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'Confession of sedition' or expression of free speech? Debate over op-ed continues

President Donald Trump speaks at a fundraiser in Fargo, N.D., Friday, Sept. 7, 2018.{ } (AP Photo/Susan Walsh)
President Donald Trump speaks at a fundraiser in Fargo, N.D., Friday, Sept. 7, 2018. (AP Photo/Susan Walsh)
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A New York Times opinion column by an anonymous government official continues to roil the Trump administration nearly a week after it was published, and the White House is not backing down from President Donald Trump’s calls for the Justice Department to launch an investigation.

“We’re just saying that this gives a great level of concern, and they should look into it,” Press Secretary Sarah Sanders told reporters at a briefing Monday.

The unnamed senior official described themselves as part of an internal “resistance” thwarting President Donald Trump’s worst impulses as they help him achieve conservative policy goals. “We are trying to do what’s right even when Donald Trump won’t,” they wrote.

The op-ed came on the heels of initial reporting of details from Bob Woodward’s new book on the Trump administration, “Fear,” which similarly alleges Trump’s aides have undermined him behind his back. Several officials named in the book have disputed its characterization of their actions.

“TREASON?” Trump tweeted last Wednesday in an apparent reference to the op-ed. He has since suggested that The New York Times publishing the column was “virtually” treason.

“I would say [Attorney General Jeff Sessions] should be investigating who the author of that piece was because I really believe it’s national security,” President Trump told reporters on Air Force One Friday, adding that he is “looking at” action against the newspaper as well.

The president’s son is the latest ally to suggest the insubordination the op-ed described rises to the level of criminal activity that the DOJ should investigate. When pressed to name any laws that were broken, Donald Trump Jr. did not offer one.

“Listen, I think you're subverting the will of the people. I mean, to try to control the presidency while not the president. You have millions and millions of Americans who voted for this,” Trump Jr. told ABC News in an interview that aired on “Good Morning America” Tuesday.

Sebastian Gorka, a former deputy assistant to the president, said Tuesday the DOJ should “absolutely” open an investigation of conduct he described as “tantamount to treason.”

“This opinion piece is a confession of sedition—if you look up sedition in the dictionary, it says the overt or covert attempt to undermine a legal authority or constitutional order—that’s what this author admits to,” Gorka said. “They say they’ve created a dual-track presidency; they’re isolating the president’s decisions from the actual departments that are supposed to execute them. That’s sedition.”

While that is the dictionary definition of sedition, experts stressed it is not the legal one. According to former federal prosecutor Seth Waxman, several statutes criminalize seditious activity, but none appear to apply to this scenario.

“These laws typically require some act of force or violence, and the First Amendment overrides conduct that is confined to speech,” he said.

Claire Finkelstein, director of the Center for Ethics and the Rule of Law at Penn Law School, sees very narrow circumstances in which this insubordination would raise serious legal questions.

“The only area where I would have some concern with regard to illegality is if the president is acting in his capacity as commander in chief and he is giving a direct order and that order is being subverted or resisted,” she said.

Gorka argued a DOJ investigation would be worthwhile to ferret out others participating in the author’s self-proclaimed resistance.

“The author admits that he has collaborators, co-conspirators, this isn’t just about finding out the one author,” he said. “It’s about identifying everybody who is undermining the will of 63 million Americans who chose Donald Trump to be president.”

Waxman distinguished between a fireable offense and a criminal one, and unless the op-ed included classified information, this appears to be the former. If that is the case, he sees no grounds for the Justice Department to get involved.

“For a federal investigation to be opened, the government needs to have a reasonable basis to believe that a crime has been committed or is being committed,” he said. “If the conduct at issue could never be charged as a crime, it is improper for an investigation to be opened into that activity.”

President Trump’s call for an investigation reflects a mistaken view of the DOJ’s role, according to Finkelstein, and she fears Sessions granting his request would set a dangerous precedent.

“The Department of Justice exists to investigate and punish federal crimes that occur of significance to the nation, not to assist the president in gaining control over dissent within the ranks of his administration, or to punish those who voice criticism of him,” Finkelstein said. “The suggestion that the exercise of free speech might be criminal reflects Macarthy-esque thinking that itself poses a grave danger to civil liberties.”

Although the White House defended Trump’s comments, officials have also struggled to identify a criminal offense they believe the writer committed. Asked repeatedly Monday, Sanders said only that undermining the president “seems quite problematic” and should be investigated.

“I’m not an attorney,” she said. “It’s the Department of Justice to make that determination, and we’re asking them to look into it and make that determination.”

Appearing on CNN Sunday, Trump counsellor Kellyanne Conway did not directly allege anything in the op-ed broke the law, but she speculated someone who would write it might also be leaking classified information.

“I have really no idea, nor do you, what else this person has divulged,” she told anchor Jake Tapper. “I think somebody so cowardly and so conceited would probably go a step further.”

According to former FBI special agent John Iannerelli, that is a valid concern, even if there is currently no evidence of a crime.

“People working in these jobs know what the rules are, so if they’re ‘leaking’ this type of information, is there the potential they’re leaking sensitive information to others?” he said. “When you’re working for the government, this is a huge red line to have crossed.”

Finkelstein balked at making that inference from a column that spoke broadly about the mood within the administration but revealed little about specific internal deliberations.

“It’s important to be very clear there is a difference between raising objections to the way an administration is functioning and actually leaking information of a classified nature,” she said.

Another avenue for investigation has been suggested that would sidestep the DOJ entirely. According to TMZ, administration officials have debated whether the op-ed’s reference to ending Trump’s presidency “one way or another” amounts to a physical threat the Secret Service should probe.

Trump confidante Sean Hannity went further, claiming Friday that the anonymous column was “an attack on the president and the country” meriting Secret Service attention.

“This is a clear and present danger to the country,” Hannity said on his Fox News show. “That is beyond unacceptable. It’s like a soft coup aided and abetted by the corrupt media in this country.”

Neither agency confirms or denies the existence of investigations, but there have been no public indications either has launched a probe or is considering doing so.

Legal or not, the conduct the op-ed details has been described by even some of the president’s critics as an administrative coup, and it threatens to reinforce the president’s perception that the so-called “deep state” is out to get him.

“You have Donald Trump, who is inherently distrustful of people, now feels he has even fewer people in which he can place his trust,” said Gary Nordlinger, a political consultant and professional in residence at George Washington University’s Graduate School of Political Management.

Some of Trump’s most prominent allies have fed that impulse. Former White House strategist Steve Bannon suggested there is “a much broader conspiracy than people think” behind the op-ed, which he believes was the work of several officials.

“There is a coup, like saying there was a coup by General McClellan and his senior leadership in the Union Army to try to thwart what Abraham Lincoln wanted to do in the Civil War,” Bannon said on Fox News Monday. “You have the exact type of coup right now. What was said in that anonymous letter was absolutely outrageous, and I think the president ought to make immediate and direct action to find out who the conspirators are.”

David Bossie, president of Citizens United and Trump’s former deputy campaign manager, claimed the Times op-ed proved “Deep State thugs” on the government payroll are working against the will of the people.

“Once dismissed as a conspiracy theory by the biased liberal media, the Deep State is now exposed for all to see. All Americans should be concerned – particularly the 62 million people who voted for Donald J. Trump for president in 2016,” he wrote in a Fox News opinion column.

The anonymous author seemed to anticipate this critique, declaring themselves and those like them to be a “steady state” rather than a deep one. For Trump’s supporters, that is a distinction without difference.

“I think to Trump’s base, this is absolute proof that there are forces in the establishment conspiring against Donald Trump and trying to marginalize him in his own presidency,” said John Carroll, a Boston-based veteran media analyst.

If the op-ed was truly intended to mollify a nervous nation by demonstrating there are “adults in the room,” it seems it has so far failed to do that. Instead, the column has strengthened doubts about the president’s mental stability on one side and doubts about the loyalty of those around him on the other.

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“This could backfire in any number of ways,” Carroll said. “It could make Trump more impulsive. It could make him less rational. It might even make him pay attention to what is or is not on his desk. So, it may be a self-defeating effort on the part of whoever this is and may alert Trump to what’s going on more than alert the American public.”

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