December 2017

  • December 6, 2017
    Guest Post

    by Terri Gerstein, Leadership in Government Fellow, Open Society Foundations

    *This piece was originally posted on On Labor.

    We are experiencing a watershed moment in relation to sexual harassment: boldface names fall daily, and women are speaking up as never before. This is one of those moments when norms change, presenting a tremendous opportunity. Proposals that seemed unrealistic last year could now be taken seriously in the political sphere.
     
    In the Guardian last weekend, Sharon Block and I outlined an agenda for bringing sexual harassment to light sooner, punishing it appropriately, and above all, preventing it in the first place. In the interest of furthering the conversation, this post elaborates on those ideas, and also aggregates several noteworthy articles proposing thoughtful reforms.
     
  • December 6, 2017
    Guest Post

    by Conor Shaw, Counsel to Citizens for Responsibility and Ethics in Washington

    This report examines why President Trump cannot easily bring an end to the Russia investigation by firing Special Counsel Robert Mueller. Authors Noah Bookbinder, Norman Eisen, and Caroline Fredrickson explain that Deputy Attorney Rod Rosenstein, not President Trump, is the one who has authority to fire Mueller.  While President Trump might compel others to do so on his behalf or instruct the attorney general to revoke DOJ’s special counsel regulations, the risks of doing so are prohibitive.  History warns that he would be risking his presidency, not to mention increasing his exposure to charges of obstruction of justice. In addition, we explain that any firing could be subject to court challenge by Special Counsel Mueller, his staff, and possibly other parties.  Mueller's dismissal also would not necessarily bring an end to the investigation that he is leading. Finally, we review the ways in which Congress might make it even harder for President Trump to end the Russia investigation by codifying the special counsel regulations and pre-committing to a course of action that would deter interference with the Russia investigation.

  • December 5, 2017
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law - University Park, Sirine Shebaya, senior staff attorney, Muslim Advocates and , and Abed Ayoub, legal director, American-Arab Anti-Discrimination Committee

    *This piece was originally posted on Medium

    What happened at the Supreme Court? On December 4, the Supreme Court issued orders staying the injunctions placed on certain aspects of Ban 3.0 by federal district courts in Hawaii and Maryland. What this means is the third version of the ban can take full effect pending a decision of the Government’s appeal in the Fourth and Ninth Circuit Courts of Appeals and pending a decision of the Government’s petition to the Supreme Court to hear the case. Justices Sotomayor and Ginsburg would have denied the application giving rise to these orders.

  • December 5, 2017
    Guest Post

    by Dan Froomkin

    Federal prosecutors – even those not working on cases of major public interest – may well uncover facts in the course of their investigations that if made public would have explosive political ramifications.

    But Justice Department rules are extraordinarily strict: Neither prosecutors nor the FBI can tell anyone what they've discovered unless it's in the fulfillment of their official duties.

    That's important: the process of investigation often turns up things that are not true, or do not amount to crimes, but that could nevertheless ruin reputations. (The November 2017 update of the U.S. Attorney's Manual includes new language about the "General Need for Confidentiality" that is different, but consistent, with the previous version.)

  • December 4, 2017
    Guest Post

    by Caroline Mala Corbin, Professor of Law, University of Miami School of Law

    On Tuesday, the Supreme Court will hear arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The case centers on a cake, but at stake is the future of LBGTQ civil rights. The main issue is whether Colorado’s public accommodations law violates the Free Speech Clause.

    Jack Phillips, owner of Masterpiece Cakeshop, refused to sell his baking services to Charlie Craig and David Mullins, a Denver couple seeking a wedding cake. He was fined for violating Colorado’s public accommodations law, which bans discrimination on the basis of sexual orientation in places open to the public. Phillips is religiously opposed to same-sex marriage, and believes that to avoid condoning same-sex marriage, Jesus himself would refuse to employ his carpentry skills to make a bed for this couple. Phillips argues that forcing him to make a cake for Craig and Mullins would violate the Free Speech Clause by compelling him to use his creative talents to express approval of same-sex marriage. He is wrong.