At the White House

'A PEN AND A PHONE'?: With bipartisan negotiations to end the shutdown at a virtual standstill, President Trump appears to be laying the groundwork for building his wall at the southern border through executive action. The bold move, if it happens, reminds us of similar unilateral action by President Obama when he couldn't get his way with Congress -- something conservatives howled about at the time.

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During an hour-long briefing with reporters yesterday at the White House, Vice President Pence and Homeland Security Secretary Kirstjen Nielsen bolstered the president's case to declare a national emergency to construct a border wall without congressional approval because of a “a humanitarian and national security crisis.”

President Trump will attempt to make the case directly to the American public tonight. He'll deliver his first address to the nation from the Oval Office, carried live by major TV networks, hours before the midnight deadline for payroll to be distributed to the 800,000 furloughed government workers “as originally planned on Friday night.” Trump will then visit to the U.S.-Mexico border on Thursday.

Per The Post's Robert Costa and Philip Rucker: “Vexed by Democrats’ refusal to yield to his demand for $5.7 billion for wall funding, Trump increasingly views a national emergency declaration as a viable, if risky, way for him to build a portion of his long-promised barrier, according to senior administration officials. Although Trump has made 'no decision' about a declaration, Pence said, lawyers in the White House Counsel’s Office are working to determine the president’s options and prepare for any possible legal obstacles.”

Immigration experts maintain the administration is manipulating statistics by alleging that terrorists and criminals are flowing over the border at alarming rates. And current and former lawmakers warn of the repercussions of tapping presidential emergency powers for the wrong reasons.

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“The danger of using an authority like this and stretching it beyond its intended use is that Congress could then take it away, and it could not be used in situations where it’s really needed,” Jeh Johnson, the former Homeland Security secretary under President Obama, told Rucker and Costa.

Fact check from NBC News's Julia Ainsley: “U.S. Customs and Border Protection encountered only six immigrants at ports of entry on the U. S-Mexico border in the first half of fiscal year 2018 whose names were on a federal government list of known or suspected terrorists, according to CBP data provided to Congress in May 2018 and obtained by NBC News. The low number contradicts statements by Trump administration officials, including White House press secretary Sarah Sanders, who said Friday that CBP stopped nearly 4,000 known or suspected terrorists from crossing the southern border in fiscal year 2018.” “U.S. Customs and Border Protection encountered only six immigrants at ports of entry on the U. S-Mexico border in the first half of fiscal year 2018 whose names were on a federal government list of known or suspected terrorists, according to CBP data provided to Congress in May 2018 and obtained by NBC News. The low number contradicts statements by Trump administration officials, including White House press secretary Sarah Sanders, who said Friday that CBP stopped nearly 4,000 known or suspected terrorists from crossing the southern border in fiscal year 2018.”

Fact check from the Associated Press : “Despite their portrayal of Mexico as a teeming portal for terrorists, the State Department issued : “Despite their portrayal of Mexico as a teeming portal for terrorists, the State Department issued a report in September finding 'no credible evidence indicating that international terrorist groups have established bases in Mexico, worked with Mexican drug cartels or sent operatives via Mexico into the United States.'

Another fact check from The Post's Eli Rosenberg on Trump's claim that ex-presidents told him they wanted to build a wall: “There are only four living ex-presidents. The Washington Post reached out to them to see whether they ever told Trump that a border wall should have been built before he was in office: All said they hadn’t. A spokesman for former president George H.W. Bush declined to comment, saying it was too soon for Bush, who died in November, to be “dragged into such debates.” “There are only four living ex-presidents. The Washington Post reached out to them to see whether they ever told Trump that a border wall should have been built before he was in office: All said they hadn’t. A spokesman for former president George H.W. Bush declined to comment, saying it was too soon for Bush, who died in November, to be “dragged into such debates.”

Important underlying thread: There are cracks in the GOP ranks as the shutdown drags into week three...

Per Politico's John Bresnahan and Sarah Ferris: “Several dozen House Republicans might cross the aisle this week to vote for Democratic bills to reopen shuttered parts of the federal government, spurring the White House into a dramatic effort to stem potential GOP defections . . . A senior House GOP aide said McCarthy and his top lieutenants believe 15 to 25 Republicans will vote with Democrats this week, possibly even more.”

Key nugget from Costa and Rucker: “Pence called House Republicans last week and urged them to vote against Democratic measures that would have reopened the government without wall funding, but about a half-dozen broke ranks.”

P.S.: In case you're wondering how, exactly, the president would draw on military funds to build the wall using emergency powers, The Post's Paul Sonne breaks it down:

“The president’s suggestion that he can build the wall by declaring a national emergency would likely hinge on a little-known section of the U.S. Code governing the military. Section 2808 gives the defense secretary the authority to undertake military construction projects “not otherwise authorized by law” to support any troops deployed in a national emergency requiring the use of the armed forces . . . According to a congressional aide, there is about $10 billion left in unobligated funds for military construction in the current fiscal year’s defense budget, in addition to some $13 billion that has rolled over from previous years,” Sonne reports.

'WE RESERVE THE RIGHT': Trump's personal lawyer Rudy Giuliani told Power Up that any decision to block Special Counsel Robert Mueller's final report from being shared with Congress by claiming executive privilege would be made once the White House has seen the report. “But we reserve the right to do it," Giuliani said.

No legal mandate: First reported by Bloomberg News, the White House is considering using executive privilege to “prevent key findings from being turned over" to congressional Democrats. However, there is no legal mandate requiring the special counsel investigating Russia's influence in the 2016 election and possible links to Trump officials to submit the still-unfinished report to Congress. That decision rests in the hands of Acting Attorney General Matthew Whitaker or Attorney General-designate William Barr.

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“I can't just say that we're going to waive executive privilege without knowing what's in it," Giuliani told us. “But we have to keep it from Congress if there's privileged material in there."

More from Bloomberg: “The White House could base an assertion of executive privilege on a 2008 opinion by Attorney General Michael Mukasey, under which information was withheld from Congress concerning the investigation into the leaking of CIA officer Valerie Plame’s identity. The White House also might try to cite former President Barack Obama’s use of the privilege to prevent the release of documents related to the 'Fast and Furious' gun-walking scandal, although a district judge rejected the argument."

Another response in the works: Giuliani told us that progress on a rebuttal to Mueller's report, being drafted by lawyer Jane Raskin, has been in the works “for months" but can't be finished without seeing a final report.

Limiting: A former Department of Justice prosecutor told Power Up there are “limits and holes to executive privilege," but presumably, “it would not apply to anything prior to the election, which is a lot of what is at issue." But perhaps more important for Trump's lawyers to keep in mind:

Optics: “The political consequences of asserting [executive privilege] are usually devastating. Strong Nixonian overtones. Administrations usually try hard not to say they are invoking it (even when they are — calling it instead “legitimate executive branch interests.”) Hard to explain publicly that you have nothing to hide and did nothing wrong when you invoke (executive privilege)," the prosecutor told us.

Furthermore, invoking executive privilege might not even accomplish Trump's goal: “Mueller’s team is smart. They probably planned ahead for the report, and have taken steps to ensure that there is plenty of non-grand jury, unclassified information available to reference/attach to the report."

Sen, Mark Warner (D-Va.), the top Democrat on the Senate Intelligence Committee, argued that Trump's choice of Whitaker and then Barr to head DOJ is telling because they both supported "efforts to curtail the special counsel's investigation": “It’s clear that’s why President Trump picked them for the job, in Whitaker’s case upending decades of precedent by going around the line of succession in [Justice] to do so," Warner told us. "The American people have a right to see to see the results of the Special Counsel’s investigation, and the Attorney General must not stand in the way of that.”

Separately: Giuliani updated us on the president's mood. The ex-New York mayor visited Trump “a couple of times" at the White House over the Christmas break with a “couple of friends of his and mine" to watch football and ate pigs in a blanket. "He really enjoyed being there... it's a great place to watch football." Rudy added: "The White House has wonderful hors d'oeuvres."

Also Monday, Buzzfeed's Zoe Tillman reports on a bizarre in-court sparring session over “relentless personal attacks" on special counsel Mueller by a firm accused of interference in the 2016 election: “The federal judge handling special counsel Robert Mueller’s prosecution of Russian entities and individuals accused of meddling in the 2016 election told the defense on Monday to 'knock it off' with attacks on Mueller’s office."

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“Since prosecutors filed charges of election interference in February, the lead attorney for defendant Concord Management and Consulting, Eric Dubelier, has used strong, and at times pop culture–laden, language in his pleadings. The rebuke from US District Judge Dabney Friedrich came three days after Dubelier filed court papers that questioned the trustworthiness of Mueller’s office. Dubelier compared the government’s arguments to a line from the movie Animal House: 'Flounder, you can’t spend your whole life worrying about your mistakes! You f--ked up ... you trusted us. Hey, make the best of it.'"

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On The Hill

BUT FIRST, SHUTDOWN: Congressional Democrats are pursuing a two-pronged strategy to reopen the government: House Democrats, perhaps with some Republican help, plan to tomorrow start passing individual spending builds to open shuttered agencies. And Senate Democrats are “coalescing behind a plan to block any legislation on the floor that doesn’t reopen the federal government.” The would “paralyze the Senate as the partial government shutdown enters its third week with no end in sight,” wrote The Post’s Seung Min Kim, Erica Werner and Jeff Stein.

Divide and conquer : “With a handful of Republicans in the House and the Senate having broken with the administration’s strategy of keeping the government partially shut during the fight over the wall, House Democrats’ approach of bringing up individual spending bills could serve to further divide the GOP as the shutdown drags on,” Rep. Nita Lowey (D-N.Y.) told Seung Min, Erica and Jeff.

Senate Democrats who would support stalling action in the upper chamber include those with a large population of federal workers as well as a number of 2020 presidential hopefuls, like Sen. Kamala D. Harris (D-Calif.), Sen. Cory Booker (D-N.J.) and Sen. Bernie Sanders (I-Vt.). who would support stalling action in the upper chamber include those with a large population of federal workers as well as a number of 2020 presidential hopefuls, like Sen. Kamala D. Harris (D-Calif.), Sen. Cory Booker (D-N.J.) and Sen. Bernie Sanders (I-Vt.).

Senate Minority Leader Chuck Schumer (D-N.Y.) has told the rest of his caucus he would oppose advancing the first bill on the Senate floor this year authorizing security assistance to Israel and aimed at promoting security in the Middle East.

Key quote: The new approach marks a shift toward a more confrontational strategy for Democrats — though Sen. Tim Kaine (D-Va.) framed it as a moral decision: “As leaders, we can’t just whistle past the graveyard of this crisis,” : The new approach marks a shift toward a more confrontational strategy for Democrats — though Sen. Tim Kaine (D-Va.) framed it as a moral decision: “As leaders, we can’t just whistle past the graveyard of this crisis,” he tweeted

The People

STORIES FROM A SHUTDOWN: There's the FDA contractor who has had to tend bar and also may start driving for Uber. And the NASA engineer who is trying to make it as a real-estate agent. The worker in Maryland who apparently had to sell off her children's toys to make ends meet. And then the diplomat who has a whole bevy of side hustles — as a writer of paid product reviews, a pet sitter, a bartender and a notary public. Across the country and all over the federal government, furloughed workers have had to turn to second (or third and fourth) jobs to pay their bills during the shutdown.

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As The Post's columnist Petula Dvorak wrote, a partially closed government means “federal workers are testing the shark-infested waters of the herky-jerky, eat-what-you-kill gig economy by finding side hustles to make ends meet. They’re hiring themselves out as dog walkers or editors. Some are offering cheap language lessons or working as babysitters. A gig here, a contract there.” Here are a few of their stories:

That veteran diplomat , who spoke to The Post on the condition of anonymity, is in charge of analyzing international affairs at the State Department. Since the shutdown, she's been doing her government job, while also reviewing consumer products like eyeliner — yet only her job as a products reviewer pays her. Her work at State “is deemed so essential to the nation’s security that she was ordered back to work this week. Without a paycheck for now. So to earn any income, she has to juggle weighty diplomatic and military matters with her side gigs,” Dvorak wrote.

Tyra McClelland , who works for the Court Services and Offender Supervision Agency, has had to juggle the costs of her daily medication, gas for her car and her kid's school lunch. At one point, she said, she had to choose between buying allergy medicine and food. “This hurts so much. That’s all I have to say,” she told reporters at a press conference.

Johnny Zuagar , who works as a statistician for the Census Bureau, has worked for the federal government for 15 years and has never before considered leaving — even during past shutdowns. Yet, this time around feels different, he said. "I’ve got to take care of my family," Zuagar said. “As I look at my kids, I say I can’t go through this all the time. It’s very hard to work for people who don’t seem to care about you.”

Crystal Minton, a 38-year-old secretary at a federal prison in Florida's Panhandle forced to relocate to Yazoo City, Miss., after Hurricane Michael, told the New York Times's Patricia Mazzei that “she had obtained permission from the warden to put off her Mississippi duty until early February because she is a single mother caring for disabled parents. Her fiance plans to take vacation days to look after Ms. Minton’s 7-year-old twins once she has to go to work. The shutdown on top of the hurricane has caused Ms. Minton to rethink a lot of things.”

Kicker: “I voted for him, and he’s the one who’s doing this,” Minton told the Times of Trump. “I thought he was going to do good things. He’s not hurting the people he needs to be hurting.”

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