From the abstract for Sonja West, Suing the President for First Amendment Violations, 71 Oklahoma Law Review ___ (2018):

On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?

One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely clear if or how citizens can hold the President responsible for violating their expressive rights.

This Essay explores some of the potential obstacles facing a person or organization bringing a First Amendment lawsuit against the President such as whether the President can violate the First Amendment at all and how a plaintiff might recover for that violation. It concludes by suggesting a few possible approaches to this problem that could help clarify and secure the rights of all Americans to seek justice—even against the President—if their freedoms of speech and press are violated.

— Joe

Today President Trump signed an executive order that threatens sanctions on foreign companies, individuals or governments that meddle in the 2018 mid-term elections and beyond. Interference is defined as hacks against “election infrastructure,” attempts to influence public opinion online, and leaks of political information. The CIA, the National Security Agency, the Department of Homeland Security and the Office of the Director of National Intelligence are charged with determining whether meddling has taken place. The order requires the State Department and the Treasury Department to formulate sanctions that would be imposed against foreigners or foreign nations, with possible calibration based on the severity of offenses.

— Joe

From the abstract for Frank O. Bowman III, British Impeachments (1376 – 1787) & the Present American Constitutional Crisis (Aug. 14, 2018):

Impeachment is a British invention. It arose as one of a set of tools employed by Parliament in its long contest with the Crown over the reach of the monarch’s authority. British impeachment practice matters to Americans because the framers and ratifiers of the U.S. Constitution were the conscious heirs of Britain’s political evolution. The founders’ understanding of British history influenced their decision to include impeachment in the American constitution and their conception of how impeachment fit in a balanced system of ostensibly co-equal branches. It also produced two central features of American impeachment: the limitation of remedy to removal from office and the definition of impeachable conduct, particularly the famous phrase “high Crimes and Misdemeanors” adopted directly from British parliamentary language. Therefore, at a moment when impeachment talk is rampant, a reexamination of British impeachments is in order.

This Article is the first comprehensive analysis of the entire arc of British impeachments from 1376 to 1787 since Raoul Berger’s classic 1974 study. It gives particular attention to issues raised by the current presidency. The Article traces the evolution of Parliament’s use of impeachment and of the categories of behavior customarily designated as impeachable. These embraced, but were never limited to, indictable crimes, and included: armed rebellion and other overt treasons; common crimes like murder and rape; corruption (particularly the abuse of office for self-enrichment); incompetence, neglect, or maladministration of office; and betrayal of the nation’s foreign policy interests. The last of these categories has not been emphasized in modern American scholarship, but assumes particular salience in the present moment. Finally, and crucially, the Article concludes that, although Parliament sometimes used impeachment for less dramatic ends, its one indispensable function was removal of officials whose behavior threatened the constitutional order by promoting royal/executive absolutism over representative institutions and the rule of law. Critics of the incumbent president may find this thread of British precedent both poignant and potentially useful.

— Joe

Unresolved recusal issues require a pause in the Kavanaugh hearings by Laurence H. Tribe, Hon. Timothy K. Lewis, and Norman Eisen (Brookings Institution, Sept. 4, 2018) “explains why the Constitution as originally designed by the framers requires the Supreme Court nomination of Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to be put on hold. It takes no view on his ultimate confirmation. But as one of the authors has elsewhere explained, it offends the structure the framers created for a president who is facing mounting personal liability under our Constitution and laws to choose one of the judges in his own case.” For a summary, see this Brookings article. — Joe

From Keith A. Petty, Duty and Disobedience: The Conflict of Conscience and Compliance in the Trump Era, 45 Pepperdine Law Review ___ (2018):

In the first weeks of President Trump’s administration, the Acting Attorney General was fired for ordering the Justice Department not to enforce a controversial Executive Order on immigration. Police departments and corporate boardrooms prepare for less oversight and deregulation, opening the door to more aggressive police tactics and profit seeking, respectively. Military leaders wonder whether they will be ordered to torture suspected terrorists. In each of these situations, individuals must decide whether they will follow their conscience and disobey superiors or comply with organizational and state policies.

This article examines the conflict between conscience and compliance and draws upon lessons from military conscientious objectors to describe the behavioral pulls that influence decisions to disobey. The law of military conscientious objection is an impactful microcosm of legal and ethical noncompliance. As such, it is an effective illustration of the relationship between individual behavior and organizations/states. Applying compliance theory, the branch of social- psychological studies seeking to answer why individuals, organizations, or states obey the law, this article offers prescriptive recommendations aimed to enhance organizational efficiency, individual commitment, and balance the legal and moral conflicts of potential objectors.

— Joe

From Rebecca Roiphe and Bruce A. Green, Can the President Control the Department of Justice? Alabama Law Review, Forthcoming:

As the investigation into President Trump’s campaign ties to Russia grows increasingly intense, it is critical to understand how much control the President has over the Attorney General and the Department of Justice. Some critics claim that the President has absolute power to direct federal prosecutors and control their decisions. The President and his lawyers, joined by several scholars, take this claim one step further by arguing that the chief executive could not be guilty of obstruction of justice because his control over all prosecutorial decisions is absolute. This issue last arose during the Nixon Administration. The Department of Justice and the Independent Counsel disagreed about whether the President, as head of the executive branch under Article II, could direct individual prosecutions if he so chose. The Supreme Court in United States v. Nixon left the issue unresolved and has never revisited it.

This article addresses the question of presidential power principally from an historical perspective. It argues that the Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not result from any explicit constitutional or legislative mandate, but is rather based on an evolving understanding of prosecutorial independence and professional norms.

American democratic discourse has included the value of independent prosecutions from its inception, and scholars have debated how much this concept influenced the initial structure of American government. In the late 18th century, federal prosecutors enjoyed a significant degree of independence from the White House, both because of the diffuse local nature of federal prosecutions and the vague and overlapping lines of authority. As federal law grew in scope and complexity, there was an increased need to consolidate and rationalize the legal arm of the government. Ultimately the Department of Justice assumed this function under the executive branch. In 1870 when it created the law department, Congress was not overly concerned that partisan politics would infiltrate and undermine the rule of law, because at the time expertise, including professional norms for attorneys, were considered the ultimate protection against partisan corruption. In arguing that professional norms operated as an internal barrier between the Department of Justice and the remainder of the executive branch, this Article contributes to a growing debate about intra-branch checks and balances.

— Joe

Advising the President: Rules Governing Access and Accountability of Presidential Advisors (LSB10183, Aug. 8, 2018) examines three categories of Presidential advisors and the related ethics requirements and limitations that apply to their respective roles: employees who serve full-time, regular appointments; outside advisors who are formally appointed to temporary roles; and informal, personal advisors with whom the President consults. — Joe

“Most analyses of this topic, including a lengthy opinion by the Justice Department’s Office of Legal Counsel in 2000, overlook a Supreme Court case in which five Justices apparently favored the idea that the President can be subject to criminal prosecution. (The other four Justices did not exactly disagree either.),” wrote Ryan Goodman in his analysis of Nixon v. Fitzgerald, 457 U.S. 731 (1982). For more, see Goodman’s analysis here. — Joe

From Jim Baker, Donald Trump, Twitter and Presidential Power to Interpret the Law for the Executive Branch, Lawfare, Aug. 24, 2018: “So, what to make of the president’s tweet that he does not think that what Michael Cohen did was a crime? Is that a legal determination by the president that is binding on the executive branch, including the U.S. attorney’s office? Are government attorneys now precluded from prosecuting anyone else who might have been involved in this conduct, including the president himself? Is the FBI precluded from even investigating something that the president says is not a crime? Does the U.S. attorney’s office have to move to allow Cohen to withdraw his guilty plea and have the court dismiss the information? … Or will everyone in the Department of Justice simply ignore the president’s tweet?”

H/T beSpacific. — Joe

From Richard J. Pierce, How Should the U.S. Public Law System React to President Trump? (Aug. 20, 2018):

In this essay Professor Pierce uses six actions that President Trump has taken or threatened to take to illustrate the ways in which courts can preclude him from undermining core legal and cultural values while preserving his power and that of his successors to take all actions needed to execute effectively the powers conferred on the president in Article II of the constitution. He concludes that courts are capable of performing that difficult task through application of existing public law doctrines.

— Joe

From Charles M. Cameron, et al., Presidential Selection of Supreme Court Nominees: The Characteristics Approach (Aug. 13, 2018):

Despite the importance of every nomination to the Supreme Court, a unified theory that illuminates presidential selection of nominees across the modern political era remains elusive. We propose a new theory — the “characteristics approach” — that envisions nominees as bundles of characteristics, such as ideology, policy reliability, and attributes of diversity. We formalize the theory, which emphasizes the political returns to presidents from a nominee’s characteristics and the “costs” of finding and confirming such individuals, and derive explicit presidential demand functions for these characteristics. Using newly collected data on both nominees and short-list candidates, we estimate these demand functions. They reveal some striking and under-appreciated regularities in appointment politics. In particular, the substantial increase in presidential interest in the Supreme Court’s policy output and the increased availability of candidates with desired characteristics has led to significant changes in appointment politics and the composition of the Court.

— Joe

An excerpt from Katherine Shaw’s Speech, Intent, and the President, Cornell Law Review, Vol. 104, Forthcoming:

The novel rhetorical habits and strategies of President Donald Trump have already thrust questions of presidential intent into the spotlight in high-stakes ongoing litigation, including over the President’s “travel ban” orders. Courts evaluating the lawfulness of those orders have wrestled with what weight to accord the President’s statements, both from the campaign and following inauguration, with no real guiding principles regarding the significance of presidential statements, their relationship to presidential intent, or the relevance of intent in challenges to presidential action. These cases — and a number of others ongoing at the time of this writing — highlight the absence of any coherent conceptual framework for assessing both presidential speech and presidential intent. This Article attempts to fill that gap.

— Joe

An excerpt from the CRS Report, Tit-for-Tat Tariff Measures and U.S. Trade Policy (IN10927 July 11, 2018):

As a result of Section 232 investigations launched by the Administration, the United States has unilaterally applied new tariffs on steel (25%), aluminum (10%), and potentially auto imports from the EU, Canada, Mexico, China, and other countries. Some countries were exempted, generally based on quota agreements to limit the amount of steel and/or aluminum exports to the United States. The last time a president had taken restrictive trade action under this law was based on a 1983 petition submitted by the U.S. machine tool industry.

— Joe

Here’s four profile pieces to read more about Trump’s nominee for the Supreme Court.

Brett Kavanaugh, Trump’s Supreme Court pick, has sided with broad views of presidential powers, Washington Post, July 9, 2018

Brett Kavanaugh: Everything you need to know about Trump’s new Supreme Court candidate, Independent, July 10, 2018

Who is Judge Brett Kavanaugh? Trump’s Supreme Court nominee, Boston.com, July 10,2018

Who Is Brett Kavanaugh, President Trump’s Pick For The Supreme Court?, NPR, July 9, 2018

— Joe

Here are five CRS reports that address the Supreme Court appointment process:

  1. Supreme Court Vacancies: Frequently Asked Questions, March 31, 2016 R44440
  2. President’s Selection of a Nominee for a Supreme Court Vacancy: Overview, June 27, 2018 IN10923
  3. Supreme Court Appointment Process: President’s Selection of a Nominee, June 27, 2018 R44235
  4. Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, March 17, 2017 R44236
  5. Supreme Court Appointment Process: Senate Debate and Confirmation Vote, October 19, 2015 R44234

— Joe

From the abstract for Mark Greenberg and Harry Litman, Trump’s Corrupt Use of the Pardon Power, Lawfare, June 19, 2018:

In no aspect of his presidency has Trump acted more immorally and done more damage to the rule of law and constitutional norms than in his exercise of the pardon power. He has granted only five pardons, far fewer than any modern president at a comparable stage. And the immediate practical consequences of these pardons have been modest relative to the havoc he has wreaked with other endeavors — for example, his all-out assault on federal law enforcement institutions. But his pardons violate core principles of justice and appear designed to settle scores with enemies and to encourage allies to resist cooperation with the Mueller investigation. At times, Trump appears almost gleeful about using the pardon power in a manner directly contrary to its purpose.

Three of his pardons — the recent surprise grant to conservative political commentator Dinesh D’Souza; the April grant to Scooter Libby, former adviser to Vice President Dick Cheney; and the pardon of Sheriff Joe Arpaio last August — involve grave abuses of presidential power. Each of these pardons was a debasement of the pardon power and an egregious affront to constitutional norms and the rule of law.

— Joe

From the abstract for Mark Greenberg, Can Trump Obstruct Justice?, NYR Daily, Jan. 4, 2018:

Can a president commit obstruction of justice by terminating a criminal investigation? This question has become critical to the future of the Trump presidency.

When considering whether it is possible for the president to commit obstruction of justice by terminating an investigation, legal experts feel the pull of two conflicting ideas. On the one hand, it seems clear that a president who orders subordinates to lie to the FBI, destroys evidence, or bribes witnesses has committed obstruction of justice. This idea leads to the straightforward view that if the president acts with the corrupt purpose required for obstruction of justice, he can be guilty of that crime just as anyone else can. This republican view of presidential powers is probably the one held by most experts.

On the other hand, one may think that surely the president must be special by virtue of the Constitution’s broad grant of executive power. The executive branch would be unduly hampered if there were constant scrutiny of the president’s motives in exercising his authority. But an embrace of this idea without qualification leads to a royalist view of presidential powers.

Several others — including two former Justice Department officials, David B. Rivkin Jr. and Lee A. Casey, writing in The Wall Street Journal, but most notably Harvard Law professor emeritus Alan Dershowitz — have advocated a more nuanced position that seems to reconcile the two conflicting ideas, what I call the protected act view. Dershowitz rejects the royalist position: a president who lies to the FBI or authorizes the bribery of a witness is not exercising a power granted to the president by the Constitution, and therefore can be guilty of obstruction of justice. At the same time, Dershowitz argues that presidential actions “within [the president’s] constitutional authority,” such as firing an executive official or terminating an investigation, cannot be an obstruction of justice; in fact, a president acting within that authority, regardless of his purposes, cannot violate the law.

The protected act view has important implications for a potential impeachment proceeding. The constitutional standard for an impeachable offense — “treason, bribery, or other high crimes and misdemeanors” — is best understood to require serious official misconduct, but not the commission of a crime. But since Dershowitz’s protected act view implies that any presidential termination of an investigation is constitutionally authorized, impeachment for such an action could not be legally permissible. The view thus implies a constitutional bar to impeachment as well as to criminal prosecution.

The protected act view suffers from two fundamental flaws. First, despite Dershowitz’s insistence to the contrary, it means that there is very little the president would not have constitutional authority to do. As I explain, the view comes close to collapsing into the royalist view, allowing the president to commit what would otherwise be serious crimes with impunity. Second, sound constitutional interpretation does not support the view’s central claim. Moreover, the legitimate concern that the president’s purposes should not be subjected to constant scrutiny by Congress or the courts can be substantially accommodated without accepting the extreme position that any presidential exercise of power is legally permissible.

— Joe

From The Trump Administration’s Reform Plan and Reorganization Recommendations (IN10920, June 26, 2018):

On June 21, 2018, the Office of Management and Budget (OMB) issued Delivering Government Solutions in the 21st Century: Reform Plan and Reorganization Recommendations (the Reform Plan). The Reform Plan followed from Executive Order 13781, “Comprehensive Plan for Reorganizing the Executive Branch,” issued by President Donald J. Trump on March 13, 2017, and an OMB memorandum, M-17-22, “Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce,” issued on April 12, 2017

The 32 cross-agency proposals include, for example, those that would
•merge the Departments of Education and Labor;
•move certain nutrition assistance programs from the Department of Agriculture (USDA) to the Department of Health and Human Services;
•move the Army Corps of Engineers Civil Works from the Department of Defense (DOD) to the Department Transportation and the Department of the Interior (DOI);
•transfer the food safety functions of the Food and Drug Administration and those of USDA to a single agency within USDA;
•merge the National Marine Fisheries Service, which is part of the National Oceanic and Atmospheric Administration at the Department of Commerce (DOC), with the Fish and Wildlife Service at DOI;
•combine certain development finance tools, including those of the Overseas Private Investment Corporation and the Development Credit Authority of the U.S. Agency for International Development (USAID) into a newly established Development Finance Institution;
•comprehensively reorganize the headquarters bureaus and independent offices of USAID;
•move the policymaking functions of the Office of Personnel Management (OPM) to the Executive Office of the President;
•reorganize the U.S. Census Bureau, the Bureau of Economic Analysis, and the Bureau of Labor Statistics under the Under Secretary of Commerce for Economic Affairs;
•sell the transmission assets owned and operated by the Tennessee Valley Authority and the power marketing administrations within the Department of Energy;
•restructure the U.S. Postal Service to improve sustainability or prepare it to be converted to a private corporation;
•consolidate the management of graduate research fellowships of smaller federal agencies in the National Science Foundation;
•transition the business and recordkeeping practices of federal agencies to electronic government; and
•transfer the National Background Investigations Bureau from OPM to DOD

— Joe

From the abstract of Rebecca Delfino’s The Equal Protection Doctrine in the Age of Trump: The Example of Unaccompanied Immigrant Children, 84 Brooklyn Law Review ___ (Feb. 2018):

The Equal Protection Doctrine — the right of equals to equality — has taken on renewed relevance since the 2016 federal election cycle. The values of equality and due process, expressed in the Fourteenth Amendment and Fifth Amendment to the United States Constitution, are currently under siege. Laws and institutions central to the core functions of the federal government have been dismantled, repealed or ignored. In this climate, legislative and executive regulatory solutions are not viable, and the traditional means to remedy inequities and discrimination may no longer work. The only way to protect the long-held democratic value of equality is to challenge the actions that offend it in court.

In the federal immigration law context, the Special Immigrant Juvenile Status (SIJS) statute, a law intended to provide a pathway for undocumented immigrant children to obtain a legal residency in the United States, is offered as a current example of equal protection concerns: the SIJS legal framework, as applied, treats these children unequally. This article is the first to propose that this legal framework violates the constitutional guarantees of equal protection; and it presents the novel and unique argument that in the age of Trump, the time is ripe for an equal protection legal challenge to the SIJS law. Unprecedented times call for unprecedented measures.

— Joe