Legal Precision and the Russia Investigation (Part 1)

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Robert Mueller’s investigation into Russian interference is continuing apace. The investigation has divided politicians and the citizenry at large. A popular objection to the investigation is advanced on legal grounds. Defenders of the president say there is no law against collusion. Trump supporters try to blunt the charge of collusion by saying the word collusion is an empty legal concept. Donald Trump often sends tweets that say there was no collusion. Jay Sekulow, Trump’s lawyer, said, “Collusion in and of itself, there’s no crime of collusion.” How can we make any headway in this debate with so many interlocutors?

This blog series is devoted to bringing clarity to the legal terms of the investigation.

The online version of Black’s Law Dictionary defines “collusion” as, “A deceitful agreement or compact between two or more persons, for the one party to bring an action against the other for some evil purpose, as to defraud a third party of his right….”

This definition is only partially helpful. The scope of Mueller’s investigation is much broader than this anemic definition.

Renato Mariotti is a partner at the law firm Thompson Coburn and he has experience handling obstruction cases as a former federal prosecutor. According to Mariotti:

Although “collusion” is a word that has been thrown around a lot lately, it doesn’t have any specific legal meaning. What matters legally is whether someone in the Trump campaign joined a conspiracy, aided and abetted a crime, or actively concealed a crime. None of these legal concepts is complicated. A conspiracy is just a legal term for an agreement to commit a crime. You aid and abet a crime if you know about criminal activity and actively try to make it succeed. There is also a crime called “misprision of felony” that means you know that a felony has been committed and you actively work to conceal the crime.

Noah Feldman, a professor of constitutional and international law at Harvard University, says a relevant law is 52 U.S.C. 30121, which regulates campaign contributions. The law states:

52 U.S. Code § 30121 – Contributions and donations by foreign nationals
(1) a foreign national, directly or indirectly, to make—

(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;
(B) a contribution or donation to a committee of a political party; or
(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 30104(f)(3) of this title); or

(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.

It is possible that Donald Trump Jr. became liable under this law when he met with Russians to get “dirt” on Hillary Clinton. Richard Briffault, a professor at Columbia Law School, thinks it is unclear whether Trump Jr. committed a crime in this case. Robert Bauer, a partner at Perkins Coie and professor at New York University Law School, argues Trump Jr. is probably legally liable under this statue.

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Is Donald Trump a Liar?

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The Washington Post published an article recently that tallied Trump’s false or misleading statements. It says:

In the 466 days since he took the oath of office, President Trump has made 3,001 false or misleading claims, according to The Fact Checker’s database that analyzes, categorizes and tracks every suspect statement uttered by the president.

That’s an average of nearly 6.5 claims a day.

Trump Lies and misleading statements:

1. Americans imprisoned in North Korea: Trump tweeted on May 2, 2018 “As everybody is aware, the past Administration has long been asking for three hostages to be released from a North Korean Labor camp, but to no avail. Stay tuned!
2. Chain Migration: “President Donald Trump repeatedly has claimed that Sayfullo Saipov — the Uzbekistan national who was arrested for a deadly terrorist attack in New York City last year — brought 22 people with him into the United States through “chain migration.” There’s no evidence of that, and it’s likely not even possible.”
3. Refugees: Trump said the US does not screen refugees coming into the US
4. Personnel ChangesTy Cobb, Trump’s former lawyer, being replaced by Emmet Flood
5. Mexico and Immigration: “The Mexican government forces many bad people into our country.”
6. The Steele Dossier and the Russia Investigation: “Trump claimed that the “Mueller probe” was “based on … a Fake Dossier” paid for by the Democrats, referring to opposition research conducted by former British spy Christopher Steele.”
7. His tax cuts were the biggest tax cuts in history
8. Canadian Trade: “In making his case for renegotiating NAFTA, President Donald Trump told GOP donors that the U.S. has a trade surplus with Canada — but only because the trade balance “doesn’t include energy and timber.””
9. Barack Obama and ISIS: Trump suggested that Obama’s “apology tour” created ISIS
10. Family-based Immigration: Trump said, “Under the current broken system, single immigrant can bring in virtually unlimited numbers of distant relatives.”
11. Ted Cruz’s Father: “Ted Cruz’s father “was with Lee Harvey Oswald” before the assassination of President John F. Kennedy.”
12. MS-13 Arrests: “What the Border Patrol and ICE have done, we have sent thousands, and thousands, and thousands of MS-13, horrible people out of this country or into our prisons.

Here is a partial list of PolitiFact’s Pants on Fire Trump Lies:

1. Voting: “”In many places, like California, the same person votes many times. You probably heard about that. They always like to say ‘oh that’s a conspiracy theory.’ Not a conspiracy theory, folks. Millions and millions of people.”
2. Russia Meddling: “I never said Russia did not meddle in the election.”
3. Climate Change: “The ice caps were going to melt, they were going to be gone by now, but now they’re setting records, so okay, they’re at a record level.”
4. Chicago: Chicago is “the city with the strongest gun laws in our nation.”
5. The Racists in Charlottesville: White nationalist protesters in Charlottesville “had a permit. The other group didn’t have a permit.”
6. Amazon: Amazon is a ‘no-tax monopoly.’

What do you think? Is Trump a liar?

Blowing Up the Iran Nuclear Deal

 

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I wrote about the Iran Nuclear Deal here, and here. The deal is less than ideal but much better than nothing. Donald Trump just betrayed the deal. What are the consequences of this unilateral decision?

1. Strained Relations with Russia: Dmitry Peskov, the Deputy Chief of the Presidential Executive Office, Presidential Press Secretary in Russia, said negative consequences will result if the US pulls out of the deal.
2. Cedes Ground to Iranian Hard-liners: President Hassan Rouhani endorsed the deal at some political cost. The deal was an attempt to use diplomatic means to reach a resolution over an issue as big as nuclear weapons. Pessimistic Iranian detractors of diplomatic solutions will have one more piece of evidence to support their position. Trump’s actions undermine US credibility and support the narrative that diplomatic relations with the US are futile. Iranians can now say: ‘America can’t be trusted. We must resort to non-diplomatic means to get our way.’ Remember, the deal was struck because we did not like Iran’s past actions, we will reap those actions again.

Perhaps my comments seem alarmist or hyperbolic to some readers. If this is you, read the words of Iranian Supreme Leader Ayatollah Ali Khamenei:

Now, this [nuclear negotiations] is a new experience. If the other side [the United States] sets aside its bad behavior, this will become a new experience for us, one that will tell us that, well, we can also negotiate with them about other issues. But, if they repeat the same behavior and take the wrong path, it [the negotiations] will only reinforce our past experience.

These are disturbing words indeed. President Rouhani said, “Iran will wait and see how others react.” Rouhani’s statement shows that our actions on the world stage matters. Iran is deeply influenced by international actors. We should have taken advantage of this level of influence and leveraged a better deal, not scrap the deal entirely.
3. The fracturing of International Business Relations: Companies like Boeing may lose $20 billion because of this diplomatic breach. The company agreed to sell 110 plans to Iran for about $20 billion. Airbus stands to lose money as well.
4. Threatens the North Korean Peace Process: Yevgeny Serebrennikov, first deputy chair of the Federal Council Committee on Defense and Security in Russia, said Trump’s actions place peace negotiations with North Korea on uncertain footing.
5. Iranian Nuclear Weapons: Bloomberg News:

The collapse of the accord could hamper denuclearization efforts, and not just in the Middle East. While President Hassan Rouhani has signaled a route that keeps Iran in the deal, Foreign Minister Mohammad Javad Zarif has warned that if the U.S. exits, his country might resume its nuclear program. Iranian officials have also threatened to leave the Non-Proliferation Treaty if the deal crumbles.

Today, May 9th, Iranian politicians shouted “death to America” and burned the American flag. Just another day in Trump’s failed presidency.

Sacking Rod to Freedom

 

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It is no secret Donald Trump is thinking about, and reportedly tried to fire special counsel Robert Mueller. Trump is also thinking about firing Rod Rosenstein in order to make the special counsel’s investigation go away. Can Trump protect himself and his friends from jail time if he goes on a parade of pardons? Fordham University professor Jed Shugerman says not so fast. Trump and friends are vulnerable to at least 7 criminal charges under New York state law according to Shugerman:

1. Tax fraud
2. Money laundering
3. Conspiracy in computer hacking (and stolen property)
4. Conspiracy to violate privacy
5. Loan fraud and mortgage fraud
6. Quo warranto powers
7. Witness tampering and obstruction of justice

Remember, Trump can’t give pardons for state criminal charges. Trump and friends are in deep trouble if Shugerman is right.

Trump probably can’t sack himself to freedom.

Conservative Suppression?

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Lynnette Hardaway and Rochelle Richardson, also known as Diamond and Silk, made the following statement in their testimony before the House Judiciary Committee last Thursday:

Subtle and slowly Facebook used one mechanism at a time to diminish reach by restricting our page so that our 1.2 million followers would not see our content, thus silencing our conservative voices…. When we reached out to Facebook for an explanation, they gave us the run around.

Hardaway and Richardson believe Facebook is suppressing their views because they are conservative. Ted Cruz made similar claims while questioning Facebook CEO Mark Zuckerberg before the Senate Judiciary and Commerce Committee in April of this year.

Is Facebook engaged in a conservative suppression effort?

How does Facebook filter its content?

Facebook uses an algorithm which deprioritizes “publisher content in News Feed in favor of content from family and friends” in “favor [of] trusted news sources over untrusted ones.” Needless to say, Diamond and Silk is not a trusted news source.

Analysis

To be sure, Facebook told Hardaway and Richardson their content was deemed “unsafe for the community” in April of 2018, but they quickly rescinded that statement.

C|Net, a tech product review and news site, covered the hearing and wrote:

The hearing comes as Republicans in Congress and conservatives on media outlets like Fox News complain of perceived bias among social media and technology companies. They say these sites allow and even promote postings for liberal causes while suppressing content from conservatives. The chairman of the House Judiciary Committee, Bob Goodlatte, a Republican from Virginia, chastised Facebook, Google and Twitter for refusing to appear before the committee to explain their filtering practices.

“We know that these social media platforms remove content,” he said. “As legitimate businesses, they must ensure that their services aren’t being abused for illegal purposes such as fraud and identity theft. There is, however, a big difference between removing illegal activity and suppressing speech.”

But other witnesses called to testify before the committee, including Ari Waldman, director of the New York Law School’s Innovation Center for Law and Technology, said there was no pattern of these sites discriminating against any content.

Even if there was bias among these platforms, Rep. Ted Lieu, a Democrat from California, pointed out that Facebook and any other platform on the internet is free to promote or take down any content they like under the First Amendment of the Constitution. He called the hearing “ridiculous.”

“The First Amendment applies to the government, not private companies,” he said. “We don’t tell Fox News what to filter. And we can’t tell Facebook what content to filter. We can’t force Facebook to carry Diamond and Silk if they don’t want to.”

ThinkProgress, a liberal think tank, fact-checked the duo’s claims and concluded they were false:

Data from Crowdtangle, a social media analytics platform owned by Facebook, show that total interactions on Diamond and Silk’s Facebook page were steady. The “total interactions” metric covers the total number of reactions, comments, and shares of content posted to the page.

Diamond and Silk’s Facebook page actually received more total interactions in March 2018 (1,088,000), when they were supposedly being censored, than in March 2017 (1,060,000). Diamond and Silk received more interactions in January 2018 (1,328,000), when they began complaining about censorship, than in any month the previous year.

Things get even more stark when you compare Diamond and Silk’s total interactions to liberal-leaning pages that also frequently post video content. From March 2017 to March 2018, the total interactions on the Rachel Maddow Show page, went from 3.3 million to 1.6 million. Rachel Maddow hosts the most widely watched cable news show in America, and her page has 2.6 million fans to Diamond and Silk’s 1.2 million. Over the same time period, on the Facebook page of The Young Turks, perhaps the most popular independent provider of liberal videos online, total interactions declined from 2.3 million to 760,000. Meanwhile, interactions on Mic’s Facebook page, a left-leaning publisher with 3.8 million Facebook fans, plummeted from 8.9 million to 475,000.

Digging deeper into the data, if you isolate only the videos posted to Diamond and Silk’s page — excluding links and other kinds of status updates — their reach did go down. But the decline was still less pronounced than similar liberal-leaning pages.

Over the last year, views of original videos posted to Rachel Maddow’s Facebook page have declined from 6 million to 1.2 million. Diamond and Silk’s video views have declined from 4.1 million to 1.8 million.

In other words, Diamond and Silk’s videos now get more video views on Facebook than Rachel Maddow, even though Maddow’s show has a much larger page and is one of the most popular cable news programs in the country.

Perhaps you’re inclined to dismiss the previous quote because it came from a liberal think tank. Consider then the comments by Harvard University’s Nieman Lab:

It seems as if Facebook’s algorithm changes — which deprioritize publisher content in News Feed in favor of content from family and friends, and are supposed to favor trusted news sources over untrusted ones — would result in decreased traffic for hyperpartisan sites. But so far, data provided to Nieman Lab by NewsWhip suggests, hyperpartisan sites — as well as two totally-just-fake-news sites — are doing as well or better on Facebook, at least when it comes to engagement, as they were before the changes.

I fail to see the discrimination here.

Mueller’s Questions

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The New York Times just published documents that contain questions special counsel Robert Mueller would like to ask Donald Trump. A number of conclusions can be drawn from Mueller’s line of questioning:

1. Donald Trump is the subject of the investigation
2. Mueller has obstruction of justice clearly in sight
3. There are no questions about Trump’s financial history. We shouldn’t conclude from this that Mueller is not investigating Trump’s finances.
4. Mueller is following Trump’s current actions closely. The questions contain recent tweets from Trump.

I don’t think Trump will agree to answer Mueller’s questions.

Doctor Stupor?

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The Trump administration has put forward Rear Admiral Ronny Jackson as nominee for head of the VA. Jackson served as White House physician since 2006 and was promoted to director of the White House Medical Unit in 2011. He then went on to become the president’s physician in 2013. Jackson received glowing reviews from both President Obama and Donald Trump in the past.

Jackson’s nomination motivated a number of hospital personnel to come forward and voice their concerns. Intriguingly, a number of the people coming forward are currently serving in the military.

A new document has emerged from the Democratic staff on the Senate Veterans Affairs Committee that details the allegations against Jackson. The allegations include:

1. Providing White House staff with medication without documentation. This practice earned Jackson the nickname “candy man.”
2. The White House Medical Unit (WHMU), mentioned earlier, had obscure record keeping practices for pharmaceuticals that made it difficult to track controlled substances.
3. According to nurses, physicians, and subordinates, Jackson was “dishonest”, “abusive”, “volatile”, and “intolerable”, and “the most unethical person I have ever worked with.”
4.Jackson would give patients Ambien (used for insomnia) and Provigil (used to help patients stay awake) without asking about their medical histories.
5. Many instances of drunkenness on duty were reported. On one occasion Jackson could not be reached because he was passed out drunk even though he was on duty.
6. Another allegation of drunkenness involves Jackson wrecking a government vehicle.

If that is not enough, the White House released a 2012 Inspector General (IG) report that contains negative information about Jackson’s past performance. Yes, the White House, the people who put Jackson forward as a nominee, released the IG report.

The report described Jackson as exhibiting “unprofessional behaviors.” It goes on to say there was “a severe and pervasive lack of trust in the leadership that has deteriorated to the point that staff walk on ‘eggshells’”. Apparently, Jackson and coworker Dr. Jeffrey Kuhlman fought openly creating a contentious work environment.

You can read the document here.

Despite all this, the White House continues to express confidence in Jackson. Jackson withdrew as VA secretary nominee yesterday.

Should he retain his position as White House physician?

Jackson should be removed from his current job if the allegations against him are true.

Preemptive Declaration

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Nearly 500 former Department of Justice (DOJ) officials signed a statement urging Congress to defend Robert Mueller, Rod Rosenstein other Department leadership or officials who are involved in the Russia investigations. The statement calls on Congress to:

…oppose any attempt by the President or others to improperly interfere in the Department’s work, including by firing either Mr. Mueller, Mr. Rosenstein or other Department leadership or officials for the purpose of interfering in their investigations. Should the President take such a step, we call on Congress to swiftly and forcefully respond to protect the founding principles of our Republic and the rule of law.

These DOJ officials are acting in the best interest of the country and in defense of the integrity of American institutions.

Congress must take swift action if Donald Trump interferes with the investigation in any way.

Syria: What Should Be Done?

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We are at a critical juncture in the crisis in Syria. Recent reports say Assad used chemical weapons again. The Trump administration is drafting plans for a military attack. I am numbered among those who are opposed to a military response to Assad. It is incumbent upon oppositionists to say what should be done to bring an end to the crisis. Here are my suggestions:

I. Do not seek regime change. America has a terrible track record with this strategy.
II. Refrain from thinking of chemical attacks as red lines. Over 100,000 Syrian have died and most of this carnage is the result of bullets and artillery strikes.
III. I concur with Phyllis Bennis when she wrote that the US should “engage with Russia to urge the UN to take the lead in restarting international negotiations for a political solution.”
IV. Follow Lama Fakih’s, researcher at Human Rights Watch, suggestion and demand that “the Syrian government give the United Nations chemical weapons inspection team – currently in Damascus – immediate access to the sites of the reported chemical attacks.” In fact, an inspection team is traveling to Syria this week. The Syrian government should give inspectors unfettered access to weapons depots and other relevant areas. Inspectors should also be allowed to investigate the source of the recent chemical attacks to see if they were launched by Assad.
V. Oona Hathaway and Scott Shapiro provide a number of good suggestions in the Washington Post. I will quote them directly:

A. The United States could begin by cutting off all contracts to purchase military supplies from Rosoboronexport, the state-owned Russian arms dealer that has provided many of the weapons behind Assad’s atrocities and from whom the United States has purchased weapons to supply Afghan forces.
B. Military force is not guaranteed to work, nor is it the United States’ only option in Syria. Alternatives include broader economic sanctions to disrupt the supply chain on which the Syrian government relies to carry out its attacks on civilians
C. [F]reezing the assets of Syrian government officials and relevant officials around the world

VI. Deliver humanitarian aid to those in affected areas.
VII. Lastly, and probably most important, the international community should demand the full implementation of the 2012 UN Geneva Plan. This plan is a detailed roadmap to peace and stability in the region. Measures include the creation of transitional government, the creation of a new constitutional order, and a cease-fire. The plan is not some theoretical piece drafted by a policy wonk in a university. The following parties met on June 20, 2012, and hammered out the plan:

A. Secretaries-General of the United Nations and the League of Arab States
B. The Foreign Minister of China
C. The Foreign Minister of France
D. The Foreign Minister of Russia, yes Russia
E. The Foreign Minister of United Kingdom
F. The Foreign Minister of United States
G. The Foreign Minister of Turkey
H. The Foreign Minister of Iraq (Chair of the Summit of the League of Arab States)
I. The Foreign Minister of Kuwait (Chair of the Council of Foreign Ministers of the League of Arab States)
J. The Foreign Minister of Qatar (Chair of the Arab Follow-up Committee on Syria of the League of Arab States)
K. The European Union High Representative for Foreign and Security Policy

We should implement these measures as a potent alternative to military intervention.

Fire and Investigate Scott Pruitt

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Quite frankly, EPA Administrator Scott Pruitt should be fired and ordered to repay taxpayers for his lavish spending habits.

There is no shortage of deplorable acts committed by Pruitt. I almost never quote from the left-leaning, fact-checking outlet Media Matters for America, but they are one of the few organizations that succinctly lists Pruitt’s ethics violations and scandals. Let’s itemize Pruitt’s corruption:

1. Pruitt lied to senators about his use of a private email account. An investigation by Oklahoma City Fox affiliate KOKH revealed that Pruitt lied during his Senate confirmation hearing when he said he did not use a private email account to conduct official business while he was attorney general of Oklahoma, a finding later confirmed by the office of the attorney general. The Oklahoma Bar Association subsequently opened an investigation into the matter, which could lead to Pruitt being disbarred in the state of Oklahoma.
2. Pruitt gave a Superfund job to a failed banker whose bank had given loans to Pruitt
3. Pruitt spent almost $25,000 on a private soundproof booth.
4. Pruitt spent $58,000 on charter and military flights.
5. Pruitt made a costly trip to Morocco to promote natural gas.
6. Pruitt spent $90,000 on first-class flights and other travel in a single week.
7. Almost half of EPA political appointees have strong industry ties. An analysis conducted by The Associated Press found that “nearly half of the political appointees hired at the Environmental Protection Agency under Trump have strong industry ties. Of 59 EPA hires tracked by the AP over the last year, about a third worked as registered lobbyists or lawyers for chemical manufacturers, fossil fuel producers and other corporate clients that raise the very type of revolving-door conflicts of interests that Trump promised voters he would eliminate. Most of those officials have signed ethics agreements saying they would not participate in actions involving their former clients while working at the EPA. At least three have gotten waivers allowing them to do just that.”
8. Pruitt appointed the vice president of a polluting company to the EPA’s environmental justice advisory council. On March 7, Pruitt announced the addition of eight new members to the agency’s National Environmental Justice Advisory Council, one of whom was Michael Tilchin, a vice president of CH2M Hill, a big engineering firm. The New Republic reported that since February 2017, CH2M Hill’s work at the Hanford Site, a decommissioned nuclear weapons production facility in Washington state, “has sparked at least three accidental releases of plutonium dust, which emits alpha radiation—’the worst kind of radiation to get inside your body,’ according to KING-TV, the Seattle-based news station that’s been investigating the incidents.” Dozens of workers at the site have tested positive for internal plutonium contamination in the wake of the releases
9. EPA signs research agreement with firm tied to GOP megadonor Sheldon Adelson.
10. Pruitt paid below-market rent for a condo co-owned by the wife of an energy lobbyist. For the first half of 2017, Pruitt lived at a prime Capitol Hill address in a condo co-owned by Vicki Hart, wife of energy lobbyist Steven Hart. ABC News reported that, instead of contracting with a real estate broker, Pruitt worked directly with Steven Hart to arrange the $50-a-night rental agreement, with rent having to be paid only for the nights Pruitt stayed in the unit. ABC also reported that Pruitt’s daughter used a second room in the condo from May to August, in apparent violation of the lease agreement. The EPA reimbursed the condo association $2,460 after Pruitt’s security team kicked in the door, mistakenly believing his safety was in jeopardy. While Pruitt was living in the condo, and paying well below market rate, the EPA gave its approval for expansion of the Alberta Clipper oil pipeline, directly benefiting Enbridge Inc., a client of Hart’s lobbying firm, according to The New York Times. The Harts have been making political contributions to Pruitt since 2010, The Daily Beast reported.
11. Taxpayers paid for Pruitt’s 24/7 security detail during his personal trips to Disneyland and the Rose Bowl. Pruitt’s security team accompanied him on trips home to Oklahoma as well as on a family vacation to Disneyland and the Rose Bowl, according to a letter that Sen. Sheldon Whitehouse (D-RI) sent to the EPA’s Office of Inspector General and shared with CNN.
12. The White House told Pruitt he could not give two of his closest aides a pay raise, but he used a loophole to do it anyway. In March, Pruitt sought permission from the White House’s Presidential Personnel Office for substantial pay increases for two of his closest aides, Sarah Greenwalt and Millan Hupp. The White House said no. Pruitt then exploited a loophole in the Safe Drinking Water Act to increase Greenwalt’s salary from $107,435 to $164,200 and Hupp’s salary from $86,460 to $114,590.
13. Pruitt abused a little-known loophole in the Safe Drinking Water Act to hire loyalists and ex-lobbyists. In 1977, Congress passed an amendment to the Safe Drinking Water Act allowing the EPA to hire expert personnel without Senate or White House approval. The section was added to ensure the agency could hire the staff it needed to protect public health, but Pruitt broke from tradition and used the provision to “bring in former lobbyists along with young spokesmen and schedulers,” according to The Washington Post. Pruitt’s controversial hires included loyalists from his home state of Oklahoma, former industry lobbyists such as Nancy Beck, and James Hewitt, the son of radio host and MSNBC personality Hugh Hewitt — one of Pruitt’s most ardent public defenders. The Post reported that “ethics experts say hiring lobbyists through the provision breaks with some of Trump’s ethics rules.”

One more for good measure: Pruitt removed an agent who was in charge of his security detail because he did not heed Pruitt’s request to use sirens during non-emergency travel.

Where is the Republican outrage? Has fiscal conservatism vanished?

The swap wasn’t drained, it’s now a large sewage dump.