The Supreme Court handed President Donald Trump another win on an immigration issue on Tuesday. The Court ruled 5-4 that the Ninth Circuit was wrong in limiting Trump’s mandatory detention policy for immigrants with criminal records. Splitting along with ideological fault line, Chief Justice John Roberts joined the other four conservative justices to reverse the Ninth Circuit. Four other circuits had ruled with the Trump Administration. Justice Samuel Alito wrote the majority opinion.
Below is my column in The Hill newspaper on a significant potential barrier to the release of the Special Counsel report — once it is given by Robert Mueller to Attorney General Bill Barr. There is a striking contrast between the level of cooperation shown in relation to the Special Counsel investigation versus congressional investigation. In the latter context, the White House instructed witnesses not to answer questions on the basis that privilege might be claimed (an improper practice in my view). This would seem to suggest that the Trump team is treating communications with the Special Counsel as internal Executive Branch disclosures — and thus not a waiver of privilege. If that is the case, Barr could be heading into a world of difficulty. If the White House invokes, the Justice Department has traditionally defended those claims of executive privilege in court. That could mean a report that is heavily redacted. Unlike classified material which can be given to Congress under seal, grand jury information or executive privileged information cannot be given to Congress absent a court order or waiver, respectively.
This weekend Trump said that he supported the vote of Congress to demand the public release of the report. He told his followers that he told members to vote for the resolution and “Play along with the game!” It is not clear what that game is given the blocking of vote in the Senate by Lindsey Graham. Moreover, it does not state that Trump will waive all executive privilege as discussed in this earlier column.
Below is my column in The Hill on Nancy Pelosi announcing that she is opposed to impeachment and that it is simply not part of “our agenda.” During the campaign for the midterm elections, I wrote that the drumbeat for impeachment was another bait-and-switch in American politics and that Democrats would quickly move away from the calls once they secured a majority. The reason was (and is) obvious. While Democrats continue to insist that Trump is harming the country and committing impeachable offenses, his removal would not serve the interests of the party for 2020. Both parties continue to play the public as chumps and this is the latest example. Even Beto O’Rourke is now backing off of his call for impeachment.
There is no compelling evidence for impeachment at this time. If Pelosi also believes that there is insufficient evidence, she should say so. That would be a principled and frankly courageous position. However, Pelosi continues to suggest that Trump is committing impeachable offenses but still opposes impeachment absent the assurance that Republicans will join in the effort. That is a bit too convenient and ignores the individual obligations of members to act if they believe that there are impeachable offenses.
We have been discussing the incredible courage of women activists in Saudi Arabia and Iran who are being arrested, tortured, and imprisoned for claiming the most basic civil liberties. One of the most inspiring activists is Nasrin Sotoudeh, a world renowned human rights lawyer jailed in Iran for her representation of women who removed their mandatory headscarf. In an act of unspeakable brutality and savagery, an Iranian court has sentenced her to 38 years and 148 lashes in a trumped up charge of spying, spreading propaganda, and insulting Iran’s supreme leader. In the meantime, ten women are being tried in Saudi Arabia which continues to repress women and girls under its strict Islamic code.
On the heels of the story that President Donald Trump did order intelligence and legal staff to give his son-in-law Jared Kushner a high security clearance, CNN is reporting that he also intervened in his daughter’s security clearance despite both their denials of his playing such a role. The report is likely to deepen the growing rift with Congress over the House Oversight Committee demands for evidence on the controversy.
I will be testifying this morning at a hearing before the House Judiciary Committee’s Subcommittee on Constitution, Civil Rights, and Civil Liberties. The hearing will be on the National Emergencies Act of 1976 and the current controversy (and litigation) over President Donald Trump’s emergency declaration on the southern border. The hearing will be on C-Span and will start at noon at 2141 Rayburn House Office Building, Washington, DC 20515.
As expected, the House of Representatives passed a resolution to terminate President Donald Trump’s national emergency proclamation. The vote was 245 to 182 with 13 Republicans voting against the President. The matter now goes to the Senate where Republican Sen. Lisa Murkowski of Alaska and Maine Sen. Susan Collins have indicated that they will likely join Democratic members to rescind the order. However, even if passed, there is a need for a supermajority to override the promised veto from President Trump.
Below is my column in The Hill newspaper on the effort in New York to change constitutional protections against double jeopardy to allow prosecutors to charge former Trump campaign chair Paul Manafort with state offenses. The effort is to guarantee that Manafort goes to jail if President Donald Trump gives him a pardon. The sight of politicians campaigning on the pledge to jail Manafort raises serious concerns of this highly selective effort. Moreover, the effort to change New York constitutional protection to get Manafort could give Trump precisely the basis for a pardon that Democrats are preemptively trying to deter. I have repeatedly said that a pardon for Manafort would be inexcusable. He has more than earned any sentence that a court chooses to give him and the New York effort should not change that. However, if the Democrats tailor their constitutional protections to get Manafort, they are giving Trump the ability to say that he is responding to selective targeting of Manafort to guarantee that he is not punished twice for the same underlying conduct. More importantly, New York should not sacrifice its commendable protection against double jeopardy to get Manafort. He is not worth it.
I recently wrote about the constitutional questions raised by the wealth tax proposed by Elizabeth Warren given countervailing constitutional dictates and standing precedent. One of the early advocates of such a tax has been Yale Professor Bruce Ackerman who assured Warren that such a tax would be constitutional. In a Slate column entitled “Constitutional Critiques of Elizabeth Warren’s Wealth Tax Proposal Are Absurd,” Ackerman dismisses any possible constitutional challenge as not “serious” and “absurd.” Putting the hyperbole aside, I wanted to respond to the substance of the column since it makes reference to my earlier Washington Post column. As I have previously said, there are good-faith arguments on both sides of this issue and the outcome is likely to be a close vote. However, Ackerman’s reduction of countervailing arguments to absurdity not only omits key arguments but creates an incomplete account of the case against such a wealth tax.
Below is my column in the Washington Post on Elizabeth Warren’s signature wealth tax. As I noted in the column, the constitutionality of the Warren tax would likely be a close question. Yet, the issuance of such a “direct tax” based on wealth rather than income would be presumptively unconstitutional under the existing court precedent and, more importantly, the text of the Constitution.
Below is my column for the BBC on the controversy over President Donald Trump’s national emergency declaration. Sixteen states, led by California’s Attorney General, are now suing. Others lawsuits have been filed on behalf of landowners and others. The lawsuits appear to challenge both the basis for an emergency declaration and the funding. I still expect Trump to prevail in the long-run if this goes to the Supreme Court. Ironically, House Intelligence Chair Adam Schiff said this weekend that this controversy would be the “test” of his colleagues integrity and principles. Yet, Republicans could easily point out that Schiff never objected or took action when President Barack Obama circumvented Congress, including ordering the payment of potentially billions out of the Treasury after Congress refused to fund part of the Affordable Care Act. He was also silent when Obama not only refused to get authorization for the Libyan War but used undedicated funds to pay for it without an appropriation from Congress.
As this column discusses, there was at one time a much easier way to resolve the most bitter differences among political figures.
“I don’t care. I believe Putin.” Those six words could be the focus of serious congressional oversight in the coming weeks. Former FBI Acting Director Andrew McCabe stated that President Donald Trump refused to accept intelligence on North Korea’s missile program and instead that he would rely on what Putin told him. It is a shocking claim, but what makes this claim so notable is that McCabe is suggesting that it was made before witnesses other than himself. That means that it should be capable to confirmation or refutation. However, this could have the makings of a massive privilege fight between the legislative and executive branches.
Below is my column in The Hill newspaper on the litigation against the declaration of a national emergency by President Donald Trump in order to build his long-promised wall. Some members of Congress has said that they expect the House of Representatives to sue while private litigants have already filed challenges. Regardless of the litigants (and there are likely to be a mix of parties), they face similar barriers in convincing a federal judge to rescinded a declaration that Congress has not rescinded. This is a straight statutory interpretation case, not the “constitutional crisis” widely described by critics. There are possible claims against the funding conditions, but Congress gave the President not just the unfettered authority to declare such emergencies but the largely unconditioned appropriations that he may use to build the wall.
I will have the pleasure of speaking today at the University of Pennsylvania Law School on the evolution of presidential power in the United States. I will participate in a distinguished panel entitled “Presidential Power and the Current Crisis of Executive Authority” at 4:00 to 6:00 pm at Fitts Auditorium (3501 Sansom Street, Philadelphia). The event will be open to the public.
According to The Cavalier Daily, the University of Virginia is proceeding against a fraternity and sorority for “engag[ing] in alleged cultural appropriation” during chapter-sponsored activities. The violations involved students at the Kappa Sigma fraternity dressed as American Indians and members of the Zeta Tau Alpha “wearing sombreros and holding maracas.”
