Category Archives: Current Affairs

CRS report: Presidential Advisers’ Testimony Before Congressional Committees

From Presidential Advisers’ Testimony Before Congressional Committees: An Overview (Dec. 15, 2014 RL31351):

Congress has a constitutionally rooted right of access to the information it needs to perform its Article I legislative and oversight functions. Generally, a congressional committee with jurisdiction over the subject matter, which is conducting an authorized investigation for legislative or oversight purposes, has a right to information held by the executive branch in the absence of either a valid claim of constitutional privilege by the executive or a statutory provision whereby Congress has limited its constitutional right to information.

A congressional committee may request (informally or by a letter from the committee chair, perhaps co-signed by the ranking Member) or demand (pursuant to subpoena) the testimony of a presidential adviser. However, Congress may encounter legal and political problems in attempting to enforce a subpoena to a presidential adviser. Conflicts concerning congressional requests or demands for executive branch testimony or documents often involve extensive negotiations and may be resolved by some form of compromise as to, inter alia, the scope of the testimony or information to be provided to Congress.

— Joe

Legal constraints on presidential power

In Law and the President, 125 Harvard Law Review 1381 (2012), Richard Pildes explores the extent to which law constrains the exercise of presidential power, in both domestic and foreign affairs. Since the start of the twentieth century, the expansion of presidential power has been among the central features of American political development. Over the last decade, however, scholars across the political spectrum have argued that presidential powers have not just expanded dramatically, but that these powers are not effectively constrained by law. These scholars argue that law fails to limit presidential power not only in exceptional circumstances (times of crisis or emergency), but more generally; that unconstrained presidential power exists not just with respect to limited substantive arenas, such as foreign affairs or military matters, but across the board; and that statutes enacted by Congress, as well as the Constitution, fail to impose effective constraints. — Joe

Where to find Trump trackers

From time to time LLB has featured Trump trackers in posts. Now Mick O’Leary has compilied an annotated list of Trump trackers arranged into the following categories: The First 100 Days, Daily Activities, Presidential Promises, Executive Actions, and Ethics Issues, as well as Tracking Tweets.

Recommended. — Joe

BigLaw just saying no to representing Trump

In April, LLB reported on a client that fired a law firm that was representing Trump. See BigLaw firm fired for “enabling Trump” by representing him. Now, ATL’s Kathryn Rubio is reporting that “Brendan Sullivan of Williams & Connolly, Ted Olson of Gibson, Dunn & Crutcher, Paul Clement and Mark Filip of Kirkland & Ellis, and Robert Giuffra of Sullivan & Cromwell are all on the list of those who just said no to [representing] Trump.” — Joe

Taking the Fifth in Congressional investigations

On May 26, 2017, CRS issued a Legal Sidebar titled The Fifth Amendment in Congressional Investigations. Here’s a snip:

As a general matter, witnesses may invoke the Fifth Amendment privilege during a congressional investigation with regard to testimony or documents that are: (1) testimonial (“relate[s] a factual assertion”); (2) self-incriminating (any disclosures that tends to show guilt or that furnishes any “link in the chain of evidence” needed to prosecute); and (3) compelled (not voluntarily given). Oral testimony given pursuant to a subpoena and in response to committee questioning almost always qualifies as testimonial and compelled. Therefore, the central inquiry is typically whether the responsive testimony would be “incriminating.” The Supreme Court has taken a broad view of what constitutes incriminating testimony, holding that the privilege protects any statement “that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might so be used.” Even a witness who denies any criminal wrongdoing can refuse to answer questions on the basis that he might be “ensnared by ambiguous circumstances.”

H/T to beSpacific. — Joe

Three states start the United States Climate Alliance to fulfill Paris Climate Agreement commitments

In the wake of the news that the US is withdrawing from the Paris Climate Agreement, Barak Obama called on states, cities and businesses to support and honor the terms of the Agreement: “even in the absence of American leadership; even as this Administration joins a small handful of nations that reject the future; I’m confident that our states, cities, and businesses will step up and do even more to lead the way, and help protect for future generations the one planet we’ve got.” Quoting from Obama slams Trump for leaving Paris climate agreement, Politico, June 1, 2017.

In a joint public statement, Washington state Governor Jay Inslee, California Governor Jerry Brown and New York Governor Andrew Cuomo announced the United States Climate Alliance’s formation as a means for some of the largest US state economies to fight back against the Trump administration’s plans to withdraw from the Paris Climate Agreement. The governors are inviting other states and cities to join the alliance as a means of fulfilling the nation’s prior commitment to the Paris agreement in defiance of Trump. Seven additional states — Colorado, Connecticut, Hawaii, Massachusetts, Oregon, Rhode Island and Virginia — plus 61 cities have already expressed support for the objectives of the Alliance. US mayors, governors vow to stick with Paris accord, CNN, June 1, 2017.

Doable if other states and cities join this alliance? Well, Art. 1, Sec. 10 of the Constitution forbids interstate “alliances” and requires Congress’s consent for interstate “compacts.” If triggered, would a Republican-controlled Congress approve? — Joe

Interference in the 2016 presidential election: Did Russia violate international law?

Here’s the abstract for Did Russian Cyber-Interference in the 2016 Election Violate International Law?, Texas Law Review, Forthcoming, by Jens David Ohlin:

When it was revealed that the Russian government interfered in the 2016 U.S. presidential election by hacking into the email system of the Democratic National Committee and releasing its emails, international lawyers were divided over whether the cyber-attack violated international law. President Obama seemingly went out of his way to describe the attack as a mere violation of “established international norms of behavior,” though some international lawyers were more willing to describe the cyber-attack as a violation of international law. However, identifying the exact legal norm that was contravened turns out to be harder than it might otherwise appear. To the layperson, the Russian hacking constituted an impermissible (and perhaps shocking) interference in the American political process—an intervention that non-lawyers would not hesitate to label a “violation of sovereignty” as that term is used in political or diplomatic discourse.

The problem arises when one attempts to translate that common-sense intuition into legal discourse. At that point, the translation effort breaks down for a variety of reasons. The genesis of the difficulty is that none of the standard rubrics for understanding illegal interventions clearly and unambiguously applies to the facts in question. That being said, it would be a mistake to hastily reject our common-sense intuitions about the impropriety of Russian hacking during the election. The lack of fit with the doctrinal requirements for an illegal intervention against another state’s sovereignty is simply an indication that the notions of “sovereignty” and “intervention”—though mainstays of contemporary public international law doctrine—are poorly suited to analyzing the legality of the conduct in this case. A far better rubric for analyzing the behavior is the notion of self-determination, a legal concept that captures the right of a people to decide, for themselves, both their political arrangements and their future destiny.

Interesting. — Joe

Citizen Lab’s ‘Tainted Leaks: Disinformation and Phishing With a Russian Nexus’

Tainted Leaks: Disinformation and Phishing With a Russian Nexus (May 25, 2017), “describes an extensive Russia-linked phishing and disinformation campaign. It provides evidence of how documents stolen from a prominent journalist and critic of Russia was tampered with and then “leaked” to achieve specific propaganda aims. We name this technique “tainted leaks.” The report illustrates how the twin strategies of phishing and tainted leaks are sometimes used in combination to infiltrate civil society targets, and to seed mistrust and disinformation. It also illustrates how domestic considerations, specifically concerns about regime security, can motivate espionage operations, particularly those targeting civil society.” This Citizen Law report “uncovers a major disinformation and cyber espionage campaign with hundreds of targets in government, industry, military and civil society. Those targets include a large list of high profile individuals from at least 39 countries (including members of 28 governments), as well as the United Nations and NATO. Although there are many government, military, and industry targets, our report provides further evidence of the often-overlooked targeting of civil society in cyber espionage campaigns.  Civil society — including journalists, academics, opposition figures, and activists — comprise the second largest group (21%) of targets, after government.” — Joe

Origins of Memorial Day observance in the United States

In 1868, Commander in Chief John A. Logan of the grand Army of the Republic issued what was called General Order Number 11, designating May 30 as a memorial day. He declared it to be “for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet churchyard in the land.” Hence the original name for Memorial Day was Decoration Day.

Here’s the complete text of the order:

HEADQUARTERS GRAND ARMY OF THE REPUBLIC
General Orders No. 11, WASHINGTON, D.C., May 5, 1868

1. The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.

We are organized, comrades, as our regulations tell us, for the purpose among other things, “of preserving and strengthening those kind and fraternal feelings which have bound together the soldiers, sailors, and marines who united to suppress the late rebellion.” What can aid more to assure this result than cherishing tenderly the memory of our heroic dead, who made their breasts a barricade between our country and its foes? Their soldier lives were the reveille of freedom to a race in chains, and their deaths the tattoo of rebellious tyranny in arms. We should guard their graves with sacred vigilance. All that the consecrated wealth and taste of the nation can add to their adornment and security is but a fitting tribute to the memory of her slain defenders. Let no wanton foot tread rudely on such hallowed grounds. Let pleasant paths invite the coming and going of reverent visitors and fond mourners. Let no vandalism of avarice or neglect, no ravages of time testify to the present or to the coming generations that we have forgotten as a people the cost of a free and undivided republic.

If other eyes grow dull, other hands slack, and other hearts cold in the solemn trust, ours shall keep it well as long as the light and warmth of life remain to us.

Let us, then, at the time appointed gather around their sacred remains and garland the passionless mounds above them with the choicest flowers of spring-time; let us raise above them the dear old flag they saved from hishonor; let us in this solemn presence renew our pledges to aid and assist those whom they have left among us a sacred charge upon a nation’s gratitude, the soldier’s and sailor’s widow and orphan.

2. It is the purpose of the Commander-in-Chief to inaugurate this observance with the hope that it will be kept up from year to year, while a survivor of the war remains to honor the memory of his departed comrades. He earnestly desires the public press to lend its friendly aid in bringing to the notice of comrades in all parts of the country in time for simultaneous compliance therewith.

3. Department commanders will use efforts to make this order effective.

By order of

JOHN A. LOGAN,
Commander-in-Chief

Source. — Joe

Who is Marc Kasowitz?

Numerous sources, including Reuters and the Washington Post, are reporting that President Trump has retained trusted longtime counsel Marc Kasowitz to help with the Russia probe despite Kasowitz having no substantial criminal law experience. So who is he?

According to his profile on the Kasowitz Benson Torres LLP website, Kasowitz has been “[d]escribed by CNBC as the ‘toughest lawyer on Wall Street’ and by Bloomberg Financial News as an ‘uberlitigator.'” From the profile:

Marc regularly serves as national trial counsel in complex litigation in the areas of bank finance, fraudulent conveyance, RICO, corporate governance, antitrust, securities, mass tort, product liability, environmental, breach of contract, and other commercial cases.  Marc also has an extensive and successful track record in dealing with investigations and lawsuits by state attorneys general, including path-breaking settlements of tobacco litigation.  Marc has also conducted numerous internal investigations on behalf of boards of directors, management and special committees regarding alleged corporate misfeasance, conflicts of interest, challenges to board authority, insider trading, accounting fraud, market timing, obstruction of justice, market manipulation, and other issues relating to director and officer fiduciary responsibilities and liabilities.

In Marc E. Kasowitz: 5 Fast Facts You Need to Know, we learn

  1. He Has Represented Donald Trump For Over 15 Years
  2. He Wrote a Letter Demanding The New York Times Retract Its Story About Donald Trump’s Alleged Groping Incidents
  3. Another One of His Clients Is the Largest Bank in Russia
  4. His Former Partner Is Now the U.S. Ambassador to Israel
  5. He Has Compared the O’Reilly Scandal to McCarthyism

Regarding the O’Reilly scandal, the article notes that Kasowitz represented Bill O’Reilly during the Fox News host’s legal trouble surrounding alleged sexual harassment in the workplace. See also, ATL’s What’s Going On At Kasowitz Benson? — Joe

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