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White House

Congress has until Feb. 15 to discuss a border security deal, but the White House is already finalizing its plan B — declaring a national emergency.

The White House is finalizing the details of a potential national emergency declaration to secure President Donald Trump’s border wall, even as lawmakers are trying to broker an immigration deal that could avert another shutdown in just over two weeks.

Trump met with his budget chief, acting chief of staff Mick Mulvaney, Jared Kushner and other top officials including White House lawyers on Tuesday to walk through the logistics of such a move. And White House aides have been quietly meeting with outside conservative political groups to build support for the president to take such an action. Those talking points, which emphasize Trump’s legal authority, have begun to show up in such conservative media outlets as Breitbart News.

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The behind-the-scenes maneuvers indicate that the Trump administration wants to be poised to quickly declare a national emergency, should Trump choose to do so, by the time Congress hits its Feb. 15 deadline to strike a deal before government funding runs out again. And it signals that officials may not have much faith in congressional Republicans to secure the money in the coming weeks that Trump seeks to build a wall along the U.S.-Mexico border. Trump himself has said the odds of a congressional deal are “less than 50-50.”

One senior White House official told POLITICO the goal is to have such a declaration 100 percent ready and coordinated should Trump decide to move on it rather than scrambling ex post facto to draw one up and justify it.

Yet White House lawyers continue to urge extreme caution, leading to internal strife within the administration over the best path forward if Congress cannot come up with a larger immigration deal. One sticking point has been the role that the Pentagon’s Army Corps of Engineers could play in building a Trump-ordered wall — an idea being discussed in the White House.

The Army Corps is most often affiliated with its environmental disaster prevention and recovery work, and it’s unclear how much the White House can legally redirect funds already earmarked for those projects. Doing so would likely also trigger a political backlash as well as challenges in the courts.

“There continue to be divisions within the White House on what the proper approach should be and whether it would be a good idea from a legal and policy matter to invoke the national emergency matter. There is some legal dispute over the scope of the power of the Army Corps of Engineers power,” said one Republican close to the White House.

Still, Trump, who wants $5.7 billion for the southern wall, has long stressed that he is not afraid to trigger his emergency powers.

“I have a very powerful alternative, but I didn’t want to use it at this time. Hopefully it will be unnecessary,” Trump said about a potential national emergency declaration when announcing last Friday that he had agreed to reopen the government temporarily to let lawmakers negotiate over border security funding.

“Walls or barriers or whatever you want to call it will be an important part of the solution,” Trump added.

The White House press office did not respond to a request for comment.

A bipartisan, bicameral group of 17 lawmakers met for the first time on Wednesday to begin negotiations on an immigration and border security deal that may avert an emergency order. In theory, the agreement would trade a boost in border security funding, a top GOP and Trump priority, for legal protections for some undocumented immigrants, a key Democratic priority. But all signs were that a deal was essentially dead before the talks even started, seemingly raising the chances that Trump will deploy his emergency authority.

But there’s no guarantee that Republican lawmakers, or conservatives, would support such a move. Some conservatives fear declaring a national emergency in this instance would set a poor precedent for future leaders; Democrats, for instance, could pull the same move to deal with climate change, or broaden Medicare. Other GOP lawmakers have warned Trump against diverting Army Corps of Engineer funds that are earmarked for disaster relief projects in their jurisdictions.

“We’re pretty uniformly opposed to an emergency declaration. That is taking that emergency act beyond where it’s ever been before. We don’t like it. We don’t want to set that precedent,” said Sen. Ron Johnson (R-Wis.) in an interview.

Other GOP members seemed more resigned to such a fate.

“Some of my colleagues think it will be the end of western civilization if he declares a national emergency. But I don’t,” said Sen. John Kennedy (R-La.).

Close White House confidante Rep. Mark Meadows, who heads the hardline conservative House Freedom Caucus, would not comment on any conversations he’s had recently with the White House, except to say that declaring a national emergency is “definitely an option.”

Typically, presidents use such broad powers in the face of military threats, like the 9/11 terrorist attacks, or to respond to health emergencies like the H1N1 influenza pandemic, as President Barack Obama did in 2009. From 1978 through 2018, presidents declared national emergencies 58 times, according to the Brennan Center for Justice.

The idea of declaring a national emergency has been floating around the Trump orbit since his inauguration two years ago. Senior policy adviser Stephen Miller — cheered on by former White House chief strategist Steve Bannon — saw it as a way to expand Trump’s executive authority. Miller, in particular, has long viewed it as a good path to tackle illegal immigration, especially since the issue has so fractured Congress.

If Trump goes through with an emergency order, it could split the Republican party, said one former senior administration official. It would divide conservatives, driving a wedge between those strongly believe in ending illegal immigration at all costs and those worried about the legal precedent it would set.

“It could be seen as subverting the Constitution for his own ego, and it will be the end of his presidency,” said one former senior administration official.

Burgess Everett, Eliana Johnson, Gabby Orr and Melanie Zanona contributed reporting.

white house

Many on the right are afraid the president is making deals with Democrats over 9th Circuit judges.

For many of Donald Trump’s most ardent supporters, there has been no issue more important than stacking the federal bench with conservative judges. Many on the right are now fearing a retreat.

Concerns began to mount after the Wall Street Journal editorial board on Tuesday published an editorial accusing the White House of negotiating with California’s Democratic senators, Dianne Feinstein and Kamala Harris, to come up with a compromise list of nominees to the liberal 9th Circuit Court of Appeals, long a bogeyman to conservatives.

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Within 24 hours, the paper’s editorial had ricocheted across the right and sparked an outcry about another Trump surrender.

“Caving on the 9th Circuit Court of Appeals nominees burdens every GOP senator up for re-election in 2020 and may cost President Trump a significant percentage of the vote in key swing states like Arizona which lives under the far left Circuit majority’s rulings,” said conservative talk radio host Hugh Hewitt, who spent a significant portion of his show Wednesday morning discussing the issue.

Conservatives like Hewitt are focusing their anger on the new White House counsel, Pat Cipollone, who the Journal alleges has been leading negotiations with Feinstein and Harris. Cipollone’s predecessor, Don McGahn, made judicial nominations his top priority, helping to push through 29 federal circuit court nominees and put two Supreme Court justices on the bench.

The confirmations are an area of accomplishment that united an otherwise fractious Republican party during the president’s first two years in office. With special counsel Robert Mueller bearing down on Trump and Democrats preparing to launch a host of investigations, Cipollone’s job is likely to be more complicated than was McGahn’s. Whether his office can continue the muscular push for judicial nominees remains an open question.

The answer is likely to have big political implications for the president’s 2020 re-election. Trump won over many skeptical voters by promising to nominate conservative judges — even going so far as to release a list of potential Supreme Court nominees that he vowed to select from as a token of reassurance. The gesture paid off: Among the 21 percent of the electorate who said Supreme Court appointments were the most important issue, 56 percent voted for Trump while just 41 percent voted for his opponent, Hillary Clinton.

The Wall Street Journal suggested the White House was working on a deal with the Democrats in a bid to ease the path for any future Supreme Court nominee. Critics, however dismiss that as a pipe dream.

The White House did not immediately respond to a request for comment. With Republicans holding a 53-seat majority in the Senate, it is possible for the president simply to renominate the three candidates to the 9th Circuit whose names were pulled from a recent White House list — a possibility at least one source familiar with the process said could happen by the end of the day Wednesday, a move that would immediately ease tensions on the right.

Losing conservatives for whom judicial nominations are the most important issue would be blow to the president’s 2020 campaign. The negotiations between the White House and the California senators are “shocking” and “very demoralizing” to Trump’s base of support, according to Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, which has spent nearly $15.5 million on television ads boosting the president’s court nominees. The latest spending came in the form of a $1.5 million ad buy urging Democrats to “swiftly confirm” them.

The Journal editorial set off a veritable panic on the right. Erick Erickson, the conservative columnist and talk radio host, accused Cipollone of going “behind the President’s back” and “trying to cut a deal that would put more progressives” on the bench. Brent Bozell, the president of the Media Research Center, wrote on Twitter, “POTUS has done a TERRIFIC job with judges. Constitutionalists couldn’t ask for more. Is his staff trying to undermine him to appease leftists in the Senate? They are giving away his strongest achievement!”

“This is the administration’s crown jewel — judicial nominations,” Severino said. “So it makes no sense to jeopardize that particularly for senators who have not been operating in good faith, one of whom may even be the president’s 2020 opponent.”

Ashley Schapitl, a spokesperson for Feinstein, said in a statement that Feinstein and Harris “are engaged in conversations with the White House about the 9th Circuit and district court vacancies.”

Harris said in a brief interview that she wasn’t aware of the editorial.

Feinstein and Harris have already stated their opposition to Trump’s judicial nominees to the 9th Circuit — Daniel Collins, Kenneth Lee and Patrick Bumatay. In a statement last year Feinstein said Lee “failed to disclose to our judicial selection committees controversial writings on voting rights and affirmative action.”

Feinstein also blasted the White House at the time for not reaching an agreement with her earlier.

“I repeatedly told the White House I wanted to reach an agreement on a package of 9th Circuit nominees, but last night the White House moved forward without consulting me, picking controversial candidates from its initial list and another individual with no judicial experience who had not previously been suggested,” she said.

In a letter sent in October to Cipollone, Feinstein and Harris said they would be open to striking a deal to fill the 9th Circuit vacancies. The California senators said they’d support a package of nominees that included James Rogan, who was on the White House list, Judge Lucy Koh, who was on the senators’ list and a third candidate who would be discussed further.

An alternative proposal, senators wrote, would be for the White House to choose a candidate from their list for 9th Circuit, for the senators to choose a candidate from the White House list and for the two parties to agree on a third candidate.

Although the Wall Street Journal editorial is prompting concern that the White House may suffer a blowback on judicial nominees, Senate Republicans don’t appear worried — at least not yet. Sen. David Perdue (R-Ga.), who had lunch with Trump Sunday, questioned why the administration would make a deal with Democrats on judges.

“Why would we make a deal?” Perdue said. “We don’t need Democrats to confirm these judges, he’s bringing middle of the road people who are not activists, they’re supporters of the constitution and have great records. So it’s nonsensical to me that a deal would have to be struck.”