From the blurb for Preet Bharara, Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law (Knopf, March 19, 2019):
Preet Bharara has spent much of his life examining our legal system, pushing to make it better, and prosecuting those looking to subvert it. Bharara believes in our system and knows it must be protected, but to do so, we must also acknowledge and allow for flaws in the system and in human nature.
The book is divided into four sections: Inquiry, Accusation, Judgment and Punishment. He shows why each step of this process is crucial to the legal system, but he also shows how we all need to think about each stage of the process to achieve truth and justice in our daily lives.
Bharara uses anecdotes and case histories from his legal career–the successes as well as the failures–to illustrate the realities of the legal system, and the consequences of taking action (and in some cases, not taking action, which can be just as essential when trying to achieve a just result).
Much of what Bharara discusses is inspiring–it gives us hope that rational and objective fact-based thinking, combined with compassion, can truly lead us on a path toward truth and justice. Some of what he writes about will be controversial and cause much discussion. Ultimately, it is a thought-provoking, entertaining book about the need to find the humanity in our legal system–and in our society.
From the blurb for John Nichols, Horsemen of the Trumpocalypse: A Field Guide to the Most Dangerous People in America (Hachette Books, 2018):
A line-up of the dirty dealers and defenders of the indefensible who are definitely not “making America great again”. Donald Trump has assembled a rogue’s gallery of alt-right hatemongers, crony capitalists, immigrant bashers, and climate-change deniers to run the American government. To survive the next four years, we the people need to know whose hands are on the levers of power. And we need to know how to challenge their abuses. John Nichols, veteran political correspondent at the Nation, has been covering many of these deplorables for decades. Sticking to the hard facts and unafraid to dig deep into the histories and ideologies of the people who make up Trump’s inner circle, Nichols delivers a clear-eyed and complete guide to this wrecking-crew administration.
In a public statement today [transcript here], Mueller reiterated DOJ policy that an indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions so indicting President Trump for obstruction of justice was “not an option.” See the DOJ OLC’s memo titled A Sitting President’s Amenability to Indictment and Criminal Prosecution (updated Dec. 10, 2018).
Excerpt from the introduction to Legislative Purpose and Adviser Immunity in Congressional Investigations (LSB10301, May 24, 2019):
The Trump Administration has recently questioned the legal validity of numerous investigative demands made by House committees. These objections have been based on various grounds, but two specific arguments will be addressed in this Sidebar:
- The President and other Administration officials have contended that certain committee demands lack a valid “legislative purpose” and therefore do not fall within Congress’s investigative authority.
- The President has made a more generalized claim that his advisers cannot be made to testify before Congress, even in the face of a committee subpoena. This position, based upon the executive branch’s longstanding conception of immunity for presidential advisers from compelled congressional testimony regarding their official duties.
From the introduction to An Overview of State and Federal Authority to Impose Vaccination Requirements (LSB 10300, May 22, 2019):
“In addition to measles, for about every 5 years since 2006, outbreaks of other vaccine – preventable diseases, such as mumps, have also been reported in the United States. In light of these outbreaks and their association with unvaccinated individuals, this Sidebar provides an overview of the relevant state and federal authority to require vaccination for U.S. residents.”
Informed Comment reports that internal ExxonMobil documents show that the company’s scientists predicted in 1982 that by 2020, parts per million of carbon dioxide in earth’s atmosphere would reach 410-420 ppm. For the first time this spring ppm of CO2 exceeded 415.
The memo says in part,
“Considerable uncertainty also surrounds the possible impact on society of such a warming trend, should it occur. At the low end of the predicted temperature range there could be some impact on agricultural growth and rainfall patterns which could be beneficial in some regions and detrimental in others.
“At the high end, some scientists suggest there could be considerable adverse impact including the flooding of some coastal land masses as a result of a rise in sea level due to melting of the Antarctic ice sheet.”
Read the CO2 “Greenhouse” Effect report here.
From the introduction to The National Popular Vote (NPV) Initiative: Direct Election of the President by Interstate Compact (R43823, updated May 9, 2019):
“The National Popular Vote (NPV) initiative proposes an agreement among the states, an interstate compact that would effectively achieve direct popular election of the President and Vice President without a constitutional amendment. 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 …. Any state that joins the NPV compact pledges that if the compact comes into effect, its legislature will award all the state’s electoral votes to the presidential ticket that wins the most popular votes nationwide, 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.”
From the introduction to “Sanctuary” Jurisdictions: Federal, State, and Local Policies and Related Litigation (R44795, updated May 3, 2019):
One legal question relevant to sanctuary policies is the extent to which states, as sovereign entities, may decline to assist in federal immigration enforcement, and the degree to which the federal government can stop state measures that undermine federal objectives.
The list of prosecutors who signed the statement includes more than 20 former U.S. attorneys and more than 100 people with at least 20 years of service at the Justice Department — most of them former career officials. Read the statement here.
From the blurb for Jon Meacham, et al., Impeachment: An American History (Modern Library, 2018):
Impeachment is a double-edged sword. Though it was designed to check tyrants, Thomas Jefferson also called impeachment “the most formidable weapon for the purpose of a dominant faction that was ever contrived.” On the one hand, it nullifies the will of voters, the basic foundation of all representative democracies. On the other, its absence from the Constitution would leave the country vulnerable to despotic leadership. It is rarely used, and with good reason.
Only three times has a president’s conduct led to such political disarray as to warrant his potential removal from office, transforming a political crisis into a constitutional one. None has yet succeeded. Andrew Johnson was impeached in 1868 for failing to kowtow to congressional leaders—and, in a large sense, for failing to be Abraham Lincoln—yet survived his Senate trial. Richard Nixon resigned in August 1974 after the House Judiciary Committee approved three articles of impeachment against him for lying, obstructing justice, and employing his executive power for personal and political gain. Bill Clinton had an affair with a White House intern, but in 1999 he faced trial in the Senate less for that prurient act than for lying under oath about it.
In the first book to consider these three presidents alone—and the one thing they have in common—Jeffrey A. Engel, Jon Meacham, Timothy Naftali, and Peter Baker explain that the basis and process of impeachment is more political than legal. The Constitution states that the president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” leaving room for historical precedent and the temperament of the time to weigh heavily on each case. This book reveals the complicated motives behind each impeachment—never entirely limited to the question of a president’s guilt—and the risks to all sides. Each case depended on factors beyond the president’s behavior: his relationship with Congress, the polarization of the moment, and the power and resilience of the office itself. This is a realist view of impeachment that looks to history for clues about its potential use in the future.
Raw Story reports that a group of psychiatrists has combed through special counsel Robert Mueller’s report on Russian interference in the 2016 presidential election and have concluded that it raises several questions about President Donald Trump’s “mental capacity.”
The report, which is titled Mental Health Analysis of the Special Counsel’s Report on the Investigation Into Russian Interference in the 2016 Presidential Election, says that the 400-plus pages of the Mueller report provide “a wealth of relevant information regarding the President’s mental capacity,” which they say is necessary for the president to perform the complex tasks that his job requires.
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.