Homeland Security Secretary John Kelly talks to the media during the daily press briefing at the White House in Washington, Tuesday, May 2, 2017. (AP Photo/Andrew Harnik)
I’m sorry, but along with my great admiration for his service and respect for him personally, I believe former White House Chief of Staff, General John Kelly got this one mostly wrong. I can find no instance whereby a Commissioned Officer in the Armed Forces of these United States should intervene in a dispute between the Legislative branch and the Executive, much less personally cede The President’s Executive privilege to the Congress without permission.
The Atlantic Magazine covered the former Chief of Staff’s commentary at Drew University last Wednesday. Here’s the lede from the article
The former chief of staff explained, in the clearest terms yet, his misgivings about Trump’s behavior regarding North Korea, immigration, and Ukraine.
Further down, Atlantic describes General Kelly’s position. We’ll take these one piece at a time. First
“He did exactly what we teach them to do from cradle to grave,” Kelly told the audience at the Mayo Performing Arts Center. “He went and told his boss what he just heard.”
So far, so good. if Vindman’s boss had clearance to know the conversation’s contents, no problem.
Let’s look at this statement
When Vindman heard the president tell Zelensky he wanted to see the Biden family investigated, that was tantamount to hearing “an illegal order,” Kelly said. “We teach them, ‘Don’t follow an illegal order. And if you’re ever given one, you’ll raise it to whoever gives it to you that this is an illegal order, and then tell your boss.’”
That is totally and unequivocally wrong. It’s. Just. Not. True. President Trump cannot give orders, illegal or otherwise to another Head of State. Once more, President Trump asking another Head of State for some favor does NOT constitute an illegal order. Moreover, it certainly doesn’t constitute an order of any kind to LTC Vindman.
This last bit has a couple of nuanced positions
Vindman was rightly disturbed by Trump’s phone call to Ukrainian President Volodymyr Zelensky in July, Kelly suggested: Having seen something “questionable,” Vindman properly notified his superiors, Kelly said. Vindman, who specialized in Ukraine policy at the National Security Council at the time, was among multiple U.S. officials who listened in on the call.
“Rightly disturbed?” I disagree, but we can let him have that one. “Having seen something questionable…” I disagree here also. “Properly notified his superiors…” Again, no problem, assuming they are cleared to hear the information.
Here is the critical part…the part which just about everyone seems to gloss over.
When subpoenaed by Congress in the House impeachment hearings, Vindman complied and told the truth, Kelly said.
This is where General Kelly and a lot of folks go off the rails, including more than a few Republicans. There is no automatic requirement for the White House or its staff to immediately comply with a Congressional subpoena. The Supreme Court of these United States has long refused to issue an opinion that supports unlimited Congressional subpoena power over the Executive Branch. On the other side of that, the High Court has also refused to opine that the White House has unlimited immunity/privilege from Congressional subpoenas.
Over the decades, this has resulted in a “process” whereby the Supreme Court resolves conflicts between the Congress and the Executive on a case by case basis—issuing very narrow rulings that apply only to the case in question.
Here is where LTC Alexander Vindman got out over his skis, and for all you Vindman apologists out there, likely violated his oath and the terms of his commission. LTC Vindman inserted himself into a constitutional dispute between the Congress and the President of these United States who is his boss and the guy whom he serves at the pleasure of. Worse yet, Vindman took it upon himself to voluntarily cede Executive Privilege, which had not yet been adjudicated, to the Congress, another branch of government. If Executive Privilege is to be voluntarily ceded at any time, there’s only one guy that does that. As of today, his name is Donald J. Trump, not Alexander Vindman.
General Kelly, I respect and admire you Sir, and most folks would take your assessment over that of an old, beat down Infantry Colonel any day of the week…and rightly so; but you got this one wrong, Sir. A separation of powers issue is not for a mid-level Field Grade Officer to adjudicate. That’s for the Supreme Court.