From the abstract for Presidential Attacks on the Press, Missouri Law Review, Forthcoming, by Sonja West:
President Donald Trump’s habit of hurling invectives at the press is disturbing. It undermines the work of the press and breaks long-standing norms that presidents show respect for the role of the Fourth Estate. But insults alone rarely raise First Amendment issues. Presidents have long used the bully pulpit to respond to or criticize news reports. Even Trump’s near daily verbal assaults on reporters and news organizations can be considered part of our country’s “uninhibited, robust, and wide-open” marketplace of ideas. Presidents have opinions too, and journalists should be able to handle his rants.
Yet there are also times when Trump’s lashing out at the press go beyond mere name-calling, and he instead attempts to use the power of his presidency to punish or silence press organizations that displease him. In these instances, Trump is unsheathing an entirely different kind of weapon. When a president crosses the line from insulting the press to turning the wheels of government as a means to retaliate against news organizations for their reporting, the potential First Amendment violations become very real.
The goals of this short Article are modest. It seeks simply to differentiate the various ways Trump has attacked the press, to emphasize that we should not view them all through the same constitutional lens, and to bring attention to the most serious type of offense. Unsurprisingly, it is Trump’s attempts to employ the power of the federal government to retaliate against the press that raise the most troubling constitutional concerns.
From the blurb for The Perfect Weapon: War, Sabotage, and Fear in the Cyber Age (Crown, June 19, 2018) by David E. Sanger:
The Perfect Weapon is the startling inside story of how the rise of cyberweapons transformed geopolitics like nothing since the invention of the atomic bomb. Cheap to acquire, easy to deny, and usable for a variety of malicious purposes—from crippling infrastructure to sowing discord and doubt—cyber is now the weapon of choice for democracies, dictators, and terrorists. Two presidents—Bush and Obama—drew first blood with Operation Olympic Games, which used malicious code to blow up Iran’s nuclear centrifuges, and yet America proved remarkably unprepared when its own weapons were stolen from its arsenal and, during President Trump’s first year, turned back on the US and its allies. The government was often paralyzed, unable to threaten the use of cyberweapons because America was so vulnerable to crippling attacks on its own networks of banks, utilities, and government agencies.
From the introduction to Global Trends in Democracy: Background, U.S. Policy, and Issues for Congress (R35344, Oct. 17, 2018): “Widespread concerns exist among analysts and policymakers over the current trajectory of democracy around the world. Congress has often played an important role in supporting and institutionalizing U.S. democracy promotion, and current developments may have implications for U.S. policy, which for decades has broadly reflected the view that the spread of democracy around the world is favorable to U.S. interests.”
From the abstract for President Trump’s War on Regulatory Science, Harvard Environmental Law Review, Forthcoming, by Albert Lin:
The Trump administration has taken numerous actions that appear hostile to scientists, scientific research, and scientific data, leading some observers to assert that a war on science is underway. A more precise characterization is that the Trump administration is engaging in a war on regulatory science, as these actions take aim specifically at regulatory science — i.e., knowledge production and synthesis carried out by the Environmental Protection Agency and other government agencies in the course of developing government regulations. The Administrative Procedure Act and other laws may constrain some aspects of the war on regulatory science, provided that they are subject to judicial review. Internal administrative law and agency norms also can promote rule of law values, but their success depends largely on the good faith of executive branch actors and the willingness of Congress and the public to push back when norms of administrative legality are ignored. Absent such pushback, the Trump administration’s war on regulatory science could lead to irrational policies and threaten democratic governance.
Movement Lawyering, 2017 Univ. of Illinois Law Review 1645 (2017) by Scott L. Cummings “explores an important development in American legal theory and practice over the past decade: the rise of ‘movement lawyering’ as an alternative model of public interest advocacy focused on building the power of nonelite constituencies through integrated legal and political strategies. Its central goal is to explain why movement lawyering has gained prominence, define its essential features, and explore what it reveals about the current state of efforts to work out an empirically grounded and normatively appealing vision of the lawyer’s role in social change. Toward that end, this Article shows how movement lawyering has long been an important part of progressive legal practice — complicating the standard historical account — while also illuminating the contemporary political and professional shifts that have powered the recent social movement turn. Synthesizing insights from social movement theory and practice, the Article then defines and analyzes the core features of the movement lawyering model — representing ‘mobilized clients’ and deploying ‘integrated advocacy’ — and explores how these features respond to long-standing critiques of public interest advocacy by presenting movement lawyers at their most accountable and effective: taking instructions from activist organizations in client-centered fashion and using law in politically sophisticated ways designed to maximize the potential for sustained social reform. In doing so, the new movement lawyering literature usefully refocuses attention on fundamental questions about the lawyer’s role in social change and thereby offers a crucial opportunity to jumpstart a contemporary dialogue — less freighted with the critical canon of the past and more rooted in empirical inquiry — about the conditions in which lawyering is most likely to produce accountable and effective democratic transformation.”
From the blurb for Enemy of the People: Trump’s War on the Press, the New McCarthyism, and the Threat to American Democracy (Brookings Institution, Sept. 25, 2018) by Marvin Kalb:
In Enemy of the People, Marvin Kalb, an award-winning American journalist with more than six decades of experience both as a journalist and media observer, writes with passion about why we should fear for the future of American democracy because of the unrelenting attacks by the Trump administration on the press.
Disinformation, ‘Fake News’ and Influence Campaigns on Twitter analyzed more than 10 million tweets from 700,000 Twitter accounts that linked to more than 600 fake and conspiracy news outlets. Crucially, the study compares fake and conspiracy news both before and after the election, allowing us to measure how the fake news ecosystem has evolved since November 2016. The study, commissioned by the Knight Foundation, found that Twitter is still rife with “fake news” a month out from the 2018 midterms, with more than 80 percent of the accounts that regularly spread misinformation in 2016 still active. The study found that those accounts together still publish upward of a million tweets a day.
Weapon Systems Cybersecurity: DOD Just Beginning to Grapple with Scale of Vulnerabilities (GAO-19-128, Oct. 9, 2018) addresses (1) factors that contribute to the current state of DOD weapon systems’ cybersecurity, (2) vulnerabilities in weapons that are under development, and (3) steps DOD is taking to develop more cyber resilient weapon systems.
In a meeting with President Trump today, Nikki Haley resigned her UN ambassadorship effective at year’s end. Here is her resignation letter and the transcript of today’s meeting with Trump.
In Trump’s family wealth: a case study in how to work the system, Baltimore Sun op-ed (Oct. 5, 2018), Louisville law prof Goldburn P. Maynard Jr. identifies five lessons on wealth that the Trump family can teach every American.
H/T to Constitutional Law Prof Blog for calling attention to Laurence Tribe’s opinion piece in the NYT, All the Ways a Justice Kavanaugh Would Have to Recuse Himself. Tribe argues that given Judge Kavanaugh’s “intemperate personal attacks on members of the Senate Judiciary Committee, his partisan tirades” last week, and “his stated animosities and observation that ‘what goes around comes around,'” he’d have to recuse himself from a whole lot of cases:
Judge Kavanaugh’s attacks on identifiable groups–Democrats, liberals, “outside left-wing opposition groups” and those angry “about President Trump and the 2016 election” or seeking “revenge on behalf of the Clintons”–render it inconceivable that he would “administer justice without respect to persons,” as a Supreme Court justice must swear to do, when groups like Planned Parenthood, the NRDC Action Fund, the NAACP Legal Defense Fund, NARAL Pro-Choice America or the American Civil Liberties Union appear as parties or file briefs on behalf of plaintiffs and defendants.
From the abstract for Rebecca Roiphe & Bruce A. Green, May Prosecutors Take Direction From the President?, 87 Fordham Law Review ___ (2018):
What would happen if the President could control federal prosecutors and directed them to make discretionary decisions that are normally reserved to trained professionals familiar with the facts, law, and traditions of the Department of Justice? We have argued, in a companion article, that the President has no such power. In this Article, we play out the consequences if we are wrong. If they follow the President’s direction, prosecutors would likely violate ethical rules and norms. Because these professional obligations are created by courts and endorsed by federal statute, presidential control over prosecutorial decision making would lead to serious separation of powers concerns. Particularly, the integrity of the judicial system depends on the ethical rules at issue. By exploring these separation of powers concerns, this Article contributes to a growing debate about the power of the executive over prosecution and further supports the independence of DOJ and federal prosecutors.
More than 2,400 law professors signed on to a letter saying that then Supreme Court nominee Brett M. Kavanaugh displayed a lack of judicial restraint at a Senate confirmation hearing — behavior that would be disqualifying for any court nominee. From the letter which was published by the New York Times as an opinion piece:
Around the Country Judicial temperament is one of the most important qualities of a judge. As the Congressional Research Service explains, to be a judge requires that an individual have “a personality that is evenhanded, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.” The concern for judicial temperament dates back to our founding; in Federalist Paper 78, entitled “Judges as Guardians of the Constitution,” Alexander Hamilton expressed the need for “the integrity and moderation of the judiciary.”
We are law professors who teach, research, and write about the judicial institutions of this country. Many of us appear in state and federal court, and our work means that we will continue to do so, including before the United States Supreme Court. We regret that we feel compelled to write to you to provide our views that at the Senate hearings on Thursday, September 28, 2018, the Honorable Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.
The question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners. Even in his prepared remarks, Judge Kavanaugh described the hearing as partisan, referring to it as “a calculated and orchestrated political hit,” rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators.
From the blurb for Stormy Daniels’ Full Disclosure (St. Martin’s Press, Oct. 2, 2018):
In this book, Stormy Daniels tells her whole story for the first time: about how she came to be a leading actress and director in the adult film business, the full truth about her journey from a rough childhood in Louisiana onto the national stage, and everything about the events that led to the nondisclosure agreement and the behind-the-scenes attempts to intimidate her.
From the blurb for Greg Miller, The Apprentice: Trump, Russia and the Subversion of American Democracy (Custom House, Oct. 2, 2018):
Based on interviews with hundreds of people in Trump’s inner circle, current and former government officials, individuals with close ties to the White House, members of the law enforcement and intelligence communities, foreign officials, and confidential documents, The Apprentice offers striking new information about:
- the hacking of the Democrats by Russian intelligence;
- Russian hijacking of Facebook and Twitter;
- National Security Adviser Michael Flynn’s hidden communications with the Russians;
- the attempt by Jared Kushner, Trump’s son-in-law, to create a secret back channel to Moscow using Russian diplomatic facilities;
- Trump’s disclosure to Russian officials of highly classified information about Israeli intelligence operations;
- Trump’s battles with the CIA and the FBI and fierce clashes within the West Wing;
- Trump’s efforts to enlist the director of national intelligence and the director of the National Security Agency to push back against the FBI’s investigation of his campaign;
- the mysterious Trump Tower meeting;
- the firing of FBI Director James Comey;
- the appointment of Mueller and the investigation that has followed;
- the tumultuous skirmishing within Trump’s legal camp;
- and Trump’s jaw-dropping behavior in Helsinki.
Senate Judiciary Committee Republicans announced on Tuesday that they hired Maricopa County, Arizona sex crimes prosecutor Rachel Mitchell to question Brett Kavanaugh and Christine Blasey Ford in a hearing centered on Ford’s sexual assault allegations against Kavanaugh. Here are three profiles: Law.com, NBC, and Business Insider.
In a sworn declaration, Julie Swetnick — a Washington, D.C. resident who has retained Michael Avenatti — said she was a victim of a gang rape where Mark Judge and Brett Kavanaugh were present at a party in Washington D.C., in approximately 1982. From her declaration:
“I witnessed Mark Judge and Brett Kavanaugh drink excessively and engage in highly inappropriate conduct, including being overly aggressive with girls and not taking ‘No’ for an answer. This conduct included the fondling and grabbing of girls without their consent,” Swetnick writes.
“I also witnessed efforts by Mark Judge, Brett Kavanaugh and others to cause girls to become inebriated and disoriented so they could then be ‘gang raped’ in a side room or bedroom by a ‘train’ of numerous boys … These boys included Mark Judge and Brett Kavanaugh … In approximately 1982, I became the victim of one of these ‘gang’ or ‘train’ rapes where Mark Judge and Brett Kavanaugh were present,” she added.
Maryland authorities confirmed Monday that they are aware of a second accusation of sexual assault in Montgomery County against Supreme Court Justice nominee Brett Kavanaugh, according to a report from the Montgomery County Sentinel. If the alleged accuser does file a complaint, the Sentinel notes, it could bring the number of women accusing Kavanaugh to four: Christine Blasey Ford, Deborah Ramirez—whose allegations were revealed in another explosive New Yorker piece Sunday night—lawyer Michael Avenatti’s purported client, and the Montgomery County woman. For more, see this Daily Beast report.