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.”
A whistleblower working inside the White House has told a House committee that senior Trump administration officials granted security clearances to at least 25 individuals whose applications had been denied by career employees for “disqualifying issues” that could put national security at risk, the committee’s Democratic staff said Monday. Read the staff summary.
From the summary of Congressional Subpoenas: Enforcing Executive Branch Compliance (R45653, Mar. 27, 2019):
Congress currently employs an ad hoc combination of methods to combat non-compliance with subpoenas. The two predominant methods rely on the authority and participation of another branch of government. First, the criminal contempt statute permits a single house of Congress to certify a contempt citation to the executive branch for the criminal prosecution of an individual who has willfully refused to comply with a committee subpoena. Once the contempt citation is received, any prosecution lies within the control of the executive branch. Second, Congress may try to enforce a subpoena by seeking a civil judgment declaring that the recipient is legally obligated to comply. This process of civil enforcement relies on the help of the courts to enforce congressional demands.
From the abstract for Jennifer Nou, Civil Servant Disobedience (Chicago-Kent Law Review, Vol. 94, No. 2, 2019):
Bureaucratic resistance has long been a feature of the administrative state. What is striking is the extent to which it has become publicly defiant under the Trump Administration. Civil servants are openly flouting executive directives in their official capacity, despite strong norms to the contrary. The social practice raises both parallels and contrasts to civil disobedience by private citizens—meriting an analogous need for sustained scholarly debate about the phenomenon. This symposium article seeks to isolate civil servant disobedience conceptually and begin an exploration into its normative implications. In particular, it considers the ideal of a reciprocal hierarchy, whereby political appointees consult the expertise and experience of career staff as required by statute. This ideal may help to inform evaluations of civil servant disobedience as a form of bureaucratic process-perfection alongside other legitimating criteria. These factors, however, may also suggest that disobedience is often difficult to justify in practice.
In an Executive Order Thursday, President Trump sought to promote free inquiry and regulate student loans in higher education. Read the Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities.
H/T to beSpacific for calling attention to Gov404: The Sunlight Foundation Web Integrity Project’s Censorship Tracker. Gov404 aggregates and verifies examples of the most significant cases of online information censorship on the federal Web since November 2016. The cases come from reporting by the Web Integrity Project team, the news media, and other accountability organizations.
The president’s proposed budget for the 2020 fiscal year was delivered to Congress on Monday. Text and official fact sheets here.
Yesterday’s reporting from the New York Times, Washington Post and Politico.
From the introduction to The Emoluments Clauses of the U.S. Constitution (IF11086, Jan. 30, 2019):
Recent litigation involving President Trump has raised a number of legal issues concerning formerly obscure constitutional provisions that prohibit the acceptance or receipt of “emoluments” in certain circumstances. This In Focus provides an overview of these constitutional provisions, highlighting several unsettled legal areas concerning their meaning and scope, and reviewing the status of ongoing litigation against President Trump based on alleged violations of the Emoluments Clauses.