Take Care is pleased to offer an organized guide to legal analyses of many rule of law issues that recently have dominated the news.

Commentary on President Trump’s decision to fire former FBI Director James Comey.

• Deputy Attorney General Rod Rosenstein told the Senate that he knew Comey would be fired before he authored the memo used as justification for the firing (NPR, L.A. Times).
• In the New Yorker, Jeffrey Toobin takes a deep dive into the ways President Trump abused his power by firing Comey, while at the Washington Post, Preet Bharara urges concrete steps to resolve the current firestorm.
• At Take Care, Leah Litman highlights the irregularity of the process by which Director Comey was fired, here and here.
• Also at Take Care, Richard Primus points out that President Trump’s conduct is unacceptable, regardless of whether he is guilty of Russia-related wrongdoing. 
• At the Washington Post, Amy B. Wang covers Comey’s weekend activities after being fired.
• The Economist considers whether President Trump’s actions were the result of incompetence or malicious intent. 

A number of commentators have considered whether President Trump could be investigated for obstruction of justice due to Director Comey’s firing. 

• The latest episode of our Versus Trump podcast covers President Trump's firing of Comey (as well as the sanctuary city litigation).
• At the Washington Post, Karen Tumulty observes that much of this discussion is based on President Trump’s own words. 
• Jed Shugerman wonders if President Trump admitted to obstruction of justice in an interview with Lester Holt of NBC. 
• Jennifer Rubin argues that the comments of James Clapper, former director of national intelligence, constitute a third strike against President Trump, and that action must be taken before President Trump does too much damage to the republic (WaPo). 
• Nicholas Kristof asserts that while President Trump’s pattern of behavior may not meet legal criteria for the crime of obstruction of justice, President Trump has engaged in obstruction of the rule of law and democratic norms (NYT). 

Other coverage centered around who might replace Director Comey, and what such an appointment might mean. 

• Matt Zapotosky and Ed O’Keefe write that there is a four-person shortlist, including Sen. John Cornyn (Tex.), Acting FBI Director Andrew McCabe, Alice Fisher (a white-collar defense lawyer who previously led the criminal division at the Department of Justice), and Michael J. Garcia (a judge on the New York State Court of Appeals and former U.S. Attorney for the Southern District of New York) (WaPo). 
• Maggie Haberman and Jeremy W. Peters add that the list of those being considered is said to be broader than those four names (NYT). 
• At the Volokh Conspiracy, Eugene Volokh argues that we can’t assess the Comey firing until we know whom Trump nominates as the new Director. 
• Some reports suggested that former Senator Joe Lieberman is the leading contender for Comey’s replacement as FBI Director (CNN).
• Lieberman should not be FBI Director because of his lack of experience, Islamophobia, and recent breach of professional ethics of disclosure, argues Jed Shugerman on Shugerblog.
• Early in the week week, Jack Goldsmith and Benjamin Wittes at Lawfare argued that appointing a partisan political figure of any kind to head the FBI should be unthinkable.
• Garrett Epps argues that Merrick Garland could serve as the next FBI director without giving up his position as a federal judge (The Atlantic). 
• Josh Blackman, cited in Epps’ piece, further elaborates the source of the President’s power to remove the FBI Director at Josh Blackman’s Blog. 
• At Just Security, Jennifer Daskal implores President Trump to not remove Andrew McCabe as the acting director of the FBI for contradicting White House statements during his Senate testimony. 

John Podesta argues the only way to save our democracy is for all of President Trump’s senior advisors to resign (WaPo). 

• Michelle Goldberg envisions a mass West Wing exodus (NYT).
• At the Washington Post, Phil Rucker agrees the system may be failing, but points out that President Trump is making all the relevant decisions. 
• President Trump is threatening the FBI’s independence, argues Barbara McQuade, a law professor at the University of Michigan Law School and the former U.S. Attorney for the Eastern District of Michigan.
• In contrast, Secretary of State Tillerson declared in a Sunday interview that he was not concerned President Trump would threaten his independence in his job (WSJ). 

At the New York Times, Benjamin Wittes describes what will be lost with the firing of James Comey.

•  Benjamin Wittes also argues in Lawfare that Deputy Attorney General Rod Rosenstein should resign. 

At Lawfare, Molly E. Reynolds documents the procedural methods Democrats in Congress can use to respond to the firing of James Comey. 

• Adam Jentleson urges Democrats in Congress to not allow business to proceed as usual, but rather to focus on holding President Trump accountable (WaPo). 

President Trump’s tweet that “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” ignited coverage scrutinizing the possibility that President Trump is taping his conversations (NYT, WaPo). 

• Devlin Barrett, Ellen Nakashima, and Sari Horwitz write that President Trump suggested tapes may reveal that former Director Comey told the President he was not under investigation (WaPo). 
• Kathleen Clark, a law professor at Washington University, writes that it creates a conflict of interest for presidents to ask the head of the FBI about an investigation into that president’s electoral campaign (WaPo). 
• At Vanity Fair, Emma Stefansky notes that President Trump’s history of recording business calls suggests he may have continued the practice. 
• Former employees of President Trump assert they saw him taping conversations, writes Alexandra Berzon (WSJ). 
• The White House responded to coverage, stating President Trump’s tweet was not meant as a threat against former FBI Director James Comey (WSJ). 
• However, Peter Baker and Michael D. Shear note the president and White House Press Secretary Sean Spicer have declined to say whether the president tapes his conversations (NYT). 
• Amid the firestorm, President Trump threatened to cancel White House press briefings (NYT).
• Members of Congress found it distressing that President Trump might be taping conversations and agreed that if President Trump has tapes, he needs to hand them over to Congress. (NYT, WaPo). 
• House Judiciary Committee Ranking Member John Conyers and House Committee on Oversight and Government Reform Ranking Member Elijah Cummings requested copies of the alleged recordings from White House Counsel Don McGahn (Lawfare). 
• Representatives Conyers and Cummings also sent a letter to Deputy Attorney General Rod Rosenstein requesting a report on Attorney General Sessions’ involvement in the firing of James Comey in light of Sessions’ prior commitment to recuse himself from “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” (House Committee on Oversight & Government Reform, Lawfare). 
• At Lawfare, Bob Bauer details the negative self-portrait President Trump is creating. Earlier, Bauer explored whether the president has made himself the target of an obstruction of justice investigation (Lawfare). 

Laurence H. Tribe advocates for Congress to launch an impeachment investigation into President Trump (WaPo).

• Josh Blackman responds, arguing that we are not in the midst of a constitutional crisis. 

The Comey saga continued later in the week with the revelation that contemporaneous memos indicate President Trump asked the former FBI Director to end his investigation of Michael Flynn (NYT).

• The Comey memo describes an impeachable offense, argues Noah Feldman for Bloomberg.
• The Comey memo, if it exists, would document a White House in violation of the Take Care Clause, argues Andy Wright for Just Security.
• Jonathan Chait sees the release of the Comey memo as a turning point in President Trump’s escalating legal woes (NY Mag).
• In the New York Times, Charlie Savage explains the "often-murky" crime of obstruction of justice, while Ross Douthat makes the case for an alternative to impeachment. Politico, The Atlantic, and the editorial board at the The New York Times all also discuss the question. 
• Eric Posner disagrees with the Douthat's 25th Amendment argument here. 
• The evidence of Trump’s obstruction is compelling, argues former Prosecutor Alex Whiting for Just Security.
• For another perspective, Elizabeth Price Foley refutes the obstruction of justice possibility (NYT).
• Lawfare takes a deep dive into the legal and political implications of Comey’s memo.

Former FBI Director James Comey was reportedly repeatedly unsettled by his interactions with President Trump (NYT).

• Benjamin Wittes provided background for the New York Times report, and offers greater detail into the efforts to “undermine” Comey’s “independence and probe the FBI’s defenses,” at Lawfare.
• Comey prepared extensively for his meetings with President Trump, and apparently took detailed notes of their encounters afterwards (WaPo).
• Proving obstruction of justice in a criminal prosecution is difficult, but ultimately the court of public opinion will determine President Trump’s fate, argues Peter Henning at the New York Times.
• Comey has left a breadcrumb trail of what occurred in his previous public records, according to Faiza Patel at Just Security.
• Michael Rosenwald for the Washington Post explains why political memos matter.
• Comey, is of course, not in legal trouble, explains Robert Chesney for Lawfare.

Here at Take Care, Joshua Matz charts “a path to madness” through the motives behind President Trump’s recent actions, and discusses the distinction between obstruction of justice and an impeachable offense.  

• At the Washington Post, Jennifer Rubin makes the case for why impeachment is plausible.
• An impeachment should not be a partisan affair, argues Keith Whittington at Lawfare.
• President Trump is suffering from an enormous governing crisis, according to Bob Bauer at Lawfare.
• Additional commentary developed on what exactly obstruction of justice constitutes as applied to President Trump (ABC, PBS).
• There are pros and cons to impeachment, writes Eric Posner.
• In the Washington Post, E.J. Dionne warns that this is just the beginning of a dangerous moment for the rule of law.
  According to former Director of National Intelligence James Clapper, President Trump is weakening national institutions that support the rule of law (WaPo).
• Greg Weiner offered a political history of impeachment at the New York Times.

Commentators weighed in on the appointment of former FBI Director Mueller as special counsel.

• President Trump denied any collusion with Russia, calling the appointment of special counsel a “witch hunt”  (NYT, WaPo, Politico).
• Leah Litman gives "a few cheers" on the appointment of a special counsel, but concludes that this move is insufficient for several key reasons (Take Care).
• In a press conference, President Trump argued that the special counsel “divides the country” (NYT).
• The “witch hunt” narrative may be the beginning of a strategic response against the investigation, argues Bob Bauer at Lawfare.
• Here you'll find analysis from Lawfare, Noah Feldman at Bloomberg, Matt Ford at The Atlantic, the NYT Editorial Board, Jennifer Rubin at the Washington Post, the Wall Street Journal, and Ian Millhiser at ThinkProgress. 
• The New York Times Editorial Board describes Mueller as the special counsel America needs.
• Mueller was a good make-up call for Deputy Attorney General Rod Rosenstein, argues David Leonhardt for the New York Times.
• Both Mueller and Comey have a long history of rising to big challenges to protect our country (Politico).
• A former FBI special agent who is “not a fan of Robert S. Mueller, III” nonetheless praised Mueller as a fine choice as special counsel.
• Jennifer Daskal agrees a special prosecutor is necessary, in large part because of the possibility of obstruction of justice charges (Just Security).  
• The Economist states an independent inquiry into what happened during the election is the only way to clear the air in the U.S.

Trump's disclosures to Russia may well have been unlawful, argue Marty Lederman and David Pozen on Just Security.

House Majority Leader Kevin McCarthy, back in June of 2016, joked that then-candidate Trump was receiving payments from Vladimir Putin (WaPo).

• This incident is troubling because it suggests what Republican politicians were willing to accept in order to secure the White House, argues Leah Litman for Take Care.

Walking back a statement made hours earlier, the chairman of the Senate Intelligence Committee said Michael Flynn has not indicated whether he will honor the Committee’s subpoena (CNN, ABC).

• Susan Hennessey and Helen Klein Murillo analyze Congress’s options in the event that Flynn refuses to comply with the subpoena (Lawfare).

President Trump is still lying, he is just being more careful in how he does it, according to Neil Buchanan at Dorf on Law.

David G. Post notes similarities between the actions of President Trump and the actions of President Nixon (WaPo).

The Senate Judiciary Committee invited Comey to testify (The Hill).

At the Wall Street Journal, Gerald Seib tracks the escalating threat that the Comey crisis poses to the rest of President Trump’s legislative agenda.

At Lawfare, Jack Goldsmith suggests five reasons why “doing the right thing” as a senior government attorney can be difficult.

On Take Care, Andrew Crespo explains that "should former FBI Director Robert Mueller decide to bring criminal charges against President Trump for obstruction of justice, he would be acting well within the law, the norms of the profession, and the reasonable bounds of the discretion with which he has been entrusted."

President Trump allegedly told Russian officials that he fired former FBI Director James Comey to relieve “great pressure” stemming from the Russia investigation (NYTimes).

A current senior White House official is a person of interest in the Russia investigation (WaPo).

In Time, Massimo Calabresi documents the Russian campaign to influence the 2016 election via social media.

• Kate Brennan writes in Just Security that the investigation into Russian interference and collusion should include an examination of “microtargeting” of voters using stolen data.

Deputy Attorney General Rod Rosenstein asserted that former FBI Director James Comey did not ask for more resources for the Russia investigation before he was fired (The Hill).

• The full text of his statement is here.
• To the frustration of House Democrats, Deputy Attorney General Rosenstein refused to state who instructed him to write the memo that was used to justify the firing of former director Comey (ABA Journal).
• At Lawfare, Quinta Jurecic and Benjamin Wittes discuss the questions raised by Deputy Attorney General Rosenstein’s statement.
• Deputy Attorney General Rosenstein should recuse himself from the Russia investigation, argues Daniel Hemel at Notice & Comment.

The House Intelligence Committee has requested that Michael Caputo, a Trump campaign advisor who formerly worked with the Russian government, appear to answer questions from the committee, writes Maggie Haberman in the New York Times.

In Lawfare, Jack Goldsmith criticizes White House Press Secretary’s assertion that former FBI Director James Comey “grandstand[ed] and politiciz[ed]” the Russia investigation.

At Lawfare, Paul Rosenzweig argues that Congress’ investigation of Russian interference in the 2016 election must continue despite the appointment of a special counsel.

• But Congress may disrupt special counsel Mueller’s investigation by granting immunity to potential witnesses, argues Neal Katyal, who authored the special counsel regulations (ABA Journal).

Andrew Kent discusses in Lawfare the scope of special counsel Robert Mueller’s jurisdiction, and whether and how the public will be informed of the results of the investigation.

Special Counsel Robert Mueller may be subject to conflicts of interests due to his prior employment, but an ethics waiver will likely be granted because Mueller had no involvement with relevant matters (ABA Journal).

• But the White House may try to use this rule to undermine the credibility of the investigation (Vox).

Rep. Elijah Cummings, Ranking Member of the House Oversight Committee, announced a proposed subpoena for documents related to former National Security Advisor Michael Flynn after the White House declined to release documents voluntarily (House Oversight Democrats).

Take Care contributor Helen Klein Murillo discusses in Lawfare how Congress may be able to obtain former FBI Director James Comey’s memos on his conversations with President Trump.

Vikram David Amar offers a “primer on impeachment” at Verdict.

• In Lawfare, Keith Whittington explains how President Trump may be able to “work [his] way back out of impeachment territory.”
• In Cato@Liberty, Gene Healy discusses the merits of the various legal options for presidential removal.
• But the New York Times editorial board argues that discussion of impeachment is premature.

At Just Security, Benjamin Haas and Bishop Garrison argue that career national security and law enforcement professionals serving in the Trump administration run the risk of destroying their reputations.

The context for the Trump campaign’s contact with Russia is critical for an “objective and informative” investigation, argues Ted Galen Carpenter in Cato@Liberty.

Meanwhile, the Federal Election Commission continues to document and report on illegal contributions to President Trump’s campaign (Open Secrets).

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