Separation of powers

  • October 3, 2017
    Guest Post

    by Ashley Deeks, Professor of Law and Senior Fellow, Center for National Security Law, at the University of Virginia School of Law

    Last week, North Korea’s Foreign Minister claimed that President Trump had “declared a war” on his country.  He apparently reached that conclusion based on President Trump’s tweet stating that North Korea “won’t be around much longer” if the Foreign Minister’s U.N. speech accurately represented the thoughts of Kim Jong Un.  In response to this alleged U.S. declaration of war, the Foreign Minister threatened that North Korea would shoot down U.S. aircraft flying off the North Korean coast, even if the aircraft were in international airspace.

    Is North Korea correct that President Trump declared war?  And if so, what follows as a legal matter?

  • 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.

  • May 22, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Mickey Edwards, Vice President and Program Director, The Aspen Institute

    The Constitution provides little guidance for congressional behavior: members of the House of Representatives and the Senate make their own rules, establish their own norms, choose their own structures. They are free to make it up as they go along. But one should hope that the Constitution’s empowerments and constraints – Congress’s specific constitutional obligations and specific areas in which it is prohibited from acting -- will not be the only guides to appropriate congressional behavior.

    In writing about the Founders’ concerns about corruption, Fordham’s Zephyr Teachout has argued that one can discern clear underlying principles threaded throughout the Constitution, even if not specifically stated. I would contend that the same concept – discernible unstated principles – applies to much of the constitutional framework regarding Congress, specifically in regard to the Founders’ expectations regarding behavioral norms: deliberation, debate, compromise, and in its interaction with the executive branch, a strong defense of institutional prerogatives. Almost all of these suppositions have proved to have been overly optimistic. There have been few James Madisons in the 21st century versions of the legislative branch.

  • May 10, 2017
    Guest Post

    by Erwin Chemerinsky, ACS Board Member; Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    President Trump’s firing of FBI Director James Comey creates an urgent need for a special prosecutor, independent of the White House and the Justice Department, to investigate whether members of the Trump campaign team and administration violated federal law. Comey had been leading the investigation into Russian influence in the presidential election and whether crimes occurred. Comey’s termination, six years before the end of his term, raises the question of whether this was done to squelch this investigation and who will lead a thorough inquiry that will insure that the prosecution of any who violated federal laws.

    There is strong evidence that crimes were committed. Michael Flynn, and perhaps others, appear to have violated federal statutes requiring registration as an agent of a foreign government and disclosures of payments from foreign governments. Moreover, it seems clear that Attorney General Sessions violated federal laws that prohibit lying to Congress.

    Sen. Patrick Leahy, a Democratic member of the Judiciary Committee, asked Sessions in a questionnaire if he had “been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day.” Sessions’s answer was "no." During the confirmation hearings before the Senate Judiciary Committee, Sen. Al Franken asked Sessions what he would do if he learned of evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of the 2016 campaign.  Sessions replied, “I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign, and I did not have communications with the Russians.”

  • May 5, 2017
    BookTalk
    The Missing American Jury
    By: 
    Suja A. Thomas

    by Suja A. Thomas, Professor of Law, University of Illinois

    Since Trump took office, several issues, including immigration, have highlighted the importance of checks and balances between the branches of the government and between the federal government and the states.

    My book The Missing American Jury argues that the jury was intended to serve as a similar check on the government, but its authority has shifted to other parts of the government, making the jury’s independent governmental role precarious.

    While statistics from the founding are rare, there’s no question that the jury decides far fewer cases now than in the past. Juries decide less than four percent of criminal cases and less one percent of civil cases filed in federal and state court. And in many states, grand juries do not decide whether serious cases should proceed against criminal defendants.

    So what has happened to the jury? Over 95 percent of criminal cases are plea bargained, with some set of these pleas actually later resulting in innocence findings. In civil cases, judges may dismiss cases on summary judgment. For example, in factually intensive employment discrimination cases (discussed in another recent book), judges often conclude that a reasonable jury could not find for the employee—dismissing claims in whole or in part at a rate of 70 percent or more in some districts. 

    These stark statistics do not even account for the cases that are decided outside of court—those determined through settlement, arbitration or administrative agencies. 

    Often inefficiency, cost, inaccuracy and incompetence are proffered for why the jury decides few cases—why we use procedures like plea bargaining, summary judgment and administrative determinations, instead of juries. My book freshly examines this issue of why the jury has fallen.