Category Archives: Current Affairs

Legal issues surrounding fake news: An analysis

“Fake news” has garnered substantial attention recently but the authors of Fake News: A Legal Perspective, Journal of Internet Law (Apr. 2017) note that no legal discussion of issues surrounding the publication of fake news have appeared in the legal literature. “This [brief] article evaluates examples of fake news publications to present a workable definition of “fake news” for purposes of our legal analysis. We then explore many of the legal and regulatory hurdles facing online fake news publishers. This article concludes by discussing some of the legal protections available to fake news publications and publishers of other online content.” — Joe

Suggested articles of impeachment for President Trump

The time has come for Congress to act and for leaders on both sides of the aisle to put country before party and politics. Speaker Paul Ryan and Majority Leader Mitch McConnell ought to, in cooperation with Democratic leaders, begin the sequence of events that would likely lead to impeachment and removal proceedings for Trump. Given that this is unlikely, Democrats should make clear of their intentions to do what is necessary under our Constitution should they win back control of the House of Representatives in 2018. This process should be as full, fair, and transparent as our Constitution requires. Anything less would demean and harm the country even more than Trump has already done. — Phillip Carter, A first draft of an impeachment bill for the president, Salon, May 16, 2017

Echoing similar sentiments, Keith E. Whittington warns “If the impeachment power is perceived to be little more than a partisan tool for undermining elected officials and overturning election results, then the value of elections for resolving our political disagreements is significantly reduced. We do not want to be in a situation in which neither side trusts the other to continue adhering to the most basic democratic norms of abiding by election results.” Keith E. Whittington, An Impeachment Should Not Be a Partisan Affair, Lawfare, May 16, 2017.

Short of the Democrats winning a majority of seats in the House in the 2018 congressional elections, it is hard to imagine the Republican controlled House of Representatives bringing articles of impeachment against President Trump because impeachment has been a partisan political action for quite a while now. See Richard K. Neumann, Jr., The Revival of Impeachment as a Partisan Political Weapon, 34 Hastings Constitutional Law Quarterly 161 (2007). But if viewed as a thought experiment, Phillip Carter has offered a “first draft” of an impeachment bill. The drafted articles of impeachment he identifies are listed below:

Article 1: Compromising the integrity of the presidency through continuing violation of the Constitution’s Emoluments Clause.

Article 2: Violation of his constitutional oath to faithfully execute the duties of his office by disregarding U.S. interests and pursuing the interests of a hostile foreign power, to wit, Russia.

Article 3: Impairment and obstruction of inquiries by the Justice Department and Congress into the extent of the Trump administration’s conflicts of interests and Russia ties.

Article 4: Undermining of the American judicial system through felonious intimidation of potential witnesses.

Article 5: Undermining of his office and the Constitution through repeated assaults on the integrity of the federal judiciary and its officers.

Article 6: Demeaning the integrity of government and its public servants, particularly the military and intelligence agencies, in contravention of his constitutional duties to serve as chief executive and commander in chief of the armed forces.

Looks comprehensive to me. See Phillip Carter, A first draft of an impeachment bill for the president, Salon, May 16, 2017 for his explanations for each draft article of impeachment . See also, The Republican’s Guide to Presidential Behavior, New York Times editorial, May 13, 2017 (“What do Paul Ryan, Mitch McConnell and other Republican leaders think a president may say or do and still deserve their enthusiastic support? We offer this handy reference list in hopes of protecting them from charges of hypocrisy in the future. They can consult it should they ever feel tempted to insist on different standards for another president.”)  — Joe

Meet Robert Mueller

Robert Mueller was named special counsel by the DOJ to probe Trump-Russia ties yesterday. See Text of DOJ Order No. 3915-2017 (May 17, 2017). That event lead to the publication of several profile pieces in the press. If interested, see Tal Kopan, Who is Robert Mueller? CNN, May 17, 2017; Maura Dolan, Meet Robert Mueller, the former San Francisco lawyer chosen to lead the Trump-Russia investigation, Los Angeles Times, May 17, 2017; and Tierney Sneed, Who Is Robert Mueller? Ex-FBI Director Takes Over Russia-Trump Probe, Talking Points Memo, May 17, 2017. — Joe

Fitness to serve: Presidential disability under the 25th Amendment

Presidential disability is viewed by some as a long-shot alternative to impeachment for removal of a sitting president. Sections 3 and 4 of the 25th Amendment govern cases of presidential disability. Under section 3, if the President declares (in a written declaration to the Speaker of the House of Representatives and the President pro tempore of the Senate) that he is disabled for any reason, the Vice President assumes his powers and duties as Acting President. Section 4 provides for cases in which the President may not be able to transmit a disability declaration. In these circumstances, the Vice President and the cabinet or “such other body as Congress may by law provide” can, by majority vote, declare the President to be disabled. It also empowers the President to declare his disability ended, again by written declaration, and resume his powers and duties. If, however, the Vice President and a majority of either the cabinet or other Section 4 body, rule otherwise, then Congress decides the issue. A vote of two-thirds of both houses within 21 days is required to determine the President to be disabled and continue the disability; otherwise, he resumes his powers and duties. Neither section 3 nor section 4 has been invoked since the amendment was ratified.

According to the CRS report, Presidential Disability: An Overview (July 12, 1999, RS20260) “Constitutional historians note that the [disability] clause does not define disability or differentiate between it and inability, although contemporary dictionaries characterized the former as a complete lack of power, and the latter as lack of ability to do a certain thing. Further, while specifying who acts as President in the event of presidential disability (the Vice President), the clause provides no guidance on how it would be invoked, by whom, or for what length of time, or on how a disability could be terminated or rescinded.”

In Burden of Decision: Judging Presidential Disability Under the Twenty-Fifth Amendment, 30 Journal of Law and Politics 97 (2014), Daniel J. T. Schuker offers an approach to understanding, classifying, and assessing cases of presidential disability by distinguishing between (1) persistent or temporary physiological incapacity; (2) persistent or temporary logistical incapacity; (3) persistent or temporary physiological impairment; and (4) persistent or temporary logistical impairment. “During crises of presidential disability, administrations have felt obliged to devise ad hoc solutions. The framework developed here poses three basic questions to formulate a legal diagnosis of a President’s condition: How severe is the disability? When is the disability expected to end? Where is the disability located? The new framework indicates, based on a given diagnosis, who — either the President or the Vice President with other designated officials — would be best positioned to determine whether to invoke the Twenty-Fifth Amendment. This systematic approach, grounded in historical experience, should mitigate the uncertainties of what has so often proved a politically charged and disorderly process.” — Joe

Reality checks on impeachment talks

Within the last 24 hours, both Time and NPR outlined conditions under which President Trump might be impeached after the recent disclosure of the existence of Comey’s CYA memo of his private meeting with President Trump about the Flynn investigation. In How Difficult Would It Be to Impeach President Trump? Time’s Katie Reilly identified the following conditions as necessary:

  1. Impeachment talk would need to be taken seriously
  2. Critics would need to settle on one argument
  3. There would need to be more evidence
  4. The House would need to decide there are grounds for impeachment
  5. The Senate would need to find the President guilty
  6. There would need to be public support for impeachment

In Trump Impeachment Talk Grows From Conspiracy Theory To Mainstream, NPR’s Domenico Montanaro writes that “a lot has to happen — and a lot of facts gathered — before anyone gets down the road to impeachment.” Steps to the possible road to impeachment include:

  1. The memo has to be produced
  2. Comey has to testify on the record and in public about the memo and the meeting
  3. There have to have many willing Republicans to go along
  4. Is this obstruction of justice?

Wait and see. — Joe

CRS reports on special counsels, independent counsels and special prosecutors

On May 11, 2017, the Congressional Research Service released Special Counsels, Independent Counsels, and Special Prosecutors: Investigations of the Executive Branch by the Executive Branch. From the introduction:

Under constitutional principles and authorities, Congress has no direct role in federal law enforcement and is limited in its ability to initiate appointments of any prosecutor for any particular matter in which there may be allegations or concerns about wrongdoing by public officials. Instead, criminal investigations and prosecutions have generally been viewed as a core executive function and are a responsibility of the Executive Branch. However, because of the potential conflicts of interest that may arise when the Executive Branch investigates itself, as a historical matter there have often been calls for an independently led inquiry to determine whether executive officials have violated criminal law. In the past, Congress has authorized independent counsels, who were requested by the Attorney General and appointed by a judicial panel, but that authority lapsed in 1999. Currently, the Attorney General has regulatory authority to appoint a special counsel to investigate allegations that may present a conflict of interest for the Department of Justice (DOJ).

Focusing on the role of Congress, see also, Independent Counsels, Special Prosecutors, Special Counsels, and the Role of Congress (June 20, 2013, R43112). This report provides information on the procedure for the appointment of an “independent counsel,” a “special prosecutor,” or a “special counsel” to investigate and prosecute potential or possible violations of federal criminal law by officials in the executive branch of the federal government and in federal agencies. Specifically examined is the role or authority of Congress in requiring an independent or special counsel investigation of executive branch officials.

— Joe

CRS report on protecting classified information

One snip from The Protection of Classified Information: The Legal Framework (Jan. 10, 2013, RS21900):

The Supreme Court has never directly addressed the extent to which Congress may constrain the executive branch’s power in this area. Citing the President’s constitutional role as Commander-in-Chief, the Supreme Court has repeatedly stated in dicta that “[the President’s] authority to classify and control access to information bearing on national security … flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” This language has been interpreted by some to indicate that the President has virtually plenary authority to control classified information. On the other hand, the Supreme Court has suggested that “Congress could certainly [provide] that the Executive Branch adopt new [classification procedures] or [establish] its own procedures—subject only to whatever limitations the Executive Privilege may be held to impose on such congressional ordering.”

— Joe

Is the National Popular Vote Compact a better way to elect the next president?

“The National Popular Vote Compact would bring every state and every voter into play. National candidates would be incentivized to campaign all over the nation, not just in today’s ‘battleground’ states.” — Karen Hobert Flynn, A Better Way to Pick the Next President: The National Popular Vote Compact, The Daily Beast, Nov. 25, 2016.

In More states consider working around the Electoral College (Dec. 23, 2016), AP’s Susan Haigh wrote “Frustrated after seeing another candidate secure the presidency without winning the national popular vote, mostly Democratic lawmakers in several capitols want their states to join a 10-year-old movement to work around the Electoral College.” That movement centers on the National Popular Vote Compact (NPVC). The NPVC is an interstate compact in which member states will allocate all of their electoral votes to the winner of the national vote, as opposed to the traditional state vote. It relies on the Constitution’s grant of authority to the states in Article II, Section 1, to appoint presidential electors “in such Manner as the Legislature thereof may direct…. ”

Here’s how it would work. Any state that joins the NPV compact pledges to award all its electoral votes to the winner of the national popular vote in all 50 states and the District of Columbia, regardless of who wins in that particular state. The compact would, however, come into effect only if its success has been assured; that is, only if states controlling a majority of electoral votes (270 or more) join the compact. If enacted by enough states, the NPVC would all but put an end to the Electoral College, and we might be able move to a direct national vote for president, without a constitutional amendment. See generally, the CRS report, The National Popular Vote Initiative: Direct Election of the President by Interstate Compact (Dec. 12, 2014, R43823).

Ten states (CA, HI, IL, MA, MD, NJ, NY, RI, VT, WA) and the District of Columbia, which jointly control 165 electoral votes, have enacted into law the Compact. It has passed at least one house in 12 additional states with 96 electoral votes (AR, AZ, CO, CT, DE, ME, MI, NC, NM, NV, OK, OR)  and been approved unanimously by committee votes in two additional states with 27 electoral votes (GA, MO). See the National Public Vote website. This tally has led Salon’s Maegan Carberry to conclude “Optimistically, we’re 23 new electoral votes away from ridding ourselves of the Electoral College. It’s something that could be managed through strategically pressuring a handful of state representatives.” Quoting from Why doesn’t anyone know we’re incredibly close to replacing the Electoral College with the popular vote? Salon, May 7, 2017. See also, Chris Bowers, The surprisingly realistic path to electing the president by national popular vote by 2020, Daily Kos, Nov. 9, 2016. But see, Mark Joseph Stern, Yes, We Could Effectively Abolish the Electoral College Soon. But We Probably Won’t, Slate, Nov. 10, 2016.

Realistic? Hell if I know. Certainly the Founding Fathers opposed the direct election of the president. But Vikram D. Amar’s The Case for Reforming Presidential Elections by Subconstitutional Means: The Electoral College, the National Popular Vote Compact, and Congressional Power, __ Georgetown Law Journal ___  addresses and debunks various criticisms of the National Popular Vote Compact movement. The essay then “turns to the key question of whether a national popular vote with different voting rules in each state is workable, and in particular the sources of power Congress has to remedy any problems with the design of the current National Popular Vote Compact plan being adopted by many states. There are good arguments in favor of Congressional power to iron out difficulties, especially once a compact is up and running. For this reason, the idea floated by some that only a constitutional amendment can bring about a national popular vote is misguided.” Quoting from the abstract. See also, Michael Brody’s Circumventing the Electoral College: Why the National Popular Vote Interstate Compact Survives Constitutional Scrutiny Under the Compact Clause. But see, Norman R. Williams’ Why the National Popular Vote Compact Is Unconstitutional, 2012 BYU L. Rev. 1523 and John Samples’ A Critique of the National Popular Vote Plan for Electing the President, Cato Policy Analysis Series, No. 622, Oct. 13, 2008.

Good idea? Doable? For an example of the legislative enactment of the NPVC, see the text of Maryland’s legislation. — Joe

What is ‘obstruction of justice’?

In the United States, obstruction of justice is a crime that arises when someone tries to prevent, impede, or influence the administration of justice — a cloud that now hangs over President Trump’s firing of former FBI director Comey. See, e.g., Notre Dame law prof Jimmy Gurulé’s May 11, 2017 CNN commentary, Could Trump have obstructed justice? Professor Gurulé suggests readers read the law and compare it to the events unfolding in Washington because it appears that the actions of Donald Trump meet some of the required criteria for obstruction of justice.

“The general federal obstruction of justice provisions are six: 18 U.S.C. 1512 (tampering with federal witnesses), 1513 (retaliating against federal witnesses), 1503 (obstruction of pending federal court proceedings), 1505 (obstruction of pending congressional or federal administrative proceedings), 371 (conspiracy), and contempt,” quoting from the CRS report, Obstruction of Justice: An Overview of Some of the Federal Statutes That Prohibit Interference with Judicial, Executive, or Legislative Activities, (Apr. 17, 2014, RL34303). The report adds “there are a host of other statutes that penalize obstruction by violence, corruption, destruction of evidence, or deceit.” — Recommended. — Joe

CRS report on the appointment and tenure of the FBI director

The FBI director is appointed by the President by and with the advice and consent of the Senate. The position of FBI Director has a fixed 10-year term, and the officeholder cannot be reappointed, unless Congress acts to allow a second appointment of the incumbent. There are no statutory conditions on the President’s authority to remove the FBI Director. FBI Director: Appointment and Tenure (Feb. 19, 2014, R41850) provides an overview of the development of the process for appointing the FBI director. — Joe

Tribe: “It’s now up to Congress to save the Constitution by initiating impeachment proceedings. Trump can’t say ‘You’re fired’ to the House of Reps.”

“This is a tense and uncertain time in the nation’s history. The president of the United States, who is no more above the law than any other citizen, has now decisively crippled the F.B.I.’s ability to carry out an investigation of him and his associates. There is no guarantee that Mr. Comey’s replacement, who will be chosen by Mr. Trump, will continue that investigation; in fact, there are already hints to the contrary.” — New York Times editorial, Donald Trump’s Firing of James Comey (May 9, 2017)

On May 9, 2017, President Trump fired former FBI director James Comey. Here’s a document that includes President Trump’s letter to Director Comey, AG Sessions’ letter to President Trump, and the DOJ legal analysis and recommendation to fire Comey. See also, Annotated letter: The Trump administration’s case for firing FBI Director James Comey, Los Angeles Times, May 10, 2017.

In the wake of that news, Democrats in Congress — and a few Republicans — rose to demand a special prosecutor for the Russia investigation last night. More Than 100 Lawmakers Respond to Comey Firing by Calling for Independent Russia Probe, Mother Jones, May 9, 2017. Some people went even further.

Last evening Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School called on House Speaker Ryan to begin an impeachment proceeding immediately in this tweet: “Not even a special counsel whom Trump can sack will suffice. If Ryan has any integrity at all he MUST initiate an impeachment inquiry NOW!” Tribe followed up this morning, tweeting “This fox is emptying the henhouse. Trump has crossed the line. He is covering up high crimes and misdemeanors” and in another tweet Tribe wrote “It’s now up to Congress to save the Constitution by initiating impeachment proceedings. Trump can’t say “You’re fired” to the House of Reps.”

Special prosecutor or impeachment inquiry, what do you think? — Joe

End Note: An LLB backgrounder on impeachment resources can be found here.

Rights of aliens under the Constitution

George Rutherglen describes the intricacies of U.S. constitutional law on the rights of aliens in The Rights of Aliens Under the United States Constitution: At the Border and Beyond. The article identifies three general tendencies that bear on recognition of these rights: (1) status as a citizen or alien, and if the latter, what status under the immigration laws; (2) where the activity violating the right took place, either inside, outside, or at the border of the U.S.; and (3) the text and nature of the right, including its recognition in other countries. From the abstract:

None of these factors yield a determinate answer to every case involving rights of aliens (or citizens for that matter), but they do organize the complex web of constitutional decisions on these issues. Those complexities have been most controversial in recent years in cases involving immigration and the war on terror. The lesson to be drawn from these cases is that the strength of constitutional rights, especially in the international context, depends on the actions by the political branches to make those rights truly effective. The article concludes by examining how, even in this limited role, constitutional rights might operate to check the immigration orders recently issued by President Trump.

— Joe

Transcript of Sally Yates and James Clapper testimony on Russian election interference before Senate Judiciary subcommittee

The Washington Post has published the full transcript here. — Joe

Will well-prepared workers be able to keep up in the race with AI tools?

“Machines are eating humans’ jobs talents. And it’s not just about jobs that are repetitive and low-skill. Automation, robotics, algorithms and artificial intelligence (AI) in recent times have shown they can do equal or sometimes even better work than humans who are dermatologists, insurance claims adjusters, lawyers, seismic testers in oil fields, sports journalists and financial reporters, crew members on guided-missile destroyers, hiring managers, psychological testers, retail salespeople, and border patrol agents. Moreover, there is growing anxiety that technology developments on the near horizon will crush the jobs of the millions who drive cars and trucks, analyze medical tests and data, perform middle management chores, dispense medicine, trade stocks and evaluate markets, fight on battlefields, perform government functions, and even replace those who program software – that is, the creators of algorithms” is how Lee Rainie and Janna Anderson start their Pew experts survey report titled The Future of Jobs and Jobs Training (May 3, 2017). As machines and technology continue to transform the workplace, the Pew Research Center says technologists, futurists and scholars are predicting a surge of interest in artificial-intelligence training program. Will that be enough to satisfy the labor demand?

The report identifies five major themes about the future of jobs training in the tech age. See below. — Joe

Trump truth hiders tracker launched by MoveOn

Following several LLB posts covering “Trump trackers,” here is an unusual addition to the list. On April 27th, MoveOn.org unveiled a new website, TrumpTruthHiders.com. The website is “an online tracker designed to expose how House Republicans have acted to hide the truth about Trump’s presidency—obscuring their votes in support of Trump’s agenda from their constituents.” In New Website Tracks GOP Voting Record Supporting Trump’s Dangerous Policy Agenda, Jo Comerford, campaign director for MoveOn.org. is quoted: “MoveOn worked with Members of Congress to launch TrumpTruthHiders.com so that the American people can see this infuriating display of hypocrisy in real time.” — Joe

A check on Trump’s executive power: 134 lawsuits filed in federal court against Trump since the inauguration

On May 5, 2017, The Boston Globe published a report indicating that President Trump has been sued in federal court 134 times since he was sworn into office. While some suits are frivolous, the plaintiffs in most cases vary from green card holders who were blocked from entering the U.S. as a result of Trump’s travel ban to sanctuary cities that sued after the Trump administration threatened to withhold federal funding. In Trump has been sued 134 times in federal court since inauguration, Boston Globe, May 5, 2017, Matt Viser writes “The dramatic uptick in litigation — Barack Obama faced 26 suits at this point in his first year, while George W. Bush had seven, and Bill Clinton, 15 — is further evidence of the unsettled era ushered in by Trump’s election and the intense fallout stemming from his early executive actions. Court filings may not be as visible as demonstrations on the National Mall, but they ultimately could exert a more lasting check on his executive power.” — Joe

Puerto Rico files for debt restructuring

The debt restructuring petition was filed by Puerto Rico’s financial oversight board in the US District Court in Puerto Rico on Wednesday under Title III of PROMESA. Title III provides a court debt restructuring process akin to US bankruptcy protection. Puerto Rico is barred from a traditional municipal bankruptcy protection under Chapter 9 of the Bankruptcy Code. The action sent Puerto Rico, whose approximately $123 billion in debt and pension obligations far exceeds the $18 billion bankruptcy filed by Detroit in 2013, into uncharted ground. Enacted only last summer the Puerto Rico Oversight, Management, and Economic Stability Act or PROMESA, Pub. L. No. 114-187 was designed help insolvent territories like the Commonwealth restructure its billions in debt and pension obligations. Next step, Chief Justice Roberts will appoint a life-tenured judge to hear the case.

CRS produced this backgrounder on PROMESA. See also Melissa Jacoby’s Presiding Over Municipal Bankruptcies: Then, Now, and Puerto Rico, 91 American Bankruptcy Law Journal __, 2017 Forthcoming, Why Puerto Rico Will Likely Rely On PROMESA Title III, Law360, March 1, 2017 and Issues To Expect In A Title III Puerto Rico Restructuring, Law360, March 8, 2017. — Joe

The original meaning of ‘Emoluments’ in the Constitution

In The Original Meaning of ‘Emoluments’ in the Constitution, 52 Georgia Law Review ___ (2017), Robert Natelson explores the original meaning of the word “emolument.” The article identifies “four common definitions in founding-era political discourse. It places the constitutional use within its context as part of a larger reform movement in Britain and America and as driven by other historical events. The Article examines how the word was employed in contemporaneous reform measures, in official congressional and state documents, in the constitutional debates, and in the constitutional text. … The author concludes that the three appearances of “emoluments” in the Constitution had a common meaning, which was ‘compensation with financial value, received by reason of public employment.'” Interesting. — Joe

With the emoluments lawsuit proceeding, interest in presidential impeachment is on the rise

With the emoluments lawsuit proceeding, interest in presidential impeachment is increasing. The impeachment process provides a mechanism for removal of the President found to have engaged in “treason, bribery, or other high crimes and misdemeanors.” The Constitution places the responsibility and authority to determine whether to impeach and to draft articles of impeachment in the hands of the House of Representatives. Should the House vote to impeach and vote articles of impeachment specifying the grounds upon which impeachment is based, the matter is then presented to the Senate for trial. Under the Constitution, the Senate has the sole power to try an impeachment. The decision whether to convict on each of the articles must be made separately. A conviction must be supported by a two-thirds majority of the Senators present. A conviction on any one of the articles of impeachment brought against an individual is sufficient to constitute conviction in the trial of the impeachment. Should a conviction occur, the Senate must determine what the appropriate judgment is in the case. The Constitution limits the judgment to either removal from office or removal and prohibition against holding any future offices of “honor, Trust or Profit under the United States.”

For background see these CRS reports, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice (Dec. 9, 2010, 98-186) and Impeachment and Removal (Oct. 29, 2015, R44260). See also, Frank O. Bowman and Stephen L. Sepinuck, ‘High Crimes & Misdemeanors’: Defining the Constitutional Limits on Presidential Impeachment, 72 Southern California Law Review 1517 (1999)(Arguing there are impeachable offenses for which Congress may constitutionally and properly decide not to impeach or remove a President.) and Michael J. Gerhardt’s The Lessons of Impeachment History, 67 George Washington Law Review 603 (1999)(“[M]y focus has been to clarify what constitutional structure and history has to teach us about the process of impeachment. … These lessons in turn help to clarify the kinds of questions that members of Congress should ask and the kinds of factors members of Congress should take into consideration when trying to decide whether to impeach and remove the President of the United States.”)

End Note: What role might SCOTUS play in a presidential impeachment? Presidential Impeachment: The Legal Standard and Procedure (Findlaw) notes that “the Supreme Court of the United States has decided that it should not review judicial impeachments, using the ‘political question’ doctrine to sidestep the issue. Walter Nixon v. United States, 506 U.S. 224 (1993). Concurring opinions by Justice White and Justice Souter in this case offer the following dicta on presidential impeachments:

The concurring opinion of Justice White indicates an unwillingness, on his part at least, to conclude in advance that a Presidential impeachment would be unreviewable. See Walter Nixon v. United States, 506 U.S. at 244. As stated by Justice White at footnote 3, page 247 of the Walter Nixon case:

“Finally, as applied to the special case of the President, the majority’s argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of Presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis.”

This view is echoed by Justice Souter in his concurring opinion in the same case: “If the Senate were to act in a manner seriously threatening the integrity of its results…judicial interference might well be appropriate.” Walter Nixon v. United States, 506 U.S. at 253.

— Joe

How Facebook plans to combat fake news

For Facebook, Jen Weedon, William Nuland and Alex Stamos write that the Company has “had to expand our security focus from traditional abusive behavior, such as account hacking, malware, spam and financial scams, to include more subtle and insidious forms of misuse, including attempts to manipulate civic discourse and deceive people. These are complicated issues and our responses will constantly evolve, but we wanted to be transparent about our approach.” That  approach is detailed by Facebook in Information Operations and Facebook (Apr. 27, 2017, version 1.0). — Joe