Lark Turner  //  11/12/17  //  Topic Update


On this week’s Versus Trump, Jason Harrow and Easha Anand discuss Hargan v. Garza, the President’s trans ban, Muslim Ban 3.0, and the “International Entrepreneur Rule,” a proposed USCIS regulation to increase foreign entrepreneurship in the U.S.



Following an ACLU lawsuit, a 10-year-old immigrant with cerebral palsy who was detained after surgery was released from immigration custody (NYT).

DOJ details plan to slash immigration court backlog by adding judges and refusing to extend delays in deportation cases (WaPo).

 DHS announced that they will end temporary protected status for Nicaraguans, but did not make a decision on the protected status for Hondurans (WaPoThe Hill).

  • Approximately 2,500 Nicaraguans present in the U.S. will lose their permission to stay under the Temporary Protected Status Program, effective 2019, DHS announced (NYT).
  • White House Chief of Staff John Kelly unsuccessfully tried to pressure DHS not to extend residency permits for tens of thousands of Hondurans living in the U.S. (WaPoNYT).

Spending more resources on border security would be counterproductive, argues Kari E. Hong in Take Care.

The criminal conviction of Mohammed Jabbateh exemplifies how prosecutors use immigration-related crimes “to pursue criminal accountability for serious violations of international law, or atrocity crimes committed abroad when the perpetrator is present here,” writes Alexandra Insinga at Just Security.

The diversity lottery system may be flawed, but is fares better than most alternatives and in any event, Congress would likely eliminate the 50,000 immigration spaces rather than redistribute them if the program ended, argues Michael Dorf on Take Care and Dorfon Law.

Advocates have petitioned the Ninth Circuit to appoint private counsel to prosecute Joe Arpaio and challenge his pardon after DOJ declined to prosecute in light of President Trump’s involvement in the case (Protect Democracy).

Continued protection and a path to citizenship for DACA recipients is both essential to military readiness and the honorable response to immigrants’ military service, argues former Secretary of Defense Robert Gates on the New York Times.



In a Supreme Court filing, DOJ accused the ACLU of misconduct and is seeking sanctions in the recent Jane Doe abortion case (NYTWaPo)

  • You can read DOJ’s filing at the Supreme Court here.
  • The Solicitor General’s certiorari petition in Hargan v. Garza is unusual in purpose and the weakness of its arguments, notes Marty Lederman on Balkinization.
  • The Administration’s arguments in Hargan v. Garza constituted a claim that the government need not follow abortion law, writes Linda Greenhouse at the The New York Times.

 A federal court’s decision to enjoin President Trump’s ban on transgender people in the military reinforces that the decision was motivated by animus (Take Care).

Penny Nance, President Trump’s rumored pick for Ambassador-at-Large for Global Women's Issues, has a long record of lobbying against the interests of women and other LGBT people, write Brian Tashman and Gabriela Meléndez Olivera at the ACLU.

Following the logic of his earlier opinions addressing government compelled speech, Chief Justice Roberts may side with plaintiffs claiming anti-gay discrimination in the Masterpiece Cakeshop case, argues David H. Gans on Slate.

Citizen activism, not litigation alone, must be the driving force in opposition to the Trump Administration, argues David Cole at the ACLU.



The Pentagon has released the Marine General held at Guantanamo in a Military Commissions Dispute (WSJ).

The Pentagon says securing North Korean nuclear sites would require a ground invasion (WaPo).

  • President Trump has called for total denuclearization of North Korea and warns North Korea not to underestimate the United States during speech in South Korea (WSJ).

Federica Mogherini, the European Union’s top diplomat, warned that President Trump’s plan to renegotiate the Iran nuclear deal was “not an option” (NYTimes).

Public confidence in the president to protect national security is low and falling, even as confidence in the military remains high, write Mieke Eoyang, Ben Freeman, Adam Twardowski, and Benjamin Wittes at Lawfare.

A 40-year-old informant testified in federal court at the trial of Ahmed Abu Khattali, the man behind the 2012 attack on the CIA compound in Benghazi (NYTPolitico).

At President Trump’s urging, CIA Director Mike Pompeo met with a former U.S. intelligence official who argues that “the theft of the Democratic National Committee’s emails during the 2016 presidential campaign was an inside job, rather than a hack by Russian intelligence,” report Duncan Campbell and James Risen at The Intercept.

  • This fits a pattern of the CIA Director taking what appear to be politically motivated actions, writes Aaron Blake in The Washington Post.

During his visit to China, President Trump tried flattery with President Xi Jinping while simultaneously pressing the country to take tougher actions against North Korea (WaPoBBC).

  • President Trump called specifically for China to suspend oil shipments to North Korea (NYT).
  • President Xi did not respond directly but told Chinese media he was committed to “dialogue and negotiation” (The Guardian).

Secretary of State Rex Tillerson said international sanctions against North Korea are starting to impact the country’s economy (CNN).

Deputy Attorney General Rod Rosenstein discussed the FBI’s efforts to unlock the Texas shooter’s phone to warn against strong encryption that law enforcement cannot access (The Hill).

  • Apple offered the FBI advice after learning investigators were trying to access the phone’s data (The Hill).
  • The company is taking a markedly different approach than in past situations where law enforcement has tried to decrypt phones, observes Aaron Mak at Slate.

DOJ announced a plan to bring criminal charges against anyone who possesses, imports, distributes, or manufactures any fentanyl-related substance (WaPo).

  • The DEA temporarily suspended all fentanyl-related substances (The Hill).



U.S. Commerce Secretary Wilbur Ross retained investments in a shipping firm with business ties to Russian President Vladimir V. Putin’s inner circle (NYT).

  • A top advisor to Ross continued to serve on the board of Navigator Holdings, whose clients include a Russian energy company tied to the Kremlin, while she was a part of the Trump administration (Politico).
  • Senate Democrats are calling for new hearings and an inspector general’s investigation into reports that Ross has previously undisclosed Russian business ties (WaPo).

Lawmakers should inquire whether or not the GOP tax plan would personally benefit President Trump before voting on it, which is impossible to know without his tax returns, argues the The Washington Post Editorial Board.

Members of Congress have standing in their Emoluments case because they are harmed when President Trump accepts foreign emoluments without first obtaining congressional consent, contends Brianne Gorod at Take Care.

  • Democrats on the House Oversight Committee have filed suit to compel the General Services Administration to release details on the Trump International Hotel (Project on Government Oversight).



First Amendment scholars filed an amicus brief in support of those suing the President for engaging in impermissible viewpoint discrimination by selectively blocking critics from his Twitter account (Just SecurityThe Hill).

  • You can find the amicus brief here.

Voting machines used throughout the country remain vulnerable to hackers, writes Sean Gallagher at Ars Technica.

DOJ has dropped its prosecution of Desiree Ali-Fairooz, an activist who laughed at Jeff Sessions’ confirmation hearing as Attorney General (Politico).

Maine Secretary of State Matthew Dunlap, a member of the President’s Commission on Election Integrity, sued the Commission, claiming it is keeping Democrat members in the dark (The HillWaPo).

  • Dunlap’s complaint is here.
  • The lawsuit is a sign the Commission is imploding, argues Mark Joesph Stern at Slate.



The Republicans’ messy tax process promises to leave the final bill a far cry from the initial proposal, writes Neil H. Buchanan at Dorf on Law.

  • The bill stands to reshape higher education in the long term, argues Joseph Fiskin at Balkinization.

White House officials have prepared an executive order to weaken the Affordable Care Act’s individual mandate if Congress fails to do so through tax reform (WaPo).

  • President Trump’s campaign to sabotage the ACA violates the Constitution, writes Simon Lazarus at ACSBlog.
  • The White House has prepared an executive order to weaken the ACA’s requirement that taxpayers demonstrate proof of insurance (WaPo).

The EPA plans to repeal key Obama-era regulation that limited greenhouse gas emissions from heavy-duty trucks (The Hill).

The Clean Air Council has sued the Trump Administration over its approach to climate change and the Clean Power Plan (The Hill).

Repealing the CFPB’s arbitration rule will have dangerous consequences for consumers, writes David Noll at The Regulatory Review.

President Trump says tougher gun laws would have led to “hundreds more dead” in Texas shooting (NYTimesWaPoLA TimesPolitico).

Syria joins the Paris climate accord, leaving only the United States opposed to it (NYTimes).

Senate Democrats question President Trump’s nominee to lead the Department of Homeland Security, Kirstjen Nielsen, on her lack of experience, though she still appears likely to be confirmed (NYTimesWaPo).

The Trump Administration has tightened restrictions on Americans traveling to Cuba and accessing hotels, stores, and businesses tied to the Cuban military (WaPoNYTimesLA Times).

EPA head Scott Pruitt says the Climate Science Special Report will not stop plans to roll back former President Obama’s Clean Power Plan (The Hill).

Senator Ed Markey (D-MA) calls President Trump’s nominee to lead the White House Council on Environmental Quality’s positions “outrageous” and “denying science” in confirmation hearing (NYTimes).

Disparities in the House and Senate tax bills indicate the competing pressures that lawmakers face to advance the bill through their respective chambers (NYT).

The Senate bill would delay a corporate tax cut that the President wants to prioritize (WaPo).



President Trump criticized top law enforcement, saying DOJ and FBI must ‘Do What Is Right’ and investigate Democrats (NYT).

  • Senator Corker criticized President Trump over his “inappropriate” remarks regarding the Justice Department.
  • Benjamin Wittes offered commentary on President Trump’s remark that his inability to control the DOJ or FBI was the “saddest thing.”

EPA Administrator Scott Pruitt’s directive prohibiting certain scientists from serving on advisory boards may be illegal, argues Michael Burger at Climate Law Blog.

President Trump risks interfering with New York attack prosecution, despite warnings from recent Bergdahl case (LATimes).

 The recent terror attack in Manhattan provides an opportunity for President Trump to reaffirm the rule of law and prosecute the suspect in the U.S. federal justice system, rather than at Guantanamo (Just Security).

  • Lisa Monaco offered commentary on this next phase in the War on Terror.

President Trump’s attack on the Department of Justice and our institutions is another form of  demagoguery, writes Bob Bauer at Lawfare.

President Trump urged tribal leaders to ignore federal law in a meeting this past summer (Axios).



Speaker Ryan should call a vote on the DREAM Act, which could unify Democrats and many Republicans after the Trump administration’s repeal of DACA, argue Reps. Adriano Espaillat (D-N.Y.), Luis V. Gutiérrez (D-Ill.) and Raúl M. Grijalva (D-Ariz.) in The Hill.



Democratic donor Tom Steyer’s nationwide TV ads calling for President Trump’s impeachment split Democrats ahead of November’s election (LA TimesPolitico)

  • Fox News officially stopped running Tom Steyer’s ads (WaPo).

Rep. Al Green (D-Texas) announces he will force a vote on the House floor to impeach President Trump prior to Christmas (The Hill).



Special Counsel Mueller has enough evidence to bring charges against former National Security Advisor Michael Flynn (NBC).

  • The ability to charge Flynn should strengthen the obstruction of justice case against President Trumpwrites Ryan Goodman at Just Security.
  • Flynn is concerned about his son’s potential legal exposure in Special Counsel Mueller’s Russia probe, which could affect how he responds to the investigation (CNN).

Trump Campaign Advisor Carter Page met with Russian government officials in 2016 and alerted the campaign to the meeting (NYT).

  • Read the full transcript here.

President Trump’s attorney reiterated that his team would challenge Special Counsel Mueller if the probe began looking at Trump’s former real estate deals (The Hill).

The House Intelligence Committee will question President Trump’s former bodyguard over the firing of James Comey and a 2013 trip to Moscow (WaPoThe Hill)

New documents regarding Papadopoulos’s Russian connections call into question previous assertions by members of the Trump Administration that they were unaware of any contacts with Russia before the 2016 election (WSJ).

  • Senate Democrats have demanded that Attorney General Sessions explain a previously undisclosed meeting with Papadopoulos.

 A federal judge has determined Paul Manafort and Rick Gates pose “significant flight risks,” and refused to ease bail conditions (LATimes). 

  • Ukrainian prosecutors are closely following Mueller’s investigation into Manafort as part of their own investigation (Politico).
  • The judge overseeing the Manafort and Gates cases has issued a gag order directing all parties not to make statements that could prejudice jurors (WaPo).
  • When Manafort’s alleged crimes stretch back to 2006, why did it take so long to indict him?, asks Kate Brannen at Just Security.
  • The Justice Department is seeking a plea deal with Paul Manafort’s former son-in-law Jeffrey Yohai relating to real estate dealings through shell companies (Talking Points MemoWSJ).

House Democrats prepare to ask Jeff Sessions about George Papadopoulos next week in front of the House Judiciary Committee (Politico). 

Attorney General Jeff Sessions may have committed perjury when he denied knowledge of other Trump campaign members meeting with Russians, argue Artin Afkhami and Ryan Goodman at Just Security.

President Trump and Vladimir Putin have both ended up hurting each other in attempts to collude, writes Richard Cohen in The Washington Post.

Congressional investigators are interviewing former Trump aides about the campaign’s fight to remove language from the 2016 GOP platform that supported giving weapons to Ukraine (Politico).

Russian Twitter trolls intentionally shifted attention away from then-candidate Trump’s Access Hollywood tapes toward criticism of Hillary Clinton (The Hill).

  • House Democrats are pushing for more aggressive efforts to stop foreign meddling in U.S. elections (The Hill). 

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.