Emily Morrow  //  12/23/19  //  Daily Update

Speaker of the House Nancy Pelosi and Senate Majority Leader Mitch McConnell seek to leverage uncertainties in the rules for impeachment to their advantage. White House officials indicated that President Trump threatened to veto a recent spending bill if it included language requiring release of military aid to Ukraine early next year. The DHS OIG said that it found “no misconduct” by department officials in the deaths of two migrant children who died in Border Patrol custody last year. And the FISA court ordered the Justice Department to review all cases that former FBI official Kevin Clinesmith worked on.

IMPEACHMENT INQUIRY

Nancy Pelosi and Mitch McConnell continue in their efforts to leverage uncertainties in the rules for impeachment to their advantage (Politico).

Law professors debate the issue of precisely when “impeachment” occurs (NYT).

•  The House is acting consistently with its impeachment practice since the early twentieth century, but is a departure from earlier history, writes Keith E. Whittington at The Volokh Conspiracy.
• The Senate must wait for the transmission of articles to begin a trial—but the Senate could craft a rule permitting it to dismiss an article for lack of prosecution if the House fails to transmit it within 30 days, argues Josh Blackman at The Volokh Conspiracy.
• “Procedural tricks” like threatening to withhold the articles to guarantee a “fair” trial risks undermining the cause, writes Frank O. Bowman III at The Atlantic.

During a term when the Supreme Court will decide key issues pertaining to executive authority, the impeachment trial will put added pressure on Chief Justice Roberts’ institutionalist impulse, writes Darren Samuelsohn at Politico.

Some Republican senators appear to read the Article VI oath to “support and defend the constitution” as demanding “a kind of partiality toward the president that the impeachment oath seems to forbid,” writes David Pozen at Balkinization.

• At a minimum, doing “impartial justice” should require “toning down the conclusory rhetoric,”writes Ruth Marcus at The Washington Post

White House officials indicated that President Trump threatened to veto a recent spending bill if it included language requiring release of military aid to Ukraine early next year (NYT; WaPo).

A senior official in the White House budget office indicated that President Trump ordered the hold of military aid to Ukraine less than two hours after his call with President Zelensky (WaPo).

Key differences—beyond the evidence and seriousness of the accusations against them—provide protection for President Trump that President Nixon lacked, write Emily Bazelon and Beverly Gage at The New York Times.

Evangelical magazine Christianity Today called for President Trump’s removal in an editorial, provoking an angry response from the administration (NYT; WaPo).

IMMIGRATION

The DHS OIG said that it found “no misconduct” by department officials in the deaths of two migrant children who died in Border Patrol custody last year (NYT; WaPo).

• The DHS press release is here.

DEMOCRACY

The Court of Appeals for the D.C. Circuit ruled that that Trump Administration is not required to turn over certain emails from its former voter fraud commission (Talking Points Memo).

Democratic-appointed judges on the Ninth Circuit Court of Appeals have only a three-seat majority, prompting some to call for democrats also appoint more ideological judges and add seats to the court (Politico).

CIVIL RIGHTS

Lambda Legal released a report finding that 36% of President Trump’s circuit court nominees “have a demonstrated history of anti-LGBT bias” (Lambda Legal).

• The full report is here.

RULE OF LAW

The FISA court ordered the Justice Department to review all cases that former FBI official Kevin Clinesmith worked on following the release of the Inspector General’s report criticizing the FBI’s Russia investigation (NYT).

The editors of Lawfare sued the FBI following up on FOIA requests for documents pertaining to disciplinary action taken against FBI personnel for stating their political views (Lawfare).

OLC opinions are treated as binding by federal officials—selective publication of these opinions is not enough to ensure democratic accountability, writes Alex Abdo at Just Security.