If the president of the United States wants his attorney general to investigate how the Obama administration handled a surveillance warrant involving a former campaign aide, he should ask him.
But if President Trump did that, he would draw thundering criticism for essentially ordering a Justice Department investigation of his predecessor.
Instead, Trump is turning to his tried-and-true Twitter technique of taunting Jeff Sessions.
The president’s tweet followed Sessions’ decision to have the department’s internal watchdog examine the controversy over the FISA warrant for Carter Page—the subject of all that Republican-vs.-Democratic memo sniping.
Trump asked: “Why is A.G. Jeff Sessions asking the Inspector General to investigate potentially massive FISA abuse. Will take forever, has no prosecutorial power and already late with reports on Comey etc. Isn’t the I.G. an Obama guy? Why not use Justice Department lawyers? DISGRACEFUL!”
That last word is just remarkable.
As an old Justice reporter, let me pose this question:
How credible would it be if Sessions, a big Senate supporter and surrogate of the Trump campaign, who’s recused himself from the Russia probe, was overseeing an investigation of how the Obama DOJ handled a surveillance request against a Trump adviser who had contacts with Russia?
That’s why you have an independent inspector general. And that job is generally occupied by career prosecutors, like Michael Horowitz, who has worked in both Republican and Democratic administrations.
Sessions was firm but restrained in a statement, saying, “As long as I am attorney general, I will continue to discharge my duties with integrity and honor, and this department will continue to do its work in a fair and impartial manner according to the law and the Constitution.”
Trump has privately bashed and tweet-trashed Sessions before, most notably when he was angry that Sessions had recused himself from the investigation now run by Robert Mueller. Things reached the point that Sessions handed in his resignation letter, which the president refused to accept.
Just last week came this presidential tweet:
“Question: If all of the Russian meddling took place during the Obama Administration, right up to January 20th, why aren’t they the subject of the investigation?” Trump tweeted. “Why didn’t Obama do something about the meddling? Why aren’t Dem crimes under investigation? Ask Jeff Sessions!”
Fox’s Brit Hume said of the latest tweet that “this is Trump at his worst. He is asking that the DOJ investigate itself. The inspector general, who has his own staff of lawyers and investigators, at least enjoys a measure of independence from the department. Trump still wants the AG to act his political goalie.”
On the other side, Jerry Falwell Jr. tweeted that Sessions “must be part of the Bush/Romney/McCain Republican Establishment. He probably supported @realDonaldTrump early in campaign to hide who he really is. Or he could just be a coward.”
Is Trump trying to embarrass Sessions into quitting? He’s not a big fan of Rod Rosenstein, who would become acting AG, and the No. 3, Rachel Brand, recently quit. The battle for the Senate to confirm a new DOJ chief would be a drawn-out spectacle.
For the moment, the president has left his attorney general little choice but to defend his department.
What LGBTQ advocates want from Biden’s first 100 days
Devyn Box, 36, a social worker in Dallas, avoids going places in Texas where IDs have to be shown, because Box’s lists their sex assigned at birth rather than their nonbinary gender.
Nineteen states across the U.S. allow nonbinary residents to use an “X” mark for gender on state IDs, like driver’s licenses, though Texas is not one of them. Box, who uses “they” and “them” pronouns, said a federal policy that would allow them and other individuals who identify as neither exclusively male nor female to receive an accurate ID would make a huge difference in their daily quality of life.
“On my mortgage, I had to put the wrong gender, because they wouldn’t let me select my actual gender,” Box told NBC News. “I’ve had situations where people are going on what’s on my ID, and so then I have to basically out myself to them if I want for them to speak to me respectfully, which can be unsafe, and it’s also just uncomfortable and exhausting having to continuously educate and advocate for myself.”
In Joe Biden’s plan to “advance LGBTQ+ equality in America and around the world,” which is on his campaign website, the president-elect said he “believes every transgender or non-binary person should have the option of changing their gender marker to ‘M,’ ‘F,’ or ‘X’ on government identifications, passports, and other documentation.” As a result, he vowed to support state and federal efforts that permit trans people to have IDs that accurately reflect their gender identity.
Box said they hope the Biden administration will push for a federal rule in its first 100 days, because they don’t plan to move out of Texas anytime soon, and they don’t expect the state to pass its own legislation. Until then, Box said they will continue to feel unsafe and experience hostility from people while explaining their identity.
“I don’t want to make it a big deal, like I just want to exist and not have to give this any thought,” Box said. “I just feel like if I had an ID that matched who I am, that I could possibly cut down on the number of times that I have to experience that. But it’s just kind of unavoidable everywhere I go.”
Last March, during the Democratic presidential primary race, Biden released an ambitious plan to advance LGBTQ rights, but at the time it was unclear what he would realistically be able to accomplish if elected with a Republican-controlled Senate. But now that Democrats will narrowly control Congress and the White House for the first time since 2011, many of Biden’s LGBTQ proposals appear much more achievable.
LGBTQ people and advocates are gearing up to hold Biden to his promises in the first 100 days of his presidency. Some, like Box, want to see federal ID legislation, which the American Civil Liberties Union is pushing for Biden to institute via an executive order. Others want him to immediately undo the ban on transgender people serving in the military and a variety of other Trump administration policies that rolled back protections for LGBTQ people. Advocates would also like to see Biden pass federal discrimination protections, among other legislation.
The Equality Act
In May 2019, the Democrat-controlled House passed the Equality Act, a sweeping bill that would grant LGBTQ people federal protections from discrimination in employment, housing, credit, education, public space, public funding and jury service. The legislation, however, was never given a vote in the Republican-led Senate.
“With Mitch McConnell in charge of the Senate, there was no chance we would ever get a vote on any of our stuff,” Mara Keisling, executive director of the National Center for Trans Equality, said of pro-LGBTQ legislation.
With McConnell, R-Ky., in a minority leader role, the bill faces fewer barriers.
“The opportunity that we have to pass the Equality Act is better now than it’s ever been before,” said Alphonso David, president of the Human Rights Campaign, the country’s largest LGBTQ advocacy group. “This should be a part of our civil rights laws.”
Addressing a four-year ‘onslaught of attacks’
Advocates also expect Biden to deliver on his promises of immediately undoing Trump policies that targeted LGBTQ people with executive orders or new guidelines.
“The past four years has resulted in an onslaught of attacks against the LGBTQ community,” David said, citing as examples the administration’s push to allow women’s homeless shelters to turn away transgender women and health care providers to refuse service to LGBTQ people during a pandemic.
Neither of those policies are currently in effect. The Department of Housing and Urban Development is scheduled to issue the final version of the policy for homeless shelters in April. Last August, a federal judge blocked the Department of Health and Human Services from removing nondiscrimination protections for LGBTQ people in health care. The administration finalized another rule on Jan. 12 that would allow social service providers to discriminate against LGBTQ people, and it’s scheduled to take effect Feb. 11.
“I think we will see a reversal of the illegal and incompetent and dangerous trans military ban,” Keisling said. “I bet you that turns out to be one of the first things we see.”
Just a week before Biden’s inauguration, the Department of Health and Human Services issued a rule allowing taxpayer-funded social services organizations, like adoption agencies, to discriminate based on LGBTQ status.
Nancy Nyman, who is a foster parent with her wife in Los Angeles, said she hopes Biden will act immediately to “recognize the importance of same-sex couples and families in the foster care system.”
“There is definitely always a need for more families in foster care, and to enable organizations to discriminate against same sex couples or LGBTQ couples in the foster care system just seems outrageous to us,” she said. “This kind of discrimination, it cuts deep, because it cuts parents who are very well equipped to help, and to help solve a really big problem in our country.”
Some of the “attacks” on LGBTQ people over the last four years have been more subtle, according to David. For instance, the Trump administration removed references to LGBTQ people from federal agency websites.
“All of these steps that have been taken by the Trump administration were really focused on effectively erasing LGBTQ people, trying to suggest that LGBTQ people don’t exist,” David said.
The administration has also rolled out policies that disproportionately affect LGBTQ people of color, like the travel restriction focused on Muslim-majority countries, among other immigration policies, according to Kamal Fizazi, 47, a lawyer who lives in New York City. Fizazi said immigration and criminal justice are two issues that matter most to them as a queer Muslim.
“There are some people who live in Muslim-majority countries that need to get out of those societies because they’re facing some persecution, and the U.S. used to be a safe harbor,” Fizazi said. “At the same time, the idea that the U.S. is a safe harbor is increasingly open to question. It feels increasingly unsafe here for some people.”
There are currently around 70 countries around the world that criminalize homosexuality and at least nine that have laws criminalizing certain types of gender expression, which are aimed at transgender and gender-nonconforming people, according to Human Rights Watch. Most of them are in Africa, the Middle East and Southeast Asia.
Fizazi also said they would like to see Biden enforce and expand Deferred Action for Childhood Arrivals, a program for undocumented young people who came to the United States as children.
Many of the Trump administration policies that LGBTQ advocates would like to see reversed by the incoming Biden administration could be undone without congressional action in the first 100 days, although rules issued by the Department of Health and Human Services will take longer to address as they have to follow a longer administrative process that includes a public comment period.
Sending a new message
While LGBTQ advocates want Biden to move swiftly to reverse a number of Trump-era policies, they would want his administration to implement proactive, pro-LGBTQ policy. In addition to federal ID legislation, a number of advocates would like to see the Biden team issue guidance to federal agencies regarding implementation of the Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia, which granted LGBTQ people protections from employment discrimination.
While the Bostock ruling specifically addressed Title VII of the Civil Rights Act of 1964, which deals with workplace discrimination, David advocated for the decision’s central finding — that sex discrimination includes discrimination on the basis of sexual orientation and gender identity — to be applied to other federal discrimination protections.
“We have many federal statutes not only in the area of employment, where LGBTQ people could be protected but have not been because the administration has not implemented the Bostock decision,” David said.
Much of what the administration can do immediately, Keisling said, is send LGBTQ people a different message than the one they’ve received over the last four years. She said that after the Trump administration rescinded Obama-era guidance meant to protect trans students in schools, calls to the Trans Lifeline, a crisis hotline run by and for trans people, increased.
“What it does to trans kids to know that the president of the United States is coming after them over and over again, what it does to our service members, who one month they’re told, ‘We welcome you if you’re qualified, you can serve,’ and in the next month, the commander in chief is just whimsically tweeting that they can’t serve anymore — there’s big psychic damage to that,” Keisling said. “People are going to feel better not being attacked.”
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Hill probes, Trump’s recent actions test Biden’s approach to investigations
WILMINGTON, Del. — The Jan 6. Capitol riot and the pending Democratic control of both the House and the Senate are combining to test President-elect Joe Biden’s desire to avoid having investigations of his predecessor overshadow the start of his administration, according to multiple people familiar with the transition team’s discussions.
Some of President Donald Trump’s actions during his final weeks in office, including presidential pardons, could also influence the Biden administration’s approach to investigations that risk further dividing the country.
“It’s a delicate balance, and I don’t think that there is a full and complete answer to that question right now because no one knows the full and complete set of facts,” said former Sen. Doug Jones, D-Ala., Biden’s longtime friend who worked with him four decades ago as a staffer on the Senate Judiciary Committee. “I just don’t think you can say now, ‘Damn the torpedoes, full steam ahead with all these investigations.’ But at the same time, I don’t think you can also say, ‘let’s let the president go to Mar-a-Lago.”
Biden aides had previously telegraphed the president-elect’s desire not to see his time in office consumed by Trump-related investigations. But that was before the violent attack on the Capitol and the second impeachment that followed.
And when Biden announced his team to lead the Department of Justice on Jan. 7, he also offered one of his most stinging rebukes of his predecessor.
“The past four years, we have had a president who has made his contempt for our democracy, our Constitution, the rule of law, clear in everything he has done,” Biden said.
But, in the same moment, he sidestepped again one of the most fraught questions his administration will face starting Wednesday: how to answer growing calls to hold Trump or his administration to account for any wrongdoing.
In choosing Merrick Garland, a former Justice Department official who has spent the better part of his career as a federal judge, Biden aides say the president-elect was making clear his view that his Justice Department would chart its own course, free of political interference. Biden introduced Garland earlier this month as “a man of impeccable integrity” and “one of the most respected jurists of our time.”
“He said he wanted an independent attorney general. Well, it’s very difficult to be independent if you were any kind of player in a political environment,” one Justice Department veteran said. “Really, only a judge who was hived off from politics can be completely independent.”
In one of several executive orders Biden is expected to issue this week, he will make clear that political appointees in the executive branch must never exert influence over any investigations, a transition official told NBC News.
Biden has repeatedly emphasized he would not give any direction to the attorney general about what matters to investigate — or not. The attorney general is expected to be personally read in on every investigation that involves Trump or his relatives or associates, according to two people familiar with the discussions.
That means preserving a firewall between Biden’s White House and the department. The Biden team is concerned about leaks about any federal investigations and is determined to keep them, as one official quipped, in a “black box.”
Trump’s handling of pardons is an aspect of his presidency that’s become more likely in recent days to receive scrutiny after he leaves office, one person familiar with the discussions said.
And even as the Justice Department charts its own course, the Biden White House can play a key role in advancing a myriad of long-bottled up congressional investigations into the Trump administration.
Congressional Democrats are already planning to resubmit their requests for documents and information on a host of issues — particularly Senate Democrats who will regain the majority Wednesday.
But one transition official expressed concern that unleashing a flood of subpoenas in a way could allow Republicans to argue they are simply just trying to find something to show wrongdoing by the Trump administration. It also could distract from governing and advancing Biden’s agenda, the official said. “They’re going to have to coordinate,” the official said of congressional Democrats. “If you go after everything, you look like you’re piling on.”
A top investigator for the soon-to-be Senate majority leader, Chuck Schumer, D-N.Y., is expected to move to a White House role that could help streamline those requests — and ensure greater cooperation from Cabinet agencies in particular to comply with them.
Sen. Sheldon Whitehouse, D-R.I., who is in line to be chairman of the Judiciary Subcommittee on Crime and Terrorism and previously served as Rhode Island’s attorney general, said a first test of the Biden administration will be ending the “blockade of information” from Capitol Hill.
“The Biden Cabinet should be under very firm instructions to rapidly and honestly answer questions from Congress with a priority on the pent-up questions from Democrats in Congress that were deliberately ignored by Trump officials with the full support and connivance of the White House,” he said. “It was clearly policy to refuse to answer questions and to ignore requests. And that policy now needs to be reversed.”
Whitehouse, though, suggested that the Justice Department should consider creating an independent, or at least bipartisan panel of distinguished agency veterans or former judges to help shoulder the burden of its Trump-related investigations.
“You can have a cleanup effort that runs beside the regular operations of the department,” he said, “so there’s really not a conflict between going forward and understanding the damage that was done.”
Jamie Gorelick, who served as deputy attorney general in the Clinton administration, said that taking any such probes outside a regular department process would be a mistake.
“The Department of Justice has plenty of independent and fair-minded people in it,” the official said. “I think it is distorting to the system of justice to take it out of the normal process.”
“I have great faith in the career people at the Department of Justice to be able to do those cases and I don’t see that a special counsel is necessary because there’s really no conflict with the administration,” he said. “If there are criminal acts, they need to be prosecuted.”
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