From the Washington POst: Attorney General Jeff Sessions repeats Trump threat that ‘sanctuary cities’ could lose Justice Department grants

An example of coercive federalism?

- Click here for the article

Attorney General Jeff Sessions on Monday threatened to strip some “sanctuary cities” of coveted Justice Department grants for state and local law enforcement, saying those places that did not comply with a particular federal law on immigration would not be eligible for money.

“I urge our nation’s states and cities to consider carefully the harm they are doing to their citizens by refusing to enforce our immigration laws, and to rethink these policies,” Sessions said from the White House. “Such policies make their cities and states less safe, and put them at risk of losing valuable federal dollars.”

Sessions’s announcement follows President Trump’s executive order in January that gave the attorney general the authority to sanction any city that doesn’t readily hand over undocumented immigrants for deportation.

This effort to punish cities where local leaders refuse to hand over undocumented immigrants for deportation is the latest effort by the Trump administration to crack down on illegal immigration.

Sessions said the Justice Department will take steps to “claw back any funds awarded to a jurisdiction” that violates federal law. The Justice Department will award more than $4.1 billion in grants to state and local jurisdictions this fiscal year.

From Lawfare: The Attorney General’s Role in the Clinton Email Mess

The Attorney General is the FBI director's boss.

The author suggests that she may bear some responsibility for recent events.

- Click here for the article.

Leave aside, for a moment, the question of whether Comey acted rightly or wrongly, a matter we addressed in depth on Saturday and on which we think his moves are not above criticism.

But there’s an elephant in the room alongside all these DOJ officials who are clucking about the FBI director’s having gone rogue: Attorney General Lynch, having been consulted ahead of time, let him do it.

Lynch could have ordered Comey not to send the letter. She declined to do that, and instead acted in a manner that minimized her own responsibility, as the head of the Justice Department, for what Comey did.

This is not the way the matter is playing in the press. Many news stories over the weekend, citing anonymous Justice Department sources, suggested that Comey acted contrary to Justice Department wishes. The idea is that the DOJ was somehow helpless to prevent an out-of-control investigator from meddling in a presidential campaign with actions undertaken either to gratify Comey’s ego and arrogate power and responsibility to himself, or to help Donald Trump—or because Comey just couldn’t help himself.

But that’s not how the Justice Department works, and that’s not what happened here. If you think what Comey did was beyond the pale, Lynch does not get to escape accountability for the action.

The wishes and preferences of the attorney general and deputy attorney general, such as they were, were, in fact, conveyed in a tepid, responsibility-eschewing way. The New York Times reports that “the Justice Department strongly discouraged [sending the letter to Congress] and told [Comey] that he would be breaking with longstanding policy.” It then adds that “Senior Justice Department officials did not move to stop him from sending the letter,” but “did everything short of it.”

Well, not everything, it turns out. Lynch, and her deputy, Sally Yates, did not demand that Comey hold off on sending the letter until they could make a decision for the Department about it. They did not pick up the phone or insist on a meeting to discuss the issue or even to express their views personally to Comey. “There was no direct confrontation between Lynch or Yates and Comey,” reports CNN. “Instead, the disagreements were conveyed to Comey by Justice Department staff, who advised the FBI chief his letter would be against department policy to not comment on investigations close to an election.”

From Robert Jackson: The Federal Prosecutor

This essay was flagged in the previous post.

Jackson was an attorney general under FDR, and later a justice on the Supreme Court.

Here he ruminates on the role of the prosecutor. a potentially dangerous force if malicious - and political.

- Click here for the address.

From Lawfare: Grab 'em by the Constitution: Trump and the Justice Department

Some commentary on Trump's promise to put Clinton in jail if he wins the election.

- Click here for the article.

The attorney general serves at the pleasure of the president and thus can be directed to do as the president pleases. He can be fired if he does not do so and replaced with someone who will. The president also has the authority to have the attorney general name a special prosecutor. Assuming, perhaps charitably, that Trump's promise to jail Clinton is a promise to do so only after she is indicted and convicted of crimes, he has the power to do that too, provided that the special prosecutor he has named or the attorney general he directs can actually make and prove a case against her. I have serious doubts that there is any such case to make, given that FBI Director James Comey has said flatly that "no reasonable prosecutor" would bring a criminal against Clinton. But let's be clear that Trump here is not promising to do anything the president lacks the constitutional authority to do.
Yet Trump's comments induced horror among many commentators—and rightly so. The reason? His promise tramples on a number of cherished norms in the relationship between the Justice Department and the White House and in the conduct of the Justice Department itself. These norms restrict presidential and departmental behavior far more than the bare bones strictures of the Constitution. They are part of our constitutional fabric and rooted in important constitutional values. But our mode of enforcing them is not legal. It is political. It is a matter of our deepest expectations of the presidency and the Justice Department.

One of these norms is that the Justice Department doesn't use the criminal enforcement powers of the federal government to go after the administration's political opponents.

. . . Another norm Trump's promises assault is the notion that while the Justice Department is part of the administration and the President is thus entitled to set policy priorities for it, the White House does not involve itself in or direct specific law enforcement operations or decisions.

. . . Still another norm, one sometimes honored in the breach, is that senior law enforcement officials are not supposed to publicly presume someone's guilt.

And:

In addition to the three important norms you explain such a statement violates, there’s a fourth: this wasn’t an action by a sitting President, but a campaign promise to take such action by a candidate. So on top of the fact that this would be a deeply improper action for any President to take, we also have the specter of someone running for office asking people to vote for him based on a promise to investigate and jail a particular person—having a national referendum over (in part) whether someone should be prosecuted. One could debate whether it’s better or worse to have prosecutorial decisions corrupted by the White House or by being subject to a popular vote, but worst of all is to have both.

From the Texas Tribune: Analysis: Legal Matters Could Temporarily Expand Abbott’s Power

The plural executive might be - temporarily - a bit singular based on recent events.

- Click here for the story.

Texas doesn’t have a cabinet form of government, but in Gov. Greg Abbott’s case, it might soon have the next best thing.

Two of the state’s relatively new elected officials — Attorney GeneralKen Paxton and Agriculture Commissioner Sid Miller — are in deep political trouble at the moment. If worst comes to worst for either or both of those fine gentlemen, Abbott would appoint their replacements.

That’s a lot more say than he had when they won the positions in 2014.

State officials in Texas don’t run on tickets of their own choosing. What looks to the voters like a team — with candidates for governor, lieutenant governor, attorney general and so on — is really just a collection of unrelated candidates who happen to belong to the same political party.

. . . In other states, governors and lieutenant governors get elected together, like presidents and vice presidents. Many states have cabinet governments where, as in the federal government, the chief executive chooses the state’s top lawyers, finance officials and other high officials. The governor runs the government, gets the credit and takes the blame.

Texas governors get some of the credit, most of the blame and none of that power: The 18 judges who sit on the state’s highest civil and criminal courts and the eight officials who run other executive departments are elected in their own right — sometimes from opposing political parties or factions. Photo ops are the only Kumbayah moments.

Abbott can’t control the comptroller, steer oil and gas regulators, decide whether and how the state jumps into lawsuits, or run the Senate, the agriculture or land offices. He didn’t hire them. He can’t fire them. And replacing them is left to the voters.
Usually.

But if the wheels of justice turn against Paxton or Miller or both, forcing or prompting one or both of them to leave office, the governor would have vacancies to fill — just as he would in a cabinet form of government.

The new occupants wouldn’t be under his control, but they would probably remember how they got those great jobs. It’s a subtle difference, but a real one: Are they going to check in with the governor’s office on big decisions and announcements or follow their own political stars?

For background on the problems the AG and Ag Commissioner are facing:

- SEC Charges Ken Paxton With Securities Fraud.
- Timeline: Attorney General Ken Paxton's Legal Saga.
- Sid Miller Criminal Case Would Stay in Travis County.
- Texas Rangers Investigating Sid Miller's State-Paid Trips.












https://www.texastribune.org/2016/04/11/sec-charges-paxton-securities-fraud/

Random items for 2306 today

A smorgasbord:

Texas Tribune: In Texas, Making Presidential Ballot Won't Be Hard.

The Texas GOP's State Republican Executive Committee has decided that candidates have to pony up just $5,000 — or produce 300 signatures from registered voters in each of 15 of Texas' 36 congressional districts — to qualify.

That means Texas should be a hotly contested March 1 primary for GOP candidates who survive February's early state primary and caucus contests in Iowa, New Hampshire, South Carolina and Nevada — that is, if the candidate or his or her aligned super PAC can afford the sky-high TV advertising rates needed to play in giant Texas.

Texas Tribune: Nationalist Group Wants TX Secession on Primary Ballot.

Texas already seceded once — in 1861, by popular vote in a statewide election. But the Texas Nationalist Movement wants a repeat a century and a half later, and thinks the March GOP primary is the place to start.

The Nederland-based Texas independence group is circulating a petition aimed at getting a non-binding vote onto the GOP primary ballot over whether "the state of Texas should reassert its status as an independent nation."

Their goal? 75,000 signatures from registered voters by Dec. 1 — more than the 66,894 the Texas Secretary of State's office says the group needs to get the language on the ballot.

The Corpus Christi Caller: Comptroller estimates close despite weak oil.

Despite volatility in oil prices, Texas Comptroller Glenn Hegar's predictions for the amount of money the state government will have in 2017 appear to be holding close to reality.

Hegar's forecast was issued in January, just before the 84th legislative session. The comptroller's revenue forecast is used by lawmakers to set the state budget for two years.

Last week, with the end of the fiscal year, all the budget funds' revenue was only 0.2 percent less than expected, finishing the year at $109.5 billion instead of $109.7 billion, according to a release.

My Statesman: Court should level the playing field for charter schools.

We agree with the overall conclusion of the recent editorial about the school finance litigation before the state Supreme Court. But we take issue with the specifics regarding public charter schools and facilities funding. The inclusion of charters in the legal discourse is historic, as no previous suit on this thorny issue has contemplated the constitutionality of public charter school funding. Public charter schools didn’t exist when the early suits were filed claiming Texas under funds its schools.

The Texas Constitution makes it clear the state legislature must establish and provide for an “efficient system of public free schools.” Today, and for the past 20 years, that system includes both traditional and public charter schools. Although the paper contends — as the lower court ruled — that charters are somehow an exclusive creation of the legislature, the fact is both types of public schools are subject to state oversight and funding.

My Statesman: Commentary: Licensing often serves to limit competition and choice.

An average college student in Texas lacking funds needs a quick haircut. Fortunately for him, a friend offers to cut his hair for $5, a fraction of the cost of a barber. The student accepts his friend’s offer and all was well, except one thing: By this transaction, his friend was in violation of state law since he did not possess a barber’s license in the state of Texas.

Occupational licenses may not seem like a hot topic, but with 29 percent of all jobs in the United States now requiring some form of license, the time has come to take a long and hard look at the heavy costs of these licenses on the economy and Texans.

Supporters of occupational licensing claim that they are necessary to safeguard the quality of licensed services, hold practitioners to safety standards, and prevent unethical and dangerous practices. The evidence, however, paints a different picture; licensing laws act more as a form of protectionism for those in licensed professions while blocking access to jobs, stifling job creation, and hindering technological development and access to information. Similarly, increasing technology and market advances are making governmental regulation of occupations increasingly obsolete.

My Statesman: Hays County asks if gun-ban policy is legal.

Hays County officials have asked Attorney General Ken Paxton to determine whether a new state law upends the county’s policy of denying weapons in a county building that includes courtrooms, prosecutors’ offices and the grand jury room.

State law has long prohibited the public from carrying weapons onto “the premises” of courtrooms or offices used by court officials.

But Senate Bill 273, which went into effect Sept. 1, also created stiff financial penalties for governments that improperly ban guns from areas where it is legal for those with a handgun license to carry a weapon. Fines for a first offense range from $1,000 to $1,500, with subsequent offenses topping out at $10,500.

The problem, Hays County Criminal District Attorney Wes Mau told Paxton, is that the three-story Hays County Government Center in San Marcos includes court-related offices where guns are banned as well as places where guns would typically be allowed, such as the tax assessor-collector’s office and the elections office.

Today in the Checks and Balances: the Senate Judiciary Committee questions Attorney General nominee Loretta Lynch

Nothing in the U.S. Constitution about this part of the process, but members of this committee have special jurisdiction over the Treasury Department. If approved by the committee, the nomination goes to the floor of the Senate. This part is mandated by the Constitution. Here's the relevant part:

Article 2, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.

- Click here for historical detail from Findlaw.

The Hill reports that the nominee will likely sail through the process. The committee may simply be exhausted from fighting with the current Attorney General for so long. A breather may be in order.

Here's some - hopefully useful - background reading. This touches on issues we will cover soon enough in class.

- US Attorney General: This was one of the first executive positions established by Congress - the AG was the chief lawyer of the U.S. government and served bit the president and Congress. The first was Edmund Randolph. He served - along with the three others as members of Washington's first cabinet. The office was established in the same bill that established the process for the writ of mandamus that would be lead to the development of the power of judicial review.

- Senate Judiciary Committee: The committee was established in 1816. Click here for a history of the committee from its webpage and here for a look at the history of the committee system in the Senate. Until 1816, committees were informal and ad-hoc and members often met at theirs desks. The growth of the nation and the increased complexity of the law making process led the Senate to establish standing committees in 1816. The judiciary committee was one of the first. Aside from having oversight authority over the Justice Department it also considers nominations to the federal judiciary.

- Department of Justice: This was established in 1870 after the House Committee on the Judiciary recommended that the office of Attorney General be made full time and that the attorneys involved in various aspects of governance be put under one roof. These attorneys represented the national government in all legal matters and oversaw the prosecution of federal crimes.

The US and Texas militaries conflict over offering benefits to same-sex spouses.

This is the same conflict we see in other areas regarding same-sex issues.

Following a recent Supreme Court decision overturning part of the Defense of Marriage Act, the Obama Administration judged that a rule banning same sex spouses from receiving benefits could not be enforced. So VA's across the country - including Texas and other states banning same-sex marriage - have to provide them.

But the Texas Military Forces (yes there is such a thing) do not - and cannot according to Texas statutory and constitutional law. So any of their members with same-sex spouses cannot receive benefits in Texas facilities. They can received them in federal facilities.

There's a hitch however. When called to active duty, the Texas Military falls under control of the federal government, at which same-sex spouses have to be provided benefits. But the conflict remains, and a handful of Democratic legislators in the state have asked the attorney general to reconcile state and federal law.

More for 2306's look at federalism and the conflict that stems from it.

Story in the Texas Tribune.

Fast and Furious for Dummies

Here's a quick look at the program at the heart of this particular conflict between Congress - or at least the House Oversight Committee's chair Darryl Issa - and the Obama Administration - or at least the Attorney General Eric Holder.

Gunrunning programs have been around for a while apparently.

And here's an analysis of the current conflict (the checking and the balancing and the ambition counteracting ambition) in light of past conflicts between Congress and the executive over similar matters. This ain't this first time and it ain't the last. tha author suggests that if the House wants to get at Holder, it should impeach him. That's what its for. A contempt citation is cheap talk.

Ashcroft v. al-Kidd

The Supreme Court will hear arguments on a case involving both the material witness statute and whether the Attorney General can be sued.

The case is Ashcroft v. al-Kidd.

- ScotusBlog. Argument preview: An old law in new guises?
- ScotusBlog: Ashcroft v al-Kidd.
- Wikipedia: Material Witness Statute.
- Wikipedia: Qualified Immunity Doctrine.

Steven's Conviction Dropped

Attorney General Holder blames prosecutorial misconduct.

During the corruption trial of former Alaska senator Ted Stevens, federal prosecutors were chastised by a judge for letting a witness leave town. They got in trouble for submitting erroneous evidence and were reprimanded for failing to turn over key witness statements. An FBI agent has since complained about the prosecution team's alleged misconduct.

Yesterday, Attorney General Eric H. Holder Jr. announced that he had had enough. The Justice Department asked U.S. District Judge Emmet G. Sullivan to drop the case after learning that prosecutors had failed to turn over notes that contradicted testimony from their key witness.

The discovery by a fresh team of lawyers and their acknowledgment that the material should have been shared with Stevens's defense team led Holder, a former public corruption prosecutor, to conclude that the department's biggest public corruption case in a decade could not be salvaged.

Holder's decision invites tough new scrutiny of a unit that polices corrupt officials, and it could foreshadow a shakeup in the way the government prosecutes those crimes, according to lawyers who work on such cases.

If the government withholds evidence from the defendant, it violates the Sixth Amendment right to a fair trial. Steven's right to the due process of the law was ignored. One wonders if the defendant had not been an ex U.S. Senator if this would have been brought up. It's why its good to be able to afford effective lawyers. With that in mind, does this outcome make you more or less confident in the national criminal justice system?

Ideology and the Justice Department

From the New York Times comes a report detailing attempts by the Bush Administration to inject ideological considerations into hiring practices in the Justice Department:

Justice Department officials illegally used “political or ideological” factors in elite recruiting programs in recent years, tapping law school graduates with Federalist Society membership or other conservative credentials over more qualified candidates with liberal-sounding résumés, an internal report found Tuesday.

The report, prepared by the Justice Department’s own inspector general and its ethics office, portrays a clumsy effort by senior Justice Department screeners to weed out candidates for career positions whom they considered “leftists,” using Internet search engines to look for incriminating information or evidence of possible liberal bias.

One rejected candidate from Harvard Law School worked for Planned Parenthood. Another wrote opinion pieces critical of the USA Patriot Act and the nomination of Samuel A. Alito Jr. to the Supreme Court. A third applicant worked for Senator Hillary Rodham Clinton and posted an unflattering cartoon of President Bush on his MySpace page.

The current Attorney General promises to stop the practice. The article also states what exactly is wrong with the practice.

Attorney General Michael B. Mukasey said Tuesday that using politics in hiring career lawyers was “impermissible and unacceptable” and that the department had taken steps to fix the problems. The report recommended further tightening of internal policies, which Mr. Mukasey said he would welcome.

Ideological and political factors can be used in hiring political appointees, but it is illegal to do so under federal civil service law and Justice Department guidelines in hiring career lawyers. Victims can sue, but offenders cannot generally be prosecuted under criminal law.

The Mukasey Nomination

I let the conflict over the Mukasey nomination slip without comment, but wanted to get some links up for posterity. His nomination raised some important constitutional issues, both having to do with the extent of executive power and the ability, and role, of the justice department in restraining him.

The dominant issue was torture, whether we allow it, whether water-boarding is in fact torture and if that meant that we in fact tortured suspects--contrary to custom. Mukasey fudged, which upset activists and led at least one left leaning group in the Democratic Party to call for the removal of Democrats who supported him.

For me, the more interesting part of this dispute was clarifying Congress' role in clarifying torture and making explicitly clear what can and cannot be allowed. That has never been done before, all that had been required was for the president to abide by the Geneva Conventions, but that is apparently not enough anymore. Moves are now underway to make that clear, we'll see if that passes. Here's the legal background. If you've been following the news you know that his nomination barely passed due to this controversy.

The less dominant, though ultimately more important issue had to do with the role of the attorney general, and the justice department overall, in overseeing the executive branch.
Mukasey's background as a judge gave him credibility as a potentially independent force, especially in comparison with his predecessor's background as a presidential adviser. Gonzales' apparent willingness to allow the justice department to be a tool for partisan purposes was his downfall, and is Mukasey's task.

You can link to Senate testimony here and here.

The ranks of the Justice Department are apparently dangerously thin. He'll be there for little more than a year. He has much to do.

The Gonzales Resignation

The resignation of Attorney General Alberto Gonzales raises a few issues central to both 2301 and 2302. (Here's a reasonable outline of his resignation and the circumstances that led to it.)

The key issues for 2301 are constitutional. The Constitution does not mention the position of attorney general, nor any specific department or office. It simply states that "he [the President] may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices." Nothing is said about how these departments are created, and who they are ultimately responsible to.

The Attorney General was originally established in 1789 in the Judiciary Act and gave advice to both Congress and the President. Gradually the office focused primarily on serving the executive only. As the national government became more involved in law enforcement the Department of Justice was established in 1870, by an act of Congress, and provided a staff that facilitated more activity--specifically more opportunity for the Executive to take action without consulting Congress.

This has led to a tug of war over the control over the Attorney General, and questions about to whom or what the office is ultimately allegiant to.

The fact that the office is in the executive branch, plus the fact that Article II of the Constitution
begins by stating that "The executive Power shall be vested in a President of the United States of America" has been taken by supporters of the unitary executive to mean that all executive officials are responsible only to the president (opponents of the theory argue that it invites tyranny). The Attorney General is only responsible to the President.

Supporters of congressional power differ and state that this is a violation of the separation of powers. They argue that since Congress established the executive departments, and is responsible for funding them, they have oversight authority over them. The Attorney General is also responsible to Congress. This issue was in the background during Gonzales' testimony before the Senate Judiciary Committee this year. The Senate was working from the assumption that Gonzales was there because the committee had the power to subpoena him, Gonzales never conceded this, rather he let it be known that he was there because the President allowed him to go. To admit that he could be compelled to testify over the objections of the President would have been to admit that Congress had power over the office.

A separate take holds that the Attorney General, and all who work in the Justice Department, is responsible to the Constitution and to the rule of law. If the activities of the President--or Congress--go beyond what is acceptable by law they should resign. This issue came up during the Watergate scandal some Justice Department officials chose to resign rather than follow some of President Nixon's orders.

A interesting series of questions during the recent testimony of a Justice Department official illustrates this dispute. As an aside she mentioned that she took her oath to the President when she took her job, she was corrected by a Senator who reminded her that her oath was actually to the Constitution, not the President.

This touches on another 2301 related topic, the political parties. The Constitution says nothing about parties, but they evolved quickly because they help get people elected and bills passed. The best way to get people involved in parties is to convince them that they'll get something in return for their time and trouble. Doing so often involves staffing executive agencies with partisans. There is nothing new in this, but critics argue that the Bush Administration took it to a new level by using partisanship as a determining factor in who was appointed a U.S attorney as well as which existing attorneys were fired.

These critics wonder whether Gonzales saw himself primarily as a law enforcement officer or a partisan. They point to the fact that attorneys who were hard on Republicans, or soft on Democrats, were fired and that they encouraged aggressive investigations of Democratic candidates prior to the 2006 elections. These actions have led to a large number of resignations from the department.

The fighting between Congress and the President is also relevant to 2302, as is the relationship between the bureaucracy and the White House.

Commentators have pointed out that the Bush Administration has, with few exceptions, been composed of a high number of loyalists. This isn't always the case with presidential administrations since appointees often have to be confirmed by the Senate, which can filter out loyalists in favor of people with more attachment to the mission of the department than the political needs of the White House. Loyalists tend to end up as policy advisers, or other aides in the White House staff, not departmental secretaries.

Members of the White House staff are unquestionably bound to the president. Their job is to make the president look good. Departmental secretaries walk the line between what the president wants and what the mission of the department requires. This involves working with the civil servants who generally know more about their specific policy arena than the president, or even the newly appointed secretary does. Controlling an obstinate bureaucracy is an ongoing struggle for presidents.

When Bush was reelected to a second term, many of his cabinet secretaries resigned and were replaced with members of the White House staff. Gonzales was one--Secretary of State Condoleeza Rice was another. He had been a the president's legal adviser, now he was the country's.

Critics argue that Gonzales never appreciated this shift and continued to act as the president's personal lawyer despite his change in position. If so, it could be argues that the president made a strategically appropriate choice in ensuring that he would get an Attorney General that would do his bidding when asked.

A perfect example of this was the story about John Ashcroft's (Bush's first Attorney General) refusal to allow warrant-less wiretapping to go forward since he believed it would violate the Constitution. Gonzales had no such reservations.

Many of the investigations that Democrats (and select Republicans) have been pursuing have been intended to ensure that a proper relationship between the legislative and executive branches would be retained. The question now is whether Gonzales' resignation will stifle this effort.

We'll follow this as long as necessary to find out.