Another Saturday Night Massacre?

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.

A Self-Pardon?

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.

One of the bedrock principles of our Constitution is that no one, including the President, is above the law. Supreme Court Justices from John Marshall to Neil Gorsuch have declared that we are a nation of laws and not of individual leaders. It is astonishing that Trump, six months into his term, would contemplate acts that—if upheld—would pave the way for presidential impunity.

It would be clearly dishonorable and politically disastrous for Trump to use the pardon power to short circuit legitimate investigations into the connections between his associates and Russian election interference. However, the legal questions about the scope of his power are not quite as clear.

Article II, Section 2 of the Constitution vests the president with the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” It is an incredibly broad grant of power. There are two universally recognized limits on the pardon power. First, the president’s pardon power is limited to federal offenses enforced by federal prosecutors. States may continue to vindicate their laws against federal officials, subject to immunity doctrines that are unrelated to pardon power and beyond this post. Second, the Constitution explicitly states pardons are ineffective against impeachment and removal from office.

It is pretty clear that the President can pardon people for criminal acts they have committed but for which have not yet been convicted, or even indicted. The Supreme Court in Ex Parte Garland, 71 U.S. 333, 380 (1866) said “the [pardon] power … extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” The most infamous example was President Gerald Ford’s pardon of Richard Nixon shortly after assuming office. While there was some debate about the legality of a prospective pardon, it has been done frequently. Andrew Rudalevige does a nice job of recounting the history of high profile prospective pardons, including President George Washington’s pardons of Whiskey Rebellion leaders, President Jimmy Carter’s clemency of Vietnam draft dodgers, and President George H.W. Bush’s pardons of Iran-Contra figures. A 1995 Office of Legal Counsel opinion notes presidents throughout U.S. history “have asserted the power to issue pardons prior to conviction, and the consistent view of the Attorneys General has been that such pardons have as full an effect as pardons issued after conviction.” It cites a pre-Civil War attorney general opinion that described pardon power as “the act of clemency and grace is applied to the crime itself, not to the mere formal proof of the crime.”

A self-pardon is a much more consequential, and legally contested, issue. Three days before Nixon resigned, OLC issued its short opinion that “[u]nder the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” Many legal experts have supported that view, although the arguments as to why vary. Some argue natural law first principles such as OLC did (“no man can be a judge in his own case”). Some have argued a self-pardon would violate constitutional structure in that a self-pardon would defeat the purposes of Article I, Section 4, which expressly authorizes officeholders removed by impeachment to be subject to criminal prosecution. Others make a textual argument that the meaning of “grant…Pardons” requires two parties to the transaction: a President and a pardonee, where the pardonee cannot also be the pardoner. On the other side of the debate, there are several legal commentators who believe a self-pardon is constitutional because it is not expressly prohibited.

In any event, a self-pardon would be wholly unprecedented. For the legal question to be resolved, several recently unthinkable steps would have to take place. First, the President would have to seek to pardon himself. Second, he would have to be indicted by a federal grand jury, either during office (its own hotly contested proposition) or after he leaves office by means of impeachment or the expiration of his term. Then, the President’s move to quash the indictment on pardon grounds would present the legal question for federal courts to address on the path to final resolution by the Supreme Court.

As Chief Justice Marshall noted in Marbury v. Madison, the United States has been emphatically termed “a government of laws, and not of men.” In the absence of responsible stewardship of the rule of law by our President, we must ensure that our legal and political culture—We the People—preserve the Republic.

If the Rumors are True: President Trump and the Firing of Bob Mueller

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.

I.                  The Direct Termination Route

The Special Counsel is governed by a federal regulation, 28 C.F.R. part 600, which dates to 1999. Under one provision of the regulation (28 C.F.R. § 600.7(d)), “The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General.” The regulation further provides that “The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies,” but the regulation does not clearly create a right on the Special Counsel’s part to challenge a removal decision on the ground that it’s for some other reason.

Critically, the “Attorney General” here, as Mueller’s appointment itself suggests, is not Attorney General Sessions, who has recused (apparently to President Trump’s chagrin) from Russia-related matters. Instead, it is the Acting Attorney General, which, per the current Executive Order on DOJ succession, is the Deputy Attorney General (Rod Rosenstein). If President Trump wanted to fire Mueller directly, presumably, he would order Deputy Attorney General Rosenstein to do so. Rosenstein could either comply or resign, at which point we would start marching down the DOJ line of succession—which, at the moment, goes from Rosenstein to Associate Attorney General Rachel Brand, and from Brand to Dana Boente, the U.S. Attorney for the Eastern District of Virginia. As with the Saturday Night Massacre, President Trump could keep firing DOJ officials who refused to fire Mueller until he finds one (in Nixon’s case, Robert Bork) who will.

The upside of the direct termination route is that it is, well, direct. It is also legally unassailable. The downsides are two-fold: First, a repeat of the Saturday Night Massacre would surely have significant reverberations on Capitol Hill (where Mueller is widely respected), and might finally provide the basis for a decisive wedge between congressional Republicans and the White House. Second, and more practically, firing Mueller would not actually end the investigation—which is now well-staffed and well underway. Instead, it would then fall to whoever fires Mueller to appoint someone to succeed him, since the regulation (perhaps deliberately) does not provide a means for anyone other than the Special Counsel to terminate an ongoing investigation.

II.               The Regulatory Repeal Route

This leads to the second possible option—and one designed to destroy the investigation—which is to simply repeal or otherwise rescind the governing regulation, 28 C.F.R. part 600. How easy (or hard) this would prove to be depends to at least some degree on whether those regulations are treated as a “legislative” or “non-legislative” rule for purposes of the Administrative Procedure Act (APA). The former require all of the procedural accoutrements of administrative law before they can be rescinded, include public notice and comment; the latter do not. (As Professor David Franklin wrote last year, “it turns out to be maddeningly hard to devise a test that reliably determines which rules are legislative in nature and which are not.”) To be fair, the Special Counsel regulation has some of the hallmarks of legislative rules (which are harder to repeal). But even if the Executive Branch claims that the Special Counsel regulation is a non-legislative rule (and, indeed, even if it is ultimately correct on that score), it is not hard to imagine that there will be litigation over that issue—litigation that could take time before definitively resolving the matter. All the while, presumably, the investigation could continue apace.

III.           The Unitary Executive and the Nuclear Option

This leads to the third—and most controversial—possibility, that the President will invoke his constitutional authority as a wedge against either Mueller’s appointment specifically or the existence of the Special Counsel in general, and will issue an Executive Order terminating Mueller, abolishing the Special Counsel in its entirety, or both. The difference between this approach and the second option outlined above is that this one would not depend upon the vagaries of federal administrative law, but instead posits that the President would assert as a constitutional matter that he cannot be stopped from firing a Special Counsel and/or shutting down an investigation—an assertion of authority that could not be reconciled with either the terms of 28 C.F.R. part 600 or the existence of the ongoing investigation. And the pursuit of this option would, without question, trigger a constitutional showdown between the Special Counsel and the President, of the likes not seen since the fight over the Watergate tapes that culminated in the Supreme Court’s July 1974 ruling in United States v. Nixon.

As for who would win such a constitutional showdown, who knows? But one has to suspect that such an assertion of indefeasible executive power would not sit well with Congress, and might, at the very least, ratchet up the pace and scope of the congressional investigations even if/as the Special Counsel’s criminal investigation hangs in the balance.

The Ideology of Textualism

Advocates of textualism promote it as a neutral, objective, apolitical theory of interpretation — one that is above ideology. Whenever you hear a judge describe himself or herself as a “rule of law” judge, you can bet that the judge is a textualist. A textualist supposedly respects the democratic process and does not impinge on the legislature’s role. He or she adheres to established and well-founded canons of construction in merely “interpreting” law. As Justice Gorsuch put it in his first majority opinion (page 11), “[T]he proper role of the judiciary [is] to apply, not amend, the work of the People’s representative

That is the mantra. But the reality is altogether different. Textualism has become the brand of conservative judges and judging. And there is in fact strong — if not incontrovertible — evidence that textualism, as practiced, produces conservative results.

Two years ago, I posted on the ACS blog about an article I had written summarizing six empirical studies of Justice Scalia’s opinions. The studies show that those opinions had an unmistakable ideological bent. Justice Scalia was, of course, a leading exponent of textualism.

Now I have published a detailed study of 96 overrulings by the Michigan Supreme Court over 15 years, 2000–2015. Throughout that time (except for a period of months in 2010), justices nominated by the Republican party or appointed by a Republican governor were in the majority on the court. Those justices are professed textualists.

In my study, I coded the civil cases according to whether they made it harder to sue and recover or get relief, or made it easier to sue. I coded the criminal cases according to whether the overruling favored the prosecution by making it easier to convict, harder to get a charge dismissed, harder to appeal, harder to get a resentencing, and so on — or whether the overruling favored the defendants in some way. Of the 96 overrulings, 15 did not fit these categories, leaving 81.

Take a wild guess at the results. I am betting that even most cynics would not imagine how extreme the numbers are. In 46 of 48 civil cases, Republican majorities voted in a way that makes it harder for plaintiffs to successfully sue. In 32 of 33 criminal cases, Republican majorities favored the prosecution. All told: civil plaintiffs and criminal defendants lost in 78 of 81 overrulings, for an ideology rating of 96.3.

Some would say that a simple tally of winners and losers is superficial. My response (p. 355): “I disagree. Lopsided numbers matter. That civil plaintiffs and criminal defendants ‘won’ in just 3 of 81 overruling cases is damning on its face — and cannot be rationalized by any jurisprudence that is evenhanded.”

Equally extreme is the narrow definition of ambiguity that the Republican majority adopted: language is ambiguous only if it is “equally susceptible” of more than one meaning. So is a 55% certainty enough to render a text clear? Few, if any, other courts apply such a strict test. One commentator describes it (p. 358) as “[i]nconsistent with centuries of American judicial practice.”

The article also looks at some favorite textualist devices: overreliance on “plain meaning” or “plain language”; resort to dictionaries (a practice that scholars have shown to be ad hoc, subjective, and of modest value at best); and the use of weak canons like the surplusage canon (which many scholars again roundly criticize and which does not reflect how legislative drafters actually compose). Finally, the article examines four overruled cases to show how close they were and why the disputed language was, in context, anything but plain.

My kick is not so much against judges’ leaning one way or another, liberal or conservative. The legal world would be better off if they did not, but they do: judges are influenced, consciously or unconsciously, by their beliefs and inclinations — their so-called priors. My kick is against not recognizing or admitting two truths: textualism is as squishy as any other theory of interpretation; and in cases that shape the law, it is put to ideological ends.

Resistance from State Attorneys General Reminds Trump that No One is Above the Law

by Ngozi Esomonu, Lawyers’ Committee for Civil Rights Under Law

The anti-Muslim travel ban, the 2018 budget proposal, and this month’s religious liberty executive order are just three of the many Trump Administration policies that spell discrimination for America’s most marginalized. Resisting these suppressive policies, are attorneys general from states all over the country from Eric Schneiderman in New York, to Maura Healey in Massachusetts, to Bob Ferguson in Washington State. Their primary tool of resistance is coalition-building with fellow state attorneys general. Once in a coalition, they utilize their joint political powers to pressure federal officials into supporting their position.

Beyond coalitions, however, state attorneys general use the threat of litigation as a guard against federal discrimination. And when their threats fail to deter, these state officials have not hesitated in pursuing litigation as a final step. With a Republican-dominated Congress and executive branch, attorneys general have emerged as the primary agents of resistance to the Trump administration’s damaging brand of conservatism.

Take for example, Trump’s anti-Muslim travel ban. As a nation of immigrants, with a significant Muslim population, it was no secret that Executive Order 13769, (which suspended immigration from seven Muslim countries for three months and the Syrian refugee program indefinitely) would trample on individual rights. This, however, did not dissuade the president from issuing his order, and the Republican-led Congress, for the most part, remained silent on the issue. State attorneys general therefore became the leading voice of opposition.

Washington State’s Attorney General Bob Ferguson filed a suit against the Trump administration just 10 days after Trump implemented the executive order. Months later, Oregon, California, New York and Maryland formed a coalition and joined the suit seeking a restraining order to prevent enforcement of the ban. Their filing revealed a willing to protect the rights of Muslim citizens from federal intrusion as well as a willingness to keep their state’s immigrant families together. Their efforts were ultimately successful when a federal district judge granted the temporary restraining order against the order’s enforcement.

Hawai’i’s state Attorney General also pursued litigation after Trump unveiled his revised version of the executive order. This time, though, instead of joining the suit as co-plaintiffs, the coalition of state attorneys general filed an amicus brief opposing the order as discriminatory. Again, the state attorneys general efforts were affirmed when federal judge Derrick Watson reinstated the nationwide restraining order against the ban until the resolving of Hawai’i’s lawsuit.

You can gauge how effective state attorneys general are through the travel ban resistance movement. What made these attorneys general so successful was their relentless approach to fighting the ban and the divisive sentiments it promoted. You can see how dedicated they were just by reading their Twitter pages and official websites. The sheer amount of space devoted to the travel ban resistance is immense. The next arena where state attorneys general have showcased a similar dedication is healthcare reform.

Trump’s 2018 budget proposal stands to slash federal funding for programs that traditionally spend more money on women than men (such as the defunding of Planned Parenthood). The result is that women will be disproportionately affected by budget cuts, particularly poor women of color. New York Attorney General Eric Schneiderman threatened to sue Trump regarding the defunding of Planned Parenthood, even before Trump revealed his proposed budget.

Lastly, state attorneys general have championed the struggle for transgender students’ rights within schools. A coalition of 19 state attorneys general supported a transgender student’s right to use the bathroom, consistent with his gender identity, by filing a multistate amicus brief in the Supreme Court of the United States. While the case is yet to be resolved, the brief functions as a key piece of opposition to Trump’s withdrawal of federal protections for transgender students implemented by the by the Obama Administration.

In all, state attorneys general have become a primary force guarding citizens’ rights from government intrusion. As the Trump Administration continues to unveil policies that target the rights of various groups, we can expect state attorneys general to continue their proactive resistance to this discrimination. We can expect them to hold the current president accountable.

Employment Without an Exit

A sandwich maker in a shop that is part of a national chain. A cub reporter, fresh from college, reporting on news from local courthouses. A woman who travels all over the state to draw blood for insurance company medical exams. What did they have in common? All of them were subject to out-of-control non-compete agreements.

Use of non-compete agreements is growing, with a recent report indicating that nearly one in five employees are currently subject to these constraints. These agreements restrict future employment, prohibiting an employee from taking a new job with a competitor of their current employer. Generally, they contain time and geographic limitations, preventing the employee from working for a competitor for, say, two years and within a 75-mile radius.

Historically, non-competes have been used in relation to high-level employees, with special skills or knowledge of confidential information or trade secrets. Think secret formula.

But more and more rank-and-file workers are constrained by non-competes. Think no secret formula, no highly-classified customer list, no special skills at all. Workers agree to this for a simple reason: they need a job. The expanding use of non-competes constrains workers’ job mobility and ability to improve their lives; it also thwarts workers’ ability to bargain for better wages or conditions. If the boss knows you cannot go anywhere else, there is no need to give you a raise.

But the impact of non-competes goes beyond the affected workers. Some economists believe that non-competes inhibit growth and innovation, depressing the economy more generally. And some employers dislike non-competes, because they curtail a company’s ability to hire the very best people. These employers also recognize that they can protect their interests with nondisclosure or non-solicitation agreements.

Government officials have begun to address the issue; for example, the White House took on non-competes during the final days of the Obama administration. Ideally, this issue would be resolved at the federal level, but more realistically these days, states will have to take up the mantle.

Many states have case law on non-competes, generally limiting their use to situations where the employer can show a legitimate business interest and where geographic scope and duration are reasonable. Some states have statutes on point: California law has long deemed non-competes void, and blue Illinois and red Utah have more recently passed legislation on the topic. The New York State Attorney General’s Office, my former employer, just spearheaded a proposed bill on non-competes. Other states should join this growing movement to ensure that workers are not stuck in place.

Strong legislation would contain a clear package of protections. Assuming that non-competes would be permitted at all, a top priority should be prohibiting their use in relation to workers with incomes below a certain dollar amount (like the roughly $47,000 overtime threshold proposed by the Obama Labor Department, and more in high-cost areas) and for workers in jobs involving public health or safety, with penalties and a private right of action for violations. Statutes should also prohibit non-competes for employees who lack access to trade secrets or other confidential information. It is important to prohibit use of non-competes instead of making them unenforceable; with a prohibition, non-competes simply cannot be used, while if non-competes are unenforceable, they can be used and ultimately a court will decide whether the use is lawful in that particular situation. Since most workers cannot afford to litigate a case, making non-competes unenforceable does not fully solve the problem.

The law should require employers to supply a proposed non-compete to a prospective employee before the person accepts a job, and not after work has begun; further, duration of non-competes should be limited to six or nine months. Finally, employers should be obligated to pay an affected worker during that time; the person has to live, after all, and an employer should be willing to pay for a non-compete, if it is of value to them. Requiring such payments (known as “garden leave”) could seriously help discourage use of non-competes, because employers will have to assess whether they really need a non-compete for each individual worker.

In the meantime, lawyers can challenge non-competes under existing law any way we can: with arguments that a given non-compete does not protect the employer’s legitimate business interests or is too broad in terms of time or geography; maybe with anti-trust arguments about the terrible impact on job market competition or with arguments about plain unconscionability.

Or perhaps we should drop the legal arguments altogether, and point out what is ultimately in the employer’s self-interest. In a case we handled in the New York State Attorney General’s Office, it was not our legal acumen that tipped the scales toward settlement, although we had very good law on our side. Instead, what made the difference was pointing out that the employer had a recruitment, retention and morale problem because their employees felt trapped and miserable.

How can it possibly be in your company’s best business interest to have your people remain only because you will not let them leave?