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February 13, 2020

CAFE Insider Newsletter #59: It’s Only The Beginning

Dear Reader,

Ohio Democratic Senator Sherrod Brown this week remarked that Donald Trump is on a “retribution tour.” That might in fact turn out to be an understatement. As I write this, Trump’s Senate acquittal is barely a week old, and all signs point to the President being on a retribution rampage.

Consider just some of his recent actions. He inserted himself into the criminal case against his longtime crony, convicted felon Roger Stone. But he didn’t just urge the Justice Department to undo its 7-9 year sentencing recommendation. Trump also insulted the presiding judge, attacked the career prosecutors (all four of whom resigned from the case in light of the DOJ reversal), and abruptly withdrew the Treasury Department nomination of the former U.S. Attorney in the District of Columbia who had overseen the Stone case.

Just two days after the acquittal, Trump moved against the witnesses who had dared to comply with House subpoenas in the impeachment inquiry. He famously directed that Lt. Colonel Alexander Vindman be removed from his NSC post and Ambassador Gordon Sondland be sacked, even though they were reportedly planning their own quiet and imminent departures. But not only that. Trump further demanded that Vindman’s twin brother, also detailed to the NSC but who had no known role in impeachment and who never testified, be escorted from the premises; further, the commander-in-chief suggested publicly that the Department of Defense should consider investigating and punishing the Lt. Colonel.

A veritable retribution infrastructure is being built, alongside scaffolding that would operate to protect the President and his allies. With respect to the former, Trump’s personal lawyer, Rudy Giuliani – reportedly under criminal investigation himself – is now confirmed to enjoy a special arrangement with the AG to convey whatever dirt he wants about the Bidens. As to the latter, Barr just announced that no investigation, even a preliminary inquiry, into a presidential candidate or campaign can be commenced without his personal approval; though neutrally drafted, given the track record, this is a Barr license to quietly quash, in bad faith, any investigation of the Trump campaign. The ground is being meticulously prepared for both retaliation and protection.

And as I tweeted last week after the Vindman removal, this is only the beginning. Even after five more days of retaliatory actions, I believe this is just the beginning. Here’s how the AP reported the state of affairs just this morning: “[A] fully emboldened President Donald Trump is demonstrating his determination to assert an iron grip on government, pushing his Justice Department to ease up on a longtime friend while using the levers of presidential powers to exact payback on real and perceived foes.”

The President’s enemies list is long and his anger boundless. There are at least three categories of targets for Trump’s fevered mind. Expect all of them to suffer his ire, not just with obnoxious rhetoric but concrete action.

First are the remaining members of the law enforcement community against whom Trump repeatedly rails. People like Jim Comey, Lisa Page, Peter Strzok. He calls them traitors and wants them jailed. That might be a tall order even for Trump, but what about former deputy director of the FBI, Andrew McCabe? The DC U.S. Attorney’s office was reportedly pursuing a false statements case against him. That has fallen off the radar and many speculate that the grand jury refused to indict him. Even if true, nothing other than an advisory DOJ policy with several exceptions prevents the new interim U.S. Attorney there from pursuing such an indictment now.

Second are the elected officials who dared pursue impeachment. They include Nancy Pelosi, Adam Schiff, and Jerry Nadler. They have also been described as traitors and criminals, Schiff especially. Will Trump find ways beyond harsh rhetoric to move against them too? Might he suggest that his newly weaponized DOJ take a look at the financial dealings of Nancy Pelosi’s wealthy husband? Nothing would be shocking at this point.

Third, and perhaps most alarmingly, are the candidates vying to replace Trump in the White House. Look at what the President and his minions have already done to slander Joe Biden, an undertaking commenced when Biden was seen as the most potent political threat. As Biden’s candidacy wanes, is there any doubt he will turn his tactics to the remaining threats?

Watch for the swift-boating of Pete Buttigieg, who served honorably in the armed forces. See if Trump tries to find ways to have the Defense Department release derogatory information about the former mayor.

Then there’s Bernie Sanders, who may well become the Democratic nominee. Did you know that Senator Sanders’ wife, Jane, was the subject of an FBI investigation related to a Vermont college she ran? If Sanders keeps winning, Trump will be sure to make sure that every breathing American knows about it. He will lie about it, exaggerate it, implicate Senator Sanders himself in it. Never mind that the U.S. Attorney in Vermont closed the case in late 2018 without bringing charges. Just wait. This is what is coming.

This is what an emboldened Donald Trump will do, with impunity. Along the way, his abhorrent attacks on journalists and judges will continue. And Trump – the most powerful man on earth – will play the victim through all of it.

I hope I’m wrong about all this. But I’m not. It’s only the beginning.

My best,

Preet

THE QUARANTINE DEBATE

Warning sign with text reading “Novel Coronavirus Alert”, referring to quarantine and screening procedures for patients with possible exposure to a novel coronavirus spreading in China, at a John Muir Health medical center in Walnut Creek, California, February 9, 2020. (Photo by Smith Collection/Gado/Getty Images)

In late January, as the coronavirus outbreak began to wreak havoc on mainland China, the United States Center for Disease Control (CDC) instituted its first mandatory quarantine in over 50 years.

On Monday, the CDC lifted its 14-day quarantine of the 195 American citizens who had been evacuated from Wuhan, China, where the outbreak began.

Each of the evacuees has been released and deemed virus-free, but as they make their way home, the broader question remains: On what legal basis can the United States forcibly hold citizens who may pose a threat to public health? Specifically, how do we balance the dual interests of public health and individual freedom?

The federal government has long held the power to institute quarantines “to prevent the introduction, transmission, or spread of communicable diseases” both from abroad and across state lines. The federal statute which grants the executive branch the authority to issue quarantine orders, 42 U.S.C. § 264, also confers on the President the power to seize and detain citizens for the purpose of preventing the spread of such diseases.

Another federal statute, 42 C.F.R. §70.6, delegates the authority to issue a quarantine order to the director of the CDC. In order for the director to institute a quarantine, the citizen(s) in question must be “reasonably believed to be infected with a quarantinable communicable disease.”

In 2017, the CDC updated its quarantine rules for the first time in 40 years, giving the agency more sweeping powers to detain people who may pose a threat to public health. The new rules also expanded the scope of the diseases that could trigger a quarantine and imposed a new process for how the government deals with citizens who are under quarantine.

Health policy advocates and civil libertarians alike are concerned about an expansion of executive power in this arena. Individuals under quarantine have the right to habeas corpus, but they must clear a fairly high bar. As Law Professor Robert Chesney writes in Lawfare,

In terms of a procedural due process challenge, it bears emphasizing that the government’s interest is at its zenith in this situation, that the consequences of erroneous release of a detainee are significant, that the procedures described above are substantial, and that the maximum length of detention likely is short in relative terms…Indeed, it’s hard to imagine the litigation running its course before the quarantine order expired.

In recent days, the CDC confirmed the 15th case of novel coronavirus in the United States. With the virus continuing to pose a serious threat to public health — here and around the world — what do you make of the debate around quarantines? Let us know your thoughts by writing to us at [email protected], or reply to this email.

THIS WEEK ON STAY TUNED

Dan Goldman is this week’s guest on Stay Tuned. He’s the House Intelligence Committee’s Director of Investigations and Senior Advisor who led the Democrats’ questioning of witnesses during House impeachment hearings. Goldman previously served as Deputy Chief of Organized Crimes at SDNY while Preet was U.S. Attorney. In the interview, Goldman takes us behind the scenes of impeachment and shares his experiences as a central participant in the historic event.

So how has his experience on Capitol Hill differed from his time as a federal prosecutor? Goldman tells us:

Whereas everything that you do as a federal prosecutor, for the most part, is confidential—not just the grand jury material, but every investigation is confidential within the office until you make a decision to go overt about it—in Congress, it’s almost the exact opposite.
Nothing is confidential…[and] the pressure to apply to people to comply with a subpoena or other requests is really public pressure. It’s political pressure…What I had to quickly learn is how to use the public pressure from going overt and making investigative steps that are public to try to ratchet up the pressure. And frankly, that was a huge part of how this impeachment investigation got going.

Listen to today’s episode, follow along with the transcript, and share your thoughts with use by writing a review or emailing us at [email protected]

And if you haven’t already, listen to this week’s special episode, “Stone Cold Crisis,” where Preet and Anne break down the latest developments related to Roger Stone’s sentencing.

FOLLOW

Dan Goldman, this week’s guest on Stay Tuned, has astute observations about law and politics. Follow him @danielsgoldman.

THIS WEEK ON CAFE INSIDER

If you haven’t already, listen to the latest episode of the CAFE Insider podcast: “Presidential Payback!” and follow along with this transcript.

*To manually add your unique Insider Podcast feed to your favorite podcast app. Here are the instructions.

That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at [email protected] with your thoughts, suggestions, and questions.

—The CAFE Team: Tamara Sepper, Sam Ozer-Staton, Julia Doyle, Calvin Lord, David Kurlander, David Tatasciore, and Matthew Billy.

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