Daily Update | February 25, 2019
Michael Cohen provided information to federal prosecutors about irregularities with the Trump Organization and inaugural committee. An IRS employee was charged with illegally leaking Michael Cohen’s banking records and providing them to Michael Avenatti. A bipartisan group of fifty-eight former senior national security officials issued a statement saying there is no factual basis for President Trump’s declaration of a national emergency on the border. A new lawsuit is seeking to require the federal government to recognize Hoda Muthana—an American-born woman who joined the Islamic State as an “ISIS bride” and now seeks to return—as an American citizen and allow her reentry into the country. The Trump Administration’s attempt to deny citizenship to the children of binational same-sex couples received a setback when a federal court ruled that such children are U.S. citizens under the relevant federal statutes. A federal judge ruled that an all-male military draft is unconstitutional.
TRUMP: INVESTIGATIONS AND LITIGATION
The Special Counsel submitted a sentencing memorandum in the U.S. District Court for the District of Columbia that took no specific position on the length of Paul Manafort’s sentence, but noted that he is a hardened criminal who repeatedly and brazenly violated the law (NYT, WaPo).
- Read the sentencing memo here.
The New York County District Attorney is preparing state criminal charges against Paul Manafort in order to guard against the possibility of a presidential pardon, Greg Farrell reports in Bloomberg.
“Collusion” is the wrong frame with which to understand the Trump campaign’s relationship with Russia in the 2016 campaign, argue Ryan Goodman and Asha Rangappa in Just Security.
Access to underlying investigative documents related to the Special Counsel’s final report may be guided by the precedents set by the Justice Department in the investigation into Hillary Clinton’s email server, Devlin Barrett and Karoun Demirjian write in the Washington Post.
- House Democrats intend to subpoena Robert Mueller if a final report is suppressed, writes Felicia Sonmez in the Washington Post.
Michael Cohen provided information to federal prosecutors about irregularities with the Trump Organization and inaugural committee, report Ben Protess, William K. Rashbaum, and Maggie Haberman in the New York Times.
An IRS employee was charged with illegally leaking Michael Cohen’s banking records and providing them to Michael Avenatti, Maggie Haberman writes in the New York Times.
- Read the criminal complaint here.
IMMIGRATION
A new lawsuit is seeking to require the federal government to recognize Hoda Muthana—an American-born woman who joined the Islamic State as an “ISIS bride” and now seeks to return—as an American citizen and allow her reentry into the country, Isaac Stanley-Becker writes in the Washington Post.
- Read the complaint here.
CIVIL RIGHTS
With oral argument in American Legion v. American Humanist Association soon to begin, the Supreme Court may be on the precipice of abandoning longstanding and hard-won principles about the secular nature of American government, argue Robert W. Tuttle and Ira C. Lupu in Take Care.
The Trump Administration’s attempt to deny citizenship to the children of binational same-sex couples received a setback when a federal court ruled that such children are U.S. citizens under the relevant federal statutes, Mark Joseph Stern writes in Slate.
- Read the opinion here.
The Trump Administration’s newly expressed desire to champion LGBTQ rights across the globe would carry more weight if it began by addressing its horrendous record on LGBTQ rights at home, Ty Cobb argues in the Washington Post.
DEMOCRACY
Clarence Thomas surprised observers with his dissent in McKee v. Cosby, calling for the Supreme Court to revisit New York Times Co. v. Sullivan, writes Ariane de Vogue in CNN.
- Michael Dorf argues in his eponymous blog that Justice Thomas’s call for an originalist approach is inconsistent with his previous jurisprudence in this area.
- Mark Tushnet argues in Balkinization that Thomas overlooks the central concern of chilling truthful speech evinced by New York Times Co. v. Sullivan.
- Marty Lederman argues in Balkinization that Thomas’s opinion demonstrates some of the contradictions present in modern originalism.
Bobby Higdon, the U.S. Attorney for the Eastern District of North Carolina, has led the Trump Administration’s crusade against noncitizen voting, Allegra Kirkland writes in Talking Points Memo.
JUSTICE & SAFETY
The Obama-era Countering Violent Extremism counterterrorism program is ineffective and should be ended, Nabihah Maqbool and Sirine Shebaya argue in Take Care.
A federal judge ruled that an all-male military draft is unconstitutional, writes Gregory Korte in USA Today.
- Read the opinion here.
- Lyle Denniston recaps the opinion in his eponymous blog.
- Sarah Grant in Lawfare notes that the judge carefully distinguished the case from the Supreme Court precedent in Rostker v. Goldberg.
- Ilya Somin argues in Volokh Conspiracy that the decision will probably be upheld on appeal.
The Bureau of Alcohol, Firearms, and Tobacco should move ahead and regulate bump stocks, Mary B. McCord and Eric Tirschwell argue in Lawfare.
REGULATION
The White House plans to establish an ad hoc group of scientists to reassess the federal government’s conclusions on climate change, Juliet Eilperin, Josh Dawsey, and Brady Dennis report in the Washington Post.
The NLRB will soon again consider whether charter schools are employers under the National Labor Relations Act, Sharon Block writes in On Labor.
The example of the CFPB demonstrates that agency design does impact its method of rulemaking, Roberta Romano argues in Notice & Comment.
The Trump Administration issued a rule a rule barring groups that provide abortions or abortion referrals from participating in the $286 million federal family planning program, reports Ariana Eunjung Cha in the Washington Post.
RULE OF LAW
The stakes over whether President Trump’s declaration of a national emergency on the border is unconstitutional or “merely” illegal are nontrivial, argues Michael C. Dorf in Take Care.
- A bipartisan group of fifty-eight former senior national security officials issued a statement saying there is no factual basis for President Trump’s declaration of a national emergency on the border, Ellen Nakashima writes in the Washington Post.
- A variety of local considerations are likely to affect the upcoming House vote on a resolution to terminate Trump’s emergency declaration, Luke Hartig argues in Just Security.
- Congress should vote to terminate the emergency, urges Kenneth Romero-Cruz in the Hill.
- Congress could have prevented the abuse of the national emergency process long ago, Amy L. Stein argues in the Atlantic.
- Trump lacks the grounds to declare a national emergency in the first place, Ilya Somin argues in The Volokh Conspiracy.
- The legality of Trump’s border wall is not, at its core, a national emergency question, Sam Wice argues in Notice & Comment.
- With the national emergency declaration, as with so many other Trump Administration actions, courts must weigh how much deference to give the administration’s pronouncements, Noah Feldman argues in Bloomberg.
CHECKS & BALANCES
Congress should limit the emergency powers of all presidents, Josh Blackman argues in Lawfare.
Democratic senators can effectively slow Trump’s judicial confirmations if they stick together, Chris Kang argues in an interview with Jeremy Stahl in Slate.
REMOVAL FROM OFFICE
Talk of impeachment shouldn’t dominate our political conversation at the expense of talk of investigations, Joshua Matz and Laurence H. Tribe write in Take Care.
- Read the long form of their argument in the Atlantic.
Tags:
Immigration Rule of Law Checks & Balances Regulation Democracy Civil Rights Justice & Safety Removal from Office