Executive power

  • December 11, 2017
    Guest Post

    by Andrew Wright, Associate Professor, Savannah Law School

    Michael Flynn is cooperating with Special Counsel Robert Mueller’s investigation. The plea agreement requires that Flynn “shall cooperate fully, truthfully, completely, and forthrightly with this Office and other Federal, state, and local law enforcement authorities identified by this Office.” Flynn’s statement of the offense ominously announces that “[t]hese facts do not constitute all of the facts known to the parties concerning the charged offense.” There is some debate about whether this agreement signals that Flynn has significant incriminating information about senior-most White House advisors, or President Trump himself. Only Flynn, Mueller, and the others whom Flynn might implicate on matters related to the investigation are in a position to know the quality of his cooperation.

    But what if President Trump started using his pardon power to end the Russia investigation? What would be the effect, if any, if President Trump pardoned Flynn now? What about pardons of others that might be implicated by Flynn in his cooperation? Pardons raise a number of important questions after Flynn’s plea.

  • 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 4, 2017
    Guest Post

    Sudha Setty is a professor of law and associate dean at Western New England University School of Law. Her book, National Security Secrecy: Comparative Effects on Democracy and the Rule of Law, was recently published by Cambridge University Press.

    For decades, the balance of national security power has become progressively unmoored from the basic democratic premise that the power to decide what the government does resides with the people through their representatives. Yet post-September 11 national security-related policies have distorted both of these concepts of democracy: exceptionalism and emergency are consistently invoked in the national security context to justify programs that would otherwise be viewed as outside of the legal, structural, and value constraints that society places on government—like extraordinary rendition, torture, and the targeted killings of Americans overseas. On top of that, the secrecy with which certain programs are conducted inverts the democratic structure of transparency in ways that undermine the effectiveness of our governmental structures and lessens our commitment to a society based on the rule of law.

  • November 27, 2017
    Guest Post

    by Paul Bland, Executive Director, Public Justice

    It has become common knowledge in Washington that, if you want to bury bad news, the best time to do so is on a Friday afternoon, or over a holiday weekend. So it is especially telling that, when it came time to strike at one of the most effective agencies in the federal government, the Trump Administration chose a two-for and announced its plans for the Consumer Financial Protection Bureau on Friday evening over Thanksgiving weekend. While most of the country was (the White House hoped) distracted by black Friday sales and family gatherings, President Trump announced he had installed Mick Mulvaney – who once referred to the CFPB as a “sad sick joke” – as acting director of the agency. The move is just the latest in a long line of Presidential appointments designed to dismantle government agencies from the inside by placing their fiercest critics in charge of their work. But Trump’s move at the CFPB is probably illegal, politically risky, and could backfire in a big way.

  • November 13, 2017
    Guest Post

    by Debbie Smith, Associate General Counsel for Immigration Law, Service Employees International Union (SEIU)

    Even as the newest Muslim ban works its way through the courts, President Trump has initiated another assault against immigrants by terminating a program providing humanitarian relief to immigrants fleeing civil war and natural disasters. Despite 30 years of Democratic and Republican administrations’ recognition of the importance of continuing this protection, unless Congress intervenes or the administration changes its mind, it is about to end.

    Last Monday, the Acting Secretary of the Department of Homeland Security ended Temporary Protected Status (TPS) for 2,500 Nicaraguans and left in limbo the fate of 57,000 Hondurans who have lived and worked legally in the United States for decades. On Thanksgiving Day, DHS will decide the destiny of 50,000 Haitians who fled the earthquake that decimated their island. In January, DHS will consider whether 200,000 Salvadorans living in the U.S., many for over 20 years, can remain. By the end of 2018, the approximately 350,000 hardworking current TPS beneficiaries will be forced into the shadows and subject to expulsion from the U.S.