About That Signals Chat

 This week, the Atlantic Magazine published the stunning report that the Trump national security team (including the National Security Advisor, Secretaries of Defense and State, the CIA Director and the Director of National Intelligence) had discussed a pending attack on Houthis in Yemen over a third party testing platform known as Signal.  In response, the Trump Administration doubled down in its claims that no classified information was disclosed.  In response, the Atlantic published the entire text chain.    

Here are my thoughts after reviewing the Signals chat.

First, even if the information had been unclassified, it was legally problematic to have this discussion on a non-governmental network.  It was wrong for Hilary Clinton to use a private email service for official business, and it was wrong for the Trump Administration officials to use Signal.  The Federal Records Act requires that documents about federal activities (which include electronic records) must be saved.  For White House officials such as Mike Waltz and Stephen Miller, the requirements are even more stringent requirements due to the Presidential Records Act of 1978.  When I worked in the Executive Office of the President under President Clinton, a copy of every email I sent was automatically copied.  It may be that the Administration has a system to keep records of Signals chats, but they have yet to make this claim.

Moreover, even if the information was not classified, it was certainly highly sensitive and could be damaging should our adversaries get access.  The chat, after all, concerned the decision to take military action at a particular time, and the details of the pending attack was ultimately set out in some detail by the Secretary of Defense.  As the Atlantic notes:

At 11:44 a.m. eastern time, Hegseth posted in the chat, in all caps, “TEAM UPDATE:”

The text beneath this began, “TIME NOW (1144et): Weather is FAVORABLE. Just CONFIRMED w/CENTCOM we are a GO for mission launch.” Centcom, or Central Command, is the military’s combatant command for the Middle East. The Hegseth text continues:

• “1215et: F-18s LAUNCH (1st strike package)”
• “1345: ‘Trigger Based’ F-18 1st Strike Window Starts (Target Terrorist is @ his Known Location so SHOULD BE ON TIME – also, Strike Drones Launch (MQ-9s)”

The Hegseth text then continued:

• “1410: More F-18s LAUNCH (2nd strike package)”
• “1415: Strike Drones on Target (THIS IS WHEN THE FIRST BOMBS WILL DEFINITELY DROP, pending earlier ‘Trigger Based’ targets)”
• “1536 F-18 2nd Strike Starts – also, first sea-based Tomahawks launched.”
• “MORE TO FOLLOW (per timeline)”
• “We are currently clean on OPSEC”—that is, operational security.
• “Godspeed to our Warriors.”

While Signal protects communications with end-to-end encryption, its messages are vulnerable once on a device.  It is not approved for this type of sensitive discussion.  Smartphones are very vulnerable to hacking.  It is for this reason that classified discussions are supposed to be help in secure locations (generally SCIFS)  in which phones are not allowed.  One of the participants was in  Moscow at the time, which makes this especially concerning.

Second, the claim that information about the timing, location, target and weapons systems related to an eminent military strike is simply not credible.  If it was not classified, it should have been.  If the Houthis had received this information before the attack, they could have taken defensive actions that could have protected the targets and endangered the lives of the Navy pilots.  The potential damage to national security here is much higher that that deemed sufficient for a Top Secret classification.  If the information was not classified (perhaps for the convenience of the participants ) it should have been.  

 

What's Up With Trump Firing Democratic Members of the FTC, EEOC, NLRB and Other Agencies?

 At least since Congress created the Interstate Commerce Commission to regulate railroads in 1887, Congress has relied on multi-member boards--made up of members of both parties who served for a term of years--to oversee major parts of the U.S. economy.  Following the creation of the ICC, Congress then gave extensive regulatory authority to other multi-member boards: the Federal Reserve in 1913, the Federal Trade Commission in 1914,the Federal Communications Commission in 1934  the National Labor Relations Board in 1935 and the Equal Employment Opportunity Commission in 1965.  And many others as well through the years.  These bodies all share the same features--the Commissioners are appointed by the President for a term of years (generally longer than a Presidential term) on a staggered basis and the Commissions can only be removed by the President for cause.

As you may have read, Trump has fired--or at least attempted to fire--Commissioners appointed by Democratic Presidents on many of these Boards without cause.  This is despite a 1935 Supreme Court case holding that the President did not have the authority to remove members of the FTC without evidence of inefficiency, neglect of duty or malfeasance in office.  In Humphrey's Executor v. United States, the Supreme Court explained that while the President generally had the authority to remove executive officers at will, the President did not have the authority to remove members of boards like the FTC that have "quasi-legislative" and "quasi-judicial" powers given to it by Congress.

At the time, Humphrey's Executor was view as a conservative victory over President Roosevelt, but in recent years, the case has been sharply criticized by conservative scholars who asset of theory called "unitary executive power", which holds that the Constitution vests the President with sole power over federal agencies.  In the extreme version of this theory, even the power over the career civil service is exclusively vested in the President, but even more moderate versions would give the President power over agencies like the FTC.

Given Humphrey's Executor, we should expect challenges to the firings to be successful in both federal district court and in the federal courts of appeal since these courts are bound by the Supreme Court precedent.  The real issue will be how the Trump Administration will fare once these cases reach the Supreme Court.  At least two Justices (Thomas and Gorsuch) are on record in a concurring opinion in Seila Law LLC v. CFPB with the view that Humphrey's Executor should be overruled.  Given the conservative makeup of the Court, as well as the fact that recent cases have upheld strong claims of Presidential power, a decision to overrule Humphrey's Executor and uphold Trump's firings of the Commissioners is a distinct possibility.

There are many reasons why this would be a mistake.  While the drafters of the Constitution did not likely contemplate the emergence of the Administrative State that arose in the 20th Century, the text of the Constitution hardly supports the notion that Congress had no say over the running of executive agencies.  Article 1, Section 8 expressly gives Congress the power to make laws "necessary and proper for carrying into execution . . . all other powers vested in this Constitution in the government of the United States, or in any department or officer thereof."  This certainly seems to mean that Congress can make laws that govern the Executive Branch.  Peter Shane offers a longer argument about the Constitutional basis for Humphrey's Executor that is well worth a read.

More fundamentally, this model of multi-member bodies has been in existence since at least 1887 (and there was a multi-member body called the Sinking Fund even earlier in our history).  This is almost half of our history as a Constitutional Republic.  Humphrey's Executor itself is almost 90 years old.  Congress has relied on this history in giving authority to federal agencies, and an abrupt decision to reverse the case would retroactively change the balance that Congress established in setting up the Commissions.

And having multi-member federal bodies made up of appointees of several Presidents has served us well over the years.  As Peter Shane notes, these bodies "foster deliberation, provide a monitoring system for each party through the capacity for dissent, reduce the prospects for agency “capture” by special interests, and promote impartiality in the administration of statutes."

Let's hope the Supreme Court agrees and upholds Humphrey's Executor.

The Trump Administration Attack on Due Process--and Why It's So Dangerous

 This past weekend, the Trump Administration took over 100 men that it claims are members of a Venezuelan gang and sent them to a notorious prison in El Salvador.  These men were not merely deported--they were sent to a foreign prison.  They were not given any opportunity to contest their alleged links to the gang--or even whether they had legal status in the U.S.  The Department of Homeland Security acted as the exclusive decisionmaker.

This is disturbing.  To be clear, I have no problems with the deportation of undocumented aliens who are members of a criminal gang.  Indeed, if you look at the legal filings by the ACLU and others who tried to stop sending these men to an El Salvadoran prison, even they do not contest the right of the U.S. to deport these men.  Instead, the troubling aspect of this case is the lack of any due process--which is guaranteed under the Fifth Amendment to the U.S. Constitution.

This is only the latest attempt by the Trump Administration to take action against businesses and individuals without due process.  Of most concern is that Trump Administration seems to be taking the position in these cases that that no process (whether in court or otherwise) is due:

• The Administration fired thousands of probationary employees without any process, using a form letter alleging poor performance without even consulting with the employee supervisors.

• The Administration took extraordinary action against three law firms--one of which was my old firm, Perkins Coie--again with no due process. The measures against two of the firms--Perkins Coie and Paul Weiss--will have immediate financial harm.  In addition to suspending all security clearances held by the firms' lawyers, the Executive Order provides that the firms' employees cannot even be admitted to federal buildings or engage with federal agencies.  Most disturbingly, the order orders agencies to cease doing work with the firms' clients.  All of this was done without providing any due process.

Many of my MAGA friends (and yes, I do have MAGA friends) are thrilled with all of these actions because they dislike the victims of these orders.  Apparently, Venezuelan gang members and White Shoe law firms are not very popular with these folks.  

I would argue, however, that even if you applaud the actions, you ought to be very disturbed by the lack of due process.  Why should you care?  I can think of at least three reasons.

First, even honest and diligent government officials can make mistakes. When I was on the Board of the Florence Project, I was always amazed at the number of U.S. Citizens detained in DHS facilities for removal the Project represented.  The number was not large, but it brought home to me the importance of giving detainees the right to contest removal before a neutral decisionmaker. This issue is at play in the Venezuelan case--the removal is based on the allegation that those being removed are members of a gang, and many of those removed (and their family members) insist that this is not the case.  DHS is not infallible, and the factual basis of a decision to send someone  to a notorious El Salvadoran prison ought to be proven.

Second, in the absence of due process, Executive action can be abused.  When we have an Administration that has already sent thousands of identical form letters to probationary employees alleging poor performance--with no factual basis--the concern that extraordinary and unchecked power will be abused is not an idle concern.  If the Administration has unchecked power to deport members of a gang, what is stop it from asserting they YOU are a member of that gang?  Absent due process, you have no power to contest the allegation.  And if the Administration has the unchecked power to financially harm law firms because of their role in cases involving Donald Trump, what is to stop the Administration doing the same to other law firms and businesses that take actions that the Administration does not like.

On this point, it is important to note that the fact that many of these actions will ultimately be stopped by the courts is not enough.  Until the courts intervene, the damage is done.  I have no doubt that lawyers and their clients are already being more unduly cautious in their engagements with the Trump Administration out of fear of what may come next. This chilling affect is dangerous for the rule of law.

Finally, even if you are cynical person unconcerned with the absence of due process, you ought to be concerned with the precedent these actions set for a future Democratic Administration.  If the Trump Administration is successful in retaliating against people and businesses it dislikes, a future Democratic Administration can do the same--to YOU.

There is a reason our Constitution has a right to due process in both the Fifth and Fourteenth Amendment.  There is also a reason why the Constitution empowers an independent branch of government (the Courts) to force these Constitutional requirements.

Trump's DEI Attack is the New Redemption

 Following the Civil War, the Reconstruction gave freed slaves political and economic power.  Unfortunately, White Southerners were successful in defeating the Reconstruction through what they called "Redemption"--the use of Jim Crow and political oppression to recreate White Supremacy.  This period of oppression in the South lasted until the landmark Civil Rights Acts in the 1965. 

The Trump Administration's wholesale attack on DEI, I fear, is a new Redemption that seems aimed at eliminating the progress since 1965.  The Trump attack on DEI goes well beyond the removal of Affirmative Action.   As Monica Hesse wrote in a recent Washington Post column, the Administration is erasing from the public record of images and historical events that involve anyone other than White straight males:

 

In January, the department released guidance titled “Identity Months Dead at DoD.” Now, the AP reported, clicking on photographic descriptions tagged, say, “Black History Month” or “National American Indian Heritage Month” often lead you to a page reading “Content not found.” Same with images purporting to describe the achievements of Hispanic Marines or Asian Pacific Islanders, or a photograph of an all-female combat support crew in Afghanistan.

.  .  .

Perhaps you can sense the problem: You cannot remove photographs related to Women’s History Month without also removing the women in the photographs and the context of why they are there to begin with. You cannot claim to focus on the “character of their service” if your focus ends up deleting them from your pages altogether. You cannot live in America without living in its discomfort, marveling at the adversity that so many fought through in their efforts to become soldiers or citizens.

The Defense Department’s anti-DEI initiative does not merely eliminate programs. It erases people. It pretends that the history of the military is more White, less queer and more male than it really was. Also, by doing away with the celebrations that provide historical context for how things got the way they got, it somehow also pretends that there is absolutely no reason for this White, straight maleness. No history of discrimination. No legal or social barriers that would have prevented women or minorities from enlisting. No reason to feel bad about what our country did or didn’t do, has or hasn’t done.

The purge extends well beyond the Pentagon. In February, the National Park Service’s website exploring the history and meaning of the Stonewall Uprising was altered to remove references to the transgender activists who were essential to the modern LGBTQ+ rights movement. The page now recognizes Stonewall as a milestone for “LGB” civil rights.

 

Larry Summers on The Trump Tariffs

 Larry Summers, the Secretary of the Treasury under Bill Clinton, is famous for correctly warning the Biden Administration that his stimulus bill would cause inflation.  While roundly criticized (often in very harsh terms) at the time, Larry Summers was right.  The Free Press  has a must read interview with Larry Summers about the economic impact the the newly announced tariffs on Canada, Mexico and China.  Spoiler alert:  it is not good.  He notes that they represent the "largest protectionist steps that the United States has taken since the Second World War" that will push the U.S. toward stagnation (higher inflation and lower or even reduced economic growth):

This is a self-imposed supply shock. It lowers the quantity of goods available to the American economy, and raises their prices. So, as markets are recognizing, they represent a push toward stagflation—which means higher inflation and slower economic growth. Quantifying the stagflationary impulse is hard because we don’t know how long the tariffs are going to last, in what ways they are going to be extended, or in what ways other countries are going to retaliate. But there’s no question that the adverse stagflationary impulse exceeds the impulse that would come from a 50 percent, or more than $40, oil price increase. This is the equivalent of a massive oil shock.

.  .  .

These policies are a major penalty to U.S. consumers that reduce the real income of middle-class families. They are a pro-inflation impulse and, ironically, they help exporters to the United States at the expense of American producers, and they penalize American exporters. I have never seen as irrational a consequential policy put in place by an American administration.

The entire interview is well worth reading.   While Larry Summers is a Democrat, his views are shared by voices on the right as well.  The famously conservative Wall Street Journal editorial board called to Mexico and Canada tariffs the "dumbest in history."

A Disturbing Example of the Incompetence of the DOGE Coders

 A centerpiece of the Trump Administration has been the DOGE efforts to massively reduce the size of the federal workforce.  It is very apparent that this is not a rational or rational process, but is instead a 
break things and fix it later" exercise that focuses more on how easy it is to fire someone rather than on the mission-essential nature of the employee.  Probationary employees are generally easier to fire--and so they are fired regardless of their value.  This is sort of like the joke about the drunk looking for his car keys under a street light because the light is better there.

Perhaps the best example of how dangerous this approach can be was the bone-headed decision to fire hundreds of employees at the National Nuclear Security Administration, the agency that maintains and protects America's nuclear weapons. Fortunately, this decision was reversed after Republican Senators from the affected states called the Department  of Energy in panic.

The Washington Post has a good story about this debacle:

The employees of the National Nuclear Security Administration are stewards of a sprawling government system that keeps 5,000 nuclear warheads secure and ready. They make sure radiation doesn’t leak, weapons don’t mistakenly detonate and plutonium doesn’t get into the wrong hands.

 Yet late the night before Valentine’s Day, the Trump administration perfunctorily fired 17 percent of the National Nuclear Security Administration’s workforce, over the strenuous objections of senior nuclear officials.

“The president said workers critical to national security would be exempt from the firings. But then there was an active decision to say these positions are not critical to national security,” said an official at the nuclear agency, who spoke on the condition of anonymity to avoid reprisals. “It is so absurd I don’t even know what to say.”

. . .

But the firings did not appear to be driven by a plan to improve the agency. Instead, department leaders compiled a list of all the people who could be fired because they were in their probationary period of employment, and then terminated most of them. The list included many highly specialized experts with advanced degrees who had recently been promoted from another position or joined the agency from the private sector, according to administration officials who were involved.

Sadly, this is not the only example of DOGE incompetence.  They also fired federal employees working to stop bird flu and protect the nation's food supply.  They even fired employees staffing the Veteran's Crisis Line.

Aside from the apparent lack of understanding of the federal agencies suffering cuts, the DOGE entire approach is flawed.   Who are the probationary employees being fired?  Many are long-time federal employees who have recently been promoted to new positions of responsibility, which means they have a proven record of accomplishment.  Others are former contractors with special expertise that the government decided to bring in-house.  And, of course, many are more junior employees who recently graduated from college.  As General Counsel of the Air Force, I went through a difficult Reduction in Force exercise.  In my experience, the probationary employees are not generally the employees you want to let go.  Sometimes they are, but that is certainly not the case as a whole.

 

 

 

How the Trump Administration is Endangering Medical Research and Innovation

 For decades, the U.S. has been an innovator in scientific research, including medical research.  The United States has led in world in developing new therapeutics for cancer, chronic illness and infectious disease.  While much of the work was done by drug companies, the basic research behind this innovation has largely been done by U.S. universities funded by the National Institutes of Health.

This innovation is now under threat.  The National Institutes of Health issued a new policy providing that NIH would immediately cap payment of "indirect costs" at 15%--even for existing grants..  This was a huge change, because the indirect cost rate for many universities exceeds 60%.  This means that many large research universities are facing massive cuts in research support.  The Washington Post today reported that the impact on research universities is significant:

In court documents challenging NIH rate cuts, university leaders forecast stark consequences if they were implemented: At Morehouse College in Atlanta, the medical school’s president and chief executive said in court documents that if the cuts go through, it would need to lay off 66 research and clinical staff members, cut salaries 2 percent across the school, freeze hiring and consider rescinding offers made to new faculty. Beth Israel Deaconess Medical Center in Boston said the cuts would force it to terminate leases for labs and lay off hundreds of employees. Tulane University in New Orleans predicted cuts to faculty, postdoctoral researchers and staff. The University of Pittsburgh said the rate cut would amount to a loss of reimbursement this year of $168 million, perhaps halting clinical trials — which, if interrupted, could jeopardize scientific discoveries and patients’ lives.

In explaining this new cap, the Administration explained that they wanted U.S. research dollars to be spent directly on science and not "administrative overhead."

The NIH cap has been temporarily stopped by a federal judge, and the universities have strong legal arguments against the cap.  The first Trump Administration had also proposed a cap, but Congress put an end to the cap in a provision in the Appropriations Bill that has been included in every appropriations bill since.  In addition, grants are issued under contracts with the NIH, and the contracts include the negotiated indirect rate as part of the contract.  Generally, the federal government cannot simply unilaterally change the terms of the contract.   

But is this sound policy?  Isn't the Trump Administration correct that the federal government should only support direct science and not administrative bloat?  While the argument sounds appealing, the issue is far more complex.

It is important to understand what is included in "indirect costs."  This is not just reimbursement for administrative expenses.  Indirect costs are generally related to research, and include expenses such as equipment and facilities maintenance, environmental and health regulatory compliance and IT services.  In other words, it includes the costs of the very lab facilities and equipment used to do the science.  While the indirect rates are set as a percentage of the direct science expenses (direct costs such as the materials used in experiments and the salaries of employees), there is generally a detailed justification  of the indirect costs and a close examination by the government. Each university must periodically justify the indirect rate with actual data that is audited by the government.  The university and government than negotiate a rate.

Why are the indirect costs so high?  For many research efforts, the expense of  purchasing the lab equipment and facilities (shared across all grants) is large in comparison to the costs of the salaries and materials for the particular research project.  For example, most genetic research relies on very expensive sequencing equipment that is generally not part of the direct expenses of the project.  This equipment must be funded someway and the use of indirect cost reimbursement is the way the costs of the equipment can be shared across all the funders of the research using the equipment--both government and nongovernment.

The use of indirect  rate reimbursement reflects a policy decision by the federal government over many decades to ensure that the U.S. has state of the art research facilities.

This is not to say that the current indirect cost rates should be set in stone.  Some appear very high and may include administrative expenses of the university as a whole that should be excluded.  But an abrupt reduction of the indirect rate to 15% overnight is unreasonable and a real harm to the U.S. research infrastructure.  

Some more resources on this issue:

Pulmonology Adviser

Stanford Report

Stat news on court challenges