Author Archives: Michael Froomkin

Your AG Scorecard

Trump fired Acting Attorney General Sally Yates this evening–as the President has the right to do–and issued a statement:

The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. This order was approved as to form and legality by the Department of Justice Office of Legal Counsel.

Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration.

It is time to get serious about protecting our country. Calling for tougher vetting for individuals travelling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country.

Tonight, President Trump relieved Ms. Yates of her duties and subsequently named Dana Boente, U.S. Attorney for the Eastern District of Virginia, to serve as Acting Attorney General until Senator Jeff Sessions is finally confirmed by the Senate, where he is being wrongly held up by Democrat senators for strictly political reasons.

“I am honored to serve President Trump in this role until Senator Sessions is confirmed. I will defend and enforce the laws of our country to ensure that our people and our nation are protected,” said Dana Boente, Acting Attorney General.

In appointing Dana Boente, Trump exercised authority under the Federal Vacancies Act Reform Act of 1998, 5 U.S.C. 3345. In so doing, he (quite legally) bypassed the default line of succession otherwise provided for in Executive Order 13762 (Jan. 13, 2017) signed by President Obama, which had the next three people eligible to be acting AG as (a) United States Attorney for the District of Columbia; (b) United States Attorney for the Northern District of Illinois; and (c) United States Attorney for the Central District of California.

Yates had angered Trump by instructing Justice Department lawyers not to defend his executive order banning travel for people from seven Muslim-majority countries. Various parts of the order have already been enjoined by district courts around the country. Presumably the Trump people shopped for someone willing to overturn Sally Yates’s order, and found one: New acting attorney general says he will enforce order.

Dana Boene was sworn in this evening in order to ensure that there would be someone with legal authority to sign foreign surveillance warrants.

[edited shortly after publication for clarity]

Update1: Spencer Ackerman says it is unclear if the new acting attorney general can sign national security surveillance requests.

Update2: Josh Blackman makes two interesting points. First, one might theoretically question whether firing is a qualifying reason under the Vacancies Act that the incumbent is “otherwise unable to perform the functions and duties of the office” and, more significantly, (2) this action might have precedential value if and when Trump fires and replaces Richard Cordray.

Posted in Administrative Law, Immigration, Trump | Leave a comment

Laugh

Someone is holding a human spine next to Marco Rubio right now is funny.

But How to give your Member of Congress a spine is funnier–and you can do it from home.

Posted in Completely Different, The Resistance | Leave a comment

Impeachment Issue Spotter

In How Many Impeachable Offenses Can A President Commit In Nine Days?, UM law grad Howard Brilliant lists (and documents) what he calls 18 impeachable offenses committed in nine days:

  1. Removing DNI & CJCS from NSC and replacing them with a white supremacist[1];
  2. Unconstitutional discrimination against legal immigrants- including visa holders, lawful permanent residents, and reportedly even some U.S. Citizens- based on religion and national origin[2];
  3. Undermining confidence in our democracy by perpetuating meritless allegations of voter fraud[3];
  4. Constant and repeated demonstrations of hostility to first amendment rights[4][5];
  5. Intentionally and repeatedly lying to the American public[6][7][8];
  6. Using the Office of President to enrich himself and members of his family[9];
  7. Operating with extensive conflicts of business and personal interests[10];
  8. Receiving emoluments from foreign governments[11];
  9. Refusal to release his tax returns[12];
  10. Violating his lease with GSA for the Old Post Office[13];
  11. Potential subjection to blackmail by a foreign intelligence service allegedly in possession of compromising material[14];
  12. Continued associations with individuals he knew or should have known possessed ties to hostile foreign governments[15][16][17];
  13. Blatant disregard for established governmental norms and protocols[18][19];
  14. Issuing executive orders against the advice of and/or without consulting the Office of Legal Counsel or other participants in the review process[20][21];
  15. Apparent defiance of court orders[22][23];
  16. Failure to rule out the use of torture[24];
  17. Suffering from mental instability and/or psychological impairment[25]; and
  18. Being generally incompetent and unfit for office[26];

While I grasp that at the end of the day, grounds for impeachment may just be what two houses say it is, it seems to me that under a fair reading of the Constitution, most of these are not in fact impeachable offenses but just actions that are evil, stupid, or both.

Have a look and mark down which you think qualify, then take a look at my cull from the list:
Continue reading

Posted in Law: Constitutional Law, The Resistance | 2 Comments

Radicalization In Action

Jeff Atwood of Coding Horror gets radicalized:

In my 14 years of blogging, I’ve never written a political blog post. I haven’t needed to.

Until now.

It is quite clear something has become deeply unglued in the state of American politics.

I exercised my rights as a American citizen and I voted, yes. But I mostly ignored government beyond voting. I assumed that the wheels of American government would turn, and reasonable decisions would be made by reasonable people. Some I would agree with, others I would not agree with, but I could generally trust that the arc of American history inexorably bends toward justice, towards freedom, toward equality. Towards the things that make up the underlying American dream that this country is based on.

This is no longer the case.

I truly believe we are at an unprecedented time in American history, in uncharted territory. I have benefited from democracy passively, without trying at all, for 46 years. I now understand that the next four years is perhaps the most important time to be an activist in the United States since the civil rights movement. I am ready to do the work.

  • I have never once in my life called my representatives in congress or the house. That will change. I will be calling and writing my representatives regularly, using tools like 5 Calls to do so.

  • I will strongly support, advocate for, and advertise any technical tools on web or smartphone that help Americans have their voices heard by their representatives, even if it takes faxing to do so. Build these tools. Make them amazing.

  • I am subscribing to support essential investigative journalism such as the New York Times, Los Angeles Times, and Washington Post.

  • I have set up large monthly donations to the ACLU which is doing critical work in fighting governmental abuse under the current regime.

  • I have set up monthly donations to independent journalism such as ProPublica and NPR.

  • I have set up monthly donations to agencies that fight for vulnerable groups, such as Planned Parenthood, Center for Reproductive Rights, Refugee Rights, NAACP, MALDEF, the Trevor Project, and so on.

  • I wish to see the formation of a third political party in the United States, led by those who are willing to speak truth to power like Evan McMullen. It is shameful how many elected representatives will not speak out. Those who do: trust me, we’re watching and taking notes. And we will be bringing all our friends and audiences to bear to help you win.

  • I will be watching closely to see which representatives rubber-stamp harmful policies and appointees, and I will vote against them across the ticket, on every single ticket I can vote on.

  • I will actively support all efforts to make the National Popular Vote Interstate Compact happen, to reform the electoral college.

  • To the extent that my schedule allows, I will participate in protests to combat policies that I believe are harmful to Americans.

Posted in The Resistance | Leave a comment

Incompetence

Today’s Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs is the sort of dumb thing we law profs write up for final exams.

Here are key bits:

[Sec 2.] (a) Unless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.

(b) For fiscal year 2017, which is in progress, the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (Director).

(c) In furtherance of the requirement of subsection (a) of this section, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. Any agency eliminating existing costs associated with prior regulations under this subsection shall do so in accordance with the Administrative Procedure Act and other applicable law.

[Sec. 3] (c) Unless otherwise required by law, no regulation shall be issued by an agency if it was not included on the most recent version or update of the published Unified Regulatory Agenda as required under Executive Order 12866, as amended, or any successor order, unless the issuance of such regulation was approved in advance in writing by the Director.

Sec. 4. Definition. For purposes of this order the term “regulation” or “rule” means an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency, but does not include:

(a) regulations issued with respect to a military, national security, or foreign affairs function of the United States;

(b) regulations related to agency organization, management, or personnel; or

(c) any other category of regulations exempted by the Director.

Spot the issues. (Hints: “Unless prohibited by law” “Unless otherwise required by law”, “Regulation’)

Posted in Administrative Law, Trump | Leave a comment

Malevolence

Benjamin Wittes–no leftie he–on the Trump immigration ban:

I don’t use the word “malevolence” here lightly. As readers of my work know, I believe in strong counterterrorism powers. I defend non-criminal detention. I’ve got no problem with drone strikes. I’m positively enthusiastic about American surveillance policies. I was much less offended than others were by the CIA’s interrogations in the years after September 11. I have defended military commissions.

Some of these policies were effective; some were not. Some worked out better than others. And I don’t mean to relitigate any of those questions here. My sole point is that all of these policies were conceptualized and designed and implemented by people who were earnestly trying to protect the country from very real threats. And the policies were, to a one, proximately related to important goals in the effort. While some of these policies proved tragically misguided and caused great harm to innocent people, none of them was designed or intended to be cruel to vulnerable, concededly innocent people. Even the CIA’s interrogation program, after all, was deployed against people the agency believed (mostly correctly) to be senior terrorists of the most dangerous sort and to garner information from them that would prevent attacks.

I actually cannot say that about Trump’s new executive order—and neither can anyone else.

I don’t agree with many of the priors above, but the significance here is that Trump has lost the any chance of getting support from the establishment unless he is directly paying them.

See also this blistering analysis by Elliot Cohen, formerly a counselor to Secretary of State Condoleezza Rice, A Clarifying Moment in American History:

There is in this week’s events the foretaste of things to come. We have yet to see what happens when Trump tries to use the Internal Revenue Service or the Federal Bureau of Investigation to destroy his opponents. He thinks he has succeeded in bullying companies, and he has no compunction about bullying individuals, including those with infinitely less power than himself. His advisers are already calling for journalists critical of the administration to be fired: Expect more efforts at personal retribution. He has demonstrated that he intends to govern by executive orders that will replace the laws passed by the people’s representatives.

In the end, however, he will fail. He will fail because however shrewd his tactics are, his strategy is terrible—The New York Times, the CIA, Mexican Americans, and all the others he has attacked are not going away. With every act he makes new enemies for himself and strengthens their commitment; he has his followers, but he gains no new friends. He will fail because he cannot corrupt the courts, and because even the most timid senator sooner or later will say “enough.” He will fail most of all because at the end of the day most Americans, including most of those who voted for him, are decent people who have no desire to live in an American version of Tayyip Erdogan’s Turkey, or Viktor Orban’s Hungary, or Vladimir Putin’s Russia.

There was nothing unanticipated in this first disturbing week of the Trump administration. It will not get better. Americans should therefore steel themselves, and hold their representatives to account. Those in a position to take a stand should do so, and those who are not should lay the groundwork for a better day. There is nothing great about the America that Trump thinks he is going to make; but in the end, it is the greatness of America that will stop him.

Posted in Immigration, Trump | Leave a comment