8/14/17  //  In-Depth Analysis

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

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.

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.

8/3/17  //  Quick Reactions

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

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!

7/23/17  //  Daily Update

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.

7/16/17  //  Daily Update

The Administration's defenses in recent litigation are self-serving and decidedly unpresidential.

6/25/17  //  Daily Update

Reporters analyze a troubling trend in which public business is increasingly being handled behind closed doors.

6/18/17  //  Daily Update

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.

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!

6/4/17  //  Daily Update

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.

5/14/17  //  Daily Update

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.

3/16/17  //  Commentary

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

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.

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.

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.

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.

4/17/17  //  Commentary

Neomi Rao’s nomination to serve as Administrator of the Office of Information and Regulatory Affairs (OIRA) is part of Trump and Bannon’s war on the administrative state.

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.

3/22/17  //  Commentary

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.

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.

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!

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.

6/12/17  //  In-Depth Analysis

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

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.

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.

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.

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.

4/19/17  //  In-Depth Analysis

The additional plaintiffs in the CREW case unquestionably have standing.

7/26/17  //  Commentary

Donald Trump’s Firing Of Jim Comey Provides A Template For How He Will Fire Jeff Sessions

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.

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

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.

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?

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.

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.

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?

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.

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.

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.

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?

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.

5/10/17  //  In-Depth Analysis

It'll only matter if they make it matter.

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.

5/4/17  //  Commentary

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

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.

7/27/17  //  Commentary

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

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?

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

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.

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.

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.

7/25/17  //  Commentary

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

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.

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.

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.

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.

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.

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!

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.

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.

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.

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.

4/26/17  //  Quick Reactions

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

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.

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?

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.

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.

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.

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.

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.

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.

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.

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?

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.

5/25/17  //  Commentary

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

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.

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.

7/25/17  //  Commentary

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

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.

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?

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.

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.

7/13/17  //  Commentary

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

5/11/17  //  Uncategorized

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

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!

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.

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.

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.

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.

5/25/17  //  Quick Reactions

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

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.

5/11/17  //  Commentary

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

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.

6/13/17  //  Commentary

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

7/25/17  //  Commentary

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

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.

4/12/17  //  Commentary

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

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.

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.

4/28/17  //  Commentary

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

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."

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.

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.

5/18/17  //  Commentary

Yesterday, a Washington Post story indicated that Republican House leadership may have known that Russia had hacked the DNC and was delivering the contents of the hack to the Trump campaign.

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.

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.

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.

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."

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.

5/17/17  //  Quick Reactions

In a welcome development, Deputy Attorney General Rod Rosenstein appointed former FBI Director Robert Mueller as a special counsel to investigate Russia-related (criminal) wrongdoing.

7/24/17  //  In-Depth Analysis

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.

5/15/17  //  In-Depth Analysis

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!"

3/17/17  //  Commentary

President Obama pushed the limits of enforcement discretion. Trump may be worse. Will anyone check him if he is?

4/2/17  //  Daily Update

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.

4/30/17  //  Daily Update

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.

5/21/17  //  Daily Update

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.

3/26/17  //  Daily Update

President Trump doubled down on his attacks on the judiciary. His “adversarial relationship with the truth” continued wrecking havoc for his staff.

4/9/17  //  Daily Update

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.