A Disaster Is No Excuse For Bad Manners
As long as any part of this ship remains above water, I expect the deck chairs to be arranged properly.
Good Evening:
To: The all crew and deck hands
From: Your captain
Subj: My expectations in re: the deck chairs
It is with full awareness of the late unpleasantness that I write, with some irritation, about the state of the deck chairs and other sundry items.
I am aware that we have hit upon a rough patch, and I share your concern for the fate of our ship, our passengers, and, indeed, our own lives.
Yet with all that acknowledged up front, I have been troubled to hear of the haphazard condition of the accommodations for passengers who choose to spend these trying hours—which may, candidly, be their last—on the deck. Not to put too fine a point on it, but as long as any part of this ship remains above water, I expect the deck chairs to be laid out properly, the tables to be set appropriately, and tea and other libations to be served promptly. And, please, with a smile on our faces and with a spring in our step.
I, for one, never want the phrase “deck chairs on the Titanic” to become a kind of slogan of futility. Our chairs should, always, be rearranged so that we can be proud of the service we provide.
Friday on #DogShirtTV, we took a step back from our many crises and mused instead on the ethical obligations of career civil servants, to what extent presidential administrations actually get to set their own agendas, and other questions in the background of the current moment. The estimable Eve Gaumond helped me with my musing, and the estimable John Hawkinson dropped in as well.
The cactus, however, did not appear. He, for we are told he takes he/him pronouns, is hiding. The cactus isn’t willing to face the American people and answer our questions about its career as a CIA assassin. This committee will subpoena the cactus if he doesn’t cooperate voluntarily. I won’t hesitate.
The Situation
In my “The Situation” column on Friday, I take a hard look at the veracity of Kash Patel’s testimony before the Senate Judiciary Committee—and find it gravely deficient:
The term “lack of candor” is one that has specific meaning in the FBI. It is a disciplinary code—a pair of them, actually—for whose violation agents are often terminated. It sweeps broader than perjury or the federal false statements statute. Whereas these statutes require a literally false statement on a matter of material fact, a lack of candor can include, as quoted above, “the failure to be fully forthright or the concealment or omission of a material fact/information.”
It is the standard the FBI uses for one critical reason: agents have to testify before courts about all aspects of the investigations they conduct, and the government simply can’t call witnesses who have been found in internal investigations to have engaged with less than full candor. Because of the Supreme Court’s ruling in Giglio v. United States, prosecutors actually have to disclose to defense attorneys any material that could be used to impeach a witness, and the FBI interprets that to include “information about a component witness that includes . . . any finding of misconduct that reflects upon the truthfulness or possible bias of the employee, including a finding of lack of candor” (emphasis added).
The result is that an agent who has been found to have responded with a “lack of candor” becomes useless to the bureau. It is thus also the correct standard through which to assess the testimony of a man who would head an organization that fires people for failures of honesty.
Patel failed to meet this standard—miserably and dramatically and repeatedly.
Today On Lawfare
(Compiled by Caroline Cornett)
The Case Against IEEPA Tariffs
Peter Harrell argues that the International Emergency Economic Powers Act (“IEEPA”) is not sufficient legal basis for the Trump administration’s expansive tariff plans, citing emerging Supreme Court doctrine, statutory interpretations of IEEPA, and more:
Courts have traditionally accorded presidents wide latitude in their use of IEEPA, and may well find that IEEPA does allow the president to impose tariffs. But it is important to weigh the arguments on the other side. Forcing Trump to rely on trade statutes—or to go to Congress to seek new authorities—would be consistent with IEEPA’s history and practice, and with Congress’s longstanding practice of delegating trade power to the president only subject to more extensive procedural requirements. Arguments against IEEPA tariffs are particularly strong with respect to Trump’s proposed “universal tariff,” which courts should scrutinize under the Supreme Court’s emerging “major questions doctrine.”
Trump’s Sacking of PCLOB Members Threatens Data Privacy
Greg Nojeim and Silvia Lorenzo Perez warn that President Donald Trump’s firing of the Democratic members of the Privacy and Civil Liberties Oversight Board (PCLOB) leaves PCLOB without a quorum, preventing it from conducting investigations, providing oversight, and enforcing U.S. obligations under the EU-US Data Privacy Framework:
President Trump’s actions to paralyze the PCLOB threaten to destabilize the already fragile foundations on which the DPF stands, and could contribute to its collapse when the Commission’s adequacy decision is reviewed at the CJEU. Without the DPF, numerous U.S. companies, such as tech giants Meta and Google, would be unable to rely on it to support the transfer of data from Europe to the U.S., which is crucial to the operation of their services. They would be forced to turn to a more cumbersome alternative legal basis for data transfers under the GDPR, such as Standard Contractual Clauses (SCCs) or Binding Corporate Rules (BCRs), which come with big challenges of their own and might not ultimately be feasible.
Podcasts
Lawfare Daily: How the Trump Administration is Using the Military to Enforce Its New Immigration Policies: Scott R. Anderson sits down with Chris Mirasola to talk through the ways that the Trump administration is using the military to enforce its new immigration policies. They talk through actions such as transporting migrants on military flights to threatening to send them to Guantanamo Bay; legal theories the Trump administration may use to justify military involvement; and the implications for the rule of law and civil-military relations.
Lawfare No Bull: Confirmation Hearing for Secretary of Health and Human Services Nominee Robert F. Kennedy, Jr.: Caroline Cornett shared the audio from Kennedy’s confirmation hearing in front of the Senate Finance Committee and the Senate Committee on Health, Education, Labor and Pensions on Jan. 29 and 30:
Lawfare No Bull: Confirmation Hearing for Director of National Intelligence Nominee Tulsi Gabbard: Cornett shared the audio from Gabbard’s confirmation hearing in front of the Senate Intelligence Committee on Jan. 30:
Today’s #BeastOfTheDay is the crow, which we will admire today in two incarnations. First, we see the crow as a friend and companion, playful and joyous:
Be like the crow. Make friends. Play games. Be silly.
But we also admire the crow as a Beast engaged in civil disobedience, tearing down barriers preventing corvid access to public services:
Be like the crow. Do not comply. Do not submit. Glory in the destruction of the idols of your oppressors.
Tell Me Something Interesting
More Sumerian proverbs with commentary by EJ Wittes. Why? Because I have learned from the crow. I have become ungovernable.
Today, we are examining Sumerian proverbs related to marriage.
Keep reading with a 7-day free trial
Subscribe to Dog Shirt Daily to keep reading this post and get 7 days of free access to the full post archives.