From the introduction to Frequently Asked Questions about the Julian Assange Charges (LSB10291, Apr. 22, 2019):
After spending nearly seven years in the Ecuadorian embassy in London, Julian Assange was arrested by British police, was convicted for violating the terms of his bail in the U.K., and had an indictment against him unsealed in the United States — all in a single day. Despite the swiftness of the recent action, the charges against Assange raise a host of complex questions that are unlikely to be resolved in the near future. This Sidebar examines the international and domestic legal issues implicated in the criminal cases against Assange.
From the abstract for Peter Margulies, Lifeboat Lawyering and the Ship of State: The Unstable Course of Legal Advice in the Trump Administration, Fordham Law Review, Forthcoming:
To cope with their mercurial client, senior Trump administration lawyers have resorted to what this Article calls “lifeboat lawyering.” This model can promote compliance with longstanding norms such as prosecutorial independence. However, lifeboat lawyering also carries special risks.
Lifeboat lawyering entails slow-walking presidential decisions and performing triage between especially damaging decisions and those that are less harmful. In some cases, such as ex-White House Counsel Don McGahn’s heading off a massive disclosure of data related to the inner workings of Special Counsel Robert Mueller’s Russia probe, lifeboat lawyering can be useful. But lifeboat lawyers’ triage is neither transparent nor accountable. The public has no way to judge whether the rash decisions that lifeboat lawyering prevents outweigh the many other unsound decisions in which administration lawyers acquiesce.
Moreover, lifeboat lawyers such as McGahn may overestimate their value in office and underestimate the salutary effects of a resignation that highlights the administration’s flaws. Admittedly, these risks are present in virtually every administration, and much lawyering in the Trump administration is far more conventional. However, this administration has featured more agonizing dilemmas than its predecessors.
The Article illustrates the promise and perils of lifeboat lawyering with an analysis of Don McGahn’s role in releasing a congressional report on the 2016 application of the Department of Justice (DOJ) for a warrant under the Foreign Intelligence Surveillance Act (FISA) to investigate former Trump consultant Carter Page’s Russia ties. Release of this FISA material was unprecedented. Moreover, the McGahn letter was insufficiently precise about the congressional report’s distortions of DOJ’s FISA request. Yet McGahn’s approach also contained language that could have alerted attentive readers to the problems with the congressional report. That double effect reflects both lifeboat lawyering’s value and its dangers.
From the introduction:
Two years ago, Republicans and Democrats had similar views of the fairness of the tax system. Today, 64% of Republicans and Republican-leaning independents say the present tax system is very or moderately fair; just half as many Democrats and Democratic leaners (32%) view the tax system as fair. The share of Republicans who say the tax system is fair has increased 21 percentage points since 2017. Over this period, the share of Democrats viewing the tax system as fair has declined nine points.
Overall views of tax law little changed; fewer Republicans ‘strongly approve’ The survey by Pew Research Center, conducted March 20-25 among 1,503 adults, finds that more than a year after the new tax law was enacted, public approval remains relatively unchanged (36% approve of the tax law, while 49% disapprove). However, fewer Republicans strongly approve of the law than did so in January 2018.
You can pre-order the Nook book edition online here.
Attorney General William Barr issued an order Tuesday limiting immigration judges’ power to release asylum seekers from detention on bond, marking another step in the Trump administration’s efforts to keep migrants from coming to the United States. Under the ruling, certain immigrants cannot be released on bond and instead must remain in detention unless the Department of Homeland Security chooses to release them. Read the ruling, Matter of M-S-, Respondent, 27 I&N Dec. 509 (A.G., Apr. 16, 2019, here.
President Trump’s appointment of the Commissioner of U.S. Customs and Border Protection to serve as Acting DHS Secretary violates the DHS succession act. House Homeland Security Committee Chair Bennie G. Thompson alerted the president to the problem in this April 8, 2019 letter. Quoting the provision, Thompson wrote:
“Notwithstanding chapter 33 of title 5, United States Code, the Under Secretary for Management shall serve as the Acting Secretary if by reason of absence, disability, or vacancy in office, neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the Secretary.”
H/T Constitutional Law Prof Blog.
From Secrecy Blog: “The number of leaks of classified information reported as potential crimes by federal agencies reached record high levels during the first two years of the Trump Administration, according to data released by the Justice Department last week.
“But the data as released leave several questions unanswered. They do not reveal how many of the referrals actually triggered an FBI investigation. They do not indicate whether the leaks are evenly distributed across the national security bureaucracy or concentrated in one or more “problem” agencies (or congressional committees). And they do not distinguish between leaks that simply “hurt our country,” as the Attorney General put it, and those that are complicated by a significant public interest in the information that was disclosed.”
Kirstjen Nielsen, the homeland security secretary, resigned on Sunday after meeting with President Trump. Here’s the resignation letter.
Michael Cohen’s legal team has released a 12-page memo it provided to House Democrats Thursday. The memo outlines evidence of what his team describes as “Trump’s involvement in a conspiracy to collude with Russian government intervention in his favor during the 2016 presidential campaign” and “other felony crimes committed by Trump before and after he became president.” Here’s the memo.
From the summary for Temporary Protected Status: Overview and Current Issues (RS20844, Mar. 29, 2019):
Provisions exist in the Immigration and Nationality Act (INA) to offer temporary protected status (TPS) and other forms of relief from removal under specified circumstances. The Secretary of Homeland Security has the discretion to designate a country for TPS for periods of 6 to 18 months and can extend these periods if the country continues to meet the conditions for designation. Congress has also provided TPS legislatively.
From the press release: “[T]he Reporters Committee for Freedom of the Press filed a request in the federal district court for the District of Columbia for an order that would authorize the public release of grand jury material that is “cited, quoted, or referenced” in the report submitted to Attorney General William Barr by Special Counsel Robert Mueller.” Read the application here.
A whistleblower working inside the White House has told a House committee that senior Trump administration officials granted security clearances to at least 25 individuals whose applications had been denied by career employees for “disqualifying issues” that could put national security at risk, the committee’s Democratic staff said Monday. Read the staff summary.
Trump’s campaign on Monday urged major news networks to not allow on their shows several people, including Democratic lawmakers, who have been critical of the president, adding that the networks should report the conclusions of special counsel Robert Mueller’s report as a “complete vindication” of Trump. Here’s the letter.
The letter, by Attorney General William P. Barr, details the main findings of the special counsel’s two-year investigation into Russian interference in the 2016 presidential election.
From the summary of Congressional Access to the President’s Federal Tax Returns (LSB10275, Mar. 15, 2019)
The Chair of the House Ways and Means Committee is reportedly preparing to send a request to the Treasury Department’s Internal Revenue Service (IRS) to obtain President Trump’s federal tax returns. This request appears prompted by the President’s departure from the past practice of sitting presidents and presidential candidates voluntarily disclosing their recent tax returns. This Sidebar analyzes the ability of a congressional committee to obtain the President’s tax returns under provisions of the Internal Revenue Code (IRC); whether the President or the Treasury Secretary might have a legal basis for denying a committee request for the returns; and, if a committee successfully acquires the returns, whether those returns legally could be disclosed to the public.
In an Executive Order Thursday, President Trump sought to promote free inquiry and regulate student loans in higher education. Read the Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities.
Time’s Charlotte Alter profiles Alexandria Ocasio-Cortez, “the second most talked-about politician in America, after the President of the United States,” here.
Miranda Perry Fleischer & Daniel Jacob Hemel have posted The Architecture of a Basic Income (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:
The notion of a universal basic income (“UBI”) has captivated academics, entrepreneurs, policymakers, and ordinary citizens in recent months. Pilot studies of a UBI are underway or in the works on three continents. And prominent voices from across the ideological spectrum have expressed support for a UBI or one of its variants, including libertarian Charles Murray, Facebook co-founder Chris Hughes, labor leader Andy Stern, and—most recently—former President Barack Obama. Although even the most optimistic advocates for a UBI will acknowledge that nationwide implementation lies years away, the design of a basic income will require sustained scholarly attention. This article seeks to advance the conversation among academics and policymakers about UBI implementation.
From the summary of Special Counsel Investigations: History, Authority, Appointment and Removal (R44857, Mar. 13, 2019):
The Constitution vests Congress with the legislative power, which includes authority to establish federal agencies and conduct oversight of those entities. Criminal investigations and prosecutions, however, are generally regarded as core executive
functions assigned to the executive branch. Because of the potential conflicts of interest that may arise when the executive branch investigates itself, there have often been calls for criminal investigations by prosecutors with independence from the executive branch.
In response, Congress and the U.S. Department of Justice (DOJ) have used both statutory and regulatory mechanisms to establish a process for such inquiries. These frameworks have aimed to balance the competing goals of independence and accountability with respect to inquiries of executive branch officials.