Lark Turner  //  2/11/18  //  Topic Update


On this week’s Versus Trump, Charlie Gerstein and Easha Anand discussed the Russia investigation, the Nunes memo, and whether President Trump will be interviewed by the Special Counsel (Take Care).



Despite discussions at a unity retreat in West Virginia, Republican lawmakers were unable to reach consensus on their strategy for DACA (The Hill).

  • The White House says Congress must accept its terms on immigration, signaling little flexibility (WSJ).
  • President Trump’s immigration policies would have banned over half of all legal immigrants since 1965, nearly 23 million people, fundamentally changing America’s population, economy, and culture, writes David Bier for Cato @ Liberty.
  • The Trump administration has immigration backward, writes The New York Times Editorial Board.

Increasing numbers of states and localities are resisting cooperation with federal immigration agentsaccording to the American Immigration Council.

A draft of a report from the Department of Homeland Security called for long-term surveillance of some Muslim immigrants (The Hill).

President Trump is not expected to extend a March 5th deadline for when legal protections and work permits for DACA recipients begin to expire (WaPo).

President Trump plans to establish a National Vetting Center for immigrants and visitors (The Hill). 

ICE officials are reportedly looking into the agency joining the Intelligence Community. Allowing this would be a mistake, putting our civil liberties at riskwrites Matthew Feeney at Cato @ Liberty.

A Rhode Island woman appeared for an immigration interview and ended up in ICE detention; a federal judge has stayed her deportation pending review of the petition challenging her detention (ACLU).

Conservative politicians rushed to make political hay out of the death of Border Patrol agent Rogelio Martinez, blaming his death on an attack, but an FBI investigation uncovered no evidence of an attackwrites Alex Nowrasteh for Cato @ Liberty.

  • President Trump had used the agent’s death to call for border wall funding (WaPo).



A California judge ruled that a bakery can continue to refuse to make wedding cakes for same-sex couples (Bakersfield Californian).

  • The ruling blames the lesbian couple plaintiffs for the discrimination they suffered, and if upheld on appeal would create a constitutional right to discriminate, writes Rose Saxe for the ACLU.

The Senate Judiciary Committee approved Howard Nielson Jr., who is nominated to the federal District Court in Utah, over accusations of anti-LGBT bias (Washington Times).

  • Lamba Legal issued a statement decrying Nielson’s anti-LGBT record.



Calls for arrest or prosecutions in our national political discourse have a damaging effect on our democracy, argues Joshua Geltzer at Just Security.

President Trump attacked Democratic lawmakers who did not applaud during the State of the Union, calling their behavior “Un-American” and “treasonous” (WaPo).

State courts have an important role to play in congressional districting and the US Supreme Court was correct to stay out of the Pennsylvania Supreme Court casewrites Vikram David Amar for Verdict.

  • The Pennsylvania Supreme Court has now released its opinion, which Rick Hasen discusses and links here.
  • The Supreme Court’s decision not to intervene in the debate over congressional redistricting in Pennsylvania could have considerable impact on the midterm elections (WSJ).

Former Attorney General Eric Holder is leading the National Democratic Redistricting Committee, which intends to pour millions of dollars into all-GOP states to attack gerrymandering (NYTimes).

The extraordinary role played by very few wealthy donors may be the most important element of the post-Citizens United erawrites Bob Biersack for OpenSecrets.

  • Alaska is at the heart of a legal challenge aimed at getting the Supreme Court to revisit Citizens United (SF Chronicle).



Records suggest President Trump personally profited from Trump from America, the nonprofit presidential transition organization (Center for Public Integrity).

The President should be sued in his personal, not official capacity, in the Emoluments Clause litigation, write Josh Blackman and Seth Tillman at The Volokh Conspiracy.

  • But there is no cause of action for a suit against the President in his individual capacity for violations of the Emoluments Clausesargue Josh Blackman and Seth Barrett Tillman at The Volokh Conspiracy.
  • The President’s acceptance or receipt of profits is not executive action in violation of the emoluments clauses, writes Joshua Blackman for his blog.

President Trump nominated Emory Rounds for head of the Office of Government Ethics. Rounds is that office’s current associate counsel (Politico).

  • Rounds drew praise, but he will face a challenging context (Sunlight Foundation).
  • The Sunlight Foundation ran down “This Week in Conflicts,” detailing significant conflicts of interest within the Trump administration (Sunlight Foundation).



The Trump Administration’s inaction enables ISIS’s success in internet recruitment and message, and needs to be countered with deliberate disruption practices, argues Michael Smith at Lawfare.

Secretary of State Rex Tillerson reported that the U.S. may restrict oil sales to Venezuela, in an attempt to pressure the government to resolve political and economic crisis (The Hill).

President Trump’s comments about Latin American countries as sources of illegal drugs may undercut the aims of Secretary of State Tillerson’s trip (WSJ). 

North Korea’s foreign ministry spokesman called President Trump’s State of the Union address “the height of Trump-style arrogance, arbitrariness and self-conceit” (The Hill).

The Trump Administration released a new Nuclear Posture Review on Friday, in which it announces a need to modernize weaponry in response to Russia’s efforts, sparking a “new kind of nuclear arms race” (NYT).

  • Iranian President Hassan Rouhani accused the United States of threatening Russia with new nuclear weapons (The Hill).

In a surprise move, Secretary Mattis fired the top official overseeing the trials of the five men accused of plotting the 9/11 attacks and other alleged war criminals held at Guantánamo (Miami Herald).

President Trump’s recent rhetoric suggests we may see a bipartisan effort to push through a criminal-justice reform bill in Congress this year (New Republic).

A Trump Administration plan to move oversight of drug prevention programs to the Justice Department is drawing protest from state and local law enforcement officials (NYT).

During an intelligence hearing, Secretary Mattis suggested plans for new U.S. nuclear weapons could be used as a bargaining chip with the Russians (WaPo).

Attorney General Jeff Session yesterday gave an extended speech outlining his law-and-order approach to his job (Sentencing Law and Policy).

  • Attorney General Jeff Sessions is trying to take America’s criminal justice system back to the days of harsh penalties for crime and hardline drug laws, writes Amelia Thomson-DeVeaux for FiveThirtyEight.

Mandatory minimums distort our courtswrites Jeffrey Bellin at The Marshall Project, recounting the story of Joseph Tigano’s seven-year wait for a trial.

Facing stiff resistance from diplomats and lawmakers, Secretary of State Tillerson is scaling back his plans to restructure the State Department (Politico).

Governors in capital cases seem to give weight to capital jurors who call for a commutationwrites Douglas Berman at Sentencing Law and Policy, detailing a recent reprieve issued by Ohio Governor John Kasich.

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) asked for comments about bump stocks—which the Las Vegas gunman used to massacre almost 60 people—and received more than 36,000 responses. The ATF has not yet proposed any specific regulations (The Hill).



As the Trump White House seeks to dismiss a lawsuit accusing it of violating federal records laws, White House lawyers have warned staff not to use encrypted messaging apps for official government business (WaPo).

Military parades are about ego and power, so of course President Trump wants onewrites Ishaan Tharor for the Washington Post.

Defense Secretary Jim Mattis has had to act as a check on an impulsive president; the question is how long that role can persist (WaPo).

White House Chief of Staff John Kelly has taken another hit to his credibility after he defended Rob Porter, an aide accused of domestic violence (WaPo).

  • White House officials said they regret the way they handled the accusations against Rob Porter (NYTimes).



The Trump Administration will withdraw its nomination of climate change skeptic Kathleen Hartnett White to lead the Council on Environmental Quality (NYT).

A top EU official warned that any U.S. tariffs on European exporters would be matched in kind on American exporters (The Hill).

A consent order negotiated between the Federal Reserve and Wells Fargo prevented the bank from growing and emphasized the responsibility of directors (NYT).  

The Labor Department’s Office of the Inspector General is launching an investigation into the Department’s proposed rulemaking on tip pooling (The Hill).

  • Several state AGs are calling on DOL to withdraw the proposed rule.
  • The proposed rulemaking is likely to benefit employers, who may be able to keep the tips for themselves.

The CFPB under White House budget chief Mick Mulvaney is pulling back from some of its previous interpretations of consumer protection laws (LA Times).

  • The CFPB is putting its investigation into Equifax on hold while other agencies press forward (Consumer Finance Monitor).
  • In response to a question about the CFPB’s inaction with respect to Equifax’s 2017 data breach, Treasury Secretary Mnuchin said he would take up the matter with Mick Mulvaney and the Financial Stability Oversight Council (Consumer Finance Monitor).

President Trump has not yet decided whether to support a treaty amendment that seeks to phase out certain greenhouse gases (The Hill).

The President’s recent tweet on health care demonstrates his inconsistent positions on health care policy (Take Care).

Ten states and a coalition of environmental groups sued the Trump Administration for delaying enforcement of an EPA rule meant to protect waterways (The Hill).

  • You can read the complaint here.

The Trump Administration is attempting to change regulations without engaging in a serious analysis of the costs and benefits involved, which might spell legal trouble for the underlying regulations (Bloomberg).

The Trump Administration is considering adding new work requirements and increasing rent for people living in federally subsidized housing (The Hill).

The White House advised government agencies to prepare for a government shutdown as Congress struggled to pass a budget before a midnight deadline (WaPo).

The Senate reached a two-year budget deal that raises spending but does not address immigration (NYTimesWSJ).

  • House Minority Leader Nancy Pelosi spoke for over eight hours in opposition to the spending bill because that bill does not address immigration (NYTimesImmigrationProf Blog).
  • The New York Times ran through the provisions hidden in the Senate’s budget bill (NYTimes).

The Office of Special Counsel warned federal agencies that non-disclosure agreements, insider threat programs, and employee monitoring programs may violate whistleblower protections (POGO).

More than 30 senators are asking the CFPB for details about the agency’s investigation into Equifax’s 2017 data breach following reports that the agency has been dragging its feet (The Hill).

Marvin Goodfriend, President Trump’s pick for a Federal Reserve Board seat, faces a tough route to Senate confirmation after several Republican Senators signalled their opposition (The Hill).

The Trump administration has taken bold steps in rolling back climate policies, but it has had eight major setbackswrites Dan Farber for LegalPlanet.

  • EPA Administrator Scott Pruitt’s comments that we do not know the ideal climate are a dangerous distraction, writes Holly Doremus for LegalPlanet.
  • The EPA must act on Connecticut’s request to crack down on pollution from a Pennsylvania power plant, ruled a federal judge (The Hill).
  • A Senate committee voted 11-10 to advance former coal lobbyist Andrew Wheeler, President Trump’s nominee for deputy administrator of the EPA (The Hill).
  • The Trump administration will hold a California hearing on offshore oil drilling; the hearing is likely to be fundamentally flawed, writes Richard Frank for LegalPlanet.
  • Eric Biber concluded his three-part series examining the implications and context of the Trump administration’s offshore drilling proposal here.

The recent boom in cryptocurrencies has sent federal officials scrambling (The Hill).

Anti-union challengers are on the verge of Supreme Court victorywrites Richard Wolf for USA Today

The Department of Homeland Security is falling short in managing contractors who waste or abuse taxpayer resourceswrites Neil Gordon at POGO.



President Trump’s overwhelmingly male appointments across the executive and judicial branches have closed the door for women and will have long-term consequences, write Leah Litman and Helen Marie Berg at Take Care.

AG Sessions has been silent as President Trump has attacked the Department of Justice, risking its independence and morale (NYT).

A federal court has dismissed a credit union’s lawsuit challenging President Trump’s appointment of Mick Mulvaney as Acting Director of the CFPB (Consumer Finance Monitor).

A new article on congressional limitations on jurisdiction stripping reminds us that it may be a good time to find limits to the power of political actors to undercut judicial checks on their power (Take Care).

The Nunes memo’s biggest casualty is congressional oversightargues Patrick Eddington at The Hill.

The United States Supreme Court remains “ludicrously[] opposed to cameras” in the courtroomwrites Jeffrey Toobin for the New Yorker, highlighting the effect of cameras in the Larry Nassar trial.



There are problems with the constitutional arguments against indictment of a president, argues Bob Bauer at Lawfare.

At this stage, it is not necessary or helpful to seek to “lock up” President Trumpwrites Jed Shugerman at his blog, commenting on the question of whether a federal prosecutor can indict a sitting president.



In response to Friday’s release of the Nunes memo, the House Intelligence Committee voted unanimously in favor of releasing a counter memo written by Democratic members of the Committee (NYTWaPo).

  • Four Republican Intelligence Committee members disagreed that the Nunes memo undermines the Mueller investigation, distancing themselves from President Trump’s assertions (WaPo).
  • Former CIA Director John Brennan criticized the Nunes memo as partisan and an abuse of Rep. Devin Nunes’s position on the House Intelligence Committee (WaPo).
  • Rep. Adam Schiff argued that President Trump is trying to weaponize the Department of Justice as a “political tool” (The Hill).
  • Former Trump campaign manager, Corey Lewandowski, argued on “Fox & Friends” that the Nunes memo evidences “gross[...] abuses of power” by the FBI and DOJ (The Hill).
  • The Nunes memo suggests the FBI may have violated “Woods Procedures,” procedural rules designed to prevent unverified material from appearing before the FISA court, writes Sharyl Attkisson at The Hill.
  • Jed Shugerman at Take Care suggests that the Nunes memo did not address vital aspects about the FISA warrant on Carter Page, thus undercutting its credibility.
  • Samantha Vinograd at Just Security argues that the Nunes memo is a costly distraction that will have long-term consequences for U.S. intelligence alliances.
  • Devin Nunes should be ashamed of himself, writes David Post for the Volokh Conspiracy.
  • Senate Judiciary Committee Chairman Senator Chuck Grassley and Senator Lindsey Graham released a letter outlining concerns over the FISA application for surveillance of Carter Page (Just Security).
  • Buried in the White House and House Intelligence Committee’s back-and-forth over the Nunes memo is an effort by White House Counsel Don McGahn to weaken congressional oversight, writes Daniel Schuman for Just Security.
  • Ryan Goodman, writing for Just Security, dissects that letter here.

President Trump’s lawyers want him to refuse an interview in the Mueller inquiry, which could set up a prolonged court fight (NYT).

A FOIA request revealed the FBI’s real reaction to the firing of Director Comey, contradicting the White House’s version of events (Lawfare).

Congress can protect Mueller by passing legislation that grants the special counsel for-cause protection against firing by the president, writes Eric Posner at the New York Times.

The New York Times has asked the Foreign Intelligence Surveillance Court to unseal documents related to the wiretapping of Carter Page (NYT).

FISC could be uniquely positioned to resolve the Nunes memo controversy by stating whether or not it views any of memo’s information on Steele as having any material impact on the validity of its prior orders (Lawfare).

  • FISC should announce in public whatever steps it takes in response to the House Intelligence Committee memo, writes Benjamin Wittes for Lawfare.

Russian hackers successfully penetrated voter registration systems in several states prior to the 2016 election, said Jeanette Manfra, the head of cybersecurity at the Department of Homeland Security (NBC News).

David Laufman, a Justice Department official who helped oversee the probes into Russian interference in the 2016 election and Hillary Clinton’s email server, stepped down, citing personal reasons amid stepped-up attacks from the Trump administration and allies (WaPo).

Russian hackers are also targeting employees of major defense contractors working on sensitive US military programs (The Hill).

Text messages between two FBI employees show that President Obama wanted an update on Russia, not the Clinton probe as a GOP Senator had suggested (WSJ).

  • President Trump had described the tweets as “BOMBSHELLS” (WaPo). 

Democrats on the Senate Judiciary Committee wrote a public letter asking committee chairman Senator Chuck Grassley for public hearings on Russia’s election meddling (PoliticoThe Hill).

There are really big questions waiting for answers in the Trump-Russia investigationwrites Kate Brannen at Just Security, running through the investigation’s “known unknowns.” 

Latin America needs to prepare now for Russian election meddlingwrite Tim Mauerer and Agustin Rossi for Lawfare

Updates | The Week of February 19, 2018

2/25/18  //  Daily Update

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.

Jacob Miller

Harvard Law School

Updates | The Week of February 5, 2018

2/11/18  //  Daily Update

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

1/28/18  //  Daily Update

President Trump attempted to fire Special Counsel Mueller in June 2017 over his obstruction of justice probe, but refrained after White House Counsel Don McGahn threatened to quit.