From the blurb for The Best People: Trump’s Cabinet and the Siege on Washington (Hachette Books, June 18, 2019):

An engrossing look at the Trump cabinet: the scandals, the incompetence, the assault on the federal government, the bungled attempts to impose order on an administration lost in a chaos of its own making.

Donald Trump promised a return to national greatness, but each day of his presidency seems to bring a new crisis, a deepening sense of national unease. Why, and how, has he failed his supporters? And how has he, on occasion, bested his detractors?

The Best People takes complete measure of the Trump administration, to grasp with clarity the president and his intentions, and how those intentions are being carried out-or subverted-by the people he has hired.

Alexander Nazaryan argues that the “assault on the administrative state” promised by Steve Bannon in early 2017 never came. What the American people got instead was Wilbur Ross hauling his tennis pro to confirmation hearing preparations; Scott Pruitt running away from rattlesnakes; Reince Priebus enduring insults from junior White House staffers.

And yet, bungling as Trump’s cabinet members have been, they have managed to either damage or arrest many of the gears that make government run. They have given away public lands to oil companies and allowed corporate lobbyists to make decisions about what is best for the American people, and have done it all while flying on private jets and dining at the finest restaurants, at taxpayers’ expense.

Meticulously reported and enthrallingly told, The Best People takes readers inside the federal government under Trump’s control, a government assailed by the very people charged to lead it, a government awash in confusion and corruption.

From the abstract for Peter A. Joy, Special Counsel Investigations and Legal Ethics: The Role of Secret Taping, 57 Duquesne University Law Review ___ (2019):

In July 2016, Michael Cohen, then presidential candidate Donald Trump’s lawyer, secretly recorded Trump discussing how they would use the publisher for the National Enquirer to purchase former Playboy model Karen McDougal’s story about an alleged affair with Trump in order to stop it from becoming public before the 2016 presidential election. The National Enquirer’s publisher purchased McDougal’s story in August 2016. In a similar move to quash another alleged affair from going public in October 2016, Cohen set up a corporation to purchase adult film star Stormy Daniels’s story of her affair with Trump. Trump was elected President in November 2016. Cohen’s secret recording contradicted Trump’s claims that he knew nothing about payments to McDougal, and it raises issues concerning the lengths to which Trump has gone to keep his private life a secret.

The taped conversation between Cohen and Trump later became public when Cohen’s lawyer released a copy of the tape in July 2018, which was after the Federal Bureau of Investigation (FBI) raided and seized audio tapes from Cohen’s office, home, and hotel room. It was also reported that Cohen was cooperating with Special Counsel Robert Mueller’s investigation into Russia’s interference in the 2016 presidential election and possible coordination between the Russian government and individuals associated with Trump’s presidential campaign. Reacting to the release of the tape, Trump tweeted: “Even more inconceivable that a lawyer would tape a client–totally unheard of & perhaps illegal.” Trump also tweeted: “What kind of a lawyer would tape a client? So sad! Is this a first, never heard of it before? . . . I hear there are other clients and many reporters that are taped–can this be so? Too bad!”

Contrary to Trump’s Twitter rant, this incident is not the first time a lawyer has secretly taped a conversation with a client or others. Even secret tapings involving Presidents and special counsel investigations have happened previously. Indeed, evidence that special counsels obtained through secret tapes was partially responsible for one former U.S. President to resign and another to be impeached.

Secret taping, though, raises a number of questions, including the following: Is secret taping legal? Is secret taping by a lawyer ethical? Lastly, if legal and ethical, what are the pros and cons of a lawyer secretly taping conversations? This essay sets out to answer those questions.

From the blurb for Jim Acosta, The Enemy of the People: A Dangerous Time to Tell the Truth in America (Harper, June 11, 2019):

In Mr. Trump’s campaign against what he calls “Fake News,” CNN Chief White House Correspondent, Jim Acosta, is public enemy number one. From the moment Mr. Trump announced his candidacy in 2015, he has attacked the media, calling journalists “the enemy of the people.”

Acosta presents a revealing examination of bureaucratic dysfunction, deception, and the unprecedented threat the rhetoric Mr. Trump is directing has on our democracy. When the leader of the free world incites hate and violence, Acosta doesn’t back down, and he urges his fellow citizens to do the same.

At CNN, Acosta offers a never-before-reported account of what it’s like to be the President’s least favorite correspondent. Acosta goes head-to-head with the White House, even after Trump supporters have threatened his life with words as well as physical violence.

From the hazy denials and accusations meant to discredit the Mueller investigation, to the president’s scurrilous tweets, Jim Acosta is in the eye of the storm while reporting live to millions of people across the world. After spending hundreds of hours with the revolving door of White House personnel, Acosta paints portraits of the personalities of Sarah Huckabee Sanders, Stephen Miller, Steve Bannon, Sean Spicer, Hope Hicks, Jared Kushner and more. Acosta is tenacious and unyielding in his public battle to preserve the First Amendment and #RealNews.

From the abstract for Alli Orr Larsen & Jeffrey L. Fisher, Virtual Briefing at the Supreme Court (109 Cornell Law Review (2019, Forthcoming)):

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today’s Supreme Court arguments are developed online: They are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent parties or have even filed a brief in the case at all. This “virtual briefing” (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a case that the key players inside the Court are listening. In particular, we show that the Twitter patterns of law clerks indicate they are paying close attention to producers of virtual briefing, and threads of these arguments (proposed and developed online) are starting to appear in the Court’s decisions.

We argue that this “crowdsourcing” dynamic to Supreme Court decision-making is at least worth a serious pause. There is surely merit to enlarging the dialogue around the issues the Supreme Court decides – maybe the best ideas will come from new voices in the crowd. But the confines of the adversarial process have been around for centuries, and there are significant risks that come with operating outside of it particularly given the unique nature and speed of online discussions. We analyze those risks in this article and suggest it is time to think hard about embracing virtual briefing — truly assessing what can be gained and what will be lost along the way.

From the blurb for Tom Wheeler, From Gutenberg to Google: The History of Our Future (Brookings Institution, 2019):

In this fascinating book, former FCC chairman Tom Wheeler brings to life the two great network revolutions of the past and uses them to help put in perspective the confusion, uncertainty, and even excitement most people face today. The first big network revolution was the invention of movable-type printing in the fifteenth century. This book, its millions of predecessors, and even such broad trends as the Reformation, the Renaissance, and the multiple scientific revolutions of the past 500 years would not have been possible without that one invention. The second revolution came with the invention of the telegraph early in the nineteenth century. Never before had people been able to communicate over long distances faster than a horse could travel. Along with the development of the world’s first high-speed network—the railroad—the telegraph upended centuries of stability and literally redrew the map of the world.

Wheeler puts these past revolutions into the perspective of today, when rapid-fire changes in networking are upending the nature of work, personal privacy, education, the media, and nearly every other aspect of modern life. But he doesn’t leave it there. Outlining “What’s Next,” he describes how artificial intelligence, virtual reality, blockchain, and the need for cybersecurity are laying the foundation for a third network revolution.

From the abstract for Jane Manners, Congress and the Problem of Legislative Discretion, 1790-1870 (2018):

Histories of the nineteenth-century United States often describe a stark divide between law and politics, with law as the agent of the propertied few and politics as the weapon of the masses. As representatives of America’s growing electorate fought to reapportion wealth, these accounts go, lawyers and judges waged a counteroffensive through the courts, using the rule of law to strike down statutes and stave off redistributive change. This dissertation challenges that narrative by examining the legislative logic of Congress during the first century of its existence: a logic, it argues, that increasingly relied on notions that we typically associate with private law, such as precedent, principle, and doctrines of vested rights. Members of Congress turned to these concepts not for the reasons that modern-day political scientists attribute to legislative actors, such as electoral considerations and political pressure (or at least, not only for such reasons), but rather out of a deeply-rooted anxiety about the exercise of their own power and an uncertainty as to what, in America’s decades-old experiment in representative democracy made legislation legitimate. Focusing on two case studies – one examining Congress’s response to the Great New York Fire of 1835 and the other investigating the legislative theory of the radical Republican senator Charles Sumner – this dissertation uses techniques and sources typically identified with the law side of the law/politics divide to make a novel claim: that Congress’s increasing reliance on the ideas and practices of ‘private’ law led its members gradually to limit their own discretion, constricting their ability to legislate for the public good in the process.

From Paul Godek, Determining States’ A Priori Preferences for the Electoral College: 1788 – 2016 (2017):

Here I review some of the basic institutional elements and empirical regularities of the U.S. electoral college. Historical election results confirm the expected dominance of the winner-take-all allocation of electors. Of greater interest is the array of state preferences for the electoral college, given a national-popular-vote as the contemplated alternative. The analysis demonstrates that well over half of the states, the smaller-population ones, prefer the electoral college. Indeed, the inverse relationship between state size and electoral-college preference, as well as the majority-of-states preference for the system, have existed throughout the entire history of U.S. presidential elections. Those characteristics are certain to persist for the foreseeable future.

Here’s the abstract for Jason Mazzone’s Subprecedents (May 22, 2018):

Everyone had heard of super-precedents: cases that have very strong precedential value and so are thought immune to overruling. Subprecedents deserve equal attention. Subprecedents are those cases that, by design or effect, have only very weak precedential significance. In contrast to their more demanding super-precedent cousins, subprecedents do not claim to constrain future judicial decision-making and thus invite being ignored. Yet subprecedents play important, frequently unnoticed, and often surprising roles in a legal system that values stare decisis. This essay, prepared for a symposium on Randy Kozel’s book, Settled Versus Right: A Theory of Precedent (2017), presents the case for paying greater attention, as we seek to make sense of the rules and operations of stare decisis, to the nature and contributions of subprecedents. The essay identifies seven different kinds of subprecedents with different characteristics and functions and it explores the roles they each play in our legal system. Despite their seemingly modest nature, subprecedents, it turns out, shape opportunities to seek and obtain legal remedies, facilitate and constrain judicial decision-making, and, ultimately, guide the direction of the law. Subprecedents, in their own quiet way, play powerful roles. They need to be understood and reckoned with.

— Joe

Here’s the abstract for Andrew McCanse Wright’s Justice Department Independence and White House Control (February 18, 2018):

Problematic relations between the White House and the U.S. Department of Justice stand out amidst the broader tumult of President Donald Trump’s first year in office. With respect to written policy restricting contacts between the White House staff and the Department, the Trump White House has followed the general contours of predecessor administrations. Those policies recognize that White House contacts restrictions vary with the Department’s complex functions, restrict channels of contact, and restrict personnel authorized to make contacts. They also grant limited exceptions where White House-Department contact is required to assist the President in the performance of a constitutional duty and contact would be appropriate from a law enforcement perspective. A number of episodes, however, suggest that the President and senior administration officials have not honored the spirit, and in some cases the letter, of that contacts policy.

One of the frequent criticisms leveled against President Trump is that he disregards many norms and traditions that have been observed by presidential administrations of both parties for decades. Restrictions on White House interference in criminal investigations do not merely protect norms. Rather, those policies also seek to prevent unconstitutional conduct by the President and his political appointees. This Article demonstrates that political interference by the President undertaken in bad faith could violate the Take Care Clause even in the absence of a criminal statute. Obstructive behavior is even worse. Whether or not the President is indictable for the commission of a statutory criminal offense of obstruction of justice during his tenure in office, this Article explains why the President may violate the Take Care Clause independently of criminal offenses.

A principle of political noninterference by the White House in the federal prosecution function in particular matters is consistent with Article II. Neither the Vesting Clause, the President’s position atop the Executive Branch, nor the President’s broader enforcement discretion defeat the anti-interference principles commanded by the Presidential Oath and the Take Care Clause. It is a question that goes to the very concept of Rule of Law itself. However, political processes, rather than justiciable legal proceedings, serve as the presumptive source of Take Care Clause enforcement as to White House-Department relations.

See also LLB’s Intra-branch checks and balances: Presidential control of the DOJ (March 6, 2018). — Joe

From the press release: “The Department of Justice today issued a memo on federal marijuana enforcement policy announcing a return to the rule of law and the rescission of previous guidance documents.” Here’s the text of AG Sessions’ Jan. 4, 2017 marijuana enforcement memorandum to all U.S. attorneys.

For commentary and analysis of this development, see this Marijuana Law, Policy & Reform post by OSU Law Prof Douglas Berman. — Joe

From the CRS report, Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2017 (Nov. 9, 2017 R40879):

A resolution of inquiry is a simple resolution making a direct request or demand of the President or the head of an executive department to furnish the House with specific factual information in the Administration’s possession. Under the rules and precedents of the House of Representatives, such resolutions, if properly drafted, are given a privileged parliamentary status. This means that, under certain circumstances, a resolution of inquiry can be brought to the House floor for consideration even if the committee to which it was referred has not reported it and the majority party leadership has not scheduled it for action.

Although Representatives of both political parties have utilized resolutions of inquiry, in recent Congresses, such resolutions have overwhelmingly become a tool of the minority party in the House. This development has led some to question whether resolutions of inquiry are being used primarily for partisan gain or are unduly increasing the workload of certain House committees. Others have attributed the increase to a frustration among minority party Members over their inability to readily obtain information from the executive branch.

Available data suggest that 28% of the time, a resolution of inquiry has resulted in the production of information to the House. In half of the cases examined here, however, it is simply unknown, unclear, or in dispute whether the resolution of inquiry produced any of the requested information, a fact which might suggest the need for additional investigation of the efficacy of this parliamentary oversight tool by policymakers.

— Joe

From the abstract of Artificial Intelligence’s Fair Use Crisis by Benjamin L. W. Sobel:

As automation supplants more forms of labor, creative expression still seems like a distinctly human enterprise. This may someday change: by ingesting works of authorship as “training data,” computer programs can teach themselves to write natural prose, compose music, and generate movies. Machine learning is an artificial intelligence (AI) technology with immense potential and a commensurate appetite for copyrighted works. In the United States, the copyright law mechanism most likely to facilitate machine learning’s uses of protected data is the fair use doctrine. However, current fair use doctrine threatens either to derail the progress of machine learning or to disenfranchise the human creators whose work makes it possible.

This Article addresses the problem in three parts: using popular machine learning datasets and research as case studies, Part I describes how programs “learn” from corpora of copyrighted works and catalogs the legal risks of this practice. It concludes that fair use may not protect expressive machine learning applications, including the burgeoning field of natural language generation. Part II explains that applying today’s fair use doctrine to expressive machine learning will yield one of two undesirable outcomes: if US courts reject the fair use defense for machine learning, valuable innovation may move to another jurisdiction or halt entirely; alternatively, if courts find the technology to be fair use, sophisticated software may divert rightful earnings from the authors of input data. This dilemma shows that fair use may no longer serve its historical purpose. Traditionally, fair use is understood to benefit the public by fostering expressive activity. Today, the doctrine increasingly serves the economic interests of powerful firms at the expense of disempowered individual rightsholders. Finally, in Part III, this Article contemplates changes in doctrine and policy that could address these problems. It concludes that the United States’ interest in avoiding both prongs of AI’s fair use dilemma offers a novel justification for redistributive measures that could promote social equity alongside technological progress.

— Joe

It has come to my attention that the Department has in the past published guidance documents- or similar instruments of future effect by other names, such as letters to regulated entities- that effectively bind private parties without undergoing the rulemaking process.

The Department will no longer engage in this practice. Effective immediately, Department components may not issue guidance documents that purport to create rights or obligations binding on persons or entiti es outside the Executive Branch (including state, local, and tribal governments). — Jeff Sessions, Attorney General of the United States, Nov. 16, 2017 Memorandum

The DOJ has announced that it will no longer issue guidance on the federal laws it enforces and that it will review existing guidance to identify those that should be rescinded. Lawfare’s Eve Hill writes:

The memorandum is couched in terms of eliminating guidance that circumvents the rulemaking process by imposing new binding obligations on covered entities without notice-and-comment rulemaking. But the instructions of the memorandum go much further – they forbid the Department from using “shall,” “must,” “required,” or “requirement” and require the Department to state that all guidance is non-binding. This effectively muzzles the experts on federal law from explaining how the law applies in specific contexts. It threatens to leave covered entities in the dark when, in good faith, they apply the law to new situations they face on the ground.

— Joe