An excerpt from the blurb for The Threat: How the FBI Protects America in the Age and Terror of Trump (St. Martin’s Press, Dec. 4, 2018):

The Threat recounts in compelling detail the time between Donald Trump’s November 2016 election and McCabe’s firing, set against a page-turning narrative spanning two decades when the FBI’s mission shifted to a new goal: preventing terrorist attacks on Americans. But as McCabe shows, right now the greatest threat to the United States comes from within, as President Trump and his administration ignore the law, attack democratic institutions, degrade human rights, and undermine the U.S. Constitution that protects every citizen.

— Joe

From the abstract for Aaron Rappaport, An Unappreciated Constraint on the President’s Pardon Power (Nov. 30, 2018):

Most commentators assume that, except for the few textual limitations mentioned in the U.S. Constitution, the President’s pardon power is effectively unlimited. This paper suggests that this common view is mistaken in at least one unexpected way: Presidential pardons must satisfy a specificity requirement. That is, to be valid, the pardon must list the specific crimes insulated from criminal liability.

This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion. Nonetheless, that burden can be met. The paper’s argument rests on an originalist understanding of the Constitution’s text, an approach that leaves little doubt that a specificity requirement is an implicit limitation on the President’s pardon power. It also demonstrates that the main objections to the argument – that the requirement runs contrary to the Constitutional text or historical practice – are misguided and unpersuasive.

Of course, even if a specificity requirement exists, one may wonder about its significance. After all, the requirement does not prevent a President from issuing a pardon to any person or for any crime. Nonetheless, as the paper explains, a specificity requirement may prove more powerful than it first appears. Most importantly, it both limits the scope and raises the cost of issuing pardons for criminal violations, including violations of the electoral process. In so doing, the specificity requirement serves as an unexpected ally in the fight for political accountability and in defense of the rule of law.

Almost exactly a year ago, Donald Trump’s former National Security Adviser Michael Flynn entered into a cooperating plea deal with Special Counsel Robert Mueller. Flynn admitted lying to investigators about his communications with Russia’s ambassador to the US late in December 2016. The discussions related to sanctions then president Barack Obama had imposed on Moscow over its interference in the US election, and a UN security council vote on halting new Israeli settlements. After several postponements, Mueller has now made his sentencing recommendation illuminating the extent to which Flynn cooperated with the Office of Special Counsel in the Russia probe.

Read Mueller’s sentencing memo for Michael Flynn here and the redacted addendum here. The latter discusses the significance and usefulness of Flynn’s assistance. See also this Washington Post analysis and this New York Times analysis.

From the introduction to US Sanctions on Russia (R45415, Nov. 28, 2018):

Sanctions are considered by many to be a central element of U.S. policy to counter Russian malign behavior. Most Russia-related sanctions have been in response to Russia’s 2014 invasion of Ukraine. In addition, the United States has imposed sanctions on Russia in response to human rights abuses, election interference and cyberattacks, weapons proliferation, illicit trade with North Korea, support to Syria, and use of a chemical weapon. The United States also employs sanctions to deter further objectionable activities. Most Members of Congress support a robust use of sanctions amid concerns about Russia’s international behavior and geostrategic intentions.

The sentencing memo submitted by Cohen’s lawyers attributes to misplaced loyalty his decision to lie to Congress about Trump’s business negotiations over a Moscow hotel project. Cohen does not say that the president instructed him to lie. He was aware, his lawyers write, of the president’s public statements—that he had no such dealings with Russia—and he chose a line of testimony that would not contradict them. For more, see Lawfare’s There’s a Lot Going On in Michael Cohen’s Sentencing Memo and The Atlantic’s Three Remarkable Things About Michael Cohen’s Plea.

From the abstract for James P. Pfiffner, The Lies of Donald Trump: A Taxonomy:

The most important lies of Donald Trump differ significantly from previous presidential lies. Other presidents have lied for a variety of reasons, from legitimate lies concerning national security to trivial misstatements, to shading the truth, to avoiding embarrassment, to serious lies of policy deception. The paper distinguishes four types of Trump’s lies: 1) trivial lies, 2) exaggerations and self aggrandizing lies; 3) lies to deceive the public; and 4) egregious lies. It then analyzes the consequences of lies with respect to misinformation encoding and the relationship of lies to loyalty and power. The most serious lies of Donald Trump were egregious false statements that were demonstrably contrary to well known facts. The paper concludes that his lies were detrimental to the democratic process, and that his continued adherence to demonstrably false statements undermined enlightenment epistemology and corroded the premises of liberal democracy.

From the abstract for Andrew Kent, Ethan J. Leib & Jed Handelsman Shugerman, ‘Faithful Execution’ and Article II, Harvard Law Review, Forthcoming:

Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed,” and take an oath or affirmation to “faithfully execute the Office of President.” These clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons.

This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up to the original meaning in the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices—especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but also to a vast number of insignificant officers, too. We contend that it imposed three core requirements on officeholders:

(1) diligent, careful, good faith, and impartial execution of law or office;

(2) a duty not to misuse an office’s funds and or take unauthorized profits; and

(3) a duty not to act ultra vires, beyond the scope of one’s office.

These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution that limit presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal reasons. So understood, Article II may thus place some limits on the pardon and removal powers, for example. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes for policy and perhaps even constitutional reasons, and perhaps constraining agencies’ interpretation of statutes to pursue Congress’s objectives. Our conclusions undermines imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring faithful execution.

From the abstract for Alberto Gonzales, Presidential Powers, Immunities, and Pardons, 96 Wash. L. Rev. 1 (2018):

This Article intends to clarify some of the more difficult legal issues in our nation’s separation of powers jurisprudence. In order to afford the President the flexibility and discretion necessary to discharge presidential duties, the courts are almost certainly going to recognize total immunity from the criminal process for the President with respect to official conduct. The treatment of unofficial conduct is less predictable. Based on precedent and our nation’s founding principles of equal justice and fairness, the courts are likely to hold that a sitting President is not above the law and thus does not enjoy immunity from criminal prosecution for unofficial acts or conduct unrelated to his or her fitness to hold office. However, because of separation of powers considerations, the courts are likely to require deferral of any such prosecution until the President no longer holds office.

Although not as clear, constitutional considerations would likely also require deferral of any investigation or indictment, at least those requiring the direct and material participation of the President. On the other hand, the President can be compelled to produce certain documentary evidence when doing so is necessary and would otherwise be unavailable in connection with a criminal investigation. The argument for presidential immunity with respect to production of evidence is stronger, though likely not absolute, with respect to oral testimony. Nonetheless, mindful of the President’s duties, the courts are likely to afford the President great latitude in the time, place, and manner of providing oral testimony. Finally, there is nothing in the Constitution that expressly prohibits or limits the President from issuing a self-pardon.

Who Can Serve as Acting Attorney General (LSB10217, Nov. 15, 2018) discusses the two primary arguments raised to challenge the President’s decision to name Whitaker as Acting AG: first, that the Vacancies Act does not apply because another statute, 28 U.S.C. §508, provides that the Deputy Attorney General (DAG) serves as Acting AG in the event of a vacancy and second, that the Appointments Clause prohibits Whitaker, a non-Senate-confirmed official, from serving as the head of the DOJ.

From the blurb for David Priess, How to Get Rid of a President: History’s Guide to Removing Unpopular, Unable, or Unfit Chief Executives (PublicAffairs, Nov. 13, 2018):

To limit executive power, the founding fathers created fixed presidential terms of four years, giving voters regular opportunities to remove their leaders. Even so, Americans have often resorted to more dramatic paths to disempower the chief executive. The American presidency has seen it all, from rejecting a sitting president’s renomination bid and undermining their authority in office to the more drastic methods of impeachment, and, most brutal of all, assassination.

How to Get Rid of a President showcases the political dark arts in action: a stew of election dramas, national tragedies, and presidential departures mixed with party intrigue, personal betrayal, and backroom shenanigans. This briskly paced, darkly humorous voyage proves that while the pomp and circumstance of presidential elections might draw more attention, the way that presidents are removed teaches us much more about our political order.

The Trump Administration released the 4th National Climate Assessment report last Friday. From the About page:

The Global Change Research Act of 1990 mandates that the U.S. Global Change Research Program (USGCRP) deliver a report to Congress and the President no less than every four years that “1) integrates, evaluates, and interprets the findings of the Program…; 2) analyzes the effects of global change on the natural environment, agriculture, energy production and use, land and water resources, transportation, human health and welfare, human social systems, and biological diversity; and 3) analyzes current trends in global change, both human-induced and natural, and projects major trends for the subsequent 25 to 100 years.”1

The Fourth National Climate Assessment (NCA4) fulfills that mandate in two volumes. This report, Volume II, draws on the foundational science described in Volume I, the Climate Science Special Report (CSSR).2 Volume II focuses on the human welfare, societal, and environmental elements of climate change and variability for 10 regions and 18 national topics, with particular attention paid to observed and projected risks, impacts, consideration of risk reduction, and implications under different mitigation pathways. Where possible, NCA4 Volume II provides examples of actions underway in communities across the United States to reduce the risks associated with climate change, increase resilience, and improve livelihoods.

This assessment was written to help inform decision-makers, utility and natural resource managers, public health officials, emergency planners, and other stakeholders by providing a thorough examination of the effects of climate change on the United States.

For background, see What is the National Climate Assessment and Where Did It Come From, Forbes, Nov. 26, 2018.

From the blurb for Marco Machado, The Rebirth of the Philosopher King: Trump’s Campaign and the Leadership of the Information Age (2018):

The Information Age prompts the occurrence of binary mindsets. These mindsets simplify life and establish an expectation: people want leaders that are a direct reflection of (extremely hopeful) simplifications. Even though historically the masses have been looking for a savior, with the normalization of binary mindsets online, people manage to express their inner selves and simultaneously expect the emergence of a new sort of leadership. Such leaders, like the Information Age, must have powerful intangible traits. Approaching this recent phenomenon, “The Rebirth of the Philosopher King” takes a fresh look at the power scheme behind the emergence of leaderships in the Information Age.

Democracies have been in disarray. The election of Donald Trump has raised doubts about any romantic portrait of the democratic process. The challenges are many, and much has been said about this topic. Populism, inequality and alienation are some of the words that are often heard (and thrown around) in any analysis of Trump’s campaign. Unlike these common approaches, Marco Machado argues Donald Trump’s campaign relied on an ancient archetype. This archetype often manifests itself as a search after the wise leader, the old master. In the case of Trump, his campaign relied on the archetype of the philosopher king. Immersed in the Information Age, this archetype acquired an unpredictable amount of energy. With an original approach, the rise of Trump is described. In the end, a question comes into being: what sort of leadership do we want to have in the upcoming Information Age?