THE CONTINGENCY PRESIDENCY: PRESIDENTIAL IMMUNITY INVOKED IN KENTUCKY CASE BY TRUMP’S LOCAL COUNSEL

Below is my column in USA Today on the concern over arguments being advanced in the dozens of personal cases pending against President Donald Trump across the country.  As someone who acquired his wealth in the New York real estate market, Trump has been a frequent litigant and is someone who is not deterred by threats of litigation.  Indeed, in that market, litigation is treated as an extension of the business and often used in leverage or delay tactics.  As President, Trump cannot maintain the same approach to the courts if he has any concern over the position of his office.  Much of the privileges surrounding the presidency are not expressly stated in the Constitution. They are, therefore, vulnerable to the curtailment of negative rulings.  For that reason, most presidents have avoided court tests and invoke privileges and immunities cautiously.  Yet, no president has ever had this massive number of private lawsuits pending upon taking office.  With various private lawyers asserting defenses, it raises the danger of unintended and uncoordinated presidential claims being made by largely unknown lawyers.  It is like creating constitutional law on contingency or hourly contacts. Private counsel seeks to win these civil cases and are likely less concerned (and certainly less equipped) in dealing with the long-term implications of privilege or immunity arguments.  Trump needs to carefully define the scope of advocacy for his local counsel to avoid the first contingency presidency.

Here is the column.

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Devouring The Young: Democrats Turn On Member Who Asked For Proof Of Responsibility for Syrian Attack

Rubens_saturn440px-Tulsi_Gabbard,_official_portrait,_113th_CongressThe attack on the Syrian airfield has sent the polls for President Donald Trump into a sharp rise and he has been praised by various Democrats.  Others have called for the commitment of thousands of troops.  No one seems interested in speaking of the absence of congressional authorization.  Indeed, when Sen. Rand Paul objected to the lack of congressional consent, Sen John McCain denounced him as a non-entity in the Senate who does not listens.  Below is my column on the mounting attacks on Rep. Tulsi Gabbard (D, HI) from Democrats after she called for the release of evidence on the culpability of the Syrian government in the recent gas attack on a village. Even though some (including a recent MIT professor) have questioned the evidence,  Gabbard’s desire to see the evidence was viewed as inexcusable.  It appears that war, like Saturn, devours its young.

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The Ginsburg Gamble and the Future of the Supreme Court

225px-ruth_bader_ginsburg_scotus_photo_portrait 500px-The_CardsharpsBelow is my column on the unfolding future of the Supreme Court after the confirmation of Justice Neil Gorsuch and the elimination of filibusters in the selection of Supreme Court nominees.  For years, commentators have been discussing the timing of the retirement of our older justices, including Justice Ginsburg.  There was rising concern when Ginsburg decided to stay on the Court past the midterm mark of the second Obama term.  Those concerns have now been magnified and realized with the Trump election and filibuster elimination.  Of course, the same concerns are raised by the possible retirement of Justice Anthony Kennedy, the swing vote on the current Court.  New rumors have arisen  this week about Kennedy. However, of all of the older justices, it is replacement of Ginsburg that could produce the most profound changes for the country.

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Textualists and Originalists Are Again AWOL in Wars on Syria and Yemen

donald_trump_president-elect_portrait_cropped220px-B-2_spirit_bombingBelow is my recent column in The Hill Newspaper on the increased U.S. involvement in the fighting in Syria and Yemen.  As usual, there is little concern (beyond Sen. Rand Paul) over the sending of troops into foreign conflicts without congressional approval or anything resembling a specific declaration of war.  Indeed, when members insist that modern national security threats do not make specific declarations or authorizations practical, they sound much like “living constitution” advocates.  Yet, we have now engaged in hundreds of military actions with only a small number of declarations and a small percentage of authorizations.  As the Framers feared, war has become a continual and unilateral exercise of executive authority.

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Federal Court Rules That Trump May Have Incited Violence At Kentucky Rally

David_J._Haledonald_trump_president-elect_portrait_croppedIn Kentucky, United States District Court Judge David J. Hale has ruled that President Donald Trump’s statements at a campaign rally could be viewed as incitement to violence.  At a March 2016 rally, Trump told supporters to :get ’em out of here” in reference to protesters. Supporters proceeded to assault protesters Henry Brousseau, Kashiya Nwanguma, and Molly Shah who filed this action.  Hale rejected the claims that the lawsuit violates President Trump’s free speech protections.  They are suing for incitement to riot, vicarious liability, and negligence.

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In Like Flynn? General Reportedly Offer To Testify In Exchange for Immunity

Washington is abuzz with the news that former national security adviser Michael Flynn has offered to cooperate with congressional investigators in exchange for immunity from prosecution. The offer was reportedly made by his lawyer to both the FBI and Congress.  This has triggered a gleeful media frenzy as commentators hold forth on what damaging information Flynn might offer in exchange for immunity.  However, the offer could also reflect a general preference of lawyers for immunity before allowing their clients to face potentially wide ranging interrogations or testimony. Update: President Trump has said that Flynn should demand immunity.

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Can Yates Testify Without Violating Privilege or Ethics Rules?

sally_q-_yatesI previously discussed the dubious decision taken by former Acting Attorney General Sally Yates to order the entire Justice Department to stand down and not to assist the president in the defense of his first executive order on immigration. In a letter to the president, Yates said she was not convinced that the law is just or right. Yates effectively dared Trump to fire her over the immigration order and he did so.  Now Yates has volunteered to testify before the House Permanent Select Committee on Intelligence — a hearing that was abruptly cancelled by its Chairman.  Such an appearance is relatively rare and fraught with difficult constitutional and ethical questions for Yates. She would be testifying  in the committee’s investigation into Russian interference in the presidential election.  However, she is testifying as someone who was recently in a prosecutorial position about subjects related to an ongoing investigation where no one has yet to be indicted.  Even if she can manuever around the privilege issues, she could raise serious ethical issues with her testimony.

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