ACSBlog

  • June 9, 2017

    by Dan Froomkin

    Special counsel Robert Mueller is now investigating whether Donald Trump's conduct toward former FBI Director James Comey constituted obstruction of justice.

    Comey made that pretty clear on Thursday during his testimony to the Senate Intelligence Committee. "I don't think it's for me to say whether the conversation I had with the president was an effort to obstruct," he said. "That's a conclusion I'm sure the special counsel will work towards to try and understand what the intention was there, and whether that's an offense."

    Asked again, Comey replied: "I don't know, that's Bob Mueller's job to sort that out."

    What is less clear is how enthusiastically Mueller, whose mandate is to investigate the wider issue of Russian interference with the 2016 presidential election, will explore that particular topic – and, if he reaches the conclusion that Trump did indeed obstruct justice, what he can do about it.

    On Friday afternoon at a press conference, Trump accused Comey of lying about their conversations and, in an unwitting endorsement of Mueller's investigation, said he would be "100 percent" willing to be deposed by Mueller under oath.

    "I would be glad to tell him exactly what I just told you," Trump said, raising the possibility that he could end up being accused of perjury as well as obstruction of justice.

    At the American Constitution Society (ACS) convention, running from Thursday through Saturday, top progressive lawyers said Trump's behavior certainly appears to constitute obstruction. They said they hope Mueller investigates Trump's conduct vigorously, with plenty of subpoenas and interviews.

    "I think certainly the role of the president in an effort to potentially obstruct the investigation is a critical part of any investigation about Russian efforts to influence the election," ACS President Caroline Fredrickson said.

  • June 7, 2017

    by Dan Froomkin

    At your dinner with President Trump on Jan. 27, did he ask you to pledge your loyalty to him? How did he phrase it? How did you interpret that request? Did he clarify? Did he ask you anything about the ongoing investigation into Russian interference with the election? Did he ask you if he or any of his campaign aides were under investigation? Did you feel like this was a job interview, with your job at stake?

    Your Feb. 14 meeting with Trump took place just a day after Michael Flynn was forced out his job as national security adviser for having lied about his contacts with Russian officials. According to media reports, you recall Trump telling you: “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” Did you interpret that as a request to end your investigation? Why? Did you feel like your job was at stake?

    Trump fired you on May 9. One day earlier, Sally Yates, who he had earlier fired as acting attorney general, made the first public indication that the FBI's counterintelligence investigation had in fact uncovered evidence of collusion between the Trump campaign and Russian intelligence. (Asked to rule it out at a Senate Judiciary subcommittee hearing, she said instead: "My answer to that question would require me to reveal classified information.") Did you interpret your firing as an attempt to end the investigation, or punish you for not having stopped it? Why?

    These are just some of the essential questions members of the Senate Intelligence Committee need to ask former FBI Director James Comey on Thursday – unless, having already seen the memos he used to memorialize the conversations he had with Trump, they have even better ones.

    But these questions go directly to whether Trump is guilty of obstruction of justice.

  • June 6, 2017
    Guest Post

    *This piece originally appeared on Take Care.

    by Douglas NeJaime, ACS Board of Academic Advisors, Professor of Law and Faculty Director, Williams Institute, UCLA School of Law and Reva Siegel, ACS Board Member and Nicholas deB. Katzenbach Professor of Law, Yale Law School.

    Religious exemptions from laws that require doctors to care for patients, employers to pay employees, or store owners to deal with customers in a respectful and nondiscriminatory way can hurt and demean citizens who do not share the claimant’s religious beliefs. Exemption claims of this kind are now spreading under the banner of religious liberty in the culture wars.

    Today, some conservatives are advancing expansive religious exemption claims to stigmatize contraception and restrict women’s access to it. Contraception is “the new abortion.” There are religious conservatives who call certain contraceptive methods “abortifacients,” even in cases where evidence shows that the methods do not operate in ways that satisfy their religious definition of abortifacients. Others oppose all methods of contraception as encouraging “a contraceptive mentality” that separates sex and reproduction.

    These claims about contraception are connected not only to abortion but also to same-sex marriage. As we documented in our 2015 Yale Law Journal article, “Conscience Wars,” many religious conservatives object to contraception, abortion, and same-sex marriage in part because they divert sex and marriage from procreative ends.

  • June 2, 2017
    Guest Post

    by Stephen Rushin, Assistant Professor of Law, University of Alabama School of Law

    While many have welcomed the increased national interest in police accountability, critics, including President Donald Trump and police unions, have warned of a so-called “war on cops.”  To their credit, there is evidence that ambush killings of police officers increased in 2016, as did the number of total police officers killed in fatal shootings. But it is difficult to know whether these numbers are part of a larger pattern, or merely a statistical aberration.

    Sen. John Cornyn (R-Texas) and Rep. Ted Poe (R-Texas) do not want to take any chances. In the “Back the Blue Act,” the two legislators (along with several co-sponsors) propose several alterations to federal law meant to protect police officers. Ultimately, though, there is serious reason to doubt whether this measure would make local law enforcement substantially safer. And it is a virtual certainty that, if passed, this law would severely hamper efforts to hold police officers accountable for wrongdoing.

    The measure would create new federal crimes for the assaulting or killing of federally funded law enforcement officers. It would limit habeas relief for some cases involving the killing of a police officer. And it would expand the federal death penalty to cases involving the killing of police officers. There is a lot to say about this bill—much of which has already been covered in depth by other media outlets or advocacy organizations.

  • June 2, 2017
    Guest Post

    by LaJuana Davis, Professor of Law, Samford University Cumberland School of Law

    Four mothers of Mississippi schoolchildren filed a federal civil rights lawsuit last week charging the state has failed to provide for public education under the requirements of an 1870 law that set conditions of the state’s readmission to the Union following the Civil War. The suit’s plaintiffs, represented by the Southern Poverty Law Center (SPLC), have asked the court to void amendments to the state’s education article enacted after Reconstruction and restore education rights guaranteed under the 1868 constitution. Specifically, the suit claims that the state violated the Congressional Act of 1870 that conditioned Mississippi’s readmission to the Union on the state agreeing to never deprive its citizens of “school rights and privileges” secured by the 1868 state constitution. However, the complaint alleges, subsequent amendments to those school guarantees have resulted in a minimalist education clause that simply allows the legislature discretion to provide for whatever public school education that the legislature sees fit.

    The suit’s lead defendant, Mississippi Gov. Phil Bryant, responded in a statement that the suit was simply a fundraising attempt by SPLC “on the backs of Mississippi taxpayers.” While Gov. Bryant may be irritated by the second challenge to Mississippi’s education scheme brought by SPLC in a year, Mississippi has had far fewer education adequacy lawsuits than most states, largely due to the minimal standard of education that its state constitution requires.

    Because Mississippi’s education clause requires no particular standard of education to be provided, the plaintiffs claim that some schoolchildren are learning in overcrowded classes   taught by inexperienced teachers and that those children have access to fewer educational resources and opportunities than students in other school districts. Most of the inequalities are being shouldered by majority-Black school districts, which may be affecting their students’ academic achievement.