//  5/24/17  //  Commentary

Astounding recent revelations clarify the depth of our national crisis. Properly understood, they erase any reasonable doubt that the President’s shortcomings endanger our national security. And given America’s global standing and the President’s power, when this nation is in such peril, so too is the world.

Paradoxically, with a President apparently more lacking in personal control than any in our nation’s history, the risks we face are properly met by less focus on Trump—and more on those who have the possibility and responsibility of constraining him.

Trump of course bears ultimate responsibility and must be among those held appropriately accountable. But neither the welcome promise of a special counsel investigation nor any future mechanism for accountability diminishes the clear and present dangers Trump threatens in the short term.

Most immediately, we should turn to top executive branch officials and other advisors with meaningful access to Trump. People like Attorney General Jeff Sessions and Vice President Mike Pence who—contrary to what seems like past dereliction of duty—must insist, going forward, on remaining with Trump in the room where bad things otherwise may happen. Also worthy of special mention for underperformance in the legal realm is White House Counsel Don McGahn.

Let’s back up. We know that Trump came to office utterly lacking in government experience and with a personality destined to cause serious challenges: impulsive, irreverent, unpredictable, uncontrollable, narcissistic. Yet the gravity of our current situation did not seem preordained. Even some of us who last November feared the worst held out some hope that Trump might be guided in better directions. As I wrote in Foreign Affairs just a few days after Trump’s election: “[M]uch will depend on the cabinet members and advisors he appoints. Trump may come to recognize—as the vast majority of people do when they assume positions of significant authority in government—that he will need to rely on the counsel of experts who have dedicated their lives to public service.”

Trump has dashed that hope with wrongful, harmful actions that include interfering with law enforcement investigations into possible executive branch wrongdoing and divulging classified information to our historic adversary. And a regular practice of compounding errors with astounding idiocy (or as-yet undetected Machiavellian guile): changing explanations for his firing of Comey; bragging to the Russians that he eased pressures by firing that “nut job”; and whining that he didn’t name Israel as the source of the classified information he gave the Russians. Absent dramatic change, Trump’s future harms predictably may include even more dangerous mishandling of sensitive relations with foreign powers or misuse of U.S. military capabilities.

So what to do?

Answers lie within our constitutional system, and perhaps most surprisingly within the Executive Branch itself. A path forward is suggested in the wise counsel of former Indiana Congressman and 9/11 Commission Vice-Chair Lee Hamilton, in these excerpts from a recent interview with our local Bloomington, Indiana public radio station, about Trump’s divulging of classified information:

You had in the room two of the most experienced Russian diplomats whose sophistication and experience goes back decades, highly-skilled professionals. For the United States, you have a president who is unschooled in the use of classified information, inexperienced in using it and the nuances of it who is not, by any measure, steeped in policy. …Congress should be screaming about this. Congress has an obligation as a supposedly co-equal branch of government to protect the national security interests of the United States. Clearly they should be outraged by what happened in this meeting and trying to take steps to minimize it ever happening again. …For heaven’s sake, let’s put politics aside here and focus on the seriousness of what was done. … Look, we’re a major power. This is serious stuff. You don’t fool around with it. The consequences may not be catastrophic, we hope they are not, but they could be. And, we must learn from this incident to tighten up our ship, handle classified information with very great care, do not reveal to our adversaries secrets and information we’re not supposed to share, and begin conducting our affairs like the world power we are.

We must contain and constrain Trump, through all available and appropriate means: Our Congress, our courts, our Cabinet and other Executive Branch officials, our civil servants, our press, our civil society, our voices.  “We the People” need to empower and enlist these and other individuals and institutions to work together toward our shared responsibility of preserving our Nation’s security and stability.

Vast commentary details what might be done by the political branches of our national government. Congressman Hamilton understandably and appropriately focuses on Congress. I’ve written previously about the special role of our federal courts to check a President who has forfeited the judicial deference he ordinarily enjoys. (I’ll note it seems to me not quite right to say, as some have, that Trump has failed to earn that deference, which our system makes presumptively available to every president. But Trump has forfeited it, through his unprecedented antics and irresponsible disregard for governmental regularity.) In addition, the work of advocacy organizations, the press, and the people rarely have been so visible or so effective. Ditto state and local governments.

My own government experience involves the constraints on presidential action that exist within the Executive Branch—specifically in helping to provide the legal advice that Presidents need to act lawfully and wisely, and to fulfill their constitutional responsibility to “take Care that the Laws be faithfully executed.” To keep real the promise that we are a nation of laws, not persons, depends upon internal legal and policy review by both political appointees and career civil servants.

Although less clearly delineated or appreciated than those from the Congress, the courts, and the American people, constraints on presidential action from within Executive Branch may prove our most important first line of defense. And those internal checks are especially vital on the very issues on which Trump already has crossed red lines—issues which are among the least susceptible to external limits on executive power: national security, foreign affairs, classified information, and law enforcement.

In a recent interview with Adam Serwer of The Atlantic, I explained that as a Department of Justice official advising the President, “you know part of your job is sometimes to say no to the president, and to keep him from doing anything illegal, because you're serving the nation, and not the president as an individual. That’s something everyone who goes into the Department of Justice knows."

At least, it’s something everyone should know. In my experience, a standard topic of conversation among Executive Branch officials and on presidential transition teams (I served on the Clinton and Obama transition teams) is how to respect lines that must not be crossed—and how to ascertain the directions in which one must push the President and others, occasionally hard and even with the threat of resignation. I recall preparing for my appointment to the Clinton Department of Justice’s Office of Legal Counsel (OLC) in part by reading “Blind Ambition,” the Watergate memoir by John Dean (former counsel to President Nixon).

Trump, however, is complicating the work of his advisors by setting a tone of disregard for the rule of law; he may even be actively seeking to elude internal constraints by not including the right people in conversations or following traditional processes. Just before a fateful White House meeting in which President Trump reportedly sought to intervene in FBI Director Comey’s investigation, press reports tell us that Trump asked Attorney General Jeff Sessions and Vice President Mike Pence (there for an earlier meeting) to leave the room. We don’t know that Sessions and Pence left without resisting, but Trump’s request should have been a clear red flag and that meeting never should have happened with just Trump and Comey present.

Core to the job of any presidential advisor—and clearly now a special challenge for Trump’s advisors—is getting in and staying in the room where it happens (figuratively and literally). None other than James Comey and Robert Mueller provided a dramatic, inspiring example of the lengths to which advisors have gone—and should go—to be in the room. While serving President George W. Bush, Acting Attorney General Comey and FBI Director Mueller famously raced to the hospital bedside of an ailing Attorney General John Ashcroft after hearing that White House Counsel Alberto Gonzales and Chief of Staff Andrew Card were en route to pressure Ashcroft to sign off on an illegal domestic surveillance program. Ultimately, in order to be adequately heard by the President, Mueller, Comey, and others threatened to resign. Among the other participants was OLC Assistant Attorney General Jack Goldsmith who prepared three resignation letters in his nine months in office before he finally felt resignation was actually necessary.

It bears emphasis that Bush’s post-9/11 lapses are not comparable to what we are experiencing with Trump, for whom dysfunction and disregard for the rule of law seem to be a general mode of operation. Indeed, we have no precedent for Donald Trump. But the infamous hospital incident provides a vivid example, one among many, of how the system of internal checks should work across administrations. Far more mundane, though essential, examples include frequent routine meetings to which all appropriate stakeholders are invited.  Generally, the corrective within the Executive Branch must include a return to traditional processes and standards, which across administrations have constrained Presidents with the advice and judgment they desperately need, even when they don’t realize it.

Advisors to this President undoubtedly confront enormous challenges. Jack Goldsmith’s recent Lawfare posts thoughtfully examine “how difficult it is for a lawyer who is a political appointee to act with integrity in the Trump administration.” He and others writing on Lawfare, Just Security, Take Care, and similar sites regularly provide detailed, constructive critiques of the performance of Trump legal advisors—Sessions, Rosenstein, McGahn, and others—all of whom would benefit from reading and taking to heart the advice. 

That said, I would expect that the widespread outcry and activism in response to Trump’s disastrous first months would have a liberating and empowering effect on the ability of his advisors to be aggressive in their efforts to do the right thing.  At a minimum, it should motivate them to prevent and avoid complicity in future harm and wrongdoing. We know executive officials can show courage: if anything, I’d imagine that Comey, Mueller, and Goldsmith had a harder time racing to Ashcroft’s hospital room and threatening to resign over the legality of post-9/11 counterterrorism measures than many current officials would have securing a role in key meetings or even directly challenging proposed unlawful executive action. 

I will end with a plea to those serving in the Executive Branch, in various capacities, as advisors to President Trump: It is time to step up, or step out. Our nation needs you.


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