Ever Wonder Where Trump's-- And His Followers'-- Contempt For The Constitution Is Leading Us?

Jamie Raskin (D-MD), is the guy people turn to when they want the sharpest insight into how the Constitution was meant to work and how it really does work. He's pretty much acknowledged the smartest constitutional scholar in any room. "The president just impeached by the House of Representatives for contorting U.S. foreign policy to advance his reelection," he told us yesterday, "now usurps the war powers of Congress to make assassination of strategic (not operational) military personnel an instrument of U.S. foreign policy. This is a perilous new provocation and political distraction by the impetuous, lawless and ungovernable Donald Trump. No one will miss the blood-soaked General Soleimani, but that is not the question. The constitutional question is whether the President can order killings of ‘bad guys’ anywhere in the world without a declaration of war and without even  consultation of Congress. The policy question is what America will do now as the Iraqi Parliament seeks to kick all U.S. forces out of their country and an inflamed Iranian regime, bolstered by popular backlash against Trump, threatens 'severe revenge' against the  American people, American businesses and American allies. The master of official law-breaking and monarchical arrogance, President Trump has now unleashed a new descent into chaos in the Middle East. After the decades-long nightmares of the trillion-dollar Afghan and Iraqi Wars, which cost thousands of American and allied forces’ lives, in addition to thousands of civilians in those countries, the president has brought us to the brink of another brutal and endless war. We are all much less safe today because of the President’s recent outbreak of lawless impetuosity."

Yesterday, the New York Times reported that some Bolton cronies have indicated that his testimony would likely be damning to Señor Trumpanzee and "put additional pressure on moderate Republicans to consider convicting him." The Times speculated that "That could fundamentally change the dynamics around the impeachment trial in the Senate, where a two-thirds vote-- 67 senators-- is needed to remove Mr. Trump. Democrats, the minority party, control 45 seats." There aren't 22 "moderate" Republicans in the Senate

A little later on today, foreign policy expert Reese Erlich will give us his back-of-the-envelope version of what happened in regard to the Trump assassinations against Iran in Baghdad. By the weekend, I expect a much fuller analysis from him. I was especially struck by his comparison of the meaning of Soleimani to the Iranian people to how Americans would have viewed the assassination of Eisenhower during World War II. Damned, I hope someone is telling the Iranians to retaliate against Trump’s own property and not against the American people. Most of us hate him as much as they do.

He wants to be a war president

Over this past weekend, The Atlantic published an essay by Yale law professor Oona Hathaway, The Soleimani Strike Defied The U.S. Constitution, warning that “if Congress fails to respond effectively, the constitutional order will be broken beyond repair, and the president will be left with the unmitigated power to take the country to war on his own-- anywhere, anytime, for any reason.” Did no one tell Hathaway that that seems to be exactly what the transpartisan DC establishment has been aiming at for decades? A complete abrogation of responsibility that the Constitution invested in the Congress.

Hathaway wrote that “Any significant military action requires legal authority under both domestic and international law. Normally, domestic law would require the president to seek the approval of Congress, usually through a law authorizing the use of military force (after all, the Constitution gives Congress, not the president, the power to ‘declare war’). International law would also require him to seek the approval of the United Nations Security Council before resorting to force, unless the host state consents (which it did not) or the action qualifies for the express, but narrow, self-defense exception. Trump did not seek approval in either forum.” Does anyone assume that Trump has any feelings other than complete contempt for the Constitution and constitutional norms? AM I missing something?

National Security Adviser Robert O’Brien told reporters that the killing was justified under the 2002 law Authorization for Use of Military Force Against Iraq, which was passed to permit the president to act to address threats posed by Iraq. Relying on the law would require a conclusion that the threat from Soleimani, an Iranian government official, was posed by Iraq. In other words, relying on the law is as good as admitting there is no legal basis. Vice President Mike Pence also asserted a false connection between Soleimani and the 9/11 attacks, perhaps in an effort to suggest that the strike could fall under the 2001 Authorization for Use of Military Force. Those claims have been widely discredited, and several members of the Senate earlier expressed skepticism that the 2001 law authorized action against Iran.

Without any more solid legal authority to cite, the Trump administration seems to have turned to the claim that it was acting in self-defense. Though the administration has yet to provide any clear explanation for the legality of the strikes, it has offered various clues that the central justification is the president’s right to engage in self-defense on behalf of the United States. The Department of Defense issued a short statement suggesting that the attack was justified as an act of defense “aimed at deterring future Iranian attack plans.” Secretary of State Mike Pompeo later more forcefully claimed that the strike was aimed at disrupting an “imminent attack.”

This claim-- were it true-- could solve the administration’s domestic and international legal problems at once. Both the U.S. Constitution and the UN charter include an exception for self-defense. Under Article II of the Constitution, the president may act to respond to imminent threats to the nation. The original idea was that there may be times when it is impractical or impossible to convene Congress-- something that was especially true when communication and travel could take weeks. In such cases, the president would not be prevented from taking necessary action to defend the nation until Congress could be convened. The UN charter, which prohibits a state from unilaterally resorting to the use of force against another state, also allows for an exception in cases where the state has been the subject of an armed attack or, most experts agree, will imminently be subject to such an attack. In both cases, the exception is narrow: The threat must be so extreme and imminent that it would be unreasonable to seek the necessary approvals before taking action to defend the country.

New reporting from the New York Times, however, concludes that “the evidence suggesting there was to be an imminent attack on American targets is ‘razor thin.’” A U.S. government official reportedly described the claim that Soleimani was planning an attack “that could kill hundreds” as “an illogical leap.” In short, it does not seem there was any imminent threat justifying unilateral action by the president.

…Though presidents have pushed the boundaries of their unilateral authority before, this action by President Trump is arguably unprecedented. When President Barack Obama participated in the NATO strikes in Libya, at least the operation was undertaken with allies and approved by the United Nations Security Council. (He later stated that the operation was the worst mistake of his presidency.) When President George W. Bush invaded Iraq in 2003, his international support was tenuous, but he had clear congressional authorization. In fact, the closest recent precedent for the current operation is President Trump’s own earlier decisions to strike Syrian-government targets in April 2017 and again in April 2018-- without either congressional or international support. But those strikes were relatively minor in comparison and did not risk setting off a new regional war.

In 1973, after discovering President Richard Nixon’s secret bombing campaign in Cambodia, Congress took steps to reclaim its power by passing the War Powers Resolution, which requires the president to report to Congress whenever armed forces are introduced “into hostilities or into situations where imminent involvement in hostilities is clearly indicated,” and to terminate any hostilities after 60 days unless authorized by Congress. The effectiveness of the resolution has since been undermined by, among other things, fights over the meaning of “hostilities.” Congress must now act again not only to reject the illegal use of force represented by the decision to kill Soleimani, but also to reassert its constitutional role in the decision-making process that takes the nation to war. If Congress fails to effectively press back against this unconstitutional assertion of unilateral authority, it will set a precedent that will put the greatest destructive power the world has ever known in the hands of a single man.

There have been just a tiny handful of members of Congress-- a few outlier Republicans and a few dozen (mostly) progressive Democrats-- who have stood up against this slide away from congressional authority and responsibility. At least Barbara Lee isn’t the only one any longer. The most prominent leaders against it, along with her, have certainly not been Pelosi or Hoyer or any of that claque. It’s been Ro Khanna (D-CA), Pramila Jayapal (D-WA), AOC (D-NY), Justin Amash (I-MI), Jamie Raskin (D-MD), Andy Levin (D-MI), Rashida Tlaib (D-MI), Raul Grijalva (D-AZ), Ilhan Omar (D-MN), Ted Lieu (D-CA), Joe Neguse (D-CO), Jim McGovern (D-MA), Ayanna Pressley… a pitifully few others.

And all the DCCC’s crappy “majority-maker” 2018 freshmen? Not a single one! Michigander Andy Levin is a freshman but because he won a blue district he isn't considered a "majority maker." Over the weekend he sent out an email to his supporters making his feelings clear about the way Trump has been screwing up the Middle East. He wrote that after "Trump's airstrike on an Iranian General without notifying Congress, I am very concerned that he is on the precipice of starting an unauthorized war with Iran. Last year, I introduced the Authorization for Use of Military Force (AUMF) Clarification Act to make crystal clear that the president does not have Congressional authorization to initiate a war with Iran. If President Trump believes he needs that authority, he must follow the Constitution, come to Congress, and make his argument. Iran is obviously a dangerous actor on the world stage, and Qasem Soleimani was an enemy of the United States. But this president is reckless-- all impulse and no strategy. We have yet to see a plan in which the U.S. avoids another disastrous war in the Middle East. In the wake of the strike on Thursday night, our top priority must be to protect Americans at home and abroad. That is my goal: To return to Washington and pass the AUMF Clarification Act to save America from another costly war.