Our Historians’ Amicus Brief in CREW v. Trump

John Mikhail, Jack Rakove, Gautham Rao, Simon Stern and I are proud to have filed our brief in CREW v. Trump on behalf of the plaintiffs on the meaning of the Emoluments clauses.  See here.

We have posted images of archival sources debunking the inaccurate claims made in the amicus brief on behalf of Trump, on the unsupported and idiosyncratic claim that the Foreign Emoluments Clause does not apply to the president. See here. The key documents by Alexander Hamilton, disproving their briefs’ claims, are images 9 and 12 on this part of the site. They show that Alexander Hamilton in fact included the president and vice president in his list of “offices under the United States,” signed and dated by Hamilton twice in the final versions.

The Bigotry of Low Expectations… and John Kelly’s Bigotry

Countless pundits are praising the hiring of John Kelly as the new chief of staff. But one can only praise Kelly’s professionalism relative to the ridiculousness of the Scaramucci/Spicer/Conway circus. It’s the bigotry of low expectations, given such clownish predecessors. But when it comes to bigotry, we have to ask about John Kelly’s bigotry. He is no Mooch clown. He is something far scarier. Kelly helped bring us the ugly, chaotic, and illegal Muslim Ban. You need to have willful amnesia if you want to celebrate John Kelly’s hire as chief of staff.

John Kelly was Secretary of the Department of Homeland Security, and he was one of a very small handful of officials directly responsible for the Muslim Ban. The team started Trump, Steve Bannon, and Stephen Miller, but Kelly was the very next member of the team and the chief of its implementation. He did not know the details or the exact timing of the announcement, but he knew the general outline of the plan. CNN reported, “Homeland Security Secretary John Kelly and Department of Homeland Security leadership saw the final details shortly before the order was finalized, government officials said.” He was not as responsible as Bannon and Miller, but he failed to control the process, and he developed the almost-as-bad Muslim Ban 2.0. Benjamin Wittes (the conservative Trump critic) summed up these events perfectly: “Malevolence tempered by incompetence.” Bannon and Miller were more incompetent, but Kelly shared their malevolence.

Keep in mind how transparently the original “travel ban” was actually a discriminatory Muslim Ban. Here is just a summary of its many legal and administrative problems:

  1. It initially privileged minority religious groups in these seven Muslim countries, an obvious legal loophole designed for Christians rather than Muslims. Trump admitted so explicitly on Christian Broadcast News.
  2. It included Iraq, which created a military and diplomatic crisis.
  3. The announcement and application was one of the most chaotic, confusing, uncoordinated government events in memory, perhaps in history. I challenge anyone to name a more chaotic proactive government event in modern American history (reactions to events like Pearl Harbor, 9/11, or Katrina don’t count).
  4. The State Department had no warning or notice of this order. We’re talking about the STATE Department.
  5. No one had any clue how the ban applied to Green Card holders, student visas, or any number of non-citizens with some kind of documented legal status.  Many family members and refugees were callously left in limbo or had years of plans completely upended. It wasn’t just funny chaos. It was nasty and brutal chaos. The news reports blame others more for this chaos, but Kelly played a big role in it.
  6. The 120-day “temporary pause” period for studying alternatives (“extreme vetting”) was always a pretense, but it has been utterly exposed. The 120-day period from the ban’s announcement passed on May 20th, and there is still no evidence that the administration has made any attempt to develop alternatives. There have been many legal proceedings to demonstrate this necessity and any progress, and the Trump lawyers have not offered even an attempt to explain this process. As the official in charge of the department suppostedly working on “extreme vetting,” this is Kelly’s fault more than anyone else’s. The “temporary” ban was just the start of a permanent ban, either due to Kelly’s incompetence or his malevolence or both.
  7. Considering how disastrous Muslim Ban 1.0 was, I would think a responsible leader would have taken a big step back after the court losses to change message, approach and tone. But Muslim Ban 2.0 was more like Muslim Ban 1.1 (only slightly modified from 1.0). It was basically the same message and the same approach.

There is a lot more I could say here, but I’ll just link to the stories that elaborate on Kelly’s bias and incompetence: Here, here, oy, I could list more and more stories. But this N.Y. Times story, “How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos,” is particularly brutal to review.

Please, pundits, recall these events from just six months ago, and how those events continued to unfold chaotically and unconstitutionally under Kelly up to now. They are a reminder that the move from Priebus to Kelly is nothing to celebrate. It’s potentially a shift from Republican insider incompetence to anti-Muslim militaristic competence (or perhaps, just a bit less incompetence). Have mercy if Kelly is more effective in his policy goals than Priebus ever was.




Sorry, the ObamaCare Repeal battle is not over.

Politico reports that the Senate Republicans are working on a new compromise based on “block grants” giving states much more power to waive the ACA. The most signifiant news is which Senators are putting together this bill: Lindsey Graham (SC), Dean Heller (NV), and Bill Cassidy (LA). [Update: I’m also linking to legislation expert David Super’s post more generally on how this bill is still alive, despite the internet’s fascination with a random anonymous Reddit user, whose argument doesn’t even make sense.] 

First, we need to review the votes last week to see how close the Senate was to passing a real bill. Of course, the Skinny Repeal got all the attention, and it was even more serious than cable news reported. It received 49 votes, even with all of the warnings by Graham and McCain that it was a “fraud” and a “disaster.” If it had passed, Paul Ryan only committed to bringing it to “conference” for the Senate and House to work on a compromise. But Ryan did not promise that the House would never vote on it. When the conference would inevitably stumble or break down, Ryab could always threaten to pass the Skinny Bill into Disaster Law in order to force the Senators back to the table and coerce a bill closer to the House’s AHCA (the thing Trump called “mean.”)

But even more relevant as a policy barometer, the Senate also voted on BCRA, the thing McConnell hammered out in secret. Its effects would be remarkably similar to AHCA (22 million lose insurance by 2026, worse coverage, and higher premiums for many, but hey, lower taxes on the rich!). Here is the most troubling part of the story: on the crucial procecural vote on BCRA, the vote was 43-57, but a closer look shows how close the GOP is to a compromise. Here are the 9 Republican no votes on BCRA:

From the right (Tea Party-types): Rand Paul, Cotton, Lee, Moran, and Corker (more or less).

From the center-right: Graham, Heller, Collins, Murkowski

In the end, when the only option left is a compromise repeal or leaving ObamaCare in place, the right wing will vote “yes” on repeal. Then all the GOP needs is Graham and Heller to vote yes to get to 50 (and then 51 with Pence). And Graham and Heller are writing this new bill.

McCain voted “yes” on BCRA already. And Graham is his BFF in the Senate, so he will support him, especially once Graham makes sure this bill follows the “regular order” that McCain demanded in his big speech last Tuesday (criticizing McConnell’s secret process). Graham is talking directly to the House conservatives, through Freedom Caucus chairman Mark Meadows. If Graham can get the House Freedom Caucus to agree, then it’s all the more certain the Senate’s right wing will compromise, too.

What about the problem that many of BCRA’s provisions required 60 votes to get cloture (and get past a filibuster)?  Do we really want to count on Mitch McConnell playing fair and keeping any old rules that stand in his way?

I hope that all the positive reaction across America to McCain’s dramatic vote (alas, some manufactured drama) will keep him voting “no.” But I fear that he will vote with his BFF Graham, and voe to boost Heller’s reelection by giving him cover. So if we can’t count on McCain, then we desperately need to find one more Senator to stand with Collins and Murkowski. The only other possible hopes are Capito and Portman, but they voted for both BCRA and the Skinny Repeal.

So this fight is far from over. And once you review the actual votes from this last battle, the signs are clear that we could lose the next battle.

Root for Sessions to Hang On

It may seem bizarre to root for Sessions to stay AG, and it may be cruel to want anyone to suffer daily Tweet attacks from Trump, but we should be hoping Sessions does not resign. Trump has a strategy: get Sessions to resign, rather than have to fire him, so that Trump can use a recess appointment to find any Senate-confirmed Trump-loyalist to serve as a new AG and to do his dirty work to fire Mueller. Steve Vladeck has a terrific post today explaining the legal framework and why a resignation rather than a firing is so helpful to Trump.

Update: It looks like Senate Democrats have found a way to block Trump from making recess appointments, so it may not matter if he fires Sessions or forces him to resign through humiliation.

Tomorrow: How a Bill Becomes a Disaster

McConnell’s strategy is now out: tomorrow, he is going to offer the health care bill that the HOUSE ALREADY PASSED. This is a huge move, because if the Senate passes it, it will be DONE. Trump will sign it, and Schoolhouse Rock fans, you know that’s how a bill becomes a freaking disaster. McConnell will be gambling on a high risk, high reward (from GOP donors). But with McCain flying back early from surgery to vote yes, McConnell is going for broke. Call Senators at 844-432-0883. Collins and Rand Paul are probably no votes. We need at least one more, and it probably comes down to Heller (NV), Capito (WV), and Portman (OH).

What if Trump fires Mueller or starts mass pardons? It would backfire.

Note: Slate published this post as “Trump Can’t Escape the States.”

 There are more and more signals that Trump is exploring firing Mueller and pardoning anyone and everyone in his circle. So what would happen next? The bottom line is that those moves would backfire spectacularly.

First, can Trump pardon himself? That’s surprisingly hard to answer. The constitutional text gives no answer, and the Convention debates aren’t particularly helpful. Some people cite the Latin phrase “Nemo judex in causa sua” (One can’t be a judge in his own case) as some kind of answer, but the pardon power is executive, not judicial, so a president isn’t formally a judge in his own case. Plus we don’t live in Rome, even if the Latin sounds wicked smart. The bottom line is that the only significant barriers to self-pardons are politics (impeachment) and federalism (state powers).

 Presidential pardons can’t apply to state prosections. So state attorneys general, especially NY’s Eric Schneiderman, DC’s Karl Racine, and Delaware’s Matthew Denn should think about cancelling their summer vacation plans.  (Yes, Delaware. Go Google “quo warranto.” Or see my old post or see below.) And maybe they should open up some office space for Bob Mueller and his A-team when he inevitably gets fired for getting closer and closer to hard evidence of serious crimes.

Anyway, three big points: 1) This is your increasingly regular public service announcement that the president cannot pardon people for state crimes. Even if Trump pardons Kushner, a state prosecutor can bring charges under state law any time. Similarly, Trump can be prosecuted under state law. Nixon’s attorney general concluded in 1974 that a sitting president can’t be indicted, but there is no constitutional text or precedent for such a conclusion, and it was obviously an interpretation that benefited Nixon. I think this is an open question, and on balance, I think the better argument is that the president can be indicted.

2) Pardons will backfire. If you’re pardoned, you can’t plead the 5th Amendment, the privilege against self-incrimination, because you can no longer face a penalty for incrimination. So if Kushner, for example, gets pardoned, he can still get a subpoena to testify. If he tries to plead the 5th, he would be help in contempt of court and face jail. If he testifies and lies, the pardon for old crimes does not extend to new crimes post-pardon. He would face jail for perjury. So ultimately, Trump pardoning Kushner, Flynn, etc. would actually make it more likely that they would have to testify.

[Update on pardons: Upon reflection, I overlooked that one of my points, that state prosecutors can charge state crimes even after presidential pardons, conflicts with another point: that pardoned people can’t plead the 5th. If a federally pardoned person might face state charges, they can still invoke the 5th Amendment’s privilege against self-incrimination. But even if they can take the 5th, the danger of state conviction under a mountain of documented evidence would still be enough to get someone like Flynn or Manafort to flip and be a witness against Trump.]

3) Pardons can be their own basis for impeachment. Impeachment is for high crimes and misdemeanors, which are not the same thing as regular crimes in the books. If a president abuses his or her power, that abuse can be the basis of impeachment even if that abuse isn’t formally covered by any criminal statute. For example, if Trump simply disregarded Supreme Court rulings on immigration (or if he disregarded the law to sabotage health care), Congress could impeach and convict. Abuse of the pardon power could be the same. I’d go further and argue that the use of the pardon to obstruct a criminal investigation is, well, obstruction of justice.

A president has the power to order a military strike, but not if his intent is to murder someone who has dirt on him or who is sleeping with his wife. Similarly, Trump has the power to fire FBI directors, but his intent can be criminal and violate the obstruction statutes (18 USC 1503, 1505 and 1512(c)(2)), as I’ve written before. So too does a president have the power to pardon, but not for bribes, for example. And in this case, Trump has the power to pardon, but not to obstruct justice (under the same statutes).

4) OK, on to the Mueller question. Can Trump fire Mueller? I’ve been reading a lot about this, and I’ll rely on Jack Goldsmith, who was part of the Comey/Mueller high speed thriller in 2003: It turns out that there is no clear answer.

So let’s assume that Trump will fire Mueller. It turns out that there are many ways for him to get back on the case:

A) A state prosecutor, with the help from a state attorney general or governor, could hire Mueller and his A-Team of lawyers. They’d have subpoena power under state criminal law.

B) State attorneys general could use their quo warranto power to investigate the Trump Organization, fraud, and money laundering from Russian sources.

C) A Congressional committee could hire him, such as the Senate Intelligence Committee. Or Congress could create a Joint Select Committee.

D) Congress could pass a new Independent Counsel statute that circumvents the president. Congress would need a veto-proof 2/3 supermajority of each House. Don’t hold your breath on that one.

E) The civil litigation on emoluments (there are now three suits) and the very intriguing new suit (Cockrum) against the Trump campaign for hacking conspiracy can also pursue many of the same questions, and Mueller and his lawyers could be called in as a witness in these cases.

The bottom line is that there are many paths to continue this investigation. If Trump pardons people or fires Mueller, those moves will backfire almost as badly as firing Comey.