Monday, December 12, 2016

Apple #737: An Election Re-Do?

On Saturday, former CIA operative Robert Baer told CNN that the information he's seen so far about Russian hacking suggests they did interfere in the US Presidential election with the express goal of helping one candidate (Trump) and hindering another (Clinton). He said, "When a foreign country interferes in your election and the outcome is in doubt, . . . I'm not a constitutional lawyer, but . . . I would like to see the evidence, because if the evidence is there, I don't see any other way than to vote again."

So, is this possible?  Could the election not really be over?  Could we be going through the whole thing all over again?

  • One of the other things Baer said was that "If we [the CIA] had been caught interfering in European elections or Asian elections or anywhere in the world, those countries would call for new elections."
  • Since all of this is on an international scale -- Russia involved in US politics, Baer using European or Asian countries as models -- I wondered what international law says about all this.

  • The UN does stipulate in its charter that violent or physical intervention by one country should not be used to sabotage an election in another.  The UN went further in 1965, stipulating that “No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal […] affairs of any other State” and that that every “State has an inalienable right to choose its political, economic, social and cultural systems without interference in any form by another State.”
  • What this has meant in practice is that everybody agrees that no foreign country is supposed to go in and physically alter another country's vote or establish some coup to change the results of an election, or kidnap one of the candidates and assassinate them.  That is, everybody pays lip service to that.  But several countries -- including and especially the US -- have violated that agreement with little or no repercussions.
  • This is when the interference is obvious or violent.  But when it's more indirect -- distributing fliers with false information to get citizens to vote a certain way, pouring millions of dollars into the desired candidate's campaign -- the rules get a lot more vague. Nobody seems willing to define exactly what constitutes this fuzzier kind of interference and what doesn't, nor do they seem willing to do much to try to change such behavior, or to interfere yet again to undo whatever interference happened.
  • So there's been a lot of interference by a lot of countries, in spite of those rules.  One of the most notorious offenders has been the US. Here is a short list of occasions when the US is known to have interfered with, unseated, or downright overthrown the government in another country (NACLA, WaPo, Politico):
    • 1906 US interfered in Cuba's presidential election
    • 1945-1946 US interfered in Argentina's presidential election
    • 1948 US interfered in Italy's presidential election
    • 1953 US interfered in Iran's election for prime minister
    • 1953 US interfered in the Philippine's presidential election
    • 1954 US unseated Guatemala's sitting president
    • 1961 US assassinated the ruler of Congo
    • 1963 US supported a coup against the leader of Vietnam
    • 1973 US supported a coup in Chile that put Pinochet in power
    • 1984 US tried to sabotage Nicaragua's presidential election
    • 2002 US interfered in Bolivia's presidential election
    • 2002 US interfered in Nicaragua's presidential election
    • 2002 US used the IMF to influence Brazil's presidential election
    • 2004 US interfered in El Salvador's presidential election 

General Pinochet and Henry Kissinger shaking hands after the coup & killing of Chile's president. Pinochet's bloodthirsty head of secret intelligence, Manuel Contreras, was a former member of the CIA.
(Image sourced from Steemit)

  • As the US has done such things, so has Russia.  One political scientist finds that US and Russia "intervened in 117 elections around the world from 1946 to 2000 — an average of once in every nine competitive elections.”
  • So, first of all, it's beyond disingenuous for an ex-CIA guy to act all shocked and say that if we had interfered in another country, they would do their election over again. Um, no.
  • Also, pretty much the rest of the world is laughing at us for pointing at Russia and shouting, "Hey! They messed with our election!"
  • But most Americans could give a rat's toothpick about international politics, or the UN, or what we did in the 1950s.  As Jack Goldsmith from Harvard Law put it, this is America this has happened to. 
  • Also, the interference seems different.  They used computers.  They hacked into our stuff.  We've all got phones & computers & everything, so it's like those Russians touched all our stuff.  Then they posted whatever dirty laundry they found (was it even that dirty?) about the candidate they didn't like on a site that some people considered to be rogue but maybe necessary.  It seems like an invasion, a betrayal, and it's scary. Because if they did that, what else could they do?

Screenshot of Fancy Bear website, boasting about having hacked the Olympics' anti-doping agency. No, the Russian government would have no interest whatsoever in the anti-doping agency being undermined.
(Image sourced from VOA)

  • Another reason this situation seems new is that it seems possible that "a presidential candidate of one U.S. party, [Donald Trump], might be working with—or at least supportive of—a major foreign adversary’s efforts to covertly damage the rival presidential candidate.” (again, Jack Goldsmith in the Atlantic)
  • In other words, was it at least partially an inside job?  By the guy we have just elected president?
  • It may be very difficult to draw a direct and clear line from The Candidate to the Russians. The CIA seems to be having some difficulty drawing the line to the Russian government.  They can talk about Fancybear all they want, but was that group operating under orders from Putin or his officials?  If the CIA knows, they're not saying so far, perhaps because they don't want to reveal how they came by the information and risk exposing people working covertly in the field.
  • If they find it difficult to draw one side of the triangle, it might not be possible to draw the other side, from the Russian government to Trump.
  • But maybe proving that wouldn't even need to be possible.  Would it be enough to say the Russians interfered in our election, and we don't care what the UN or anybody else thinks, we want to have a re-do?  Could we do that?
  • I suppose we could do anything, if enough of us decided we wanted to.  There have been election re-dos before. Here are a few very recent do-overs:
  • In all of those situations, the reason for the re-do was because of evidence of some kind of ballot-related fraud, or even the perception of such fraud -- a suspicious increase in the number of absentee ballots, hundreds of thousands of votes untraceable to actual people, tens of thousands of ballots opened too early.
  • In this case, we don't have such ballot-related evidence.  We have a lot of emails, though.
    • Oh, my word, there is a gigantic joke just sitting there.

  • But seriously, folks, a re-do just isn't very likely.  There's no international body that would tell us we had to have one, we probably wouldn't listen to them anyway, and even if some internal group like the Election Assistance Commission or perhaps some Senate committee on elections recommended a re-do, the people who are in charge of things -- Congress -- have to vote for a re-do. And we all know how Congress can hardly ever agree on anything, especially if what's at stake benefits one party over the other.
  • And the problem we're talking about is that fuzzy kind of interference.  What happened wasn't a direct kidnapping or coup, and it wasn't even like the Russians stole a bunch of ballots or changed them.  As UC-Irvine Law professor Rick Hasen put it, “It is very rare for courts to declare a revote, and these do not look like the circumstances where courts would declare one. I have never seen anyone try to redo an election based upon the release of information which influenced voters.” (LawNewz)
  • But even if the snowball's chance happened and Congress decided on a re-do, logistically, how could that even happen?  It takes county boards of elections about 2 months to 100 days to prepare for an election, and that's when they have a lot of advance notice when one is coming.  How would we round up all the voting machines and poll workers and everybody else in time to have a re-do vote before January 20?

It took Haiti more than a year to re-do the election that was declared to be fraudulent.
(AP Photo by Ricardo Arduengo, from Indian Express)

  • So, for all these reasons and more, I think that Robert Baer guy was full of it.  He's generally regarded as knowing his stuff when it comes to CIA matters.  But in this instance, I think he's off the mark.  My suggestion is don't count on a re-do.  Focus your energies elsewhere.

CNN Robert Baer's remarks
LawNewz's opinion on Robert Baer's remarks
Michigan Journal of International Law, Review of UN laws on foreign interference in elections
Foreign Policy Initiative, discussion on Russian interference in foreign elections
Atlantic, opinion on Russian interference, w remarks by Goldsmith
Washington Post, opinion on Russian interference, w/ remarks by Tokaji & Lewis
NACLA, history of US interference in foreign elections
Politico, history of US interference in foreign elections
Washington Post, history of Us interference in foreign elections
Fox2Now, St. Louis election fraud
Fox2Now, St. Louis election fraud part 2
CBSNews, Haiti election re-do
FoxNewsWorld, Haiti election re-do part 2
AFP via Yahoo News, Austrian election re-do
Reuters, Austrian election re-do part 2
Sampson County, NC, Board of Elections, timetable for election preparation
Wayne County, Ohio, Board of Elections, video on planning for an election

Sunday, December 4, 2016

Apple #736: Cabinet Appointments

With all the news about Trump's picks for this or that cabinet position, and particularly about the response to his choice of white supremacist Steve Bannon as his official strategist, I realized I had no idea how this cabinet appointment process works. Lots of people are sending their opinions about Bannon to members of Congress and to Trump himself, but I've been thinking, if these are appointments, what's Congress got to do with it?  Can't Trump just do whatever the heck he wants?  Another politician might listen to people sending reams of letters and postcards to his mailbox, but I doubt Trump would.

So, first, how does the Cabinet appointment process work, and second, if you seriously object to a particular appointee, what can you realistically and effectively do about it?

President Obama's Cabinet attending a meeting in the White House Cabinet room.
(Photo from the White House)

The Few Basic Rules of Appointments

  • Another rule also applies to cabinet positions, and that is a law that was created in 1967 to guard against nepotism in the cabinet. Some people say the law was passed because LBJ didn't like it that JFK made his brother, Bobby, Attorney General. Others say it was created because the office of the Postmaster was staffed with all sorts of cabinet officials' wives.
  • This 1967 law says any public official may not appoint a relative to any civilian position in a department which the official oversees. So, if you're president, you oversee any cabinet position, so all of those are off-limits.
  • But it contains a second provision which says that if the official appoints a relative anyway, in spite of this rule, then that relative cannot be paid. 
      • (Presumably Bobby Kennedy & those pesky wives were already in those positions so they said let's just take them off the payroll.)
  • The upshot of this law is that, theoretically, Trump could appoint all of his children to cabinet positions, and if the Senate said OK, they could hold those positions but not draw a salary.

Slightly edited photo of the Trump children & their spouses, and Melania.
I think Barron would probably not be confirmed as a Cabinet appointee.
(original at Business Insider)

  • Other than these two laws, the President can pretty much appoint as he or she sees fit.

Most Executive Branch Appointments Are President-Appointed Only

  • There's an exception to the Senate-approval requirement, and that is, in general, if the cabinet position is part of the executive branch, or part of the White House, the Senate has no say. Those are all straight-up presidential appointments.
      • Some executive branch positions do require Senate approval, such as the Director of the Office of Management and Budget, the US Trade Representative, the Director of Science & Tech Policy (vacant as of 2012), the Chair of Environmental Quality, etc.  But the vast majority are Presidential appointments, and many are even career appointments.
  • But all of this means that the Senate has no say whatsoever over who the President chooses to be White House Chief of Staff, or Strategic Advisor, or almost any other White House office position.
  • Which further means that however many e-mails or phone calls or postcards that you may have made or sent to your Senator saying how objectionable you find Steve Bannon's appointment to the White House, your Senator can't really take any action.  You may feel better having registered your opinion with some government official, and doing something to get your opinion heard may be better than keeping silent. Just don't expect your Senator to be able to take any particular action on this point.
  • Why not?  Separation of powers, is what it comes down to.  One branch of government can't dictate to another everything it can & can't do. One of the cornerstones of how our country works.

Many Cabinet Positions are President-Appointed, Senate-Approved

  • But there are many cabinet positions that do depend on Senate approval for confirmation.  Some of those positions include pretty much any office with the word "Secretary" at the start of it. There are scads of presidential appointed-senate approved positions. Here is a very incomplete list of some of them:
      • Secretary of Agriculture
      • Secretary of Commerce (vacant as of 2012)
      • Director of the Census Bureau
      • Under Secretary of Commerce for NOAA
      • Secretary of Defense
      • Secretary of Education
      • Secretary of Energy
      • Assistant Secretary for Environmental Management (vacant as of 2012) 
      • Chief Financial Officer for the Dept of Energy (vacant as of 2012)
      • Secretary of Health & Human Services
      • General Counsel to most governmental departments
      • etc.
The big-name cabinet positions
(Image from Poudre School District)

  • There are over 2,000 upper-level positions Cabinet departments and agencies in the federal government.  I'm not sure what percentage of those positions are ones that Trump is supposed to fill, whether or not the Senate approves them, but I would guess maybe 20%?
      • If you want to see a complete list of all US Government positions along with an indication of whether it's a presidential appointee or a senate-approved position and what the pay grade is, check out this ginormous list of positions, better-known as the Plum Book (last updated 2012).
  • For those positions that require Senate approval, the nominee first of all has to fill out 4 sets of rather exhaustive background paperwork, and one of those sets gets passed to the Senate.
  • The Senate parcels the nominations out to those committees that have jurisdiction over  the agency in question. For example, the nominee for Secretary of Education gets referred to the Senate Committee on Education.  That committee reviews the nomination and may or may not choose to hold hearings to discuss the nominee's qualifications or anything else about the potential appointment.
      • This process of reviewing the nominee by the relevant committee is a de facto way of ensuring that the nominee is qualified for the position for which they're being considered. There is no actual rule in place that says the nominee needs to have any experience whatsoever related to their position. But up to now, that's just what Presidents did. Until the forthcoming administration, Presidents typically nominated people who did have experience, because they didn't want to waste everyone's time by nominating someone who didn't know what the heck they were supposed to be in charge of.
      • Even if an unqualified nominee were proposed, the Senate committee could recommend that the nominee not be approved based on lack of qualification, but there is no agreed-upon standard of qualification. Some Senators might think that a person who was involved in supporting charter schools but had no involvement in public schools whatsoever is qualified to lead the US Department of Education, and there would be little hard & fast basis on which to object to this opinion.
  • If the nominee passes the approval of the committee, the nominee's appointment is put on the general Senate calendar, and the nominee is considered by the Senate in general at that time, and then voted on.
  • The record of the votes is of course duly recorded in the Congressional Record, and the President is also notified of the results of the votes.
  • It used to be that it took 60 yea votes for a nominee to be confirmed. But in 2013, the Democrats voted on and passed the "nuclear option" which changed the rules so that only a simple majority of the Senate was required to confirm a nomination.
      • Republicans warned Democrats when they were discussing this bill that they might not like it so much when they no longer had a majority in the Senate, but Democrats insisted on it, saying there was no other way to get around Republican obstructionism. Harry Reid, who proposed the bill, said he still stands by it and that the voting record will show which Senators support which candidates, however unfit they might be, and the voting public will hold them accountable for that. 
  • So if you really want to object to a particular cabinet appointment that requires Senate approval, methinks you'd better contact Republican Senators (scroll down), especially if you are a constituent of one of theirs.  Telling a Democratic Senator of your objections might be somewhat important, but you'd probably be preaching to the choir. 

This is what Federal Reserve Chair Janet Yellen's confirmation hearing looked like. 

It All Takes a Long Time

  • A wrinkle in all of this is bureaucracy. The business of filling appointed positions is tedious, protracted, inefficient, and it takes forever besides. (Yes, I'm being redundant. I'm demonstrating the facts with my language.)
  • The appointee process is such a problem, there is a project called the Political Appointee Project whose sole purpose is to review the system, track its inefficiencies, and try to recommend improvements. At least 6 independent research groups have conducted numerous studies of the process and issued reports and bulletins highlighting the problems and recommending ways to change and improve the system. Unfortunately, very few of their recommendations have been implemented.
  • One of those problems I've obliquely referred to earlier. When someone is nominated for a position, that person has to fill out 4 exhaustive questionnaires:
      • National security clearance questionnaire
      • Personal data statement to be used by the White House
      • Separate background questionnaire for the Senate's review 
  • It took an act of Congress -- literally -- to revise these forms so people didn't have to provide their name & address & birthdate etc. on each of the 4 forms, but that that information would be asked for only once and it could be shared among all the parties who need it. 
  • In addition to the 4 forms, each nominee is investigated by the FBI to determine if they have any skeletons in their closet.  Perhaps you have some potential lawsuit-worthy deeds in your background, or maybe you have an addiction, or maybe you have some blackmailable offense that somebody could use against you, or "Do you belong to a club that excludes women or minorities?" (Hmm)
  • If the FBI turns up something problematic that you should have indicated on your national security clearance questionnaire, you could be found guilty of committing a felony and fined up to $10,000, or sentenced to up to 5 years in prison, or both.
      • Has anyone asked Trump to complete the National security clearance questionnaire, especially with respect to his dealings with Russia?
  • With all these forms that have to be reviewed, and background checks conducted, with this department and that agency and that office needing to review and rubber-stamp all the materials, the process takes a really freakin' long time.
  • Because of this bureaucracy, according to findings by the Aspen Institute, on average in recent administrations, only about 1/3 of the most vital leadership roles in the government were filled within the first 100 days of a new administration (by May 1).
  • Even if a Departmental Director is installed relatively quickly, they can't do much without a senior staff, and many of those positions remain unfilled for a really long time after the start of a new administration. For example, of the 35 most important appointees responsible for national security there are on average only about 9 in office by May 1.

For example, nearly every office shown here in the Dept of Justice is a Presidential-Appoint, Senate-Approve position. But there are boatloads more that aren't shown here that also require Presidential appointment/Senate approval, including but not limited to the US Attorneys for each state, and many states have more than one. The US Atty for Northern Illinois, Obama's home region, is vacant as of 2012.
(Diagram from Wikipedia)

  • The Aspen Institute recommends that Presidential candidates begin preparing appointees well before the election, so that if they win, they have a team ready and installed as quickly as possible. Obama and McCain both started these preparations very early, while they were still candidates. As a result, "The Obama administration was able to nominate and have confirmed more appointees in the first 100 days than any other President in recent times."
  • Even so, several positions remain vacant, even as late as 2012. Even for the guy who is uber-prepared and efficient, understands how government works and tries to choose people who will get approved, it's still really difficult to fill all the necessary positions.
  • Trump, on the other hand, is woefully unprepared. It was news to him that he had to appoint people to work for him in the White House. Chris Christie was on the ball when he signed the memorandum of understanding that would allow the Obama administration to share sensitive information with the Trump transition team, but when Ivanka's husband sacked Christie because he prosecuted his father & put him in jail, that rendered the MOA obsolete, and it took a couple weeks before Pence signed a new form (see NYT).
  • So Trump is already behind schedule.  Which means even if he does get his major positions figured out somewhat soon, he will still need to get tons of people hired who will actually do the work for his Secretaries of Education and Defense and Commerce, etc.  
  • Which means it might take a while for more of the wheels to start falling off.  And maybe those of us who are not in favor of unqualified, racist, misogynist people being put in positions of power might be able to find local, small-government ways of keeping them from instituting policies that make American more mean than it has already become in such a short time. Here are some general and somewhat vague thoughts on local-government action.

So, even knowing more about how this whole process work, I don't have many specific recommendations for actions to take that can have real effects. I guess my general suggestion is, be vocal but also be local. Here are some resources:

Georgetown Law Library, Executive Nomination Process Guide
[The Plum Book, or] United States Government Policy and Supporting Positions, 12-1-2012 
The Washington Post, There are three [unwritten] rules of Cabinet appointments. Will Donald Trump break them? 11-25-2016
The Washington Post, President Trump’s Cabinet picks are likely to be easily confirmed. That’s because of Senate Democrats. 11-18-2016 
A Survivor's Guide to Presidential Nominees, 2013 edition
The Political Appointee Project
The Aspen Institute, The Federal Appointments Process: The Problem and Our Proposed Solutions
Quora, Which laws been enacted to prevent family members of a president from serving in his cabinet?
Huffington Report, No, Donald Trump Can’t Appoint His Kids To His Cabinet [actually, he can], 11-10-2016
Business Insider, Report: Trump was unfamiliar with the scope of the president's job when meeting Obama, 11-13-2016
The New York Times, Firings and Discord Put Trump Transition Team in a State of Disarray, 11-15-2016