Category Archives: Executive Branch

How Do We Solve a Problem Like the Donald?

Here’s the abstract for Julie Novkov’s How Do We Solve a Problem Like the Donald? (Sept. 29, 2017):

Political observers have debated whether and how to remove Donald J. Trump from the office of the presidency. This article explains the difficulties associated with both the Twenty-Fifth Amendment’s incapacity route and impeachment. These difficulties illuminate a larger underlying problem with American democracy that the Trump presidency both crystallizes and reinforces: the emergence of an energized core of political participants who unite around racialized identity and reject some core principles of democracy.

— Joe

Presidential administration under Trump

Here’s the abstract for Daniel Farber’s Presidential Administration Under Trump:

In an enormously influential 2001 article about the increasingly dominant role of the President in regulation, then-Professor Elena Kagan celebrated the rise of what she called presidential administration. Recognizing the unpredictability of future developments, however, she observed that “the practice of presidential control over administration likely will continue to evolve in ways that raise new issues and cast doubt on old conclusions.” In that spirit, this Essay reexamines her thesis in light of experience under subsequent presidents, with a particular focus on the Trump Administration.

Though the Trump Administration is still less than a year old, it is not too early to start drawing conclusions about its institutional structure and decision-making processes. These seem to be at odds with Kagan’s assumptions about the implementation of presidential administration. Doctrines must be designed with a range of possible executive behavior in mind, not on the basis of one presidency. But that range has turned out to be broader than many scholars had assumed. The Trump Presidency has highlighted risks to presidential administration that were less evident previously. As a result, we need to recalibrate our expectations about presidential behavior and correspondingly our understanding of the functioning of the executive branch. Thus, we may gain a newfound appreciation for some of the institutions and doctrines such as State Farm that may blunt presidential power and strengthen the role of agencies and their professional staffs.

— Joe

Grab ’em by the emoluments

Here’s the abstract for Lawrence Trautman’s Grab ‘Em By The Emoluments: The Crumbling Ethical Foundation of Donald Trump’s Presidency (Aug. 27, 2017):

Does Donald Trump believe that over 200 years of constitutional law doesn’t apply to him? This paper explores two important areas of U.S. Constitutional law: the constitutional prohibition against acceptance of emoluments (anything of value); and the constitutional provision for presidential impeachment and is written before findings are available from any special investigations or results from the many Congressional inquiries about matters surrounding the Russian tampering with the American 2016 presidential election. Therefore, this article is an inquiry into other matters that raise many serious questions about the ethical fitness of Donald Trump to be President. Among grounds for Trump’s impeachment are his numerous ongoing Emoluments Clause violations. At this time it seems unlikely that President Trump will face impeachment. Given that both the U.S. House of Representatives and Senate are in control of the Republican Party, President Trump should be immune from impeachment proceedings unless the Republican Party leadership determines that it is in their best interest to allow for impeachment and removal, not a zero probability. Will President Trump’s lifelong propensity for lying ultimately lead to his eventual demise?

— Joe

Brookings Institution report: Presidential Obstruction of Justice: The Case of Donald J. Trump

On October 10th, the Brookings Institution released Presidential Obstruction of Justice: The Case of Donald J. Trump (Oct. 10, 2017). From the press release:

In this paper, we break down and analyze the question of whether President Trump may have obstructed justice and explain the criminal and congressional actions that could follow from an obstruction investigation. Addressing the possibility of criminal behavior by President Trump and the complicated issues it raises is not a task that we take lightly. Dissecting allegations of criminality leveled against an individual who has been duly elected president and who has sworn to preserve, protect, and defend our Constitution is an inherently solemn task. But it is our hope that by presenting a rigorous legal analysis of the potential case against the president, we will help the American people and their representatives understand the contours of the issues, regardless of whether it is eventually litigated in a court of law, the halls of Congress, or the court of public opinion.

Recommended. — Joe

Trump’s immigration principles for DACA deal [text]

Here’s the text of the recently released immigration principles proposed by the Trump Administration as the basis for a bipartisan DACA agreement. — Joe

AG Sessions revokes Obama Administration position on transgender employment discrimination claims

The move was the Trump administration’s latest contraction of the Obama-era approach to civil rights enforcement.

The dispute centers on how to interpret employment protections based on “sex” in Title VII of the Civil Rights Act of 1964. In December 2014, the attorney general at the time, Eric H. Holder Jr., ordered the Justice Department to view “sex” as encompassing gender identity, extending protections to transgender people.

But in a two-page memo to all United States attorneys and other top officials, Mr. Sessions revoked Mr. Holder’s directive. The word “sex” in the statute, Mr. Sessions said, means only “biologically male or female,” so the Civil Rights Act does not ban “discrimination based on gender identity per se, including transgender status.” Charlie Savage, In Shift, Justice Dept. Says Law Doesn’t Bar Transgender Discrimination, NYT, Oct. 5, 2017

Yesterday the DOJ was instructed by AG Sessions to view transgender people as not protected by Title VII in court cases. Here’s the text of the memo. H/T beSpacific. — Joe

Trump administration enhances extreme vetting capabilities with new travel ban

The Trump Administration issues a new travel ban that revises Executive Order 13780 (March 6, 2017) which expired yesterday. Here’s the text. — Joe

Congressional Research Service on grounds for impeachment [Resources]

The impeachment of Bill Clinton was initiated by the House of Representatives on December 19, 1998, with two charges, one of perjury and one of obstruction of justice. Some six weeks earlier on October 30, 1998, the Congressional Research Service released a six part series of selected background materials pertinent to the issue of what constitutes impeachable misconduct for purposes of Article II, section 4 of the United States Constitution:

I wonder whether this series will be updated in the near, hopefully very near, future. — Joe

ACLU seeks relief from Trump’s transgender ban [Text of complaint]

In response to a presidential directive banning transgender individuals from military service, the ACLU has filed a complaint for declaratory and injunctive relief on the grounds that the transgender ban violates the constitutional guarantees of equal protection and substantive due process by singling out transgender individuals for unequal and discriminatory treatment. — Joe

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 — 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.


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