Versus Trump: The End...Or The Beginning?
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?
Versus Trump: The Aftermath + Interview with Joshua Matz
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!
Versus Trump: The Electoral College Votes
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!
Versus Trump: Going to Church In Times of COVID
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!
Versus Trump: Legal Update + The GSA Travesty
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!
Trump's Lawyers Should Be Sanctioned
Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.
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.
Versus Trump: Uncle Charlie's Comity Hour
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!
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.
Versus Trump: Trump's No Good, Very Bad Day
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!
What Will You Do if Mueller is Fired?
If your tendency, like mine, is to deliberate when called to action, my humble suggestion is simply this: Deliberate now. Reflect on what you will do now. Decide now.
Versus Trump: Kavanaugh's Coming, Plus Updates
On this week's episode of Versus Trump, Jason, Charlie, and Easha discuss the retirement of Justice Kennedy and how his presumptive replacement may rule in Versus Trump cases. They then do some quick hits to update a handful of important cases. Listen now!
Versus Trump: 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!
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: States vs. Conscience Rule
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!
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.
A Tainting of Judicial Independence
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.
Versus Trump: How Bad Is It?
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!
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: Stop The Wall!
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!
Versus Trump: Can You Hear The Whistle Blowing?
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!
Versus Trump: Method or Manner?
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!
Versus Trump: Texas & Trump Versus The ACA
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!
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.
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: Versus Whitaker (JH solo)
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!
Versus Trump: The Shutdown Special
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!
Killing The Dream
Donald Trump's apparent reasons for (apparently) rescinding DACA make little sense.
Versus Trump: Ask Charlie About The Census
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!
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.
The Court of Public Opinion
What does it mean to say that special prosecutors are ultimately answerable to 'the American people'?
Versus Trump: Straight to the Supremes (We're Back!)
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!
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?
Inside the Doomed Union Refund Lawsuits, Part II
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.
How To Decide A Very Close Election For Presidential Electors: Part 1
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.
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!
My Speech at Harvard Law School’s 2019 Class Day
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.
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.
Versus Trump: Bet You Can't Untie This Knot
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!
Versus Trump: On Flynn, Bolton, and Mary Trump
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!
Versus Trump: What's Left Of Asylum Law?
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!
Versus Trump: The Fiduciary Rule Comes And Goes
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!
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!
Versus Trump: Can The Presidential Election Be Cancelled?
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!
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.
Controlling Our Losses
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.
Versus Trump: Trump vs. The Equal Rights Amendment
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!
Versus Trump: Vs. The Inaugural Committee, Plus Bolton Update
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!
Trump and Text: An Open Relationship
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.
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.
We thank all of the scholars and lawyers who participated in this symposium on our book, How to Save a Constitutional Democracy.
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?
Versus Trump: Trump v. Everyone Who Wants His Taxes
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.
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.
Legitimacy and the Supreme Court
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.
Versus Trump: The Military in the U.S. and Proxy Voting in the House
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!
Versus Trump: Manafort Sues, and Trump Threatens
On a new episode of Versus Trump, Jason, Easha, and Charlie tackle an unexpected new lawsuit against the Trump Administration by, of all people, Paul Manafort. And they discuss the President's threats to sue the publisher of Fire and Fury for defamation. Listen now!
How the Russian Conspiracy Injured Real, Innocent People
On Thursday, the one year anniversary of Special Counsel Robert Mueller’s appointment, attorneys for Donald Trump will stand up in a court of law to answer questions for the first time related to Russia. But it won’t be in the Mueller investigation.
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!
Versus Trump: What Will Happen To Michael Flynn?
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!
What Happens If The Worst Happens?
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.
Congressional Oversight Is Not Presidential Harassment
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
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 The Racketeer?
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!
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!
Are We All Textualists Now?
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.
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.
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: Trump Versus ALJs?
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!
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 SDNY Debacle And The Supreme Court
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.
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: Legal Challenges, Plus The Post Office Case
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.
Versus Trump: The Past And Future Of Gerrymandering
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!
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!
Versus Trump: Versus The Post Office
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!
Why Impeachment Must Remain A Priority
The appointment of Special Counsel Robert Mueller must not lead progressives to put the thought of impeaching President Trump on a back-burner.
Versus Trump: Blurring Public and Private Conduct
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!
Versus Trump: Versus Whitaker, In-Depth
On this week's episode of Versus Trump, the gang is re-united, and they discuss the Supreme Court motion contending that Matthew Whitaker was not legally appointed as Acting Attorney General. Listen now!
Ten Questions for a New FBI Director
By Allison Murphy: Given President Trump’s documented and acknowledged efforts to interfere with the independence of the FBI, the Senate should presume that could continue under a new FBI Director. It is therefore incumbent upon Senators to ensure that any Trump nominee for FBI Director commits to certain baseline aspects of independence and impartiality before any new nominee is confirmed. Here are 10 questions that require answers.
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.
Twitter and the Political Community
By communicating mainly through Twitter, Trump has asserted the power to define his own political community—and to exclude people from it.
Versus Trump: Watch Out, Watch List
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!
Versus Trump: Huawei (or China??) Versus Trump
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!
Versus Trump: Was Impeachment Good or Bad?
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!
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.
How Does The House Decide To Sue?
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?
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.
Versus Trump: Trump vs. The Mainstream Media
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!
Versus Trump: An Immigration Omnibus
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!
Versus Trump: An Impeachment Primer...
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!
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.
Versus Trump: Trump Loses On Family Planning, Wins In The Ninth, and More
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!
Was Impeachment Good Or Bad? The Conclusion
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?
Prosecuting the President
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?
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: 100!
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!
Versus Trump: Dems vs. The IRS?
This week on Versus Trump, Jason, Charlie, and Easha discuss the brewing dispute over Trump's tax returns. 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.
Versus Trump: Trump Wins One Versus Stormy
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!
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.
Versus Trump: Secret Subpoenas, A New AG, and Live Listener Feedback
On this week's episode of Versus Trump, Charlie, Jason, and Easha hit three topics: the mysterious case of the subpoena to a foreign corporation that may be related to the Mueller investigation; the nomination of William Barr as Attorney General; and the temporal nature of an emergency, as prompted by live listener feedback. Listen now!
Pence and Obstruction of Justice
Exploring Vice President Pence’s potential criminal jeopardy for conspiring to obstruct justice, aiding the obstruction of justice, and 'misprision of a felony' in concealing the obstruction of justice.
Versus Trump: "What About Congress? + Steven Wu"
On a new episode of Versus Trump, Take Care's podcast, Easha, Jason, and Charlie discuss Congress's role and powers in investigations of the Executive. Then, Jason talks with Steven Wu, a Deputy Solicitor General in the Office of New York Attorney General Eric Schneiderman, about the case against Trump University, the active role of states in recent years, and other issues in which New York is adverse to the President. Listen now!
Uphold the Oath
Federal employees are publicly reaffirming their loyalty, patriotism, and commitment to the Constitution.
Versus Trump: Listener Mailbag
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!
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.
Versus Trump: How Do We Protect Our Democracy?
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!
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!
Versus Trump: Who Are Presidential Electors?
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.)
Versus Trump: Are Tax Returns Coming Soon?
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!
The One Question Worth Asking
Here's the most important question to ask about indictments, pardons and self-pardons, and obstruction of justice.
Versus Trump: Movin' Right Along
On a new episode of Versus Trump, Jason and Charlie revisit two lawsuits in which the Plaintiffs have recently successfully fought off motions to dismiss and been allowed to proceed. And in a new installment of "Sanctions Corner with Uncle Charlie," Charlie answers questions about the FBI raid on the office of Trump lawyer Michael Cohen. Listen now!
The DACA Trap
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.
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.
Versus Trump: The Coming Exec Privilege Showdown
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!
Versus Trump: Sanctions Versus DeVos!
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!
Versus Trump: Amazon vs. Trump
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!
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.
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.
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.
No, President Trump, You Are Not Above the Law
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.
How to Save a Constitutional Democracy
Our new book offers a distinctive diagnosis of how democracy is lost, and then roadmaps various pathways along which a reform agenda might proceed.
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.
The Writing Is on the Wall for Obamacare
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.
Versus Trump: Versus The Trump Foundation
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!
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.
Versus Trump: Healthcare Update (With Guest Greer Donley)
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!
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.
The Court of Public Opinion
Because the special prosecutor answers ultimately to the court of public opinion, he must answer to that court in his final report
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!"
One Among Equals
There are three fundamental limits on the President's pardon power
The Contempt of William G. Barr
Attorney General Barr recently said that "the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law." Barr's outright partisanship relies on misunderstandings of history and a misguided view of the role of the attorney general.
The Costs Of The Census Debacle
Even though the administration ultimately caved and chose not to include a citizenship question on the census, its two-week flirtation with including a citizenship question on the 2020 census had significant costs.
Versus Trump Live: Fairweather Federalism?
On this week's special live episode of Versus Trump, Easha, Charlie, and Jason share the stage at the ACS National Convention in Washington, DC with Maryland Attorney General Brian Frosh and Stanford Law's Pamela Karlan. They discussed several important cases brought by states against the Trump Administration as well as the broader federalism issues presented by Democratic Attorneys General being involved in so many lawsuits against the federal government. Listen now!
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.