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By Kerri Barber

Two men stand at the center of years of controversy. From draconian and heartless  immigration policies to indifference towards the Bill of Rights, Attorney General William Barr and Acting Department of Homeland Security Director Chad Wolf have spent  decades preparing for this moment. Today, they are testing the waters for all out authoritarian rule and the end of representational democracy in the United States. 

Wolves at the Door

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Chad Wolf, acting Secretary of the Department of Homeland Security (DHS) and Under Secretary of Homeland Security for Strategy, Policy, and Plans

Even before Chad Wolf was appointed as the acting Secretary of the Department of Homeland Security (DHS) and Under Secretary of Homeland Security for Strategy, Policy, and Plans, he was well known in Washington. He had been a lobbyist and Assistant Administrator for Transportation Security Policy under Bill Clinton. The swamp never quite drains with each new administration, just dredges bureaucrats into new roles. 

One of the roles Wolf held was with the small group of security thought leaders who crafted the infamous family separation policy that had  displaced  over 2,500 children with 1,500 still unaccounted for. And on the streets of Portland, Oregon, his federal coalition  of troops is terrorizing American citizens using what he calls “preemptive” arrests without Due Process. 

It is exactly this disregard for the law that made Wolf the perfect foil to help William Barr realize his intentions for the country. 

Wolf’s career and penchant for ignoring legality made him the right prospect to enact policy crafted by Attorney General William Barr. Barr has succeeded in folding the entirety of the Justice Department and the White House Office of Legal Council into a singular entity that he effectively leads. Both offices had been a counterbalance to each other, but as Barr led both offices under various administrations, it was naturally easier to consolidate them in principle and mission, with his direction driving operations across both organizations. 

Moral and legal questions aside, Barr has succeeded there and in neutralizing opposition from the Department of State, an entity with numerous unfilled vacancies after a massive exodus of leaders and key staffers who resigned early in the Trump presidency. During the 2019 impeachment trial, even more diplomats and foreign service workers resigned as Trump himself seemed intent on gutting the entire foreign service corps. 

At the core of this cabal is a small army of high-level appointees, mere agency figureheads, to enact the policies Barr has imagined for decades; policies that are clearly unconstitutional and on full display in Portland, Oregon today. 

The warning signs have been evident for decades. Even as this administration grew bolder, the evidence was there. James Risen wrote for the Intercept in June 2020 with a clear  understanding of Barr’s obvious intent:

“Under Barr, the Department of Justice has two objectives: to suppress any investigation of President Trump and his associates, and to aggressively pursue investigations of his political rivals. The attorney general has turned the Justice Department into a law firm with one client: Donald Trump. Barr doesn’t even hide his intentions any longer.”

Risen points to the Flynn case and the firing of Geoffrey Berman, the U.S. attorney for the Southern District of New York. Both are evidence to support the operational merger Barr  had orchestrated instead of the measured check on executive power. Yet the installation of figurehead appointees has encompassed nearly every federal agency in the country with some, like Chad Wolf and his second at DHS, now serving illegally.  

Washington’s Revolving Door

Wolf has long been a beneficiary of the revolving door in Washington, D.C. He served former Defense Secretary and former Republican Senator Chuck Hagel (R-Nebraska), Senators Kay Bailey Hutchinson (R-Texas) and Phil Gramm (R-Texas) before being appointed to the Transportation Security Administration to help implement security policy there. 

Wolf has also been a frequent guest on MSNBC  and CSPAN to comment on TSA policy and security measures during a time when he served as an executive at a lobbyist firm. Neither he nor the networks disclosed this to viewers although he spoke on policy while representing the interests of his firm, Wexler & Walker. This firm shuttered in 2018, but had been owned and created by former Republican and Democratic Congressional staffers for foreign partners and a foreign conglomerate who still owns several lobbying firms in Washington, D.C. 

Wolf marched back through the revolving door in 2018, taking a role at the Department of Homeland Security under acting Homeland Security Secretary, Kevin McAleenan. McAleenan was appointed by Trump to head the department on April 8, 2019, but resigned within six  months, reportedly for disagreements with the Trump Administration’s ‘Zero Tolerance Policy’ for immigration and family separation. However, it was McAleenan who helped oversee expansion of part of this program that paid Mexico to set up internment camps for the United States on the Mexico side of the border. This area has become a killing field for immigrants who are being preyed upon by gangs and sometimes Mexican border agents. 

Wolf never took issue with the draconian policy against immigrant families. In fact, he helped craft the policy himself. His tenure at various quasi law enforcement agencies coupled with an apparent lack of legal acumen, made him particularly apt to enact nationalistic policy. Wolf was  the obvious choice to step into the leadership role, despite objections from some in Congress, such as Representative Torres (D-CA) who penned a public statement about her objections. 

State-Sanctioned Kidnapping

Chad Wolf supported separating immigrant families who were legally seeking asylum at the southern border. Wolf argued that this harsh deterrent for the mass immigration influx from South America was effective and viable. Asylum seekers were leaving countries where civil unrest and authoritarian rule had become violent and starvation was a risk, along with threats of kidnapping and gang violence. 

None of that mattered in a Trump Administration supported by the ideals of white nationalists who abhorred the idea of more Latinos coming into the country. Democrats could only make passing objections themselves as they had built the camps that were now full of asylum seekers while  representatives like Debbie Wasserman Schultz (D-FL) were courting donors who profited from these facilities. 

Wolf was a proponent of extraordinary measures, which ultimately amounted to taking the one valuable thing parents had left – their children – as it would theoretically deter people from attempting to seek asylum in the United States. He and his colleagues argued that removing children from their parents made them “unaccompanied minors” and stripped them of any legal status. This effectively enabled state-sanctioned kidnapping to remove the rights of parents as guardians and deny children any legal asylum status. 

When questioned by Congress about the policy he helped create, Wolf said, “My job wasn’t to determine whether it was the right or wrong policy. My job, at the time, was to ensure that the secretary had all the information.”

To make matters worse, children have been deported back to their home countries without their parents’ knowledge or shipped off to adoption agencies profiting from legal adoptions. 

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Exhibit5: Memo detailing the intent to separate children to circumvent the law, a plan that Wolf initially denied until this memo surfaced, 2019 Senate hearing (link)

Many of these adoption agencies are tied to Evangelical ‘Pro-Life” groups. One agency, Bethany Christian Services, has a close relationship to Secretary of Education Betsey DeVos and her immediate family. This agency came under scrutiny for its role in the sale of children through adoption to white parents, which they vehemently denied, while offering no proof to refute these claims. They posted a statement on their website and link to the HHS FAQ site

A Snopes investigation confirmed:

“…between 2001 and 2015, the Dick and Betsy DeVos Foundation (the philanthropic organization run by DeVos and her husband) gave $343,000 in grants to Bethany Christian Services. 

“Between 2012 and 2015, Bethany received $750,000 in grants from the Richard and Helen DeVos Foundation, which is run by the Education Secretary’s father-in-law, the billionaire founder of Amway Richard DeVos, and his wife Helen.

“Furthermore, Brian DeVos — a cousin of Betsy DeVos’s husband Dick — was the Senior Vice President for Child and Family Services at Bethany as recently as 2015, and Maria DeVos — who is married to Dick DeVos’s brother Doug — has served on the board of Bethany.”

News of the atrocities being committed against refugees and asylum seekers reached the rest of the world and allied trade partners. The United Nations decried these human rights violations and warned the United States about violating the law through child separation. 

Ravina Shamdasani, a spokeswoman for the Office of the United Nations High Commissioner for Human Rights wrote, “…[The policy] amounts to arbitrary and unlawful interference in family life, and is a serious violation of the rights of the child. The U.S. should immediately halt this practice of separating families and stop criminalizing what should at most be an administrative offense — that of irregular entry or stay in the U.S.” 

In July 2019, the UN introduced a resolution to condemn the United States and Mexico for treatment of asylum seekers at the border. The final resolution of condemnation was ratified in less than two weeks. The condemnation reads in part: 

“…whereas depriving children of their liberty on the basis of their or their parents’ migration status is never in the best interests of the child, exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children; whereas any deprivation of liberty affecting adult migrants and asylum seekers should be a measure of last resort and, if it must occur, should be for the shortest possible period of time, with the safeguards of due process and in conditions that comply in full with all relevant international human rights standards;

“whereas a federal judge in San Diego ordered the US administration to halt separation in June 2018; whereas, nevertheless, separations have continued to be enforced by US Customs and Border Protection, according to data provided to the federal judge, with at least 245 children having been removed from their families since June 2018, in many cases with no clear documentation to help track the children’s whereabouts;

“whereas by December 2018, the US Department of Health and Human Services had identified 2,737 separated children, while recognizing that thousands more might have been separated since 2017 without the administration being able to identify them owing to the lack of an efficient tracking system;

Attorney General William Barr wrote a rebuttal to the federal judgewilliambarrlayfayettepark in San Diego cited by the UN against the ‘Zero Tolerance Policy’ saying, “These days, virtually every significant congressional or presidential initiative is enjoined—often within hours—threatening our democratic system and undermining the rule of law.” 

Barr gave no further consideration to the illegality of the initiative enjoined in the first place, the warnings from United Nation allied members, and neither would he be questioned for the glaring omission. 

Retaliation and Deception

Senator Jeff Merkley from Oregon received a leaked DHS memo from an agency whistle blower that outlined the family separation policy. Merkley made the memo and DHS’s intentions known all while DHS department heads continued to deny their own policy being systematically implemented at facilities across the country. 

WATCH Senator Merkley discuss the memo Jan 2019 

It is no coincidence that Oregon has now become the first target of the dubious federal policy shift by DHS, for extraordinary police powers in the form of federal troops in Portland. 

Wolf has implemented directives created in 1989 when William Barr assisted in drafting them as a member of the Department of Justice under President George H.W. Bush. These legal guidelines had not been available to the public until now. In this first of the 25 year old released guidelines, the issue of federal jurisdiction is proposed repeatedly to supersede the state’s legal statutes. 

Barr has also been opposed to whistle blower statutes and The False Claims Act (31 U.S.C. Sections 3729 through 3733). Under the False Claims Act, qui tam which allows persons and entities with evidence of fraud against federal programs or contracts to sue the wrongdoer on behalf of the United States Government. 

As far back as 2001, Barr has gone on public record about his beliefs that the federal government, namely the executive branch, had rights that superseded others and sought to undermine protective statutes. 

During an April 2001 interview, Barr recounts a disagreement with the whistle blower protection law: 

“Yes, there were significant disagreements sometimes between the SG’s [Solicitor General] office and my office on a position. One of the big ones was the qui tam statute, which is basically a bounty hunter statute that lets private citizens sue in the name of the United States and get a bounty. I felt then, and feel now, that is an abomination and a violation of the appointments clause under the due powers of the President as well as the standing issue of the Supreme Court.”

Barr’s assertion is curious with respect to the federal appointments clause and whistle blowers until you consider the nomination of Clarence Thomas to the United States Supreme Court. Barr had been working with the Office of Legal Counsel and knew of Anita Hill’s deposition with allegations of sexual harassment against Thomas. Her statements were highly problematic and afforded her whistle blower status under the law. 

In this same interview, Barr recalls that he and the Justice Department had held the reigns of policy power during the Reagan and George H. W. Bush administrations:

“Even in setting policy, the actions of the Justice Department and the Attorney General, whether it was Thornburgh or me—we had 900-pound gorillas within our domain, and no one would cross us…Policy was clearly in the Department of Justice. We could do anything. We just had to say, ‘Here’s what we want to do’. And the White House guys would say ‘fine’.”

Barr has been used to and content with not being questioned either by the White House nor the Justice Department. He has even cited his own opinions during Congressional testimony and yet redacted those same cited opinions from his prior service in the Justice Department. The Knight Institute has since filed a FOIA lawsuit to get these opinions published in full, as a matter of public record. 

Appointees like Wolf are taking orders from Barr and are happily parroting the same bogus legal arguments. 

Talking Points Memo journalist, Cristina Cabrera, covered Wolf’s recent comments outlining this exact same faux legal theory, writing, “[Wolf] derided the “ridiculous” notion that federal law enforcement should not take over a city without local leaders’ permission.” 

Wolf himself said, “You need to hold individuals accountable, and when we don’t do that, I think we get what we see in Portland today. I don’t need invitations by the state, state mayors or state governors to do our job. We’re going to do that, whether they like us there or not.”

chadwoldfoxnewsquote

However, neither Wolf nor Barr have offered a single legal statute, guideline, nor Congressional act that provides the authority they now claim to abrogate the United States Constitution and suspend the rights of US citizens. 

In fact, municipal District Attorneys in several states have now threatened Wolf and any federal agent with arrest and prosecution if they attempt to enact the same policies within their borders. Add to this, Congressional intelligence committee members growing concerned over leaked internal Department of Homeland Security memos outlining plans to increase surveillance activity outside the scope of normal operations. 

In a letter dated July 22, 2020, Representative Adam Schiff (D-CA) expressed concern directly to Wolf and his second, acting Undersecretary for the Office of Intelligence and Analysis, Brian Murphy. Schiff wrote about the apparent effort to circumvent their processes and authority to, “…expanded intelligence…in support of a policy that exceeds the Department historical mission, and contrary to constitutionally-protected rights of free speech…” 

Wolf’s Lack of Authority

Wolf is quick to call out the need for accountability, but has overlooked his own violations of the law. His very authority as head of DHS is in question. Wolf was confirmed as Undersecretary on November 13, 2019 and later appointed to acting Secretary of DHS. He has served as acting secretary far longer than the 210 day limit as an appointee.

All that was needed was a Senate confirmation, but Majority Leader Mitch McConnell has not seen fit to schedule one in the Republican controlled Senate.  

These appointments across most federal agencies, specifically the appointment of Chad Wolf himself, violate federal law known as Federal Vacancies Reform Act (FVRA) which allows no more than 210 days of service for any appointee without Congressional approval. Civic and conservation groups have already filed lawsuits against other appointments also in violation of this law, such as those DHS, the Bureau of Land Management and the Parks Department. 

Writing for the Washington Post, journalist Aaron Blake, detailed the excess of appointment roles within the Trump Administration in February 2020, noting this administration had circumvented Congress through appointment of, “… acting officials in Cabinet-level jobs for more than 2,700 combined days across 22 jobs — about 1 out of every 9 total days.”

Blake confirms the illegal nature of Wolf’s service through Brianne J. Gorod, chief counsel of the Constitutional Accountability Center, who said:

“To start, there is reason to think that Wolf never validly became acting secretary in the first place. But even if he did, the FVRA imposes strict time limits on how long offices can be filled by an acting official, precisely to guard against evasions of the Senate advice-and-consent role. And the period during which the office of DHS secretary can be filled by an acting officer under the FVRA has long since ended.” 

 

Deputy Secretary of Homeland Security, Ken Cuccinelli, has also exceeded the 210 limitation as has Deputy Secretary of Transportation, Steven Bradbury and Director of the Office of Personnel Management, Margaret Weichert

States Rights or Federal Rule

In Portland, the legal question now becomes one of states’ rights over the federal government. In Portland, federal troops have been asked to leave by order of the governor. Wolf has refused to remove his federal troops. 

This official refusal now brings the Tenth Amendment into focus, which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 

This amendment was enumerated in the Bill Of Rights precisely to prevent an overreach by a tyrannical government similar to that which the framers of the Constitution had witnessed first hand. We are now witnessing the same overreach in Portland and soon in cities all across the country. 

Among the infractions cited by various legal cases already filed by the ACLU and other groups alleging unlawful law enforcement are:

    • Infringement of First Amendment rights to free speech and freedom of assembly
    • Violations of the First Amendment shielding peaceful protestors from retaliation for actions by fringe minority aggressors, known as “Heckler’s Veto” (This is blaming “Antifa,” or other small groups for rioting then acting aggressively toward the majority of peaceful protestors.) 
    • Improper or no identification of officers
    • Improper detainment of citizens without probable cause
    • Arrests made without proper authority and informing the suspect of that authority
    • Arrests made and the suspect not brought before a judge or magistrate “swiftly: as required by state law
    • Improper detainment of citizens by Immigration Officers without witnessing nor evidence  of an immigration violation
    • Federal officers improperly enforcing state law without jurisdiction  and without training and certification
    • Improper use of facial recognition and other  software used to track citizens
    • Violations of the Fourth Amendment involving unlawful search and seizures
    • Unlawful targeting and arrest of journalist and legal observers

The last vestige of democracy may hinge on the success of a small handful of lawyers within the states attempting to hold back the overreach of the federal government. Oregon’s Attorney General has already lost her request for a restraining order while continuing to build a criminal investigation. The ACLU has succeeded in getting a federal judge to agree journalists and legal observers can no longer be targets of arrest and aggression.

While the lawsuits in Portland wind through courts, federal officers are being deployed to sanctuary cities across the country.  

Barr and Wolf are on the cusp of realizing years of planning coming to fruition. Centrist conservatives and liberals wring their hands over legal controversy while Barr has his appointed loyalists in nearly every federal agency willing to play an active role in this usurpation of power. They are quite literally reshaping the national framework as we know it.

They have spent decades preparing to implement authoritarianism and an end to what they view as a failed experiment of American democracy. This is how they will solve what Conservatives erroneously cited as ‘an overpopulation problem’ and address the effects of climate change on limited resources. The challenge ahead will be in recognizing the scope of this undertaking and avoiding reactionary half-step measures that keep the entire country on edge and help usher in the downfall of democracy.