Good Morning:
They’re redecorating at the FBI Academy at Quantico. I’m particularly glad that “fairness” and “integrity” and “compassion” and “leadership” are being painted grey. I want my FBI ruthless, unfair, and utterly without leadership and integrity.
Yesterday on #DogShirtTV, the estimable Holly Berkley Fletcher and I rambled. I rambled about how much Kash Patel sucks (about how he sucks even when he’s right about things). She rambled about the military situation in Eastern Congo. I rambled about why I was late this morning. She rambled about her knickknacks. The estimable John Hawkinson swung by to ramble about the current state of possibly frozen US grants. We didn’t really have an agenda, but we sure did cover a lot.
Also, the cactus keeps changing identities. On Wednesday, we learned that the cactus is a mansplainer. Yesterda, we learn that the cactus is ex-CIA. The cactus has killed people. Has the cactus violated the executive order prohibiting assassinations? Cactusgate is escalating rapidly.
(EJ Wittes’s theory: the cactus is D.B. Cooper. Or the Count of St. Germain. Or possibly a parrot. Parrots are smarter than people think. Does the CIA have parrot assassins? How are these parrot assassins related to other government avian malfeasance? The people have questions, Holly. You can’t keep us in the dark forever.)
Yesterday On Lawfare
The Patel Dossier
Anna Bower and I compile an overview of controversies throughout FBI director nominee Kash Patel’s career. Or, rather, Anna did all the work. I filled in a few small gaps, and then she insisted on putting my name on the byline—over my objections. This is really an Anna Bower special. The piece uses the public record to assemble a detailed history, which addresses Patel’s connections to Jan. 6, denying Russian interference in the 2016 election, and so much more:
Unlike all previous directors of the bureau, Patel’s background is overtly partisan and political. He is the only nominee to the position to sell branded wine, to write children’s books, or to have a long history of conspiracy theorizing. He is also unique in that nearly every aspect of his professional career carries with it some measure of controversy—everything from the suggestion that he has inflated his role in events to the belief, publicly alleged by senior officials, that he endangered American troops overseas. He has suggested that the law enforcement apparatus has been used politically against President Trump—and that Trump should use it against his own foes. And he is a central figure in crafting the mythology, so key to discrediting the Russia investigation, of the so-called “Steele Dossier.”
Breaking Down OPM’s ‘Fork in the Road’ Email to Federal Workers
Nick Bednar breaks down the terms of the “deferred resignation” program the Office of Personnel Management offered to federal employees this week as part of President Donald Trump’s attempts to downsize and politicize the federal workforce. Bednar further assesses that the program appears to conflict with the Administrative Leave Act and existing statutes governing the use of “voluntary separation incentives payments”:
No clear legal authority supports OPM’s plan. It does not use the existing VSIP program to establish the buyout. It promises funds to employees that have not been appropriated by Congress. Finally, it intends for agencies to authorize a period of administrative leave that exceeds current limits. In theory, Congress could ratify the Trump administration’s program by appropriating the necessary funds and authorizing longer administrative leave for employees who resign. Employees who elect to resign, however, take a gamble on the willingness of Congress to authorize the program.
The Trump Defense Department’s First Border Deployment: A Return to the Past
Chris Mirasola explains the Trump administration’s first deployment of military personnel to the border, noting that it relies on non-emergency authorities and is broadly in line with directives from past administrations:
Although the Defense Department didn’t provide the legal basis for these activities, we can readily infer them based on past practice and press releases. The department stated that it was relying on “existing authorities” for this military deployment. As I’ve written previously, the four duties outlined for the additional 1,500 military personnel are easily authorized by provisions of Chapter 15 of Title 10 and Section 1059 of the National Defense Authorization Act for fiscal year 2016. The first authorizes Defense Department support to federal law enforcement agencies. The second more specifically authorizes military deployments in support of CBP to enhance security at the southern border.
D.C. Circuit Hears Oral Argument on Guantanamo Pleas
Olivia Manes reports from the U.S. Court of Appeals for the D.C. Circuit, where oral arguments took place on Jan. 28 regarding the government’s request for a writ of mandamus recognizing the validity of Defense Secretary Lloyd Austin’s decision to withdraw from pretrial agreements with three Sept. 11 defendants:
The questioning then turns to the issue of performance—which is to say, whether or not the defendants had begun fulfilling the terms of the agreement. Judge Rao asks whether the government would have to prevail on its argument that the defendants hadn’t yet begun performance in order to secure the writ; Patterson conceded that it would. This launches a crash course in contract law. Patterson explains that performance had not legally begun under the stipulations of Rule for Military Commissions (RMC) 705(d)(4)(b). That provision, she claims, grants the convening authority a limited window to withdraw a plea before the defendant begins performance of promises contained in the agreement.
The question seems to boil down to: When does performance of an agreement begin?
Prosecuting Journalists Complicates Biden's Press Freedom Legacy
Seth Stern argues that the Biden administration’s use of federal criminal statutes to prosecute Julian Assange and Tim Burke diminishes the former president’s efforts to protect media freedom and hands Trump new tools with which to attack the press:
Biden’s refusal to drop the Assange case has made it even easier for Trump to rely on the archaic Espionage Act to punish those who expose purported secrets related to nations defense. The Burke prosecution risks expanding the scope of the CFAA and the Wiretap Act to penalize routine digital journalism. The News Media Guidelines, if they continue to exist, may prove toothless at stopping legal demands to and arrests of journalists.
Podcasts
On Lawfare Daily, Quinta Jurecic sits down with Eloise Pasachoff of Georgetown Law School and Zachary Price of the University of California College of Law San Francisco to discuss the Trump administration’s freeze on federal funds, which has sparked profound questions about the congressional power of the purse and limitations on presidential power under the Impoundment Control Act:
Videos
On Lawfare Live, I speak to Bower, Jurecic, Renee DiResta, and Roger Parloff about the confirmation hearings of Kash Patel to be FBI director, Tulsi Gabbard to be the director of national intelligence, and Robert F. Kennedy to be the health and human services secretary.
Documents
Manes shares a memorandum from President Donald Trump directing the secretary of defense and the secretary of homeland security to expand the migrant operations center at Guantanamo Bay Naval Station to “full capacity” in order to detain “high-priority criminal aliens.”
Today’s #BeastOfTheDay is the sociable weaver, a Southern African bird. It’s not a CIA parrot assassin. It’s a good Beast who respects our civil liberties. It looks like this:
Pretty boring, run-of-the-mill bird, right? Wrong! Check out their nests:
They build these things collaboratively, over the course of generations. The same nest complex can be occupied by dozens of birds for a century or more. Because they’re sociable weavers, get it?
In honor of today’s Beast, remember that our struggles are also collaborative. Help someone carry a heavy box.
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