Impeachment

Versus Trump: The End...Or The Beginning?

1/23/21  //  Commentary

Well, this is it for Versus Trump, folks. Trump ain't President anymore! He doesn't even have a twitter account. What a way to end. Charlie and Jason bring back Easha to discuss the short and long term impact of January insurrection. They then reflect on the big picture. After all, we've been podcasting about legal cases involving Trump for almost four years. What in the world happened? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Versus Trump: The Aftermath + Interview with Joshua Matz

1/11/21  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the madness of last week and what might happen next for impeachment, cirminal charges against Trump, and more. They are then joined by Take Care publisher Joshua Matz to discuss his views on impeachment and Trump's legal legacy. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Versus Trump: The Electoral College Votes

12/26/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the vote of the Electoral College and the Supreme Court's unanimous rejection of Texas's longshot bid to overturn the result of the election. Happy holidays!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP

Updates | The Week of January 15, 2018

1/14/18  //  Daily Update

Joe Arpaio, the ex-sheriff pardoned by President Trump, announces a Senate run in Arizona. Democratic members of Congress are concerned that the Trump administration may pressure the IRS to produce politically advantageous but substantively problematic withholding tables.

Updates | The Week of January 15, 2018

1/14/18  //  Daily Update

The White House struggles to quell questions about President Trump's mental fitness.

Updates | The Week of December 18, 2017

12/24/17  //  Daily Update

Following the logic and example of Clinton v. Jones, sitting presidents should also be subject to suit in state courts. President Trump took aim at the FBI on Friday, calling its behavior "disgraceful" just before he appeared at its training facility to praise the nation's police officers.

Updates | The Week of December 18, 2017

12/24/17  //  Daily Update

Following the logic and example of Clinton v. Jones, sitting presidents should also be subject to suit in state courts. If President Trump decides to fire Special Counsel Robert Mueller, it might result in impeachment. Commentators disagreed about the legal status of an obstruction of justice charge against the President.

Updates | The Week of December 18, 2017

12/24/17  //  Daily Update

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.

Improper Commands from President Trump's Employees?

3/16/17  //  Commentary

Key White House personnel might be violating important limits on their lawful authority.

Nikolas Bowie

Harvard Law School

It Was Legal for the President to Fire Comey. That’s the Problem.

5/10/17  //  Commentary

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.

Nikolas Bowie

Harvard Law School

Congressional Power to Immunize the President Against State Court Litigation

3/26/18  //  In-Depth Analysis

Thoughts on a thus-far-hypothetical question

Michael C. Dorf

Cornell Law School

Uncertainty Has Consequences: Health Care Reform Edition

3/22/17  //  Commentary

Uncertainty created by presidential action can be destructive. That is painfully clear in the healthcare field, where President Trump's vague, confusing, and ever-changing policies are already causing harm.

Versus Trump: The FOIA Spectacular!

9/21/17  //  Commentary

On this week’s episode of Versus Trump, Easha and Charlie discuss all things FOIA—that is, the Freedom of Information Act. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Versus Trump: A Real Impeachment Episode

10/24/19  //  Commentary

On this week’s Versus Trump, Jason and Charlie really talk impeachment. They answer two questions that have been debated in the media. First, does the full House need to vote to formally start impeachment proceedings? Second, does the President have a right, at this point in the investigation, to have his lawyers in the room to cross-examine witnesses or present opposing views? Listen now for the answers!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Barr’s Remarks Are Reassuring but Serious Questions Remain

1/15/19  //  Latest Developments

Barr's carefully-worded promise not to interfere with Mueller is welcome. But it also leaves room for Barr to impede significant parts of Mueller's work.

Andrew Coan

University of Arizona

A Memorandum of Misunderstanding

7/22/19  //  Commentary

Mueller didn't indict Trump because DOJ policy prohibited him from doing so. That same policy points to the need for impeachment.

GSA, Trump International Hotel, and the Constitution

3/24/17  //  Quick Reactions

Yesterday, the General Services Agency surprised experts by declaring that the Trump Hotel in D.C. is not in violation of its lease. But the GSA's decision itself might well violate the Domestic Emoluments Clause.

Brianne J. Gorod

Constitutional Accountability Center

The Justice Department’s New Brief in Texas v. United States

7/4/19  //  Commentary

In a welcome surprise, the Trump administration has urged the Fifth Circuit not to dismiss the appeal of the decision invalidating the Affordable Care Act.

Nick Bagley

University of Michigan Law School

Versus Trump: Uncle Charlie's Comity Hour

10/10/19  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the major recent decision dismissing the President's attempt to block his accounting firm from turning over his tax returns to the Manhattan DA. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump Jr. and Citizens United

7/13/17  //  Commentary

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.

Michael C. Dorf

Cornell Law School

Versus Trump: Trump's No Good, Very Bad Day

10/17/19  //  Uncategorized

On this week’s Versus Trump, Jason and Easha break down President Trump's bad day in court on Friday, October 11. On that day, he lost three different lawsuits: one on the "public charge" immigration rule, one on Congress's subpoena power, and one on border wall funding. Listen now!

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Will Judge Brett Kavanaugh Respect the Whole Constitution?

8/31/18  //  Commentary

A Justice of the Supreme Court must be faithful to the whole Constitution. He or she cannot pick and choose which protections to enforce based on his or her own predilections

Versus Trump: We're Famous! And There Are Articles

12/12/19  //  Commentary

On this week’s Versus Trump, Jason, Charlie, and Easha respond to Rep. Matt Gaetz's shoutout to this podcast during the Judiciary Committee's impeachment hearings. They then discuss their reactions to the Democrats' strategy with their public hearings and articles of impeachment. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

What Will You Do if Mueller is Fired?

12/23/17  //  Commentary

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.

Andrew Crespo

Harvard Law School

Versus Trump: Kavanaugh's Coming, Plus Updates

7/12/18  //  Uncategorized

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!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Judges of Christmas Future

12/21/17  //  Commentary

On this week’s Versus Trump holiday spectacular, it's all judges, all the time. Charlie, Jason, and Easha take a closer look at a number of the President's judicial nominees—confirmed, pending, and withdrawn—to examine what might happen to Versus Trump cases in years to come. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Yes, the President Can Obstruct Justice through Official Acts

12/12/17  //  In-Depth Analysis

If one branch — one person — can monopolize law enforcement with impunity, it is hard to see how their interpretation takes checks and balances, constitutionalism, and limited government seriously.

Jed Shugerman

Fordham Law School

Yes, The President Can Constitutionally Fire Comey

5/9/17  //  Quick Reactions

According to breaking news reports, President Trump has fired FBI director James Comey. It's within his power to do that.

Santa Clara v. Trump and the Perils of the Gestural Presidency

4/26/17  //  Quick Reactions

If we had a president less concerned with posing as a man of action and more as the fiduciary taking care that the laws be faithfully executed, he would probably do better in court. I don't foresee him changing course.

Peter M. Shane

Ohio State, Moritz College of Law

Taking Pandemic and Military Powers Away from the President

3/9/20  //  Commentary

The current coronavirus epidemic shows why it's often a good idea to vest specific executive authority in officers other than the President.

Zachary Price

U.C. Hastings College of the Law

Versus Trump: I Want Out!

7/13/17  //  Commentary

On this week’s episode of Versus Trump, Charlie and Easha discuss the cases against Trump University, the global settlement that was reached, and whether the pending challenge by a lone objector can—or should—alter the result. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

McKayla Maroney Is Not Impressed (With DOJ's Brief in the Fourth Circuit)

3/27/17  //  In-Depth Analysis

The Department of Justice has filed a brief in the Fourth Circuit defending President Trump's revised entry ban. This is not an impressive brief: it is rife with misstatements of fact and incorrect legal arguments.

Leah Litman

Michigan Law School

The President’s Twitter Account & the First Amendment

6/12/17  //  In-Depth Analysis

There are strong First Amendment arguments against President Trump blocking Twitter followers due to disagreement with their views.

Amanda Shanor

The Wharton School

The Under-Inclusive Theory Of Discrimination (It's Not Going To Happen)

5/8/17  //  In-Depth Analysis

The Trump administration has repeatedly (and incorrectly) argued that a policy does not constitute discrimination unless the policy discriminates against all members of a particular group.

Leah Litman

Michigan Law School

Versus Trump: States vs. Conscience Rule

11/14/19  //  Uncategorized

On this week’s Versus Trump, Jason, Charlie, and Easha discuss a court's opinion vacating the Trump Administration's so-called "conscience rule." This rule would have broadly permitted many employees in the healthcare sector from in any way participating in procedures with which they have religious or moral disagreements—even in emergencies. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

A Powerful Statement by the California Chief Justice

3/20/17  //  Quick Reactions

In urging the Attorney General to cease using state courthouses as bait for undocumented migrants, the California Chief Justice displayed admirable bravery and commitment to the rule of law.

Laurence H. Tribe

Harvard Law School

American Democracy One Year into the Trump Administration

1/18/18  //  In-Depth Analysis

We can no longer take America’s democracy for granted

Versus Trump: The House Versus The FBI

2/8/18  //  Commentary

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.

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

A Tainting of Judicial Independence

10/8/18  //  In-Depth Analysis

Kavanaugh's potential perjury means that his seat on the Court may depend on continuing Republican control in Congress. This is plainly inconsistent with any account of judicial independence.

Tom Ginsburg

University of Chicago Law School

Aziz Huq

University of Chicago Law School

It’s Time To Pay Attention To Whom Trump Is Putting in Charge of Federal Agencies—And How He’s Doing It

3/17/17  //  Commentary

President Trump isn't nominating people to many positions requiring Senate confirmation. Instead, he's relying on employees who haven't been vetted through the advice & consent process. That's not okay.

Brianne J. Gorod

Constitutional Accountability Center

Finding a Floor for Inter-branch Conflict

11/2/18  //  In-Depth Analysis

Intensifying political conflicts are steadily shredding the buffers around our constitutional architecture. How should courts respond?

Zachary Price

U.C. Hastings College of the Law

The 'All of the Above' Approach to Justice Kavanaugh

10/7/18  //  In-Depth Analysis

Do progressives give up on the Court? Declare war on it? Pretend nothing has changed? Each of us will have to decide for ourselves. There is no 'right way' to respond to our new reality.

Michael C. Dorf

Cornell Law School

It's Over. What's Next? Just Recounts, Shenanigans, and Hail Marys

11/6/20  //  Commentary

I catalog the legal attacks to come from the Trump team. None of his strategies have any chance of changing the outcome.

Jason Harrow

Gerstein Harrow LLP

Versus Trump: How Bad Is It?

9/6/18  //  Commentary

On this week's episode of Versus Trump, Jason and Charlie ask the question that so many of us ask frequently: how bad is the Trump Administration? Is it better or worse than we should have expected back on election night in 2016? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

The Comey Affair And Evidence Of Motive

5/12/17  //  In-Depth Analysis

The Comey affair underscores that decisionmakers must look beyond the administration’s “official” documents to determine the administration’s motives.

Leah Litman

Michigan Law School

Barr Has Broken His Promises on Avoiding Personal and Partisan Politics at DOJ

10/11/19  //  Commentary

Barr has broken the first rule for any attorney general: the rule of sound judgment and impartial apolitical administration of justice

Elliot Mincberg

People For the American Way

There’s Unquestionably Standing in the CREW Case. Here’s Why.

4/19/17  //  In-Depth Analysis

The additional plaintiffs in the CREW case unquestionably have standing.

Jonathan Taylor

Gupta Wessler PLLC

Rights, Powers, Duties, and Responsibilities: A Comment on the Language of Presidential Compliance with the Law

5/18/17  //  Commentary

No, the President cannot act for any reason. If President Trump fired Comey in an attempt to obstruct an investigation into the Russian connection, that too would constitute an impeachable offense and a federal crime.

Ira C. Lupu

George Washington University Law School

Waivers of Executive Privilege Can Be Informal

6/6/17  //  Commentary

Even Had He Wanted to Assert Executive Privilege, Trump May Have Waived Any Such Claim Over His Conversations With Jim Comey By Blabbing and Tweeting About Them

Leah Litman

Michigan Law School

Laurence H. Tribe

Harvard Law School

Versus Trump: Stop The Wall!

2/21/19  //  Uncategorized

On this week's episode of Versus Trump, Charlie, Jason, and Easha discuss the early lawsuits that seek to stop the new sections of border wall that President Trump authorized through executive action. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Can You Hear The Whistle Blowing?

9/25/19  //  In-Depth Analysis

On this week's episode of Versus Trump, Charlie and Jason discuss the legal stakes of the fight over what Trump said to the President of Ukraine and the related whistleblower complaint. A lot happened between when they recorded the episode and when it's being posted, but we still think it's a useful primer on the legal questions in this dispute. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Method or Manner?

12/19/19  //  Commentary

On this week’s Versus Trump, Easha and Charlie discuss the Trump Administration’s efforts to resume federal executions after a decade-and-a-half hiatus. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Defending our Democracy in the Age of Trump

10/23/18  //  In-Depth Analysis

By Andrew Boyle: Whether we proceed down the path of erosion, or whether we do the work to avert that path, is dependent on us

Take Care

Impeachment: Partisan Warfare or Defending the Constitutional Order?

6/19/18  //  In-Depth Analysis

We must be able to recognize harm to the constitutional order on a bipartisan basis for impeachment to serve its proper constitutional function. But how often is that the case?

Gillian Metzger

Columbia Law School

The Vicious Entrenchment Circle: Thoughts on a Lifetime with a Republican-Controlled Court

10/7/18  //  In-Depth Analysis

By the time the Supreme Court’s current Term ends in June, it will have been more than 50 years of GOP-appointed control, even though Democrats have won a majority or plurality of the popular vote in seven of the twelve elections in that period.

Marty Lederman

Georgetown Law

Stopping Conflicts of Interest in Federal Investigations: The Next Legislative Priority

12/21/18  //  In-Depth Analysis

Congress could take action to deter this type of pardon and accelerate the political backlash against pardons used to undermine investigations and the rule of law

Versus Trump: The First Shoe (with guest David Sklansky)

11/2/17  //  Uncategorized

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!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

The Russia Sanctions Bill Is Unconstitutional – and Unnecessarily So

7/26/17  //  Commentary

The bill to impose sanctions on Russia for meddling in the 2016 election is unconstitutional. And unnecessarily so.

Daniel Hemel

University of Chicago Law School

Versus Trump: Texas & Trump Versus The ACA

7/5/18  //  Commentary

This week, Jason, Charlie, and Easha are back with a regular episode to discuss a stunning recent development in Texas v. United States, a case by Texas seeking to invalidate the Affordable Care Act (Obamacare). Last month, the Trump Administration not only agreed with Texas that the individual mandate is unconstitutional, but it also told the district court that the requirement to cover everyone with a pre-existing condition on the same terms as healthy folks should be struck down as well. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Kavanaugh, the Federal Marriage Amendment, and the Cost of an Incomplete Record

8/29/18  //  Commentary

To those outside of Washington, this battle might appear to be a dry dispute about documents. Nothing could be further from the truth.

Versus Trump: Versus DeVos (Re-Air)

9/7/17  //  Commentary

On this week’s episode of Versus Trump, as summer ends and a new school begins, we re-air Jason's interview with Toby Merrill, the director of the Project on Predatory Student Lending at Harvard Law School, about several lawsuits she's involved with against newly-confirmed Secretary of Education Betsy DeVos. We'll be back soon with new episodes.

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Trump’s Newest Attack on the Rule of the Law

12/4/17  //  Commentary

Trump isn’t just reckless, and he doesn’t just seem to think he is above the law. He has an authoritarian’s hostility to the very idea of a principled inquiry into the truth.

David Sklansky

Stanford Law School

President Trump Shouldn't Be Impeached If He Hasn't Committed a Crime

5/22/17  //  Commentary

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.

Nikolas Bowie

Harvard Law School

H.R. 1: Forging a Path for Pro-Democracy Reform

12/24/18  //  In-Depth Analysis

Stephen Spaulding: The pent-up demand for pro-democracy legislation is palpable. Next year, the House can forge a path forward. And it will do so with H.R. 1.

Take Care

The Comey Firing in (Comparative) Context

5/11/17  //  In-Depth Analysis

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?

Aziz Huq

University of Chicago Law School

The Comey Hearing: Lots of Big News

6/8/17  //  Quick Reactions

No GOP attack dogs; Lynch, Sessions, Rosenstein in trouble; McCain’s health

Jed Shugerman

Fordham Law School

Against Type Briefs

6/16/17  //  Commentary

Filing an amicus brief joined by Republicans critical of the Trump Administration and with some claim of expert knowledge made by these Republicans related to the constitutional issues can be a powerful tactic to use in courts.

David Fontana

George Washington University Law School

Versus Trump: The View From 10,000 Feet (Joshua Matz Speech)

4/19/18  //  Commentary

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!

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Voting Wars and Justice Scalia, with Rick Hasen

3/29/18  //  In-Depth Analysis

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!

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Versus Whitaker (JH solo)

11/15/18  //  Uncategorized

On this week's episode of Versus Trump, Jason has a solo episode where he talks about a motion by Maryland contending that Matthew Whitaker was not legally appointed as Acting Attorney General. Listen now!

Jason Harrow

Gerstein Harrow LLP

Versus Trump: The Shutdown Special

1/10/19  //  Uncategorized

On this week's episode of Versus Trump, Charlie, Jason, and Easha bring you a shutdown special, where they talk about the President's emergency powers as well as a lawsuit contending the government is violating federal labor law by not paying workers on time. Listen now!

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Trump Versus Trump's Banks

5/9/19  //  Uncategorized

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!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Easha Anand

San Francisco

Killing The Dream

9/5/17  //  In-Depth Analysis

Donald Trump's apparent reasons for (apparently) rescinding DACA make little sense.

Leah Litman

Michigan Law School

Versus Trump: Ask Charlie About The Census

1/25/19  //  In-Depth Analysis

On this week's episode of Versus Trump, Jason asks Charlie to take us through the mammothly long, massively important opinion from the Southern District of New York invalidating the proposed citizenship question on the 2020 Census. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

An Update on DACA

3/31/17  //  Latest Developments

The President's words indicate he is open to honoring DACA (the Deferred Action for Childhood Arrivals program). But his actions (and inactions) suggest otherwise.

Leah Litman

Michigan Law School

Trump’s War On the Courts is a War on Democracy Itself

2/28/18  //  Commentary

Efforts to purge or delegitimize courts following rulings against government officials or their political party is a hallmark authoritarian move.

Beyond Resistance: A Guide for Local Governments to Protect Their Communities

4/18/19  //  Latest Developments

By Jill E. Habig and Joanna Pearl: Here's how cities and states can protect their residents' rights

Take Care

Discretion and the Impeachment Power

6/12/18  //  Uncategorized

There are many ways in which this presidency is unlike so many that preceded it—and those differences are relevant to decisions about impeachment

Brianne J. Gorod

Constitutional Accountability Center

Versus Trump: 2017 Scorecard

1/4/18  //  Uncategorized

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!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump and the Decline of the American Middle

4/14/17  //  Commentary

Do our constitutional arrangements predict just the kind of political failure that materialized in November 2016? If so, does that mean that the long-term remedy for that failure lies in constitutional reform? Does our constitutional fate determine our political fate?

Jamal Greene

Columbia Law School

An Inside Job? The Uneasy Case for Outside Special Prosecutors

1/15/19  //  In-Depth Analysis

Should special prosecutors come from within the administration or outside it? This is a harder question than you might think.

Daniel Hemel

University of Chicago Law School

Red State Legislatures Cannot Cancel The Upcoming Presidential Election

3/17/20  //  In-Depth Analysis

Some are worrying about Republican-controlled legislatures eliminating the right to vote in a presidential election and just appointing Trump-supporting electors themselves. Don't worry: not only is the scenario unlikely, it couldn't legally happen.

Jason Harrow

Gerstein Harrow LLP

The Comey Firing - Legal Analyses From Around the Web

5/15/17  //  Latest Developments

A day-by-day guide to legal analysis of the many questions raised by Trump's abrupt firing of FBI Director James Comey.

Take Care

One More Reason President Trump Shouldn’t Fire Special Counsel Mueller

5/21/18  //  Commentary

If President Trump thinks that firing Mueller would automatically bring his year-long investigation to an end, he ought to think again.

Brianne J. Gorod

Constitutional Accountability Center

Fake Transparency

5/9/17  //  Quick Reactions

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.

Neil J. Kinkopf

George State University College of Law

The Court of Public Opinion

1/16/19  //  In-Depth Analysis

What does it mean to say that special prosecutors are ultimately answerable to 'the American people'?

Aziz Huq

University of Chicago Law School

A Note on the Trea Turner Interference Call

11/4/19  //  Commentary

Sometimes, big calls in sports help illuminate key issues in the law and the role of judges. This year's World Series had one such major moment.

Why HHS Can't Keep Cutting Corners As It Attempts To Undo Non-Discrimination Protections

3/30/20  //  In-Depth Analysis

HHS has recently tried to essentially repeal an important rule that prevents the Department from discriminating across its many programs. But, as contributor Harper Jean Tobin explains, its rule making is both substantively and procedurally illegal.

Harper Jean Tobin

National Center for Transgender Equality

What if Trump Fires Mueller or Starts Mass Pardons? It Would Backfire.

7/21/17  //  Commentary

There are more and more signals that Trump is exploring firing Mueller and pardoning anyone and everyone in his circle. So what would happen next? Those moves would backfire spectacularly.

Jed Shugerman

Fordham Law School

Trump's Dangerous Call to Open Criminal Investigations into Democrats

10/30/17  //  Quick Reactions

As a nation, we now find ourselves in uncharted territory.

Eli Savit

University of Michigan Law School

A Free Press Requires a Strong and Independent Judiciary

10/20/17  //  In-Depth Analysis

A free press and a strong judiciary are among the best bulwarks against authoritarianism, and we need one to have the other.

Nancy Leong

Sturm College of Law

Yes, Hope is a Sufficient Basis for Obstruction of Justice

6/13/17  //  Commentary

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.

Versus Trump: Straight to the Supremes (We're Back!)

8/29/19  //  Commentary

This week on Versus Trump, Jason and Charlie are back from a hiatus, and they discuss why the Trump Administration has been going to straight to the Supreme Court with emergency requests so frequently. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

The Plaintiffs in CREW v. Trump Deserve To Have Their Claims Heard

8/14/17  //  In-Depth Analysis

Our amicus brief explains why the Justice Department’s jurisdictional arguments miss the mark

Daniel Hemel

University of Chicago Law School

Leah Litman

Michigan Law School

Nunes Recuses. Sort Of. Now What?

4/7/17  //  Quick Reactions

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?

Ian Samuel

Harvard Law School

Two Things We Can Do Now, In Case A Candidate Dies

10/7/20  //  In-Depth Analysis

What would happen if a presidential candidate were to die close to an election?

Jason Harrow

Gerstein Harrow LLP

The President's Statements On The London Attacks

6/5/17  //  Commentary

The President's statements on the London attacks reveal how the President thinks about his entry ban, and also what he might do if there is ever an attack on the United States.

Leah Litman

Michigan Law School

Helen Klein Murillo

Harvard Law School '17

Inside the Doomed Union Refund Lawsuits, Part II

7/24/18  //  Uncategorized

Shortly after I posted my initial take on the headline-grabbing set of class action lawsuits seeking millions of dollars in refunds from public sector unions after Janus, two interesting things happened.

Aaron Tang

UC Davis School of Law

The Standard Fare of Judges: What Happens When the Judiciary Does What It Always Does

3/28/17  //  Commentary

The Muslim Ban litigation does not involve a "revolt of the judges." As proven by a survey of major and minor cases from the legal canon, this litigation involves only the standard fare of judging.

Daniel Deacon

U.C. Irvine School of Law

Leah Litman

Michigan Law School

Trump And His Administration Are A Nightmare For The Dreamers

5/4/17  //  Commentary

ICE Continues To Undermine DACA Despite Trump’s Protestations To the Contrary

Leah Litman

Michigan Law School

How To Decide A Very Close Election For Presidential Electors: Part 1

10/21/20  //  In-Depth Analysis

Could a partial result from the very first contested presidential election provide us a path to handling a close election in 2020? Probably not—but the lessons from 1796 are revealing. This is Part 1 in a multi-part series that will help understand how close elections for presidential elector have been decided, good or bad, and how they should be decided this year.

Jason Harrow

Gerstein Harrow LLP

Versus Trump: The Contraception Mandate Challenges

10/12/17  //  Commentary

On this week’s episode of Versus Trump, Easha and Jason discuss the Administration's drastic expansion of the number of companies that may now offer health insurance that does not cover birth control, as well as several lawsuits that were immediately filed challenging these new regulations. Listen now!

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Why Trump Can’t (Lawfully) Fire Mueller

6/13/17  //  Commentary

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.

Marty Lederman

Georgetown Law

The Constitution's Role in Defending Democracy

10/31/18  //  In-Depth Analysis

In defending our democratic system, 'We the People' can look to the Constitution itself as a beacon that defines the rights we are owed.

Corey Brettschneider

Brown University

My Speech at Harvard Law School’s 2019 Class Day

6/12/19  //  Latest Developments

By Roberta Kaplan: Becoming a great lawyer requires that you be courageous, press boundaries wherever you are, and insist that things can always change for the better, especially now.

Take Care

Louisiana’s Ongoing Ethical Crisis: Why SCOTUS Should Weigh In On The Case Of Rogers Lacaze

8/22/18  //  Commentary

In the coming weeks, the U.S. Supreme Court will consider whether to grant Lacaze v. Louisiana, a case raising profound questions for the constitutional standards governing judicial recusal where a judge has --but does not even disclose--concrete connections to the case being tried before him.

Take Care

Was Impeachment Good Or Bad? The "Good" Side

2/4/20  //  Commentary

I'm not sure whether the impeachment and expected acquittal of Donald Trump was a good or bad thing. This series presents both sides. In this post, I make the "good idea" case.

Jason Harrow

Gerstein Harrow LLP

Arguments About Nationwide Injunctions

7/16/18  //  In-Depth Analysis

By Zachary D. Clopton: The question whether a nationwide injunction should issue is case-specific and policy-inflected.

Take Care

Trump, Pardons, and Guilt

7/25/17  //  In-Depth Analysis

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.

Take Care

Versus Trump: Bet You Can't Untie This Knot

6/13/19  //  Uncategorized

This week on Versus Trump, Jason, Charlie, and Easha discuss a decision undoing the Trump Administration's new rules that would ban much online gambling. The opinion also leads them into a discussion of the powers of district judges, the Office of Legal Counsel, the Attorney General, and more. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Mueller-ing Things Over

3/28/19  //  Commentary

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!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

The Self-Pardon Question: What Comes Next?

7/27/17  //  Commentary

By Jeffrey Crouch: Might Congress amend the Constitution to take the self-pardon question off the table permanently?

Take Care

Versus Trump: Can Trump Steal The Election?

10/6/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss whether Trump can really "steal" the election, as some have started to worry about. They discuss Jason's piece here on the topic. Plus, they say goodbye to Justice Ginsburg. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

The Pardon Power is a Bug, Not a Feature

11/1/17  //  Commentary

The pardon power is a kind of booby trap that threatens to explode our system of constitutional accountability.

Michael C. Dorf

Cornell Law School

Can We — And The Press — Maybe Take A Breath On The Whole Stolen Election Thing?

9/25/20  //  Commentary

It seems like a stolen election is all anyone can talk about these days. But it's very unlikely.

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Enforce Your Own Subpoena!

3/5/20  //  Commentary

On this week’s Versus Trump, Charlie and Jason discuss the D.C. Circuit's recent opinion holding that courts have no power to enforce subpoenas issued by the House. They discuss the opinion's rationale, whether it makes sense, and whether the House might—or should—take the court up on its offer to start jailing Trump Administration officials in their own brig. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

The Arpaio Pardon Through the Lens of Trump Exceptionalism

8/26/17  //  Commentary

This pardon by this most abnormal president threatens the rule of law

Michael C. Dorf

Cornell Law School

Executive Privilege(s) and the Testimony of James Comey

6/9/17  //  Commentary

The various references to executive privilege and unauthorized disclosures must be analyzed more closely.

Peter M. Shane

Ohio State, Moritz College of Law

Villains, Careerists, and Patriots: Thoughts on Kobach, Rosenstein, Comey, and McMaster

5/22/17  //  Commentary

When do a person's actions demonstrate that whatever they might have been in the past, they are now villains? When do their curious actions reveal them to be careerists? And when does the sacrifice of personal reputation serve a greater good?

Michael C. Dorf

Cornell Law School

Versus Trump: On Flynn, Bolton, and Mary Trump

7/5/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the D.C. Circuit's extraordinary intervention in the Michael Flynn case, and then move on to two lawsuits seeking to block publication of books: John Bolton's and Mary Trump's. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: What's Left Of Asylum Law?

9/19/19  //  Uncategorized

On this week's episode of Versus Trump, Charlie and Jason discuss the Supreme Court's recent action permitting the Trump Administration to enforce tough new restrictions on asylum eligibility for those who enter the U.S. at the southern border. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Versus Trump: The Fiduciary Rule Comes And Goes

5/24/18  //  Commentary

On this week's episode of Versus Trump, Easha, Charlie, and Jason discuss the Fifth Circuit's recent decision striking down the so-called "Fiduciary Rule" that would have required those who sell retirement investment products in 401(k) plans to act in the best interests of their clients. Listen now!

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

What Is Dead May Never Die: An AHCA Update

5/3/17  //  Commentary

With the AHCA back on the table, it's time to remember that the GOP really doesn’t like the constitutional arguments it made against the ACA

Leah Litman

Michigan Law School

The Overlap Between Impeachment and the 25th Amendment

1/9/18  //  Commentary

These are different mechanisms for achieving overlapping goals.

Michael C. Dorf

Cornell Law School

States And The Emoluments Clause

6/12/17  //  Commentary

In a new lawsuit, Maryland and D.C. allege that the President's violations of the Emoluments Clauses harm their sovereign, quasi-sovereign, and proprietary interests. Those interests get special solicitude in federal court.

Leah Litman

Michigan Law School

Can Trump Replace Rosenstein Without the Senate?

2/1/18  //  Commentary

What if the president has no power to replace Rod Rosenstein after firing him—at least not without help from the Senate?

Nikolas Bowie

Harvard Law School

The Problem(s) With The Arpaio Pardon

8/29/17  //  Commentary

Like so much of what Trump has done, the Arpaio pardon raises multiple challenges to our constitutional system.

Leah Litman

Michigan Law School

Versus Trump: Pardon Our Tone

10/19/17  //  Commentary

On this week’s episode of Versus Trump, Easha, Jason, and Charlie discuss the President's pardon of Sheriff Joe Arpaio and the (so far unsuccessful) legal challenge to that pardon. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Congress Has Another Avenue on Mueller’s Investigation

3/29/19  //  In-Depth Analysis

Congress may obtain information from the federal grand jury that has been working with Mueller’s team for the past two years

Brianne J. Gorod

Constitutional Accountability Center

Versus Trump: Can The Presidential Election Be Cancelled?

5/11/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the question of whether the upcoming election can be "cancelled" for political or pandemic reasons. They agree it'd be illegal...but does that mean it absolutely cannot happen? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Loyalty and Disloyalty in Trump’s America

5/1/17  //  Commentary

The ugly history of loyalty oaths lies along a road on which Trump's "Loyalty Day" proclamation takes a frightening first step, one wrapped in a false version of the American flag.

Laurence H. Tribe

Harvard Law School

What Happens Next for the ACA?

3/28/17  //  Commentary

President Trump has said that “the best thing we can do politically speaking is let Obamacare explode,” and there’s a lot he can do to make that explosion a reality. Here is what you need to know about what might come next.

Rachel Sachs

Washington University Law School

Nick Bagley

University of Michigan Law School

Information Wars: The Final Frontier

7/25/17  //  Commentary

Elements of the Republican Party have proposed eliminating the Budget Analysis Division of the Congressional Budget Office.

Leah Litman

Michigan Law School

Facts Matter—Even if the Sessions Department of Justice Doesn’t Realize It

4/26/17  //  Commentary

Just 100 days into the Trump Administration—the Administration that gave rise to the concept of #AlternativeFacts—there is reason to worry that facts don’t matter to the Justice Department now led by Trump’s Attorney General, Jeff Sessions.

Brianne J. Gorod

Constitutional Accountability Center

Controlling Our Losses

10/24/18  //  Commentary

While bleak, planning to lose is not about conceding defeat. It’s about laying the groundwork for a brighter future and avoiding precedential barriers to that future.

Danielle D'Onfro

Washington University Law School

Versus Trump: Trump vs. The Equal Rights Amendment

1/16/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason, Easha, and Charlie discuss the Trump Administration's new legal opinion regarding the legal status of the Equal Rights Amendment, also known as the ERA. They consider what will happen now that Virginia has become the 38th state to ratify the ERA since 1972. Is it too late, or can Congress do anything to add this amendment to the Constitution? Listen now!

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

When Due Process Reliance Defenses May Bar Enforcement

3/24/17  //  Commentary

In limited but vital ways, those who relied on Obama-era immigration and marijuana non-enforcement policies should be protected against sudden shifts in federal policy under President Trump.

Zachary Price

U.C. Hastings College of the Law

Another Illegal Executive Order--This Time National Monuments Are Under Attack

4/28/17  //  Commentary

Trump issued an order directing Interior Secretary to review a generation's worth of national monument designations. That order is likely illegal.

Michael Burger

Sabin Center for Climate Change Law at Columbia Law School

Versus Trump: It's Here!

4/25/19  //  In-Depth Analysis

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!

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

Versus Trump: Vs. The Inaugural Committee, Plus Bolton Update

1/30/20  //  Commentary

On this week’s Versus Trump, Charlie and Jason look at a new lawsuit by D.C. claiming that Trump's inaugural committee overpaid for space at the Trump Hotel and thus "wasted" at least $1 million in charitable funds. Spoiler alert: the lawsuit seems convincing. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Impeachment as a Constitutional Design Choice

6/18/18  //  In-Depth Analysis

What can we learn about presidential removal from a careful study of foreign constitutions and experiences?

Aziz Huq

University of Chicago Law School

Tom Ginsburg

University of Chicago Law School

In the End, What Should a Special Prosecutor Do?

1/17/19  //  In-Depth Analysis

Should a special prosecutor indict a sitting president?

Deborah Pearlstein

Cardozo Law School

Versus Trump, Episode Three: “We’re All Hypocrites” + Zachary Price

5/4/17  //  Commentary

This week on Versus Trump, the Take Care podcast, we preview a major argument in the Muslim travel ban litigation, talk to Professor Zach Price about reliance interests with respect to selective enforcement of federal laws, and more.

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Impeaching Trump: A Database of Arguments and Analyses

5/21/18  //  In-Depth Analysis

Announcing a database of articles addressing impeachment in Age of Trump

Trump and Text: An Open Relationship

12/23/19  //  Commentary

President Trump claims he is appointing federal judges who will stick strictly to constitutional text. But he has shown few qualms about ignoring parts of the Constitution he finds inconvenient.

Is Congress a Watchdog Asleep on the Job?

3/20/18  //  Commentary

By Former Republican Congressmen Tom Coleman and Mickey Edwards

Take Care

Animus, Past and Present

5/9/17  //  Commentary

In a new op-ed, Erwin Chemerinsky and I argue that the entry ban is unconstitutional because it was driven by animus toward Muslims.

Leah Litman

Michigan Law School

Prison and Jail Conditions Worsen Under the Trump Administration—Unless You Are Paul Manafort

7/18/18  //  Commentary

In the U.S. there are many “very unfair” situations involving prisons. But Trump’s policies are making prisons worse.

Helen Marie Berg

Michigan Law

Abigail DeHart

Michigan Law School

The Solicitor General’s Expedited Removal Petition

8/19/19  //  Commentary

Intervening legal developments counsel against granting the Solicitor General’s recent petition for certiorari on the expedited removal system.

Leah Litman

Michigan Law School

Kyle Skinner

Harvard Law School

Concluding Thoughts

11/5/18  //  In-Depth Analysis

We thank all of the scholars and lawyers who participated in this symposium on our book, How to Save a Constitutional Democracy.

Tom Ginsburg

University of Chicago Law School

Aziz Huq

University of Chicago Law School

Does the John Edwards Case Really Help Michael Cohen and Donald Trump?

5/8/18  //  In-Depth Analysis

The Campaign Finance violations trial of John Edwards for encouraging the payment of hush money to his paramour resulted in a hung jury. Is that a helpful precedent for Michael Cohen and Donald Trump in a potential Stormy Daniels case?

Michael C. Dorf

Cornell Law School

Versus Trump: Versus Kobach

7/20/17  //  Commentary

On this week’s episode of Versus Trump, we discuss the litigation against the newly-created Presidential Advisory Commission on Election Integrity, that has Kansas Secretary of State—and repeat defendant in voting rights litigation—Kris Kobach as its now-infamous Vice Chair. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Sarah Stillman On The Asylee Who Sued The Trump Administration

7/11/19  //  In-Depth Analysis

This week on Versus Trump, Charlie is joined by New Yorker writer Sarah Stillman to discuss the case of Suny Rodriguez, an asylum seeker who sued the Trump Administration over the conditions in detention centers. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Tax Consequences of Legal Defense Funds

10/24/17  //  In-Depth Analysis

President Trump and a number of his associates have established legal defense funds (LDFs) in connection with various Congressional investigations. What rules govern these LDFs?

Take Care

Versus Trump: Trump v. Everyone Who Wants His Taxes

8/1/19  //  In-Depth Analysis

This week on Versus Trump, Jason and Charlie are back from a hiatus to discuss the President's lawsuit against New York State and the House Ways and Means Committee, both of whom—he says—may be conspiring to release his New York State tax returns. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump’s Advisors Need to Step Up, Or Step Out

5/24/17  //  Commentary

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.

Dawn Johnsen

Indiana University Maurer School of Law

Legitimacy and the Supreme Court

6/19/19  //  Commentary

It is illegitimate to consider legitimacy. So say many conservatives who seem terrified that Chief Justice John G. Roberts Jr. might care about public perception of the U.S. Supreme Court. But they are wrong.

Stephen Vladeck

University of Texas

Leah Litman

Michigan Law School

On Bill Stuntz, the Supreme Court’s (Sort of) Unanimous Opinion In Bostock, and the Relationship To Black Lives Matter

6/16/20  //  Commentary

Following the Supreme Court's decision in Bostock, it's worth asking: Why has the law been so successful at improving the lives of gay people but much less successful at improving the lives of people of color?

Versus Trump: The Military in the U.S. and Proxy Voting in the House

6/7/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie take on two topics. First, what can the president legally do to use the military on American soil? Second, is it legal for the House of Representatives to vote by proxy, without being physically present in D.C., as alleged in a new lawsuit by House Republicans? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Manafort Sues, and Trump Threatens

1/11/18  //  Uncategorized

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!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Easha Anand

San Francisco

Trump's ACA Sabotage and the President's Constitutional Take Care Duty

10/17/17  //  Quick Reactions

The President has not even tried to suggest that he is using his power in the law's interest. Rather, he has boasted that he is using his power to kill it

Abbe R. Gluck

Yale Law School

How the Russian Conspiracy Injured Real, Innocent People

5/16/18  //  Commentary

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.

Erwin Chemerinsky

U.C. Irvine School of Law

Versus Trump: Versus David Dennison

3/15/18  //  Commentary

On a new episode of Versus Trump, Easha, Jason, and Charlie do a near-live episode about Stormy Daniels' lawsuit against David Dennison—we mean, Donald Trump. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

The Two Sides Of Donald Trump, As Reflected in The Government's Motion to Dismiss in the CREW Emoluments Case

6/12/17  //  Quick Reactions

The government's motion to dismiss alternately characterizes CREW's lawsuit as a case involving "official action" and a case involving solely a private "business venture." The different descriptions go to the core of CREW's lawsuit, which is that given the President's business affairs, we don't know when he's acting as President or as a businessman.

Leah Litman

Michigan Law School

Ask Mueller about Indicting a President: The Legal Error at the Heart of his Cryptic Report

7/23/19  //  Commentary

Let's not have unrealistic expectations of Mueller dropping bombshells. But if Congress is going to hold hearings, it should ask these questions.

Jed Shugerman

Fordham Law School

The Trump Administration’s Newest Target: Administrative Law Judges

7/30/18  //  In-Depth Analysis

The Trump Administration is changing the rules around hiring and firing of Administrative Law Judges, and is doing so in disturbing ways.

Whistleblower Scandal Contains Reminder of Last Scandal: Time for a New One?

9/27/19  //  Commentary

Although Trump isn't deliberately using each new scandal to distract from the last one, the phenomenon is nonetheless maddening. It's like a game of Bizarro World Whack-a-mole in which each time you whack a mole another hammer emerges that somehow enables the same mole to escape.

Michael C. Dorf

Cornell Law School

Paul Manafort's Many-Flawed Challenge to Prosecutorial Authority

1/4/18  //  Commentary

This lawsuit likely will face early dismissal.

Peter M. Shane

Ohio State, Moritz College of Law

Versus Trump: What Will Happen To Michael Flynn?

5/24/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the extraordinary motion to dismiss Michael Flynn's criminal case. Does the DOJ's logic make sense? And what can Judge Sullivan do if he chooses not to dismiss the case? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Can Congress Investigate Whether the President Has Conflicts of Interest, is Compromised by Russia, or Has Violated the Law?

7/29/19  //  In-Depth Analysis

The President's lawyers are urging courts to hold that Congress’s oversight and regulatory authorities simply don't extend to investigating the wrongdoing, foreign influence over, and possible conflicts of interest of, the President of the United States. That's wrong.

Marty Lederman

Georgetown Law

Four Tools to Save a Constitutional Democracy

10/29/18  //  In-Depth Analysis

Protecting democracies is not a matter of any one election. There’s a long road ahead to save our democracy. Here are some key steps.

What Happens If The Worst Happens?

10/2/20  //  Quick Reactions

What happens if a candidate dies before the electoral college votes? This came up at my oral argument in the Supreme Court case about electors, but there was no clear resolution.

Jason Harrow

Gerstein Harrow LLP

The House Has Already Opened an Impeachment Investigation Against Trump

7/26/19  //  Commentary

The Constitution’s text and structure — supported by judicial precedent and prior practice — show that impeachment is a process, not a single vote

Congressional Oversight Is Not Presidential Harassment

2/21/19  //  In-Depth Analysis

Congress’s power to investigate—a power with deep roots in our nation’s history and precedent—is incredibly broad, and it allows Congress to look into lots of matters that the President would apparently rather remain unexplored

Brianne J. Gorod

Constitutional Accountability Center

Impeachment Trials and the Senator’s Oath of Impartial Justice

12/19/19  //  Commentary

Senators who vote on removal following impeachment trials must take an oath akin to that of a juror. The oath requires them to be impartial and vote regardless of the president's party affiliation. Will Senators do that here?

Ira C. Lupu

George Washington University Law School

Robert W. Tuttle

George Washington University Law School

Why Trump’s Firing of Comey is Terrifying

5/10/17  //  Commentary

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.

Zachary Price

U.C. Hastings College of the Law

Appoint a Special Prosecutor, not an Amicus, to Challenge Arpaio’s Pardon

9/12/17  //  Commentary

This would ensure that the novel constitutional questions surrounding the pardon receive full adversarial testing

Andrew Crespo

Harvard Law School

Should the United States Have Special Elections for the Presidency?

3/27/17  //  Quick Reactions

Proposals for a "special election," potentially in response to evidence of Russian interference with the 2016 Presidential Election, raise major constitutional, political, and policy questions.

Ian Samuel

Harvard Law School

The Fire Alarm Function of Office-Holding

6/19/17  //  Commentary

Trumps can fire Mueller only by issuing a directive to Acting AG Rod Rosenstein. Here's why -- and why it really matters.

Zachary Price

U.C. Hastings College of the Law

Standing Up For Standing in CREW v. Trump

4/26/17  //  Quick Reactions

Everyone should give a tip of the hat to the new plaintiffs in the CREW v. Trump lawsuit.

Leah Litman

Michigan Law School

Versus Trump: Trump The Racketeer?

11/1/18  //  Uncategorized

On this week's episode of Versus Trump, Jason and Charlie talk about a new lawsuit alleging that Trump and his children were part of a racketeering enterprise that engaged in fraud in connection with their supposed endorsement of a multi-level marketing operation. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Trump vs. The CFPB

8/24/17  //  Commentary

On this week’s episode of Versus Trump, Jason and Charlie talk about the Trump Administration's position in a lawsuit contending that the structure of the Consumer Financial Protection Bureau—commonly known as the CFPB—is unconstitutional, because its sole director does not serve at the pleasure of the President but instead serves a set term and can be terminated only for-cause. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Are We All Textualists Now?

12/5/18  //  Commentary

Trump's executive order closing the government today out of respect to George H.W. Bush violates the plain text of a federal statute. If we really were all textualists now, that would be taken seriously.

Neil J. Kinkopf

George State University College of Law

Versus Trump: [This Episode Blocked]

9/28/17  //  Commentary

On this week’s episode of Versus Trump, Easha, Jason, and Charlie dive into the merits of a lawsuit brought by Twitter users who have been blocked by @realDonaldTrump. They claim the President's blocking violates the First Amendment. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump and North Korea: Where's Congress?

8/13/17  //  Commentary

Guest poster Eric Segall argues that Congress must act now to ensure that the President does not unilaterally commit an act of war without Congressional consent.

Take Care

The Contingency of Partisanship

3/27/17  //  In-Depth Analysis

Both history and recent events make clear that President Trump can’t rely on partisan allegiance alone to save his presidency.

Josh Chafetz

Cornell Law School

Versus Trump: Trump Versus California

4/26/18  //  Commentary

On a new episode of Versus Trump, Easha, Charlie, and Jason discuss the Trump Administration's lawsuit against California. The lawsuit seeks to prevent the state from enforcing three new state laws that the federal government says will undermine enforcement of immigration law. Listen now!

Jason Harrow

Gerstein Harrow LLP

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

The Unitary Executive Theory in the Shadow of High-Level Criminality

7/17/18  //  In-Depth Analysis

Judge Kavanaugh's nomination raises tough questions about how, exactly, adherents of the unitary executive theory believe we can address cases of presidential misconduct.

Aziz Huq

University of Chicago Law School

Versus Trump: Trump Versus ALJs?

8/2/18  //  Commentary

On this week's episode of Versus Trump, Jason and Easha discuss a new executive order and accompanying guidance by the Trump Administration that dramatically change the rules for hiring Administrative Law Judges (ALJs) across the entire federal government. Listen now!

Jason Harrow

Gerstein Harrow LLP

Easha Anand

San Francisco

Impeachment and Congress's Power of the Purse

10/29/19  //  Commentary

The President does not have constitutional authority to withhold foreign aid that Congress has mandated by statute.

Zachary Price

U.C. Hastings College of the Law

Judicial Deference to President Trump

5/8/17  //  In-Depth Analysis

It is time to ask: Has Trump in effect forfeited some measure of judicial deference across contexts and cases, through his disrespect for the courts and the rule of law and his displays of prejudice and arbitrary decisionmaking? And if he has not yet reached that point, what more would it take?

Dawn Johnsen

Indiana University Maurer School of Law

The Rule of Law and the Resistance Police

6/1/17  //  Commentary

Trump’s defenders have long ascribed illegitimate motives to his critics. Now they’re doing that to the judges who have found Trump’s policies unlawful. That’s not okay.

Leah Litman

Michigan Law School

Helen Klein Murillo

Harvard Law School '17

Take Care

The SDNY Debacle And The Supreme Court

6/20/20  //  Quick Reactions

The Trump administration's apparent desire to force out the U.S. Attorney for SDNY could have implications for several major Supreme Court cases this term.

Leah Litman

Michigan Law School

Can Congress Call A Special Election if Trump and Pence Are Impeached?

9/11/17  //  In-Depth Analysis

Congress has the legal authority to remove the President and Vice-President and to call a special election to replace them. But the odds that it would ever do so are vanishingly small.

Richard Primus

University of Michigan Law School

The Federal Courts and the Road to Impeachment

6/11/18  //  In-Depth Analysis

We must think more carefully about the role that federal courts can and should play at earlier stages of what may become impeachment investigations

Stephen Vladeck

University of Texas

The (Other) Dark Side Of The Comey Affair

5/15/17  //  Commentary

James Comey’s firing threatens more than just the rule-of-law norm against self-investigation. It also threatens the rule-of-law norm against politically motivated policing and prosecutions.

Leah Litman

Michigan Law School

Was Impeachment Good Or Bad? The "Bad" Side

2/5/20  //  Commentary

I'm not sure whether the impeachment and expected acquittal of Donald Trump was a good or bad thing. This series presents both sides. In this post, I make the "bad idea" case.

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Russia Check-In

3/1/18  //  Commentary

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!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Earthjustice v. Trump (Interview with Drew Caputo)

9/20/18  //  In-Depth Analysis

On this week's episode of Versus Trump, Jason and Charlie speak with Earthjustice Vice President Drew Caputo to get an update on environmental litigation against the Trump Administration. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Mueller Report Counterspin: We Still Don't Know Why Trump Denied Russian Interference

4/19/19  //  In-Depth Analysis

The Mueller Report could but won't be used as the basis for impeachment. Meanwhile, it leaves two fundamental questions unanswered.

Michael C. Dorf

Cornell Law School

Why Rudy Giuliani’s Bar Registration Should Be Revoked

8/27/18  //  Commentary

Giuliani has egregiously failed to uphold professional ethics and has done so in ways that harm our democracy.

The Special Prosecutor and Government Institutions

1/15/19  //  In-Depth Analysis

Does the special prosecutor qualify as an 'institution'? Does it matter? (Hint: Yes, it does.)

David Marcus

UCLA Law School

Versus Trump: Legal Challenges, Plus The Post Office Case

11/8/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the (frivolous) legal challenges to come. They are then joined by Public Citizen's Matthew Seligman to learn what happened with all those last-minute ballots, and what might happen in ongoing litigation in the Supreme Court.

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: The Past And Future Of Gerrymandering

7/18/19  //  Commentary

This week on Versus Trump, Jason and Easha are joined by guest host Melissa Murray of NYU Law and the new Strict Scrutiny podcast. They discuss the recent Supreme Court decision on gerrymandering (Rucho v. Common Cause), what's next in the fight, and where you can find Melissa's wonderful new podcast. Listen now!

Jason Harrow

Gerstein Harrow LLP

Easha Anand

San Francisco

Comey Counterarguments: The Trees, the Forest, and the Firing.

6/8/17  //  Commentary

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.

Jed Shugerman

Fordham Law School

Versus Trump: Is There A Freedom To Say Goodbye?

2/1/18  //  Commentary

On a new episode of Versus Trump, Charlie and Jason discuss an unexpected recent opinion that held that Ravi Ragbir, an immigration activist and alien subject to deportation, had the "freedom to say goodbye" before he could be removed from this country. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Versus The Post Office

10/15/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie are joined by Matthew Seligman of Public Citizen to discuss several lawsuits—including one in which he is counsel, NAACP v. USPS—where plaintiffs have challenged the cuts by the postal service that may slow down election mail. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Why Impeachment Must Remain A Priority

5/23/17  //  Commentary

The appointment of Special Counsel Robert Mueller must not lead progressives to put the thought of impeaching President Trump on a back-burner.

Laurence H. Tribe

Harvard Law School

How Do We Check the President?

6/8/18  //  In-Depth Analysis

If impeachment is impossible and even talk of impeachment can be destructive, how do we check a president who is violating the Constitution?

Erwin Chemerinsky

U.C. Irvine School of Law

Impeachment and Presidential Rhetoric

6/14/18  //  In-Depth Analysis

It's time to consider the role of the President’s rhetoric in the discourse and practice of impeachment

Kate Shaw

Cardozo Law

Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Shielding Mueller: Thoughts on Morrison v Olson

5/23/18  //  Commentary

Identifying a major flaw in arguments that Congress can't shield Mueller

Richard Primus

University of Michigan Law School

An Impeachable Offense Is a Criminal Offense: A Response to Tribe and Matz

6/20/18  //  In-Depth Analysis

Impeachment should be understood as a type of criminal prosecution—one that carries with it the Constitution’s protections for criminal defendants

Nikolas Bowie

Harvard Law School

Versus Trump: Versus Whitaker, In-Depth

12/6/18  //  Uncategorized

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!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Ten Questions for a New FBI Director

6/6/17  //  Commentary

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.

Take Care

An Airtight Opinion on Fugitive Emissions

7/12/17  //  Commentary

A recent D.C. Circuit opinion vindicates the principle that while agencies may have discretion over how laws are enforced, they cannot use that enforcement discretion to cancel legal obligations altogether.

Zachary Price

U.C. Hastings College of the Law

Trump Is Responsible For What ICE Is Doing To the Dreamers

5/5/17  //  Commentary

Basic principles of constitutional structure mean Trump is, and should be held, personally responsible for ICE’s egregious treatment of the DREAM-ers.

Leah Litman

Michigan Law School

Twitter and the Political Community

10/26/18  //  In-Depth Analysis

By communicating mainly through Twitter, Trump has asserted the power to define his own political community—and to exclude people from it.

Kate Shaw

Cardozo Law

Why Does DHS Need a Corporate Headhunter?

12/18/17  //  Quick Reactions

The LA Times has reported on a $300M deal between the Department of Homeland Security and Accenture. This is a major development.

Jon D. Michaels

UCLA School of Law

Versus Trump: Watch Out, Watch List

9/12/19  //  Commentary

On this week's episode of Versus Trump, Charlie and guest-host Alexandra Brodsky discuss a recent opinion invalidating the FBI's terrorism watch-list. They discuss the implications of the opinion for the Trump administration (and beyond), the merits (and demerits) of the court's reasoning, and all sorts of other cool stuff, including how annoying it is when people think they're important enough to be spied on by the FBI. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Symposium: How To Save A Constitutional Democracy

11/1/18  //  Latest Developments

Take Care has been pleased to host a symposium on How To Save A Constitutional Democracy, an important new book by Aziz Huq and Tom Ginsburg.

Take Care

Versus Trump: Huawei (or China??) Versus Trump

3/14/19  //  In-Depth Analysis

On this week's episode of Versus Trump, Charlie, Easha, and Jason discuss a new lawsuit by Huawei against various Trump Administration officials, plus they delve into international extradition law and look at the case of the company's detained CFO. Listen now!

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

How To Decide A Very Close Election For Presidential Electors: Part 2

10/23/20  //  In-Depth Analysis

The Kennedy-Nixon election in 1960 in Hawaii went to a recount. How Hawaii dealt with it—with two sets of electors casting two sets of electoral votes—provides a model for how to handle very close elections.

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Was Impeachment Good or Bad?

2/6/20  //  Commentary

On this week’s Versus Trump, Charlie and Jason discuss Jason's ongoing essays for the Take Care blog about whether impeachment was good or bad, net-positive or net-negative. This leads them to discuss whether the Democrats should have more aggressively pursued witnesses and whether this whole proceeding did much to vindicate the rule of law. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

The Audacity of The President’s "Hope"

6/13/17  //  In-Depth Analysis

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.

Daniel Epps

Washington University Law School

Leah Litman

Michigan Law School

Why Firing Comey Guts DOJ's Main Defense of the Muslim Ban 

5/10/17  //  Commentary

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.

After The Election, SCOTUS Should Grant Cert. To Correct The Bad 26th Amendment Cases

10/22/20  //  Quick Reactions

The Supreme Court has run out of time to reverse terrible decisions regarding the scope of the Twenty-Sixth Amendment. But it should still take up the issue after the election.

Jason Harrow

Gerstein Harrow LLP

No, Presidential Elector Litigation Will Not Lead To Chaos

9/4/19  //  Commentary

In Slate, Rick Hasen claims that litigation over the independence of presidential electors could "backfire spectacularly." I respectfully disagree.

Jason Harrow

Gerstein Harrow LLP

Reliance Defenses in the Trump Era and Beyond

3/23/17  //  Commentary

The transition to President Trump has massively shifted federal enforcement priorities. Does the Constitution protect people who relied on Obama's immigration, healthcare, or marijuana policies?

Zachary Price

U.C. Hastings College of the Law

Versus Trump: Updates, Y'all!

11/9/17  //  Commentary

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!

Jason Harrow

Gerstein Harrow LLP

Easha Anand

San Francisco

Can the President Pardon Himself? Well, He Can Try.

7/21/17  //  Commentary

By Brian Kalt: Presidential pardons are an important part of our constitutional system of powers, checks, and balances. A self-pardon would test several others parts of that system. As interesting as that might be, here’s hoping that it never happens.

Take Care

How Does The House Decide To Sue?

1/3/20  //  In-Depth Analysis

Since 2015, lawsuits by the House of Representatives have been authorized not by a vote of the full House but by majority of a standing, 5-member committee. Is this structure constitutional?

Self-Pardons, Constitutional History, and Article II

6/16/18  //  Commentary

Michael McConnell and Richard Epstein have argued that the Constitution allows self-pardons. They are mistaken.

Jed Shugerman

Fordham Law School

A Reply to Larry Solum

5/25/17  //  Commentary

A response to Professor Solum’s comments on my posts about the Consumer Financial Protection Bureau.

Leah Litman

Michigan Law School

My New Article on Jurisdiction Stripping -- And Why It's Timely

2/6/18  //  In-Depth Analysis

The president, acting alone, has no power to override the courts, but with the aid of a compliant Congress, he can do quite a bit.

Michael C. Dorf

Cornell Law School

When Free Speech Suits the President

4/6/17  //  Commentary

A federal judge has refused to dismiss a suit alleging that President Trump incited violence against protesters at one of his campaign rallies last year. The bitter irony to Trump's defense is that it seeks to expand free speech rules; usually, he prefers to trash them.

Amanda Shanor

The Wharton School

Is Our Democracy in Peril?: The Importance of the Courts

10/23/18  //  In-Depth Analysis

The Constitution can and should play a vital role in preventing democratic decline

Brianne J. Gorod

Constitutional Accountability Center

Versus Trump: Trump vs. The Mainstream Media

4/2/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss cases by the Trump campaign against the New York Times, CNN, and the Washington Post accusing each of these media organizations with defamation (sometimes also called libel). They have a bit of a laugh in explaining why the suits are frivolous, discuss whether the complaints are sanctionable, and debate whether the cases will have a major intimidating effect. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

[UPDATED] Trump's Innocence and the Rule of Law

5/12/17  //  Commentary

Even if Trump fired Comey because Trump knows himself to be innocent of Russia-related wrongdoing, that would still be unacceptable.

Richard Primus

University of Michigan Law School

Versus Trump: An Immigration Omnibus

5/31/18  //  Uncategorized

On this week's episode of Versus Trump, Easha, Charlie, and Jason discuss recent important cases in the world of immigration, including a new lawsuit contending that the Trump Administration may not pursue its apparent policy of legally separating immigrant children from adults that they enter the country with. Listen now!

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: An Impeachment Primer...

10/3/19  //  In-Depth Analysis

Gotcha! No impeachment dessert until you eat your immigration broccoli. On this week’s Versus Trump, Easha (back from parental leave!) and Charlie (just starting parental leave) discuss two immigration losses for the Trump administration. The first concerns Trump’s attempts to roll back court-ordered protections for migrant children; the second, Trump’s attempt to subject more immigrants to expedited removal. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: What Is Bribery?

11/21/19  //  Commentary

On this week’s Versus Trump, Jason, Charlie, and Easha discuss the definition of "bribery" for impeachment purposes, since Nancy Pelosi claimed that's what the evidence is showing at the impeachment hearings. They talk about how Congress and citizens should think about this notoriously slippery idea. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Easha Anand

San Francisco

Versus Trump: The Senate As Impeachment Court

1/2/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie dive deep into two impeachment-related questions. First, what is the formal role of the Senate in an impeachment trial, and what power does the Chief Justice have? (Hint: Senators have all the power; the Chief Justice has basically none.) Second, what did the House say in its impeachment report about why it chose not to go to court or otherwise force recalcitrant Administration officials to testify—and does it make sense? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Another Day, Another Smear By Trump

7/25/17  //  Commentary

Democracy depends on good faith engagement and distinguishing “honest dissent” from “disloyal subversion.”

David Sklansky

Stanford Law School

The Constitutional Challenge To The CFPB

5/19/17  //  Commentary

The major constitutional challenge to the Consumer Financial Protection Bureau rests on the claim that the President of the United States does not have enough power over the agency.

Leah Litman

Michigan Law School

DOJ Will No Longer Assist Covered Entities in Understanding the Law

11/21/17  //  Latest Developments

The new approach does not mean the DOJ will no longer make policy. It just means the Department will no longer tell covered entities and protected individuals what those policies are.

Eve Hill

Brown Goldstein & Levy

The Functions and Potential (but Fixable) Flaws of the “Protect Mueller” Bills

8/7/17  //  In-Depth Analysis

The bills to protect the special counsel from removal have some rough spots that can and should be worked out.

Marty Lederman

Georgetown Law

Versus Trump: Versus Mueller

6/28/18  //  Commentary

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!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Risk-Risk Tradeoffs in Presidential Impeachment

6/6/18  //  In-Depth Analysis

Presidential impeachment involves risk-risk tradeoffs. While some of these risks might be mitigated, and while all deserve to be identified and weighed, the basic dilemma is inescapable.

David Pozen

Columbia Law School

Ethics Complaints Against Lying Trump-Administration Lawyers

4/7/17  //  Commentary

There might still be some lies that people won't tolerate. Even from lawyers. And even from lawyers who are also politicians. Should those lies be the basis for discipline under legal ethics rules?

Charlie Gerstein

Gerstein Harrow LLP

Saving Democracy Through Impeachment?

10/24/18  //  In-Depth Analysis

By Rosalind Dixon: Low thresholds for impeachment could undermine (rather than strengthen) democracy

Take Care

Versus Trump: Trump Loses On Family Planning, Wins In The Ninth, and More

5/16/19  //  Uncategorized

This week on Versus Trump, Jason and Easha go through a few updates to cases involving Title X, which provides money for family planning; the Administration's policy to have many asylum applicants removed to Mexico; and the controversial border wall. Trump lost one, won one—for now, and hasn't yet gotten a decision in the third. Listen now!

Jason Harrow

Gerstein Harrow LLP

Easha Anand

San Francisco

Treason and Cyberwarfare

7/27/17  //  In-Depth Analysis

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.

Take Care

Versus Trump: A Two-Level Versus Trump Case

8/30/18  //  Commentary

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!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Is Trump's Emergency Unconstitutional or 'Merely' Illegal? And Does it Matter?

2/24/19  //  Commentary

And because Trump is a threat to constitutional democracy, the stakes over whether to call his bogus emergency 'merely' unlawful or also unconstitutional are non-trivial.

Michael C. Dorf

Cornell Law School

How To Decide A Very Close Election For Presidential Electors: Part 3

10/28/20  //  In-Depth Analysis

We conclude our examination of close presidential elections by taking a deep dive into Florida in 2000. Was the December 12, 2000 deadline really as firm as it seemed to the courts and some of the parties, or could the count have proceeded?

Jason Harrow

Gerstein Harrow LLP

Was Impeachment Good Or Bad? The Conclusion

2/9/20  //  Commentary

Last week, I took both sides of a series of important, related question: was Trump’s impeachment a good thing for democracy? The rule of law? For Democrats? Now I have to render a verdict. Which one was it?

Jason Harrow

Gerstein Harrow LLP

Prosecuting the President

1/14/19  //  In-Depth Analysis

Why have presidents appointed special counsels when they are not required to do so? Why do presidents tolerate special counsels, even when they can fire them?

Andrew Coan

University of Arizona

Why Trump's Motives Do (And Don't) Matter — The Comey/Flynn Incident

5/17/17  //  Commentary

While inquiries into motive need not control legal analysis of Trump's recent conduct, such questions will inevitably shape public (and legal) understanding in profound ways. Sadly, that means we're all about to voyage still deeper into Trump's psyche. This may be a path to madness, but there is no other way forward.

Business Leaders Must Act to Protect our Democracy

1/7/19  //  Commentary

Leaders of the private sector must confront the reality that our public sector has become polarized and dysfunctional and address the serious problems plaguing our democracy

On Standing In CREW v. Trump Part I: Defining The Injury

4/27/17  //  In-Depth Analysis

Critics of the standing arguments in CREW v. Trump are defining the new plaintiffs’ injury in the wrong way.

Leah Litman

Michigan Law School

The Power of Impeachment: Its History & Future

6/20/18  //  Latest Developments

A discussion at the National Constitutional Center

The Attacks on Mueller’s Investigation are Desperate, Baseless, and Unprecedented

7/13/17  //  Commentary

The President’s minions have been laying the groundwork for Mueller’s dismissal. But their attacks are ill-founded.

David Sklansky

Stanford Law School

The Character of the Special Prosecutor

1/16/19  //  In-Depth Analysis

How do we evaluate the character of the current special prosecutor?

Take Care

Our (Ongoing) Coverage of the Comey Firing

5/11/17  //  Uncategorized

An organized guide to all Take Care coverage and analysis of President Trump's abrupt termination of FBI Director Comey

Take Care

Versus Trump: (Judicial) Independence Day Spectacular!

7/6/17  //  Commentary

On this week’s episode of Versus Trump, we celebrate Independence Day with a look at the past, present, and future of judicial independence. Jason and Easha discuss the origins of judicial power, and then talk about what the Trump Administration has done that may undermine the authority of the judiciary—and where that kind of talk might lead us. Listen now!

Easha Anand

San Francisco

Don’t Let Impeachment Dominate Politics

2/22/19  //  Latest Developments

It is surely ironic for the authors of a book about impeachment to warn about the risks of too much focus on impeachment. But that's what we do in our latest Atlantic essay.

Laurence H. Tribe

Harvard Law School

Versus Trump: 100!

3/21/19  //  Commentary

On this week's 100th episode of Versus Trump, Charlie, Easha, and Jason offer a few quick hits and then have a discussion about the effect of litigation against the President personally and against the Administration. Listen now!

Jason Harrow

Gerstein Harrow LLP

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Dems vs. The IRS?

4/18/19  //  Commentary

This week on Versus Trump, Jason, Charlie, and Easha discuss the brewing dispute over Trump's tax returns. Listen now!

Against Deference: Considering the Trump Travel Ban

12/8/17  //  Commentary

By Vicki Jackson & Judith Resnik: Upholding the third travel ban out of deference to the President on matters of foreign affairs would be a tragic mistake.

Take Care

Versus Trump: The Collusion Lawsuit

7/27/17  //  Uncategorized

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!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Trump's Mistaken Signing Statement on Marijuana Enforcement

5/16/17  //  Commentary

Trump suggested in a recent signing statement that he could disregard an appropriations restriction on federal marijuana enforcement. But Trump is mistaken.

Zachary Price

U.C. Hastings College of the Law

A Small Glitch in a Bill to Protect the Special Counsel

8/3/17  //  Quick Reactions

Sometimes it matters where in the sentence you put 'only'

Charlie Gerstein

Gerstein Harrow LLP

Trump's Politicization of Law Enforcement is Authoritarian in Nature

3/9/18  //  In-Depth Analysis

Trump’s actions to quash the independence of federal law enforcement mirror the approach of autocratic leaders around the globe.

Quick Thoughts On Jared Kushner's Blame Game

7/24/17  //  Quick Reactions

Jared Kushner's statement blames everyone but himself for his failures to disclose contacts with foreign officials.

Leah Litman

Michigan Law School

The Road to United States v. Trump is Paved with Prosecutorial Discretion

5/21/17  //  In-Depth Analysis

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.

Andrew Crespo

Harvard Law School

The Rule of Law Means Little If The President’s Word Means Nothing

4/26/17  //  Quick Reactions

In a new op-ed, I emphasize the importance of taking President Trump at his word–even as efforts to save his executive orders from his tweets inevitably push Trump's defenders to come up with new and creative reasons for ignoring Trump's public statements.

Even If McCabe Committed Wrongdoing, He Was Likely Fired for 'This Russia Thing'

3/20/18  //  Commentary

The firing of James Comey closely parallels McCabe's firing

Michael C. Dorf

Cornell Law School

Final Thoughts on Prosecuting the President

1/24/19  //  In-Depth Analysis

Thoughts on the past, present, and future of special prosecutors

Andrew Coan

University of Arizona

Versus Trump: Trump Wins One Versus Stormy

10/18/18  //  In-Depth Analysis

On this week's episode of Versus Trump, Jason and Charlie talk about the recent decision that dismissed Stormy Daniels' defamation lawsuit against the President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Announcing Take Care

3/16/17  //  Commentary

Take Care is a new collaborative blog that will provide insightful, accessible, and timely analysis of whether the President is adhering to legal limits on his authority.

Take Care

Versus Trump: Secret Subpoenas, A New AG, and Live Listener Feedback

1/17/19  //  In-Depth Analysis

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!

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Pence and Obstruction of Justice

9/5/17  //  In-Depth Analysis

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.

Jed Shugerman

Fordham Law School

Versus Trump: "What About Congress? + Steven Wu"

6/8/17  //  Commentary

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!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Uphold the Oath

9/7/17  //  Quick Reactions

Federal employees are publicly reaffirming their loyalty, patriotism, and commitment to the Constitution.

Jon D. Michaels

UCLA School of Law

See You In Court 3.0

5/25/17  //  Quick Reactions

A quick recap of the Fourth Circuit's decision in IRAP v. Trump.

Leah Litman

Michigan Law School

How Nervous Should You Be About Election Day?

11/2/20  //  Commentary

I'm pretty nervous. But there’s also no reason to think that the rule of law has been entirely eroded in America in 2020. So far, the center has held.

Jason Harrow

Gerstein Harrow LLP

Prosecuting the President and the Importance of Information

1/18/19  //  In-Depth Analysis

It's vital for the public to understand why we have a special prosecutor and how to ensure he's free to complete his work

Lisa Manheim

UW School of Law

Seven Reactions to Today’s Coats/Rogers Testimony

6/7/17  //  Quick Reactions

Jed Shugerman analyzes today's live testimony before the Senate Intelligence Committee.

Jed Shugerman

Fordham Law School

The National Emergencies Act Is Not a Blank Check

2/1/19  //  Uncategorized

The National Emergencies Act doesn't give the President unlimited power to declare a national emergency even when no emergency exists

Brianne J. Gorod

Constitutional Accountability Center

Policing is Always Political, So Politicians Should Control It

5/24/17  //  In-Depth Analysis

Recent Harvard Law graduate, and soon to be civil rights lawyer, Shakeer Rahman offers some second thoughts about celebrating federal law enforcement’s independence.

Take Care

On Presumptions Of Regularity, And Incidents Of Irregularity

5/11/17  //  Commentary

The Presumption of Regularity, Like All Presumptions, Is Rebuttable, Not Conclusive Evidence

Leah Litman

Michigan Law School

Versus Trump: Listener Mailbag

6/6/19  //  Commentary

This week on Versus Trump, Jason and Charlie answer listener mail and talk about nationwide injunctions at Gregory's request; talk more about court packing at the request of Micah; and respond to Ben's thoughts on subpoena enforcement. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Antitrust After the Fall

11/21/17  //  In-Depth Analysis

Trump has needlessly created many reasons to look skeptically on DOJ's justified, important lawsuit to prevent AT&T and Times Warner from merging.

Eric Citron

Goldstein & Russell

Versus Trump: Trump Versus Mail Voting

8/24/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss voting by mail in the pandemic. Have courts allowed the rules to be changed, either in responses to suits there should be more voting by mail—or less? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Versus Trump: How Do We Protect Our Democracy?

2/14/19  //  Uncategorized

On this week's episode of Versus Trump, Charlie sits down for a fun, casual conversation with Anne Tindall and Cameron Kistler of Protect Democracy about, well, protecting our democracy. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

To Save Democracy

6/5/18  //  Commentary

Introducing a symposium on our new book, 'To End A Presidency: The Power of Impeachment.'

Laurence H. Tribe

Harvard Law School

Trump, Trust, and the 25th Amendment

5/15/17  //  Commentary

Imagine that the President lacked credibility entirely, whether because he was a pathological liar or because his lying was – hypothetically speaking – one symptom of a narcissistic personality disorder. Would there be anything the American people or government officials should or could do about it, short of waiting until the end of the President’s term.

Jamal Greene

Columbia Law School

Versus Trump: #MeToo vs. Trump

12/14/17  //  In-Depth Analysis

On this week’s episode of Versus Trump, Charlie, Jason, and Easha talk about a defamation lawsuit brought by Summer Zervos, a woman who alleges that she was sexually assaulted by President Trump in a hotel room in 2007. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

Versus Trump: Who Are Presidential Electors?

1/25/20  //  In-Depth Analysis

On this week’s Versus Trump, Charlie and Easha take a deep dive into two recently granted Supreme Court cases that go to the heart of the systems that we use to elect the President. The discussion takes us deep into questions of political accountability, free choice, and constitutional history. A classic Versus Trump cat's-away-mice-will-play episode chock full of fun analysis of, among other things, Jason's work. Listen now! (I mean right now.)

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

Sessions Preview and Review

6/13/17  //  Commentary

The already strong case for felony false statement might get unbearably stronger

Jed Shugerman

Fordham Law School

Versus Trump: Are Tax Returns Coming Soon?

7/18/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the Supreme Court's pair of decisions governing Trump's tax returns. Are they coming soon? Did the Democrats make a mistake in not being more aggressive in invoking the impeachment power? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

The One Question Worth Asking

7/25/17  //  Commentary

Here's the most important question to ask about indictments, pardons and self-pardons, and obstruction of justice.

Daniel Hemel

University of Chicago Law School

Versus Trump: Movin' Right Along

4/12/18  //  In-Depth Analysis

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!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: To End a Presidency? (Interview with Joshua Matz)

6/21/18  //  In-Depth Analysis

On this week's episode of Versus Trump, Jason talks about the past, present, and future of impeachment with Joshua Matz. Joshua is the publisher of Take Care and the co-author, with Laurence Tribe, of the acclaimed new book To End a Presidency: The Power of Impeachment. Listen now!

Jason Harrow

Gerstein Harrow LLP

The DACA Trap

11/6/19  //  Commentary

The Supreme Court will hear arguments next week in a case about whether the Trump Administration can revoke DACA. But progressives ought to be wary of the long-term effects of prevailing. A win here could very well make it very hard to undo the lax enforcement policies of the current Administration.

Zachary Price

U.C. Hastings College of the Law

Clear Statement: The Barr Memo is Disqualifying

1/14/19  //  Commentary

His dangerously misguided legal analysis demonstrates that William Barr is the wrong man to serve as Attorney General

Neil J. Kinkopf

George State University College of Law

America’s Monarch? Trump and the Pardon Power

6/18/18  //  Commentary

For all who are devoted to country and Constitution, the idea of a self-pardon should be an anathema.

Gillian Metzger

Columbia Law School

Vicki C. Jackson

Harvard Law School

Why Hasn’t Rod Rosenstein Recused Himself From the Russiagate Probe?

5/22/17  //  Commentary

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.

Daniel Hemel

University of Chicago Law School

Regrettably, President Trump Does Have the Power to Commute Roger Stone's Sentence

7/17/20  //  In-Depth Analysis

By Brian Kalt: In a recent piece in the Atlantic, Corey Brettschneider and Jeffrey Tulis contend that the Stone commutation is invalid. Regrettably, their legal argument is weak

Take Care

Pardon But Don’t Forget

10/4/17  //  Commentary

DOJ supports Arpaio's request that Judge Susan Bolton vacate his criminal contempt conviction. But she could instead simply dismiss the case and let the contempt ruling linger.

Bernadette Meyler

Stanford Law School

Versus Trump: The Coming Exec Privilege Showdown

11/5/19  //  In-Depth Analysis

On this week’s Versus Trump, Jason, Charlie, and Easha talk executive privilege. They outline the legal landscape of several hard questions in this area, like can the President completely prevent executive officials from testifying, and what role do the courts play here? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Did the Nunes Memo Answer Rangappa’s Five Questions? The Nunes Memo is a Nothing Memo.

2/5/18  //  In-Depth Analysis

Yale Law’s Asha Rangappa offered an excellent post asking five key questions. If the Nunes Memo did not address them, it seriously undercuts its credibility.

Jed Shugerman

Fordham Law School

Versus Trump: Sanctions Versus DeVos!

11/8/19  //  Uncategorized

On this week’s special edition of Uncle Charlie's Sanctions Corner–wait, we mean Versus Trump—Jason, Charlie, and Easha bring on Eileen Connor of the Project on Predatory Student to discuss a major opinion issuing sanctions against the Department of Education. Listen now!

Jason Harrow

Gerstein Harrow LLP

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Insubordination and Impeachment

3/4/19  //  Commentary

The widespread executive branch practice of ignoring Trump's statements—or treating them as merely advisory—has saved him from potentially dire political consequences

Laurence H. Tribe

Harvard Law School

Versus Trump: Amazon vs. Trump

1/9/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason, Easha, and Charlie consider a new lawsuit by Amazon, in which the company claims that it was illegally denied a $10 billion Pentagon contract because of President Trump's stated dislike of Amazon founder Jeff Bezos. And the return briefly to the question of Bolton's potential testimony at the Senate impeachment trial. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Legal Grounds for an Impeachment Investigation of the President

12/7/17  //  Commentary

By Ron Fein et al: Based on publicly reported information, as of today there are at least eight grounds for the House to authorize the Judiciary Committee to begin hearings on whether to impeach President Donald J. Trump.

Take Care

Those Who Do Not Know History

4/12/17  //  Commentary

On the first full day of Passover, the Trump Administration offered several lessons about institutionalized racism and ethnic cleansing.

Leah Litman

Michigan Law School

Making Bureaucracy Great Again: Trump’s New Office of Innovation

3/27/17  //  Quick Reactions

Jared Kushner says he will run government like a business. But this administration has no understanding of government, or of business. And it doesn't respect the distinctive, unbusinesslike practices and principles of running a government.

Jon D. Michaels

UCLA School of Law

How Might Congress Reinforce NATO?

5/30/17  //  Commentary

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.

Zachary Price

U.C. Hastings College of the Law

Impeachment as Punishment

6/13/18  //  In-Depth Analysis

There is an important connection between impeachment and criminal law. Not in technical or legalistic doctrinal nuances, but rather in the core purposes underlying these two domains.

Andrew Crespo

Harvard Law School

Remedial Convergence and Collapse

4/11/18  //  Commentary

The Supreme Court's recent summary reversal in Kisela v. Hughes demonstrates some serious issues with the Court's approach to remedies in cases of executive violations of constitutional rights.

Leah Litman

Michigan Law School

Versus Trump: Preventing The Prevention Of The Teen Pregnancy Prevention Program

5/17/18  //  Commentary

On this week's episode of Versus Trump, Easha, Charlie, and Jason discuss a series of recent rulings that have stopped the Trump Administration from revoking federal grants to entities that have been working to reduce teen pregnancy. Listen now!

Jason Harrow

Gerstein Harrow LLP

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Russia and 'Enemies' under the Treason Clause

7/24/17  //  In-Depth Analysis

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.

Take Care

On Standing In CREW v. Trump Part II: More Distinctions Without A Difference To Competitor Standing Cases

4/28/17  //  Commentary

The various ways that standing skeptics have distinguished cases supporting standing in CREW are unpersuasive.

Leah Litman

Michigan Law School

Remarks at the Boston March for Truth

6/8/17  //  In-Depth Analysis

"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: Trump Versus Anti-Discrimination Laws (with guest Joshua Matz)

12/7/17  //  In-Depth Analysis

On this week’s episode of Versus Trump, Charlie, Jason, and Easha are joined by Take Care publisher Joshua Matz to talk about the Masterpiece Cake Shop oral argument, plus the status of Muslim Ban litigation and the future of Take Care.

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Versus Trump: The Unique Manafort Plea

9/27/18  //  Commentary

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!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

The Danger of Constant Impeachment Talk

5/7/18  //  Latest Developments

When calls to impeach the president are played on repeat for years, they lose their punch. That is where we find ourselves today.

Laurence H. Tribe

Harvard Law School

When (if Ever) Must the House Impeach the President?

12/12/18  //  In-Depth Analysis

A response to Cass Sunstein's analysis of this question

Laurence H. Tribe

Harvard Law School

SCOTUS Warns Against Appointing "Unfit Characters"

3/24/17  //  Quick Reactions

A decision this week reminds us that President Trump is bound by laws, which he is violating, in making key appointments. The Acting U.S. Trade Representative, for instance, might well be occupying that role unlawfully.

Nikolas Bowie

Harvard Law School

No, President Trump, You Are Not Above the Law

6/19/18  //  In-Depth Analysis

The Constitution gives the president broad powers to pardon people and direct Justice Department investigations — but it does not give him the power to undermine the democratic safeguards enshrined there.

Amanda Shanor

The Wharton School

How to Save a Constitutional Democracy

10/22/18  //  In-Depth Analysis

Our new book offers a distinctive diagnosis of how democracy is lost, and then roadmaps various pathways along which a reform agenda might proceed.

Aziz Huq

University of Chicago Law School

Tom Ginsburg

University of Chicago Law School

Versus Trump: Trump The Trustbuster (Interview with Lina Khan)

11/30/17  //  In-Depth Analysis

On this week’s episode of Versus Trump, Charlie has an interview with antitrust expert Lina Khan, Director of Legal Policy of the Open Markets Institute, about the lawsuit filed by the Trump Administration to block the proposed AT&T/Time Warner merger. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

What If There’s a Fake Tape?

6/13/17  //  Commentary

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.

Zachary Price

U.C. Hastings College of the Law

Expedited Removals, Jeopardized Due Process

8/26/19  //  Commentary

The Trump administration’s revamped expedited removal system unsettles the rulings that upheld the expedited removal system against constitutional challenges.

Kyle Skinner

Harvard Law School

Leah Litman

Michigan Law School

The Writing Is on the Wall for Obamacare

12/19/19  //  Commentary

With the Trump administration's support, the Fifth Circuit ruled yesterday that the health-care law contains a constitutional flaw—and that most or all of the law may have to be scrapped.

Nick Bagley

University of Michigan Law School

An Emolumental Take On the President Versus The Presidency

7/26/18  //  Quick Reactions

The recent opinion allowing the plaintiffs' emoluments claims to go forward comports with recent suggestions about separating this President from the office of the Presidency.

Leah Litman

Michigan Law School

Versus Trump: California Versus The Wall [UPDATED WITH EPISODE]

3/8/18  //  Commentary

On a new episode of Versus Trump, Easha, Jason, and Charlie discuss a recent district court opinion that rejected California's challenge to the Trump Administration's expedited border wall projects in California. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Versus The Trump Foundation

7/19/18  //  In-Depth Analysis

On this week's episode of Versus Trump, Jason and Charlie discuss the New York Attorney General's petition to dissolve the Trump Foundation and ban President Trump and his children from serving as directors of charities in the future. They then do some a hit on the new Mueller indictment. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Silver bullets, blue pencils, and the future of the ACA

7/10/19  //  Quick Reactions

Yesterday, the Fifth Circuit heard oral argument in the case challenging the constitutionality of the Affordable Care Act. It didn't go well.

Nick Bagley

University of Michigan Law School

Dark Money and Judicial Nominations Under Trump (And Beyond)

5/9/17  //  Commentary

Our treasure of an independent judiciary is built upon an assumption of independence, of transparency about influence and potential conflicts, and accountability to the democratic process. When massive amounts of dark corporate money can affect those political processes, we are in grave danger of damaging that national treasure.

Dawn Johnsen

Indiana University Maurer School of Law

Can a Sitting President be Sued in a State Court?

12/21/17  //  Commentary

A pending defamation suit against President Trump in New York state court raises this important question.

Richard Primus

University of Michigan Law School

Why the Spotlight On Chief Justice Roberts May Soon Be Brighter—and Why That Matters

6/13/19  //  Commentary

Chief Justice Roberts would preside over any impeachment trial of President Trump. Here's why that matters.

Brianne J. Gorod

Constitutional Accountability Center

A New Civil Case Powerfully Opens a New Front Against Trump for Russia Conspiracy

7/13/17  //  Quick Reactions

A powerful new civil complaint that focuses on the Russian hacking conspiracy has been filed against the Trump campaign.

Jed Shugerman

Fordham Law School

Trump, Arpaio, and the Danger of Politicizing DOJ

8/29/17  //  In-Depth Analysis

Trump asked if DOJ could drop the case against Arpaio. Such interference with prosecutive decisions threatens the legitimacy of the Justice Department.

Chiraag Bains

Harvard Law School

Trump’s Approach to Crime & Punishment

3/16/17  //  Commentary

The president has continued existing policies, but also signaled a misplaced (and dangerous) reliance on immigration enforcement and incarceration to protect the public.

Chiraag Bains

Harvard Law School

Multidimensional Separation(s) of Powers and Questions of Democratic Erosion

10/29/18  //  In-Depth Analysis

All of those tedious checks and balances and lines of separation that frustrate one and all during times of normal, functional democratic governance have a very real role to play in our constitutional order.

Jon D. Michaels

UCLA School of Law

Analysis of Comey, Mueller, Obstruction & Impeachment From Around the Web

5/22/17  //  Uncategorized

Take Care is pleased to offer an organized guide to legal analyses of many rule of law issues that recently have dominated the news.

Take Care

Versus Trump: Healthcare Update (With Guest Greer Donley)

4/11/19  //  In-Depth Analysis

This week on Versus Trump, Jason and Charlie talk with special guest Greer Donley, a law professor at University of Pittsburgh School of Law, to talk about the latest developments in litigation related to Obamacare, including the stunning DOJ reversal in Texas, and recent decisions prohibiting states from adding work requirements to Medicaid. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Presidential Bad Faith

3/16/17  //  Commentary

If the President cannot be trusted to “take Care that the Laws be faithfully executed,” then that obligation falls on “We the People."

Laurence H. Tribe

Harvard Law School

Special Prosecutors and the Structure of Office-Holding

1/18/19  //  In-Depth Analysis

Trump can't control Mueller directly. He must instead act through the Attorney General. That's a very important restriction.

Zachary Price

U.C. Hastings College of the Law

Versus Trump Podcast: Prosecuting Trump FAQ + James Williams

5/17/17  //  Commentary

On today's two-part episode of Versus Trump, Take Care's podcast, we answer three burning questions related to whether the sitting President can face criminal charges, and how that prosecution could be started. We also have an interview with James Williams, the County Counsel for Santa Clara County, where he discusses his County's lawsuit against Trump Administration that has so far successfully prevented the Trump Administration from enforcing an executive order that would have withdrawn federal funding from so-called sanctuary cities.