Category Archives: Executive Branch

House resolution invokes 25th Amendment to “Quickly secure the services of medical and psychiatric professionals to exam the president… .”

Rep. Zoe Lofgren’s (D-Calif.) has introduced a resolution Friday urging President Donald Trump to get a medical and psychiatric examination to determine if he should be removed from office. The resolution calls on Vice President Pence and the members of Trump’s cabinet to “quickly secure the services of medical and psychiatric professionals” to “assist in their deliberations” invoking the 25th Amendment, which outlines presidential removal procedures.

The resolution states:

Quickly secure the services of medical and psychiatric professionals to exam the president to assist in their deliberations under the 25th Amendment to determine whether the president suffers from a mental disorder or other injury that impairs his abilities and prevents him from discharging his Constitutional duties.

— Joe

79 Democratic Members of Congress cosponsor resolution to censure President Trump

From the press release:

Today, Congressman Jerrold Nadler (D-NY), Congresswoman Bonnie Watson Coleman (D-NJ), and Congresswoman Pramila Jayapal (D-WA) introduced a censure resolution in the U.S. House of Representatives against President Donald Trump for his comments blaming “both sides” for the violence in Charlottesville, Virginia and excusing the behavior of participants in the ‘Unite the Right’ rally.

The censure resolution condemns the President for failing to immediately and specifically name and condemn the white supremacist, Ku Klux Klan, and neo-Nazi groups responsible for actions of domestic terrorism in Charlottesville over the weekend, and for doubling-down on his comments by attempting to create a moral equivalency between white supremacists and those counter-protesting the ‘Unite the Right’ rally. The resolution, which was cosponsored by 79 Members of Congress, offers an official censure by Congress of President Trump for his remarks, and calls for the President to fire any and all advisors who have urged him to cater to white supremacist.

Is your Member of Congress among the 79 cosponsor. [List of Cosponsors] As of now, the resolution is not online at Congress.gov. — Joe

Presidential Advisers’ Testimony Before Congressional Committees

From the introduction to the CRS report, Presidential Advisers’ Testimony Before Congressional Committees: An Overview (December 15, 2014, RL31351):

Since the beginning of the federal government, Presidents have called upon executive branch officials to provide them with advice regarding matters of policy and administration. While Cabinet members were among the first to play such a role, the creation of the Executive Office of the President (EOP) in 1939 and the various agencies located within that structure resulted in a large increase in the number and variety of presidential advisers. All senior staff members of the White House Office and the leaders of the various EOP agencies and instrumentalities could be said to serve as advisers to the President.

Occasionally, these executive branch officials playing a presidential advisory role have been called upon to testify before congressional committees and subcommittees. Sometimes, such invited appearances have been prompted by allegations of personal misconduct on the part of the official, but they have also included instances when accountability for policymaking and administrative or managerial actions have instigated the request for testimony. Because such appearances before congressional committees or subcommittees seemingly could result in demands for advice proffered to the President, or the disclosure—inadvertent or otherwise—of such advice, there has been resistance, from time to time, by the Chief Executive to allowing such testimony.

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

Options for independent executive branch criminal investigations

Following on the heels of this May 2017 CRS report, Special Counsels, Independent Counsels, and Special Prosecutors: Options for Independent Executive Investigations (R44857) was published in June. The report notes “because of the potential conflicts of interest that may arise when the executive branch investigates itself (e.g., the Watergate investigation), there have been calls for an independently led inquiry to determine whether officials have violated criminal law. 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 responses have attempted, in different ways, to balance the competing goals of independence and accountability with respect to inquiries of executive branch officials.”

The report also provides a glossary of terms.

Independent Counsel: Now-expired provisions of the Ethics in Government Act of 1978 (P.L. 95-521, as amended) authorized the Attorney General to request that a three-judge panel within the federal judiciary appoint an independent counsel. Independent counsels had more independence than regular DOJ officials and employees, though the breadth of their investigations led to debate and ultimately to the expiration of the statutory authorization.

Special Counsel: The DOJ’s general administrative hiring authority (28 C.F.R. Part 600) authorizes the Attorney General to appoint special counsels. Special counsels exercise more independence than regular DOJ officials and employees, but because the Attorney General generally appoints, supervises, and may remove special counsels, they are considered to be less independent than independent counsels were. (The term “special counsel,” when used in the context of independent criminal investigations of executive officials, is entirely distinct from the Office of Special Counsel, an independent federal agency, which investigates certain federal personnel practices.)

Special Prosecutor: The Attorney General historically has appointed special prosecutors to investigate scandals involving public officials. The term “special prosecutor” was also initially used to describe independent investigations authorized by the Ethics in Government Act, though the term was later changed under that statute to “independent counsel.” Historically, these appointments were used to provide for the investigation of any related allegations without political interference.

–Joe

SPLC: “Tell President Trump to take responsibility for the hate he’s unleashed”

SPLC Map of Hate Groups in the US

If interested, sign the Southern Poverty Law Center’s petition which reads in part:

President Trump’s campaign and presidency have energized the white supremacist movement in unprecedented ways. We saw it in the support he received from the likes of David Duke during his campaign. We saw it in the surge in hate crimes committed in his name after his election. And we saw it in the deadly gathering of white supremacists in Charlottesville this weekend.

At this point, it’s not enough for Trump simply to condemn bigotry. He must take responsibility for the surge in white supremacy and hate that he has unleashed. He must:

• Apologize for energizing the radical right by running a racist and xenophobic campaign;

• Demonstrate that he is changing directions by firing his chief strategist, Steve Bannon, the person who turned Breitbart News into a platform for white supremacists; and

• Take concrete action to undo the harm he has caused, starting with a directive to federal agencies to take the danger of white supremacy seriously.

The events in Charlottesville demand nothing less.

— Joe

Trump in a nutshell

For Salon, Bill Curry concluded his profile piece of Donald Trump as follows:

Trump embodies that old therapists’ saw “perception is projection.” You can use this handy tool to locate the truth, exactly opposite from whatever he just said. He has a weight management problem, so women are “fat pigs.” He can’t stop fibbing, so his primary opponent becomes “Lyin’ Ted Cruz.” His career is rife with fraud so the former secretary of state becomes “Crooked Hillary.” He is terrified of ridicule, so Barack Obama is a “laughingstock.” When he says America’s a wasteland but he’ll make it great again, we know his secret fear.

For much more, see My Meeting with Donald Trump: A damaged, pathetic personality — whose obvious impairment has only gotten worse, Salon, Aug. 12, 2017. — Joe

Inside the mind of Donald J. Trump, the 45th President of the United States

The Washington Post has published purloined transcripts of Trump conversations with foreign leaders. Get a glimpse of Trump’s thought process, values and personal political agenda here. — Joe

Who is Stephen Miller?

At 31, Stephen Miller is less than half President Trump’s age but he serves as the president’s senior advisor for policy. His credentials include having served as a press secretary to Tea Party movement supporters Congresswoman Michele Bachmann and Congressman John Shadegg and communications director for then-Alabama senator, Attorney General Jeff Sessions. He is credited with authoring the president’s inaugural address and being the chief architect of Trump’s executive order restricting immigration from several Muslim-majority Middle Eastern countries.

The best profile piece on Miller I found was written by Julia Ioffee in Politico (June 27, 2016). Here are a couple of snips:

He’s deeply connected to some of the most powerful insurgent threads in the Washington GOP, most notably Alabama Senator Jeff Sessions and the Breitbart media machine. As an aide on Capitol Hill, he was a behind-the-scenes architect of the successful effort to kill comprehensive immigration reform in 2014. And while it’s hard to gauge how much Trump is amenable to influence by anyone—at least, by anyone that he didn’t beget—there is no question that Miller is deep, and serious, on the one question that most drives Trump’s unlikely campaign.

…..

But Miller also cuts a deeply unsettling figure, even to many in his own party. His nine-year career working for some of the most politically fringe figures on the Hill—he also worked for Michele Bachmann and helped David Brat in his primary defeat of Eric Cantor—was preceded by a trail of writings and provocations that go all the way back to high school, one that has raised the eyebrows of even conservative Republicans.

Ioffee adds in her Politico article, The Believer: How Stephen Miller went from obscure Capitol Hill staffer to Donald Trump’s warm-up act—and resident ideologue:

There is something eerily vintage about Miller’s stump speeches. The combination of their substance—vilifying immigrants as killers, the promise of nativist glory days ahead—and their delivery with a calm face around a loud, droning mouth, slicked-back hair and sharp suit, floridly invoking powerful cabals against the people: All of it harks back to an earlier time. It’s as if the video should be in black and white, and the microphone in front of Miller an antique, metallic affair. This is an image Miller assiduously cultivates, smoking like a chimney and dressing in suits that earned him the nickname “Mad Men” on the Hill. “You almost want to put him in a previous era,” says Marcus Peacock, who worked with Miller on the Senate Budget Committee.

Finally, an excerpt from yesterday’s White House press conference involving Stephen Miller and a first-generation American born of Cuban immigrants, Jim Acosta of CCN may be insightful. [Transcript here] — Joe

 

How to remove a crazy president from the White House

Did you ever think you would read a title from a mainstream news magazine like this one: How to Remove a Crazy President From the White House (Newsweek, Aug. 1, 2017)? For Newsweek, Jeff Stein reports on the Commission on Presidential Capacity Act, HR 1987, introduced in April by Representative Jamie Raskin (D-Md), a constitutional scholar and law professor. Stein wrote:

Raskin introduced a bill to create a constitutional mechanism for removing a president from office if he were nuts wrote Stein. “Of course, ‘nuts’ wasn’t in the bill; the more genteel language is ‘mentally incapacitated.’ But in the weeks since then, ‘nuts’ has been increasingly whispered as a diagnosis for the 45th president’s behavior.”

Stein opines that the bill has virtually “no chance of passing, of course. For starters, Raskin is a freshman Democrat in a Republican Congress. He has only 27 cosponsors, none of them Republicans. Legal scholars have also dismissed it as unrealistic and ‘premature.’” But this isn’t the only bill introduced in this Congress that strives to provide a constitutional mechanism to remove a sitting president who is temporarily or permanently incapacitated. Rep. Earl Blumenauer (D-Oregon) has introduced HR 2093, the Strengthening and Clarifying the 25th Amendment Act of 2017 to deal with presidential disability. [LLB post]

“or of such body as Congress may by law provide.” Both bills strive to create a constitutional mechanism under Article 4 of the 25th Amendment which states:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Emphasis added.

Under HR 2093, the Strengthening and Clarifying the 25th Amendment Act of 2017, each former living President and each former living Vice President shall constitute such body to carry out Article 4, except any such individual who has been impeached by the House of Representatives and convicted by the Senate or who is serving as President or Vice President at the time of the declaration of incapacity is made. [LLB post]

HR 1986, the Commission on Presidential Capacity Act, would establish an 11 member commission to carry out Article 4: (a) two members appointed by the majority leader of the Senate; (b) two members appointed by the minority leader of the Senate; (c) two members appointed by the Speaker; (d) two members appointed by the minority leader of the House; (e) two members, one Republican and one Democrat, and each of whom has served as President, Vice President, Secretary of State, Attorney General, Secretary of the Treasury, Secretary of Defense, or Surgeon General; and (f) one member, serving as Commission chair, appointed by a simple majority vote of the 10 other appointed members.

Twitter is full of rumors that unnamed members of Congress, Democrats and Republicans are quietly supportive of using the 25th Amendment as the means to remove President Trump without having to go through the national agony of impeachment proceedings. Creating an Article 4 commission might be more realistic then expecting “the Vice President and a majority of either the principal officers of the executive departments” to decide on their own that the President is not fit to serve the office.

Determining presidential disability. The 25th Amendment offers no constitutional guidance on the standards to be used to determine presidential incapacity.  But in Burden of Decision: Judging Presidential Disability Under the Twenty-Fifth Amendment, 30 Journal of Law and Politics 97 (2014), [LLB post] 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. The article appears to be a good framework for discussing presidential disability under the 25th Amendment when someone other than a sitting president is making that determination. — Joe

Ronald Rotunda on the unearthed DOJ memo arguing sitting presidents may be indicted by grand jury

Ronald Rotunda:

Nearly two decades ago, then-independent counsel Kenneth Starr asked me to evaluate whether a federal grand jury could indict a sitting president — in that case, Bill Clinton. My answer — that such an action would be permissible — was recently unearthed in response to a Freedom of Information Act request from the New York Times, and it may have relevance for a new special counsel and the current president. [Ed.: Text of memo supplied by the DOJ in response to a NYT’s FOIA request.]

My fundamental conclusion remains intact: Nothing in the Constitution would bar a federal grand jury from returning charges against a sitting president for committing a serious felony. But — and this is a big but — differences between the Clinton situation then and the investigation of President Trump now mean that where Starr had the authority to indict Clinton if he chose, Mueller most likely does not possess the same power.

For more see Ronald Rotunda’s WaPo opinion piece, The president can be indicted — just not by Mueller (July 27, 2017) — Joe

 

Sanctuary jurisdictions will only receive DOJ criminal justice grant funds if cities and states cooperate in detaining undocumented immigrants

On July 25, 2017, the DOJ announced that it will no longer award criminal justice grants to cities and states that refuse to cooperate with  federal agents in detaining undocumented immigrants. Here’s the text of the press release:

The Department of Justice today posted a solicitation for the Edward Byrne Memorial Justice Assistance Grant Programs (“Byrne JAG”). Recipients for FY 2017 will be notified of new conditions of their grants that will increase information sharing between federal, state, and local law enforcement, ensuring that federal immigration authorities have the information they need to enforce immigration laws and keep our communities safe.

“So-called ‘sanctuary’ policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes,” Attorney General Jeff Sessions said. “These policies also encourage illegal immigration and even human trafficking by perpetuating the lie that in certain cities, illegal aliens can live outside the law. This can have tragic consequences, like the 10 deaths we saw in San Antonio this weekend. As part of accomplishing the Department of Justice’s top priority of reducing violent crime, we must encourage these ‘sanctuary’ jurisdictions to change their policies and partner with federal law enforcement to remove criminals. From now on, the Department will only provide Byrne JAG grants to cities and states that comply with federal law, allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities. This is consistent with long-established cooperative principles among law enforcement agencies. This is what the American people should be able to expect from their cities and states, and these long overdue requirements will help us take down MS-13 and other violent transnational gangs, and make our country safer.”

The DOJ policy will take effect in FY 2017. — Joe

DOJ argues that Title VII does not protect gay rights

BuzzFeed’s Dominic Holden is reporting that the DOJ filed an amicus brief in Zarda v. Altitude Express, No. 15-3775, at the US Court of Appeals for the Second Circuit that argues that Title VII of Civil Rights Act of 1964 does not cover sexual orientation and only applies if men and women are treated unequally. Details and the text of the DOJ brief at The Justice Department Just Argued Against Gay Rights In A Major Federal Case. — Joe

Constitutional Accountability Center’s white paper on Trump and the Domestic Emoluments Clause

In a recent Brookings white paper, several legal scholars took an in-depth look at the Foreign Emoluments Clause and the constitutional violations that result from President Trump’s continuing acceptance of benefits from foreign powers. This white paper,  The Domestic Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump, takes a similar look at the Domestic Emoluments Clause, discussing the text and history of the Clause, how it should be interpreted, and what it means in the context of President Trump’s vast business holdings.

Based on this examination, the Constitutional Accountability Center concludes that President Trump is likely violating one of the Constitution’s most important provisions—a safeguard designed to prevent corruption and self-dealing in our highest office. And that should not be allowed to continue. — Joe

Diversity, inclusion, and equal opportunity in the armed services

In light of President Trump’s recent threat to ban transgender individuals from serving in the military, perhaps someone will have the courage to give him this featured CRS report. Granted, Trump is not known for reading anything more substantial that a one page bullet-pointed sheet of paper but … .

Here’s the opening paragraph to Diversity, Inclusion, and Equal Opportunity in the Armed Services: Background and Issues for Congress (Oct. 13, 2016, R44321):

Diversity, inclusion, and equal opportunity are three terms that are often used interchangeably; however, there are some differences in how they are interpreted and applied between the Department of Defense (DOD) and civilian organizations. DOD’s definitions of diversity and equal opportunity have changed over time, as have its policies toward inclusion of various demographic groups. These changes have often paralleled social and legal change in the civilian sector. The gradual integration of previously excluded groups into the military has been ongoing since the 19th century. However, in the past few decades there have been rapid changes to certain laws and policies regarding diversity, inclusion, and equal opportunity in the Armed Forces. Since 2009, DOD policy changes and congressional actions have allowed individuals who are gay to serve openly, recognized their same-sex spouses as dependents for the purpose of military benefits, opened all combat assignments to women. On June 30, 2016, DOD announced the end of restrictions on service for transgender troops.

— Joe

Trump administration’s 6-month record on transparency: a Sunlight Foundation report

From the introduction of the Sunlight Foundation’s On Trump, transparency and democracy (July 20, 2017):

Over the first six months of this young presidency, President Donald J. Trump’s approach to the office has been characterized by self-interest, defiance of basic democratic norms, and often incoherent or self-contradictory communications and priorities.

In the face of historic lows in public trust in government and an increasingly polarized electorate, we’ve seen a regression to secrecy in both Congress and the White House. The change has not gone unnoticed around the globe, as our nation’s standing to defend democracy and our government’s ability to advocate for anti-corruption efforts has been precipitously eroded.

In this report, we offer a comprehensive but not exhaustive accounting of the Trump administration’s record on open government to date. More than seven months after we first considered what Trump would mean for open government, the questions we sent to the White House were never formally answered. The actions of this administration, however, speak for themselves.

Whatever transparency the President of the United States is demonstrating by speaking directly to the public on Twitter is outweighed by his refusal to disclose and divest, undermined by the opacity of their authorship, and weighted down by false claims and misleading assertions. This president publicly accused his predecessor of wiretapping his campaign with no evidence. If that’s transparency, the word itself has been devalued.

Our conclusion on the Trump administration’s record on open government at six months is inescapable: this is a secretive administration, allergic to transparency, ethically compromised, and hostile to the essential role that journalism plays in a democracy.

H/T to beSpacific. Recommended. — Joe

Can a President be criminally prosecuted while in office?

Here’s the abstract for Scott Howe’s The Prospect of a President Incarcerated, 2 NEXUS 86 (1997):

This article addresses the thorny question of whether a President can be criminally prosecuted while in office or whether prosecution must await his or her departure. The piece appeared as part of a symposium of articles that focused on that issue. The authors of the other articles were Akhil Reed Amar, Brian C. Kalt, Erwin Chemerinsky, Terry Eastland, Jay S. Bybee and Eric Freedman. The conclusions of the various authors made clear that scholars are divided over whether Section 3 of Article I implies that impeachment must precede any criminal prosecution and over whether the articulation of presidential power in Article II, Section 1, combined with the doctrine of separation of powers, implies a presidential immunity from prosecution. In this article, I argue that the Constitution is not appropriately read to provide a sitting President with any temporary immunity from criminal prosecution. However, I also argue that policy arguments favor such an immunity as a matter of federal common law in the absence of Congressional action on the problem. I also argue that this common law immunity should apply to the Vice President, but not to the President’s spouse, and should extend to civil as well as criminal cases. My conclusion that the judiciary could ground immunity on its power to articulate federal common law implies as well that Congress could dominate the field in the first instance or in response to a judicial ruling.

— Joe

List of people pardoned or granted clemency by the President of the United States

This Wikipedia entry lists the identities of notable pardons by each president from George Washington to Donald Trump. — Joe

Recent monograph on the president’s pardon power

Jeffrey Crouch’s The Presidential Pardon Power (UKansas, 2009) is the “first book-length treatment of presidential pardons in twenty years updates the clemency controversy to consider its more recent uses-or misuses. Blending history, law, and politics into a seamless narrative, Jeffrey Crouch provides a close look at the application and scrutiny of this power. His book is a virtual primer on the subject, covering all facets from its background in English law to current applications.” — Joe

Newly disclosed Clinton-era memo argues that presidents can be indicted

A newly disclosed legal memo from the office of Kenneth Starr, the independent counsel who investigated President Clinton, challenges the long-held opinion that presidents are immune from indictment while they are in office. The memo was made public in response to a NYT’s FOIA request. See also Charles Savage’s Can the President Be Indicted? A Long-Hidden Legal Memo Says Yes (July 22, 2017). — Joe

 

Can a president pardon himself?

This note, published in the Yale Law Journal in 1996-97, answers in the negative. Here’s the abstract for Brian Kalt’s Pardon Me?: The Constitutional Case Against Presidential Self-Pardons:

Can a president pardon himself? President Nixon thought so, and seriously considered it, and the specter of a self-pardon has been raised several times since then. But the answer is unclear.

This note makes the case against the validity of self-pardons, using arguments from the Constitution’s history, text, and structure, and from general legal principles.

In brief, the Framers either assumed that self-pardons were invalid or at most failed to consider the issue. The text they wrote does not say anything specific about self-pardons, but their failure to explicitly ban self-pardons cannot be read as a decision to allow them.

Looking at the structure of the Constitution and the government it creates, we find a general distaste for self-dealing and a specific notion of a presidency that is limited in ways that are inconsistent with allowing self-pardons.

Finally, general principles about the rule of law and against self-judging militate strongly in favor of the notion that self-pardons are invalid.

— Joe