Charlie Gerstein, Jason Harrow  //  5/17/17  //  Commentary


On today's two-part episode of Versus TrumpTake Care's podcast, we answer three burning questions related to whether the sitting President can face criminal charges, and how that prosecution could be started. We also have an interview with James Williams, the County Counsel for Santa Clara County, in which he discusses his County's lawsuit against Trump Administration that has so far successfully prevented the Trump Administration from enforcing an executive order that would have withdrawn federal funding from so-called sanctuary cities. As usual, you can listen online below or at takecareblog.com/podcast, and subscribe here with any podcast player or here in iTunes.

Our discussion this week [in Episode 5.2] contains an increasingly relevant discussion of three Frequently Asked Legal Questions that the ongoing Comey scandal has raised. First, was the President legally allowed to fire FBI Director Comey? Second, now that Comey is gone, how can a special prosecutor or independent counsel be appointed to continue to the Russia investigation? [Note: this just happened. Our episode talks about the legal mechanism by which former FBI Director Mueller has just been appointed special prosecutor.] And third—and most speculatively—can a sitting President legally be indicted and stand trial in a criminal case? The answers may be surprising. If you want to skip right to the main event, the discussion of the possible prosecution of the President starts at 18:09.

Our discussion segment closes with a Trump Lump about whether the President can be sued over appointing unqualified officials to high government office. [38:21-end.]

In our interview this week [available separately as Episode 5.1], Jason discuss sanctuary cities with James Williams. James is the County Counsel of Santa Clara County in California, which has sued the Administration on the grounds that an executive order that purports to withhold funding from "sanctuary cities" is unconstitutional. James and Jason discuss the recent ruling in which a federal court agreed with his arguments and has temporarily barred the Trump Administration from enforcing the executive order. We also discuss the definition of a sanctuary city, how much money the executive order would withhold, and why the Department of Justice's litigation strategy does not match up with the President's own statements about the case.

Listen online below or at takecareblog.com/podcast, and subscribe here with any podcast player or here in iTunes.

Please share or provide feedback, and rate us in iTunes. You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com.

Show notes

Presidental Prosecution

  • The most recent opinion of the DOJ's Office of Legal Counsel regarding the criminal prosecution of the President—titled "A Sitting President's Amenability To Indictment And Criminal Prosecution"—is here. (A 1973 memo from the same office that also addressed the topic is here.)
  • The Supreme Court case Morrison v. Olson, in which the Court held that the appointment of an independent counsel did not violate the Constitution's separation of powers principles, is here.
  • The regulations currently in effect that relate to the appointment of a special prosecutor are here.
  • Charie mentioned former independent counsel Kenneth Starr. Here's an article explaning some recent developments in Starr's career.

Sanctuary Cities Interview

  • The April 25, 2017 ruling that halted President Trump's Executive Order on Sanctuary Cities is here.
  • The reaction of the President to the ruling is discussed here.
  • The challenged Executive Order itself is here.
  • All of Take Care's coverage of sanctuary cities legal issues is here.

Trump Lump

  • The Washington Post discusses the possible appointment of Sam Clovis to the USDA here

Back to the Supreme Court on the Scope of the Entry Ban Injunction: First Thoughts

7/15/17  //  Commentary

Now that the travel ban is back in the Supreme Court, here are four additional, preliminary thoughts on where things stand.

Marty Lederman

Georgetown Law

The Government And Grandparents (What's The Big Deal?)

7/15/17  //  Quick Reactions

DOJ rushed to the Supreme Court to ensure that the government wouldn't have to admit grandparents. Its arguments are silly.

Leah Litman

U.C. Irvine School of Law

Latest Travel Ban Ruling Helps A Lot But Not Enough

7/14/17  //  Quick Reactions

It is likely that the Trump administration will simply seize on whatever ambiguity there is in the latest injunction to deny entry to as many people as it can. Why? Because that is the point of the Travel Ban.

Michael C. Dorf

Cornell Law School