Thursday, June 14, 2018

Zervos v. Trump: New York's Highest Court Refuses Appeal

On its own motion, the New York Court of Appeals (NY's highest court) dismissed the appeal by Donald Trump in Trump v. Zervos.

From its decision list, the court's entire "opinion" reads:

On the Court's own motion, appeal dismissed,without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.

Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Motion for a stay dismissed as academic.

Recall that in May, the appellate division in New York denied President Trump's motion for a stay, in a summary decision.  Recall that in March, the state trial judge ruled the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status. The trial judge decided that the holding of  the United States Supreme Court in its unanimous 1997 decision of Clinton v. Jones that then-President Clinton was subject to suit in federal court extended to state court.

Petitioning the United States Supreme Court for a stay would be the next step if the president wants to halt the defamation lawsuit against him for as long as he is president. Otherwise, the case will proceed including presumably discovery which would mean a deposition of the president.

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June 14, 2018 in Executive Authority, Executive Privilege, First Amendment, State Constitutional Law | Permalink | Comments (0)

Sunday, June 3, 2018

Trump Lawyers Claim Breathtaking Power, Privilege in Mueller Investigation

The New York Times released a memo penned by Trump lawyers to Special Counsel Robert Mueller earlier this year outlining their theory of executive power and privilege in relationship to Mueller's investigation.

The memo is only the analysis of President Trump''s lawyers. It's not the law. Getting a judicial decision on these issues would require this extraordinary sequence: (1) Mueller to subpoena President Trump to testify, (2) President Trump to decline, and (3) Mueller to attempt to enforce the subpoena in court.

The memo contains a number of eye-popping claims, highlighted by the Times in its analysis. Here are two broad, even breathtaking, constitutional positions in the memo:

1.    The President, by definition, cannot commit obstruction (or even any other federal crime). The memo says that the President, as chief executive, cannot constitutionally commit obstruction of a federal investigation:

It remains our position that the President's actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.

The language seems to justify absolute presidential immunity for two different reasons, (1) because prosecution would amount to the president obstructing himself, and (2) because he could terminate the inquiry or issue pardons (presumably even pardon himself). The second reason sweeps beyond obstruction charges and suggests that the President, by definition, cannot violate any federal law, recalling President Nixon's infamous claim that "when the President does it, that means that it is not illegal."

2. The President is protected against an interview with Mueller by executive privilege. Citing In re Sealed Case (the Espy case), the memo concludes that President Trump is protected by executive privilege, because Mueller already has enough information to answer the questions he's investigating:

The records and testimony we have, pursuant to the President's directive, already voluntarily provided to your office allow you to delve into the conversations and actions that occurred in a significant and exhaustive manner, including but not limited to the testimony of the President's interlocutors themselves. In light of these voluntary offerings, your office clearly lacks the requisite need to personally interview the President.

Notably, the memo does not offer a specific reason for the privilege beyond the President's general need for frank and candid advice from advisers. Instead, it takes the tack that Mueller already has the information he needs, and that he hasn't demonstrated a need to interview the President himself. But this conclusion rests on the many and highly questionable assumptions and conclusions in the rest of the memo, in particular, that the President can't obstruct justice, that he didn't intend to, anyway, and that there was no collusion with Russia.

It also assumes, of course, that Mueller actually has all the information he needs about President Trump's involvement.

June 3, 2018 in Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (1)

Wednesday, May 23, 2018

Check it Out: Epps on Indicting the President

Check out Garrett Epps's piece at The Atlantic on whether the President can be indicted. Epps surveys the legal opinions on this, and asks several scholars, only to conclude that "[w]e just don't know, and we won't know, whether it's allowed until we open the box . . . ."

May 23, 2018 in Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0)

Thursday, May 17, 2018

Zervos v. Trump Stay Denied

In a terse ruling in Zervos v. Trump, the appellate division in New York cleared the stage for the defamation lawsuit against the president to move forward.

Recall that the trial judge, stating that "No one is above the law," ruled  the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status.

The entire appellate division opinion reads:

An appeal having been taken from an order of the Supreme Court, New York County, entered on or about March 20, 2018,

And defendant-appellant having moved for a stay of the action pending hearing and determination of the aforesaid appeal,

Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,

It is ordered that the motion is denied.

May 17, 2018 in Executive Privilege, First Amendment, Gender | Permalink | Comments (0)

Wednesday, May 2, 2018

Daily Read: The President and Defamation on Twitter by McKechnie

Apropos of the defamation complaint filed by Stephanie Clifford a/k/a Stormy Daniels which we discussed here, an excellent read is the article @POTUS: Rethinking Presidential Immunity in the Time of Twitter by Professor Douglas McKenchnie  (United States Air Force Academy; pictured) published in the University of Miami Law Review.

Douglas_McKechnieMcKenchie's article, published in 2017, considers the President's use of Twitter.  McKenchie argues that malicious defamation falls outside the “outer perimeter” of official presidential duties and thus presidential immunity is inapplicable. 

This addresses a broader issue than whether a sitting president can be sued, but uses a number of doctrines - - -  presidential immunity; immunity for executive branch officials; the constitutional implications of defamation; and the Fifth and Fourteenth Amendments’ prohibition on government action motivated by animus - - - to support its conclusion.

Worth a read.

May 2, 2018 in Equal Protection, Executive Privilege, First Amendment, Scholarship, Theory | Permalink | Comments (0)

Stormy Daniels Sues Donald Trump for Defamation

In her complaint, Stephanie Clifford, a/k/a Stormy Daniels has sued Donald Trump in his individual capacity for defamation, based on his tweet responding to her allegations that she was threatened.

 

 

The tweet was actually a "quote tweet" retweeting this reply to an earlier Trump tweet:

The one-count complaint avers that Trump is not only attacking the truthfulness of Clifford, but also accusing her of a crime: fabricating a crime and an assailant, both of which are crimes under New York law. The complaint alleges that Trump "made his statement either knowing it was false, had serious doubts about the truth of his statement, or made the statement with reckless disregard for its truth or falsity." The complaint avers that not only has Clifford's reputation been damaged, but that she is receiving threats since Trump's statement and has hired bodyguards to protect her.

Recall that in a separate lawsuit, Clifford has sued Trump's personal attorney Michael Cohen for defamation, raising the somewhat usual issues surrounding the First Amendment doctrine in defamation given that Stormy Daniels is a public figure and the matter is one of public concern.

However, the Clifford lawsuit against Trump while he is President also raises the specter of executive immunity. Recall that in Zervos v. Trump, a similar lawsuit for defamation against Trump filed in New York state court by Summer Zervos, the judge held that the lawsuit could proceed; the judge found that the rule in the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton subject to suit in federal court extended to state court. 

One difference in the Clifford suit is that Trump made the allegedly defamatory statement while President; the statement in Zervos was made as a candidate (and the acts in Clinton v. Jones occurred before Bill Clinton became President). 

Also at issue could be the "status" of the Trump tweet: is it an "official statement"?  Or not even worth noting?

May 2, 2018 in Current Affairs, Executive Privilege, First Amendment | Permalink | Comments (0)

Tuesday, March 20, 2018

New York Judge: Trump Not Immune From Defamation Suit by Summer Zervos

In her opinion in Zervos v. Trump, New York County Supreme Court Justice Jennifer Schecter ruled that the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status.

Recall that Summer Zervos filed the law suit a few days before Trump was inaugurated. Recall also that one of the major issues was whether or not a sitting president was amenable to suit in state court: In other words, did the rule in the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton was subject to suit in federal court extend to state court?

Justice Schecter's first paragraph answers the question without hesitation, beginning with a citation to Clinton v. Jones and stating that the case left open the question of whether "concerns of federalism and comity compel a different conclusion for suits brought in state court," but adding "they do not." Her analysis is relatively succinct, beginning with a simple statement: "No one is above the law" and concluding that "In the end, there is absolutely no authority for dismissing or staying a civil action related purely to unofficial conduct because defendant is the President of the United States."

Justice Schecter also denied the motion to dismiss for failure to state a claim and thus discussed the defamation claim which obliquely raises First Amendment issues. (The first 8 pages of the 19 page opinion detail the allegations of the complaint.) The motion to dismiss had essentially argued that Mr. Trump's statements were mere hyperbole. Justice Schecter disagreed:

Defendant--the only person other than plaintiff who knows what happened between the two of them--repeatedly accused plaintiff of dishonesty not just in his opinion but as a matter of fact. He not only averred that plaintiff told "phony stories" and issued statements that were "totally false" and "fiction," he insisted that the events "never happened" and that the allegations were "100% false [and] made up.”

A reader or listener, cognizant that defendant knows exactly what transpired, could reasonably believe what defendant's statements convey: that plaintiff is contemptible because she "fabricated" events for personal gain. . . . . Defendant used "specific, easily understood language to communicate" that plaintiff lied to further her interests . . .  His statements can be proven true or false, as they pertain to whether plaintiff made up allegations to pursue her own agenda.  Most importantly, in their context, defendant's repeated statements--which were not made through op-ed pieces or letters to the editor but rather were delivered in speeches, debates and through Twitter, a preferred means of communication often used by defendant- -cannot be characterized simply as opinion, heated rhetoric, or hyperbole. That defendant's statements about plaintiff's veracity were made while he was campaigning to become President of the United States, does not make them any less actionable. . . .  

 Thus, it seems that the lawsuit against the President, now joined by a declaratory judgment suit by Stormy Daniels which we discussed here and since removed to federal, will proceed apace. Assuming, of course, that the President's lawyers do not attempt an interlocutory appeal.

4096px-Hans_Makart_-_Allegory_of_the_Law_and_Truth_of_Representation_-_Google_Art_Project

image: Hans Makart, Allegory of the Law and Truth of Representation, circa 1881 via

 

March 20, 2018 in Courts and Judging, Executive Privilege, Federalism, First Amendment, Gender, Opinion Analysis, Sexuality | Permalink | Comments (0)

Wednesday, March 7, 2018

Stormy Daniels Sues President Trump: Is the President Immune?

 Stephanie Clifford, aka Stormy Daniels, aka Peggy Peterson has filed a complaint in California state court seeking a declaratory judgment that a "Hush Agreement" she signed regarding a nondisclosure agreement is invalid. Her attorney posted access to a copy of the complaint and the underlying agreements:

 

The complaint seeking declaratory judgment again implicates the issue of whether Trump, as the current President of the United States, is immune, even temporarily, from suit.  In Clinton v. Jones (1997), the United States unanimously held that then-President Clinton was not immune from a federal law suit for sexual harassment arising from events before he became President.  Should the outcome be different if the lawsuit is in state rather than federal court? Recall that this same issue arises in Zervos v. Trump, a suit for defamation filed in New York state court. Recall also our discussion of an amicus brief by three law professors who submitted an amicus brief in Clinton v. Jones in support of a plaintiffs' right to sue the sitting President in federal court argue that the rule should apply to state court as well. The President's motion to dismiss or for a stay has not yet been decided. (Trump is also seeking dismissal on the merits of the defamation claim contending that the allegations are not actionable as defamation).

The fact that the President has engaged in numerous other lawsuits while President does tend to dilute any "distraction" claim under Clinton v. Jones.

March 7, 2018 in Executive Authority, Executive Privilege, Gender, Sexuality | Permalink | Comments (0)

Thursday, February 15, 2018

Executive Privilege, Bannon Style

Former White House chief strategist Stephen Bannon once again tried to expand the scope of executive privilege in his testimony today before the House Intelligence Committee. This time, Bannon reportedly invoked the privilege in response to any question except 25 that were written for him by the White House. (His answer to each: "No.")

The Hill reports here. Our backgrounder on Bannon's previous assertions of executive privilege is here.

According to The Hill, the White House wrote a letter to the Committee on Wednesday evening explaining its view why executive privilege covers communications during Trump's transition--and not just communications during President Trump's presidency. As we explained, this is not the conventional understanding of the privilege. We'll post on the White House's reasoning if and when it becomes available.

February 15, 2018 in Executive Privilege, News, Separation of Powers | Permalink | Comments (0)

Thursday, January 11, 2018

Daily Read: Amicus Brief Supporting Summer Zervos Right to Sue Donald Trump

Recall the lawsuit by Summer Zervos against Donald Trump for defamation.  It's filed in New York state court and Trump has argued that Clinton v. Jones, the 1997 case in which the United States Supreme Court held that President Clinton was not immune from being sued, should not apply to state court proceedings.

In an amicus brief filed in Zervos v. Trump, and available on ssrn, three law professors who submitted an amicus brief in Clinton v. Jones in support of a plaintiffs' right to sue the sitting President in federal court,now argue that the rule should apply to state court as well. The professors - - - Stephen Burbank, Richard Parker, and Lucas Powe,  Jr. - - - argue that a President should be amenable to suit in state as well as federal court, with appropriate docket-management accommodations made in light of the demands on a President's time and attention. 

At issue is footnote 13 of Clinton v. Jones which might be read to distinguish state court proceedings from the federal one involved in Clinton:

Because the Supremacy Clause makes federal law “the supreme Law of the Land,” Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are “faithfully executed,” Art. II, §3, may implicate concerns that are quite different from the interbranch separation of powers questions addressed here. Cf ., e.g. , Hancock v. Train , 426 U.S. 167, 178 -179 (1976); Mayo v. United States , 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed. 1988) (“[A]bsent explicit congressional consent no state may command federal officials . . . to take action in derogation of their . . . federal responsibilities”).  

The amicus brief contends that the footnote is best read as limited to the problem of direct control of presidential activities by a state court.  That, they argue, is not the Zervos suit, since Zervos' lawsuit has nothing to do with the president's duties.  They conclude that the best reading of the Constitution, the requirements of federalism and the rule of law, and the Supreme Court's decision in Clinton v. Jones direct that state courts be permitted to entertain suits against sitting Presidents for conduct arising from their pre-Presidential conduct, just as federal courts can.

Judge Jennifer Schecter has yet to issue a ruling.

January 11, 2018 in Courts and Judging, Current Affairs, Executive Authority, Executive Privilege, Federalism, Scholarship | Permalink | Comments (0)

Sunday, April 2, 2017

United States District Judge Refuses to Dismiss Complaint Against Trump on First Amendment Grounds

In a Memorandum Opinion and Order, Judge David Hale ruled on a motion to dismiss the complaint in Nwanguma v. Trump which includes a count of incitement to riot by then-candidate Trump during a campaign event in Louisville, Kentucky on March 1, 2016. The complaint alleges that the candidate told the crowd “Get ’em out of here,” when the plaintiffs were "peacefully protesting" at a campaign rally.  Allegedly as a result of the candidate's encouragement, three individual defendants pushed, shoved, and struck the three plaintiffs.  The complaint contended that candidate Trump should be held vicariously liable for the tortious actions of the individual defendants; Judge Hale dismissed this count as not having sufficient allegations that the candidate (or his campaign) "had the right to control the other defendants’ actions." The complaint also contained a count regarding the candidate's negligence and failure to protect, which Judge Hale did not dismiss.

Most important from a constitutional standpoint, Judge Hale denied Trump's motion to dismiss the incitement to riot claim despite the defendant's argument that Trump's statement "Get ’em out of here” was protected by the First Amendment. As Judge Hale relates, under the landmark case of Brandenberg v. Ohio (1969), as well as the Sixth Circuit's en banc decision in Bible Believers v. Wayne County (2015), speech may not be “sanctioned as incitement to riot unless

(1) the speech explicitly or implicitly encouraged the use of violence or lawless action,
(2) the speaker intends that his speech will result in the use of violence or lawless action, and
(3) the imminent use of violence or lawless action is the likely result of his speech.”

 Judge Hale analyzes each of these prongs in turn.

First, Judge Hale concludes that Trump's statement, “Get ’em out of here,” is phrased in the "imperative; it was an order, an instruction, a command."  It is therefore unlike the protected speech in  NAACP v. Claiborne Hardware Co. (1982) (“If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”); Hess v. Indiana (1973) (“We’ll take the fucking street again.”); or Watts v. United States (1969) (“If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”).

Second, Judge Hale concludes that the complaint states sufficient allegations of Trump's intent, although whether "he actually intended for violence to occur is beyond the scope of the Court’s inquiry at the motion-to-dismiss stage."

Third, Judge Hale rules that "the complaint adequately alleges that Trump’s statement was likely to result in violence—most obviously, by alleging that violence actually occurred as a result of the statement."  Additionally, the complaint describes "a prior Trump rally at which a protestor was attacked."

The case is now on course to proceed.

 

 

April 2, 2017 in Executive Authority, Executive Privilege, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Tuesday, February 7, 2017

Melania Trump's Defamation Claims

The wife of the President has two pending defamation claims that not only involve interesting First Amendment issues, but may also be relevant to the pending Emoluments Clause challenge.

First there is the complaint in Melania Trump v. Tarpley (and Mail Media), filed in Maryland state court. This suit alleges that statements by blogger Webster Griffin Tarpley in a blog post, including “Ms. Trump Reportedly Obsessed by Fear of Salacious Revelations by Wealthy Clients from Her Time as a High-End Escort” and “It is widely known that Melania was not a working model but rather a high end escort.”  The complaint survived the motion to dismiss by Tarpley, with the Judge ruling from the bench reportedly rejecting the blogger defendant’s argument that he was not making the statement as a fact but merely reporting rumors. The judge further reportedly stated that the alleged statements were defamatory: “The court believes most people, when they hear the words 'high-end escort' that describes a prostitute. There could be no more defamatory statement than to call a woman a prostitute."

Melania_Trump_at_the_Inauguration
Melania Trump at the Inauguration, January 2017, via

Additionally, as the news report stated:

The judge also seemed skeptical that such salacious claims were deserving of the highest level of legal protection given that Melania Trump was the wife of a candidate and not a candidate herself.

"The interests affected are arguably not that important because the plaintiff wasn't the one running for office," [Judge] Burrell said.

This would seem to imply that Melania Trump was not a public figure, a conclusion that does not seem sustainable. The judge did, however, seem to dismiss the plaintiff’s claim that the false statements included injuries to her husband’s business.

Maryland Judge Burrell did , however, dismiss the complaint as against Mail Media for lack of jurisdiction against the company.

Ms. Trump has now filed a complaint in New York against Mail Media (Mail Online), alleging defamation and intentional infliction of emotional distress based on the same facts.  Interestingly, Ms. Trump has dropped the allegations of injuries to her husband's business and included more specific injuries to her own business and lost opportunities.  Paragraph 3 of the Complaint reads:

As a result of Defendant’s publication of defamatory statements about Plaintiff, Plaintiffs brand has lost significant value, and major business opportunities that were otherwise available to her have been lost and/or substantially impacted. The economic damage to Plaintiffs brand, and licensing, marketing and endorsement opportunities caused by the publication of Mail Online’s defamatory article, is multiple millions of dollars. Plaintiff had the unique, once-in-a-lifetime opportunity, as an extremely famous and well-known person, as well as a former professional model and brand spokesperson, and successful businesswoman, to launch a broad-based commercial brand in multiple product categories, each of which could have garnered multi-million dollar business relationships for a multi-year term during which Plaintiff is one of the most photographed women in the world. These product categories would have included, among other things, apparel, accessories, shoes, jewelry, cosmetics, hair care, skin care and fragrance.

This allegation has raised some eyebrows as it seems to allege that Melania Trump intended to monetize her "once-in-a-lifetime opportunity" for a "multi-year term" as First Lady by promoting her personal products.  Indeed, Melania Trump's initial biography on the White House website lends credence to this view:

Screen Shot 2017-01-20 at 5.18.58 PM

This entry has since been removed, although it does not seem the removal is connected to the August 2016 publications about Melania Trump.

Should discovery on damages ensue, it could be a trove of material for those claiming that conflicts of interests exist in Donald Trump's official position and his businesses, including his family businesses.  However, note that under Seattle Times v. Rhinehart (1984), a judge could certainly order nondisclosure of the material gained by Mail Media despite the defendant's press status.  

Meanwhile, also in New York state court, Donald Trump is defending a defamation suit filed by Zervos Summer based on allegations that he called her charges of sexual harassment by him false.

 

February 7, 2017 in Cases and Case Materials, Current Affairs, Executive Privilege, First Amendment, Gender, Speech | Permalink | Comments (0)

Thursday, January 26, 2017

Daily Read: Resources on Presidential Power

There's a new handy guide collecting resources that will come in handy for ConLawProfs, students, lawyers, and the general public.

In conjunction with the course, Presidential Power, to be offered at University of Washington School of Law by Professors Kathryn Watts and Sanne Knudsen, law librarian Mary Whisner has developed an excellent "Readings and resources concerning presidential power" library guide available here.

Some of the guide tracks the course, and is thus in development, but the "Books about Presidential Power" section is a great place to start understanding the legal, historical, and political dimensions of the issues.  The "Useful Reference" portion is a good overview, with a handy link to the Federal Register feed.

Additionally, here are two PBS "crash course" videos - - - from 2015 - - - that are also worth a watch:

 

 

 

 

January 26, 2017 in Executive Authority, Executive Privilege, Profiles in Con Law Teaching, Scholarship, Teaching Tips | Permalink | Comments (0)

Friday, January 20, 2017

Daily Read: Defamation Complaint Against the President

A few days before he was sworn in as President of the United States, the complaint in Zervos v. Trump was filed in New York state court alleging a cause of action for defamation, raising several constitutional issues.

First, the issue of whether the chief executive of the United States is entitled to a stay of the proceedings while he occupies the office seems to be resolved by the United States Supreme Court's unanimous 1997 decision in Clinton v. Jones.  Jones was decided on a separation of powers issue, of course, given that Paula Jones had filed an action alleging sexual harassment by Bill Clinton before he became president.  However, the general reasoning seems applicable.  The Court in Jones stated that it was not persuaded of the seriousness of the alleged risks that this decision will generate a large volume of politically motivated harassing and frivolous litigation and that national security concerns might prevent the President from explaining a legitimate need for a continuance, noting that it had confidence  in the ability of  judges to deal with both concerns. 

Second, a complaint of defamation almost always raises a First Amendment concern.  Interestingly, here one question would be whether the plaintiff, Summer Zervos, was a public figure under Gertz v. Robert Welch, Inc, so that she would have to prove "actual malice" on the part of the defendant.  It would seem that Zervos appearance on Trump's television show, The Apprentice, would make her at least a limited public figure.  Moreover, even if  not then, her decision to "speak publicly" about her interactions with Trump after sexual harassment became an issue in the campaign, most likely made her a limited public figure. 

Yet even if Zervos is a public figure, the complaint alleges that Trump made the statements knowing that they were false or with reckless disregard of their truth or falsity.  The complaint makes allegations of numerous statements, including embedding a tweet with a photograph of Zervos:

 

Interestingly, the complaint also alleges that "all these liars" - - - the women who claimed Trump had sexually harassed them - - - "will be sued after the election is over."  Trump has been called a "libel bully" in an article that briefly made headlines for being stifled by the American Bar Association for fear of it provoking the very conduct it analyzed.  But it seems as if the tables have been turned.

It's far too early for predicting outcomes, but meanwhile ConLawProfs could use this as an interested Con Law problem - - - or an exam question.

January 20, 2017 in Executive Privilege, First Amendment, Gender, Speech | Permalink | Comments (0)

Tuesday, November 22, 2016

Brief History of the Emoluments Clause - - - and Argentina

Julie Silverbrook of The Constitutional Sources Project has a worthwhile "brief history" of the Emoluments Clause, including the text and this excerpt from The Federalist No. 22: "Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption."  The passage goes on to contrast monarchies with republican governments, the former being less susceptible to corruption because  the hereditary monarch "has so great a personal interest in the government, and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the State." 

Scholar Zephyr Teachout has also been discussing Emoluments, as we noted here;  And now might be a good time to reread Teachout's 2014 book Corruption in America).  [update: If you don't have the book handy, her 2012 essay, Gifts, Offices, and Corruption is available on ssrn.]

While it has been argued that the Emoluments Clause should not apply to the President as we noted here, its application to a President-Elect is even more uncertain. 

Law professors looking for a class exercise (or perhaps a paper topic) could use any number of examples, although a "hypothetical" based on an Argentina construction project might be useful.  Here is the situation courtesy of a storify of tweets and here is the piece from The Hill.

November 22, 2016 in Campaign Finance, Current Affairs, Executive Authority, Executive Privilege | Permalink | Comments (0)

Saturday, November 19, 2016

The Shameful Korematsu Decision: Wrong Then, Wrong Today

Trump supporters who have cited the shameful Korematsu ruling in support of Muslim registries (and possibly worse) might take a look at Noah Feldman's explanation in the NYT why the case was "not correct when it was decided, and . . . is not correct today." Here's Eugene Rostow's longer piece that makes similar points, referenced by Feldman.

Seems like somebody in the Trump camp could put an end to this nonsense--these suggestions that a President Trump could use this despicable ruling as support for contemptible policies. Or at least they could speak out against it (that is, if they wanted to). A president-elect might even use a frank and open repudiation of these Korematsu claims as an opportunity for some public civic education.

We posted several years ago on Peter Irons's efforts calling for Supreme Court repudiation of Korematsu and the other internment rulings. The chatter from Trump supporters, invoking the disgraceful (and disgraced) Korematsu ruling, underscore why efforts like this are so important.

November 19, 2016 in Executive Privilege, News | Permalink | Comments (1)

Wednesday, January 20, 2016

A Split Decision On Executive Privilege in Fast-and-Furious Investigation

Schwinn-steven
Steven D. Schwinn, John Marshall Law School

Judge Amy Berman Jackson (D.D.C.) yesterday ordered the Attorney General to turn over certain post-February 4, 2011, documents generated in the executive branch over how to respond to congressional inquiries into the Fast and Furious program.

But don't chalk this up as a win for Congress. Judge Jackson ruled that the documents had to be turned over because the government had already revealed much of the content, in the publicly-available DOJ Inspector General report on the program, and not because they weren't otherwise protected by executive privilege.

If anything, this ruling is a win for the administration. That's because Judge Jackson ruled that documents related to how the government would respond to congressional and press inquiries were covered by deliberative process privilege--even if they failed the balance (but only because the government had already released their content).

In the end, though, maybe "split decision" best describes the ruling.

We posted most recently here, with links to earlier posts, rulings, and documents.

Judge Jackson's ruling is just the latest in the long-running dispute between the House Committee on Oversight and the administration. Recall that the Committee sought administration documents related to the Fast and Furious program, including post-February 4, 2011, documents discussing how the administration should respond to congressional requests for documents. (February 4, 2011, is significant, because that's the date when DOJ denied that it used the gun-walking tactic. DOJ later acknowledged the program. The Committee then expanded its investigation to include the circumstances of DOJ's initial denial, and why it took so long to tell Congress that its initial denial was wrong.)

Judge Jackson ruled that post-February 4, 2011, documents related to how the government would respond to congressional inquiries were protected under the deliberative process prong of executive privilege. (Under D.C. Circuit law, deliberative process covers communications between executive branch officials other than the President that are "crucial to fulfillment of the unique role and responsibilities of the executive branch." (Traditional executive privilege covers communications only between executive branch officials and the President.)) That's because they were both predecisional and deliberative, and fell within the kinds of communications that were covered under other circuit rulings. She also said that DOJ's list of those documents sufficiently showed that they were covered by the deliberative process privilege.

But coverage doesn't end the inquiry. The deliberative process privilege (like its parent executive privilege) is a qualified privilege, which means that the courts balance the government's interest against any counter-veiling interest in obtaining the privileged material. Here, Judge Jackson ruled that the Committee had an undisputed counter-veiling interest in oversight and investigation, and that DOJ had already released the content through the publicly-available OIG report:

What harm to the interests advanced by the privilege would flow from the transfer of the specific records sought here to the Committee when the Department has already elected to release a detailed Inspector General report that quotes liberally from the same records? The Department has already laid bare the records of its internal deliberations--and even published portions of interviews revealing its officials' thoughts and impressions about those records. While the defense has succeeded in making its case for the general legal principle that deliberative materials--including the sorts of materials at issue here--deserve protection even in the face of a Congressional subpoena, it can point to no particular harm that could flow from compliance with this subpoena, for these records, that it did not already bring about itself.

Judge Jackson also ordered DOJ to turn over eight documents over which DOJ asserted no privilege. She declined to order DOJ to turn over yet other post-February 4, 2011, documents that the parties are still wrangling over. (They can't agree on the scope of the Committee's request, and the court declined to intervene.)

January 20, 2016 in Cases and Case Materials, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, March 25, 2015

Court Dismisses Defamation Case on Government State Secret Assertion

Judge Edgardo Ramos (SDNY) dismissed a private defamation case this week after the government moved to intervene and asserted the state secrets privilege. Judge Ramos ruled that moving forward with the case at all (even excluding privileged evidence) would "impose an unjustifiable risk of disclosing state secrets." The ruling thus puts an end to the case, unless and until appealed. It is not a ruling on the merits, however.

The case, Restis v. American Coalition Against Nuclear Iran, involves Greek shipping magnate Victor Restis's defamation claim against the group United Against Nuclear Iran for claiming, as part of its "name and shame" campaign, that Restis was involved in the illegal exportation of Iranian oil in violation of international sanctions. Restis sued UANI, and the government intervened and moved to dismiss on state secrets grounds, filing a classified declaration by the head of the government department that has control over the matter in support. (The government asserted, and the court apparently accepted, that the government couldn't even reveal "the department that has control over the matter" without risking the disclosure of secret information.)

Judge Ramos reviewed the declaration in camera and held two ex parte, in camera meetings with the government before determining that the state secrets privilege applied. "Having carefully reviewed the classified declarations and documents submitted by the Government ex parte, and being cognizant of a district court's obligation to grant 'utmost deference' to the executive's determination of the likely import of disclosure of the information on military or diplomatic security, the Court is satisfied that there is a reasonable danger that disclosure of the facts underlying the Government's assertion would in fact jeopardize national security."

Judge Ramos went on to say that "further litigation of this action would impose an unjustifiable risk of disclosing state secrets" and dismissed the case entirely. (Under the state secrets privilege, Judge Ramos might have allowed the case to move forward without the privileged evidence. But here, he said, any further litigation would risk disclosure.)

Notably absent from the ruling was any discussion of the state secrets privilege as a separation-of-powers principle. (Treating the privilege as a separation-of-powers principle has in the past led to a much more robust privilege, as in the Fourth Circuit's ruling in El-Masri.) Instead, Judge Ramos treated the privilege as it was designed and as the government apparently asserted it--as an evidentiary privilege. Even so, the government's assertion of the privilege resulted in the dismissal of the entire case.

Judge Ramos rejected the plaintiff's arguments that the government shouldn't be able to rely only on ex parte submissions for its assertion and that the case could be litigated in an in camera trial--because the evidence was apparently too secret even to tell the lawyers. Judge Ramos wrote, "The nature of the information here requires that counsel not be granted access."

Judge Ramos gave a hat tip--but only a hat tip--to the plaintiff's interest in access to justice:

The Court recognizes that dismissal is a "harsh sanction." It is particularly so in this case because Plaintiffs not only do not get their day in court, but cannot be told why.

Still, he said that "dismissal is nonetheless appropriate," because "there is no intermediate solution that would allow this litigation to proceed while also safeguarding the secrets at issue."

March 25, 2015 in Cases and Case Materials, Courts and Judging, Executive Privilege, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, State Secrets | Permalink | Comments (0) | TrackBack (0)

Thursday, July 17, 2014

Obama Administration Challenges Congressional Subpoena

White House Counsel Neil Eggleston wrote this week to Congressman Darrell Issa, Chair of the House Oversight Committee, to explain why David Simas, Assistant to the President and Director of the White House Office of Political Strategy and Outreach, wouldn't appear before Issa's Committee this week.  Issa issued a subpoena to Simas as part of the Committee's investigation of possible Hatch Act violations in Simas's office.

Eggleston's letter to Issa explains that Simas, as an immediate presidential adviser, is absolutely immune from congressional testimonial subpoenas.  Eggleston cites a recently issued OLC memo (apparently not yet public) and the "longstanding position of Administrations of both political parties."

Indeed, the administration's position is exactly the same as the position of the Bush White House when Congress issued subpoenas to Harriet Miers and Karl Rove.  (Congress was investigating the firings of U.S. attorneys.)  That episode resulted in Committee on the Judiciary v. Miers, the D.C. Circuit ruling granting Miers and Chief of Staff Josh Bolton's motion for stay pending appeal of the lower court's ruling against them.  (The Committee and House held Miers in contempt and sued to get her to testify; she asserted absolute immunity under executive privilege.  The district court ruled that Miers was not absolutely immune and denied her motion for a stay pending appeal.)  The appeals court did not reach the merits, however.  Instead, Miers and Bolton effectively ran the clock on the case.

Issa is now reportedly considering holding Simas in contempt of Congress.

Although the claims of privilege are exactly the same, there is one big difference in the two cases: Issa opposed holding Miers in contempt

July 17, 2014 in Congressional Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, September 30, 2013

Court Allows "Fast and Furious" Subpoena Case to Move Forward

Judge Amy Berman Jackson (D.D.C.) today denied AG Eric Holder's motion to dismiss a case brought against him by the House Oversight and Government Reform Committee seeking to enforce its subpoena for documents related to DOJ's infamous February 4, 2011, letter denying that gun-walking in the "fast and furious" program had taken place.  (The subpoena wasn't over the "fast and furious" program itself; instead, it was for any documents related to the government's February 4 denial.)  Our latest post on the case, with background and links to earlier posts, is here.

Judge Jackson ruled in Committee on Oversight v. Holder that the case is justiciable, and that there's no good reason for the courts to decline to hear it.  The ruling doesn't touch the merits.

The ruling means that the case will move forward on the merits question--whether executive privilege protects the subpoenaed documents--unless the parties settle.

Judge Jackson wrote that the case was a straightforward application of Committee on the Judiciary v. Miers:

And five years ago, another court in this District carefully considered and rejected the same arguments being advanced by the Attorney General here.  In a case involving a different Congress and a different President, [Miers], the court concluded in a persuasive opinion that it had jurisdiction to resolve a similar clash between the branches.

Op. at 4.

September 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Privilege, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)