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.
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.
From the summary of Congress’s Authority to Influence and Control Executive Branch Agencies (R45442, Dec. 19, 2018):
The most potent tools of congressional control over agencies, including those addressing the structuring, empowering, regulating, and funding of agencies, typically require enactment of legislation. Such legislation must comport with constitutional requirements related to bicameralism (i.e., it must be approved by both houses of Congress) and presentment (i.e., it must be presented to the President for signature). The constitutional process to enact effective legislation requires the support of the House, Senate, and the President, unless the support in both houses is sufficient to override the President’s veto.
The State Department’s Office of the Chief of Protocol released Wednesday its annual list of federal employees’ gifts from foreign sources, encompassing items received by President Trump and his family in 2017. Read the list here.
From the abstract for W. Burlette Carter, Can a Sitting President Be Federally Prosecuted? The Founders Answer, Howard Law Journal, 2019:
Exploring the history of impeachment and prosecution in (1) England and Great Britain, (2) colonial America, and (3) the states immediately after independence, and comparing these to the Founders’ Constitutional discussions, this article considers how the Founders would have answered that question, were it posed to them today. Deviating from most analyses of the problem, it argues that the Founders would have viewed the question as jurisdictional, involving a conflict between courts of law on the one hand, and the Congress–operating as a High Grand Jury (the House) and a High Court of Impeachment (the Senate)–on the other. They would have said that they gave to the Congress, constituted in its impeachment role, sole jurisdiction over removing a U.S. President for misbehavior. At the same time, they would have said that they gave courts of law concurrent power to hear cases involving crimes and misdemeanors so long as they do not involve removal. And so they would have answered our question with a question: Does the threatened action against the President risk removing the President, either directly or constructively? They would have believed that any order of a criminal authority affirmatively or negatively enjoining powers delegated to the President under the Constitution would shift those power to others and, therefore, would be a partial and impermissible removal attempt. Congress could insert itself into such proceedings to protect the Presidency (and, to remove or protect a President), but even if it does not, no federal court has jurisdiction to enforce such a removal order and, therefore a federal prosecutor has no power.
Consistent with British impeachment history, Founders would have viewed the proper issuance of Articles of Impeachment as a jurisdictional act that signaled Congress’ intent to actively intervene. As such, such Articles would automatically stay any contrary proceeding in or related to courts of law, including a federal investigation and the operation of a federal grand jury. Moreover, they would have said that a President has the power to fire his prosecutor, if he appointed him. And while a president can be impeached for obstructive behavior, they would have said that he cannot, after an impeachment, be prosecuted for statutory obstruction of justice, if the statutory prosecution is based on the exercise of powers delegated to him as President under the Constitution.
The Founders would have recognized that, before the formal issuance of Articles of Impeachment, courts of law have the power to stay their own proceedings against a President for good cause, just as English/British common law courts with concurrent jurisdiction always could. And they would have have accepted that courts of law can, in the first instance, decide evidentiary issues such as executive privilege for matters proceeding in their fora. Again, despite Parliamentary power over impeachment, common law courts had long done so in England and Great Britain, so long as they otherwise had jurisdiction.
This jurisdiction-focused answer from the Founders balances the interest in law enforcement in a given case with the larger interest of the nation in protecting the people’s investment in the Presidency. It allows prosecutors to investigate the behavior of a sitting President–up to a point. On the other hand, it not only authorizes but requires that prosecutors, sworn to uphold the Constitution, exercise prosecutorial discretion in determining whether or not to mount an investigation of a sitting President and how far to take it through the courts of law. And it requires that courts of law accept the limits of their jurisdiction when proposed injunctions or orders would threaten a removal.
The article sets forth the broad outlines of presidential removal doctrine and its jurisdictional ties. The focus is on the powers of federal prosecutors and federal courts in criminal proceedings vis a vis the President. It does not deal with the definition of high crimes and misdemeanors or many other related impeachment questions. While some of the arguments presented here might possibly apply to other types of proceedings against a President, including state prosecutions, this article focuses on federal prosecution.
The Democratic-controlled House Judiciary Committee opened a sweeping investigation Monday into President Donald Trump and his associates, requesting documents from 81 “agencies, entities, and individuals” connected to the administration and Trump’s private businesses. Here’s the full list.
From the abstract for Mark A. Pollack’s Trump’s Dilemma: Explaining the President’s War on His Own Executive Branch (Feb. 2019):
One of the most striking characteristics of the Trump administration has been the frequency and vehemence with which the President has sought to undermine the expertise, operational capacity, credibility, and legitimacy of his own federal departments and agencies. In some cases, such as the Environmental Protection Agency and the Department of State, Trump sought to attack the civil service through massive cuts in staff and budget, silencing of scientific experts, and a depletion of morale that drove career professionals out of government service. In other cases, such as the US intelligence agencies, the Department of Justice, and the Federal Bureau of Investigation, the President engaged in direct public attacks on the credibility and legitimacy of government agencies and their leaders. The Governor’s Dilemma framework allows us to explain why, and how, an American President could devote so much of his energy to undermining the competence of his intermediaries. “Trump’s Dilemma” derives from the fact that the President-Elect came to office with views so far outside mainstream traditions of American public policy that he feared that executive departments and agencies – the so-called “Deep State” – would resist his dramatic policy shifts, or even directly threaten his position as President by revealing damaging information or prosecuting the President or his advisors for violations of federal law. In the face of this dramatical goal divergence, together with the perceived failure of traditional principal-agent controls, Trump responded by moving aggressively to undermine the competence of many of his own departments and agencies.
On February 15, 2019, the President declared a “national emergency” for the purpose of diverting appropriated funds from previously designated uses to build a wall along the southern border. We are aware of no emergency that remotely justifies such a step. — Joint Declaration of Former United States Government Officials.
Fifty-eight former senior national security officials, both Democrats and Republicans, issued a statement saying “there is no factual basis” to support President Donald Trump’s declaration of a national emergency on the US southern border. Read the Joint Declaration.
Yesterday, President Trump issued an executive order directing U.S. agencies to prioritize keeping the U.S. ahead in the development and deployment of artificial intelligence because “[c]ontinued American leadership in AI is of paramount importance to maintaining the economic and national security of the United States and to shaping the global evolution of AI in a manner consistent with our Nation’s values, policies, and priorities.” Trump did not, however, allocate specific sums of money, but told aides to tally up what it will cost to maintain the lead, and to budget for it. Read the executive order here.
The New York Times reported on Monday that Cliff Sims, author of “Team of Vipers,” is “suing the president in his official capacity, alleging that he used his campaign organization as a ‘cutout’ to improperly seek retribution against former employees and keep them from invoking their First Amendment rights.” Sims’ lawsuit comes after the Trump campaign filed an arbitration claim against the White House aide turned author. The campaign is claiming that Sims violated a non-disclosure agreement, but Sims is reportedly not entirely sure he signed an NDA at all. Read the complaint here.
A White House source has leaked nearly every day of President Trump’s private schedule for the past three months. Since Nov. 7, the day after the midterm elections, Trump has spent around 297 hours in Executive Time, according to the 51 private schedules obtained by Axios. For those same schedules, Trump has had about 77 hours scheduled for meetings.
Under the National Emergencies Act the president has complete discretion to issue an emergency declaration—but he must specify in the declaration which powers he intends to use, issue public updates if he decides to invoke additional powers, and report to Congress on the government’s emergency-related expenditures every six months. The state of emergency expires after a year unless the president renews it, and the Senate and the House must meet every six months while the emergency is in effect “to consider a vote” on termination.
At the moment President Donald Trump threatens to bypass Congress and secure funding for a wall along the border with Mexico by declaring a national emergency. With that in mind, here are three national emergency backgrounders:
- Brennan Center for Justice’s A Guide to Emergency Powers and Their Use
- Emergencies Without End: A Primer on Federal States of Emergency, Lawfare
- What the President Could Do If He Declares a State of Emergency, The Atlantic
On Lawfare, Margaret Taylor presents an overview of congressional requests for executive branch information and executive privilege assertions in response here.
The 2019 State of the Union Address is scheduled to be given by Donald Trump on Tuesday, January 29, 2019. According to History, Evolution, and Practices of the President’s State of the Union Address: Frequently Asked Questions (R44770, Jan 9, 2019) “the State of the Union address has evolved considerably. The President’s State of the Union address was known as the President’s Annual Message to Congress until well into the 20th century. Presidents George Washington and John Adams delivered their messages to Congress in person, but President Thomas Jefferson abandoned the practice as “monarchical” and time consuming, sending written messages instead. This precedent was followed until President Woodrow Wilson personally appeared before Congress in 1913. President Franklin Roosevelt adopted Wilson’s practice of personal delivery, and it has since become a contemporary tradition. With the advent of radio (1923), television (1947), and live webcast (2002) coverage of the address, it has gained greater importance by providing a nationwide platform for the President.”
On Wednesday, President Trump informed Speaker Pelosi that he was accepting the Speaker’s Jan. 3 invitation to address the nation on January 29th as to the State of the Union. [Trump letter here]. Soon thereafter Speaker Pelosi responded in writing. The Speaker wrote “I am writing to inform you that the House of Representatives will not consider a concurrent resolution authorizing the President’s State of the Union address in the House Chamber until government has opened.” [Pelosi letter here]
Voices from the Field (Jan. 2019), published by the FBI Agents Association, provides illustrations of how the government shutdown is affecting FBI work and identifies the risks that may emerge as it continues. “FBIAA is releasing ‘Voices from the Field’ to ensure that Congress, the Administration, and the public are aware of the real and daily challenges faced by FBI Agents and the risks to national security posed by a prolonged shutdown.”
From the blurb for Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law (Oxford UP, Jan. 15, 2019) by Andrew Coan:
The first special prosecutor was appointed by President Ulysses S. Grant in 1875, to investigate a bribery scandal involving his close friends and associates. Ever since, presidents of both parties have appointed special prosecutors and empowered them to operate with unusual independence. Also called special counsels and independent counsels, such appointments became a standard method for neutralizing political scandals and demonstrating the President’s commitment to the rule of law. Special counsel Robert Mueller is the latest example.
In Prosecuting the President, Andrew Coan offers a highly engaging look at the long, mostly forgotten history of special prosecutors in American politics. For more than a century, special prosecutors have struck fear into the hearts of Presidents, who have the power to fire them at any time. How could this be, Coan asks? And how could the nation entrust such a high responsibility to such subordinate officials? With vivid storytelling and historical examples, Coan demonstrates that special prosecutors can do much to protect the rule of law under the right circumstances.
Many have been thwarted by the formidable challenges of investigating a sitting President and his close associates; a few have abused the powers entrusted to them. But at their best, special prosecutors function as catalysts of democracy, channeling an unfocused popular will to safeguard the rule of law. By raising the visibility of high-level misconduct, they enable the American people to hold the President accountable. Yet, if a President thinks he can fire a special prosecutor without incurring serious political damage, he has the power to do so. Ultimately, Coan concludes, only the American people can decide whether the President is above the law.