Trump firing U.S. Attorneys after retaining them is NOT normal

I’ve seen some expert commentators argue that it is traditional for new presidents to replace U.S. Attorneys. That’s true. But it is entirely untraditional and abnormal to fire U.S. Attorneys after retaining them and allowing them to continue in their offices.

Admittedly, it’s a bit of a gray area because Trump is so early in his term. Nevertheless, every other president made decisions about which U.S. Attorneys to retain or replace immediately in the beginning of their terms. The reason for this tradition is to have a clear marker of turnover to avoid precisely this kind of appearance of interference (or actual interference) in investigations and the administrative justice.

There is only one modern precedent for this conduct, and it is not one to emulate: George W. Bush’s dismissal of seven U.S. Attorneys in December 2006.  The Washington Post reported at the time: “Although Bush and President Bill Clinton each dismissed nearly all U.S. attorneys upon taking office, legal experts and former prosecutors say the firing of a large number of prosecutors in the middle of a term appears to be unprecedented and threatens the independence of prosecutors.” (Gonzales: ‘Mistakes Were Made’). As the story unfolded, the Bush administration had warned these U.S. Attorneys and a handful of others that they weren’t prosecuting enough voter fraud (i.e., Democratic voters) or public corruption cases (i.e., Democratic office holders).  Chris Christie, the New Jersey U.S. Attorney, and Steven Biskupic, the Wisconsin U.S. Attorney, got themselves off the firing list by following the marching orders. Biskupic’s case was particularly scandalous, as the Wisconsin prosecutor won a conviction of a Democratic officer that was later overturned and harshly criticized as baseless by federal courts. The scandal led to Alberto Gonzales’s resignation.

It certainly appears that a similar interference may have occurred on Friday. Bharara has implied as much, tweeting: “By the way, now I know what the Moreland Commission must have felt like.” The Moreland Commission was investigating corruption in New York until Governor Andrew Cuomo suddenly disbanded it. The rumor was that the commission was getting too close to Cuomo for comfort. If Bharara can back up this implication with some solid facts, hold on to your seats. Trump might not hold on to his office, if the right dominoes fall.

To start toppling dominoes with subpoenas or legal discovery, the only solutions now are 1) a special federal prosecutor (don’t expect Trump’s DOJ to allow this);  2) Congressional committee hearings (good luck); and 3) state attorneys general investigating, the most likely option politically.

ACTION: Ask NY Atty Gen to investigate and dissolve Trump Org. 800-771-7755

Now that Trump has fired US Atty Bharara, NY Atty General Eric Schneiderman has the special power and duty under NY Bus. Law 1101(a)(2) to investigate: 1) unconstitutional “Emoluments”; 2) Trump financial records; 3) Russian influence; 4) violations of Foreign Corrupt Practices Act and Iranian sanctions; 5) obstruction of justice.

CALL NY AG Helpline: 1-800-771-7755. Tweet address: @AGSchneiderman.  See Jed Shugerman at

Trump just fired U.S. Attorney Preet Bharara this afternoon, after Trump had decided to keep Bharara on the job in January. Bharara had been very popular with Republicans for his prosecution of corrupt politicians. So why the sudden change?  When Trump asked for Bharara’s resignation yesterday, the N.Y. Times explained:

Last week, several public interest groups, including Democracy 21 and Citizens for Responsibility and Ethics in Washington, called on Preet Bharara, the United States attorney for the Southern District of New York and an aggressive prosecutor of corruption, to investigate the Trump Organization, the New York-based business through which Mr. Trump owns and controls his hotels, golf courses and other holdings. But that effort might not go far because the Department of Justice on Friday asked Mr. Bharara and 45 other United States attorneys appointed by former President Barack Obama to resign.

When Bharara refused to resign, Trump fired him. Coincidence? What was Bharara already investigating? Now that Trump will replace Bharara with his own personal crony to protect his business empire, who else can investigate?

The answer is simple: New York State Attorney General Eric Schneiderman can bring the investigation that Preet Bharara might have.  I have written before about how every state gives its attorney general the power — and the duty — to investigate corporate corruption and law-breaking with the Quo Warranto procedure. In New York, that power is written into New York law. New York’s Business Corporation Law section 1101 grants the attorney general the authority “to bring an action for the dissolution of a corporation” if:

the corporation has exceeded the authority conferred upon it by law, or has violated any provision of law whereby it has forfeited its charter, or carried on, conducted or transacted its business in a persistently fraudulent or illegal manner, or by the abuse of its powers contrary to the public policy of the state has become liable to be dissolved.

N.Y. Bus. Corp. Law § 1101(a)(2). New York courts have explained that violations of federal law are also grounds for dissolution, so Trump’s constant violations of the Emoluments Clause are grounds for this investigation and dissolution or forced divestment. In re People (Int’l Workers Order, Inc.), 199 Misc. 941, 976, 106 N.Y.S.2d 953 (N.Y. Sup. Ct. 1951).

Call, tweet, or write to Attorney General Eric Schneiderman now to get him to start this investigation to understand what Trump and his corporations are doing, how the corporation is a vehicle for foreign “emoluments,” and how these foreign entanglements are endangering the United States.  And if you live in other states, you can contact your attorney general, too.  I’ll update this blog with state-by-state action plans soon.

NY Attorney General Eric Schneiderman’s Twitter address: @AGSchneiderman

NY Attorney General’s General Helpline: 1-800-771-7755

TDD/TTY Toll Free Line: 1-800-788-9898

Mail: Office of the Attorney General
The Capitol
Albany, NY 12224-0341






Did Israel just ban me from visiting?

I wake up this morning with major cognitive/emotional dissonance. On the one hand, I am celebrating Team Israel’s improbable sweep of its round in the World Baseball Classic, with wins over South Korea and the Netherlands, teams loaded with major league stars. I LOVE this story. On the other hand, I just realized that the Israeli Parliament (the Knesset) just banned me from visiting the country where I lived for two years, met my future wife and fell in love, and formed my identity as a Jew.

The ban would apply not only to people who call for boycotting Israel, but also to those who support boycotts of any Israeli institution or any “area under its control,” obviously meaning the settlements.

Although I don’t support full “BDS” (boycott/divest/sanction) of Israel, I do support a boycott and divestment of Israeli settlements and their products. So even though I don’t support full “BDS,” Israel’s govt is boycotting, divesting and sanctioning people like me.

I’m not sure what the next steps are. But if the Israeli government says I may not enter legally, I cannot travel there, so I am cornered into a de facto travel boycott. And even if I didn’t support boycotting of the Israeli settlements, how could I possibly support country with this kind of discriminatory, undemocratic policy?

We just had a meeting this week at our son’s Jewish high school about the school trip to Israel next spring for seven weeks. That night, I was so excited for him to take the adventure with friends and without us, to take a leap into independence. My adventure in Israel when I was 15 was transformative in many ways. I want him to share that experience. Today, I feel worse than ambivalent about Israel, I feel torn and betrayed. If I wanted to visit him there, would I even be allowed to?   This travel ban seems to be a more aggressive turning point. Commentators across the political spectrum have been saying for years that as long as the two-state solution is stalled or dead, Israel cannot be both a Jewish state and a democracy. If Israel wants to claim to be a democracy, the Palestinians cannot live as stateless disenfranchised third-class non-citizens indefinitely. As Israel approaches the 50th anniversary of the Six Day War and seizing control of the West Bank and Gaza, it seems to me that the Knesset has chosen “Jewish state” over “democracy” more aggressively and decisively than ever before. No, it is worse than that: It is actively rejecting the core principles of democracy.

The best piece I’ve seen as a Jewish parent is Peter Beinart’s: “I support boycotting settlements. Should I be banned from Israel with my children?”

His conclusion is most powerful:

“Now, in my long-running battle with Netanyahu for my children’s identity, the prime minister has struck an unexpected blow. The good news is that in a few years they will start going to Israel on school trips without me. I hope they visit many, many times, and come to cherish the place as I do. My mother once told me that my grandfather, for whom my son is named, was never happier than when he was arguing politics on Dizengoff Street. God willing, my son and daughter will pass many days doing that too.

“But if I can’t be there with them, so be it. My parents gave me many gifts, but the most important was their example. They loved South Africa and they opposed apartheid. And when the tension between their lives and their principles grew too great, they chose the latter, and they left. As I child, I sensed their sadness and their isolation. And I felt proud to be their son.

“In my family, we have a tradition. We lose countries but we keep our self-respect.”

Read more:

Update: My friend Rabbi Matt Carl adds:  “Plenty of us said ‘if there’s a Muslim ban, I’ll register as Muslim.’ I’m happy to claim I support BDS for this/analogized purpose.”  Absolutely the right moral response. Count me in.

Trump’s new travel order is still unconstitutional

Trump’s new executive order on travel and entry today continues to temporarily block entry to six predominantly Muslim countries (removing Iraq). It appears to fix two of the biggest constitutional problems:

  1. It no longer includes a preference for “religious minorities” in Muslim countries, a provision that was designed to benefit Christians over Muslims, as Trump himself said to the Christian Broadcasting Network.
  2. It clarifies that Green Card holders and those already holding visas are permitted to enter.

The Ninth Circuit, by a 3-0 decision, had blocked the first travel ban only on the basis of the Due Process clause of the 5th Amendment, a relatively narrow constitutional ruling that focused mainly on problem #2, because the Green Card holders and visa holders were denied due process.  Many observers criticized the “religious minority” exception because it most clearly violated the Establishment Clause in its text.

But the problem is that if this revision is only in response to the unanimous Ninth Circuit opinion, they don’t address the other constitutional problems under 14th Amendment (Equal Protection) and the Establishment Clause, and the two statutory problems based on the Immigration and Naturalization Act and the Religious Freedom Restoration Act.

Judge Leonie Brinkema of the Eastern District of Virginia focused on the Establishment Clause in her opinion blocking the first order on Feb. 13th.  It summarized President Trump’s public comments calling for a “Muslim ban,” for three pages. Even setting aside the preference for religious (Christian) minorities, it held that the public comments were sufficient to show an unconstitutional purpose of “advancing one religion over another” (citing McCreary County (2005) and Santa Fe (2000)).

Brinkema wrote, “The ‘Muslim ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered.” Even if the ban did not apply to all Muslims, it was still discriminatory because “the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise… It is a discriminatory purpose that matters, no matter how inefficient the execution.”

These same problems don’t magically disappear just because the old order has been revoked. You can’t “unring a bell,” as lawyers often say. Once government officials have stated the discriminatory purpose, they need to fix this problem with extra protections. The same purpose still applies here.

It seems to me that the only fix now would be to get rid of the blanket temporary bans on Muslim countries entirely, and actually implement a vetting plan without a ban. The problem would remain that the Trump administration could apply its vetting in a discriminatory way, but we can cross that legal bridge when we get to it (no immigration pun intended). This leads me to think that, because the Trump administration did not attempt to fix its order with a more permissible method — one that would survival legal challenges but also would be open to anti-Muslim manipulation in practice — then this “revision” is really meant to trigger another round of court battles to fire up the base and drive cultural wedges. Bannon wants a nationalist fight, a culture war, rather than effective policies. This new order is a second battle on this immigration front of the culture war. And their timing is intentional: a distraction from the Russian scandal/Sessions perjury charges, as lawyers will challenge this order all around the country.

In any event, Brinkema did not need to address the Equal Protection argument nor the statutory arguments under the Immigration and Naturalization Act (which prohibits religious discrimination) and the Religious Freedom Restoration Act. There are complexities to those arguments based on the legal standing of non-citizen non-residents without visas, which is why the Establishment Clause remains the most important barrier. But undoubtedly all of these arguments will get fleshed out in the near future in some big decisions.

I also wonder if there is a political cost to removing the “religious minority” exception, because Christian groups have mobilized to support persecuted Christians in Muslim countries. Now those refugees, who are the most popular refugees among the Republican base, are now unprotected and excluded. I wonder if any evangelical groups complain publicly. I would hope religious groups would complain about the ban for many humanitarian reasons.


“On the Media” on NPR: Zephyr and I talk about Emoluments and the power of state attorneys general to sue Trump entities

Here’s the link:

And here are my other posts explaining the quo warranto powers (and duties) of state attorney generals to dissolve or enjoin corporations and LLCs that violate state and federal law:

1. State Attorneys General Can Enforce the Emoluments Clause with Quo Warranto vs. Trump’s Hotels

2. Is Trump Receiving “Office-Related” Emoluments?


Sessions committed perjury and must resign.

Did Sessions commit perjury? I have seen commentators rightly note the intent requirement, and then give Sessions wiggle room, offer some hand-wringing, and then give him the benefit of the doubt. These arguments ignore the rest of our legal system’s treatment of intent and they ignore the details of the Sessions timeline. We discussed these events in my Administrative Law class yesterday as the story was breaking. Some students raised a valid concern: Sessions’s answers to ambiguous questions from Sen. Franken and Leahy should not be the basis for perjury, because of the ambiguity. My answer is that you have to put the two answers together in the context of how hearings and testimony work, and once you do, the perjury (or “false statement”) charges stick. The bottom line is that once Sessions gave a false (or at best, misleading) answer to Sen. Franken, he was given a direct opportunity to correct the false statement five days later from a very similar written question by Sen. Leahy.  His failure to disclose or correct his false answer to Franken in his written response makes a strong case for perjury and/or a criminal false statement under 18 U.S.C. 1001(a).
Let’s start with the facts (and a more complete timeline is here):
Throughout last summer, there were major questions about the Trump campaign’s Russia contacts. These concerns spiked in August with Paul Manafort’s resignation as campaign manager when it was revealed he had been on the pro-Putin Ukrainian payroll and failed to register himself in the U.S. as a foreign agent (a crime). It is revisionist to say that the Russian contacts story was revealed after the election. It had been a major story throughout the campaign, and then peaked in December. Every member of the Trump campaign and every appointee knew that Russian contacts were an enormous concern going into the confirmation hearings. Each nominee had to be prepared to answer such questions honestly.
On January 10th, Sen. Franken asks Sessions an unclear question about Russian contacts, ending with the question: “[I]f there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?”

The problem is the answer: “Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I did not have communications with the Russians, and I’m unable to comment on it.”

Let’s be as fair as possible to Sessions here. It is not easy to explain everything you mean in live testimony. It could be unclear what he meant by “the Russians,” and he might mean to be saying that he did not have communications about the campaign. Franken’s question was unclear and broad, and it was implicitly about other Trump officials, not Sessions. (That’s also what makes Sessions’s defensive shift to a personal denial so strange. Why jump to deny a charge that was clearly not even alleged?)

But in the end, his live testimony was false. He did “have communications with the Russians” during the campaign. So this is what normally happens in confirmation hearings: the nominee reviews his testimony with lawyers afterward to make sure he or she did not accidentally mislead or lie. The nominee has days to amend their testimony, to give written clarifications if anything was untrue or misleading. If he or she does, then the problem is resolved. There is no “gotcha” for the earlier false statement, because the nominees have ample opportunity on their own to clarify.

Not only did Sessions fail to correct his false or misleading answer, but he continued to mislead when given a direct opportunity to clarify or disclose one week later in a written answer to Sen. Leahy.

First, on Jan. 12 (two days after Franken’s question), the Washington Post broke a huge story about national security adviser-designate Michael Flynn’s interactions with Russia’s Ambassador Kislyak.  On Jan. 15, Pence appears on “Face the Nation” to discuss Kislyak. At this point, every nominee has been reminded about Kislyak, that he was a really big deal, and that meeting him is a really big deal. If Sessions had somehow forgotten meeting Kislyak, he was undoubtedly reminded with a ton of bricks from the media storm around Flynn. At that point, any nominee would think, “Wait, did I meet with the same guy? And if I did, did I say anything under oath to the contrary?”  It would be problematic enough to fail to clarify Sessions’s live answer. But the problem is worse.

On Jan. 17, five days after the Washington Post story, and a week after the false answer to Franken, Sen. Leahy, the ranking Democrat on the Judiciary Committee, sends Sessions a letter asking about Russia, among other things:

Several of the President-Elect’s nominees or senior advisers have Russian ties. Have you been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after Election Day?


Boom. There’s the case for perjury/ criminal false statement. Now let me be clear: by itself, the answer to Leahy appears to have wiggle room. But you cannot read the answer to Leahy by itself. It may be a second lie on its own, but more clearly, it is a failure to clarify the false statement in the live testimony, it continues to mislead, and it builds a strong case for intent to mislead and deceive.  Keep in mind, there are reports that Sessions did discuss the 2016 election with Kislyak, so in fact, both statements under oath may be false. In the very least, Sessions should have clarified his answer to Franken on his own initiative, especially once the Flynn/Kislyak story exploded two days later. But Leahy gave Sessions a gift, a fairly direct opportunity to disclose, clarify and correct a false statement, but Sessions turned that opportunity into a strong case of a deliberate false statement.

Here’s one more authority about whether this behavior counts as perjury or a criminal false statement: Sessions himself. In 1999, Sessions concluded that Bill Clinton’s statements, despite some roughly similar kinds of word-parsing and wiggling, constituted perjury, and Sessions voted to convict on both perjury and obstruction of justice. What’s good for the goose, Sessions?

Look, it’s always difficult to prove intent, and yet our legal system doesn’t say in countless criminal and civil cases, “Oh, it’s hard to prove intent, who could know what he intended? Let’s not prosecute.” No, our legal system convicts thousands and thousands of people for intentional crimes each year even though intent is never epistemologically knowable to an outsider. Our legal system uses context and common sense to reach our best conclusions about intent (beyond a reasonable doubt to convict). If you’re going to say that any doubt about Sessions’s intent is reason to excuse him, then you need to consider releasing thousands and thousands of people from prison. (Talk about massive criminal justice reform!)  The Attorney General does not get a special privilege or a free pass on “intent” when his Department prosecutes people every day for similar kinds of intent cases.
The bottom line: Sessions must resign. There is a strong case for perjury that a special counsel must investigate. Give that special counsel the discretion to decide to bring criminal charges. But it is absurd to give Sessions and his DOJ lawyers that discretion. The case for appointing a special counsel on the Russia contacts, with jurisdiction over Sessions’s contacts and perjury/false statement is overwhelming.
So what are the rules for appointing special counsel?  Back in January, I suggested that President Obama should appoint special counsel to investigate the Russia contacts and emoluments.  The same laws and regulations still apply and are more relevant now. If Sessions recuses, then formally a Deputy Attorney General takes over the case, but the next step should be appointing a special counsel/special prosecutor. I set out the statutes and rules in an earlier post here.