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January 31, 2017


No one is opposed to national security, but some politicians use it as a scare tactic and a cover to play dictator. If everything and everybody can be labeled as threats to national security at the whim of such politicians, then you not only have a putative police state on the way but one that can be justified to a scared population. It was the communists and Jews who were scapegoated by Hitler (after softening up the populace with national security propaganda) which served his purposes as a modern day version of Genghis Khan and the murderer of millions.

Now we have a Trump who incessantly talks about national security and frequently mentions the need for law and order, a buzzword phrase for takeover. He has already suggested as much with his trial balloon of going into Chicago to “stop the carnage.” What he doesn’t tell us is that if he can successfully intervene in Chicago then he can intervene anywhere, having established a precedent, and all the while being in charge of defining the criteria of what it takes for him to send in the troops.

Another example of overreach is his firing of the Acting Attorney General “for not carrying out a lawful order.” He doesn’t seem to recognize that his job description is to appoint and fire Attorneys General, not do their job for them. He is not the one who determines that the order was lawful (though his framing suggests otherwise); that was the job of the Acting Attorney General.

The Justice Department is traditionally an independent agency. Attorneys General do not represent Trump or any other president; they represent the United States in various capacities authorized by statute and the Constitution. Their allegiance is not to any president; it is to the law and the Constitution, not some political outcome. DOJ career lawyers are by and large apolitical.

The AG he fired had almost thirty years in the Department of Justice; she was a career person who had worked for presidents of both parties. She said that she thought the order was illegal and unconstitutional and would not implement something that was illegal. She lived up to the highest professional standard there is by refusing to enforce an unconstitutional act by a politician who said that she had “betrayed the Department of Justice” by her refusal when in truth and fact she refused to betray the Department of Justice by her refusal to “betray” the Constitution.

The DOJ is not a handmaiden of any president bound to do what the president says or else. He’s just the “hire and fire” guy. She, the Acting Attorney General, to her great credit, chose “or else” and will be leaving public service after nearly thirty years, and all because she was doing her job.

When in the practice, I can tell you that I didn’t do what my clients wanted me to do in matters of pleading, trial, appeals and opinions. That was my job and one for which I was trained, not theirs. The good news coming out of all this is that there will be large law firms seeking her services in the private sector at a salary level far beyond what she brought home from her job as a public servant, so at least from an economic side of things, Trump’s petulance and ignorance will have unknowingly brought about a just result.

Trump’s propaganda and other Kellyanne slick-talking ministers would have us believe that the AG’s failure to O.K. his illegal order was dangerous to our national security. On the contrary, following the Constitution is never dangerous but rather the mark of following the rules we as a civilized society adopted for the good of all, and Trump should try following constitutional and other rules on occasion rather than those of his own which he has fished out of his narcissistic pool.     GERALD      E


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