Ian Eppler  //  5/22/17  //  Daily Update

There has been extensive analysis of impeachment, obstruction of justice, the propriety of actions at DOJ and the FBI, the special prosecutor, and connections between the Trump Campaign and Russia. It has been reported that President Trump's lawyers sought to avoid the requirement that Trump personally certify the truth of his financial disclosures. DOJ and ICE have invoked new and controversial arguments to target immigrants and refugees (and their lawyers).  A constitutional challenge to the CFPB will be reheard en banc before the D.C. Circuit this Wednesday. 

RULE OF LAW, REMOVAL FROM OFFICE, AND THE RUSSIA INVESTIGATION

On Take Care, Andrew Crespo explains that "should former FBI Director Robert Mueller decide to bring criminal charges against President Trump for obstruction of justice, he would be acting well within the law, the norms of the profession, and the reasonable bounds of the discretion with which he has been entrusted."

President Trump allegedly told Russian officials that he fired former FBI Director James Comey to relieve “great pressure” stemming from the Russia investigation (NYTimes).

A current senior White House official is a person of interest in the Russia investigation (WaPo).

In Time, Massimo Calabresi documents the Russian campaign to influence the 2016 election via social media.

• Kate Brennan writes in Just Security that the investigation into Russian interference and collusion should include an examination of “microtargeting” of voters using stolen data.

Deputy Attorney General Rod Rosenstein asserted that former FBI Director James Comey did not ask for more resources for the Russia investigation before he was fired (The Hill).

• The full text of his statement is here.
• To the frustration of House Democrats, Deputy Attorney General Rosenstein refused to state who instructed him to write the memo that was used to justify the firing of former director Comey (ABA Journal).
• At Lawfare, Quinta Jurecic and Benjamin Wittes discuss the questions raised by Deputy Attorney General Rosenstein’s statement.
• Deputy Attorney General Rosenstein should recuse himself from the Russia investigation, argues Daniel Hemel at Notice & Comment.

The House Intelligence Committee has requested that Michael Caputo, a Trump campaign advisor who formerly worked with the Russian government, appear to answer questions from the committee, writes Maggie Haberman in the New York Times.

In Lawfare, Jack Goldsmith criticizes White House Press Secretary’s assertion that former FBI Director James Comey “grandstand[ed] and politiciz[ed]” the Russia investigation.

At Lawfare, Paul Rosenzweig argues that Congress’ investigation of Russian interference in the 2016 election must continue despite the appointment of a special counsel.

• But Congress may disrupt special counsel Mueller’s investigation by granting immunity to potential witnesses, argues Neal Katyal, who authored the special counsel regulations (ABA Journal).

Andrew Kent discusses in Lawfare the scope of special counsel Robert Mueller’s jurisdiction, and whether and how the public will be informed of the results of the investigation.

Special Counsel Robert Mueller may be subject to conflicts of interests due to his prior employment, but an ethics waiver will likely be granted because Mueller had no involvement with relevant matters (ABA Journal).

• But the White House may try to use this rule to undermine the credibility of the investigation (Vox).

Rep. Elijah Cummings, Ranking Member of the House Oversight Committee, announced a proposed subpoena for documents related to former National Security Advisor Michael Flynn after the White House declined to release documents voluntarily (House Oversight Democrats).

Take Care contributor Helen Klein Murillo discusses in Lawfare how Congress may be able to obtain former FBI Director James Comey’s memos on his conversations with President Trump.

Vikram David Amar offers a “primer on impeachment” at Verdict.

• In Lawfare, Keith Whittington explains how President Trump may be able to “work [his] way back out of impeachment territory.”
• In Cato@Liberty, Gene Healy discusses the merits of the various legal options for presidential removal.
• But the New York Times editorial board argues that discussion of impeachment is premature.

At Just Security, Benjamin Haas and Bishop Garrison argue that career national security and law enforcement professionals serving in the Trump administration run the risk of destroying their reputations.

The context for the Trump campaign’s contact with Russia is critical for an “objective and informative” investigation, argues Ted Galen Carpenter in Cato@Liberty.

Meanwhile, the Federal Election Commission continues to document and report on illegal contributions to President Trump’s campaign (Open Secrets).

IMMIGRATION

Immigration and Customs Enforcement sought and received a warrant to use a cell-site simulator device to track and arrest an undocumented immigrant, in what is believed to be the first use of the controversial devices for immigration enforcement (The Detroit News, The Intercept).

• Adam Schwartz criticizes this use, and suggests that courts and legislatures should restrict the use of cell-site simulators, at Deeplinks Blog.

An immigrants’ rights group won a temporary restraining order blocking a Department of Justice order that it cease providing partial representation to immigrants (ABA Journal).

In Lawfare, Josh Blackman proposes a “simple answer” to a question raised about Korematsu v. United States at oral arguments on the revised entry ban at the 9^th Circuit.

The administration missed a court-ordered deadline to turn over documents regarding the justification for the entry ban (Lyle Denniston News).

Baltimore has set up a legal defense fund for the city’s immigrants (NPR).

Experience suggests that the Trump administration’s planned Border Patrol hiring surge may lead to the hiring of unqualified or criminal agents, writes Ron Nixon in the New York Times.

The Trump administration may revoke temporary protected status for tens of thousands of Haitian immigrants living in the United States illegally in the wake of the 2010 earthquake (NYTimes).

ICE agents in Virginia detained an undocumented mother of two American citizens at a regularly scheduled check-in (Time).

At The Intercept, Danielle Marie Mackey, Pedro Armando Aparicio, and Leighton Akio Woodhouse document the case of Jose Escobar, an undocumented immigrant with no criminal record deported to El Salvador as part of President Trump’s immigration enforcement initiatives.

CIVIL RIGHTS

At the ACLU, Esha Bhandari and Georgeanne M. Usova criticize the Trump administration’s expansion of the “global gag rule” banning aid organizations receiving federal funds from discussing abortion to all health organizations.

• In the New York Times, Nicholas Kristof argues that “pro-life” Trump administration policies endanger women’s health, both in the United States and abroad.

DEMOCRACY

In Politico, Ben Strauss documents the aggressive campaign of voter fraud prosecutions by Kansas Secretary of State Kris Kobach, who has been selected to lead President Trump’s voter fraud commission.

• Alabama Secretary of State John Merrill has announced that he will be helping to select members of the voter fraud commission (Anniston Star).
• At Rewire, Imani Gandy argues that, if the Trump administration were truly concerned about “election integrity,” it would announce a commission to review voter suppression, not allegations of voter fraud.

A federal court may order that Texas should once again be subject to the preclearance requirement for changes to voting regulations due to attempts to intentionally discriminate against minority voters, but it is unclear that the Department of Justice under Attorney General Jeff Sessions will enforce it (Reveal).

At ThinkProgress, Ian Millheiser argues that “the GOP is running its anti-abortion playbook against voting rights.”

JUSTICE & SAFETY

At Just Security, Monica Hakimi assesses the administration’s argument that Thursday’s airstrike on pro-Assad forces was authorized by the 2001 Authorization for Use of Military Force.

Attorney General Jeff Sessions’ advocacy for increased punishment for drug offenses may harm opioid-addicted pregnant women and their babies (Rewire).

Rep. Tony Calderas argues that Attorney General Jeff Sessions’ proposal to increase the use of mandatory minimum sentences will “perpetuate mass incarceration” (The Hill).

At the Human Rights Campaign blog, Brian McBride criticizes the rumored appointment of Milwaukee County Sheriff David Clarke to a position in the Department of Homeland Security.

Canada has managed to preserve its relationship with the United States in the early months of the Trump administration, argues Thomas Juneau in Lawfare.

And, given the turmoil in the Trump administration, Congress will have to take on a new role in setting policy related to the US-Taiwan relationship, writes Julian Ku in Lawfare.

At Just Security, Ryan Goodman argues that Jared Kushner may be legally liable for war crimes by Saudi Arabia in Yemen, given his role in a new $100 billion arms deal with Saudi Arabia.

The failure to fill dozens of open positions at the State Department leaves the country at risk, according to former officials (The Hill).

CONFLICTS OF INTEREST

A recently released document indicates that President Trump’s lawyers asked that President Trump not be required to certify the truth of his financial disclosure forms (ABA Journal).

Writing for The Intercept, Lee Fang discusses the influence of lobbyists for Saudi Arabia on the Trump administration.

In the New York Times, Javier C. Hernandez and Jesse Drucker document how the Kushner family real estate business is attempting to raise millions of dollars from Chinese investors through the EB-5 investor visa program.

Saudi Arabia and the United Arab Emirates announced plans to donate $100 million to Ivanka Trump’s fund for women entrepreneurs, raising conflict of interest concerns (NPR).

REGULATION

President Trump’s proposed budget will include $1.7 trillion in entitlement cuts (Axios).

The constitutional challenge to the structure of the Consumer Financial Protection Bureau, which is predicated on allegedly insufficient presidential control over the agency, is poorly timed, given President Trump’s firing of FBI Director James Comey, argues Leah Litman at Take Care.

• The DC Circuit will consider the challenge en banc on Wednesday (Reuters).

The uncertainty surrounding the future of the Affordable Care Act has led insurers to leave the individual markets and raise rates, writes Robert Pear in the New York Times.

Trump administration pressure on insurers to support repeal of the Affordable Care Act may violate their 1^st Amendment rights, writes Christopher Robertson at Bill of Health Blog.

A journalist was removed from a Federal Communications Commission hearing on net neutrality after attempting to ask a question (Rewire, Ars Technica).

President Trump’s proposed 2018 budget will cut funding for the Environmental Protection Agency by over 30 percent (The Hill).

• The EPA has already set aside funding for employee buyouts (WaPo).

At Ars Technica, Jon Brodkin assesses a Trump advisor’s proposal for advertising-supported subsidized internet services for low-income people.

The Food and Drug Administration is considering repeal of regulations on e-cigarettes, but health groups are pushing back (The Hill).

An oil industry trade group has asked Interior Secretary Ryan Zinke to delay rules regulating methane emissions (Climatewire).

The confirmation hearing for the Trump administration’s nominee for Deputy Secretary of the Interior gave little insight into his views on climate change (Climatewire).

The Trump administration has delayed an Obama-era rule regarding assessment of climate impacts in highway planning (Climatewire).

CHECKS & BALANCES

In the New York Times, Emily Bazelon and Eric Posner suggest that President Trump’s conduct will lead the courts and Congress to impose new checks on the presidency.

At POGO Blog, Nick Schwellenbach argues that Congress must prevent the Trump administration from infringing press freedom through investigation and prosecution of leaks.

Several Republican senators have proposed changes to the “blue slip” procedure, which would facilitate confirmation of President Trump’s judicial nominees (The Hill).

FEDERALISM

At the ACLU’s Speak Freely blog, ACLU President Susan Herman discusses how federalism doctrines may allow states and municipalities to resist Trump administration immigration policies.

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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