Versus Trump: Trump Versus California
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!
Versus Trump: The View From 10,000 Feet (Joshua Matz Speech)
On a new episode of Versus Trump, we bring you a podcast version of the speech that Take Care publisher Joshua Matz gave at Harvard Law School on April 3, 2018. The talk, titled "The Legal Resistance to Trump," describes themes, achievements, and limitations of various lawsuits challenging the Trump Administration and its policies. Listen now!
Versus Trump: Movin' Right Along
On a new episode of Versus Trump, Jason and Charlie revisit two lawsuits in which the Plaintiffs have recently successfully fought off motions to dismiss and been allowed to proceed. And in a new installment of "Sanctions Corner with Uncle Charlie," Charlie answers questions about the FBI raid on the office of Trump lawyer Michael Cohen. Listen now!
Remedial Convergence and Collapse
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.
Updates | The Week of February 19, 2018
Special Counsel Robert Mueller filed a new charge against Paul Manafort while Richard Gates pled guilty. Meanwhile, President Trump's proposal to arm teachers drew controversy in Washington.
Updates | The Week of February 5, 2018
The Nunes memo set off aftershocks; agencies scrambled to implement the Trump Administration's policies to mixed effect; and Congress passes a budget after a brief overnight shutdown.
Updates | The Week of January 22, 2018
The Department of Justice has filed a statement of interest in support of two conservative groups that sued the University of California-Berkeley over alleged limits on their ability to host events. Common Cause, a non-profit watchdog group, has filed a complaint alleging that the settlement paid to Stormy Daniels by President Trump amounted to an unreported in-kind contribution to President Trump's campaign.
Updates | The Week of January 15, 2018
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 December 18, 2017
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.
It Was Legal for the President to Fire Comey. That’s the Problem.
It’s already too late in the day to trust the executive branch to police itself. That lack of trust should extend to a special prosecutor, independent counsel, or whatever other nice terms you want to call it. At this point, only Congress can credibly investigate the President.
Versus Trump: The FOIA Spectacular!
On this week’s episode of Versus Trump, Easha and Charlie discuss all things FOIA—that is, the Freedom of Information Act. Listen now!
GSA, Trump International Hotel, and the Constitution
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.
Trump Jr. and Citizens United
In a perfect world, federal election law would distinguish between foreign governments involving themselves in U.S. elections and foreign nationals doing so. Unfortunately, we don't live in that perfect world because of the Supreme Court.
What Will You Do if Mueller is Fired?
If your tendency, like mine, is to deliberate when called to action, my humble suggestion is simply this: Deliberate now. Reflect on what you will do now. Decide now.
Versus Trump: Judges of Christmas Future
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!
No Peeking? Korematsu and Judicial Credulity
The Supreme Court's decision in the Japanese Internment Cases offers a chilling reminder of why courts cannot close their eyes to clear evidence of bigotry in executive orders supposedly justified by security concerns.
Versus Trump: I Want Out!
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!
Versus Trump: The House Versus The FBI
On the latest episode of Versus Trump, Charlie and Easha talk all things Russia investigation (or tangentially Russia investigation)—the Nunes #meh-mo, the fallout therefrom, and whether Trump will be interviewed by the Special Counsel.
The Comey Affair And Evidence Of Motive
The Comey affair underscores that decisionmakers must look beyond the administration’s “official” documents to determine the administration’s motives.
Versus Trump: Versus DeVos (Re-Air)
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.
Trump’s Newest Attack on the Rule of the Law
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.
President Trump Shouldn't Be Impeached If He Hasn't Committed a Crime
It would be a grave mistake to call for President Trump's impeachment if he hasn't committed a crime. In an era of tit-for-tat partisanship, lowering the impeachment standard to “anything Congress thinks is wrong” is a recipe for dysfunctional government, one in which the House of one party could perpetually threaten to impeach the White House of another.
The Comey Firing in (Comparative) Context
President Trump’s abrupt firing of FBI Director James Comey prompted two immediate questions: Is the firing legal, and is this a constitutional crisis? But are these even the right questions to pose?
Against Type Briefs
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.
Killing The Dream
Donald Trump's apparent reasons for (apparently) rescinding DACA make little sense.
An Update on DACA
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.
Versus Trump: 2017 Scorecard
On the first episode of Versus Trump of 2018, Jason and Charlie look back at Versus Trump cases in 2017 and score them as Administration wins, losses, or not-yet-decided. They also look ahead at big issues to come in 2018. Listen now!
Trump and the Decline of the American Middle
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?
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.
Nunes Recuses. Sort Of. Now What?
Chairman of the House Permanent Select Committee on Intelligence Devin Nunes will step aside from the committee’s Russia investigation. Sort of. What does this mean -- and what comes next?
Versus Trump: The Contraception Mandate Challenges
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!
Trump, Pardons, and Guilt
By Mark Osler: Pardons by Trump would be a significant departure from what the pardon power has meant. Clemency is for the guilty, not the innocent.
States And The Emoluments Clause
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.
Versus Trump: Pardon Our Tone
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!
Loyalty and Disloyalty in Trump’s America
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.
What Happens Next for the ACA?
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.
Animus, Past and Present
In a new op-ed, Erwin Chemerinsky and I argue that the entry ban is unconstitutional because it was driven by animus toward Muslims.
Versus Trump: Versus Kobach
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!
Tax Consequences of Legal Defense Funds
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?
Trump’s Advisors Need to Step Up, Or Step Out
Astounding revelations have erased any reasonable doubt that the President’s shortcomings endanger global security. The time has come to focus on Executive Branch officials who have a duty to guide and, if necessary, constrain Trump. They need to step up, or step out.
Versus Trump: Manafort Sues, and Trump Threatens
On a new episode of Versus Trump, Jason, Easha, and Charlie tackle an unexpected new lawsuit against the Trump Administration by, of all people, Paul Manafort. And they discuss the President's threats to sue the publisher of Fire and Fury for defamation. Listen now!
Versus Trump: Versus David Dennison
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!
Why Trump’s Firing of Comey is Terrifying
Our country has a very strong, very important norm of apolitical law enforcement. But this norm, ironically, is enforced mostly by politics, not law—and Trump’s action has risked doing it irreparable damage. Going forward, here's what to watch at the state and federal levels.
Versus Trump: Trump vs. The CFPB
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!
Versus Trump: [This Episode Blocked]
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!
Trump and North Korea: Where's Congress?
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.
The Contingency of Partisanship
Both history and recent events make clear that President Trump can’t rely on partisan allegiance alone to save his presidency.
Judicial Deference to President Trump
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?
The Rule of Law and the Resistance Police
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.
The (Other) Dark Side Of The Comey Affair
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.
Versus Trump: Russia Check-In
On a new episode of Versus Trump, Easha, Jason, and Charlie check back in with the most politically charged of all Versus Trump suits: the Russia investigation. Listen now!
Versus Trump: Is There A Freedom To Say Goodbye?
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!
Why Impeachment Must Remain A Priority
The appointment of Special Counsel Robert Mueller must not lead progressives to put the thought of impeaching President Trump on a back-burner.
Ten Questions for a New FBI Director
By Allison Murphy: Given President Trump’s documented and acknowledged efforts to interfere with the independence of the FBI, the Senate should presume that could continue under a new FBI Director. It is therefore incumbent upon Senators to ensure that any Trump nominee for FBI Director commits to certain baseline aspects of independence and impartiality before any new nominee is confirmed. Here are 10 questions that require answers.
An Airtight Opinion on Fugitive Emissions
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.
Why Firing Comey Guts DOJ's Main Defense of the Muslim Ban
Sometimes, when an emissary of the President asks courts to “trust us,” things the President does elsewhere can fatally undermine judicial confidence in the President’s respect for rule of law values. We’ve seen it before and we’re about to see it again.
Reliance Defenses in the Trump Era and Beyond
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?
Versus Trump: Updates, Y'all!
You want updates, so we've got updates! On this week’s episode of Versus Trump, Jason and Easha revisit several important cases and news items that we've previously mentioned so that you have the latest information on them. Listen now!
Can the President Pardon Himself? Well, He Can Try.
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.
A Reply to Larry Solum
A response to Professor Solum’s comments on my posts about the Consumer Financial Protection Bureau.
When Free Speech Suits the President
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.
The Constitutional Challenge To The CFPB
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.
Why Trump's Motives Do (And Don't) Matter — The Comey/Flynn Incident
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.
Versus Trump: (Judicial) Independence Day Spectacular!
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!
Versus Trump: The Collusion Lawsuit
On this week’s episode of Versus Trump, Charlie and Easha discuss a newly-filed lawsuit brought by private plaintiffs who allege that Trump's campaign and Trump advisor Roger Stone conspired with Russians to disclose private information about the plaintiffs. Listen now!
The Rule of Law Means Little If The President’s Word Means Nothing
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.
Announcing Take Care
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.
Pence and Obstruction of Justice
Exploring Vice President Pence’s potential criminal jeopardy for conspiring to obstruct justice, aiding the obstruction of justice, and 'misprision of a felony' in concealing the obstruction of justice.
Versus Trump: "What About Congress? + Steven Wu"
On a new episode of Versus Trump, Take Care's podcast, Easha, Jason, and Charlie discuss Congress's role and powers in investigations of the Executive. Then, Jason talks with Steven Wu, a Deputy Solicitor General in the Office of New York Attorney General Eric Schneiderman, about the case against Trump University, the active role of states in recent years, and other issues in which New York is adverse to the President. Listen now!
Uphold the Oath
Federal employees are publicly reaffirming their loyalty, patriotism, and commitment to the Constitution.
Antitrust After the Fall
Trump has needlessly created many reasons to look skeptically on DOJ's justified, important lawsuit to prevent AT&T and Times Warner from merging.
Trump, Trust, and the 25th Amendment
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.
Versus Trump: #MeToo vs. Trump
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!
The One Question Worth Asking
Here's the most important question to ask about indictments, pardons and self-pardons, and obstruction of justice.
Why Hasn’t Rod Rosenstein Recused Himself From the Russiagate Probe?
Deputy Attorney General Rod Rosenstein should recuse himself from the probe into the Trump campaign’s ties to Russia and the President’s apparent attempt to obstruct the FBI’s inquiry. Rosenstein himself played a key role in the events at the center of the controversy, and his continued involvement casts a shadow over the ongoing investigation.
Pardon But Don’t Forget
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.
Those Who Do Not Know History
On the first full day of Passover, the Trump Administration offered several lessons about institutionalized racism and ethnic cleansing.
Russia and 'Enemies' under the Treason Clause
By Carlton Larson: If we use “treason” in a loose, rhetorical sense, it is plausible to claim that Trump, Jr., Kushner, Manafort and others committed treason by knowingly meeting with a Russian operative for the purpose of obtaining dirt on Hillary Clinton. But the argument fails as a legal matter.
Remarks at the Boston March for Truth
"Whether the structural safeguards the Framers inscribed in the Constitution are up to the task of constraining Trump’s authoritarian tendencies are anybody’s guess. In the end, only the force of public opinion, especially as expressed in elections, can save American democracy."
SCOTUS Warns Against Appointing "Unfit Characters"
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.
Versus Trump: Trump The Trustbuster (Interview with Lina Khan)
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!
What If There’s a Fake Tape?
Many are speculating about whether President Trump recorded his conversations with fired FBI Director Jim Comey, and Wikileaks has even offered a reward for any Trump-Comey recordings. But new technology allows creation of fake recordings with real people's voices. Now is a good time to start thinking about this technology's implications for our democracy and legal system.
Dark Money and Judicial Nominations Under Trump (And Beyond)
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.
Trump’s Approach to Crime & Punishment
The president has continued existing policies, but also signaled a misplaced (and dangerous) reliance on immigration enforcement and incarceration to protect the public.
Presidential Bad Faith
If the President cannot be trusted to “take Care that the Laws be faithfully executed,” then that obligation falls on “We the People."
Versus Trump Podcast: Prosecuting Trump FAQ + James Williams
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.
By Bernadette Meyler: History teaches that Trump should not be considering whether he possesses the power to pardon himself but rather what the consequences of employing that power would be.
First Tragedy, Now Farce
Those who forget history are indeed doomed to repeat it. But when history repeats, it often shifts in the repetition: first acts come as tragedy and then return as farce. By many measures, Nixon was a tragic figure. Trump, by contrast, is pure farce. And unlike tragedies, farces don’t end with a flash of recognition—a moment of self-awareness like King Lear’s on the heath. Farces just keep going until someone cries "enough!"
Updates | The Week of March 27, 2017
The United States failed to appear before hearings at the Inter-American Commission on Human Rights last week, prompting questions on whether the Trump Administration believes in the rule of law. On the domestic front, the Trump Administration proposed eliminating funding for the Legal Services Corporation, a cut that would fall on the heads of the poor, rural voters who make up President Trump's base.
Updates | The Week of May 29, 2017
Analysis provided of President Trump's daily briefing, Vice President Pence's commencement speech, and the proper framing of the judiciary's role during this Administration.
Updates | The Week of May 8, 2017
President Trump's unexpected dismissal of FBI Director James Comey shocked the legal world. The White House's explanations for the firing changed over the course of the week and were contradicted in testimony before Congress by Acting FBI Director Andrew McCabe, deepening concerns over the President's motivations.
Updates | The Week of September 11, 2017
Trump's decision to end DACA spurs a flurry of legal challenges; his election fraud commission gets into more trouble; and the Supreme Court stays the Ninth Circuit's latest trvel ban ruling.
Updates | The Week of July 17, 2017
President Trump's comments to the New York Times about Special Counsel Robert Mueller raised further questions about the President's respect for the rule of law.
Update | Week of October 30, 2017
President Trump’s efforts to deflect attention from the Mueller investigation by calling for criminal investigations into his political opponents threatens the rule of law.
Updates | The Week of September 4, 2017
The President orders an end to DACA and has Attorney General Jeff Sessions announce the change; Trump Jr.'s June 2016 meeting with a Russian lawyer undergoes more scrutiny; Trump's 16 nominations to the federal judiciary spur challenges and concern.
Updates | The Week of July 24, 2017
President Trump publicly attacked Attorney General Jeff Sessions and was reported to be considering pardons for himself and those connected to the Russia investigation.
Updates | The Week of August 14, 2017
Special Counsel Mueller may have a "middle-ground" alternative to indictment: presentment. A former Department of the Interior official claims to have been wrongfully removed because of his comments on climate change.
Updates | The Week of April 24, 2017
The Inspector General of the Department of Homeland Security has opened an investigation after U.S. Customs and Border Protection sent a summons to Twitter seeking to identify the person behind an anti-Trump Twitter account. At Balkinzation, Michael Klarman discussed how the election of President Trump supports the Framers’ concern that democracy would ultimately lead to the election of a demagogue.
Updates | The Week of July 31, 2017
White House Chief of Staff Reince Priebus has resigned and will be replaced by Secretary of Homeland Security John F. Kelly. A new lawsuit alleges that White House officials urged Fox News to push a false story about the murder of Seth Rich.
Updates | The Week of June 12, 2017
Special counsel Robert Mueller has requested interviews with high-ranking intelligence officials, and is investigating potential obstruction of justice by President Trump. Reports of Mueller's potential firing are helping to break down political norms.
Updates | The Week of August 21, 2017
The President is isolated from his cabinet and obstructing his own policy agenda. Some argue that courts give too great of deference to the executive branch when "national security" is invoked.
Updates | The Week of May 15, 2017
Extensive commentary continued this week on the firing of FBI Director James Comey. Reports that President Trump asked Director Comey to stop the FBI’s Flynn investigation threw the White House into even greater turmoil. The Justice Department appointed Robert Mueller III, former FBI Director, special counsel of its Russia investigation.
Updates | The Week of October 2, 2017
The Office of Special Counsel determined that U.N. Ambassador Nikki Haley violated the Hatch Act. A federal judge concluded that the President's pardon of Sheriff Joe Arpaio is valid.
Updates | The Week of September 25, 2017
Reports suggest Steve Bannon attempted to plant a "mole" at Facebook before the 2016 election. It was revealed that several White House officials, including Jared Kushner, used private email accounts to conduct government business.
Updates | The Week of March 20, 2017
President Trump doubled down on his attacks on the judiciary. His “adversarial relationship with the truth” continued wrecking havoc for his staff.
Updates | The Week of April 3, 2017
President Trump's legal authority to conduct a war against ISIL is being challenged. He also believes he is immune from suits challenging his private conduct while in office.
Updates | The Week of July 24, 2017
President Trump continued his public attacks on Attorney General Jeff Sessions. Concerns remain over rumors that the President inquired about his power to self-pardon.