Monday, November 9, 2020

Got Paranoia? General Services Administration

My screenshot from video via the Independent, 4 February 2017.

Can we please jail Emily Murphy, the GOP political hack running the General Services Administration, who has apparently decided to single-handedly kneecap the Biden transition?

The administrator of the General Services Administration, the low-profile agency in charge of federal buildings, has a little-known role when a new president is elected: to sign paperwork officially turning over millions of dollars, as well as give access to government officials, office space in agencies and equipment authorized for the taxpayer-funded transition teams of the winner.

It amounts to a formal declaration by the federal government, outside of the media, of the winner of the presidential race.

But by Sunday evening, almost 36 hours after media outlets projected Biden as the winner, GSA Administrator Emily Murphy had written no such letter. And the Trump administration, in keeping with the president’s failure to concede the election, has no immediate plans to sign one. This could lead to the first transition delay in modern history, except in 2000, when the Supreme Court decided a recount dispute between Al Gore and George W. Bush in December.

Which ended after the Supreme Court intervened on the Bush campaign's instance to stop the recount of Florida ballots, and Vice President Gore conceded on 12 December:

“I accept the finality of the outcome, which will be ratified next Monday in the Electoral College” he said. “And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession.”

Since there's no chance President Trump will do that, since he has no interest in our unity as a people and the strength of our democracy, does this mean Murphy intends to sequester the transition funds forever? Or until 20 January, when according to the 20th Amendment Trump's term comes to an end and all his political hires, including Emily Murphy, lose their jobs?

If it comes to that, I bet Biden will be ready to hit the ground running, but it's still wrong to get in the way like this, as the possibility of Biden actually not winning grows more and more remote.

Emily Murphy is a long-time Republican operative (graduated from Smith in 1995 and spent the next couple of years at the RNC, then as a congressional staffer, then went to law school) who was working volunteer on the Trump transition team in 2016 when Trump appointed Tim Horne, a career officer who'd served as federal transition coordinator, to run the GSA as acting administrator, on inauguration day, after the seven-and-a-half-hour tenure of GSA's own choice for the post, Norman Dong. Four days later he appointed Emily Murphy as GSA's White House liaison and "senior adviser" to Horne.

This was, of course, the time when GSA, which is tasked with overseeing federal property, was examining the question of whether the president-elect, later president, was legally able to hold the lease on the Old Post Office building on Pennsylvania where he had been operating a hotel under the name Trump International Hotel Washington, even though section 37.19 of the lease agreement says

No member or delegate to Congress, or elected official of the Government or the Government of the District of Columbia, shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom; provided, however, that this provision shall not be construed as extending to any Person who may be a shareholder or other beneficial owner of any publicly held corporation or other entity, if this Lease is for the general benefit of such corporation or other entity. 

and whether the president was entitled to take any personal profit from the representatives of foreign governments using the hotel facilities under the terms of the Foreign Emoluments clause of Article I, Section 9, Clause 8 of the Constitution, 

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State

where "emolument" generally meant, when the Constitution was drafted, 

"profit," "benefit," or "advantage" of any kind

after Trump had turned his assets over to a "revocable trust" administered by his sons Donald Jr. and Eric (the one you'll remember from the announcement of 4 February, surrounded by a forest of file folders filled with blank sheets of paper).

We know more about this whole situation than we did back when I was writing about it in early 2017, in particular because the Office of the Inspector General did an investigation of it after the 2018 elections, at the request of the newly Democratic House of Representatives, issuing their report in January 2019. But we know more about what the principles (especially the GSA contracting officer, Kevin Terry, who wrote up the decision, and two of the agency's lawyers, Timothy Tozer and Paula DeMuth) didn't do, beginning with not talking about it at all until the press did

OGC did not discuss this possibility until shortly before the November election, when news articles appeared that questioned whether Trump’s election would trigger Emoluments Clause and other conflicts of interest issues. According to one senior attorney, the emoluments issues did not become a hot button issue until after the election. 

(which makes some sense when you consider how unlikely it seemed that Trump would win), not getting into the emoluments issue at all,

They told us that the agency generally does not deal with constitutional issues (other than issues involving land condemnation or GSA officials), and consequently, the Constitution’s emoluments issues were not in GSA’s purview.... Loewentritt acknowledged that issues under the Foreign Emoluments Clause occasionally arise in connection with foreign gifts and travel paid by foreign governments for GSA employees, but said that OGC does not get involved with supplemental income emoluments. He told us those issues were for the Department of Justice’s Office of Legal Counsel (OLC) or the Office of Government Ethics (OGE).

not doing any research,

One attorney told us that the decision-making process was just talking among the lawyers. Attorneys also told us that they made this decision without conducting any research of the two Emoluments Clauses or checking for any OLC opinions about the Emoluments Clauses. However, one attorneyacknowledged that, as a matter of personal interest, he read an OLC emoluments opinion involving President Reagan mentioned in a press report.
not consulting the Office of Legal Counsel,

OGC lawyers did not contact or request guidance from OLC before making this decision. 26 One senior attorney told us that OLC knew about the OPO lease “and it was up to them to do something.”

and not talking to the Administrator, Roth (before the inauguration)

(that redaction is to protect attorney-client or deliberative processes) and that Terry didn't speak to anybody, almost, in particular acting Administrator Horne (after the inauguration).

except Junior and Eric, whom he tried unsuccessfully, he later claimed, to convince to get rid of the lease, even though he didn't think it was illegal but apparently because he was convinced the emoluments were illegal and would get everybody in trouble.

OGC lawyers, Terry, and Banks met with Tenant representatives Donald J. Trump, Jr., Eric Trump, and counsel on January 31, 2017, to discuss Tenant’s new organizational structure Terry told us that during the January 31, 2017, meeting, he strongly encouraged the President’s divesture from Tenant. Terry told us that he pushed hard for divestiture in discussions with Tenant’s representatives to provide value to the government, not because he thought that the lease was breached. Terry said he wanted to get the OPO out of controversy so he encouraged divestiture to try and prevent any issues related to emoluments, even though emoluments issues were not GSA’s responsibility to consider. However, Terry stated he did not have a solid position to force a complete divestiture since there was not a breach of the lease.

I don't know why Terry found it necessary to tell the Trumps that the lease issue was "nonsense" back in November 2016

emails obtained by Bloomberg show that days after Trump’s election win, Terry forwarded a BuzzFeed article referring to the potential conflict of interest to the Trump Organization. In the email he wrote “FYI – A fair amount of nonsense.” The email also went to two other GSA employees, according to the publication. The email was released following a Freedom of Information request from a member of the public, and the recipient of the email was redacted.

but I have a big grammatical issue with the logic he used in making his final argument

On February 10, 2017, Terry solicited Tenant’s position and analysis on whether Tenant was in “full and complete compliance” with the Lease, specifically Section 37.19.39 Counsel for Tenant responded February 17, 2017, concluding that, among other points, (1) Section 37.19 does not apply when an elected official is “admitted to” a lease before their election and (2) Tenant is an “other entity” under Section 37.19’s exception for owners who have a beneficial interest in a “publicly held corporation or other entity.” 

because that interpretation of "admitted" expressly contradicts congressional intent, as the inspector general points out

and that interpretation of "another entity" is completely absurd

because if the rule isn't referring to another publicly held entity (such as a partnership or a trust) but any entity whatsoever, then it wouldn't apply to anything in the universe.

The OIG report doesn't take a position as to whether Terry's decision was right or wrong, merely criticizes the way it was taken, but that criticism is devastating, and it clearly implies that the decision was contrary to law and to the Constitution, as Rep. Mike Quigley's statement conveys:

“The GSA is required to act in the best interest of the American people and is expected to hold the President accountable should he attempt to exploit his office for personal gain,” said Rep. Quigley. “Unfortunately, the GSA ignored that responsibility, turning a blind eye as the President continues to personally profit from his hotel in violation of the lease agreement. The GSA’s disingenuous decision-making process and explicit disregard for the Constitution, as well as its own legal responsibilities, is beyond troubling for all Americans who care about government transparency. Any reasonable person would conclude that the Trump Hotel’s acceptance of payments from foreign governments raises the strong possibility of a clear conflict of interest, but the GSA refused to speak out and do its job. By acknowledging the Emoluments concerns and completely ignoring the need to conduct a constitutional analysis, agency leaders have thrown into question their ability to fulfill GSA’s mission and show they are working on behalf of the American public and not the Trump Organization....

In 2017, Rep. Quigley questioned Acting Administrator for the General Services Administration (GSA), Timothy Horne, about the Trump International Hotel lease and possible conflicts of interest. Rep. Quigley specifically asked then Acting Administrator Tim Horne whether the benefits accrued by President Trump conformed to the Constitution. Acting Administrator Horne replied that he was there to “support the contracting officer”. It is now clear that in the Spring of 2017, the Contracting officer did not get the support promised and was provided with no legal analysis of the serious Constitutional issues at stake with the lease agreement.

The Inspector General report concludes that, following the 2016 election, it was necessary for GSA to consider whether President-elect Trump’s business interest in the Old Post Office (OPO) lease might cause a breach of the lease upon becoming President. The evaluation found that GSA, through its Office of General Counsel (OGC) and its Public Buildings Service, recognized that the President’s business interest in the lease raised issues under the Foreign Emoluments and Presidential Emoluments Clauses of the U.S. Constitution that might cause a breach, but inexplicably decided not to address those issues and advise the contracting officer on Emoluments even though as recently as 2013 GSA had advised an employee to be wary of potential Emoluments violations in their work outside of GSA. The report also found that the decision to exclude the Emoluments issues from GSA’s consideration of the lease was improper because GSA, like all government agencies, has an obligation to uphold and enforce the Constitution, and because the lease, itself, explicitly requires that consideration.

And Emily Murphy? She got bumped up ahead of Horne in September 2017 and became the Senate-confirmed administrator herself, which is interesting. There's no evidence she had anything to do with Terry's work on justifying the lease, to be honest, unless it's hidden behind some of those redactions, but curiously enough she does show up lying to Congress—to Rep. Quigley, in fact—about Trump's role and her own in another GSA issue involving the Old Post Office—the FBI's desire to move its headquarters from the Hoover Building across the street, which was likely to lead to the development of the building as a hotel that would compete with Trump's:

In April 2018, Murphy told a congressional oversight hearing that the decision to stop the FBI from moving its headquarters came solely from the bureau without the involvement of Trump.[12] However, three months later, the GSA inspector general (IG) released a report finding that Murphy's statement to Congress was "incomplete and may have left the misleading impression that she had no discussions with White House officials in the decision-making."[12][13] The report revealed that Murphy and other GSA officials had multiple meetings with Trump about the FBI headquarters, specifically a two-day meeting in January 2018 between Murphy, Trump, White House Chief of Staff John F. Kelly, and budget director Mick Mulvaney.[14] The IG report also found that GSA officials misrepresented the costs of an alternative plan to build a new FBI headquarters in downtown D.C., portraying the replacement plan as cheaper than the original plan when it would actually be more expensive.[14] In October 2018, internal GSA emails disclosed by House Democrats showing that GSA discussed "the President's instructions", "direction from WH" and "what was decided in the meeting with POTUS" in January 2018.

Nobody wants to call it lying, but it's clear that's what it was, in the service of Trump's trying to get a government agency to serve his personal financial interests without getting called out for it.

And now she's embroiled in this new thing of delaying the Biden transition. And has hired a new General Counsel for the GSA Trent Benishek, coming from the Office of White House Counsel where he served as special assistant to the president and associate counsel to the president, because it's so important to have fresh blood in there for the administration's last two lame-duck months?

"I am thrilled Trent has joined GSA as our general counsel, as his experience and leadership bring great value to our agency,” said GSA Administrator Emily Murphy. "Trent’s legal expertise will further GSA’s role as a leader in procurement, real estate, and technology services for the entire federal government.”

Thrilled? Really?? There is something so deeply smelly about everything this person does that I'm convinced she's been doing it all along, introduced to GSA in inauguration week as Trump's personal agent to look after his personal interests. And if that's the case in GSA it's likely the case elsewhere in the "deep state" these people have been constructing.

Hope this isn't too boring, but I felt the need to work it out.

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