Will Whoever Fires Bob Mueller Please Turn Off the Lights

by Victoria Bassetti

*Victoria Bassetti is leading ACS' analysis of US Attorneys.

** View the full graphic here.

If Donald Trump tried to fire Special Counsel Robert Mueller, it could be a lot harder than people think.

White House spokesperson Sarah Huckabee Sanders says he won’t do it.

Last Monday, she was asked: “Is the President going to rule out, once and for all, firing [Special Prosecutor] Robert Mueller.” 

“There's no intention or plan to make any changes in regards to the special counsel,” she replied.

Sen. Bob Corker (R-Tenn), fresh off warning that the President might start World War III, can’t imagine he’ll do it.

Last Tuesday, a reporter cornered the president’s harshest Senate critic in a hallway and posed the following: “There are stories that the President is thinking about firing Mueller. Do you think that’s appropriate?”

The tired-looking Corker replied: “I can't imagine there’s any truth or veracity to the president thinking that he would consider firing Mueller. ... Hopefully the question being asked is a question about something that cannot possibly be reality.”

Yet, all last week the President reportedly “seethed” in his third-floor private residence as he watched cable television reports of Special Counsel Robert Mueller’s first indictments. Firing Mueller, the AP reported, is “a possibility that has weighed on him in recent weeks.”

Indeed, as far back as July, Trump mused about firing Mueller. In a New York Times interview, Trump was asked if he would fire the special counsel if he started looking at subjects unrelated to the Russia probe, such as his finances.

“I would say yeah,” Trump first replied. Then he added more forcefully, “I would say yes.”

But suppose the president decided to ignore the advice of Ty Cobb, the White House lawyer in charge of the Russia probe, and John Kelly, his chief of staff, and decided to fire Mueller?

Just for fun, let’s see how a Trump move to fire Mueller could play out.

His first call would be to Attorney General Jeff Sessions. “Sorry, Mr.President,” Session might begin. “No can do. I recused myself from this investigation, remember? Surely you recall saying you never would have hired me as attorney general if you had known I would recuse myself. Why don’t you try Rod Rosenstein, the deputy attorney general? He’s the one in charge of Mueller. Hold on while I find his number.”

So Trump would then call Deputy Attorney General Rosenstein, a career Justice Department official, summa cum laude graduate of Penn, and former Harvard Law Review editor.

“Mr. President, as I explained in Senate testimony in June, ‘I am not going to follow any orders unless I believe those are lawful and appropriate orders.’ The special counsel can only be fired for good cause. With all due respect sir, you’ve put nothing in writing that proves good cause exists to dismiss the special counsel.

“Moreover, as I’m sure your lawyer can tell you, I have been interviewed as part of the investigation into the firing of former FBI Director James Comey. So I feel like I need to decline your order.  I’m sure you understand.”

At this point, the call likely ends in one of two ways: either Rosenstein is fired or he quits.

Next up on Trump’s phone tree: the third highest-ranking official at Justice, Associate Attorney General Rachel Brand, a Harvard Law School graduate and former clerk to Justice Anthony Kennedy.

“Mr. President, as I’m sure you know, I can only fire Bob Mueller for ‘misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.’ And the law also says that the Special Counsel must be informed ‘in writing of the specific reason for his or her removal.’

‘Sir, if I may speak freely, why don’t you have your lawyers draw something up, and I’ll take a look at it?”

At this point, Brand would probably be fishing in her purse for her office keys to hand to Justice Department security on her way out.

Trump, increasingly anxious because he might miss the opening of Sean Hannity, would then reach out to Solicitor General Noel Francisco, a former Justice Antonin Scalia clerk and University of Chicago Law School graduate.

“Well, you see Mr. President, I’ve got a problem here,” Francisco might say. “Before you brought me into the Solicitor General’s office, (thanks for that, by the way), I worked for Jones Day in D.C. where I was a partner with your White House Counsel, Don McGahn. And sir, you know how hard it is to unwind all these partnership things – I have money tied up in the firm. And your 2020 campaign paid Jones Day $800,000 in the third quarter alone. I need to call the department’s ethics director, Cynthia Shaw. Can I get back to you in a few days? Oh also, do you have anything in writing why there’s good cause to fire him?”

Now here is where things get even stranger. According to a March 31 Executive Order on Justice Department succession, the next three officials in line are the U.S. Attorneys for the Eastern District of Virginia, the Eastern District of North Carolina, and the Northern District of Texas.

So the president’s next call is to Dana Boente, U.S. Attorney for the Eastern District of Virginia. Boente has had a wild ride in the Trump administration. He was appointed to his current post by President Obama. But when Acting Attorney General Sally Yates was fired in February for refusing to defend the President’s travel ban, Boente was named to replace her. He served as Acting Attorney General for ten days before Jeff Sessions was sworn in. 

Boente then served as Acting Deputy Attorney General, the no. 2 post, for 75 days until Rod Rosenstein took over. Then Boente was one of 46 U.S. Attorneys in March who Sessions ordered to resign. Yet, Trump rejected his resignation. Now, Boente is serving as acting head of the Department’s National Security Division until Trump’s nominee is confirmed. A 33-year Department veteran, Boente is known for his mild manner and intense devotion to work.

“Dude, don’t you read the papers? I announced my resignation Friday before last. I’m sticking around until you guys name a successor. Anyway, permit me to remind you that I was the guy who worked with Jim Comey investigating former National Security Adviser Michael Flynn’s lobbying deals. I empaneled grand juries that subpoenaed his business records. Those grand juries are now being run by Mueller. And you want me to fire the guy?”

It is now 8:54 p.m. Only six minutes left before Hannity.

On to Robert “Bobby” Higdon, Jr., the Trump-appointed U.S. Attorney for the Eastern District of North Carolina. Higdon spent nearly 25 years as a federal prosecutor, working in both North Carolina’s Eastern and Western districts. Yet, his record is hardly unblemished. He led the campaign finance fraud prosecution of former North Carolina Sen. and presidential candidate John Edwards, which resulted in an acquittal on one charge and the dismissal of the remaining five after a hung jury. (Full disclosure: I worked as Edwards’ Senate legislative director.)  

In 2013, Higdon was removed as head of the Eastern District’s criminal division after two federal appellate judges delivered a blistering critique of the section, saying that it had frequently withheld evidence and failed to correct false trial testimony.

Higdon was sworn-in as U.S. Attorney October 10.

People behave unpredictably in unprecedented circumstances. It’s entirely possible Higdon may prove no more malleable than the other recipients of the president’s calls. As Trump himself likes to say: Stay tuned.

Supreme Court will decide if women can join together to fight sexual harassment at work

by Celine McNicholas, Labor Counsel, Economic Policy Institute and Sharon Block, Executive Director of the Labor and Worklife Program, Harvard Law School

After the news that Hollywood producer Harvey Weinstein had been sexually harassing and assaulting women in the movie industry for decades, millions of women shared their stories with the hashtag #metoo. The social media campaign shined a light on a fact that to many women: sexual harassment is a daily fact of life in the workplace. Many American corporations foster—or at least tolerate—widespread, egregious sexual harassment of their workers, even all these years after U.S. law first recognized sexual harassment as a form of sex discrimination. As the Supreme Court considers the first case of its term, National Labor Relations Board v. Murphy Oil, we hope they have read the stories about Weinstein, Bill O’Reilly and other men, as well as the millions of people who spoke up online.

Just last week, a poll conducted by NBC News and the Wall Street Journal found that 48 percent of currently employed women in this country say that they have personally experienced an unwelcome sexual advance or verbal or physical harassment at work. And, while many corporations have announced zero-tolerance policies for harassment, employers are increasingly preventing workers who experience sexual harassment to join together to seek justice

Today, 24.7 million American workers have been forced to sign contracts that, as a condition of employment, require them to waive their rights to joining a class action lawsuit to address sexual harassment and other workplace disputes—instead these workers must act alone to resolve what is often systemic violations of employment protections. The National Labor Relations Board has determined that these arbitration agreements violate workers’ right under the National Labor Relations Act to join together for “mutual aid and protection.” Business interests—and the Trump administration—disagree. In Murphy Oil, the Supreme Court will decide whether workers have the right to come together to protect themselves from workplace issues like sexual harassment. The case could not be more relevant, or present the Justices with two more starkly divergent options.

If the Justices side with Trump and big corporations, women across America will be forced to go it alone when they are victimized and harassed. This means that a woman whose boss just threatened to fire her if she refuses to perform sexual favors (1) has to find a lawyer on her own, (2) is prevented from bolstering her credibility by involving coworkers who have endured the same treatment, and (3) has to subject herself to sole scrutiny of the action. As recent revelations demonstrate, in many workplaces this is not a one-off experience, but is instead a systemic problem. Prohibiting women and men from collectively addressing harassment and forcing them to go it alone creates an obstacle to pushing for systemic change, which means that the problem is likely to continue.

If the Justices side with the NLRB and the working people they represent, that woman can seek the support of her coworkers, making it easier to find a lawyer to take the case and present the pattern that gives an accurate picture of the workplace. From Rosa Parks to Lily Ledbetter to the brave women in the #metoo campaign, women have recognized the power of community to effect real change. The argument in Murphy Oil could not present a more stark choice for the Justices—a choice between a future where corporations can run roughshod over the rights of workers or where women and men can effectively seek justice.

Will Whoever Fires Bob Mueller Please Turn Off the Lights

by Victoria Bassetti

*This piece was originally posted by Brennan Center for Justice

White House spokesperson Sarah Huckabee Sanders says he won’t do it.

Last Monday, she was asked: “Is the President going to rule out, once and for all, firing [Special Prosecutor] Robert Mueller.”

“There's no intention or plan to make any changes in regards to the special counsel,” she replied.

Sen. Bob Corker (R-Tenn), fresh off warning that the President might start World War III, can’t imagine he’ll do it.

Last Tuesday, a reporter cornered the president’s harshest Senate critic in a hallway and posed the following: “There are stories that the President is thinking about firing Mueller. Do you think that’s appropriate?”

Continue reading "Will Whoever Fires Bob Mueller Please Turn Off the Lights" →

The National Popular Vote Compact Via Direct Democracy

by Katherine Oh, Political Researcher & Strategist, American Civil Liberties Union

The surprising highs of voter participation in recent state and local elections, record numbers of women running for office, and even "not usually a sign guy" protestors marching in the streets are promising signs not just for American democracy and civil society in the new era under President Trump. They're signaling the moment may be ripe for leveraging activist and grassroots energy to bring the National Popular Vote Compact into effect.

In the current Electoral College system, most states award their electoral votes on a "winner-take-all" basis to the presidential candidate who wins the most votes within the state. As a result, a candidate can still become the country's president after ignoring all but the battleground states and losing the national popular vote as five men have in U.S. history.

Under the National Popular Vote Compact, participating states would instead allocate their electoral votes to the candidate who wins the most number of popular votes nationally. Once states that represent at least 270 electoral votes join the Compact, the Electoral College would thus be guaranteed to produce a victor who won the nationwide popular vote. Furthermore, the nature of the campaigns would change in a more democratic direction because every voter in every state would matter. In other words, the Compact would place the same Electoral College "under new management – the American people's," as ACLU President Susan Herman wrote.

In states that allow citizen-led ballot initiatives, Herman also suggested voters could directly propose and vote to approve a new statute or a state constitutional amendment to bring their state into the Compact. At the state level, as the comprehensive tome Every Vote Equal notes, "there is no provision of any state constitution that specifically singles out interstate compacts as being ineligible for enactment by the voters by means of the citizen-initiative process." Questions have been raised about the Compact's constitutionality at the federal level, including the two issues discussed here, but answers by supporters are persuasive.

First, not all interstate compacts require approval by Congress under the Constitution's Compact Clause. In Virginia v. Tennessee and United States Steel Corp. v. Multistate Tax Comm'n, the Supreme Court specified that congressional approval is unnecessary for compacts among states that do not encroach on the supremacy of the federal government. The Compact cannot infringe on federal supremacy in this context because there is no federal power over the allocation of Electoral College votes in the first place.

That power belongs instead to the states under Article II, Section 1: "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors. . . ." Moreover, this power is exclusive and plenary to the states, provided that restrictions elsewhere in the Constitution aren't violated. The Supreme Court held so in McPherson v. Blacker, a ruling cited by the Court later in Bush v. Gore to refer to this supreme power of the states.

Another potential complication is whether Article II's literal reference to "the Legislature" necessarily excludes citizen-led ballot initiatives. As Every Vote Equal carefully explains, however, "history, practice, and law" show us the word "legislature" in the Constitution can also refer to the lawmaking process involving voters. McPherson v. Blacker further acknowledges that a state's legislative power may be "reposed" elsewhere rather than necessarily contained in its legislature, which itself is an instrument of "the sovereignty of the people."

More recently, as featured in this essay, Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n upheld the ballot initiative process for changing congressional district regulations using reasoning that's also favorable to the citizen-led initiative process for changing presidential election rules. Indeed, the AIRC Court declared it "perverse to interpret 'Legislature' in the Elections Clause to exclude lawmaking by the people," a statement especially meaningful in light of U.S. Term Limits v. Thornton. In that 1995 case, the Court highlighted the parallel between "legislature" in Article I with respect to electing members of Congress and "legislature" in Article II with respect to each state's system for electing presidential electors.

If joining the Compact via ballot initiative is on the table for more states, the overall calculus changes. The states that are currently part of the Compact represent 165 electoral votes. Based on their recent electoral history and past interest in the Compact, these states may be receptive to joining via the standard legislative route in the near future, bringing the hypothetical tally to 197: Connecticut (7 electoral votes); Delaware (3); Minnesota (10); New Mexico (5); and Oregon (7).

In about half the states, citizens can bypass the legislature to propose a new state statute or state constitutional amendment themselves. It's plausible that the everyday voters of Colorado (9), Florida (29), Michigan (16), Nevada (6), and Ohio (18), for example, would agree the President of the United States should be the candidate who won the most popular votes across the country after having had to care about every voter regardless of geography. Those states' electoral votes would raise our hypothetical total to 275—more than the 270 required to activate the Compact and deliver the Electoral College victory to the national popular vote winner.

Thus new stars may be aligning for the National Popular Vote Compact. Just look to the states that already empower voters to take matters into their own hands via direct democracy.

President Trump is making his only African American judicial nominee move for Brett Talley

by Christopher Kang, ACS Board member and former Deputy Counsel to President Obama

*This piece originally ran on Huffington Post

On May 8, 2017, President Trump announced that he intended to nominate Magistrate Judge Terry Moorer to serve as a district judge in the Middle District of Alabama. This nomination would have been President Trump’s first African American judicial nominee, and it’s likely no coincidence that it was announced on the same day as Kevin Newsom for an Alabama-based seat on the Eleventh Circuit Court of Appeals. Alabama has never had an African American circuit court judge, and Newsom replaced President Obama’s African American nominee, Judge Abdul Kallon, whom Senators Sessions and Shelby had blocked.

By August, Newsom had been confirmed, but Judge Moorer still had not even been officially nominated. In fact, all nine of the other judicial nominees announced on May 8 had been nominated within a month, but for four months, there was still no sign of Judge Moorer.

On September 8, President Trump announced a little-noticed bait-and-switch: he replaced Judge Moorer’s original nomination with Brett Talley, and Judge Moorer’s final, official nomination forced him to move to the Southern District of Alabama.

At first blush, it seemed like the more qualified, African American nominee was simply shoved aside for a less qualified white man:

  • Judge Moorer has served 10 years as a federal magistrate judge and 17 years as an Assistant U.S. Attorney. Talley has practiced law for less than three years and has never tried a case. He graduated law school in 2007—the same year Judge Moorer became a magistrate judge.
  • Judge Moorer has been a fixture in the Middle District legal community for nearly three decades and was even born in Greenville, within the Middle District. In Talley’s legal career—and possibly in his entire life—he lived in the Middle District of Alabama for little more than three years.
  • The non-partisan American Bar Association (ABA) rated Judge Moorer “unanimous Qualified.” It gave Talley its lowest possible rating—“unanimous Not Qualified”—issued for only the fourth time since 1989.

Yesterday—as new revelations swirled that Talley had failed to disclose a potential conflict of interest that his wife is a senior White House lawyer and that he alsowithheld relevant blog posts—another piece of the puzzle fell into place.

In response to questions from Senator Feinstein regarding the substantive differences in the cases considered by the Middle and Southern Districts, Judge Moorer revealed the following:

Montgomery is the capital city of Alabama; therefore, a few different types of cases may more likely be heard in the Middle District of Alabama such as redistricting cases or public corruption cases involving statewide elected officials.

In addition to redistricting and public corruption cases, because Montgomery is in the Middle District, many constitutional challenges to Alabama state laws are heard there. Just last month, a judge in the Middle District ruled that two Alabama laws that would have severely restricted abortion access are unconstitutional.

So, for these—the most political and consequential cases—President Trump once again has prioritized an ideological rubber stamp over everything else, including his own initial pick.

Judge Moorer’s responses make clear that it was not his idea to move and that his preference would have been to stay in the Middle District. In fact, if he is confirmed to be a district judge in the Southern District, he will be legally required to move there, pulling up his nearly 30-year roots from the Montgomery legal and civic community.

The White House’s explanation for its decision doesn’t add up. Judge Moorer wrote, “When I was told that I would be nominated for the Southern District of Alabama, I was also informed that my criminal law background provided additional diversity to the Southern District of Alabama bench as the other nominee had a primarily civil litigation background.”

But if experiential diversity was a factor, Judge Moorer’s nomination should have remained in the Middle District. President Trump has nominated four people to fill district court vacancies in the Middle and Southern Districts of Alabama. If all four are confirmed: in the Southern District, two of the three judges would have a criminal law background—Judge Moorer and the current Chief Judge Kristi DuBose—while in the Middle District, none of the three judges would have a criminal law background.

Of course, as Talley’s nomination shows, experiential diversity—and indeed experience and diversity in general—have nothing to do with Trump’s judicial nominations.

Instead, President Trump has imposed upon his only African American judicial nominee (out of 59 so far) to move across the state and make way for a startling unqualified political operative who has more experience writing political speeches and horror stories than practicing law—all so the president can continue to put his thumb on the scales of justice in as many courts as possible.

The Latest Assault on Immigrants and the Need to Preserve TPS

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.

TPS, enacted in 1990 as an amendment to the Immigration and Nationality Act and codified as 8 U.S.C. § 1254a, provides a safe haven for immigrants who are fleeing dangerous conditions in their home countries. The law established a process for the Attorney General, later the Secretary of Homeland Security following the creation of DHS, to designate a country for TPS status, following consultation with government agencies, if the country has experienced: 1) an armed conflict; 2) an environmental disaster or 3) other extraordinary conditions. In the case of an environmental disaster, the Secretary of DHS must determine that the country cannot handle the return of its nationals and the country must also formally request TPS. 

TPS can be conferred for 6, 12, or 18 month renewable periods. Once the country is selected for TPS, its nationals who are in the U.S. as of a date certain, are eligible for work authorization and permission to remain in the U.S. during the TPS period.  The 6th  and 9th Circuit Courts of Appeals have held that a grant of TPS status constitutes a lawful admission and therefore TPS beneficiaries residing in the 6th and 9th Circuit are entitled to process applications for legal residency in the United States without returning first to their home country (adjust status). 

The 1990 amendment also specifically designated El Salvador for TPS. This statutory designation was the only country-specific congressional designation and followed a decade-long effort to protect the more than 500,000 Salvadorans who fled the violent civil war seeking safety in the United States. 

The Trump Administration is determined to eliminate TPS entirely, without consideration and review of the TPS countries’ conditions or adequate procedural process. The Washington Post reports that White House Chief of Staff John F. Kelly called Acting Secretary Elaine Duke from Japan and attempted to pressure her to terminate the Honduran program on November 6. 

Congressional representatives have introduced two bills to provide a path to legal residency for TPS beneficiaries and another bill is expected. Representative Carlos Curbelo, (R-FL) introduced bipartisan legislation to grant legal permanent resident status Nicaraguan, Honduran, Salvadoran and Haitian migrants. A second bill sponsored by Representative Velázquez (D-NY) would provide a pathway to legal resident status and citizenship for immigrants from all of the TPS countries and well as those granted another humanitarian benefit, Deferred Enforced Departure (DED).  

Advocates continue to fight to preserve TPS and prevent the wholesale removal of hundreds of thousands of TPS beneficiaries from the ten TPS countries, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, Yemen. Without public pressure and congressional intervention, the decades-old bipartisan understanding that the U.S. should offer a safe landing to those in critical need will be broken and our national pride diminished.