Black Monday and the Head Fake Theory

Black Monday is what they’re calling the tenth day of the Trump Presidency--the day President Trump fired Sally Yates, the sitting Attorney General of the United States. 

That Yates had been fired, however, shouldn’t have been surprising—least of all to Yates, who probably assumed its inevitability. It was really quite predictable that she would have been fired for questioning the legality of Trump’s executive order.

And the language accounting for her dismissal might have been predictable as well. She was fired “for being weak on illegal immigration,” and for “betraying the Justice Department in refusing to sign a legal order designed to protect the citizens of the United States.”

Upon deeper examination, each of the above premises contain questionable elements—especially amongst them that Trump’s Muslim ban would further protect the citizens of the United States. (We’ll get to that in a moment). But still, it is certainly within a President’s right to fire a member of his cabinet when they are not carrying out their duties as he would wish. 

However, there seem several problems with this firing, the rationale behind it, and a darker, underlying narrative that may lie behind both. Each deserve to be reviewed in a greater perspective, that ultimately only time--unfolding as history-- can provide. 

 For those of us fumbling to catch hold of the deeper truth, yet lacking the 20/20 vision of history’s hindsight, what we initially have to work with is a few facts. Next we have our own biases, and a good deal of speculation—both of which can range from hopeful naïveté, to an alarmist paranoia. Since the truth may lie somewhere in between, let’s start with a fact. 

It is actually an acting Attorney General’s job to question a President’s executive orders when they contain elements whose legality is not certain, or in need of further review. And this aspect of the Yates firing actually has a somewhat surreal, factoid time-line--one that goes back to May of 2015. 

For this is when Yates appeared for questioning before members of the Senate as part of her confirmation process. Here, Alabama Senator Jeff Sessions—the very man who in a few days will likely become Trump’s Attorney General—is having an interchange with Yates. (Parenthetically, when Sessions, or an alternate is approved, this will be Trump’s third AG in a matter of days, a faster rate even than the 8 years it took Obama to go through 4 Secretaries of Defense. And if the rapidity of turnover on the part of Obama reflects his ambivalence relating to defense and the employment of power, then on the Trump part of the equation, might we already be seeing an ambiguity toward legality itself?).

Anyhow, and forgive the scorecard of the above digression—what Sessions is saying to Yates in her confirmation hearing in May of 2015 circles, and re-circles, around the very issue that will lead to her dismissal. He begins by asking her, “Do you think the Attorney General has a responsibility to say no?”

But before she can reply, Sessions answers his own question, while also warning Yates--warning her, in fact, of the very situation that would ultimately lead to her firing. For what Sessions tells Yates is: “You have to watch out…if people are asking you to do things which you just have to say no about…no to the President if he asks you to do something you feel is improper.”

Here, Sessions returns to the question again: “But if the views the President wants to execute are unlawful, should the Attorney General or the Deputy (Attorney General) say no?”

Yates responds to this question simply, and with a clarity totally congruent with how she in fact acted, when she encountered this very situation. “Senator, I believe the Attorney General or the Deputy Attorney General has to follow the law and the Constitution, and to give their independent legal advice to the President.” 

I will leave it to more knowledgeable legal minds than my own to argue the finer points of any law banning the members of any nation, or any religion, from entering our country. Though in a nation of immigrants, Trump’s ban does seem a tad un-American, if not more than a little xenophobic (which is to say, the fear of the Other, the foreigner, the stranger). And if the Statue of Liberty could emote, I’d imagine her weeping real tears… for “the huddled masses” seeking liberty… being turned away now… from the refuge of her shores. 

Since the presidential ban was enacted in the guise of protecting the security and safety of American citizens, what appeared next on the televised news shows of Black Monday included a plethora of security experts. And they were almost unanimous in telling us two things. 

The first thing was that the need for such a ban was totally un-necessary in the first place. Nearly each of the security experts told us that there’s already quite a thorough vetting process established--and that it’s working. And statistics from the Cato Institute, a conservative think tank, seem to bear this out.  

For the statistics reveal that from 1975 through 2015, not a single citizen from the seven Muslim-dominated countries named in the ban has ever killed a single American citizen on American soil. (We’ve had a higher probability of death from an errant snowball, or asphyxiation due to uncontrollable laughter, yet no executive orders banning snowballs, or prosecuting jokes have occurred--at least not yet).

The second thing upon which nearly all the security experts agreed, is that the President’s executive order is going to have the exact opposite impact than its expressed intent. For it will serve as a boon to Islamic extremists, while supporting the central narrative they’ve already been propagating. Namely, that the United States is engaged in a war against Islam. (And though the Trump administration tried to back-peddle a bit on this actually being a ban against Muslims per se, the truth is, that—is exactly how Trump framed it to his friend and advisor Rudolf Giuliani, in asking for his help in how to word such a thing, and bring it about.

But if such a thing was possibly illegal, secondly un-necessary for security, and thirdly likely to actually destabilize the security we currently have, we might have to look elsewhere for what the real game plan here might really be. And this brings us to Jake Fuentes’ Head Fake Theory. (See: https://medium.com/@jakefuentes/the-immigration-ban-is-a-headfake-and-were-falling-for-it-b8910e78f0c5#.ldlgrj4ye ). I’ll try to present it mostly in Fuentes’ own words, and leave it to the reader to decide upon the theory’s potential truth—since both I, and even Fuentes himself, are not yet entirely sure.

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Fuentes finds two possible narratives to explain the incredibly active first days of the Trump administration. The first narrative is simple: the administration is just doing what it said it would do, keeping its campaign promises while playing to its base. And it’s just that they’re not really good at “this whole government thing yet,” so implementation has appeared erratic, impulsive, and shaky.

The second narrative, however, is more sinister. Namely, that the administration is deliberately testing the limits of governmental checks and balances to set up a self-serving, and dangerous consolidation of power. And there are several elements in recent events that seem to support this second narrative.

And if the consolidation of power, along with over-riding the limits of traditional governmental checks and balances has really been the game-plan, then--Fuentes tells us-- here is the playbook:

1)  We launch a series of Executive Orders in the first week. Beforehand, we identify one that our opponents will complain loudly about and which will then dominate the news cycle. Immigration ban. Perfect.

2)  We craft the ban to be about 20% more extreme than we actually want it to be — say, let’s make the explicit decision to block green card holders of the defined countries from entering the US, rather than just visa holders. We create some confusion so that we can walk back from that part later, but let’s make sure that it’s enforced to begin with.

3)  We watch our opposition pour out into the streets protesting the extremes of our public measure, exactly as we intended. The protests dominate the news, but our base doesn’t watch CNN anyway. And if the ACLU will file motions to oppose the most extreme parts of our measure, that’s actually going to be useful too. We don’t actually care if we win, that’s why we made it more extreme than it needed to be. But in doing so, the lawsuit process will test the loyalty of those enforcing what we say. 

4) While the nation’s attention is on our extreme EO, slip a few more nuanced moves through. For example, let’s reconfigure the Nation Security Council so that it’s led by our inner circle. Or gut the State Department’s ability to resist more extreme moves. That will have massive benefits down the road — the NSC are the folks that authorize secret assassinations against enemies of the state, including American citizens. Almost nobody has time to analyze that move closely, and those that do can’t get coverage.

5) When the lawsuits filed by the ACLU inevitably succeed, stay silent. Don’t tell the DHS to abide by what the federal judge says, see what they do on their own. If they capitulate to the courts, we know our power with the DHS is limited and we need to staff it with more loyal people. But if they continue enforcing our EO until we tell them not to, we know that we can completely ignore the judicial branch later on and the DHS will have our back.

6) Once the DHS has made their move, walk back from the 20% we didn’t want in the first place. Let the green card holders in, and pretend that’s what we meant all along. The protestors and the ACLU, both clamoring to display their efficacy, jump on the moment to declare a huge victory. The crowds dissipate--they have to go back to work.

7) When the dust settles, we have 100% of the Executive Order we originally wanted, we’ve tested the loyalty of a department we’ll need later on, we’ve proven we can ignore an entire branch of government, and we’ve slipped in some subtle moves that will make the next test even easier.

“We’ve just tested the country’s willingness to capitulate to a fascist regime.”

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If the consolidation of power has been the true underlying narrative to Trump’s first days in office, how can we oppose it?  Here are Fuentes’ suggestions…

First, stop believing that protests alone do much good. Protestors, he tells us, get all kinds of feel good for standing up for what’s right. And even if they get some concessions, the fact that their anger has an outlet is useful to the other side. Do protest, but be very wary of going home feeling like you’ve done your job. 

Second, pay journalists to watch for the head fake. That’s their job. Become a paying subscriber to news outlets, then ask them to more deeply cover moves like the NSC shakeup. We can no longer breathlessly focus media attention on easy stories like the immigration ban. The real story is much more nuanced and boring — until it’s not.

Third, focus less on whether we agree with what a government is doing, and more on whether the system of checks and balances we’ve had in place is actually working. Though Trump’s immigration ban may be more viscerally upsetting, his other moves—such as removing a permanent military presence from the NSC (while retaining Steve Bannon as a central architect) are potentially far more dangerous. 

Fuentes hopes that none of the darker narrative he’s just outlined is actually true-- that we might merely have an administration with some execution problems, and that the better angels of our nature will prevail. “But with each passing day, the evidence tilts more in the other direction.”

If, as some already feel, that the evidence has already decisively tilted in favor of the darker narrative, then future historians are apt to look back on Sarah Yates as the true patriot here; and not as someone betraying the Justice Department. In fact, they are apt to look back upon her in a comparable way as they have Elliot Richardson—the former Attorney General who resigned from his post, rather than obey Nixon’s order that he fire special prosecutor Archibald Cox.

And in that case, history is apt to look as unfavorably at the President who fired Sarah Yates, as the one who fired Richardson. For the Watergate fiasco--and its cover-up during the Nixon years-- were dark days for our country.  And that darkness, or one much like it, seems to have descended again.

If there were lessons to learn from that dark period which might stand us in good stead today, perhaps we should listen to someone who suffered those dark, Watergate days at close hand--as intimately, personally, and professionally as anyone could. 

In the wake of Black Monday, here are the tweeted words, perhaps the prophetic words, of former Nixon counsel John Dean:

“The way the Trump presidency is beginning it is safe to say it will end in the calamity. It is almost a certainty. Even Republicans know this!”