A Memorandum of Misunderstanding
Mueller didn't indict Trump because DOJ policy prohibited him from doing so. That same policy points to the need for impeachment.
Versus Trump: Trump Versus Trump's Banks
This week on Versus Trump, Jason, Charlie, and Easha discuss a new lawsuit by the President seeking to prevent two banks from responding to Congressional subpoenas that seek information about the his business dealings. Listen now!
Versus Trump: It's Here!
This week on Versus Trump, Charlie, and Easha discuss the long-awaited Mueller Report. They break down the report step-by-step, discuss the legal issues it raises, and have an all-around good time while they're at it. Listen now!
Versus Trump: Mueller-ing Things Over
The Mueller Report is kinda, sorta here, so, on this week's episode of Versus Trump, Charlie and Jason analyze the Barr summary and then dive into the legal troubles of famous Trump antagonist Michael Avenatti. Listen now!
Updates | The Week of February 19, 2018
Special Counsel Robert Mueller filed a new charge against Paul Manafort while Richard Gates pled guilty. Meanwhile, President Trump's proposal to arm teachers drew controversy in Washington.
Updates | The Week of February 5, 2018
The Nunes memo set off aftershocks; agencies scrambled to implement the Trump Administration's policies to mixed effect; and Congress passes a budget after a brief overnight shutdown.
Updates | The Week of January 22, 2018
President Trump attempted to fire Special Counsel Mueller in June 2017 over his obstruction of justice probe, but refrained after White House Counsel Don McGahn threatened to quit.
Updates | The Week of December 18, 2017
Americans must decide now how they will respond if Special Counsel Mueller is fired. Allies of the Trump Administration may be trying to spread doubt about the Russia investigation to provide political cover for future presidential pardons. A lawyer for President Trump claimed Robert Mueller obtained transition emails improperly, while a spokesman for Mueller disputed the claims.
It Was Legal for the President to Fire Comey. That’s the Problem.
It’s already too late in the day to trust the executive branch to police itself. That lack of trust should extend to a special prosecutor, independent counsel, or whatever other nice terms you want to call it. At this point, only Congress can credibly investigate the President.
Trump Jr. and Citizens United
In a perfect world, federal election law would distinguish between foreign governments involving themselves in U.S. elections and foreign nationals doing so. Unfortunately, we don't live in that perfect world because of the Supreme Court.
What Will You Do if Mueller is Fired?
If your tendency, like mine, is to deliberate when called to action, my humble suggestion is simply this: Deliberate now. Reflect on what you will do now. Decide now.
Versus Trump: Kavanaugh's Coming, Plus Updates
On this week's episode of Versus Trump, Jason, Charlie, and Easha discuss the retirement of Justice Kennedy and how his presumptive replacement may rule in Versus Trump cases. They then do some quick hits to update a handful of important cases. Listen now!
Versus Trump: The House Versus The FBI
On the latest episode of Versus Trump, Charlie and Easha talk all things Russia investigation (or tangentially Russia investigation)—the Nunes #meh-mo, the fallout therefrom, and whether Trump will be interviewed by the Special Counsel.
Versus Trump: The First Shoe (with guest David Sklansky)
On this week’s episode of Versus Trump, Jason, Charlie, and special guest David Sklansky discuss the first shoe to drop from the Mueller investigation: the indictment of Paul Manafort and Rick Gates, and the guilty plea of George Papadopoulos. Listen now!
President Trump Shouldn't Be Impeached If He Hasn't Committed a Crime
It would be a grave mistake to call for President Trump's impeachment if he hasn't committed a crime. In an era of tit-for-tat partisanship, lowering the impeachment standard to “anything Congress thinks is wrong” is a recipe for dysfunctional government, one in which the House of one party could perpetually threaten to impeach the White House of another.
The Comey Firing in (Comparative) Context
President Trump’s abrupt firing of FBI Director James Comey prompted two immediate questions: Is the firing legal, and is this a constitutional crisis? But are these even the right questions to pose?
Versus Trump: The View From 10,000 Feet (Joshua Matz Speech)
On a new episode of Versus Trump, we bring you a podcast version of the speech that Take Care publisher Joshua Matz gave at Harvard Law School on April 3, 2018. The talk, titled "The Legal Resistance to Trump," describes themes, achievements, and limitations of various lawsuits challenging the Trump Administration and its policies. Listen now!
Versus Trump: Voting Wars and Justice Scalia, with Rick Hasen
On a new episode of Versus Trump, Jason talks to Rick Hasen, a leading election law scholar and purveyor of the Election Law Blog, about what's going on at the voting booth, possible campaign finance law violations by both Trump and Clinton in the 2016 cycle, and Justice Scalia, who is the subject of Rick's new book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption. Listen now!
Versus Trump: 2017 Scorecard
On the first episode of Versus Trump of 2018, Jason and Charlie look back at Versus Trump cases in 2017 and score them as Administration wins, losses, or not-yet-decided. They also look ahead at big issues to come in 2018. Listen now!
As long as the Deputy Attorney General is writing memos making recommendations to the President, it is time to make a recommendation for the appointment of a special counsel.
Yes, Hope is a Sufficient Basis for Obstruction of Justice
I reviewed all federal circuit courts of appeals cases, federal district court cases, and state supreme court cases for obstruction of justice cases involving a defendant’s use of language similar to “I hope” or “I’m hoping.” The results are in line with what we would expect if “hope” verbiage is uncontroversially and generally understood as implying direction.
Nunes Recuses. Sort Of. Now What?
Chairman of the House Permanent Select Committee on Intelligence Devin Nunes will step aside from the committee’s Russia investigation. Sort of. What does this mean -- and what comes next?
Why Trump Can’t (Lawfully) Fire Mueller
There’s been a great deal of noise from some of the President’s confidants over the past 48 hours suggesting that he might (try to) remove Special Counsel Robert Mueller.
Trump, Pardons, and Guilt
By Mark Osler: Pardons by Trump would be a significant departure from what the pardon power has meant. Clemency is for the guilty, not the innocent.
Trump’s Advisors Need to Step Up, Or Step Out
Astounding revelations have erased any reasonable doubt that the President’s shortcomings endanger global security. The time has come to focus on Executive Branch officials who have a duty to guide and, if necessary, constrain Trump. They need to step up, or step out.
Versus Trump: Manafort Sues, and Trump Threatens
On a new episode of Versus Trump, Jason, Easha, and Charlie tackle an unexpected new lawsuit against the Trump Administration by, of all people, Paul Manafort. And they discuss the President's threats to sue the publisher of Fire and Fury for defamation. Listen now!
How the Russian Conspiracy Injured Real, Innocent People
On Thursday, the one year anniversary of Special Counsel Robert Mueller’s appointment, attorneys for Donald Trump will stand up in a court of law to answer questions for the first time related to Russia. But it won’t be in the Mueller investigation.
Why Trump’s Firing of Comey is Terrifying
Our country has a very strong, very important norm of apolitical law enforcement. But this norm, ironically, is enforced mostly by politics, not law—and Trump’s action has risked doing it irreparable damage. Going forward, here's what to watch at the state and federal levels.
Versus Trump: Russia Check-In
On a new episode of Versus Trump, Easha, Jason, and Charlie check back in with the most politically charged of all Versus Trump suits: the Russia investigation. Listen now!
Comey Counterarguments: The Trees, the Forest, and the Firing.
I’ve been reading the arguments that Comey’s written testimony does not show obstruction of justice. Ultimately, these arguments focus on the trees to obscure the forest, and at the end of that forest is the decisive event of obstruction: Trump firing Comey.
Why Impeachment Must Remain A Priority
The appointment of Special Counsel Robert Mueller must not lead progressives to put the thought of impeaching President Trump on a back-burner.
Versus Trump: Versus Whitaker, In-Depth
On this week's episode of Versus Trump, the gang is re-united, and they discuss the Supreme Court motion contending that Matthew Whitaker was not legally appointed as Acting Attorney General. Listen now!
Ten Questions for a New FBI Director
By Allison Murphy: Given President Trump’s documented and acknowledged efforts to interfere with the independence of the FBI, the Senate should presume that could continue under a new FBI Director. It is therefore incumbent upon Senators to ensure that any Trump nominee for FBI Director commits to certain baseline aspects of independence and impartiality before any new nominee is confirmed. Here are 10 questions that require answers.
The Audacity of The President’s "Hope"
Senator Risch asked Jim Comey whether a person has been charged for obstruction of justice or any other criminal offense, where they said or thought they hoped for an outcome. We hope he finds our research instructive.
Why Firing Comey Guts DOJ's Main Defense of the Muslim Ban
Sometimes, when an emissary of the President asks courts to “trust us,” things the President does elsewhere can fatally undermine judicial confidence in the President’s respect for rule of law values. We’ve seen it before and we’re about to see it again.
Versus Trump: Updates, Y'all!
You want updates, so we've got updates! On this week’s episode of Versus Trump, Jason and Easha revisit several important cases and news items that we've previously mentioned so that you have the latest information on them. Listen now!
Versus Trump: Versus Mueller
After two special interview episodes of Versus Trump, Jason and Charlie get back to the usual format and talk about the leaked Dowd memo arguing that President should not be required to sit for an interview with the Special Counsel. Listen now!
Treason and Cyberwarfare
By Carlton Larson: There are two forms of treason recognized under the United States Constitution: (1) levying war against the United States; and (2) adhering to our enemies, giving them aid and comfort. Each raises slightly different issues with respect to cyberwarfare.
Versus Trump: A Two-Level Versus Trump Case
On this week's episode of Versus Trump, Jason and Charlie talk about a case that fits our podcast on two levels: it's a lawsuit against the Trump Administration about grand jury secrecy, and any decision could impact the Mueller investigation, which is the biggest Versus Trump case of them all. Listen now!
Versus Trump: The Collusion Lawsuit
On this week’s episode of Versus Trump, Charlie and Easha discuss a newly-filed lawsuit brought by private plaintiffs who allege that Trump's campaign and Trump advisor Roger Stone conspired with Russians to disclose private information about the plaintiffs. Listen now!
Versus Trump: Secret Subpoenas, A New AG, and Live Listener Feedback
On this week's episode of Versus Trump, Charlie, Jason, and Easha hit three topics: the mysterious case of the subpoena to a foreign corporation that may be related to the Mueller investigation; the nomination of William Barr as Attorney General; and the temporal nature of an emergency, as prompted by live listener feedback. Listen now!
Pence and Obstruction of Justice
Exploring Vice President Pence’s potential criminal jeopardy for conspiring to obstruct justice, aiding the obstruction of justice, and 'misprision of a felony' in concealing the obstruction of justice.
Versus Trump: "What About Congress? + Steven Wu"
On a new episode of Versus Trump, Take Care's podcast, Easha, Jason, and Charlie discuss Congress's role and powers in investigations of the Executive. Then, Jason talks with Steven Wu, a Deputy Solicitor General in the Office of New York Attorney General Eric Schneiderman, about the case against Trump University, the active role of states in recent years, and other issues in which New York is adverse to the President. Listen now!
The One Question Worth Asking
Here's the most important question to ask about indictments, pardons and self-pardons, and obstruction of justice.
Versus Trump: Movin' Right Along
On a new episode of Versus Trump, Jason and Charlie revisit two lawsuits in which the Plaintiffs have recently successfully fought off motions to dismiss and been allowed to proceed. And in a new installment of "Sanctions Corner with Uncle Charlie," Charlie answers questions about the FBI raid on the office of Trump lawyer Michael Cohen. Listen now!
Why Hasn’t Rod Rosenstein Recused Himself From the Russiagate Probe?
Deputy Attorney General Rod Rosenstein should recuse himself from the probe into the Trump campaign’s ties to Russia and the President’s apparent attempt to obstruct the FBI’s inquiry. Rosenstein himself played a key role in the events at the center of the controversy, and his continued involvement casts a shadow over the ongoing investigation.
How Might Congress Reinforce NATO?
President Trump's overseas trip has cast doubt on longstanding consensus features of U.S. foreign policy, particularly our commitment to NATO. Here are some ways Congress might respond.
Russia and 'Enemies' under the Treason Clause
By Carlton Larson: If we use “treason” in a loose, rhetorical sense, it is plausible to claim that Trump, Jr., Kushner, Manafort and others committed treason by knowingly meeting with a Russian operative for the purpose of obtaining dirt on Hillary Clinton. But the argument fails as a legal matter.
Remarks at the Boston March for Truth
"Whether the structural safeguards the Framers inscribed in the Constitution are up to the task of constraining Trump’s authoritarian tendencies are anybody’s guess. In the end, only the force of public opinion, especially as expressed in elections, can save American democracy."
Versus Trump: The Unique Manafort Plea
On this week's episode of Versus Trump, Jason and Charlie talk about pardons, Double Jeopardy, forfeiture, and the Manafort guilty plea. They also weigh in on the Kavanaugh developments and what would happen if Rosenstein were fired. Listen now!
What If There’s a Fake Tape?
Many are speculating about whether President Trump recorded his conversations with fired FBI Director Jim Comey, and Wikileaks has even offered a reward for any Trump-Comey recordings. But new technology allows creation of fake recordings with real people's voices. Now is a good time to start thinking about this technology's implications for our democracy and legal system.
First Tragedy, Now Farce
Those who forget history are indeed doomed to repeat it. But when history repeats, it often shifts in the repetition: first acts come as tragedy and then return as farce. By many measures, Nixon was a tragic figure. Trump, by contrast, is pure farce. And unlike tragedies, farces don’t end with a flash of recognition—a moment of self-awareness like King Lear’s on the heath. Farces just keep going until someone cries "enough!"
Updates | The Week of June 12, 2017
Attorney General Jeff Sessions testified before the Senate Intelligence Committee. Special counsel Robert Mueller is recruiting a team of star lawyers. President Trump's lawyer Marc Kasowitz will reportedly file a complaint over former FBI Director James Comey's "leaked" memo.
Updates | The Week of July 31, 2017
Special Counsel Robert Mueller empaneled a grand jury in relation to the Russia probe. Two sets of Senators introduced legislation to limit the President's ability to fire Mueller. Vladimir Putin expelled 755 American diplomats and staff.
Updates | The Week of September 11, 2017
Trump's decision to end DACA spurs a flurry of legal challenges; his election fraud commission gets into more trouble; and the Supreme Court stays the Ninth Circuit's latest trvel ban ruling.
Updates | The Week of November 20, 2017
Special Counsel Robert Mueller plans to review documents regarding AG Sessions recusal decision, as well as interview congressional aides, foreign intermediaries, and other campaign officials. Russian interference raises difficult questions regarding whether the meddling was actually illegal and what rights foreign actors have in American elections.
Updates | The Week of April 17, 2017
Devin Nunes has been replaced on the House Intelligence Committee. More information comes out regarding Russia's interference in the 2016 election, including its relationship with Carter Page and its efforts to undermine American confidence in democracy.
Updates | The Week of May 8, 2017
Federal prosecutors issued grand jury subpoenas seeking records of former National Security Adviser Michael Flynn. Former Acting Attorney General Sally Yates testified that she warned the Trump Administration that Flynn could be blackmailed by Russia.
Updates | The Week of October 16
Congressional investigators are focusing efforts on connections between Russia and social media in the lead up to the 2016 election. President George W. Bush gave a speech, seen as criticizing President Trump, warning of the effects of Russia's intervention.
Updates | The Week of September 4, 2017
The President orders an end to DACA and has Attorney General Jeff Sessions announce the change; Trump Jr.'s June 2016 meeting with a Russian lawyer undergoes more scrutiny; Trump's 16 nominations to the federal judiciary spur challenges and concern.
Updates | The Week of July 24, 2017
Jared Kushner met privately with congressional committees to answer questions about his interactions with Russian officials, as both the Senate and House approved a bill expanding sanctions on Russia and limiting the president's ability to rescind them.
Updates | The Week of July 10, 2017
The New York Times revealed that Donald Trump, Jr., Jared Kushner, and Paul Manafort met with a Russian government-linked attorney during the campaign who promised them negative material on Hillary Clinton. The revelations sparked substantial commentary regarding liability under criminal or campaign finance laws.
Updates | The Week of May 1, 2017
The FBI's investigation of Russian Interference in the 2016 Election continues and Director James Comey spoke out on his pre-election disclosures. Michael Flynn's Russian connections continue to haunt the White House.
Updates | The Week of April 3, 2017
President Trump levelled accusations against the Obama administration of improper surveillance activity, claiming that former National Security Adviser Susan E. Rice committed a crime by seeking to "unmask" the identities of Trump associates whose communications were intercepted incidentally by U.S. intelligence agencies. Chairman of the House Permanent Select Committee on Intelligence Devin Nunes announced that he will step aside from the committee’s Russia investigation.
Updates | The Week of October 30, 2017
Paul Manafort, former chairman of the Trump campaign, and his colleague Rick Gates, were indicted by Special Counsel Robert Mueller. George Papadopoulos, a foreign policy advisor to the Trump campaign, also pleaded guilty on charges of making false statements to the FBI regarding contacts with Russian nationals.
Updates | The Week of October 23, 2017
President Trump pledged more than $400,000 of his own money to cover his aides' legal costs in the Russia probes. Reports surfaced this week that the Steele Dossier was financed in part by the Clinton campaign and the DNC. A bipartisan bill would impose more stringent political advertising requirements online.
Updates | The Week of November 13, 2017
The House passes its version of a tax bill that would dramatically alter the tax code as President Trump faces trouble over the diversity of his federal judicial nominees and the fitness of his appointees to office, some of whom have alleged conflicts of interest.
Updates | The Week of September 25, 2017
Investigations continue into the role of social media platforms in Russia's attempts to influence the presidential election. President Trump called the numerous Russia investigations a "hoax."
Updates | The Week of September 18, 2017
Facebook turned over extensive records of Russia-linked advertisements to both congressional investigators and Special Counsel Robert Mueller's team. Mueller is seeking documents from the White House, and his team is rigorously investigating Paul Manafort's past. President Trump's lawyers clashed over how best to manage the Russia inquiries.
Updates | The Week of July 17, 2017
Special Counsel Mueller's probe has expanded and numerous previously undisclosed meetings between members of the Trump campaign and Russians have come to light.
Update | The Week of November 27, 2017
Former National Security Advisor Michael Flynn pleaded guilty on Friday to lying to the FBI about conversations with the Russian Ambassador. Jared Kushner met with Special Counsel Robert Mueller to discuss possible collusion between the Trump campaign and Russia during the 2016 election.
Updates | The Week of August 28, 2017
Trump's pardon of former sheriff Joe Arpaio sets off a firestorm; another battle over Trump's immigration ban is heard by the Ninth Circuit; and investigators and journalists turn up more evidence of Trump's business dealings with Russia.
Updates | The Week of April 10, 2017
The FBI received a FISA warrant to monitor a Trump foreign policy advisor during the 2016 campaign, and British intelligence agencies intercepted communications between Russian officials and Trump associates. President Trump's new aggressive posture towards Russia raises questions.
Updates | The Week of May 29, 2017
The special counsel investigation got off to a running start this week. Congressional investigations continued with the issuing of multiple subpoenas. Attention turned to President Trump’s son-in-law and senior advisor Jared Kushner, while questions continued to swirl around Attorney General Jeff Sessions’s campaign contacts with Russian officials. Vladimir Putin hinted at Russian interference in the election.
Updates | The Week of June 19, 2017
Rumors abound about whether the President will fire Special Counsel Robert Mueller and if Deputy Attorney General Rosenstein will recuse himself from the Russia Investigation. Members of the presidential cabinet retained private legal counsel, but the President continues to contradict his own lawyers.
Updates | The Week of October 2, 2017
Leaked emails revealed that Trump campaign manager Paul Manafort attempted to use his position to solicit money from a Russian oligarch with ties to the Russian government. Special Counsel Mueller asked his team to research the boundaries of the pardon power. Facebook turned over thousands of Russian ad buys from the 2016 election.
Updates | The Week of August 14, 2017
Special Counsel Mueller may make grand jury findings public, but there is still debate over whether the president can be indicted and the timing of any criminal sanctions.
Updates | The Week of March 20, 2017
Facing mounting evidence of collusion between the Trump Campaign and Russia, including testimony by FBI Director James Comey before the House Intelligence Committee, President Trump's allies sought to deflect attention by denouncing leaks and the intelligence community.
The Story Thus Far: National Security
From Guantanamo Bay to wiretapping to foreign intrigue, these have been a busy two months for the Trump Administration. Here are some useful analyses of the story thus far.
Updates | The Week of April 24, 2017
This week, the Pentagon's top watchdog initiated an investigation into whether Michael Flynn failed to obtain proper approval to receive money from Russian and Turkish groups. The House Intelligence Committee will continue its Russia investigation with new leadership and an updated witness list.
Updates | The Week of August 21, 2017
This week saw developments in Congressional investigations into Russian interference, with Congressional testimony from the founder of the research firm behind the controversial dossier on President Trump. Meanwhile, Special Counsel Mueller continued to examine the meeting between Donald Trump, Jr. and individuals associated with the Russian government.
Updates | The Week of March 27, 2017
Former Trump National Security Advisor Michael Flynn has offered to provide testimony to the congressional investigations into Russia, in exchange for immunity. The House Intelligence Committee's investigation into potential collusion between the Trump Campaign and Russia is mired in controversy.