PREFACE
Arthur M. Schlesinger, Jr., The Imperial Presidency ix (First Mariner Books 2004) (1973).
CHAPTER ONE – RECONSTRUCTING THE PRESIDENCY
Tim O’Donnell, Trump: ‘I Have an Article 2 Where I Have the Right to Do Whatever I Want as President’ , The Week: Speed Reads (July 23, 2019).
CHAPTER TWO – FOREIGN STATE INFLUENCE
John Bolton, The Room Where It Happened: A White House Memoir 301 (2020).
Whoever, being a public official, is or acts as an agent of a foreign principal required to register under the Foreign Agents Registration Act of 1938 … shall be fined under this title or imprisoned for not more than two years, or both.
CHAPTER THREE – FINANCIAL CONFLICTS OF INTEREST
CHAPTER FOUR – TAX DISCLOSURE
CHAPTER FIVE – THE PRESS
N.Y. Times Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J., concurring).
CHAPTER SIX – THE PARDON POWER
CHAPTER SEVEN – JUSTICE DEPARTMENT INDEPENDENCE
CHAPTER EIGHT – THE SPECIAL COUNSEL
CHAPTER NINE – THE BUREAUCRACY AGAINST THE PRESIDENT
28 This section draws from our analysis in Bob Bauer & Jack Goldsmith, The FBI Needs to Be Reformed, ATLANTIC (Dec. 16, 2019).
[414]
[415] As the inspector general noted, “the Midyear investigation was opened with an ‘Unknown Subject(s) (UNSUB),’ and at no time during the investigation was any individual identified by the FBI as a subject or target of the investigation, including former Secretary Clinton.” OIG Midyear Report at 40. But “a primary focus of the Midyear investigation was on former Secretary Clinton’s intent in setting up and using her private email server.” Id. at 41.
CHAPTER TEN – INVESTIGATING PAST ADMINISTRATIONS
CHAPTER ELEVEN – THE WHITE HOUSE COUNSEL
CHAPTER TWELVE – WAR POWERS AND NUCLEAR WEAPONS
[515] Press Conference with President Truman, Nov. 30, 1950, in VII Foreign Relations of the United States, Korea 1261, 1261–62 (John P. Glennon, ed., 1976). [516] The President’s News Conference of Mar. 17, 1954, in Public Papers of the Presidents of the United States: Dwight D. Eisenhower 1954, January 1 to December 31, 1954 320, 325 (David C. Eberhart, ed., 1960). [517] Fred Kaplan, The Bomb: Presidents, Generals, and the Secret History of Nuclear War 10 (2020). [518] For this and other statements, see JFK on Nuclear Weapons and Non-Proliferation , Carnegie Endowment for International Peace (Nov. 17, 2003). [519] President John F. Kennedy, Radio and Television Report to the American People on the Soviet Arms Buildup in Cuba (Oct. 22, 1962). [520] Graff, supra note 17. [521] Robert Norris & Hans Kristensen, U.S. Nuclear Threats: Then and Now , Bulletin of the Atomic Scientists (Sept./Oct. 2006) at 69. In 1991, President George H.W. Bush had privately decided against using nuclear force but nonetheless communicated via diplomatic intermediaries to “convey an explicit nuclear threat to Saddam Hussein.” Id. at 71. [522] Philip Rucker & Carol Leonnig, A Very Stable Genius: Donald J. Trump's Testing of America (2020). [523] On Jan. 2, 2017, President Trump tweeted, “North Korea just stated that it is in the final stages of developing a nuclear weapon capable of reaching parts of the U.S. It won't happen!” Donald J. Trump (@realDonaldTrump), Twitter (Jan. 2, 2017, 6:05 pm), https://twitter.com/realDonaldTrump/status/816057920223846400. [524] Meghan Keneally, From 'Fire and Fury' to 'Rocket Man,' the Various Barbs Traded Between Trump and Kim Jong Un , ABC News (June 12, 2018). [525] Philip Rucker & Karen DeYoung, Trump Reiterates Warning to N. Korea: ‘Fire and Fury’ May Not Have Been ‘Tough Enough ,’ Wash. Post (Aug. 10, 2017). [526] The White House, Remarks by President Trump to the 72nd Session of the United Nations General Assembly (Sept. 19, 2017). [527] Keneally, supra note 27. [528] Eli Watkins, Trump Taunts North Korea: My Nuclear Button Is 'Much Bigger,' 'More Powerful' , CNN Politics (Jan. 3, 2018). [529] Authority to Order the Use of Nuclear Weapons: Hearing Before the Senate Committee on Foreign Relations , 115th Cong. 2 (2017) (statement of Senator Benjamin L. Cardin, Ranking Member, Senate Committee on Foreign Relations). [530] Kaplan, supra note 20 at 282. [531] Id. at 285. [532] H.R. 669, 115th Cong. § 2(b) (2017). [533] Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. 107-243, § 3(a), 116 Stat. 1498, 1501 (2002). [534] Authorization for Use of Military Force, Pub. L. 107-40, § 2(a), 115 Stat. 224, 224 (2001). [535] Jeh Johnson, General Counsel, U.S. Dep’t of Defense, Dean’s Lecture at Yale Law School: National Security Law, Lawyers, and Lawyering in the Obama Administration (Feb. 22, 2012). [536] Authorization for Use of Military Force of 2018, S.J. Res. 59, 115th Cong. (2018). [537] For a good introduction to the approach in the Biden bills, and a great overview of the problem of constraining presidential war powers, see Michael Glennon, Constitutional Diplomacy (1991). [538] See Authority to Order the Use of Nuclear Weapons , supra note 32 at 4–5 (testimony of General Robert Kehler (ret.), former commander, U.S. Strategic Command). [539] Id. at 27 (statement of Senator Marco Rubio, Member, Senate Committee on Foreign Relations). [540] Richard K. Betts & Matthew Waxman, Safeguarding Nuclear Launch Procedures: A Proposal , Lawfare (Nov. 19, 2017).
[541] War Powers Resolution, 50 U.S.C. § 1541(c) (2018).
CHAPTER THIRTEEN – VACANCIES REFORM
[542] U.S. Const. art II, § 2, cl. 2. [543] U.S. Const. art II, § 2, cl. 3. [544] Act of May 8, 1792, ch. 37, § 8, 1 Stat. 279, 281. [545] Act of Feb. 13, 1795, ch. 21, 1 Stat. 415. [546] Act of July 23, 1868, ch. 227, § 3, 15 Stat. 168. [547] See Keith E. Whittington, The Confirmation Process We Deserve , Pol’y Rev. (June 1, 2001). [548] Michael J. Gerhardt, The Federal Appointments Process: A Constitutional and Historical Analysis 61 (2003). [549] Todd Garvey & Daniel J. Sheffner, Congressional Research Service, R45442, Congress’ Authority to Influence and Control Executive Branch Agencies 27 (2018). [550] Staff of S. Comm. on Governmental Affairs, 105th Cong., Report on Federal Vacancies Reform Act (1998). [551] See Morton Rosenberg, Congressional Research Service, 98-892, The New Vacancies Act: Congress Acts to Protect the Senate's Confirmation Prerogative 3 (1998). [552] See Morton Rosenberg, Congressional Research Service on Validity of Designation of Bill Lann Lee as Acting Assistant Attorney General for Civil Rights (Jan. 14, 1998) (appended to Oversight of the Implementation of the Vacancies Act: Hearing on S. 1764 Before the Senate Committee on Governmental Affairs , 105th Cong., 62-115 (1998)). [553] 5 U.S.C. §§ 3345–3349 (2018). [554] 5 U.S.C. § 3345(a) (2018). [555] Anne Joseph O’Connell, Actings , 120 Colum. L. Rev. 613, 631 (2020). [556] NLRB v. Noel Canning, 573 U.S. 513 (2014). [557] Nina A. Mendelson, The Permissibility of Acting Officials: May the President Work Around Senate Confirmation , 72 Admin L. Rev. (forthcoming 2020) (manuscript at 26). [558] See Federal Vacancies Reform Act of 1998 — Assistant Attorney General for the Office of Legal Counsel, U.S. Department of Justice , U.S. Government Accountability Office Opinion B-310780. [559] Sarah Wheaton, White House to Demote ATF Chief — To Keep Him on the Job , Politico (Oct. 8, 2016). [560] Darren Samuelsohn, Obama’s Vanishing Administration , Politico (Jan. 5, 2016). [561] Philip Shenon, Interim Heads Increasingly Run Federal Agencies , N.Y. Times (Oct. 15, 2007). [562] Id. [563] Burgess Everett & Marianne Levine, The Senate’s Record-Breaking Gridlock Under Trump , Politico (June 8, 2020. [564] Amanda Becker, Trump Says Acting Cabinet Members Give Him ‘More Flexibility,’ Reuters (Jan. 6, 2019). [565] Brian Naylor, An Acting Government for the Trump Administration , NPR (Apr. 9, 2019). [566] Chiqui Esteban, Who’s in Charge? Many Months of Acting Secretaries , Wash. Post: The Fix (July 24, 2019). [567] Alan Fram, GOP Mutters, Gently, As Trump Sidesteps Senate for Top Aides , Associated Press (June 17, 2019). [568] Anne Joseph O’Connell, Acting Leaders: Recent Practices, Consequences, and Reforms , Brookings (July 22, 2019). [569] See O’Connell, supra note 14 at 652–55; Aaron Blake, Trump’s Government Full of Temps , Wash. Post (Feb. 21, 2020). [570] 12 U.S.C. § 5491(b)(5)(B) (2018). [571] Philip Rucker, Dan Lamothe, & Josh Dawsey, Trump Forces Mattis Out Two Months Early, Names Shanahan Acting Defense Secretary , Wash. Post (Dec. 23, 2018). [572] Garrett M. Graff (@vermontgmg), Twitter (Jan. 7, 2020), https://twitter.com/vermontgmg/status/1214702040817061888. [573] Mendelson, supra note 16 (manuscript at 26). [574] Memorandum from Steven A. Engel, Assistant Attorney General, Office of Legal Counsel, to Emmet T. Flood, Counsel to the President (Nov. 14, 2018); see also Authority of the President to Name an Acting Attorney General, 31 Op. O.L.C. 208 (2007). [575] Steve Vladek, Ken Cuccinelli and the Federal Vacancies Reform Act of 1998 , Lawfare (June 10, 2019). [576] L.M.-M. v. Cuccinelli, No. CV 19-2676 (RDM), 2020 WL 985376 at *3 (D.D.C. Mar. 1, 2020). [577] See 5 U.S.C. app. § 3 (2018). [578] See Mendelson, supra note 16 (manuscript at 27) (quoting Secretary of the Interior, Order No. 3345, Amendment No. 32, May 5, 2020); Dep’t of the Interior, Temporary Redelegation of Authority for Certain Vacant Non-Career Senate Confirmed Positions 1 (May 5, 2020)). [579] The offices were assistant secretary, Land and Minerals Management; director, Bureau of Land Management; special trustee for American Indians; director, National Park Service; and director, Office of Surface Mining Reclamation and Enforcement. See Id. [580] O’Connell, supra note 14 at 655. [581] Washington Post & Partnership for Public Service, Tracking How Many Key Positions Trump Has Filled So Far , Wash. Post: PowerPost (last visited July 13, 2020). [582] For the best efforts, from which we have learned much and drawn heavily, even when we do not always agree, see O’Connell supra note 14; Ben Miller-Gootnick , Note, Boundaries of the Federal Vacancies Reform Act , 56 Harv. J. on Legis. 459 (2019); Mendelson supra note 16; Steve Vladeck, Trump Is Abusing His Authority to Name ‘Acting Secretaries.’ Here’s How Congress Can Stop Him , Slate (Apr. 9, 2019). [583] The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 164 (1996) (quoting Memorandum for Neil Eggleston, Associate Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Appointment of an Acting Staff Director of the United States Commission on Civil Rights 3 (Jan. 13, 1994)). [584] See Authority of the President to Remove the Staff Director of the Civil Rights Commission and Appoint an Acting Staff Director, 25 Op. O.L.C. 103 (2001); The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124 (1996). [585] See, e.g. , 31 U.S.C. § 703 (2018) (specifying the procedures that occur when a vacancy arises in the office of comptroller general or deputy comptroller general); 6 U.S.C. §113 (2018) (specifying that in the event that both the secretary and deputy secretary of homeland security positions are vacant, the under secretary of homeland security for management shall serve as acting secretary). [586] See Memorandum from Steven A. Engel to Emmet T. Flood, supra note 33; Designation of Acting Director of the Office of Management and Budget, 27 Op. O.L.C. 121 (2003) ; see also United States v. Eaton, 169 U.S. 331 (1898); Mendelson, supra note 16. Supreme Court Justice Clarence Thomas has argued that nonconfirmed officials can never serve as an acting official in a principal office. See NLRB v. SW Gen., Inc., 137 S. Ct. 929, 945–49 (2017) (Thomas, J., concurring). [587] O’Connell, supra note 14 at 710. [588] All of these options are discussed in O’Connell, id. at 722. [589] 5 U.S.C. § 3347 (2018).
[590] 5 U.S.C. § 3345 (2018). See also Miller-Gootnick, supra note 41.
CHAPTER FOURTEEN – OTHER REFORMS
[591] Congressional Research Service, R42659, The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law 1 (2018). [592] U.S. Const., art. IV, § 4. [593] 18 U.S.C. § 1385 (2018). [594] 10 U.S.C. §§ 251–253 (2018). [595] Thaddeus Hoffmeister, An Insurrection Act for the Twenty-First Century , 39 Stetson L. Rev. 861, 905 (2010). [596] Sterling v. Constantin, 287 U.S. 378, 400 (1932). [597] Hoffmeister, supra note 5 at 863. [598] John Warner National Defense Authorization Act for Fiscal Year 2007, Pub. L. No. 109-364, §1076, 120 Stat. 2083, 2404 (2006) (repealed 2008). [599] President Donald J. Trump, Statement on George Floyd Protests (June 1, 2020). [600] Helene Cooper et al., Milley, America’s Top General, Walks into a Political Battle , N.Y. Times (June 5, 2020). [601] See Letter from William P. Barr, Attorney General, to Muriel Bowser, Mayor, District of Columbia, and Karl A. Racine, Attorney General for the District of Columbia 2 (June 9, 2020) (setting out legal authorities for actions to quell disorder in the District). [602] See Ian Shapira, For 200 years, the Insurrection Act Has Given Presidents the Power to Deploy the Military to Quell Unrest , Wash. Post (June 3, 2020). [603] Defense Secretary Esper Briefing on Protests Across the U.S. , C-SPAN (June 3, 2020). [604] Lolita C. Baldor, Army: Esper Reverses Plan to Send Active-Duty Troops Home , Associated Press News (June 3, 2020). [605] Interview by Sean Spicer with President Donald J. Trump (June 3, 2020). [606] Aubree Eliza Weaver, Barr Says Trump Never Demanded 10,000 Active-Duty Troops , Politico (June 7, 2020). [607] Letter from Adam Smith, Chairman, House Armed Services Committee, to the Honorable Mark T. Esper, Secretary, U.S. Department of Defense 1 (June 10, 2020). [608] Missy Ryan, In Letter, Pentagon Leaders Outline Military Role in Recent Unrest , Wash. Post (June 11, 2020). [609] Helene Cooper, Milley Apologizes for Role in Trump Photo Op: ‘I Should Not Have Been There,’ N.Y. Times (June 11, 2020). [610] Jeffrey Goldberg, James Mattis Denounces President Trump, Describes Him as a Threat to the Constitution , Atlantic (June 3, 2020). [611] 32 U.S.C. § 502(f) (2018). [612] See Letter from Attorney General Barr, supra note 11 at 2. See also Steve Vladeck, Why Were Out-of-State National Guard Units in Washington, D.C.? The Justice Department’s Troubling Explanation , Lawfare (June 9, 2020). [613] See A Guide to Emergency Powers and Their Use , Brennan Center for Justice (last visited July 24, 2020). [614] 50 U.S.C. §§ 1601–1651 (2018). [615] See Declared National Emergencies Under the National Emergencies Act , Brennan Center for Justice (last visited July 20, 2020); Executive Order No. 13936, 85 Fed. Reg. 43,413 (July 14, 2020). [616] Presidential Proclamation No. 9,844, 84 Fed. Reg. 4949–50 (Feb. 15, 2019). [617] Harold Hongju Koh & John Choon Yoo, Dollar Diplomacy/Dollar Defense: The Fabric of Economics and National Security Law , 26 Int'l Law. 715, 744 (1992). [618] See Gerhard Casper, An Essay in Separation of Powers: Some Early Versions and Practices , 30 Wm. & Mary L. Rev. 211, 228–29 (1989). [619] Marshall v. Gordon, 243 U.S. 521, 541 (1917). [620] Josh Chafetz, Executive Branch Contempt of Congress , 76 U. Chi. L. Rev. 1083, 1131 (2009). [621] In re Chapman, 166 U.S. 661, 671 (1897). [622] 2 U.S.C. § 194 (2020). [623] The foundational opinion is Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 102 (1984) (“[A] United States Attorney is not required to refer a contempt citation ... to a grand jury or otherwise to prosecute an Executive Branch official who is carrying out the President’s instruction[.]”). See also Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. 350, 355–56 (1995). [624] See Letter from Ronald C. Machen Jr., U.S. Attorney, to the Honorable John A. Boehner, Speaker, U.S. House of Representatives (Mar. 31, 2015). [625] Response to Congressional Requests for Information Made Under the Independent Counsel Act, 10 Op. O.L.C. 68, 87 (1986). [626] 28 U.S.C. § 1365(a) (2020). [627] See Chafetz, supra note 30 at 1150. [628] Congressional Research Service, R45653, Congressional Subpoenas: Enforcing Executive Branch Compliance 12 (2019). [629] United States v. House of Representatives, 556 F. Supp. 150, 152 (D.D.C. 1983). [630] Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 56 (D.D.C. 2008). [631] Todd Ruger, How Congress Can Break Through Trump’s Stonewalling , Roll Call (May 14, 2019). [632] Michael W. McConnell, The Way Trump Is Asserting the Rights of His Office Is Not Impeachable , Wash. Post (May 1, 2019). [633] Jonathan H. Adler, McConnell and Chafetz on Trump’s Resistance to Congressional Oversight , Reason: The Volokh Conspiracy (May 3, 2019). [634] Letter from Pat A. Cipollone, White House Counsel, to the Honorable Nancy Pelosi, Speaker, U.S. House of Representatives, at 2 (Oct. 8, 2019). [635] H.R. Rep. No. 116-346, at 136 (2019) (Conf. Rep.). [636] See H.R. Res. 755, 116th Cong. (2019) (enacted). [637] H.R. Rep. No. 116-346, at 142 at 154. [638] Jonathan Shaub, Should the House Have Gone to the Courts on Obstruction Before Impeaching? Lawfare (Jan. 10, 2020). [639] Comm. on the Judiciary v. McGahn, 951 F.3d 510, 514 (D.C. Cir. 2020), rehearing en banc granted, opinion vacated sub nom. United States House of Representatives v. Mnuchin, No. 19-5176, 2020 WL 1228477 (D.C. Cir. Mar. 13, 2020).
[640] H.R. 4010, 115th Cong. § 2 (2017).
CONCLUSION
[641] Gene Healy, The Cult of the Presidency: America’s Dangerous Devotion to Executive Power 268 (2008). [642] Saikrishna Prakash, The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers 2 (2020). [643] The White House, Remarks by President Trump Before Marine One Departure (July 12, 2019). [644] Arthur Schlesinger, Jr., The Imperial Presidency 491 (2004).