Available on NPR here.
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.”
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.
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.