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The media face major challenges in the age of Trump when they are labeled the “enemy of the people” and their work product is condemned as “fake news.” In the face of such attacks, it’s perhaps understandable that many journalists respond in kind. However, public confidence in the media has been on the decline for years, well before Trump came on the scene. If journalists want to regain their credibility, they need to move away from their fixation on Trump and take a hard look in the mirror. There are many root causes for poor perceptions of the media that have nothing to do with Trump’s bombast.

Self-absorption. While the media perform a vital service in our society, they tend to focus too much on themselves and exaggerate their own importance. Grandstanding reporters like CNN’s Jim Acosta draw media coverage but probably turn off most of the public. The recent organized campaign of anti-Trump editorials came across as overly defensive in bemoaning the victimization of journalists. At the same time, the media seem reluctant to assume responsibility when misreporting occurs as it inevitably does. Prominent retractions and corrections are rare. Also, several major newspapers weakened accountability by abolishing their in-house “ombudsmen.”

Over-reliance on anonymous sources. National political coverage today features too little original fact-gathering and too much regurgitation of leaks from anonymous sources. This incestuous process serves the interests of leakers pushing their own agendas, often through actions that are unethical or even criminal. Reporters also benefit since they invest little effort beyond cultivating their sources. However, it doesn’t serve the public, who are left with no way of assessing the credibility of the reports.

A striking example is CNN’s recent “bombshell” story that former Trump attorney Michael Cohen would attest to Trump’s prior knowledge of his son’s infamous Trump Tower meeting. (More on this below.) The story was quickly parroted by other media outlets but now has been largely debunked. Meanwhile, CNN still stands by its story. This episode violates many journalistic ethical standards, including the following:

• Take responsibility for the accuracy of work.
• Verify information before releasing it.
• Use original sources whenever possible.
• Identify sources clearly to give the public as much information as possible to judge the reliability and motivations of sources.
• Consider sources’ motives before promising anonymity. Reserve anonymity for sources who may face danger, retribution or other harm and have information that cannot be obtained elsewhere. Explain why anonymity was granted.
• Acknowledge mistakes and correct them promptly and prominently.

Unfortunately, much reporting today violates one or more of these standards although less dramatically than the CNN episode.

Insularity, superficiality, and groupthink. Much journalism today lacks context, critical analysis and insight. These shortcomings recur across the ideological spectrum and probably stem more from intellectual laziness than bias. A prime example, and the greatest single hit to media credibility in recent history, was their almost universal cluelessness over the 2016 presidential election. In the immediate aftermath of the election, most media types blamed poor polling. However, based on additional analysis, Nate Silver at FiveThirtyEight attributed the failure to–

“real shortcomings in how American politics are covered, including pervasive groupthink among media elites, an unhealthy obsession with the insider’s view of politics, a lack of analytical rigor, a failure to appreciate uncertainty, a sluggishness to self-correct when new evidence contradicts pre-existing beliefs, and a narrow viewpoint that lacks perspective from the longer arc of American history.”

A study published in the Columbia Journalism Review sounded similar themes, concluding that “fixing the information ecosystem is at least as much about improving the real news as it about stopping the fake stuff.”

There is little evidence of lessons learned from the 2016 debacle. Most media outlets still appear to  filter what and how they report through narrow paradigms and serve largely as echo chambers for those perspectives. Similar themes are repackaged day after day in news stories and opinion pieces. For example, much of the media have flogged the theme of possible Trump complicity in Russian 2016 election interference ever since the election despite the absence of any supporting evidence to date.

So wedded are they to the collusion narrative that they cite as confirmation facts that imply the opposite. A recurring example is the Trump Tower meeting in which Russians offered to provide “dirt” on Clinton but actually came to lobby on another issue. It defies common sense that this farcical bait-and-switch meeting would have occurred if there existed an actual collusive back channel between Trump forces and the Russians. (See here and here.)

Mixing fact and opinion. The line between factual reporting and editorializing is increasingly blurred. One troublesome example is “fact-checking.” A recent study found that almost 25 percent of the Washington Post’s fact-check columns over an extended period addressed opinions rather than statements of fact. The Post’s fact-checkers have come in for criticism even when they assess facts. In  one case they distorted and then assigned their worst rating of four “Pinocchios” to a statement by Trump that was factually accurate and straightforward. Considering that Trump spews falsehoods constantly, fact-checking him should be like shooting fish in a barrel. Yet fact-checkers undermine their credibility when they overreach like this.

Absence of engagement and analysis. There is plenty of ideologically tilted reporting and punditry to choose from; it’s easy to find content that suits every taste. However, these contrasting narratives are like ships passing in the night. What’s missing is substantive analysis that engages with and meaningfully explores competing viewpoints. The only media outlet I can think of that does this consistently is PBS. Sadly, the public now may be so polarized that there is no longer a commercially viable market for the kind of objective, in-depth coverage that programs such as the PBS News Hour provide.

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Surely the Trump era presents a critical need for objective, substantive, and credible journalism. However, much of our media descends to Trump’s level rather than rising to the challenges he poses. Unfortunately, journalistic excesses play into Trump’s hands by diverting attention from his actions, providing fodder for his supporters, and giving pause to those who are skeptical of him. This will only change if journalists get a grip, step up their game, and reform their practices.

Supreme Court confirmation battles of late bring out the worst in whichever political party is playing defense. The process becomes more debased with each succeeding nomination. Continuing this sad trend, early signs indicate that the Kavanaugh nomination could be the ugliest yet. Kavanaugh is obviously well qualified by intellect, experience, and judicial temperament. While a solid conservative, he is clearly within the legal mainstream and his positions frequently have been adopted by the Supreme Court. It also appears, at least as of now, that he presents no ethical concerns. The only character flaw identified thus far is the scandalous fact, breathlessly reported by the Washington Post’s investigative staff, that he once “piled up credit card debt” to buy baseball tickets for himself and his friends and to finance home improvements. (Apparently the debt was paid off.)

Nevertheless, almost all Democrats are poised to vote against Kavanaugh even before the confirmation process gets into full swing. They are led by Chuck Schumer, who vows to “oppose him with everything I’ve got.” The Post reports that Schumer joined all of the Democrats on the Senate Judiciary Committee outside the Supreme Court on the day following the nomination “to deliver a direct appeal to Americans to rise up in opposition to Judge Kavanaugh’s nomination.” Schumer and most Democrats are refusing even to meet with Kavanaugh until a deal is reached on their demand for a massive trove of documents Kavanaugh processed during his White House service, many of which seem irrelevant to his confirmation.

Hyperbolic rhetoric and distortions of Kavanaugh’s record are flooding the media. (See, for example, here and here.) The most extreme instance of this (so far) is a petition  opposing Kavanaugh that describes him as “an intellectually and morally bankrupt ideologue” and—wait for it–a threat to human life. The petition concludes with an ominous warning that “people will die if he is confirmed.” This petition was not produced by the Onion, late night TV comics, or grandstanding Hollywood lefties. Rather, it comes from alumni and faculty of Yale Law School and other branches of that university who are, presumably, otherwise rational. Republican Senator Ben Sasse aptly observed on the day after the nomination: “We’re less than 24 hours into this, and folks are already declaring that if you can’t see that Brett Kavanaugh is a cross between Lex Luthor and Darth Vader, then you apparently aren’t paying enough attention.”

With the ink barely dry on the nomination papers, we’ve already descended into “Kavanaugh Derangement Syndrome” territory. Unfortunately, it’s likely to get worse as the confirmation process moves forward.

 

Sometimes it’s hard to figure out who’s worse: Trump or his critics. Trump clearly hit a new low with his disgraceful Helsinki press conference in which he took the word of Putin over U.S. intelligence agencies concerning Russian interference in the 2016 election. His performance was rightly greeted with almost universal scorn across the political spectrum. (Faced with overwhelming criticism, Trump now claims, no doubt disingenuously, that he “misspoke.”) Repeating a familiar pattern, however, some Trump critics couldn’t resist going beyond the merits and descending to his level with their own outrageous hyperbole.

The most egregious excess was the accusation that Trump’s statements at the press conference somehow amounted to “treason.” One might expect this kind of nonsense from late night TV comics and hopelessly biased politicians and pundits. However, respected columnist Thomas Friedman joined in as did former CIA Director John Brennan. Brennan’s version takes the cake. He tweeted:

“Donald Trump’s press conference performance in Helsinki rises to & exceeds the threshold of ‘high crimes & misdemeanors.’ It was nothing short of treasonous. Not only were Trump’s comments imbecilic, he is wholly in the pocket of Putin. Republican Patriots: Where are you???”

These charges are baseless. Article III, section 3 of the Constitution states that “[t]reason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” Treason is the only crime specifically defined in the Constitution. It is well established that the definition can be met only when the United States is engaged in declared or open warfare with such “enemies.” One expert observed that the framers saw the need to define  treason so narrowly and to place it in the Constitution in order to ensure that this concept was not weaponized for use against political opponents.

Of course, that is exactly what Trump’s critics are doing here. Such empty rhetorical excess plays into Trump’s hands by undermining the credibility of those who voice it—particularly Brennan, a central player in the intelligence community’s assessment of Russian interference. It also serves to further politicize this already thoroughly politicized subject. The threat of continuing efforts by Russia to undermine the integrity of our elections is undoubtedly real, and it could become critical if the Russians (or other bad actors) are able to exploit our cyber vulnerabilities and penetrate state election machinery. Continuing to treat this subject as a political football and using it to bait Trump impedes the vital mission of investigating these threats thoroughly and objectively so we can adopt the necessary countermeasures.

 

When it comes to Supreme Court confirmations, the hypocrisy by both political parties is as transparent as it is breathtaking. Recall the (legitimate) outrage voiced by Democrats not long ago when Republican Leader McConnell refused to accord the slightest good faith consideration to former President Obama’s nomination of Merrick Garland, a highly qualified candidate for the Court. Fast forward to President Trump’s nomination yesterday of Brett Kavanaugh, another highly qualified candidate. As soon as the Kavanaugh nomination was announced and before the confirmation process began, Senate Democratic Leader Chuck Schumer vowed to “oppose him with everything I’ve got.”  A number of other Democratic Senators echoed this pledge. At least one Democratic Senator announced his refusal to consider Trump’s nominee even before the nomination was announced. The substantive difference between McConnell’s stance on Garland and the Democrats’ stance on Kavanaugh is?

The recent report by the Justice Department Inspector General (IG) on the FBI’s Hillary Clinton email investigation is being sliced and diced in many  directions by a host of pundits and political partisans. Largely overlooked in all the spin is what in my view constitutes the most troublesome aspect of the Clinton investigation addressed in the report: The nearly one-month gap between when the FBI discovered a large trove of Clinton-related emails on Anthony Weiner’s laptop and when they started to examine these emails.

Two basic points emerge from the IG report’s treatment of this subject. First, the report’s findings and conclusions make a compelling case that the delay in examining the Weiner emails was indeed motivated by political bias or other improper considerations. Specifically:

• The report identifies Peter Strzok as the FBI official directly responsible for following up on the Weiner emails.
• The report presents extensive evidence of Strzok’s bias against Trump, including his explicitly stated determination to prevent Trump’s election.
• The report finds that within days after the discovery of the Clinton-related emails on Weiner’s laptop in late September 2016, FBI officials in Washington understood the extent and potential significance of these emails and had all the information needed to obtain a search warrant to examine them.
• The report demonstrates that a conscious choice was made not to pursue the Weiner emails until after the presidential election. FBI officials, including Strzok, conceded this choice and offered various explanations for it.
• The report concludes that none of the proffered explanations was persuasive. In particular, it states “we do not have confidence that Strzok’s decision” in this regard “was free from bias.”

Second, the delay in examining the Weiner emails triggered a series of events that may well have changed the election outcome. Putting off the Weiner emails until after the election became untenable in late October when the FBI’s New York office pushed back against the delay and, in effect, forced Washington officials to act. This, of course, caused two weeks of political frenzy in the waning days of the presidential campaign, starting with FBI Director Comey’s infamous October 28 letter notifying Congress that the Clinton investigation was being reopened. Not until two days before the election did Comey send a second letter announcing that the Weiner emails did not affect the Clinton case after all.

Many partisans as well as some independent observers are convinced that Comey’s October 28 letter tilted the election to Trump. We may never know for sure whether Strzok delayed the examination of Weiner’s laptop in order to give Clinton a boost over Trump. However, whether or not this was his plan, the delay certainly had the opposite effect. So much so that, in a remarkable twist of irony, Trump may have Strzok to thank for his election.

Background of the IG review. The IG review focused on three major phases of the Clinton email investigation: the investigative steps leading up to the decision to decline prosecution of Clinton, the declination decision itself, and the reopening of the investigation after Clinton-related emails were found on Weiner’s laptop. For each of these phases, the IG considered whether investigative or prosecutorial decisions were based on political bias or other improper considerations.

The report has been described as concluding that none of the decisions resulted from political bias. However, this is not what it says. In examining the question of bias, the IG applied two distinct tests: First, was there “documentary or testimonial evidence that improper considerations, including political bias, directly affected specific decisions”? Second, were there plausible merit-based justifications for the decisions or were the stated justifications merely “pretextual”? (iii) (Parentheticals reference page numbers in the report)  With regard to the latter, the report observed:

“The question we considered was not whether a particular investigative decision was the ideal choice or one that could have been handled more effectively, but whether the circumstances surrounding the decision indicated that it was based on considerations other than the merits of the investigation. If the choice made by the investigative team was among two or more reasonable alternatives, we did not find that it was improper even if we believed that an alternative decision would have been more effective.” (ii-iii)

The IG found no “documentary or testimonial evidence” that any decision was “directly affected” by political bias or other improper considerations. This test sets an extremely high bar that essentially nothing short of a confession would meet. Thus, the absence of such “smoking gun” evidence is unsurprising (although the Strzok evidence comes very close). On the second and more realistic test, the IG concluded that all decisions it evaluated up to and including the declination were reasonably justified on the merits and thus appropriate exercises of discretion. As discussed below, however, the IG concluded that the FBI’s handling of the Clinton-related emails on Weiner’s laptop was a very different story.

The Weiner emails. In September 2016, after the Clinton investigation closed, the FBI’s New York field office began investigating Weiner, the husband of top Clinton aide Huma Abedin, for an improper online relationship with a minor. Pursuant to a search warrant, the New York agents seized Weiner’s laptop and other electronic devices on September 26. The New York FBI case agent charged with examining these devices discovered almost immediately that the laptop contained a huge trove of Clinton-related emails. Recognizing its potential impact on the Clinton investigation, he promptly notified his superiors of this discovery. Just two days later, on September 28, New York agents briefed the Washington FBI on the existence of the email trove via a video teleconference. According to the IG report, Deputy FBI Director Andrew McCabe led the teleconference and about 39 senior FBI executives likely participated. (vii) McCabe told the IG that he viewed the discovery of the emails as a “big deal” (281) and on the same day he instructed Strzok to have his team contact the New York office about them. (279)

Strzok was the leader of the FBI’s Clinton email investigative team. (43) According to McCabe, he also was directly responsible for following up on the Weiner laptop. (310) Strzok and Lisa Page, his paramour and another senior FBI official heavily involved in the Clinton investigation, are now widely known for their anti-Trump texting. The most notorious example, first revealed in the IG report, is Strzok’s assurance to Page that “We’ll stop” Trump from ever becoming President. (xii)

The logical next step at this point was for the Washington FBI agents to obtain their own search warrant to access and review the Clinton-related emails on Weiner’s laptop. (The New York agents investigating Weiner had neither the legal right under their search warrant nor the background to review the Clinton emails.) Remarkably, however, no effort was made to get the search warrant for almost a month. The IG report states that several discussions about the Weiner emails occurred on October 3 and 4 but:

“[A]fter October 4, we found no evidence that anyone associated with the [Clinton] investigation, including the entire leadership team at FBI headquarters, took any action on the Weiner laptop issue until the week of October 24, and then they did so only after the Weiner case agent expressed concerns . . . prompting [New York officials] to contact the Office of the Deputy Attorney General (ODAG) on October 21 to raise concerns about the lack of action.”

Specifically, the Weiner case agent feared that the delay in dealing with the emails he had discovered would eventually become known and he would be “scapegoated.” (305) In this regard, the New York officials cautioned that the case agent “was stressed out and might act out in some way.” (304)

The IG report rather dryly observes that this warning from New York generated “renewed interest” on the part of the Washington FBI in the Weiner email issue. (311) As they say, the rest is history. Within the next two weeks Washington finally got its search warrant, Comey sent his October 28 letter, FBI agents worked “around the clock” to review the emails, and on November 6—just two days before the election–Comey notified Congress that the emails did not change the FBI’s earlier conclusions regarding the Clinton case.

As noted previously, Comey’s October 28 letter may well have changed the election outcome. The fallout from the letter certainly dealt a tremendous blow to the FBI’s credibility and stature as a nonpartisan organization. Had the FBI promptly accessed and evaluated the Weiner emails, these consequences very likely would have been avoided. To be sure, Comey might have felt obliged to notify Congress even if this effort had started in early October. However, the process would have played out weeks rather than days ahead of the election, thereby giving the public considerably more time to process the FBI’s eventual conclusion that the Weiner emails did not affect its Clinton findings.

Supposed explanations for the delay. The IG report didn’t uncover a formal, documented decision to delay action on the Weiner laptop. However, it’s clear from the report that Strzok, perhaps with the involvement of other FBI officials, made a conscious and informed choice to hold off on the Weiner laptop until after the election. Strzok said as much to the IG. (See below) There is no chance that the matter simply fell through the cracks.

FBI officials offered the IG a litany of explanations for their failure to take prompt action on the Clinton-related Weiner emails. The IG report analyzed the explanations and found every one of them to be “unpersuasive.” This characterization is charitable given the report’s conclusions that the proffered explanations ranged from the “illogical” (326) to the following outright falsehood:

“Several FBI witnesses told us that the reason the FBI decided to seek a search warrant on October 27 was because the [Clinton] team learned important new information about the contents of the Weiner laptop at around that time. We concluded, however, that this decision resulted not from the discovery of dramatic new information about the Weiner laptop, but rather as a result of inquiries from the Weiner case agent and prosecutors from the U.S. Attorney’s Office for SDNY on October 21.” (330)

Indeed, the IG found that by no later than September 29, the Washington FBI had learned virtually every fact that it cited in late October as justification for obtaining the search warrant. (324)

Strzok suggested that he didn’t expect the emails to be significant and that they were just a lead to be pursued at some point, “January, February 2017, whenever it gets done.” (298) He considered the perceived need to pursue the emails more urgently to be “misplaced” since “[w]e did not know what was there.” (326)

Strzok (and others) also said that they considered the Russia investigation a higher priority than the Weiner emails. (328-329) The IG found, however, that the FBI had ample resources to assign to the Weiner emails. The report added with specific reference to Strzok’s role:

“In assessing the decision to prioritize the Russia investigation over following up on the [Clinton]-related investigative lead discovered on the Weiner laptop, we were particularly concerned about text messages sent by Strzok and Page that potentially indicated or created the appearance that investigative decisions they made were impacted by bias or improper considerations. . . . Under these circumstances, we do not have confidence that Strzok’s decision to prioritize the Russia investigation over following up on the [Clinton]-related investigative lead discovered on the Weiner laptop was free from bias.” (p. ix)

The IG was right to be particularly skeptical of Strzok’s stated justification. His explanation that the Weiner emails should not be given priority attention because the FBI “did not know what was there” is circular and implausible on its face. Obviously, the way to find out “what was there” was to take a look. Strzok could easily have obtained a search warrant and sent a few agents “to get eyes on this thing and figure out what we have,” as McCabe put it. (281) His decision to forego even this minimal effort clearly demonstrates willful blindness, reflecting a desire not to know what was in the emails.

The bogus nature of this explanation becomes even clearer when one considers the background at that time. Strzok’s superiors in the FBI immediately recognized the discovery of the Weiner emails as a “big deal” and expected him to take action. The FBI leadership treated it as an even bigger deal when they finally took action in late October. It must have been obvious to Strzok as well that if there was any chance that the Weiner emails contained anything new, they could potentially impact the disposition of the Clinton investigation as well as the upcoming presidential election.

Conclusions. The IG report stops short of flatly asserting that the FBI’s delay in dealing with the Weiner emails resulted from political bias or other improper considerations. However, the facts it presents virtually compel this conclusion under the IG’s own criteria. The report points to Strzok as the FBI official directly responsible for the delay, although certainly not the only one who could (or should) be accountable. It makes clear that the delay was no accident. It presents abundant evidence of Strzok’s political bias, including his willingness (indeed, his apparent determination) to “stop” Trump’s election. It then concludes that there was no legitimate reason for the delay—i.e., all the stated justifications were pretextual. Connecting these dots, the delay could only be attributable to political or other improper considerations.

Delaying the examination of the Weiner emails would have helped Clinton’s electoral chances had it run its course. As fate would have it, however, the FBI was forced to dramatically reverse course in the run-up to the election. One can speculate on whether the delay was motivated by political bias per se or perhaps some other inappropriate reason or reasons such as avoiding embarrassment to the FBI or currying favor from presumed incoming President Clinton. What can be said with certainty is that if delay on the Weiner emails was intended to help Clinton’s electoral chances or somehow protect the FBI, it backfired spectacularly and ultimately achieved precisely the opposite effect.

Many conservatives (see this op-ed, for example) criticize the tactics being used by the Marjory Stoneman Douglas High School students and other youths in their remarkable campaign for gun reform. These critics accuse the students of engaging in over-the-top rhetoric that demonizes gun rights advocates while offering no workable countermeasures to stem the carnage from guns that seems to be an all too common feature of American life. Gun control issues are complicated, the critics say, and call for reasoned, fact-based debate rather than demagoguery.

The latter point is certainly valid; effective measures to abate gun violence will only come through the good faith, fully informed and thoughtful efforts of many actors. However, for the NRA and its supporters to press this point is beyond hypocritical. They have spent decades doing everything within their considerable powers to prevent any rational, fact-based debate over gun control. They relentlessly attack even the most modest reform proposals as existential threats to Second Amendment rights. They have gone so far as to actively impede federal efforts to conduct research and even to develop and share background data relevant to guns. While they claim to support rigorous enforcement of existing gun control laws, they often work behind the scenes to subvert enforcement of those laws.

To the extent that the campaign by student activists currently elevates hyperbole over reasoned analysis, it simply takes a page directly from the NRA’s playbook. Unfortunately, this approach probably is the only way to focus attention sufficient to initiate substantive action on any controversial subject in today’s hyper-polarized environment. Hopefully, the students’ campaign will prove to be the catalyst so badly needed to generate real discussion and develop meaningful strategies to address our epidemic of gun violence. The tragedy at Stoneman Douglas already has prompted some “baby steps” in this direction but much more needs to be done.

As the attached article points out, an annual appropriation rider sought by the NRA and first enacted in the 1990’s greatly impedes federal research efforts aimed at developing strategies to reduce gun violence. Of all the sorry aspects of our ludicrous gun politics, this one takes the cake. Due to the rider’s restrictions, policymakers currently have little objective hard data to inform what strategies might or might not be effective, and consequently, they are left to consider often radically different approaches largely in a vacuum.

The appropriation rider has received little scrutiny over the years, probably surviving due in part to its obscurity. Surely the time has come to shine the light of day on it. In today’s climate, it’s hard to imagine how anyone (including a halfway savvy NRA representative) could argue with a straight face for its continuation. Reportedly, even the original congressional sponsor of the rider came to regret it. The issues surrounding the causes and prevention of gun violence are complex. In the absence of credible research findings, however, the so-called debate over these issues will continue to default to the mainly fact-free assertions, tendentious political rhetoric, and outright demagoguery of ideologues on all sides and their partisan allies.

If there is any “low hanging fruit” to target in terms of a meaningful bipartisan first step toward addressing gun violence, eliminating this absurd appropriation rider undoubtedly qualifies.

 

How the FBI handled the trove of Clinton-related emails it found on Anthony Weiner’s computer (apparently supplied by his former wife, Huma Abedin) created a monumental uproar on the eve of the 2016 presidential election. The Wall Street Journal and Washington Post now report that senior FBI officials, including Deputy Director McCabe, knew of these emails at least a month before then-Director James Comey notified Congress in the waning days of the election campaign that the Bureau was reopening its Clinton email investigation based on their discovery. Why on earth didn’t the FBI expeditiously analyze these newly-discovered emails during this 30-day period in order to determine whether they materially affected the Clinton investigation? Doing so would have avoided the fiasco that resulted when, within two weeks preceding the election, Comey first  informed Congress of the emails and then several days later said in effect “never mind.” (Once the damage was done by Comey’s initial submittal, the FBI was able to determine within just a few days of intense review that the Weiner emails were not significant.) Understandably, Comey’s actions drew intense scorn from both political sides as well as many objective sources. It’s not clear when during the 30-day period Comey became aware of the new emails.

The subject of this 30-day gap seems to be overshadowed for the moment by the virtual political war over the Nunes memo. However, the Justice Department’s inspector general is said to be focusing on this subject as part of his overall review of the FBI’s Clinton email investigation. There are hints in media reports that whatever McCabe did or didn’t do in relation to the Weiner emails was the real cause for his early departure from the Bureau. The inspector general’s report is expected to be completed within a few months. What it reveals may well prove to have greater and more lasting importance than the bruhaha over the Nunes memo.

The normally routine question of who takes over as acting head of a federal agency when the leadership position becomes vacant has turned into a major political and legal contest in the case of the Consumer Financial Protection Bureau (CFPB). The Dodd-Frank Act, which created the CFPB, establishes the position of CFPB Director as a Presidential appointee subject to Senate confirmation. The Act further  provides for a CFPB Deputy Director “who shall (A) be appointed by the Director; and (B) serve as acting Director in the absence or unavailability of the Director.” On November 24, the last day of his tenure, former CFPB Director Richard Cordray appointed his chief of staff, Leandra English, Deputy Director in order for her to become Acting Director upon his departure pursuant to the quoted Dodd-Frank provision. (Ms. English, who had occupied political positions in the Obama Administration, converted to her career position at CFPB shortly before President Trump took office.)

However, on the evening of November 24, President Trump announced that he was appointing Mick Mulvaney, currently Director of the Office of Management and Budget, as Acting Director of the CFPB pursuant to the Federal Vacancies Reform Act. The Vacancies Reform Act is a statute of broader applicability dealing with the assignment of acting officials to vacancies in executive branch positions, such as CFPB Director, that require Presidential appointment and Senate confirmation (known as “PAS” positions). Among other things, this statute authorizes the President to temporarily fill a vacant PAS position with someone already serving in another PAS position, such as Mulvaney.

At the time Cordray appointed English as Deputy Director he stated that he was positioning her to become Acting Director in order to “ensure an orderly succession for this independent agency,” to “minimize operational disruption,” and to “provide for a smooth transition.” The irony of this statement became apparent on Monday morning, November 27, when both Mulvaney and English reported to CFPB, each claiming to be the rightful Acting Director. English promptly sued Trump and Mulvaney seeking to oust Mulvaney and have herself declared the legitimate Acting Director. (She actually filed her lawsuit on Sunday, November 26.)

The judge assigned to the case denied English’s request for emergency relief but the lawsuit could drag on for some time if English persists. As long as it continues, one can expect great uncertainty to prevail both within CFPB and among those affected by its actions. The dispute also smacks of a well-orchestrated political circus. Mulvaney seems to have seized control at least as de facto Acting Director. However, the doughnuts he supplied for the staff are unlikely to alleviate their stress since his general contempt for the Bureau is well known. Meanwhile, several Democratic Senators posed for grandstanding photos with English and staged protests outside the Bureau’s offices. This sorry episode provides further evidence, if any is needed, of the hyper-partisanship, with its attendant chaos and dysfunction, that seems to define the federal government today.

The legal arguments focus primarily on the interplay between the Dodd-Frank Act and the Vacancies Reform Act: Is Dodd-Frank’s specific provision for the CFPB Deputy Director to become Acting Director the exclusive means of temporarily filling a vacancy in the Director position or does the more general Vacancies Reform Act authority remain available as another option, thereby enabling the President to make his own choice? The competing legal arguments, which debate at length the meaning of the language as well as the legislative and drafting histories of the two statutes, need not be rehashed here. For those interested, the following links lay out the respective statutory arguments in favor of Mulvaney and English.

The Mulvaney supporters appear to have the stronger case based on the statutory interpretation arguments alone. Even the CFPB’s general counsel concluded that Mulvaney is the rightful Acting Director. In any event, I’d submit that two broader considerations remove any doubt and thoroughly undercut the case for English.

First, accepting the argument that the Dodd-Frank provision is the exclusive vehicle for obtaining an Acting CFPB Director leads to an untenable result. By the logic of this argument, there could be no Acting Director at all if a Deputy Director was not in place when a vacancy arose. Under this entirely plausible scenario (English was not named Deputy Director until the day Cordray left), the CFPB’s work would grind to a halt until a new Director was formally nominated by the President and confirmed by the Senate. Congress could not have intended such a result.[1]

Second, this argument not only leads to a potentially absurd result but also one that is patently unconstitutional. Making appointments to executive agencies is a fundamental presidential function under the Constitution. The President’s appointment power is not absolute. In order to protect the Senate’s own constitutional prerogative of advice and consent, Congress may place some restrictions on the President’s ability to leave acting officials in vacant PAS positions. The time limits imposed by the Vacancies Reform Act reflect this. However, Congress surely cannot flatly preclude the President from making any temporary appointment to fill a vacancy in an executive agency PAS position. Yet this is the effect of the position advanced by English supporters and, indeed, their purpose as well. It’s abundantly clear that their primary goal is to prevent President Trump from assuming control over the CFPB through his own appointee(s) for as long as they possibly can. Thus, if Dodd-Frank was construed to preempt the President’s authority to appoint an acting head of CFPB, it would be unconstitutional.

Finally, I wonder whether English even has the requisite standing to maintain her suit. It’s at least questionable whether she can assert a legally enforceable right to the Acting Director position or that she suffers a legally cognizable injury if denied that position.

Eventually President Trump will succeed in putting a new CFPB Director in place. One can only hope that in the meantime English and her supporters will abandon their obstructionist efforts and allow the Bureau to go on with its business. Prolonging this dispute simply forestalls the inevitable, accomplishes nothing constructive, and feeds into the claims of its many critics that CFPB is an unconstitutional and out of control rogue agency.

[1] Perhaps English’s supporters would concede that the President could still exercise his constitutional authority to make a recess appointment somewhat sooner if the opportunity arose. However, this is hardly a satisfactory alternative.