1/ It’s going to be a wild ride for executive power during Trump 2.0. Here is a quick list of important issues where executive power is likely to be pushed hard, rethought, resisted, and/or, when possible, litigated. What am I missing? 2/ The statutory law of civil service protection and, relatedly, the scope of POTUS’ removal power in the face of statutory restrictions—both for career & non-career officials. (Also: presidential authority to redesignate the head of the Fed.)

1. Quick speculation about the QU the Court crafted in Trump v. US: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” supremecourt.gov/orders/courtor… 2. First, the Court crafted the question to focus on “conduct alleged to involve *official acts*,” as the Trump team suggested, and not “crimes committed while in office,” as Smith had suggested in December. (The Court also cut out some “out there” Trump arguments)

1/Prediction: The interpretation of a criminal statute used to convict hundreds of J6 rioters, 18 U.S.C. 1512(c)(2), won't survive appellate review. The Sup Court—which interprets statutes like this narrowly—will eventually interpret 1512(c)(2) in this way. 2/ To get a flavor why, listen to the oral argument in this DC Circuit case. lawfareblog.com/dc-circuit-hol… (Oral argument here. cadc.uscourts.gov/recordings/rec…). The government didn’t have great answers to two judges’ concerns about “corruptly” in the statute.

1/ I wrote here about how the special counsel system is not well-suited to the task of investigating Biden and Trump—and now possibly Pence—for mishandling classified information. nytimes.com/2023/01/24/opi…. But the real problem is the broken classified information system. Thread. 2/ A well known problem is massive overclassification. Too many things are made secret that shouldnt be, and secrecy lasts too long. Pathologies follow: excessive leaks, corrupt manipulation of secrets, things hidden from the American people that shouldnt be, bad governance, etc

1/ A few follow-ups on this piece from yesterday. lawfareblog.com/can-trump-sell… 2/ It is hard to exaggerate how outside the box this episode is. There have been disputes in discrete contexts about Prez Records Act compliance and whether and how POTUS or VP declassified a document or program.

It's not just "that a Democratic president cannot deter a Democratic House speaker from engaging in a diplomatic maneuver that his entire national security team — from the C.I.A. director to the chairman of the Joint Chiefs — deemed unwise." nytimes.com/2022/08/01/opi… @tomfriedman focuses on Biden's fear of asking Pelosi not to go. But is the executive branch facilitating the congressional visit, as it usually does?

Three more terrific papers in the @HooverInst Aegis series on the (understudied) topic of government access to marketplace data as a tool for circumventing the 4th Amendment. First, @elizabeth_joh on the rise of “gig surveillance work,” and an analysis of its legal and policy implications, esp. for government reliance on the private information market. hoover.org/research/gig-s…

The Biden administration screwed up badly. But this analysis is wrong. Sup Ct did NOT "rule[] that the CDC had 'exceeded its existing statutory authority' and was obliged to stop." The Court *declined* to make CDC stop. One Justice, Kavanaugh, said this.
nationalreview.com/2021/08/bidens… It is an interesting case because Kavanaugh declined to lift the stay but made clear that he thought CDC acted unlawfully. It is likely that the Court would strike down the moratorium or its successor. But there has been no Supreme Court ruling on the merits yet.

One wonders how much the word "directly" is doing in this Biden statement: “How would it be if the U.S. were viewed by the rest of the world as interfering with the elections directly of other countries? What would it be like if we engaged in activities that he's engaged in?" It is clear, and not controversial, that the US engaged in various forms of electoral interference (including vote-rigging) during the Cold War. Two good books on this: Dov Levin, Meddling in the Ballot Box, and David Shimer, Rigged.

Very informative update. "Some of the compromised SolarWinds software was engineered in Eastern Europe, and American investigators are now examining whether the incursion originated there, where Russian intelligence operatives are deeply rooted." nytimes.com/2021/01/02/us/… "Publicly, officials have said they do not believe the hackers from Russia’s S.V.R. pierced classified systems containing sensitive communications and plans. But privately, officials say they still do not have a clear picture of what might have been stolen."

Much to say about yesterday’s pardons and commutations. Before getting to the updated chart, some general reflections. Trump has upended the traditional criteria for clemency: justice.gov/jm/jm-9-140000…. The traditional guiding principle: “a pardon is granted on the basis of the petitioner's demonstrated good conduct for a substantial period of time after conviction and service of sentence.”

1/ Remember the dispute at the dawn of the Obama administration about the constitutionality of the District of Columbia Voting Rights Act of 2009, which would have given the District one vote in the House? 2/ .@johnson_carrie reported that OLC concluded that the bill was unconstitutional, but was overruled by Attorney General Holder, who “ordered up a second opinion from other lawyers in his department and determined that the legislation would pass muster.” washingtonpost.com/wp-dyn/content…

I and others questioned DOJ for bringing loser lawsuit to enjoin Bolton from publication. But DOJ’s strategy paid off big time. It lost battle over prior restraint, as expected, but it basically won the war based on a simple TRO request. Lamberth declared, after little adversary process, that Bolton “likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations” and exposed himself to potential criminal liability.

A few things to keep in mind for tomorrow's hearing before Judge Lamberth re USG effort to enjoin publication of Bolton's book. 1/ lawfareblog.com/questions-gove… Lamberth was a bad draw for USG because he is skeptical of judicial deference on classified information (and as a former chief judge on the Foreign Intelligence Surveillance Court he knows a lot about USG and classified info). politico.com/blogs/under-th… 2/

I’ve been thinking whether in American presidential history there’s ever been an act of cowardice and impotence as brazen as @realDonaldTrump's “I don’t take responsibility at all” comment, followed by his efforts—3+ years into his term—to blame his predecessors. 1/ Many presidents have tried to deflect responsibility for various acts, of course. But I cannot think of another episode that, adjusted for the high-stakes context, comes close to Trump’s remarkable combination of gutlessness and weakness. (Am I missing something?) 2/

1/ I have recently learned some things that convince me more than ever that the so-called “federal clerkship hiring plan” is broken, or worse.  Earlier threads here,

https://twitter.com/jacklgoldsmith/status/1150839301929930752?s=20

, and here,

https://twitter.com/jacklgoldsmith/status/1215712840297992192?s=20

2/ A few years ago an ad hoc committee of federal judges sought to reform the clerkship market. Judges on the plan pledged not to hire (or even contact) law students until summer after 2L year. Some law schools sought to limit faculty recommendations during the 2-year period.

Not for the first time, I don't understand this WH threat. WH has no legal leverage except to review manuscript for classified information w/in 30-biz-day window, which ends in a few weeks. It cannot get prior restraint. And it is only building up significance of Bolton book.

https://twitter.com/jaketapper/status/1222567571091808257

Spoke too soon! Just saw letter @jaketapper referred to. cdn.cnn.com/cnn/2020/image… I wouldnt call this a "threat." It says manuscript contains “significant amount” of classified info, correctly says Bolton cannot publish classified info, and pledges to work w/ him to identify it.

1/ Much in this article is misleading or wrong. I cannot recount everything, but here are a few reactions. bostonglobe.com/metro/2020/01/… 2/ Judges across the spectrum from right to left have grown more ideological in their hiring in the last 10-15 years (though really the practice, in a less intense way, goes back much further).

Last thought today: Here are 3 essays that aimed to describe how Obama admin moved domestic & international law re (inter alia) war/counterterrorism strikes in other countries. Together they contain sketches of the law’s arc & final resting place in the pre-Trump Bush/Obama era. The first: “The Contributions of the Obama Administration to the Practice and Theory of International Law.” harvardilj.org/wp-content/upl…

I'm seeing a few people say that this interesting thread shows that the attacks were unlawful. Perhaps, but the US has since 9/11, all three administrations, embraced a very stretchy principle of “imminence.” Congress has done nothing in response.

https://twitter.com/rcallimachi/status/1213421769777909761

It started with the Bush administration’s infamous 2002 national security strategy. Then the Obama administration embraced it. See here for a summary: time.com/4283865/obama-… See also here: lawfareblog.com/sometimes-name…

1/ I have written a legal opinion in government and many pieces out of government on presidential war powers. And FWIW I have grown very, very cynical about legal constraints on those war powers. Here are some thoughts as the lawyers begin to weigh in. 2/ First, with the exception of the War Powers Resolution (WPR), which has always been a very weak constraint, practically all of the law in this area has been developed by executive branch lawyers justifying unilateral presidential uses of force.