On Thursday, the DOJ briefed congressional leaders and White House staffers on classified information about the FBI’s use of a confidential informant who met with Trump aides. The BBC reports the facts behind Trump’s conspiracy. — Joe
Category Archives: Executive Branch
A sitting president’s amenability to indictment and criminal prosecution: No caselaw for answering question but there are government memos that analyze the issue
You can read the following four memos and one brief that address a sitting president’s amenability to indictment and criminal prosecution here:
- September 1973 OLC memo (Nixon admin)
- October 1973 OSG memo (Nixon admin/Bork)
- February 1974 Watergate Special Prosecutor memo
- July 1974 Watergate Special Prosecutor SCt brief
- May 1998 OIC memo (Whitewater/Lewinsky investigation)
- October 2000 OLC memo (Clinton admin)
And for an analysis of them, see The Only Way to Find Out If the President Can Be Indicted, The Atlantic, May 23, 2018. — Joe
Compelling Presidential Compliance with a Judicial Subpoena (LSB10130, May 4, 2018): “Special Counsel Robert Mueller reportedly warned President Trump’s lawyers in a March meeting that if the President declined to participate in a voluntary interview, Mueller could issue a subpoena compelling the President’s testimony before a grand jury. The alleged exchange raises the question of whether a sitting President, consistent with the separation of powers and Article II of the Constitution, may be required to comply with a subpoena for his testimony as part of an ongoing criminal investigation.”
H/T to beSpacific. — Joe
From the abstract of Andrew Kent’s Congress and the Independence of Federal Law Enforcement, 52 U.C. Davis Law Review (Forthcoming 2018): “Not since the Nixon presidency has the issue of the professional neutrality and independence of federal law enforcement from White House interference or misuse been such a pressing issue. This article describes the problem, details Congress’s important role in responding to it during the 1970s, and makes specific recommendations for Congress today.” — Joe
From the abstract of Andrew McCanse Wright’s Justice Department Independence and White House Control (2018):
Problematic relations between the White House and the U.S. Department of Justice stand out amidst the broader tumult of President Donald Trump’s first year in office. With respect to written policy restricting contacts between the White House staff and the Department, the Trump White House has followed the general contours of predecessor administrations. Those policies recognize that White House contacts restrictions vary with the Department’s complex functions, restrict channels of contact, and restrict personnel authorized to make contacts. They also grant limited exceptions where White House-Department contact is required to assist the President in the performance of a constitutional duty and contact would be appropriate from a law enforcement perspective. A number of episodes, however, suggest that the President and senior administration officials have not honored the spirit, and in some cases the letter, of that contacts policy.
One of the frequent criticisms leveled against President Trump is that he disregards many norms and traditions that have been observed by presidential administrations of both parties for decades. Restrictions on White House interference in criminal investigations do not merely protect norms. Rather, those policies also seek to prevent unconstitutional conduct by the President and his political appointees. This Article demonstrates that political interference by the President undertaken in bad faith could violate the Take Care Clause even in the absence of a criminal statute. Obstructive behavior is even worse. Whether or not the President is indictable for the commission of a statutory criminal offense of obstruction of justice during his tenure in office, this Article explains why the President may violate the Take Care Clause independently of criminal offenses.
A principle of political noninterference by the White House in the federal prosecution function in particular matters is consistent with Article II. Neither the Vesting Clause, the President’s position atop the Executive Branch, nor the President’s broader enforcement discretion defeat the anti-interference principles commanded by the Presidential Oath and the Take Care Clause. It is a question that goes to the very concept of Rule of Law itself. However, political processes, rather than justiciable legal proceedings, serve as the presumptive source of Take Care Clause enforcement as to White House-Department relations.
Trump’s 2018 financial disclosure form was released on Wednesday, and it says Trump “fully reimbursed” his long-time lawyer Michael Cohen for an unspecified amount and purpose in 2017. (Stormy Daniels payoff?) The disclosure, which includes all of 2017 and part of 2018, is also the first extended look at how his businesses have performed since he became president in January of last year. Text of the 2018 financial disclosure form.
The disclosure form’s admission about the 2017 Cohen payment was flagged by the Office of Government Ethics. The Ethics Office concluded that Trump made a false statement on his prior ethics disclosure, which is a crime if it is done knowingly and willfully, and referred the matter to Deputy Attorney General Rod Rosenstein for potential criminal prosecution. Text of OGE letter to Rod Rosenstein. — Joe
Two CRS reports on the topic:
Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information (R41404, Mar. 7, 2017):
Recent unauthorized disclosures of information concerning activities in the White House, and the publication of large quantities of classified information by WikiLeaks and other organizations and news outlets, have prompted congressional interest in criminal prohibitions on disclosure of classified information. While some have described recent leaks of classified information as “illegal” and “criminal,” there is no single statute that criminalizes any unauthorized disclosure of classified information. Instead, the legal framework is based on a complex and often overlapping set of statutes with provisions that differ depending on, among other factors, what information was disclosed, to whom it was given, and the intentions of the discloser. This report identifies statutory prohibitions that may be implicated by the unauthorized release of classified information, and it examines the elements necessary to secure a conviction under the Espionage Act and applicable statutes.
The Law and Leaks to the Press (LSB, Feb. 22, 2017):
President Trump has expressed concern over leaks to the press from within the Executive Branch. Earlier administrations, particularly the Obama Administration, acted upon similar concerns to prosecute officials, employees, and contractors who leaked classified information or certain military information to the press. Officers and employees may also be subject to disciplinary action for leaks regardless of the nature of the information. However, they may claim some relief from disciplinary action under the whistleblower protection provisions. Few, if any, journalists have been prosecuted to date, but they may end up in jail for refusing to divulge their sources to a grand jury investigating a leak.
From the introduction for the CRS Report An Introduction to Judicial Review of Federal Agency Action (R44699 Dec. 7, 2016): “The U.S. Constitution vests the judicial power in the Supreme Court and any inferior courts established by Congress, limiting the power of federal courts to the context of “cases” or “controversies.” Pursuant to constitutional and statutory requirements, courts may hear challenges to the actions of federal agencies in certain situations. This report offers a brief overview of important considerations when individuals bring a lawsuit in federal court to challenge agency actions, with a particular focus on the type of review authorized by the Administrative Procedure Act (APA), perhaps the most prominent modern vehicle for challenging the actions of a federal agency.” — Joe
U.S. Circuit and District Court Nominations During President Trump’s First Year in Office: Comparative Analysis with Recent Presidents (R45189 May 2, 2018) provides statistics related to the nomination and confirmation of U.S. circuit and district court nominees during the first year of the Trump presidency as well as during the first year of each of his three immediate predecessors—Presidents Barack Obama, George W. Bush, and Bill Clinton.
From the introduction for US Decision to Cease Implementing the Iran Nuclear Agreement (R44942 May 9, 2018):
On May 8, 2018, President Donald Trump announced that his Administration would cease implementing U.S. commitments under the 2015 multilateral Joint Comprehensive Plan of Action (JCPOA) with Iran and reimpose all U.S. sanctions that were in place prior to the JCPOA. His announcement made reference to his previous statements on the issue, including an October 13, 2017 announcement of U.S. strategy on Iran and a January 12, 2018, statement pledging to leave the agreement unless Congress and U.S. allies acted to address the full range of U.S. concerns on Iran. In his May 8 and earlier statements, President Trump asserted that the agreement does not address the full range of potential threats posed by Iran, or permanently ensure that Iran cannot develop a nuclear weapon. President Trump also again asserted that asserted that the JCPOA provided Iran with additional financial resources with which to pursue its ballistic missile program and support its regional “malign activities.” In his May 8 statement, President Trump indicated that reimposed U.S. sanctions would succeed in pressuring Iran to renegotiate the JCPOA to accommodate Administration demands.
Here’s the abstract for Josh Blackman’s Presidential Speech (May 1, 2018):
When the President speaks for the nation, he speaks with one voice as the “sole organ” of the United States government. This oft-cited dictum from United States v. Curtiss-Wright Export Corp., originally voiced by Representative John Marshall in 1800, has traditionally not been taken literally. Historically, courts listened to the “sole organ” speak through the form of generalized policy statements issued by an executive branch agency, or even through briefs submitted by the Justice Department during the course of litigation. Seldom did we see such specific reflections from the Commander in Chief himself. No longer. In less than a year, it has become de rigueur for courts to cite President Trump’s tweets and other statements in judicial opinions. Indeed, when there is a conflict between the Justice Department’s litigation position, and the President’s social media, courts have deferred to the latter. This Article will assess the pragmatic and constitutional limits to the emerging jurisprudence based on presidential speech.
Here’s the abstract for the Brennan Center for Justice’s 2017 report titled Strengthening Presidential Ethics:
Marked by conflicts of interest and ethical lapses, the first year of the Trump presidency has fueled debates about our system of federal ethics system in Washington and across the nation. This report lays out a comprehensive policy agenda outlining steps Congress can take to address to prevent self-dealing by the country’s top leaders. It identifies three main solutions towards eliminating most pressing gaps in the country’s federal ethics system: closing the presidential loophole, bolstering disclosure requirements for high-ranking officials and strengthening ethics enforcement.
Here’s the abstract for Daniel Jacob Hemel and Eric A. Posner, Presidential Obstruction of Justice, 106 California Law Review (2018 Forthcoming):
Federal obstruction of justice statutes bar anyone from interfering with law enforcement based on a “corrupt” motive. But what about the president of the United States? The president is vested with “executive power,” which includes the power to control federal law enforcement. A possible view is that the statutes do not apply to the president because if they did they would violate the president’s constitutional power. However, we argue that the obstruction of justice statutes are best interpreted to apply to the president, and that the president obstructs justice when his motive for intervening in an investigation is to further personal or narrowly partisan interests, rather than to advance the public good.
Here’s the abstract for Josh Chafetz’s How Constitutional Norms Break Down, UCLA Law Review, Forthcoming:
From the moment Donald Trump was elected President, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value. Rather, the principal source of instability is that constitutional norms can be decomposed—dynamically interpreted and applied in ways that are held out as compliant but that limit their capacity to constrain the conduct of government officials.
This Article calls attention to that latent instability and, in so doing, begins to taxonomize and theorize the structure of constitutional norm change. We explore some of the different modes in which unwritten norms break down in our constitutional system and the different dangers and opportunities associated with each. Moreover, we argue that, under certain plausible conditions, it will be more worrisome when norms are subtly revised than when they are openly flouted. This somewhat paradoxical argument suggests that many commentators have been misjudging our current moment: President Trump’s flagrant defiance of norms may not be as big a threat to our constitutional democracy as the more complex deterioration of norms underway in other institutions.
From the conclusion of Special Counsels, Independent Counsels, and Special Prosecutors: Legal Authority and Limitations on Independent Executive Investigations (R44857, Apr. 13, 2018):
Both Congress and the executive branch have employed a variety of means to establish independence for certain criminal investigations and prosecutions. The use of special prosecutors, independent counsels, and special counsels all have allowed for the investigation of executive branch misconduct. Nonetheless, efforts to provide independence for prosecutors from executive branch control often raise constitutional questions. In turn, proposals to statutorily protect a special counsel from removal thus raise important, but unresolved, constitutional questions about the separation of powers. As a general matter, simply insulating a future special counsel from removal except for specified reasons appears consistent with the Court’s opinion in Morrison. To the extent the current Court might depart from the functional reasoning of that case and apply a more formal approach to the question, however, such proposals might raise constitutional objections. Likewise, constitutional objections might arise against proposals aimed to insulate a special counsel in a manner beyond the framework approved in Morrison.
Last Friday evening, the Trump administration issued a new directive to ban most transgender people from serving in the military. U.S. troops who require or have already had gender reassignment surgery would be disqualified from military service. Service members with a history or diagnosis of “gender dysphoria,” or those with discomfort with their biological sex, would also be banned — but with some exceptions. For more, see this Atlantic article. — Joe
“No one is above the law:” Former Apprentice contestant’s suit against Trump can proceed while he is president, court rules [text]
Here’s the text of the court ruling. — Joe
Russian cyber actors for interference with the 2016 U.S. elections and malicious cyber-attacks finally sanctioned by Trump administration
Announced Thursday, the Treasury Department enacted what amounts to the most stringent punishment yet by Trump for Russia’s election interference. The new sanctions, which include individuals indicted by the Special Counsel, finally met the Countering America’s Adversaries Through Sanctions Act’s mandate to impose measures punishing Moscow for its cyber intrusion.
For general background, see this CRS report — Overview of U.S. Sanctions Regimes on Russia (IN10634, July 11, 2017). — Joe
The recently released report is the topic of Lawfare’s We Read the New War Powers Report So You Don’t Have To. — Joe
Two pending House resolutions would condemn and censure President Trump if passed. They are H.Res. 496 and H.Res. 700. From The Constitutionality of Censuring the President (Legal Sidebar 10096, Mar. 12, 2018): “While each house of Congress has authority to discipline its own Members through censure, congressional censure of the President is rare. For that reason, there seems to be a recurring question as to whether Congress has the constitutional authority to adopt such a measure at all. As discussed below, it would appear that Congress may censure the President through a simple (one chamber) or concurrent (two chamber) resolution, or other non-binding measure, so long as the censure does not carry with it any legal consequence.” — Joe