Executive power

  • July 27, 2017
    Guest Post

    By ACS President Caroline Fredrickson

    “The Events of recent weeks have eerily reminded me of those Watergate days,” stated William D. Ruckelshaus, who resigned as President Nixon’s Deputy Attorney General after refusing to fire Special Prosecutor Archibald Cox.

    Ruckelshaus joins a growing chorus of Republican advice-givers concerned about Trump’s reported desire to fire Special Counsel Robert Mueller. His opinion piece in today’s New York Times (“A ‘Saturday Night Massacre’ Veteran Offers Trump Some Advice) tracks a comparison of Nixon and Trump created by the ACS. 




  • July 27, 2017
    Guest Post

    by Renato Mariotti, Partner, Thompson Coburn LLP

    Ever since word surfaced last week that Special Counsel Robert Mueller is examining financial transactions involving President Trump’s businesses and associates, the Trump legal team has leveled charges that Mueller has strayed “beyond the mandate of the Special Counsel.” There is no reason to believe that Mueller has done so.

    As a starting point, it is worth noting that Mueller’s mandate is extraordinarily broad. He is not only empowered to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” but he is also permitted to investigate “any matters that arose or may arise directly from the investigation.”

    That means that if Mueller’s team uncovers evidence of a crime that is related in any way to the crimes they are investigating, that is within the scope of his investigation. For instance, an individual could have structured a cash transaction to hide money payments to a hacker who obtained emails or to an American in exchange for assistance, an entity could have laundered money used to aid in coordination efforts, or evidence of a financial crime could have been used by the Russian government to blackmail an American into cooperating with them.

  • 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.

  • February 21, 2017
    Guest Post

    by Amy Myrick, Staff Attorney for Judicial Strategy, Center for Reproductive Rights

    A few weeks into the Trump presidency, the role of the courts is front and center. The first headliner dispute is over President Trump’s executive order on immigration – centrally, what degree of deference or scrutiny courts owe to an action that the president claims is within his plenary power. These questions will define legal proceedings of many types over the next months as President Trump seeks to detonate policy across the board, asserting that he has vast power to make America purportedly safer, healthier, richer and of course greater – and any person or judge, who suggests otherwise is fraudulent.   

    How -will courts react?  They might consider a model that the Supreme Court put forth in Whole Woman’s Health v. Hellerstedt, a case it decided last June. The opinion focused on how judges should properly apply a legal standard that lower courts were wielding in a range of ways, some of which deferred sharply to lawmakers, and some of which required meaningful judicial review. In clarifying the standard, the Court in Whole Woman’s Health developed a set of three principles for judges to follow in constitutional disputes. Those principles undercut singularly damaging features of President Trump’s policy approach – his disregard for whether laws address a real problem or else just burden people, and his outright rejection of credible evidence. Although Whole Woman’s Health was about abortion restrictions, its model is useful in other areas, now more than ever.