From the abstract for Stacy Hawkins, Trump’s Dangerous Judicial Legacy, UCLA Law Review Discourse, Vol. 67, 2019:
Reviewing statistical data on the composition of the federal judiciary over the last forty plus years, this paper describes what appears to be President Trump’s deliberate effort to reverse a decades-long trend by his presidential predecessors to diversify the federal judiciary. It then imagines both the motivations for and consequences of this effort. The longstanding commitment to increasing judicial diversity that preceded President Trump reflects a tacit, and at times even explicit, acknowledgement by his presidential predecessors that the legitimacy of our justice system depends on a diverse judiciary. By contrast, Trump’s judicial appointments reveal an increasingly evident ambition to “whitewash” America that has emerged from his larger rhetorical commitment to “Make America Great Again.” Combining the statistical data on the rapidly shifting demography of the federal judiciary under President Trump with insights from the scholarly literature on theories of procedural justice and representative bureaucracy, which posit that the diversity of judges matters to citizens’ perceptions of justice as well as to judicial accountability to minority citizens’ interests, this paper suggests that President Trump’s “whitewashing” of the federal judiciary will have grave consequences for the legitimacy and effective functioning of our courts on behalf of an increasingly diverse citizenry.
From the abstract for Nathan Cortez, Information Mischief Under the Trump Administration, Chicago-Kent Law Review, Vol. 94, No. 2, 2019:
The Trump administration has used government information in more cynical ways than its predecessors. For example, it has removed certain information from the public domain, scrubbed certain terminology from government web sites, censored scientists, manipulated public data, and used “transparency” initiatives as a pretext for anti-regulatory policies, particularly environmental policy. This article attempts to tease out an emerging “information policy” for the Trump administration, explain how it departs from the information policies of predecessors, and evaluate the extent to which both legal and non-legal mechanisms might constrain executive discretion.
Nearly 100 internal Trump transition vetting documents were leaked to “Axios on HBO,” identifying a host of “red flags” about officials who went on to get Trump administration jobs and others who never had an administration materialize. Axios redacted personal details that weren’t newsworthy, information from spurious sources, and material the vetting team described as rumors about contenders’ personal lives, and contact and identification information. All the unredacted information is from public sources. Read the documents here.
From the summary of The Impeachment Process in the House of Representatives (R45769, June 14, 2019): “The House impeachment process generally proceeds in three phases: (1) initiation of the impeachment process; (2) Judiciary Committee investigation, hearings, and markup of articles of impeachment; and (3) full House consideration of the articles of impeachment.”
In a letter sent to the President today, the Office of Special Counsel recommends that Presidential advisor Kellyanne Conway should be fired because she has violated the Hatch Act repeatedly in her official capacity. Read the report.
In a public statement today [transcript here], Mueller reiterated DOJ policy that an indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions so indicting President Trump for obstruction of justice was “not an option.” See the DOJ OLC’s memo titled A Sitting President’s Amenability to Indictment and Criminal Prosecution (updated Dec. 10, 2018).
Excerpt from the introduction to Legislative Purpose and Adviser Immunity in Congressional Investigations (LSB10301, May 24, 2019):
The Trump Administration has recently questioned the legal validity of numerous investigative demands made by House committees. These objections have been based on various grounds, but two specific arguments will be addressed in this Sidebar:
- The President and other Administration officials have contended that certain committee demands lack a valid “legislative purpose” and therefore do not fall within Congress’s investigative authority.
- The President has made a more generalized claim that his advisers cannot be made to testify before Congress, even in the face of a committee subpoena. This position, based upon the executive branch’s longstanding conception of immunity for presidential advisers from compelled congressional testimony regarding their official duties.
From the blurb for Michael Wolff, Siege: Trump Under Fire, (Henry Holt, June 4, 2019):
Michael Wolff, author of the bombshell bestseller Fire and Fury, once again takes us inside the Trump presidency to reveal a White House under siege.
With Fire and Fury, Michael Wolff defined the first phase of the Trump administration; now, in Siege, he has written an equally essential and explosive book about a presidency that is under fire from almost every side. A stunningly fresh narrative that begins just as Trump’s second year as president is getting underway and ends with the delivery of the Mueller report, Siege reveals an administration that is perpetually beleaguered by investigations and a president who is increasingly volatile, erratic, and exposed.
On May 16, 2019, the U.S. District Court for the District of Columbia unsealed sentencing documents for Michael Flynn. Included in those documents were descriptions of how Flynn assisted prosecutors, including both the cases he had been involved with, and the way in which his cooperation had assisted the investigation.
From the Daily Kos: “The documents show that Flynn’s cooperation was vital in three different cases: the criminal investigation into how Flynn’s former business partner acted as an unregistered agent for Turkey; the special counsel investigation into connections between the Trump campaign and Russia; and a third case, the description of which remains redacted. Some speculation has suggested that the third case may be related to the ongoing trial of Roger Stone, or other potential cases related to WikiLeaks. Others have suggested that it might represent Flynn’s knowledge of some financial matter related to the Trump Organization … which mostly shows just how little is known about the multiple cases still pending in various jurisdictions following the Mueller investigation.”
The list of prosecutors who signed the statement includes more than 20 former U.S. attorneys and more than 100 people with at least 20 years of service at the Justice Department — most of them former career officials. Read the statement here.
Hat tip to beSpacific for this litigation update. Read the memorandum opinion in Blumenthal v. Trump, DCDC 1:17-cv-01154-EGS.
Raw Story reports that a group of psychiatrists has combed through special counsel Robert Mueller’s report on Russian interference in the 2016 presidential election and have concluded that it raises several questions about President Donald Trump’s “mental capacity.”
The report, which is titled Mental Health Analysis of the Special Counsel’s Report on the Investigation Into Russian Interference in the 2016 Presidential Election, says that the 400-plus pages of the Mueller report provide “a wealth of relevant information regarding the President’s mental capacity,” which they say is necessary for the president to perform the complex tasks that his job requires.
From the abstract for Peter Margulies, Lifeboat Lawyering and the Ship of State: The Unstable Course of Legal Advice in the Trump Administration, Fordham Law Review, Forthcoming:
To cope with their mercurial client, senior Trump administration lawyers have resorted to what this Article calls “lifeboat lawyering.” This model can promote compliance with longstanding norms such as prosecutorial independence. However, lifeboat lawyering also carries special risks.
Lifeboat lawyering entails slow-walking presidential decisions and performing triage between especially damaging decisions and those that are less harmful. In some cases, such as ex-White House Counsel Don McGahn’s heading off a massive disclosure of data related to the inner workings of Special Counsel Robert Mueller’s Russia probe, lifeboat lawyering can be useful. But lifeboat lawyers’ triage is neither transparent nor accountable. The public has no way to judge whether the rash decisions that lifeboat lawyering prevents outweigh the many other unsound decisions in which administration lawyers acquiesce.
Moreover, lifeboat lawyers such as McGahn may overestimate their value in office and underestimate the salutary effects of a resignation that highlights the administration’s flaws. Admittedly, these risks are present in virtually every administration, and much lawyering in the Trump administration is far more conventional. However, this administration has featured more agonizing dilemmas than its predecessors.
The Article illustrates the promise and perils of lifeboat lawyering with an analysis of Don McGahn’s role in releasing a congressional report on the 2016 application of the Department of Justice (DOJ) for a warrant under the Foreign Intelligence Surveillance Act (FISA) to investigate former Trump consultant Carter Page’s Russia ties. Release of this FISA material was unprecedented. Moreover, the McGahn letter was insufficiently precise about the congressional report’s distortions of DOJ’s FISA request. Yet McGahn’s approach also contained language that could have alerted attentive readers to the problems with the congressional report. That double effect reflects both lifeboat lawyering’s value and its dangers.
You can pre-order the Nook book edition online here.
From the introduction to Presidential Terms and Tenure: Perspectives and Proposals for Change (R40864, Apr. 15, 2019):
The length of the President’s term and the question of whether Presidents should be eligible for reelection were extensively debated in 1787 at the Constitutional Convention. Late in the proceedings, the delegates settled on a four-year term for both President and Vice President but did not place a limit on the number of terms a President could serve.
From the introduction to Can the President Close the Border? Relevant Laws and Considerations (LSB10283, Apr. 12, 2019):
Little federal case law addresses these questions. Although recent media articles discuss at least four occasions when past presidents have restricted operations at ports of entry on the southern border, those executive measures apparently did not
prompt legal challenges that required federal courts to assess the Executive’s authority for the measures.
President Trump’s appointment of the Commissioner of U.S. Customs and Border Protection to serve as Acting DHS Secretary violates the DHS succession act. House Homeland Security Committee Chair Bennie G. Thompson alerted the president to the problem in this April 8, 2019 letter. Quoting the provision, Thompson wrote:
“Notwithstanding chapter 33 of title 5, United States Code, the Under Secretary for Management shall serve as the Acting Secretary if by reason of absence, disability, or vacancy in office, neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the Secretary.”
H/T Constitutional Law Prof Blog.
From Secrecy Blog: “The number of leaks of classified information reported as potential crimes by federal agencies reached record high levels during the first two years of the Trump Administration, according to data released by the Justice Department last week.
“But the data as released leave several questions unanswered. They do not reveal how many of the referrals actually triggered an FBI investigation. They do not indicate whether the leaks are evenly distributed across the national security bureaucracy or concentrated in one or more “problem” agencies (or congressional committees). And they do not distinguish between leaks that simply “hurt our country,” as the Attorney General put it, and those that are complicated by a significant public interest in the information that was disclosed.”