//  3/20/18  //  Commentary

Cross-posted from Dorf on Law

A number of commentators who are not simply apologists for Donald Trump have been arguing that the firing of Deputy Director Andrew McCabe by (supposedly recused) AG Jeff Sessions cannot have been a simple political hatchet job, because it was based on a recommendation of the Department of Justice Inspector General, a nonpartisan professional who was appointed to his current position by President Obama. I think they're making a straightforward logical error.

McCabe contends that he did nothing wrong. Maybe he's right about that. Let's assume for the sake of argument, however, that he's wrong. In other words, let's stipulate that if and when the report of IG Michael Horowitz is made public, it contains smoking-gun evidence that McCabe committed the wrongs that have been publicly alleged and that these are firing offenses, even for someone who is barely a day away from retiring with full benefits. Nonetheless, it is possible -- indeed, given Trump's very public campaign to discredit the Mueller investigation and anyone who could aid it, it is likely -- that the evidence contained in the IG's report was not the actual reason McCabe was fired.

The firing of James Comey closely parallels McCabe's firing.

Deputy AG Rod Rosenstein wrote a letter detailing how Comey's mishandling of the investigation of Hillary Clinton's emails--especially his public comments on the investigation--was a serious breach of policy warranting dismissal. Trump then fired Comey, initially claiming that he did so based on Rosenstein's report. But that was obviously just a pretext. As Trump himself soon boasted, he would have fired Comey without the Rosenstein recommendation. Why? Because of "this Russia thing."

Likewise, IG Michael Horowitz prepared a report detailing how McCabe's mishandling of the investigation of Hillary Clinton's emails--especially his authorization of comments to the media on the investigation--was a serious breach of policy warranting dismissal. Sessions, who had good reason to fear that Trump would fire him if he did not act against McCabe, then fired McCabe, claiming that he did so based on Horowitz's report. But that is likely just a pretext. Trump hasn't yet publicly boasted about it quite so explicitly as he did with Comey (although he has come close), but the most logical explanation for McCabe's firing--even assuming that he was fireable--is "this Russia thing."


The Constitutionality of the 5-5-5 Supreme Court Plan

5/17/19  //  Commentary

It would be constitutional to have a 15-person Supreme Court consisting of five Republican-affiliated justices, five Democratic-affiliated Justices, and five more justices unanimously selected by the first ten from judges of the federal court of appeals for a single-year term

Daniel Epps

Washington University Law School

Ganesh Sitaraman

Vanderbilt Law School

Versus Trump: Trump Loses On Family Planning, Wins In The Ninth, and More

5/16/19  //  Uncategorized

This week on Versus Trump, Jason and Easha go through a few updates to cases involving Title X, which provides money for family planning; the Administration's policy to have many asylum applicants removed to Mexico; and the controversial border wall. Trump lost one, won one—for now, and hasn't yet gotten a decision in the third. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

When You Have Five, They Let You Do Whatever You Want

5/14/19  //  In-Depth Analysis

While several of the essays in the edited collection of Reproductive Rights And Justice Stories talk about social movements that have influenced the law, some recent events suggest we should have those discussions without losing our focus on courts themselves

Leah Litman

U.C. Irvine School of Law