June 2017

  • June 14, 2017
    Guest Post

    *This piece originally appeared in The Huffington Post.

    by Christopher Kang, ACS Board Member and National Director, National Council of Asian Pacific Americans

    Tomorrow, the Senate Judiciary Committee will hold a hearing on two circuit court nominees: John Bush for the Sixth Circuit and Kevin Newsom for the Eleventh Circuit. Many concerns have been raised about these nominees (as well as the third nominee on the hearing, Damien Schiff for the Court of Federal Claims), but setting aside the mertis for just a moment, we cannot lose sight of the process as Chairman Grassley casusally rejects another Senate norm in the interest of rubberstamping President Trump's judicial nominees.

    It has long been the practice of the Senate Judiciary Committee to consider only one circuit court nominee per nomination hearing. Exceptions are rare and usually have extenuating circumstances: the Judiciary Committee held hearings for more than 60 of President Obama’s circuit court nominees, and held a hearing with two circuit court nominees only three times—each time with the support of the minority party.

    As then-Ranking Member Sessions explained—in agreeing to move forward—at a joint hearing for Fourth Circuit Judges James Wynn and Albert Diaz, both of North Carolina:

  • June 14, 2017
    Guest Post

    *This piece originally appeared on Zuckerman Law’s Whistleblower Protection Law Blog.

    by Jason Zuckerman, Whistleblower Advocate, Zuckerman Law

    For me, the most telling moment of former FBI Director Jim Comey’s June 8 testimony occurred early in the hearing, when Mr. Comey choked up as he recalled the White House’s publicly stating that the president had fired him because the “FBI was in disarray.”

    This emotional display seemed out of character for Mr. Comey. While U.S. Attorney for the Southern District of New York, he successfully prosecuted organized crime. As Deputy Attorney General during the George W. Bush Administration, Mr. Comey refused to sign an extension of the warrantless domestic spying program and defied the White House Counsel and Chief of Staff. Mr. Comey can fairly be described as a “tough guy.” So how did he go from leading the most powerful law-enforcement agency worldwide to being labeled a “leaking liar”?

    To an experienced whistleblower advocate, Mr. Comey’s predicament is not surprising. Mr. Comey’s experience, unfortunately, is like those of many whistleblowers I have represented over more than a decade. President Trump promised to bring a business approach to government—and his retaliation against Mr. Comey is straight out of the corporate defense playbook. Corporations typically take the following steps of escalating retaliation to silence whistleblowers:

  • June 14, 2017
    Guest Post

    by Ngozi Esomonu, Lawyers’ Committee for Civil Rights Under Law

    The anti-Muslim travel ban, the 2018 budget proposal, and this month’s religious liberty executive order are just three of the many Trump Administration policies that spell discrimination for America’s most marginalized. Resisting these suppressive policies, are attorneys general from states all over the country from Eric Schneiderman in New York, to Maura Healey in Massachusetts, to Bob Ferguson in Washington State. Their primary tool of resistance is coalition-building with fellow state attorneys general. Once in a coalition, they utilize their joint political powers to pressure federal officials into supporting their position.

    Beyond coalitions, however, state attorneys general use the threat of litigation as a guard against federal discrimination. And when their threats fail to deter, these state officials have not hesitated in pursuing litigation as a final step. With a Republican-dominated Congress and executive branch, attorneys general have emerged as the primary agents of resistance to the Trump administration’s damaging brand of conservatism.

    Take for example, Trump’s anti-Muslim travel ban. As a nation of immigrants, with a significant Muslim population, it was no secret that Executive Order 13769, (which suspended immigration from seven Muslim countries for three months and the Syrian refugee program indefinitely) would trample on individual rights. This, however, did not dissuade the president from issuing his order, and the Republican-led Congress, for the most part, remained silent on the issue. State attorneys general therefore became the leading voice of opposition.

  • June 13, 2017
    Guest Post

    *This piece originally appeared on Take Care.

    by Leah Litman, Assistant Professor of Law, University of California, Irvine School of Law

    On Monday, the State of Maryland and the District of Columbia filed a lawsuit against Donald Trump. The suit alleges that the president is in violation of the Emoluments Clauses. (The “Emoluments Clauses” include the Foreign Emoluments Clause, which prevents office holders from accepting emoluments from foreign states or foreign officials without Congress’s consent, and the Domestic Emoluments Clause, which prohibits the president from receiving any emolument other than his salary for being president.)

    Maryland and D.C.’s suit is an intriguing development for many reasons. I will just focus on one here: Maryland and D.C.’s case introduces a new theory of standing into the emoluments litigation and given DOJ’s less than rousing defense of the legality of the president’s financial arrangements in another emoluments lawsuit, Maryland and D.C.’s suit should concern the president and his lawyers. 

    The New Theory of Standing. The emoluments suits filed to date have been brought by private parties—private organizations and private individuals arguing that they have been harmed, in their private capacities, by the president’s violations of the Emoluments Clauses. The private businesses (and individuals) argue that they are losing out on business to the president’s hotels and restaurants because of foreign and state officials’ desire to curry favor with the president by giving money to his hotels and restaurants, in which he continues to hold a financial stake. I have written some about this theory of standing before on this site.

  • June 13, 2017
    Guest Post

    *This piece originally appeared on the Brennan Center for Justice’s Blog.

    by Victoria Bassetti, Brennan Center Contributor

    With five investigations underway into ties between Trump associates and the Russians, it is difficult to know what each committee is doing. The Brennan Center for Justice created a guide to help you understand what each of the Trump probes is looking for and how. 

    Rarely has the phrase “you can’t tell your players without a scorecard” rung more true than in the multiple investigations of ties between the Trump campaign and the Russians.

    There are now five investigations into the relationships between Trump associates and the Russians. Two committees in the Senate are conducting probes, as are two committees in the House, as well as special counsel Robert Mueller. Mueller, whose power is like that of a U.S. Attorney, is likely to say little unless he indicts someone.

    The Congressional committees are a different story. Some or all of them will conduct public hearings, and there likely will be no shortage of committee members willing to opine about their investigation. Yet, the average person probably does not know which committee is doing what, which committee has issued which subpoenas for what reason, and which committee has held which hearings when.

    The Brennan Center for Justice has compiled five tables that lay out what each investigation is looking at, what they have done so far and critically in the case of the Congressional committees, each panel’s rules for issuing subpoenas.