May 2017

  • May 16, 2017
    Guest Post

    *This piece originally appeared on the Take Care blog.

    **This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Frederic M. Bloom, Professor of Law, University of Colorado Law School and Jon D. Michaels, Professor of Law, UCLA School of Law

    We have all heard the saying: those who do not learn from history are doomed to repeat it. History seemed to repeat itself earlier this week with Donald Trump's firing of FBI Director James Comey. Some have tried to cast Comey’s dismissal as unremarkable—just a president exercising his authority to fire an executive official he no longer trusts. But make no mistake: Comey's dismissal is exceptional. Indeed, it is so exceptional that it forces us to recall Richard Nixon’s craven directive to fire Special Prosecutor Archibald Cox, right as Cox was hot on the Watergate trail.

    Like most analogies, this one is imperfect, and all of the contrasts and differences prove unkind to the incumbent Administration. Start with Nixon’s Saturday Night Massacre: Impressive as they come, Archibald Cox had been brought in from Cambridge, where he served with distinction as a Harvard Law professor, a position easily admired but also readily lampooned. (Recall William F. Buckley’s famous quip that he would “sooner be governed by the first two thousand names in the Boston telephone directory than by the two thousand members of the faculty of Harvard.”) Cox’s credentials were pristine, but there was little doubt of his partisan bona fides. He ran in Democratic circles—not Nixon’s—advising John Kennedy during his time in the Senate, as part of JFK’s presidential campaign, and ultimately as the young president’s solicitor general. Through profession and perhaps party affiliation, then, one could spin a story (however far-fetched) that discounted or discredited Cox’s new gig as a special prosecutor.

  • May 16, 2017
    Guest Post

    *This piece originally appeared on The Brennan Center for Justice’s website.

    by Victoria Bassetti, Contributor, The Brennan Center for Justice

    To special counsel, independent prosecute, special commission, select committee or regular investigate, that is the question.

    As the constitutional crisis deepens in the wake of last Tuesday’s firing of FBI Director James Comey, the quest to assure the public that Russian interference in the 2016 elections is being investigated properly is heating up. Some form of inquiry is in order. But which kind?

    To hear Sen. Majority Leader Mitch McConnell, the status quo is just fine. "Today we'll no doubt hear calls for a new investigation, which could only serve to impede the current work being done,” he said on the Senate floor the morning after Comey was sacked.

    Yet, virtually every government watchdog group, including the Brennan Center, has called for the appointment of a special counsel, concerned that Comey’s firing has compromised the FBI and that the involvement of the purportedly recused Attorney General Jeff Sessions in the dismissal suggests continual meddling.

    Sen. John McCain (R-Ariz.) wants a select committee. “I have long called for a special congressional committee to investigate Russia’s interference in the 2016 election,” McCain said. “The president’s decision to remove the F.B.I. director only confirms the need and the urgency of such a committee.” Sen. Bill Nelson (D-Fla.) wants a special commission.

  • May 15, 2017
    Guest Post

    *This piece originally appeared on Medium.

    by Kyle Barry, Legal Defense Fund Policy Counsel

    Senate Judiciary Committee Chairman Chuck Grassley has revealed that he is willing to trash longstanding Senate tradition and undermine his Senate colleagues to hand control of the federal courts over to President Donald Trump. Grassley said that he will allow Trump to go over the heads of Democratic senators to fill federal appeals court vacancies in their home states “because that’s the way it’s been.” Grassley’s statement is both historically inaccurate and dangerous, as it removes a key protection against this administration’s relentless attacks on democratic norms and the rule of law.

    Grassley’s remarks addressed how he will apply the Judiciary Committee’s “blue slip” policy. Traditionally, judicial nominees do not receive a confirmation hearing until both senators from their home state indicate approval on a blue sheet of paper sent to the Committee. For 100 years, this policy has served as a vital part of the Senate’s constitutional obligation to provide advice and consent on nominations. The blue slip ensures that senators advise on who serves as federal judges for the people they represent and preserves independent courts by making judicial selection a more inclusive process not confined to the president and his political allies. The blue slip is even more valuable now, with a president who picks judges in concert with right-wing interest groups and rushes to announce nominees before the nonpartisan American Bar Association evaluates their qualifications.

  • May 10, 2017
    Guest Post

    by Erwin Chemerinsky, ACS Board Member; Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    President Trump’s firing of FBI Director James Comey creates an urgent need for a special prosecutor, independent of the White House and the Justice Department, to investigate whether members of the Trump campaign team and administration violated federal law. Comey had been leading the investigation into Russian influence in the presidential election and whether crimes occurred. Comey’s termination, six years before the end of his term, raises the question of whether this was done to squelch this investigation and who will lead a thorough inquiry that will insure that the prosecution of any who violated federal laws.

    There is strong evidence that crimes were committed. Michael Flynn, and perhaps others, appear to have violated federal statutes requiring registration as an agent of a foreign government and disclosures of payments from foreign governments. Moreover, it seems clear that Attorney General Sessions violated federal laws that prohibit lying to Congress.

    Sen. Patrick Leahy, a Democratic member of the Judiciary Committee, asked Sessions in a questionnaire if he had “been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day.” Sessions’s answer was "no." During the confirmation hearings before the Senate Judiciary Committee, Sen. Al Franken asked Sessions what he would do if he learned of evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of the 2016 campaign.  Sessions replied, “I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign, and I did not have communications with the Russians.”

  • May 9, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Deborah Rhode, Ernest W. McFarland Professor of Law and Director of the Center on the Legal Profession, Stanford Law School

    “It depends,” is the most irritating answer that an ethics professor can give to difficult ethical questions. But sometimes it is the only one that makes sense, and that is my response to whether socially responsible lawyers can, or should, serve in the Trump administration. The key factors are what the position is and how much ability the lawyer has to accomplish ethically defensible ends.

    I begin from the premise that it will not serve the public interest if the only lawyers in governmental positions are those who share Trump’s views. There are many relatively apolitical legal jobs in the federal government in which attorneys can do “good” work, in both a descriptive and prescriptive sense. And there are even some political jobs, for which, as New York Times columnist Russ Douthat has argued, if Trump is willing to make “responsible appointments, the good of the world requires that responsible people accept them.” Progressive administration lawyers can be the front line of resistance to executive abuse. They can supply passive resistance to efforts to roll back important procedural and substantive protections. And they can effectively enforce the safeguards that are not under siege. To take an obvious example, the enforcement division of the EPA urgently needs attorneys who have environmental commitments that their president may not share.