“What happens to Mueller’s evidence if Trump goes on firing spree?” I wrote this post on Friday for Slate and I emphasized the role of NY Attorney General Eric Schneiderman and reports of his coordination with Mueller. Here’s a post-Schneiderman-resignation update on this question. The bottom line is that the office is in great hands with Solicitor General Barbara Underwood, who has now become Acting AG.
I saw Infinity War yesterday with my 13-year-old and his good friend. It was good, but definitely not great. It had a big problem for them in its ending, and it had a huge problem for me in the middle about its understanding of love. (Don’t click below if you don’t want the spoilers!)
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.
“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…”
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.
“What we know about who did the FBI raid is just as important as the information we have on why they did it.” Mueller and Rosenstein turned to a US Attorney’s Office to strengthen their hand and create a back-up in case Trump fires them. My new post at Slate is here.
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.