Happy Law Day, Happy Emoluments Day!

Today is Law Day, celebrating the rule of law in America. To celebrate, our team of legal historians (John Mikhail, Jack Rakove, Gautham Rao, Simon Stern and I) filed our amicus brief in the 2d Circuit on the history and meaning of the Emoluments Clauses. The brief is here.

Gautham and I also recently published an essay in the Hastings Constitutional Law Quarterly on this issue, titled “Emoluments, Zones of Interests, and Political Questions: A Cautionary Tale.” SSRN link here.

Abstract: As the Supreme Court addresses partisan gerrymanders in 2018, the “political
question” doctrine is facing intense scrutiny. Will the Court tackle the problem or
punt once again? It turns out that other high-profile cases in the lower courts offer
a perspective on the political question doctrine. The Emoluments cases offer a
cautionary tale about the use of the political question doctrine, and how the
political question doctrine is too often an unconsciously tempting escape for judges
facing challenging legal questions.
The dismissal by the Southern District of New York in CREW v. Trump avoided
reaching the merits of the emoluments claims by finding that the plaintiffs do not
have standing to bring the suit. The decision contains serious errors in its zone of
interests analysis and its political question analysis. In this Essay, we argue that
the plaintiffs are clearly in the zone of interests of the Emoluments clauses and that
the political question analysis is out of step with a half dozen justiciable clauses of
the Constitution. These errors are a sign of trying too hard to avoid the merits.
There are certainly times when it is appropriate for courts to invoke the political
question doctrine, but this episode is a reminder for judges to slow down and reflect
when it may be an intuitively appealing resolution, but in fact, it is a dodge of a
tough constitutional issue.


Scalia is still wrong

My latest in Slate:

“On Thursday, the Senate Judiciary Committee advanced a bill seeking to protect the special counsel from an unjustified removal on a bipartisan 14–7 vote, an important signal of support for Robert Mueller. Majority Leader Mitch McConnell, however, has promised not to bring the Special Counsel Independence and Integrity Act to the Senate floor, and his obstructionism has been bolstered by a bizarre legal claim by some of his Republican colleagues.

In Thursday’s debate on the motion, Sen. Ben Sasse made a stunning argument for voting no: “Many of us think we are bound” by Justice Antonin Scalia’s opinion in the 1988 case Morrison v. Olson. Sens. Orrin Hatch and Mike Lee expressed a similar reasoning for their “no” votes. It’s not a surprise for a senator to defer to Supreme Court decisions. But it is a shock for a senator to say he is bound by a lone dissent in a 7–1 Supreme Court case decided 30 years ago. There is a reason Scalia was all alone in dissent: He was wrong, and his historical assumptions were irredeemably wrong…”

It’s 1986 all over again

We are re-living 1986. The best teams in baseball are the Red Sox, Mets, Astros, and Angels. The President is under investigation for illegal foreign transactions. Donald Trump is on the verge of bankruptcy. And the Cold War with Russia is serious… but this time it’s only heating up.
Guess what else happened in 1986? The Democrats reclaimed the Senate for the first time in 6 years… and used that new power to block right-wing Robert Bork, most appropriately. Those are the stakes in 2018-2020.

The Wisconsin Judicial Election is good for Democrats, but bad for democracy

My new piece in the Daily Beast, titled “Merit over Money: Judicial Elections Are a Mess—Here’s How to Fix the Problem”:

“On Tuesday evening, progressives were celebrating the results for the Wisconsin Supreme Court race. And for good reason: a 56 percent to 44 percent win for a liberal candidate, Rebecca Dallet, in a state that Trump had won is a big deal. But the event itself is nothing to celebrate. Judicial elections—and especially non-partisan judicial elections—are bad for law and democracy…”

I argue that merit selection is a better system for constitutional protections and an acceptable compromise with those who seek more accountability.

Political Questions and Courageous Answers

Here is my essay in Slate on what the Supreme Court should learn from last week’s Emoluments decision as it grapples with partisan gerrymandering.

Correcting one sentence: One key drafter, Gouverneur Morris, discussed this scandal at the Philadelphia Convention, and two major legal commentators cited it to explain the Emoluments Clause, suggesting that there was a particular concern about chief executives’ financial entanglements with foreign states.

Trump and Dowd may have attempted to obstruct justice with pardons.

The New York Times is reporting today that Dowd, Trump’s personal lawyer, floated the offer of pardons to Manafort and Flynn, implicitly some kind of deal for their silence.

“But even if a pardon were ultimately aimed at hindering an investigation, it might still pass legal muster, said Jack Goldsmith, a former assistant attorney general in the George W. Bush administration and a professor at Harvard Law School.

“There are few powers in the Constitution as absolute as the pardon power — it is exclusively the president’s and cannot be burdened by the courts or the legislature,” he said. “It would be very difficult to look at the president’s motives in issuing a pardon to make an obstruction case.”

The remedy for such interference would more likely be found in elections or impeachment than in prosecuting the president, Mr. Goldsmith added.”

I respectfully disagree, for reasons I’ve explained before here and following up counterarguments here. If a president could be guilty of selling pardons (bribery, surely!), he could be guilty of offering pardons to obstruct justice.

I still don’t think a president can be indicted while in office. Impeach and remove first, then prosecute. But I do think John Dowd could be in serious trouble. Attorney-client privilege does give him the privilege to attempt to obstruct justice.