Ryan Hayward,  //  5/15/17  //  Daily Update

Discussion continues about the legal and political ramifications of the President's firing of FBI Director James Comey. Scholars and politicians debate whether the President may have obstructed justice, and whether we are now in the midst of a constitutional crisis. There has also been recent commentary about the President's so-called “election integrity” commission, among many other topics.

COMMENTARY ON THE FIRING OF JAMES COMEY

News outlets continue to cover President Trump’s decision to fire former FBI Director James Comey. At Take Care, Leah Litman highlights the irregularity of the process by which Director Comey was fired, here and here.

• Richard Primus points out that President Trump’s conduct is unacceptable, regardless of whether he is guilty of Russia-related wrongdoing. 
• At the Washington Post, Amy B. Wang covers Comey’s weekend activities after being fired.
• The Economist discusses whether President Trump’s actions were the result of incompetence or malicious intent. 

President Trump’s tweet Friday that “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” ignited coverage scrutinizing the possibility that President Trump is taping his conversations (NYT, WaPo). 

• Devlin Barrett, Ellen Nakashima, and Sari Horwitz write that President Trump suggested the tapes may contain conversations where former Director Comey told the President he was not under investigation (WaPo). 
• At Vanity Fair, Emma Stefansky notes that President Trump’s history of recording business calls suggests he may have continued the practice. 
• Former employees of President Trump assert they saw him taping conversations, writes Alexandra Berzon (WSJ). 
• The White House responded to coverage, stating President Trump’s tweet was not meant as a threat against former FBI Director James Comey (WSJ). 
• However, Peter Baker and Michael D. Shear note the president and White House Press Secretary Sean Spicer have declined to say whether the president tapes his conversations (NYT). 
• Amid the firestorm, President Trump threatened to cancel White House press briefings (NYT).
• Members of Congress found it distressing that President Trump might be taping conversations and agreed that if President Trump has tapes, he needs to hand them over to Congress. (NYT, WaPo). 
• House Judiciary Committee Ranking Member John Conyers and House Committee on Oversight and Government Reform Ranking Member Elijah Cummings requested copies of the alleged recordings from White House Counsel Don McGahn (Lawfare). 
• Representatives Conyers and Cummings also sent a letter to Deputy Attorney General Rod Rosenstein requesting a report on Attorney General Sessions’ involvement in the firing of James Comey in light of Sessions’ prior commitment to recuse himself from “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” (House Committee on Oversight & Government Reform, Lawfare). 
• At Lawfare, Bob Bauer details the negative self-portrait President Trump is creating. Earlier, Bauer explored whether the president has made himself the target of an obstruction of justice investigation (Lawfare). 

A number of commentators discuss whether President Trump can be investigated for obstruction of justice due to Director Comey’s firing. 

• At the Washington Post, Karen Tumulty observes that much of this discussion is based on President Trump’s own words. 
• Jed Shugerman wonders if President Trump admitted to obstruction of justice in an interview with Lester Holt of NBC. 
• Jennifer Rubin argues that the Friday comments of James Clapper, former director of national intelligence, constitute a third strike against President Trump (after President Trump’s alleged he fired Director Comey with the Russia investigation in mind and then tweeted about potential recordings of his conversations), and that action must be taken before President Trump does too much damage to the republic (WaPo). 
• Nicholas Kristof asserts that while President Trump’s pattern of behavior may not meet legal criteria for the crime of obstruction of justice, President Trump has engaged in obstruction of the rule of law and democratic norms (NYT). 

Laurence H. Tribe advocates for Congress to launch an impeachment investigation into President Trump (WaPo).

• Josh Blackman responds, arguing that we are not in the midst of a constitutional crisis. 

 Other coverage centered around who might replace Director Comey, and what such an appointment might mean. 

• Matt Zapotosky and Ed O’Keefe write that there is a four-person shortlist, including Sen. John Cornyn (Tex.), Acting FBI Director Andrew McCabe, Alice Fisher (a white-collar defense lawyer who previously led the criminal division at the Department of Justice), and Michael J. Garcia (a judge on the New York State Court of Appeals and former U.S. Attorney for the Southern District of New York) (WaPo). 
• Maggie Haberman and Jeremy W. Peters add that the list of those being considered is said to be broader than those four names (NYT). 
• At the Volokh Conspiracy, Eugene Volokh argues that we can’t assess the Comey firing until we know whom Trump nominates as the new Director. 

John Podesta argues the only way to save our democracy is for all of President Trump’s senior advisors to resign (WaPo). 

• At the Washington Post, Phil Rucker agrees the system may be failing, but points out that President Trump is making all the relevant decisions. 
• Sen. Dianne Feinstein also called for the appointment of a special prosecutor (The Hill). 
• President Trump is threatening the FBI’s independence, argues Barbara McQuade, a law professor at the University of Michigan Law School and the former U.S. Attorney for the Eastern District of Michigan; she is also calling for the appointment of a special prosecutor (WaPo). 
• In contrast, Secretary of State Tillerson declared in a Sunday interview that he was not concerned President Trump would threaten his independence in his job (WSJ). 
• Jennifer Daskal agrees a special prosecutor must be appointed, in large part because of the possibility of obstruction of justice charges (Just Security).  
• The Economist states an independent inquiry into what happened during the election is the only way to clear the air in the U.S. 

At the New York Times, Benjamin Wittes describes what will be lost with the firing of James Comey. Benjamin Wittes also argues in Lawfare that Deputy Attorney General Rod Rosenstein should resign. 

Kathleen Clark, a law professor at Washington University, writes that it creates a conflict of interest for presidents to ask the head of the FBI about an investigation into that president’s electoral campaign (WaPo). 

At Lawfare, Molly E. Reynolds documents the procedural methods Democrats in Congress can use to respond to the firing of James Comey. 

• Adam Jentleson urges Democrats in Congress to not allow business to proceed as usual, but rather to focus on holding President Trump accountable (WaPo). 

Garrett Epps argues that Merrick Garland could serve as the next FBI director without giving up his position as a federal judge (The Atlantic). 

• Josh Blackman, cited in Epps’ piece, further discusses the source of the President’s power to remove the FBI Director at Josh Blackman’s Blog. 
• At Just Security, Jennifer Daskal implores President Trump to not remove Andrew McCabe as the acting director of the FBI for contradicting White House statements during his Senate testimony. 

David G. Post notes similarities between the actions of President Trump and the actions of President Nixon (WaPo).

IMMIGRATION

Ted Olson’s argument that the Administration’s proposed border adjustment tax is unconstitutional has many weaknesses, argues Erik Jensen in an interview with Jonathan Adler (Volokh Conspiracy).

Justice Department lawyers defending President Trump’s revised entry ban “have created an awkward dilemma for themselves,” suggests Lyle Denniston. 

Law enforcement in sanctuary cities are feeding information to government databases that ICE can comb (NPR).

The toxic immigration debate may be chilling crime reporting in Hispanic communities (WaPo).

CIVIL RIGHTS

The history of the enactment of the Fourteenth Amendment directly refutes President Trump’s suggestion that funding historically black colleges is unconstitutional, explains Nikolas Bowie (Take Care). 

President Trump’s religious freedom executive order paves the way for future action allowing employers to use religion to block contraceptive coverage for their employees (ACLU).

DEMOCRACY 

The Administration’s new so-called “election integrity” commission is designed to implement predetermined policies rather than to seek out information, argues Justin Levitt (Take Care).

• The commission is a menace to democracy, argues Jed Shugerman (Shugerblog, Take Care).
• It is also a “sham . . . to investigate a phony problem” (Brennan Center), and it’s more likely to restrict voting than to increase access (Brennan Center).
• At Election Law Blog, Rich Hasen questions why the Administration didn’t announce all the members of the commission.
• Kris Kobach, the newly appointed vice chair of the commission, pushed the falsehood that millions of undocumented people voted in the 2016 elections (Vice).

It would ultimately be dangerous for President Trump to be held liable for inciting violence at his rallies, argues Jason Harrow (Take Care).

• But Charlie Gerstein takes issue with this argument (Take Care).

JUSTICE & SAFETY

Attorney General Jeff Sessions has ordered federal prosecutors to seek the harshest sentences possible against crime suspects, in a reversal of Obama administration policies (NYT, The Atlantic, Sentencing Law and Policy).

• The policy change goes against a growing bipartisan consensus around more lenient sentencing (NYT).
• Former Attorney General Eric Holder slammed the decision (The Hill).
• Law enforcement reactions to the policy vary (WSJ).

President Trump has not yet decided whether to increase U.S. troop presence in Afghanistan (WaPo).

CONFLICTS OF INTEREST

President Trump’s lawyers claimed his unreleased tax returns showed no Russian debt or income, with “a few exceptions” (NYT, NPR, The Atlantic).

REGULATION

The Administration’s anticipated moves on net neutrality demonstrate a lack of understanding of the history of Internet regulation (WaPo).

Two members of an EPA science board resigned in protest at the Administration’s “obfuscation of scientific evidence” (The Hill).

• The Administration’s attack on the EPA is ironic given that the agency “actually arose as a defense against a harsher, libertarian approach to eliminating pollution,” argues Mark Buchanan (Bloomberg).

Across the administrative state, the Administration is sidelining data it finds inconvenient (WaPo).

RULE OF LAW

According to former Director of National Intelligence James Clapper, President Trump is weakening national institutions that support the rule of law (WaPo).

At Lawfare, Jack Goldsmith suggests five reasons why “doing the right thing” as a senior government attorney can be difficult.

CHECKS & BALANCES

Breaking up the Ninth Circuit would be unhelpful—and perhaps counterproductive—for President Trump, argue Ian Samuel and Brian Goldman (San Jose Mercury News).

RUSSIAN INTERFERENCE

Whether Trump campaign staff colluded with Russia is not the only important question for an investigation to answer, argues Julian Sanchez (Just Security).

Senator Burr appears to be taking seriously his role as head of the Senate investigation into Russian interference in the election, according to a profile by Matt Flegenheimer (NYT).

And that's our update today!  Thanks for reading.  We cover a lot of ground, so our updates are inevitably a partial selection of relevant legal commentary.  

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