone could see them listed on the White House’s online visitor log—though only after a three-month delay.

President Trump has been in office for three months, but that website log is no longer being maintained. Worse, the administration stated in early April that it will not continue the Obama transparent practice of disclosing names—except when legally compelled to. Instead of looking at the log online, Americans now have to file Freedom of Information Act requests. Even then the administration need only comply if the visitors are meeting not in the Oval Office but with a subordinate agency like the Management and Budget Office.

The new Trump policy has already triggered lawsuits demanding the release of the visitor log—something the Obama administration did voluntarily. The Trump administration claims not posting the log online saves taxpayers over $20,000 a year, but how much is the White House spending on lawyers to defend against the lawsuits?

Costs and hypocrisy aside, how is a less transparent White House a better White House? Why shouldn’t Americans know which lobbyists and big donors are meeting with the President? As chair of the House Judiciary Committee, oversight of the executive branch is one of your primary responsibilities.  When are you going to speak against the administration’s backward shift toward reduced transparency? Or is your oversight of the executive branch guided solely by partisan politics?

Email #133: “war against the Constitution”?

You wrote in 2014:

“President Obama declared war against the Constitution by changing our immigration laws on his own and Congress today began its fight against this unprecedented power grab by passing the Preventing Executive Overreach on Immigration Act.”

That bill, which you enthusiastically voted for, stated that it would:

“prohibit the executive branch from exempting from removal categories of aliens considered under the immigration laws to be unlawfully present in the United States.”

The issue, you argued, wasn’t just about immigration, but the Constitution itself:

“it is the role of Congress to make all laws, the Judiciary to interpret the laws, and the President to enforce the laws. This system was wisely set into place by our country’s framers over 200 years ago because they knew first hand that the concentration of power in the same hands was a threat to individual liberty and the rule of law. President Obama’s decision to ignore the limitations placed on his authority and claim legislative power threatens to undo our system of government.”

The principle, you insisted, was preventing “the President from changing our laws unilaterally.” But where is that principle now that a Republican President is waging a new “war against the Constitution”?

On January 20, President Trump signed an executive order requiring agencies to “exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the [Affordable Care] Act that would impose a fiscal burden …” If the meaning of the order was unclear, Trump spokesperson Kellyanne Conway clarified it two days later when she said the President would “stop enforcing the individual mandate,” the tax penalty that is part of the ACA law and that was ruled constitutional by the Supreme Court.

As a result of the executive order, the IRS is no longer enforcing the penalty. Although all Americans are still legally obligated to have health insurance or pay a tax penalty administered by the IRS, the IRS is ignoring the law. Taxpayers can simply leave blank the line on their return requiring them to disclose whether they have insurance.

According to the Constitution, it’s the President’s job to “take care that the laws be faithfully executed.” President Trump is doing the opposite. His executive order prevents provisions of the ACA from being executed.

When you objected to President Obama’s selective implementation of immigration laws, you called it “war against the Constitution.” But because you personally agree with President Trump’s selective implementation of the Affordable Care law, you say nothing.

If Obama’s actions threatened to “undo our system of government,” then so do Trump’s. This would be obvious to you if the U.S. Constitution were more to you than a political prop and if your own actions were guided by principle rather than convenience.

Email #129: “ignore the Constitution”?

You accused President Obama of using “his pen and phone to stretch his authority to implement policies that Congress has refused to enact.”

You said that President Obama showed “time and again throughout his time in office that he is all-too-willing to overstep his authority and ignore the Constitution to achieve his policy goals.”

You said that your House Judiciary Committee “has a duty to conduct vigorous oversight” of the executive branch, ensuring that it is “bound by its constitutional limits.”

“The Constitution is clear,” you said: “it is the role of Congress to make all laws, the Judiciary to interpret the laws, and the President to enforce the laws.”

Given your outspoken condemnation of President Obama on these Constitutional matters, why are you not applying the same vigor in your oversight of the Trump administration? Two of the President’s executive orders require the hiring of 5,000 new border patrol agents and 10,000 new immigration officers, for a combined annual cost of $4.8 billion. Another orders the construction of his promised “Great Wall” along the U.S.-Mexico border, allocating unspecified “Federal funds for the planning, designing, and constructing of a physical wall along the southern border,” for a likely $25 billion.

But only Congress has the power to spend taxpayer money. No President can spend money that Congress hasn’t authorized. Trump, like Obama and every President before them, can then only shift around dollars within budgetary line-items. And yet President Trump’s executive orders call for new spending not authorized by Congress.

When Obama signed executive orders, you and other members of the Republican party often accused him of violating the Constitution. So far President Trump has signed 19 executive orders, many of which require unauthorized spending. But I have yet to hear you even mildly suggest that the President might be “stretching” or “overstepping” his authority, let alone violating the Constitution.

Do your Constitutional standards vary according to which political party is in the White House? Is your guidepost the Constitution or just political convenience?

Email #128: “a direct effect on a financial interest”?

As you know, the President has made his son-in-law a senior advisor and head of his new White House Office of American Innovation, a job that entails working with a wide range of corporate executives. Kushner, however, currently has investments worth $740 million in an equally wide-ranging number of companies and properties. Although Kushner released his financial disclosure report at the end of March, the 54-page document does not include such basic information as his buildings’ addresses, the names of his business partners, and the institutions providing his financing. Kushner did officially resign from multiple executive positions, but he still continues to make money from those companies.

Kushner should have liquidated his assets.  Secretary of State Tillerson, a former Exxon Mobil CEO, agreed to liquidate all of his Exxon Mobil stock and invest all of his assets into Treasury bonds and diversified mutual funds. But Kushner’s financial disclosures are filled with dozens of conflicts of interests. For example, he still has multimillion dollar loans from Deutsche Bank in Germany (which the Justice Department forced to pay $7.2 billion for selling toxic mortgages last year) and Bank Hapoalim in Israel (which the Justice Department is currently investigating for helping wealthy Americans commit tax evasion).

You have previously cited the fact that the President is exempt from conflict of interest laws as an excuse for not investigating his assets. But the President’s son-in-law is not exempt. As with any federal employee, it is illegal for him to be involved in any “matter that will have a direct effect on a financial interest.” And yet his job description requires his involvement in exactly those kinds of matters. For example, the President wants to make major changes in tax laws that will financially benefit himself and his son-in-law enormously.

Is the American public to believe that the President and his son-in-law are having no conversations regarding tax laws? How can a senior advisor recuse himself and remain a senior advisor?

It is your responsibility as chair of the House Judiciary Committee to oversee the executive branch. Given Mr. Kushner’s refusal to liquidate his assets and disclose adequate information regarding them and the conflicts of interest endemic to his job, what steps are you taking to make sure he is not violating the law?

Or are you only concerned with overseeing the executive branch when Democrats are running it?