The signing statement traditionally was a more arcane device that was not really understood, or known, by academics, the press, and the public. And it was in this fuzziness where the signing statement was most valuable. That is to say, if no one is watching and monitoring, then it gives the administration latitude to stretch the language of the law or to refuse enforcement of those provisions which it does not like. But with the Bush administration--and in particular in the second term--that the signing statement became something that everyone, including members of the press, became an expert on. There has been an increase in the number of articles published in academic journals, as well as an increase in the number of scholars who have carved out a slice of the device to study, to both positive and negative effects. Because of the increase in the number of eyes tracking the use of the signing statement, it all but disappeared in the Obama administration (leading one recent paper I reviewed to claim the death of the presidential signing statement). But in comes the Trump administration, and with it, the renewed media interest in the signing statement.
The Trump administration--like everything else it has done to date--has been clumsy in its approach to the presidency and presidential power. I think Trump, if his behavior does not change, will be the first president to break the Reagan administration axiom to leave the power of the presidency in better shape than you found it. This axiom has united all presidents--Reagan through Obama. But not Trump. President Trump has little care for norms and traditions, and really wants the presidency to serve his interests and not vice versa. And if Congress could get its act together, it could reserve a hundred years of power flowing from the legislative branch to the executive branch. That of course is a big IF (I will speak more about Trump and presidential power in a future post).
So as I tuned in to the media coverage of yesterday's signing statement--including yesterday's press briefing with Sarah Huckabee Sanders--I was taken by the effectiveness of using one statement to obscure the other statement. But before I write about this, let me focus a minute on the two statements. I considered both statements as signing statements, something that seems to trip up other interested individuals simply because of administration nomenclature. Yesterday, during the live press briefing, one reporter asked the press secretary:
Sarah, can you clear up some confusion? There were almost simultaneously two signing statements that went out. They had slightly different language. Did you intend to send both out, or was that a mistake?
The press secretary responded:
It was actually one signing statement and one press statement, so that's the difference. One is more of a legal document that goes with the executive secretary, and the other one is a press document. So that's the difference.
This distinction makes no sense whatsoever. A presidential signing statement is a statement by the president that describes the bill he has signed, what it does and doesn't do, who should or should not get credit and/or praise, and how the president intends to deal with provisions that are not clear and/or unconstitutional. What Press Secretary Sanders did was to deliver make believe to the White House press corps. A statement by the president carries the force of the presidency--even if that statement is 140 characters long--and thus should be taken more seriously than, say a White House press release from the Office of the Press Secretary. A press release on the bill President Trump signed yesterday would have likely been written in the passive voice, 3d person:
On Wednesday, August 2, 2017, the President signed into law:
H.R. 3364, the "Countering America's Adversaries Through Sanctions Act," which strengthens and expands statutory sanctions on Iran, Russia, and North Korea, and for other purposes.
How do we know this? Because this was the "press document" actually released by the press secretary to the public and the press noting Trump's signing the bill.
The statement that Sanders refers to as a "press document" and the statement regarded as the signing statement begin exactly the same way: "Today, I have signed into law H.R. 3364, the 'Countering America's Adversaries Through Sanctions Act.'" Both are written in the first person. And, if you look at the White House webpage listing the three documents: the press release and the two signing statements reads as follows:
* President Donald J. Trump Signs H.R. 3364 into Law (press release)
* Statement by President Donald J. Trump on the Signing of H.R. 3364 (signing statement #1)--emphasis added
* Statement by President Donald J. Trump on Signing the "Countering America's Adversaries Through Sanctions Act." (signing statement #2)--emphasis added
Explain to me how or why the second and third bullet point should be considered as different things? The fact is, they are not different. The "Daily Compilation of Presidential Documents has not yet caught up to August, but I guess that when it gets to August 2, it will list statements 2 & 3 above under "Bill Signings" and statement 1 under press releases.
Kudos to the reporter who tried to get the difference out of Sanders, and given how arcane all of this is, I understand why he, or anyone else, decided not to follow up on it.
But two different signing statements on the same bill--with or without a public signing ceremony--is not unusual. I have argued that presidents release two different statements in an effort to misdirect the press, and it is here that I give the administration the nod on the misdirection.
The administration I am sure knew the grief they would receive in issuing the signing statement that downplays the harsh sanctions directed at Russia, and for that understood this statement would receive more scrutiny than any other statement. So that administration issued, as I argued yesterday, a rhetorical signing statement that was highly unusual, comparatively speaking. The rhetorical statement mentioned the failed fight over the "skinny repeal", which had nothing to do with this bill, and it appeared to fluff Trump's ego. I think the administration was betting by throwing these things into the bill, the press would bite, and focus on one, for example, whether the Senate Republicans had anything to say about Trump's personal criticism and two, on Trump's success as a businessman.
So far, in reading and watching the coverage of the signing statement, I have not been disappointed. In today's "Wall Street Journal", page A1, Natalie Andrews and Rebecca Ballhaus quote liberally from the rhetorical signing statement, noting the final line of the statement: "I built a truly great company worth many billions of dollars...As President, I can make far better deals with foreign countries than Congress." In fact, it isn't until deep into the jump that the other statement, with the constitutional challenges, is even mentioned.
So it seems to me that the White House, at least on this particular issue, has understood the value of hiding (potentially) aggressive presidential action out in the open. Whether this learning sticks, as we have seen so far, remains to be seen.
