Category Archives: Trump

If Trump Fires Rosenstein, Who’s Mueller’s New Boss?

Marty Lederman has a detailed answer in his (revised) post, Who Might Replace Rod Rosenstein and What Would it Mean for the Mueller and SDNY Investigations?: A Deep Dive.  Worth a read.

Posted in Law: Constitutional Law, The Scandals | Leave a comment


There was a hurricane in DC today, and I don’t mean Hurricane Florence. Paul Manafort agreed to testify about Russian involvement in the 2016 election and to forfeit $46 million both civilly and criminally. It seems Manafort went before the grand jury before his deal was announced in open court, meaning there was no time for a pardon to short-circuit it. And civil forfeiture is pardon-proof. As Marcy Wheeler says:

So here’s what Robert Mueller just did: He sewed up the key witness to implicate the President, and he paid for the entire investigation. And it’s only now lunch time.

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The Op-Ed

Everyone is talking about the NYT op-ed by the Trump appointee who sees him/herself as protecting the US from a clear and all-too-present danger in the Oval Office. I’m on the road, so I’m late to the party, but here in very summary form is my two cents, taking the op-ed as true for sake of discussion.

  1. Underminig the boss is often a moral problem, but it is only a constitional problem if you do it wrong. Manipulating the boss is different from just ignoring the boss. Playing bureaucratic games to get your way is probably a Washington passtime than is older than the White House. Flat out ignoring the boss’s orders is subversive of the constitutional order, a violation of a duty of loyalty to the boss, and arguably a violation of every appointee’s oath to preserve and protect the Constitution of the USA– a document that for better or much worse has made Trump the President in law as well as in name.
  2. What if the boss is morraly terrible? Ignoring the boss could be a very hard moral issue in extreeme cases. Some ends do justify some means. If the issue were the preservation of the Republic, or preservation of many lives, I think our author would have moral (but not legal) justification for the behavior. If the issues are, as we get the sense they are, ‘mere’ policy – stopping Trump doing things that are very very stupid but not existential dangers – then the moral justification for the illegality and personal disloyalty is much weaker. Quitting and saying why might be a better course.
  3. I am reminded of Daniel Drezner’s piece on whether you should work for Trump, and especially Elliot Cohen’s “I told conservatives to work for Trump. One talk with his team changed my mind”. The warning signs were there from the first.
  4. It’s hard to read the oped without speculating unkindly about the author’s motives. If your goal really were to subvert from within in the interst of the survival of the Republic, why would you advertise that until after the fact? That op-ed is not going to make the job easier. It might be justified if the goal were to bring down this President (and bring in Mike Pence – an improvement how exactly?), but there’s nothing in the four corners of the oped to support that view. Rather, it seems to me like an exercise in ass-covering, a marker that some weasel put down for the future so that after the whole con collapses he/she can disclaim the taint that–if there is any karma or justice–will follow everyone who was part of Operation FUBAR for the rest of their natural life and beyond.
  5. I’m also reminded of what the late great Charles L. Black, Jr. said about how he thought a government official should deal with the hypothetical ‘terroris with an A-bomb’ scenario. The scenario was and is deployed to test intuitions about whether torture could ever be justified–what people who say torture is never justified would do if they believed the terrorists’ claim to have put the ticking time bomb in a big city. Read the fuller account, but the takeaway is that if you decide conscience requires an illegal act, you have a moral duty to turn yourself in right afterwards and face the music, whether it’s prosccution or pardons and a medal.Our op-ed writer is not following that model.
  6. And finally,
Posted in Law: Constitutional Law, Law: Ethics, The Resistance | 3 Comments

The Assault on Citizenship–and Citizens

The Trump administration has taken many official actions that are transparently illegal. For example, there have been a laundry-load of illegal attempts to stop the implementation of various valid regulations that the new EPA, Dept. of Interior, and other agencies want to amend or withdraw. Our law doesn’t work that way, and federal judges have done a decent job of laughing those transparently illegal actions out of court and keeping the old regulations in place until a valid new one is promulgated.

Worse, there have been terrible and illegal actions by the Trump administration preventing asylum-seekers from presenting their claims, and especially evil actions in which the administration has gone out of its way to separate refugee children from their parents–a policy whose harms were intensified by ineptitude, or more likely intentional viciousness, in which the Trump administration then lost the children, or never collected or lost the information about which child belonged with which parent, or deported the parents and then said it was unable or unwilling to reunite the families. Children in detention have at times received no care, little care, or been caged much like animals. At least one toddler died following, and as far as we can tell as a result of, this captivity. Here too, we have more than one judge with a spine doing what they can to force the Trump administration to clean up the mess it made. Cooperation has been imperfect at best, and there is evidence that suggests outright obstruction at times.

Do not be fooled into the complacent view that only foreign people are at risk. The Trump administration is gunning for naturalized citizens. Where once denaturalization was an exceptional remedy for significant immigration fraud (such as failing to admit WW2 Nazi ties), now it’s an enforcement goal to be applied more broadly.

But that’s not all: the Trump administration is also trying to denaturalize natural-born citizens. We learn now that the Trump administration is coming for the citizenship of a substantial number of Mexican-Americans. The purported reason is doubts about the validity of their birthright citizenship due to the existence of some cases (perhaps a very small number, it isn’t clear yet) of actual fraud in which children born south of the Rio Grande were said to have been born north of it. The degree of particularized suspicion sounds, from what we know so far, quite thin. The near-impossibility of finding proof of birth location by midwife 30+ years after the fact is obvious. And, not that it should matter, many of the victims of this policy are veterans, cops, or holders of other jobs of trust and responsibility.

These cases are only part of a more general pattern of aggressive enforcement against Black or Brown people. In one case, ICE held a (Black) citizen in detention for 1,273 days. ‘Mistakes’ are legion.

Some of these policies are not new in principle but have been greatly generalized in application from rare and exceptional to routine and careless or grossly and gleefully reckless, thus including cases where proof is thin or lacking. In time they too may founder in the courts. Meanwhile they will deal pain, spread fear, and could stop a large number of people from voting while their cases are being litigated, for fear of committing the federal crime of non-citizen voting. Win-win for Trump.

Trump notoriously envies Russian strong-man policies. How long before the Trump administration attempts to adopt Russian policies on removing citizenship of dual nationals, or of dissidents? Unthinkable? I would have said revoking some citizens’ passports and locking up others on the grounds they are fake citizens should cross every line and serve as ample warnings. The behavior we have already seen by the US Government was considered unthinkable when I was in law school 30 years ago. When I palled around with the cypherpunks in the 90’s and they worried about oppressive domestic regimes, it was easy to dismiss them as paranoid; I myself wavered at times on the extent to which they were sensibly cautious or plain nuts (and, admittedly, it may have varied among them).

Clichéd perhaps from overuse, but more apt then ever, are the words of Martin Niemöller:

First they came for the communists, and I did not speak out—
Because I was not a communist.

Then they came for the trade unionists, and I did not speak out—
Because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

My wife, a green-card-holder, is going abroad today for a week in which she’ll attend an academic conference. Will the Trump administration let her back into the US next week? Nothing to worry about, I think, because she’s white, and British even if she is an academic. Not the targeted group at present. That we should have to make this calculation and measure our privilege is an outrage for us, a far more serious wrong for those lacking it, and a tragedy for this country.

Posted in Immigration, Law: Right to Travel, Trump | 2 Comments

Plumbing the Entrails of the Cohen Plea Deal

One of the less-minor mysteries of yesterday’s twin courtroom bombshells was the absence of a formal plea deal between Cohen and the government.  Fortunately we have expert local lawyer David Oscar Markus to explain it to us:

The parties agreed that no variance arguments can be made, up or down. This is a BIG concession by Cohen’s lawyers and is sometimes seen in the SDNY when there is cooperation credit coming. Without the cooperation credit, it’s a terrible deal for Cohen. He’s basically pleading guilty to all of the offenses and not getting anything in return other than the 3 points. If he pleaded straight up, he would at least be able to argue for a sentence under the guidelines. Even with the potential of a cooperation deal, it seems very harsh.

That’s why it’s obvious that Cohen is cooperating, even though it’s not specifically mentioned in the plea agreement. Otherwise, the deal makes no sense. He said as much during his colloquy today and his lawyer, Lanny Davis, has been all over the news saying the same thing.

If he gets cooperation credit, the defense will be asking for a significant reduction below the guidelines — probably all the way to probation.

Okay.  Now I get it. Thank you.

Posted in Law: Criminal Law, The Scandals | 3 Comments


Like so many people I know, these days I spend too much time following the news. I am reminded of how, back in the mid ’80s when I visited Israel, everyone always seemed to be listening the radio — just in case something happened.

If Cohen really has flipped, then it’s likely a question of when not if Trump has to go.

If we have reached the beginning of the end, then now timing is everything. On the one hand it doesn’t yet seem likely that political opinion will congeal quickly enough to head off the Brett Kavanaugh nomination; once he’s in place the Supreme Court tilts a bit further in favor of the Imperial Presidency which might help Trump in some versions of a showdown. Conversely, so long as the nomination is in play, there is little chance Trump will fire Assistant Attorney General Rod Rosenstein or even the AG as everything will break loose; but so long as they are both in office there is no way to get rid of Mueller.

So the second worst-case scenario is Kavanaugh gets confirmed, and then Trump goes nuclear on the Special Counsel. I think that would lead to impeachment, but it would be ugly. (The worst case is of course that Trump actually goes nuclear on something.) Then of course there’s the whole set of issues around whether Pence is implicated too…

Enough. Here’s a bit of comic sort of relief.

Posted in The Scandals | 19 Comments