Executive power

  • September 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 and Lorella Praeli, Director of Immigration Policy and Campaigns and former Dreamer, American Civil Liberties Union

    *This piece draws from an ACS briefing call on DACA from August 24, 2017

    During the 2016 presidential campaign, Trump promised to deport Dreamers, a reference to people who came to the United States as children.

    The Deferred Action for Childhood Arrivals program (DACA), announced by the Obama Administration in June 2012, allows qualifying young people who were brought to the United States as children to request that any removal action against them be deferred in the exercise of prosecutorial discretion. Texas Attorney General Ken Paxton and 10 other state attorneys general have written to Attorney General Jeff Sessions indicating their intent to challenge DACA in court unless the administration agrees to rescind the program by September 5, 2017. Against this backdrop, the Trump administration announced the decision to terminate DACA.

  • August 25, 2017
    Guest Post

    by Daniel T. Kobil, Professor, Capital University Law School

    If Donald Trump issues a pardon to Joseph Arpaio he will likely be acting within his enumerated powers as president, but doing so in a manner that could undermine our legal system and the Constitution. 

    Arpaio is the former sheriff of Maricopa County, Ariz., who was found guilty in July of criminal contempt for defying a federal court’s order barring the illegal profiling of immigrants and Latinos by his officers. Though he faces potential imprisonment of up to six months, he has not yet been sentenced, nor applied for clemency through the Justice Department process in effect since the Reagan administration that requires applicants to wait five years after completing their sentence and undergo a thorough investigation before they can be pardoned. Nevertheless, Trump has signaled that he plans to pardon Arpaio preemptively because he approves of Arpaio’s harsh treatment of immigrants. 

  • July 28, 2017
    Guest Post

    by Ambassador (ret.) Keith Harper

    *This article was first published on Just Security

    It emerged late last week that President Trump has reportedly queried his lawyers regarding the nature and scope of his authority to pardon individuals including himself.  Over the weekend, Trump tweeted a “nothing to see here” message while asserting his pardon power was “complete,” presumably meaning absolute.

    While not limitless, the authority of the President to pardon is undeniably substantial. The President cannot pardon for prospective crimes or violations of state criminal law. There is a strong argument that he cannot pardon himself and certainly cannot insulate himself or others from the conviction of impeachment, as expressly stated in the Constitution.  But other than these and perhaps other narrow limitations, a President’s pardon powers is vast.  Indeed, the President’s power to pardon others including his family members for past federal crimes, even without evidence of specific criminal investigation or prosecution, is arguably plenary in nature.

  • July 25, 2017
    Guest Post

    by Andrew Wright, Associate Professor, Savannah Law School

    Last Friday, the Washington Post reported that President Donald Trump has consulted his lawyers about granting pardons in the Russia investigation, including the possibility of a self-pardon. That would stand in stark contrast to the Department of Justice’s Office of Legal Counsel (OLC) determination that a president cannot pardon himself. In 1974 under Richard Nixon, OLC stated: “Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.”

    Over the weekend, the pardon debate continued. President Donald Trump claimed in a Saturday morning tweet that he has “complete power to pardon” his associates and, perhaps, himself.  A week earlier, on ABC’s This Week, Trump’s personal lawyers, Jay Sekulow, had refused to rule out the possibility that the president would pardon his associates, or even himself, in the Russia investigation. Sekulow walked back his previous statement on July 23, stating that “pardons are not on the table,” despite the Post reporting. Interestingly, he asserted that the idea of a presidential self-pardon is an open question that should be resolved in court.

  • July 21, 2017
    Guest Post

    by Steve Vladeck, Professor of Law, University of Texas School of Law

    The front page of Friday’s Washington Post includes a story about the Trump Administration quietly investigating ways of firing Special Counsel Robert S. Mueller III or otherwise shutting down his ongoing (and apparently widening) investigation into Russian tampering in the 2016 presidential election. While there are three possible avenues through which Mueller could legally be removed, which I outline below, it is possible that any or all of these moves could themselves be treated as obstruction of justice, whether by the Special Counsel (if it somehow survives the affair) or Congress in impeachment proceedings. That is to say, even if the President lawfully has the power to fire someone, that doesn’t mean such action is completely unlimited. (For instance, the President could not fire an at-will employee simply because of their race, religion, or sex.)

    And this leads to perhaps the most important bottom line: The complexities of the legal issues aside, what is hopefully clear is that the President has a fair amount of legal authority to act, or to at least attempt to act, in this space—authority that Congress has not meaningfully sought to circumscribe since it enacted the independent counsel statute in 1978. But as the obstruction point underscores, the real question is not whether the President has a legal right to fire Special Counsel Mueller, but whether such a legal move might nevertheless provoke his current supporters in Congress to turn against him—or, at the very least, to more aggressively support other investigations into the current Administration and the Trump campaign.