Ian Eppler, Jacqueline Sahlberg  //  10/23/17  //  Daily Update

President Trump previously called for eliminating tax breaks to the NFL because of the protests, and now the Republican tax bill proposes to cut tax breaks for stadiums. President Trump has pushed the death penalty for Saipov, which could threaten the defendant’s chance for a fair trial. A group of House Democrats have filed a lawsuit to acquire documents from the General Services Administration on the Trump hotel in Washington. President Trump announced Jerome Powell as his nominee for chair of the Federal Reserve. Jared Kushner has turned over documents to the Special Counsel as part of its investigation into obstruction of justice in the firing of former FBI Director James Comey.

IMMIGRATION

The federal statutes that criminalizes encouraging or induce a noncitizen to illegally enter or reside in the United States violates the First Amendment, writes Daniel Morales for Take Care.

Compliance with federal immigration detainers may expose state and cities to legal risk, writes Harry Graver for Lawfare. 

President Trump is wrong to link the Diversity Lottery program to terrorism, but Congress should end the lottery, writes Peter Schuck for The New York Times.

CIVIL RIGHTS

A federal court granted an injunction against the military transgender ban, but the litigation is just beginning, writes Mark Nevitt for The Regulatory Review.

DEMOCRACY

President Trump previously called for eliminating tax breaks to the NFL because of the protests, and now the Republican tax bill proposes to cut tax breaks for stadiums (WSJ, Hill).

JUSTICE & SAFETY

President Trump has pushed the death penalty for Saipov, which could threaten the defendant’s chance for a fair trial (NYTimes, Guardian, Politico).

• The Justice Department appears to be “tuning out” President Trump’s public statements (WaPo).

Transferring Sayfullo Saipov, the alleged New York attacker, to military custody would likely be illegal, writes Marty Lederman for Just Security.

• Sending Saipov to Guantanamo Bay would be legally risky, writes Stephen Vladeck at the Washington Post.
• Saipov is not headed to Guantanamo, but the issue raises lingering unresolved questions about military detention and military commissions, write Robert Chesney, Sabrina McCubbin, and Benjamin Wittes for Lawfare.
• President Trump stated that he will not send Saipov to Guantanamo (NYTimes). 

President Trump signed legislation that aims to help state and local law enforcement combat cybercrime (Hill).

CONFLICTS OF INTEREST

A group of House Democrats have filed a lawsuit to acquire documents from the General Services Administration on the Trump hotel in Washington (NYTimes, WSJ).

REGULATION 

Congressional Republicans released their proposed tax legislation. The bill decreases the corporate tax rate while capping the mortgage interest deduction (NYTimes, Politico, WaPo, WSJ).

• The bill would lower taxes on large businesses and wealthy individuals, while increasing taxes on low-income individuals and residents of blue states with high local taxes (WaPo).
• But the bill eliminates certain business tax incentives, leading many business groups to oppose it (WaPo).  
• The proposal may harm the housing market (WSJ).
• The bill would eliminate the tax exemption for professional sports stadium construction bonds (The Hill).

President Trump announced Jerome Powell as his nominee for chair of the Federal Reserve (NYTimes, WaPo, WSJ).

• Powell’s policies are likely to be similar to those of current Federal Reserve chair Janet Yellen, suggests Tate Lacey at Cato @ Liberty.
• President Trump’s selection of Powell brings political accountability to the agency, but undermines the norm of reappointing successful Federal Reserve chairs, argues Peter Conti-Brown at Notice and Comment.

An official from the Department of the Interior encouraged Congress to approve oil drilling in the Arctic National Wildlife Refuge (WSJ).

The Department of the Interior is considering weakening protections for the sage grouse, an endangered bird species, on public land, reports Eric Biber at Legal Planet.

The Department of Justice is considering a lawsuit to block a proposed merger between AT&T and Time Warner, writes Jon Brodkin at Ars Technica.

President Trump’s deregulatory agenda undermines efforts to combat the opioid epidemic, argues Valarie Blake at ACS Blog.

Affordable Care Act open enrollment has begun, but federal advertising is down from previous years (WaPo).

RULE OF LAW

A New York state trial court may allow a defamation lawsuit by women who accused President Trump of sexual harassment and assault to proceed, opening the door for discovery and depositions involving President Trump and campaign officials, reports Megan Twohey in the New York Times.

CHECKS & BALANCES

The Senate confirmed two Trump nominees to the federal circuit courts.

• Stephanos Bibas, a professor at the University of Pennsylvania Law School, was confirmed to the Third Circuit (Law.com).
• Allison Eid, a justice on the Colorado Supreme Court, was confirmed to the Tenth Circuit (Denver Post).

Opponents of President Trump’s agenda, led by Democratic state attorneys general, have successfully used litigation to stymie many of President Trump’s most controversial actions, write Lawrence Hurley and Andrew Chung in Reuters.

President Trump broke with tradition in making a nomination to the Seventh Circuit from Wisconsin without consulting with the state’s bipartisan judicial nomination committee, argues Jeff Mandell at ACS Blog.

FEDERALISM

The ongoing litigation involving attempts to deny federal funding to “sanctuary cities” is indicative of a need to revisit certain federalism doctrines, argues Vikram Amar at Verdict.

MUELLER INVESTIGATION & RUSSIAN INTERFERENCE

Jared Kushner has turned over documents to the Special Counsel as part of its investigation into obstruction of justice in the firing of former FBI Director James Comey (CNN).

Sam Clovis, a former Trump campaign official, has withdrawn his candidacy for chief scientist of the Department of Agriculture after being implicated in the Special Counsel investigation (Ars Technica, Politico).

• The White House was unaware that Clovis had testified before a grand jury before media reports this week (ABC News).

Attorney General Jeff Sessions spoke with George Papadapoulos regarding his proposed meeting with Russian officials, contracting his prior testimony before Congressional committees (NBC News).

• Congressional Democrats want him to testify again as a result (Politico).

U.S. investigators have identified several Russian government hackers who were involved in hacking the DNC email system, and are considering bringing charges (WaPo, WSJ).

Polls suggest that President Trump’s attacks on the integrity of Special Counsel Robert Mueller are reducing Mueller’s credibility with the public, report Mieke Eoyang, Ben Freeman, and Benjamin Wittes at Lawfare.

Former Trump campaign foreign policy advisor Carter Page has asserted his Fifth Amendment rights to avoid turning over documents to Congressional investigators (Politico).

Prior to the 2016 election, Russian hackers attempted to access the email accounts of US generals and diplomats (The Hill).

Former National Security Advisor Michael Flynn followed and promoted social media accounts run by Russian trolls prior to the 2016 election, report Ben Collins and Kevin Poulsen at the Daily Beast.

Special Counsel Mueller’s charging decisions reflect a strategic decision to undermine possible presidential pardons, argues Jed Shugerman at his eponymous blog.