, Ian Eppler  //  11/1/17  //  Daily Update

Special Counsel Robert Mueller is scheduled to interview White House Communications Director Hope Hicks. Trump attorney Jay Sekulow claimed that “pardons are not on the table” in the wake of the Special Counsel’s indictments. Executives from Facebook, Google, and Twitter testified before the Senate Judiciary Committee regarding Russian influence operations on their platforms during the 2016 election. The ACLU is suing the Trump Administration for the release of a ten-year-old girl with cerebral palsy detained by ICE after undergoing surgery. The EPA has eliminated the ability of scientists receiving EPA research funding to serve on the agency’s advisory committees, a move that will likely increase the influence of industry-funded scientists.

MUELLER INVESTIGATION & RUSSIAN INTERFERENCE

Special Counsel Robert Mueller is scheduled to interview White House Communications Director Hope Hicks (Politico).

• Russian officials dismissed arguments that the Special Counsel indictments proved Russian interference in the 2016 election (WaPo).

Trump attorney Jay Sekulow claimed that “pardons are not on the table” in the wake of the Special Counsel’s indictments (Politico).

Coverage of the Special Counsel’s indictment of Paul Manafort and Rick Gates continued.

• According to several criminal defense lawyers, Special Counsel Robert Mueller’s invocation of the “crime-fraud” exception to attorney-client privilege is indicative of an aggressive and sophisticated investigation, report Devlin Barrett and Matt Zapotosky in the Washington Post.
• The logic behind the indictment of Manafort and Gates likely applies equally to former Trump National Security Advisor Michael Flynn, and the indictment thus may push Flynn to cooperate, reports Vera Bergengruen for Buzzfeed.
• The Special Counsel’s indictment of Paul Manafort is likely an effort to push him to cooperate with the investigation, suggests Barbara McQuade in the Daily Beast.
• The indictment of Paul Manafort and Rick Gates is indicative of systemic weaknesses in the Foreign Agents Registration Act, argues Lydia Dennett at POGO Blog.
• The indictment of Rick Gates, who made several visits to the White House, is evidence of the need for a return to the Obama-era policy of releasing White House visitor logs, writes Andrea Peterson at POGO Blog.
• Washington lobbyists are concerned following the inclusion of FARA violations in the indictment, as FARA violations are fairly common in lobbying, report John Hudson and Zoe Tillman in Buzzfeed.
• President Trump should not pardon Manafort, argues John Yoo in the New York Times.

Coverage of the plea agreement by former Trump campaign staffer George Papadopoulos also continued.

• Sam Clovis, a former Trump senior campaign official who supervised George Papadopoulos and was implicitly named in Papadopoulos’ plea agreement, has spoken with Special Counsel investigators and testified before the grand jury (NBC News).
• In a tweet, President Trump claimed that Papadopoulos was merely a “low level volunteer,” and White House Press Secretary Sarah Huckabee Sanders claimed that Papadopoulos was only arrested thanks to White House cooperation (NYTimes, Politico).
• But court documents indicate that Papadopoulos spoke on several occasions with high level campaign officials, including former campaign managers Paul Manafort and Corey Lewandowski, regarding outreach to Russian officials (WaPo).
• A professor discussed in the plea agreement had private meetings with Vladimir Putin (WaPo).
• The events described in the plea agreement are typical of cultivation efforts by spies, notes Steve Hall, former director of Russia operations for the CIA, in the Washington Post.

Several Senate Republicans expressed opposition to legislative proposals that would defund or curtail Special Counsel Mueller’s investigation (WaPo).

• But they also seemed reluctant to back legislation that would limit President Trump’s ability to fire Mueller (Politico)

Executives from Facebook, Google, and Twitter testified before the Senate Judiciary Committee regarding Russian influence operations on their platforms during the 2016 election (Ars Technica, NYTimes, Politico).

• Written testimony, and video of the hearing, is available at Lawfare.

RULE OF LAW

The President’s ability to use the pardon power to stymie an investigation is a bug, not a feature, of the Constitution, argues Michael Dorf at his eponymous blog.

Criticism of judges who block Trump administration policies as being politically motivated undermines the rule of law, argue Dahlia Lithwick and Steve Vladeck in the New York Times.

IMMIGRATION

President Trump has invited several Senate Republicans to the White House to discuss progress on a possible bill addressing “Dreamers,” reports Seung Min Kim in Politico.

President Trump’s recent executive order subjects follow-on family members of refugees to the same level of vetting as the original refugee sponsor already in the U.S., a modest, but unnecessary, step, writes Alex Nowrasteh at Cato at Liberty.

• Read the executive order here.

The ACLU is suing the Trump Administration for the release of a ten-year-old girl with cerebral palsy detained by ICE after undergoing surgery, reports Maria Sachetti in the Washington Post.

• Read the complaint here.
• Shoba Sivaprasad Wadhia argues the case highlights a failure of prosecutorial discretion in Notice & Comment.

CIVIL RIGHTS

Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission could “punch a significant hole in civil rights laws nationwide” if the Supreme Court accepts the religious baker’s arguments, writes Joshua Matz in Take Care.

• Read the amicus brief he submitted with Robert Kaplan here.

A federal judge temporarily has blocked the Trump Administration’s ban on transgender people serving in the military, noting that the stated justifications for the ban “do not appear to be supported by any facts,” writes The Economist.

• Sarah Grant summarizes the opinion here in Lawfare.

DEMOCRACY

The Crosscheck system promoted by Kris Kobach, vice chair of President Trump’s Presidential Advisory Commission on Election Integrity, as a tool to purge voter rolls, has a 99% false positive rate, writes Sean Gallagher at Ars Technica.

Legislation signed into law last week will impose disciplinary measures on federal supervisors who retaliate against whistleblowers, writes Joe Davidson in the Washington Post.

Republicans have opposed Nathaniel Persily, the special master appointed by the Fourth Circuit Court of Appeals to redraw North Carolina’s state legislative districts, writes Peter St. Onge in the News & Observer.

JUSTICE & SAFETY

Congress needs to get answers from the Trump Administration on its views of the president’s authority to unilaterally launch an armed conflict, argues Ian Bassin in the Washington Post.

The U.S. should consider taking “purely defensive” cyber actions in the territory of other states when necessary to avoid the risks of escalation from inaction, writes Robert S. Taylor in Just Security.

The American military command in Afghanistan has begun classifying “key figures related to the growth and progress of local security forces” in reports by the Special Inspector General for Afghanistan (NYT).

Judge Chutkan should conduct limited jurisdictional discovery to determine the ACLU Foundation’s standing to bring a habeas petition on behalf of an American citizen detained as an enemy combatant in Iraq, argues Steve Vladeck in Just Security.

• Read the government’s motion to dismiss here.

REGULATION

A proposed Department of Health and Human Services rule that would curtail “essential health benefits” under the Affordable Care Act may be illegal, argues Nick Bagley at Take Care.

Thanks to a series of resignations, President Trump has a rare opportunity to reshape the Federal Reserve’s board of governors, reports Danny Vinik in Politico.

The EPA has eliminated the ability of scientists receiving EPA research funding to serve on the agency’s advisory committees, a move that will likely increase the influence of industry-funded scientists (WaPo).

CHECKS & BALANCES 

The Senate confirmed Amy Coney Barrett, President Trump’s nominee for a position on the Seventh Circuit (The Hill).

• The Senate is likely to confirm three of President Trump’s other circuit court nominees this week (Huffington Post). 

John Demers, President Trump’s nominee to head the Department of Justice’s National Security Division, promised the Senate Intelligence Committee that he would not interfere with the Russia investigation. He also discussed his views on surveillance (WaPo).

Many of President Trump’s US Attorney nominees have the strong backing of the NRA, raising questions about their willingness to enforce gun laws, notes Victoria Bassetti at ACS Blog.