Category Archives: Current Affairs

Weekend Reading: Lewandowski & Bossie’s Let Trump be Trump campaign memoir

From the blurb of Corey R. Lewandowski and David N. Bossie’s Let Trump Be Trump: The Inside Story of His Rise to the Presidency (Center Street Dec. 5, 2017):

Corey R. Lewandowski, Trump’s campaign manager who contributed to Trump’s historic bid for the White House, teams up with David N. Bossie, the consummate political pro who helped steer the last critical months of the Trump Campaign, to offer the first insiders’ account of the most historic campaign in modern political history. Starting from the months leading up to Trump’s announcement all the way through staff shakeups within the White House, LET TRUMP BE TRUMP offers eyewitness accounts of the real stories behind some of the most sensational headlines.

At turns surprising, raw with emotion, and hilarious, LET TRUMP BE TRUMP is a book destined to be beloved by Trump supporters and cited by even Trump critics as the first and most definitive insider account of the 2016 campaign.

— Joe

Sexual harassment in the halls of Congress

Legal doctrines condemning the extortion of sexual favors as a condition of employment or job advancement and other sexually offensive workplace behaviors resulting in a “hostile environment” have evolved from judicial decisions under Title VII of the 1964 Civil Rights Act and other federal equal employment opportunity laws. The earlier judicial focus on economic detriment or quid pro quo harassment — that is, making submission to sexual demands a condition of job benefits — has largely given way to Title VII claims alleging harassment that creates an “intimidating, hostile, or offensive environment.”

One such hostile work environment for women is the halls of Congress. For example, in 2006, Republican Rep. Mark Foley of Florida resigned after being accused of sexually harassing teenagers who served as pages. In 2010, Democratic Rep. Eric Massa of New York resigned after aides accused him of making unwanted sexual overtures. In 2015, GOP Rep. Blake Farenthold of Texas settled a lawsuit brought by a former aide who’d accused him of sexual harassment. Affairs with aides, meanwhile, led to the resignations of two other Republicans, Rep. Mark Souder of Indiana, in 2010, and Sen. John Ensign of Nevada, in 2011. In a 2016 survey by Congressional Quarterly, four out of 10 women reported that they saw sexual harassment as a problem in Congress while one in six had personally been victimized.

In 1995, Congress enacted The Congressional Accountability Act (CAA) aimed at ensuring its staffers enjoy the same workplace rights as those in the private sector. Sexual misconduct claims of violation of the CAA must go through a mandatory, multi-step dispute resolution process supervised by the Office of Compliance. All employees must follow established dispute resolution procedures in order to process their claims under the CAA.

The process starts with a 30-day cooling-off period where the parties continue going to work while being counseled about workplace rights. Then there would be a 15-day waiting period during which to decide whether to bring this to mediation. If the accuser chose mediation, they would be required to sign a non-disclosure agreement. Mediation would last for 30 more days. When that period ended, there would be 30 more days for a “cooling-off” period before a worker could file a formal complaint. For details, see Dispute Resolution Process – Filing a Claim on the Office of Compliance website.

Additional resources include a CAA FAQ, CAA Handbook and Office of Compliance rules and procedures. Here is the list of annual settlements of all CAA claims, not just sexual harassment ones, by year with total annual settlement amounts for all workplace disputes. — Joe

Congressional Research Service on money laundering

From the introduction to the CRS report, Anti-Money Laundering: An Overview for Congress (Mar. 1, 2017 R44776):

Anti-money laundering (AML) refers to efforts to prevent criminal exploitation of financial systems to conceal the location, ownership, source, nature, or control of illicit proceeds. Despite the existence of long-standing domestic regulatory and enforcement mechanisms, as well as international commitments and guidance on best practices, policymakers remain challenged to identify and address policy gaps and new laundering methods that criminals exploit. According to United Nations estimates recognized by the U.S. Department of the Treasury, criminals in the United States generate some $300 billion in illicit proceeds that might involve money laundering. Rough International Monetary Fund estimates also indicate that the global volume of money laundering could amount to as much as 2.7% of the world’s gross domestic product, or $1.6 trillion annually.

For much more, see Money Laundering: An Overview of 18 U.S.C. § 1956 and Related Federal Criminal Law (Nov. 30, 3017 RL33315). — Joe

AG Sessions muzzles DOJ from explaining how federal law applies

It has come to my attention that the Department has in the past published guidance documents- or similar instruments of future effect by other names, such as letters to regulated entities- that effectively bind private parties without undergoing the rulemaking process.

The Department will no longer engage in this practice. Effective immediately, Department components may not issue guidance documents that purport to create rights or obligations binding on persons or entiti es outside the Executive Branch (including state, local, and tribal governments). — Jeff Sessions, Attorney General of the United States, Nov. 16, 2017 Memorandum

The DOJ has announced that it will no longer issue guidance on the federal laws it enforces and that it will review existing guidance to identify those that should be rescinded. Lawfare’s Eve Hill writes:

The memorandum is couched in terms of eliminating guidance that circumvents the rulemaking process by imposing new binding obligations on covered entities without notice-and-comment rulemaking. But the instructions of the memorandum go much further – they forbid the Department from using “shall,” “must,” “required,” or “requirement” and require the Department to state that all guidance is non-binding. This effectively muzzles the experts on federal law from explaining how the law applies in specific contexts. It threatens to leave covered entities in the dark when, in good faith, they apply the law to new situations they face on the ground.

— Joe

Flynn’s plea agreement with the special counsel’s office [text]

Here’s the text of Flynn’s plea agreement with the Special Counsel. From The Flynn Plea: A Quick and Dirty Analysis by Susan Hennessey, Matthew Kahn, Vanessa Sauter, Shannon Togawa Mercer and Benjamin Wittes, Lawfare Dec. 1, 2017:

The surprising thing about the plea agreement and the stipulated facts underlying it is how narrow they are. There’s no whiff of the alleged Fethullah Gulen kidnapping talks. Flynn has escaped FARA and influence-peddling charges. And he has been allowed to plead to a single count of lying to the FBI. The factual stipulation is also narrow. It involves lies to the FBI on two broad matters and lies on Flynn’s belated FARA filings on another issue. If a tenth of the allegations against Flynn are true and provable, he has gotten a very good deal from Mueller.

— Joe

House and Senate Ethics Committees: CRS histories of their evolution and jurisdiction

Two CRS reports explain the history, evolution and jurisdictions of the House and Senate ethics committees:

— Joe

Special Counsel seeks to deny Manafort’s current motion to modify conditions of his release (text)

The Special Counsel’s team has evidence that Manafort failed to tell the government that he was ghost-writing an op-ed piece about his work in the Ukraine as late as Nov. 30th. From the Special Counsel’s court filing:

Even if the ghostwritten op-ed were entirely accurate, fair, and balanced, it would be a violation of this Court’s November 8 Order if it had been published. The editorial clearly was undertaken to influence the public’s opinion of defendant Manafort, or else there would be no reason to seek its publication.

Manaford was working on the op-ed piece with “a longtime Russian colleague” who is “assessed to have ties to Russian intelligence,” according to the special counsel’s court filing.

Shutdown of the Federal Government: CRS Report

In the past, there have occasionally been funding gaps that led to government shutdowns, the longest of which lasted 21 full days, from December 16, 1995, to January 6, 1996. The most recent shutdown began October 1, 2013, and lasted for a total of 16 full days. Will there be another government shutdown later this month? Perhaps with an abundance of caution, the Congressional Research Service has updated Shutdown of the Federal Government: Causes, Processes, and Effects (RL 34680 Nov. 30, 2017). From the report:

Government shutdowns have necessitated furloughs of several hundred thousand federal employees, required cessation or reduction of many government activities, and affected numerous sectors of the economy. This report discusses

  • causes of shutdowns, including the legal framework under which they may occur;
  • processes related to how agencies may plan for the contingency of a shutdown;
  • effects of shutdowns, focusing especially on federal personnel and government operations; and
  • issues related to shutdowns that may be of interest to Congress.

This CRS report is intended to address questions that arise frequently related to the topic of government shutdowns. However, the report does not closely track developments related to the appropriations process for a given fiscal year.

H/T to beSpacific — Joe

Special Counsel indicts Michael Flynn for lying (text)

Former National Security Adviser Michael Flynn “willfully and knowingly” made false statements, according to a lawsuit by Special Counsel Robert Mueller. According to the indictment, Flynn falsely stated to the FBI that he didn’t ask the Russian ambassador to refrain from escalating the situation in response to sanctions the U.S. had imposed against the country, and that he didn’t recall the ambassador subsequently telling him Russia had chosen to moderate its response to those sanctions. Flynn also was charged with falsely stating he didn’t ask the Russian ambassador to delay the vote on or defeat a pending United Nations Security Council resolution and that the ambassador subsequently never described Russia’s response. Business Insider has the indictment. — Joe

Categorizing Trump and his administration

“The key to Trump’s essential meaning, to his mode of politics and type of government, lies in the obvious elements of his crony capitalist worldview, business dynasty, and close cadre of advisors and cabinet members drawn from his family and his financial peers,’ wrote Timothy Kuhner in his thoughtful essay, American Kleptocracy: How to Categorize Trump and His Government (2017). King’s Law Journal, Vol. 28, No. 2, p. 201-238 (2017). Here’s the abstract:

Even after just one year’s worth of events, the Trump Presidency is proving extraordinarily difficult to pin down. Prominent concerns rightly center on racism, sexism, xenophobia, the rule of law, Russian election interference with collusion from within the Trump campaign itself, the obstruction of justice, the fracturing of both dominant political parties, nuclear war, and the global rise of authoritarian populism. Is there any defining element to this presidency, which so justly raises all of these concerns? President Trump’s election has proven similarly difficult to pin down, essentially for the same reason — the presence of a host of factors, all with a bearing on the result. Sorting through the evidence about Trump’s election and his presidency thus far, this article suggests, quite simply, that money and greed are at the heart of it all. Rather than a moral argument, however, this article elaborates a descriptive, legal argument from within the law of democracy that there is a corrupt system of government operating beneath all of the surface-level chaos. Trump’s personal expenditures on his election campaign, conflicts of interest, foreign emoluments, cabinet choices, and legislative proposals all suggest the emergence of a kleptocracy. This article develops kleptocracy as a legal category applicable to the United States today: a system of government that goes beyond interest-group plutocracy in order to tailor law and policy to the economic interests of the political leadership itself, in this case President Trump, his family members, advisors, and cabinet members.

— Joe

CBO analysis of GOP’s tax plan

From the summary of the CBO’s Reconciliation Recommendations of the Senate Committee on Finance:

The staff of the Joint Committee on Taxation (JCT) estimates that enacting the legislation would reduce revenues by about $1,633 billion and decrease outlays by $219 billion over the 2018-2027 period, leading to an increase in the deficit of $1,414 billion over the next 10 years. A portion of the changes in revenues would be from Social Security payroll taxes, which are off-budget. Excluding the estimated $27 billion increase in off-budget revenues over the next 10 years, JCT estimates that the legislation would increase on-budget deficits by about $1,441 billion over the period from 2018 to 2027.

For an analysis see this Washington Post story. — Joe

Google’s Role in Spreading Fake News and Misinformation

H/T to Legal Skills Prof Blog for calling attention to Google’s Role in Spreading Fake News and Misinformation by Danaë Metaxa-Kakavouli and Nicolás Torres-Echeverry. Here’s the abstract:

This paper analyzes Google’s role in proliferating fake news and misinformation in the months leading up to and immediately following the U.S. 2016 national election. It is one section of a longer report, Fake News and Misinformation: The roles of the nation’s digital newsstands, Facebook, Google, Twitter and Reddit, that serves as the first phase of a continuing inquiry over the 2017-18 academic year. This paper reviews the role of Google, and specifically Google Search, in the misinformation landscape. It tracks the problem of misinformation in search engines from the advent of search engine optimization and spam through the present day, focusing on Google’s efforts to curb its role in spreading fake news following the 2016 U.S. elections.

Part 1 describes the “arms race” between search engines and spammers exploiting weaknesses in search algorithms, which contributes to Google’s role in proliferating fake and/or biased news in the 2016 elections. As part of the continuing accounting of the impact of fake news and misinformation on the 2016 elections, this analysis tracks search results for senate and presidential candidates in that election, revealing that up to 30% of these national candidates had their search results affected by potentially fake or biased content.

Part 2 summarizes Google’s recent efforts in 2017 to curb misleading or offensive content through user reporting and human reviewers, along with the opinions of users and experts who are largely supportive of these changes. The section broadly reviews the influence of the Internet on journalism, and then describes Google’s recent efforts to invest in initiatives that bolster investigative journalism and news. It concludes with suggestions for policy and research directions, recommending in particular that Google and other companies increase data transparency, in particular for researchers, to better understand misinformation phenomena online. The study concludes that transparency and civilian oversight are the next critical steps towards a society which benefits fully from the ubiquitous and powerful technologies that surround us.

— Joe

Weekend reading: Collusion: Secret Meetings, Dirty Money, and How Russia Helped Donald Trump Win

From the blurb for Luke Harding’s Collusion: Secret Meetings, Dirty Money, and How Russia Helped Donald Trump Win (Vintage, Nov. 16, 2017):

December 2016. Luke Harding, the Guardian reporter and former Moscow bureau chief, quietly meets former MI6 officer Christopher Steele in a London pup to discuss President-elect Donald Trump’s Russia connections. A month later, Steele’s now-famous dossier sparks what may be the biggest scandal of the modern era. The names of the Americans involved are well-known—Paul Manafort, Michael Flynn, Jared Kushner, George Papadopoulos, Carter Page—but here Harding also shines a light on powerful Russian figures like Aras Agalarov, Natalia Veselnitskaya, and Sergey Kislyak, whose motivations and instructions may have been coming from the highest echelons of the Kremlin.

Drawing on new material and his expert understanding of Moscow and its players, Harding takes the reader through every bizarre and disquieting detail of the “Trump-Russia” story—an event so huge it involves international espionage, off-shore banks, sketchy real estate deals, the Miss Universe pageant, mobsters, money laundering, poisoned dissidents, computer hacking, and the most shocking election in American history.

— Joe

Removing a senator from Congress

Article I, Section 5, of the United States Constitution provides that “Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” According to the Senate’s Expulsion and Censure page, since 1789, the Senate has expelled only fifteen of its entire membership. Of that number, fourteen were charged with support of the Confederacy during the Civil War. In several other cases, the Senate considered expulsion proceedings but either found the member not guilty or failed to act before the member left office. In those cases, corruption was the primary cause of complaint.

According to the CRS report Recall of Legislators and the Removal of Members of Congress from Office (Jan. 5, 2012 RL30016), “While there are no specific grounds for an expulsion expressed in the Constitution, expulsion actions in both the House and the Senate have generally concerned cases of perceived disloyalty to the United States, or the conviction of a criminal statutory offense which involved abuse of one’s official position. Each house has broad authority as to the grounds, nature, timing, and procedure for an expulsion of a Member. However, policy considerations, as opposed to questions of authority, have appeared to restrain the Senate and House in the exercise of expulsion when it might be considered as infringing on the electoral process, such as when the electorate knew of the past misconduct under consideration and still elected or re-elected the Member.” — Joe

Weekend reading: Brazile’s Hacks: The Inside Story of the Break-ins and Breakdowns That Put Donald Trump in the White House

From the blurb for Donna Brazile’s Hacks: The Inside Story of the Break-ins and Breakdowns That Put Donald Trump in the White House (Hachette Books, Nov. 7, 2017):

In the fallout of the Russian hacking of the Democratic National Committee–and as chaos threatened to consume the party’s convention–Democrats turned to a familiar figure to right the ship: Donna Brazile. Known to millions from her frequent TV appearances, she was no stranger to high stakes and dirty opponents, and the longtime Democratic strategist had a reputation in Washington as a one-stop shop for fixing sticky problems.

What Brazile found at the DNC was unlike anything she had experienced before–and much worse than is commonly known. The party was beset by infighting, scandal, and hubris, while reeling from a brazen and wholly unprecedented attempt by a foreign power to influence the presidential election. Plus, its candidate, Hillary Clinton, faced an opponent who broke every rule in the political playbook.

Packed with never-before-reported revelations about what went down in 2016, Hacks is equal parts campaign thriller, memoir, and roadmap for the future. With Democrats now in the wilderness after this historic defeat, Hacks argues that staying silent about what went wrong helps no one. Only by laying bare the missteps, miscalculations, and crimes of 2016, Brazile contends, will Americans be able to salvage their democracy.

Interesting. — Joe

Understanding and preserving sanctuary cities in the age of Trump

From the abstract of Understanding ‘Sanctuary Cities,’ Boston College Law Review, Forthcoming, by Christopher Lasch et al:

This Article is a collaborative project authored by law professors specializing in the intersection between immigration and criminal law. In it, we set forth the central features of the Trump administration’s mass deportation plans and his recently-announced campaign to “crack down” on “sanctuary cities.” We then outline the diverse ways in which localities have sought to protect their residents from deportation by refusing to participate in the Trump immigration agenda. Such initiatives include limiting compliance with immigration detainers, precluding participation in joint operations with the federal government, and preventing immigration agents from accessing local jails. Finally, we analyze the legal and policy justifications for sanctuary that local jurisdictions have advanced with increasing intensity since Trump’s election. These insights have important implications for how sanctuary cities are understood and preserved in the age of Trump.

As a complement to this Article, we have created a public online library of sanctuary policies that includes all the policies cited here and many more we considered in our research.

— Joe

Sobering CRS report on US military options for a nuclear-armed North Korea

From The North Korean Nuclear Challenge: Military Options and Issues for Congress (Oct. 27, 2017 R44994):

North Korea’s apparently successful July 2017 tests of its intercontinental ballistic missile capabilities, along with the possibility that North Korea (DPRK) may have successfully miniaturized a nuclear warhead, have led analysts and policymakers to conclude that the window for preventing the DPRK from acquiring a nuclear missile capable of reaching the United States is closing. These events appear to have fundamentally altered U.S. perceptions of the threat the Kim Jong-un regime poses to the continental United States and the international community, and escalated the standoff on the Korean Peninsula to levels that have arguably not been seen since 1994.

A key issue is whether or not the United States could manage and deter a nuclear-armed North Korea if it were to become capable of attacking targets in the U.S. homeland, and whether taking decisive military action to prevent the emergence of such a DPRK capability might be necessary. Either choice would bring with it considerable risk for the United States, its allies, regional stability, and global order. Trump Administration officials have stated that “all options are on the table,” to include the use of military force to “denuclearize,”—generally interpreted to mean eliminating nuclear weapons and related capabilities—from that area.

In this report, CRS identifies seven possible options, with their implications and attendant risks, for the employment of the military to denuclearize North Korea. These options are
 maintaining the military status quo,
 enhanced containment and deterrence,
 denying DPRK acquisition of delivery systems capable of threatening the United States,
 eliminating ICBM facilities and launch pads,
 eliminating DPRK nuclear facilities,
 DPRK regime change, and
 withdrawing U.S. military forces.
These options are based entirely on open-source materials, and do not represent a complete list of possibilities. CRS cannot verify whether any of these potential options are currently being considered by U.S. and ROK leaders. CRS does not advocate for or against a military response to the current situation.

— Joe

ICIJ releases The Paradise Papers

On November 5th, the International Consortium of Investigative Journalists (ICIJ) released The Paradise Papers. The Paradise Papers documents include nearly 7 million loan agreements, financial statements, emails, trust deeds and other paperwork over nearly 50 years from inside Appleby, a prestigious offshore law firm with offices in Bermuda and beyond. Here’s the press release and jump page to various Paradise Papers investigations. – Joe

The Legal Problems (So Far) of Trump’s Deregulatory Binge

From the abstract for Lisa Heinzerling’s The Legal Problems (So Far) of Trump’s Deregulatory Binge, Harvard Law & Policy Review, Forthcoming:

In racing to upend a wide array of final rules issued in the Obama administration, the Trump administration has violated basic principles of administrative law. In delaying or suspending rules, agencies in the Trump administration have paid little attention to their legal constraints, failed to provide legally required process before their decisions, and offered flimsy reasoning for their choices. The administration, in other words, has put on the same display of autocracy, impulsivity, and jerry-rigged reasoning that has characterized Mr. Trump’s overall approach to the presidency. Within the constraints of administrative law that apply to such regulatory decisions, however, autocracy, impulsivity, and jerry-rigging are the very kinds of urges that get agencies into legal trouble.

This article examines the legal risks posed by the decision-making style exhibited by the Trump administration so far, with a focus on the administration’s decisions delaying or suspending rules issued by the Obama administration. These early decisions are worth studying for their own sake, as they put the brakes on rules aimed at addressing a broad range of social problems. The decisions are also important for the signals they send about how administrative agencies in the Trump era will go about their business. These early actions portend legal trouble for the administration’s deregulatory push. Agencies in this administration have delayed or suspended existing rules with little attention to legal authority, process, or reason giving, and in doing so have flouted basic requirements of administrative law. The courts have already begun to push back against the administration’s deregulatory binge.

— Joe

Resources for Senate hearing on Russian disinformation campaign using social media giants Facebook, Twitter and Google

View and keyword search C-Span video recording of yesterday’s Senate hearing here. H/T to Gary Price, InfoDocket post.

Prepared statements of Facebook, Google and Twitter representatives here. H/T to beSpacific.

— Joe