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Reactions to the U.S. Supreme Court’s Rulings in Trump v. Vance & Trump v. Mazars

In Trump v. Vance and Trump v. Mazars the Supreme Court issued opinions in two cases concerning the release of President Trump’s financial records. Reactions to the July 9^th rulings have varied, with opinions differing on whether or not Trump’s reputation and presidency will be significantly impacted by what his financial records may reveal.

Below, we outline the details of each case and the reactions to the Supreme Court’s decisions.

Background Trump v. Vance

In Trump v. Vance, the court stated that Trump had no absolute right to block the Manhattan District attorney’s access to Trump’s financial records for the purposes of a grand jury investigation. The court held in a 7-2 decision that “Article II and the Supremacy Clause do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President.” The court’s opinion was written by Chief Justice John Roberts for the majority including Justices Ginsburg, Breyer, Sotomayor and Kagan with Justice Kavanaugh filing a concurring opinion joined by Justice Gorsuch, and Justice Thomas and Justice Alito writing separate dissenting opinions.

Trump v. Vance involves a state criminal grand jury subpoena not served on President Trump, but on two banks and an accounting firm that were custodians of the records. The subpoenaed records are for eight years of Trump’s personal and business tax returns and other banking documents in the years leading up to the 2016 election served on behalf of New York District Attorney Cyrus Vance., Jr. Vance’s investigation centered around payments made to two women — Karen McDougal and Stormy Daniels — who alleged they had affairs with Trump before he entered office.

The Supreme Court considered state criminal subpoenas could threaten “the independence and effectiveness” of the president as well as undermining the president’s leadership and reputation, weighing Trump’s circumstances against those in Clinton v. Jones, the 1997 case where President Bill Clinton sought to have a civil suit filed against him by Paula Corbin Jones dismissed on the grounds of presidential immunity, and that the case would be a distraction to his presidency.

Trump argued that the burden state criminal subpoenas would put on his presidency would be even greater than in Clinton because “criminal litigation poses unique burdens on the President’s time and will generate a considerable if not overwhelming degree of mental preoccupation” and would make him a target for harassment.

The Court addressed Trump’s argument, stating that they “rejected a nearly identical argument in Clinton, concluding that the risk posed by harassing civil litigation was not ‘serious’ because federal courts have the tools to deter and dismiss vexatious lawsuits. Harassing state criminal subpoenas could, under certain circumstances, threaten the independence or effectiveness of the Executive. But here again the law already seeks to protect against such abuse … Grand juries are prohibited from engaging in ‘arbitrary fishing expeditions’ or initiating investigations ‘out of malice or an intent to harass.’”

The Court also considered that Vance is a case addressing state law issues where Clinton was a case addressing federal law issues. Trump argued that the Supremacy Clause gives a sitting president absolute immunity from state criminal proceedings because compliance with subpoenas would impair his performance of his Article II functions. Arguing on behalf of the United States, the Solicitor General claimed state grand jury subpoenas should fulfill a higher need standard. In response, the Court ruled, “A state grand jury subpoena seeking a President’s private papers need not satisfy a heightened need standard … there has been no showing here that heightened protection against state subpoenas is necessary for the Executive to fulfill his Article II functions.”

Notably, the Supreme Court decision does not allow for public access to Trump’s tax returns; they will be part of a Grand Jury investigation, which is confidential. However, many took away the message that the majority’s decision–bolstered by Gorsuch and Kavanaugh, Trump appointees, who concurred–that the law applies to everyone.

Reactions to SCOTUS Decision from Jay Sekulow and Cyrus Vance, Jr.

Both Vance and Trump’s attorney Jay Sekulow expressed they were content with the Court’s ruling, albeit for different reasons.

“We are pleased that in the decisions issued today, the Supreme Court has temporarily blocked both Congress and New York prosecutors from obtaining the President’s financial records. We will now proceed to raise additional Constitutional and legal issues in the lower courts,” Sekulow tweeted.

We are pleased that in the decisions issued today, the Supreme Court has temporarily blocked both Congress and New York prosecutors from obtaining the President’s financial records. We will now proceed to raise additional Constitutional and legal issues in the lower courts.

— Jay Sekulow (@JaySekulow) July 9, 2020

“This is a tremendous victory for our nation’s system of justice and its founding principle that no one – not even a president – is above the law. Our investigation, which was delayed for almost a year by this lawsuit, will resume, guided as always by the grand jury’s solemn obligation to follow the law and the facts, wherever they may lead,” Vance said in a statement.

**Other Reactions to the Supreme Court’s Trump v. Vance Ruling**

Following the Supreme Court’s arguments in Vance, lawyers and legal scholars commented about what the decision could mean for the presidency.

In a C-SPAN interview with National Constitution Center President and CEO Jeffrey Rosen, Columbia Law School Professor Gillian Metzger spoke about the issue of burden on the president in Vance, “A lot of what is being shown in these cases is who bears the burden when. Clinton v. Jones said that first, you have to show the burden on the presidency…already the Solicitor General is trying to move us beyond where we had been in Clinton vs. Jones. Among the justices on the court, my sense is that they are really trying to figure out what the standards should be…I didn’t get the sense of a stark ideological divide on this.”

In agreement with seeing the ruling as a victory for the rule of law, David Cole, the ACLU National Legal Director said: “The Supreme Court today confirmed that the president is not above the law. The court ruled that President Trump must follow the law, like the rest of us. And that includes responding to subpoenas for his tax records.”

Harvard Law professor Laurence Tribe, a frequent Trump critic, highlighted the victory on Twitter, saying: “No absolute immunity from state and local grand jury subpoenas for Trump’s financial records to investigate his crimes as a private citizen. Being president doesn’t confer the kind of categorical shield Trump claimed.”

Of a practical matter, though, Mark Zaid, the Washington attorney who represented the whistleblower who set the stage for Trump’s impeachment proceedings, tweeted:

Even if Trump’s tax returns reveal fraud, I find it doubtful that this fact would finally be straw that broke his supporters’ back on election day.

But importance of ruling is that criminal investigation continues & will exist past expiration of Trump’s presidential immunity. https://t.co/dn3GIJ9CRj

— Mark S. Zaid (@MarkSZaidEsq) July 9, 2020

“Even if Trump’s tax returns reveal fraud, I find it doubtful that this fact would finally be straw that broke his supporters’ back on election day. But importance of ruling is that criminal investigation continues & will exist past expiration of Trump’s presidential immunity.” (Should we embed the tweet?)

Background for the Supreme Court’s Ruling in Trump v. Mazars

The Supreme Court remanded back to the lower courts the second case, Trump v. Mazars in a 7-2 decision. The Mazars case involved three committees of the U. S. House of Representatives attempting to secure Trump’s financial documents, and the financial documents of his children and affiliated businesses for investigative purposes. Each of the committees sought overlapping sets of financial documents, supplying different justifications for the requests, explaining that the information would help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U. S. elections.

Additionally, the President in his personal capacity, along with his children and affiliated businesses—contested subpoenas issued by the House Financial Services and Intelligence Committees in the Southern District of New York. Trump and the other petitioners argued in the United States Court of Appeals for the Second Circuit that the subpoenas violated separation of powers. The President did not, however, argue that any of the requested records were protected by executive privilege. Justice Roberts wrote the majority opinion, with Thomas and Alito filing dissenting opinions.

In Mazars, the District Court for the District of Columbia upheld the Congressional subpoenas, indicating the investigations served a “legislative purpose” as they could provide insight on reforming presidential candidate’s financial disclosure requirements. However, Roberts writes: “the courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information.”

In the opinion, Roberts sets out a list of items the lower courts need to consider involving Congress’s powers of investigation and subpoena, noting that previously these disagreements had been settled via arbitration, and not litigation. Additionally, Roberts summarizes the argument before the court, drawing on the Watergate era Senate Select Committee D. C. Circuit made by the President and the Solicitor General, saying the House must demonstrate the information sought is “demonstrably critical” to its legislative purpose did not apply here. Roberts, stated that this standard applies to Executive privilege, which, while crucial, does not extend to “nonprivileged, private information.” He writes: “We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations.”

However, Roberts detailed that earlier legal analysis ignored the “significant separation of powers issues raised by congressional subpoenas” and that congressional subpoenas “for the President’s information unavoidably pit the political branches against one another.” With these constraints in mind, Roberts charged the lower court to consider the following in regards to congressional investigations and subpoenas:

Does the legislative purpose warrant the involvement of the President and his papers?
Is the subpoena appropriately narrow to accomplish the congressional objective?
Does the evidence requested by Congress in the subpoena further a valid legislative aim?
Is the burden on the president justified?

Reactions to Trump v. Mazars

Nikolas Bowie, an assistant Harvard Law Professor, turning to Robert’s analysis in the opinion on Congressional investigations opinion discussing Congressional investigations indicated the decision “introduces new limits on Congress’s power to obtain the information that it needs to legislate effectively on behalf of the American people . . . the Supreme Court authorized federal courts to block future subpoenas using a balancing test that weighs ‘the asserted legislative purpose’ of the subpoenas against amorphous burdens they might impose on the President.”

Additionally, Bowie points out, “it seems unlikely that the American people will see the information Congress requested until after the November election.”

Writing for the nonprofit public policy organization, The Brookings Institution, Richard Lempert, Eric Stein Distinguished University Professor of Law and Sociology Emeritus at the University of Michigan, concurs with Bowie’s point, writing that the Mazars decision may set a new standard for Congressional subpoenas moving forward:

“The genius of Robert’s opinion in Mazars is that while endorsing the longstanding precedent that congressional subpoenas must have a legislative purpose and without repudiating the notion that courts should not render judgments based on motives they impute to Congress, the opinion lays down principles which form a more or less objective test for determining whether material Congress seeks from a president is essential to a legislative task Congress is engaged in … Congress should be able to spell out in a subpoena why it needs the documents it seeks.”

Looking Ahead to What’s Next

There is a lot of information in these decisions to unpack, especially in relation to Congressional investigations and subpoenas. Additionally, questions remain on how the lower courts may interpret Roberts’ directive to examine “congressional legislative purpose and whether it rises to the step of involving the President’s documents” and how Congress will “assess the burdens imposed on the President by a subpoena.”

ARTICLE BY Rachel Popa, Eilene Spear and Jennifer Schaller at The National Law Review / The National Law Forum LLC.

For more on this case, see the National Law Review Litigation and Trial Practice type-of-law section.

Bipartisan Group of Senators Asks Trump to Explain Reasoning for Firing IC Watchdog

Yesterday, Senator Charles Grassley (R-IA) and a bipartisan group of senators sent a letter to President Trump asking for more details regarding the firing of Intelligence Community Inspector General (IC IG) Michael Atkinson. Atkinson was responsible for alerting Congress to the whistleblower complaint that led to Trump’s impeachment.

Grassley, who serves as chairman of the Senate Whistleblower Protection Caucus, argued that Trump provided insignificant reasons for firing the government watchdog.

“Congressional intent is clear that an expression of lost confidence, without further explanation, is not sufficient to fulfill the requirements of the statute. This is in large part because Congress intended that inspectors general only be removed when there is clear evidence of wrongdoing or failure to perform the duties of the office, and not for reasons unrelated to their performance, to help preserve IG independence.”

Trump announced the termination of Atkinson on Friday, citing a lack of “confidence in the appointees serving as inspectors general.” In remarks the following day, Trump defended the decision stating, Atkinson “did a terrible job, absolutely terrible.” He also said Atkinson “took a fake report and gave it to Congress.”

The Senators stressed that “all inspectors general (IG) are designed to fulfill a dual role, reporting to both the President and Congress, to secure efficient, robust, and independent agency oversight.”

The Senators allege that the administration by-passed Congress’s “opportunity for an appropriate dialogue” “by placing the IG on 30 days of administrative leave and naming an acting replacement.”

The Senators ask that President Trump provide a detailed explanation of the removal of Inspector General Atkinson no later than April 13, 2020. And to also explain appointing an acting official before the end of the 30-day notice period comports with statutory requirements.

The day after his termination was made public, Atkinson described how he “faithfully discharged” his duties as “an independent and impartial Inspector General” in a statement encouraging other government whistleblowers to speak up.

Seven other senators signed the letter.

Read the Senator’s letter to President Trump.

ARTICLE BY Mary Jane Wilmoth of Kohn, Kohn & Colapinto

Ben Kostyack also contributed to this article.

For more governmental news, see the National Law Review Election Law & Legislative News section.

DACA: Updates and Options for Dreamers

This November, the United States Supreme Court is set to hear oral arguments on the case that will decide the fate of the Deferred Action for Childhood Arrivals (DACA) program.[1] This program, established through executive action, has offered a temporary reprieve from removal (deportation) to nearly 800,000 students and young professionals raised in the United States.[2] While the program protects a generation categorically denied opportunity to gain legal status,[3] it is very limited in scope. Remarkably, DACA does not confer any immigration status itself nor offer a separate pathway to any other status including permanent residency.[4]

The idea that someone can be present in the United States without legal status while not unlawfully present is confusing – not only to the general public, but apparently to the Supreme Court. In oral argument for U.S. v. Texas, Chief Justice John Roberts wondered, “I’m sorry, that just so I get that right… Lawfully present does not mean that you’re legally present.”[5] Justice Samuel Alito also asked, “[H]ow can it be lawful to work here but not lawful to be here?”[6] If members of this nation’s highest court struggle with this concept, it is no wonder there is confusion surrounding DACA.

DACA: Benefits and Limitations

The DACA recipients, or “Dreamers,”[*] are in legal limbo: allowed to work in the United States, but with no legal status. DACA recipients are permitted to continue their education, and receive a social security number.[7] In some states, recipients can also apply for a driver’s license.[8] DACA also offers a reprieve from accruing “unlawful presence,” a legal term for time spent in the United States without status as an adult, which can lead to future bars to reentry to the US.[9] However, the deferred action program does not, on its own basis, allow its recipients to apply for a separate status.[10] DACA protections expire every two years, and require subsequent renewal applications.[11]

It is no wonder that Dreamers have been called “the best and brightest young people.”[12] The DACA protections only extend to a group of educated youth that have never been convicted of most categories of crimes.[13] To qualify, an applicant must have arrived to the country under the age of sixteen, attend school or have completed their education, and be under the age of thirty, among other requirements.[14] By the nature of the program, recipients arrived as children and therefore may not have a connection to their country of birth. As a result, many Dreamers are attending universities, building careers, and living their lives in the United States without a guarantee that they can obtain legal status to stay permanently.

DACA is Unique Only in its Limited Scope

Deferred action is a commonly used exercise of prosecutorial discretion.[15] As with many other government actions, officials set enforcement priorities to manage limited resources. In addition, the Department of Homeland Security can grant deferred action on an individual basis at any time.[16] The Dreamers’ immigration standing is also not unique, because, as Chief Justice Roberts and Justice Alito learned, many foreign nationals in the US can work legally but do not have legal status. This includes applicants for adjustment of status to permanent residence, and foreign nationals of countries granted Temporary Protected Status (TPS).[17] Applicants for political asylum are also permitted to work legally in the US after a certain time period while awaiting a final decision on their applications.[18]

The DACA program is part of a long history of executive actions related to immigration. In 1961, the Kennedy Administration established a program to give immigrant visas to Cuban refugees, as well as provide financial help, medical care, and other resettlement services.[19] The program benefitted around one million Cuban Americans.[20] Subsequently, when an influx of both Cubans and Haitians arrived on Florida shores in 1980, most were discretionarily admitted to the country.[21] Several years later, President Reagan announced that immigration standards for 200,000 undocumented Nicaraguans would be eased, and directed the immigration service to “encourage and expedite” their work authorizations.[22] After the 1986 immigration reform bill offered a pathway to residence to many undocumented families, around 100,000 children of those families were shielded from deportation by executive action.[23] In 1990, former President Bush expanded the program by creating an application process for undocumented individuals to stay in the United States and receive work permits.[24] Two consecutive administrations also expanded the TPS status of thousands of Salvadorans and Nicaraguans until they were offered a pathway to permanent residency by law.[25] Within this context, DACA is much less beneficial to eligible foreign nationals than other major executive actions on immigration, because it provides no pathway to any other immigration status and certainly not permanent residence.

The DACA program was designed as a solution to a problem created by more recent changes to immigration law, which were promoted by many of the same immigration restrictionists that now oppose DACA. For most of American history, migrants from Mexico and other countries travelled back and forth across the border for work in the United States, but maintained a primary residence in their home countries.[26] Migration consisted of seasonal flows from Mexico corresponding to the need for agricultural and railroad workers.[27] There was often no need to stay permanently, so workers returned home in the winter.[28] As a result, families often stayed in Central America instead of relocating to the U.S.[29]

During the second half of the 20th century, U.S. law made it difficult to legally migrate from Central America.[30] As a result, it became risky to travel across the border and entire families settled undocumented.[31] While DACA did not fix this legal status discrepancy, it allowed the children of these families to stay and continue their education and careers.

Recent Changes to the DACA Program

In 2017, the Trump Administration attempted to end the DACA program.[32] After several lawsuits were filed to challenge the termination of DACA, injunctions were issued to order the Department of Homeland Security to continue to process DACA renewals and employment authorizations, but the government could refuse new applications.[33] The pending litigation challenges whether the Trump administration acted with proper authority in attempting to end the program, and whether the Court has the authority to review the administration’s decision.[34]

Even if the Supreme Court upholds the Trump Administration’s decision to end the DACA program, there remains a chance that Congress will act to protect Dreamers. An amendment to immigration law would render the pending case moot and take precedence over any Department of Homeland Security administrative decision. Although at least ten iterations of the bill have been introduced, none have passed.[35] This year, the House passed the American Dream and Promise Act which would grant DACA recipients permanent, statutory protections.[36] However, the bill still has to pass the hurdle of a favorable Senate vote.[37]

The situation of Dreamers is that of legal purgatory – with the door shut to legal status and very few options to leave the United States and return with a visa. Legislative action has been stalled for decades and now a conservative Court is poised to hear the case in the coming weeks. Dreamers and activists alike hope the Court will see DACA as a rational response to protect 800,000 young people from the legal conundrum created by U.S. immigration law.

Options for the Future

With the future of the DACA program uncertain, many Dreamers and employers are assessing their options. The following section is an overview of considerations for DACA recipients, who are in a unique and challenging legal position. With each type of visa, there are exceptions and complicating factors, such as criminal convictions, that may affect eligibility. Although immigration law permits waivers of certain conditions, waivers are granted only in narrow circumstances. As a result, each individual should discuss their unique situation with an experienced immigration attorney.

Immigrant Visa Petitions.

There are several types of immigrant visas available for individuals wishing to become permanent residents, including primarily (1) immediate relative petitions, (2) family-based petitions, and (3) employment-based petitions.[38] The first category can be filed by a U.S. citizen spouse, parent, or an adult child (over the age of twenty-one).[39] The second two types of immigrant visas, based on family and employment, each have different subcategories and are subject to numerical annual limits.[40]

Even if a DACA recipient can qualify for an immigrant visa, there are unique issues that may prevent many from receiving the green card. There are two avenues to receive permanent residency: consular processing at a U.S. Consular Post abroad; and adjustment of status while present in the United States.

Adjustment of Status. Whether a DACA recipient can adjust their immigration status to permanent resident depends on the time spent in the United States without legal status, the manner of U.S. entry, and the type of immigration sponsor. As a general rule, Dreamers cannot adjust status with a family-based petition because it requires continuous lawful status.[41] Employment-based petitions are only available if the individual has less than 180 days of unlawful presence.[42] Thankfully, the immediate relative petition allows adjustment to those who have been undocumented for many years.[43] However, like all petitions, the immediate relative petition requires lawful entry to the United States with either a visa or a travel authorization document.[44] Dreamers who marry a U.S. citizen may have other options even without lawful entry, but will want to seek the advice of an immigration attorney.

Consular Processing. The alternative to adjustment of status is applying for an immigrant visa and interviewing at a U.S. embassy. Most DACA recipients will face challenges in this method, as well. Beginning at age eighteen, any person who has spent over 180 days without legal status faces a three year bar to reentry to the United States.[45] This bar increases to ten years after one year of unlawful presence.[46] Therefore, leaving the country for an interview at a U.S. embassy is a practical impossibility for many recipients who have accrued unlawful presence before approval under DACA.

Non-Immigrant Visa Petitions.

There are numerous types of temporary visas. The F-1 student visa, the O-1 extraordinary ability visa, H-1B work visa, and the B visas for tourism and business are all examples.[47] Most DACA recipients face one fundamental challenge to receiving any of these visas: a grant of a temporary status while living in the U.S. requires an existing, valid underlying status. DACA does not confer any non-immigrant status for this purpose.

Thus, Dreamers seeking a temporary visa are in a similar position as those hoping to receive a green card through consular processing. The process requires leaving the United States and reentering with a visa, a path complicated by three-year and ten-year statutory bars. If available, Dreamers may want to pursue a position abroad with their company. In addition, individuals who are eligible may want to consider whether they qualify for Temporary Protected Status (TPS), which would confer the ability to apply for other temporary statuses.

Humanitarian Petitions.

It is worth noting that there are a few pathways in immigration law for humanitarian-based relief, including the special immigrant juvenile visa, asylum, and visas available for survivors of crimes and domestic abuse.[48] These options may present a pathway to permanent residency for DACA recipients, but only for those that qualify and receive a favorable exercise of discretion.

In summary, individuals temporarily protected under DACA should consider alternatives in the coming months before the Supreme Court’s decision. Though the pathway to permanent residency is narrow, there may be a few options available to stay continuously or to work abroad and return after a few years. The most important step is to continue to renew DACA in the meantime. Finally, it is important to consult with an experienced immigration attorney to help navigate the available options.

[*] The name “Dreamers” originated from the name of the legislative act, the Development, Relief, and Education for Alien Minors (DREAM) Act, originally introduced in 2001.

[1] See DHS v. Regents of the Univ. of Calif., 139 S.Ct. 2779 (2019). The case was consolidated with two other lawsuits, Batalla Vidal v. Nielsen and NAACP v. Trump, with oral arguments set for November 12, 2019 and decision expected around June 2020. DACA Litigation Timeline, Nat’l Immigration Law Center, https://www.nilc.org/issues/daca/daca-litigation-timeline/ (Last updated Sep. 28, 2019).

[2] Gustavo Lopez & Jens Manuel Krogstad, Key Facts about Unauthorized Immigrants Enrolled in DACA, Pew Research Cent. (Sep. 25, 2017), https://www.pewresearch.org/fact-tank/2017/09/25/key-facts-about-unauthorized-immigrants-enrolled-in-daca/.

[3] See Dara Lind, Why Ending DACA is so Unprecedented, Vox (Sep. 5, 2017), https://www.vox.com/policy-and-politics/2017/9/5/16236116/daca-history (noting DACA protects individuals largely without legal pathways to permanent residency).

[4] See U.S. Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 3 (2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf; See also Frequently Asked Questions, Nat’l Immigration Law Center https://www.nilc.org/issues/daca/faqdeferredactionyouth/ (Last updated Dec. 16, 2016).

[5] Transcript of Oral Argument at 28, United States v. Texas, 136 S.Ct. 2271 (2016) (No. 15-674).

[6] Transcript of Oral Argument at 28, United States v. Texas, 136 S.Ct. 2271 (2016) (No. 15-674).

[7] DACA, Immigration Legal Resource Center, https://www.ilrc.org/daca, (Last visited Oct. 18, 2019).

[8] Immigration Legal Resource Center, Preparing for the Future 15 (2019), https://www.ilrc.org/preparing-future-understanding-rights-and-options-daca-recipients.

[9] Unlawful Presence and Bars to Admissibility, USCIS, https://www.uscis.gov/legal-resources/unlawful-presence-and-bars-admissi… (Last visited Oct. 18, 2019); Understanding Unlawful Presence Under INA § 212(a)(9)(B) and Waivers of Unlawful Presence, Immigrant Legal resource Center 3 (2019), https://www.ilrc.org/sites/default/files/resources/understanding_unlawful_presence_march_2019.pdf.

[10] See U.S. Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 1 (2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf (“This memorandum confers no substantive right, immigration status or pathway to citizenship.”).

[11] See Id.; The Dream Act, DACA, and Other Policies Designed to Protect Dreamers, American Immigration Council 3 (2019), https://www.americanimmigrationcouncil.org/sites/default/files/research/the_dream_act_daca_and_other_policies_designed_to_protect_dreamers.pdf.

[12] Get the Facts on the DREAM Act, The White House President Barack Obama (Dec. 1, 2010), https://obamawhitehouse.archives.gov/blog/2010/12/01/get-facts-dream-act; See also The Dreamers Are a Good Part of America’s Future, The Wall Street Journal (July 25, 2017), https://www.wsj.com/articles/the-dreamers-are-a-good-part-of-americas-future-1501002274; Power to the Doers and Dreamers, Unleashing the Best and Brightest, Int’l Business Times (Aug. 16, 2010), https://www.ibtimes.com/power-doers-dreamers-unleashing-best-brightest-193274; Gabrielle Levy, Obama: Trump’s DACA Decision ‘Cast a Shadow’ of Deportation Over ‘Best and Brightest’ U.S. News (Sep. 5, 2017), https://www.usnews.com/news/politics/articles/2017-09-05/obama-trumps-daca-decision-cast-a-shadow-of-deportation-over-best-and-brightest.

[13] U.S. Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 1 (2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.

[14] Id.

[15] See Shoba S. Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. L. J. 243, 246 (2010)

[16] Id.

[17]Employment Authorization Document, U.S. Citizenship and Immigration Services, https://www.uscis.gov/greencard/employment-authorization-document (Last updated Apr. 5, 2018).

[18] Id.

[19] See Larry Nackerud et al., The End of the Cuban Contradiction in U.S. Refugee Policy, 33 Int’l Migration Rev. 176, 177 (1999); See also Drew Desilver, Executive Actions on Immigration Have a Long History, Pew Research Center (Nov. 4, 2014), https://www.pewresearch.org/fact-tank/2014/11/21/executive-actions-on-immigration-have-long-history/.

[20] See Larry Nackerud et al., The End of the Cuban Contradiction in U.S. Refugee Policy, 33 Int’l Migration Rev. 176, 177 (1999)

[21] See Drew Desilver, Executive Actions on Immigration Have a Long History, Pew Research Center (Nov. 4, 2014), https://www.pewresearch.org/fact-tank/2014/11/21/executive-actions-on-immigration-have-long-history/; See also Julio Capo, The White House Used This Moment as Proof the U.S. Should Cut Immigration, It’s Real History is More Complicated, Time (Aug. 4, 2017), https://time.com/4888381/immigration-act-mariel-boatlift-history/.

[22] Immigration Rules Are Eased for Nicaraguan Exiles in the U.S., New York Times (July 9, 1987), https://www.nytimes.com/1987/07/09/world/immigration-rules-are-eased-for-nicaraguan-exiles-in-us.html.

[23] Am. Immigration Council, Reagan-Bush Family Fairness (Dec. 2014), https://www.americanimmigrationcouncil.org/sites/default/files/research/reagan_bush_family_fairness_final_0.pdf.

[24] Id.

[25] See Drew Desilver, Executive Actions on Immigration Have a Long History, Pew Research Center (Nov. 4, 2014), https://www.pewresearch.org/fact-tank/2014/11/21/executive-actions-on-immigration-have-long-history/; See also Nicaraguan Adjustment and Central American Relief Act, 8 C.F.R. § 240.60 (2014).

[26] See Dara Lind, Why Ending DACA is so Unprecedented, Vox (Sep. 5, 2017), https://www.vox.com/policy-and-politics/2017/9/5/16236116/daca-history (noting DACA protects individuals largely without legal pathways to permanent residency); See also Douglas Massey & Karen Pren, Unintended Consequences of US Immigration Policy 38 Population and Dev. Review 1-3 (2012), https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1728-4457.2012.00470.x.; Marc Rosenblum & Kate Brick, US Migration and Policy and Mexican/Central American Migration Flows 1-3 (2011)

[27] Marc Rosenblum & Kate Brick, US Migration and Policy and Mexican/Central American Migration Flows 3 (2011).

[28] Id.

[29] See Dara Lind, Why Ending DACA is so Unprecedented, Vox (Sep. 5, 2017), https://www.vox.com/policy-and-politics/2017/9/5/16236116/daca-history

[30] See Douglas Massey & Karen Pren, Unintended Consequences of US Immigration Policy 38 Population & Dev. Rev. 1-3 (2012), https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1728-4457.2012.00470.x; Marc Rosenblum & Kate Brick, US Migration and Policy and Mexican/Central American Migration Flows 1-3 (2011).

[31] See Dara Lind, Why Ending DACA is so Unprecedented, Vox (Sep. 5, 2017), https://www.vox.com/policy-and-politics/2017/9/5/16236116/daca-history.

[32] Michael Shear & Julie Davis, Trump Moves to End DACA and Calls on Congress to Act, New York Times (Sep. 5, 2017), https://www.nytimes.com/2017/09/05/us/politics/trump-daca-dreamers-immigration.html.

[33] See DACA Litigation Timeline, Nat’l Immigrant Justice Cent., https://www.nilc.org/issues/daca/daca-litigation-timeline/ (Last Updated Sep. 28, 2019); See also Regents of the Univ. of Cal. v. DHS, 908 F.3d 476 (9th Cir. 2018).

[34] Regents of the Univ. of Cal. v. DHS, 908 F.3d 476 (9th Cir. 2018).

[35] Id.

[36] American Dream and Promise Act of 2019, 116th Congress, H.R.6 https://www.congress.gov/bill/116th-congress/house-bill/6.

[37] See Alan Gomez and Ledyard King, House Passes Bill to Protect ‘Dreamers’, but Faces Long Odds in Republican-led Senate, U.S.A. Today (Jun. 4, 2019), https://www.usatoday.com/story/news/politics/2019/06/04/house-passes-bill-dreamers-tps-but-senate-unlikely/1337753001/; Natalie Andrews & Andrew Duehren, House Passes Bill Aimed at Protecting Immigrants Brought Illegally to the U.S. as Children, Wall Street Journal (Jun. 4, 2019), https://www.wsj.com/articles/house-passes-bill-aimed-at-protecting-immigrants-brought-illegally-to-u-s-as-children-11559689659.

[38] See 8. U.S.C. § 1151 (2018).

[39] See 8. U.S.C. § 1151(b)(2)(A)(i) (2018).

[40] See 8. U.S.C. § 1151 (2018).

[41] See 8 C.F.R. §245.1(b)(6) (2018).

[42] Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications, U.S. Citizenship and Immigration Services (July 14, 2008), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdf.

[43] See 8 C.F.R. §245.1(b)(6) (2018).

[44] See 8 C.F.R. §245.1(b)(3) (2018).

[45] See 8 U.S.C. § 1182(a)(9)(b) (2018).

[46] See 8 U.S.C. § 1182(a)(9)(b) (2018).

[47] See 8 U.S.C. § 1101(a)(15) (2018).

[48] See Humanitarian, U.S. Citizenship and Immigration Services https://www.uscis.gov/humanitarian (Last visited Nov. 1, 2019). For additional resources, see Humanitarian Protection, Am. Immigration Council https://www.americanimmigrationcouncil.org/topics/humanitarian-protection (Last visited Nov. 1, 2019).

ARTICLE BY Lauren Watford & the Immigration Practice at Mintz Levin.

For more on DACA/Dreamers, see the National Law Review Immigration law page.

Clinton’s Impeachment Compared to the Trump Proceedings: Conversation with Sol Wisenberg, former Deputy Independent Counsel during the Starr Investigation

With the Trump impeachment proceedings getting ready to start this week in the House of Representatives, we thought it would be interesting to take a look back at the Clinton Impeachment. The catalyst for President Clinton’s impeachment was the Starr Report. Independent Counsel Ken Starr presented to the House of Representatives a case for impeaching President Bill Clinton on 11 grounds, including perjury, obstruction of justice, witness-tampering and abuse of power. The sexual relationship between the president and former White House intern Monica Lewinsky formed the basis of the lying under oath and obstruction of justice charges. The lying under oath charge stemmed from the Clinton v. Jones civil lawsuit, which included President Clinton’s inaccurate grand jury testimony about a sexual relationship with Monica Lewinsky.

Solomon L. Wisenberg played a pivotal role in the Clinton Impeachment as a Deputy Independent Counsel during the Starr investigation. Mr. Wisenberg’s grand jury questioning of President Bill Clinton was submitted by independent counsel Kenneth Starr with his report to the House of Representatives as part of the Clinton impeachment proceedings.

Mr. Wisenberg has more than two decades of experience with complex federal white-collar crime investigations and jury trials and is currently the co-chair of Nelson Mullins White Collar Defense and Government Investigations practice. He is a sought after analyst and routinely appears in a variety of media providing commentary and answering questions on federal white-collar investigations, impeachment, public corruption under the Hobbs Act, bribery and fraud, Foreign Corrupt Practice Act violations and other intricate legal issues.

Mr. Wisenberg was kind enough to take time out of his schedule to talk with the National Law Review on the upcoming Trump impeachment proceedings and how they are similar and different from the Clinton impeachment.

The Starr Report played a central role in the Clinton impeachment proceedings; producing the perjury and obstruction of justice charges stemming from the Clinton v. Jones civil action.

In the Clinton v. Jones sexual harassment lawsuit, Ms. Jones’ attorneys included questions about Monica Lewinsky and President Clinton’s behavior with other women to show a pattern of improper behavior with women by Clinton to bolster Ms. Jones’ sexual harassment claims.

Additionally, Ms. Jones’ attorneys sought to show a pattern concerning President Clinton’s actions in covering up various inappropriate interactions with women.

Do you think the impeachment prosecutors for President Trump will introduce elements from the Mueller report to show a pattern of behavior to bolster any criminal acts and any obstruction of justice case related to the withholding of aid to Ukraine?

Mr. Wisenberg: I think there’s no doubt that they will. I’ve heard some Democratic Congressmen talking about it and it’s very clear that they feel the obstruction portion of the Mueller report has not been given sufficient attention. So I’d be shocked if it does not constitute one of the articles of impeachment.

The Supreme Court in Clinton v. Jones held that a sitting president is subject to civil suits in federal court, this lead to President Clinton being deposed and perjuring himself and being impeached by the House of Representatives, on grounds of perjury to a grand jury and for obstruction of justice.

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If President Clinton was able to be deposed while in office, why are President Trump and other members of his administration, such as Mick Mulvaney, claiming immunity?

Mr. Wisenberg: Trump didn’t ever formally claim immunity, because Mueller never pressed the point. Keep in mind, Clinton vs Jones just said the president is not immune from suits while he is in office. Even President Clinton didn’t take the position that he could never be sued. President Clinton’s position was just that he didn’t have to answer lawsuits brought while he was the president, and the Supreme Court ended up saying yes you do, you don’t have that absolute immunity. But the Court also said that there needs to be respect and accommodations for the responsibilities of the office, for the president’s schedule, time, privacy, all of that kind of stuff.

However, in the Lewinsky criminal investigation where we sent President Clinton a grand jury subpoena after he ignored six of our requests to appear, we ended up withdrawing the subpoena. We did this because President Clinton’s attorney said if you withdraw the subpoena, he’ll sit for grand jury testimony. Clinton’s inquiry involved grand jury testimony, not just a deposition. So the constitutional issue involving the President’s right to defy a grand jury subpoena for testimony alone was never tested there. I think it would’ve been an interesting issue, because Clinton did not want to be in a position where the president is being subpoenaed or responding to a subpoena, and he certainly didn’t want to be in a position of going to federal court to block the Lewinsky Grand Jury’s subpoena.

So that’s how it was worked out, and we don’t know what would have happened if he would have challenged our subpoena in court. There’s actually a case that came out in 1997. It’s the controlling law in the DC Circuit. The Office of Independent Counsel that was investigating Agriculture Secretary Mike Espy wasn’t asking for testimony in that case. In the In Re Sealed Case, 121 F 3d 729 (1997). the issue was asking for documents and it’s actually a fairly high standard to be able to force the president to respond to a grand jury subpoena. I believe it’s quite possible that Mueller didn’t press the point because he might not have won under the test laid out for Mike Espy, even if he was just seeking testimony. Every case is dependent upon the particular facts. And because Mueller already had been given a tremendous amount of relevant information, he may have not wanted to push it, as it’s not at all certain that he would’ve won. So not only would it have been a lengthy process that would have delayed the Mueller investigation, but Mueller may not have won on the issue. It’s not that President Trump was behaving inconsistently with the ruling in Clinton vs Jones. It’s that Mueller never forced Trump to make a choice.

Special Counsel Mueller declined to subpoena President Trump, as Mueller told the House Intelligence Committee that it looked highly unlikely that they would obtain an in-person interview with Trump and because of the perceived need to wrap up the investigation into Russian interference in the 2016 United States elections.

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Do you think Mr. Mueller’s strategy of not forcing President Trump to either testify, fight the subpoena in the courts or defy the subpoena will weaken the prosecutor’s ability to use the Mueller report in the impeachment process?

Mr. Wisenberg: Oh God, no. I mean, not at all. The report is what it is. The obstruction portion of the report (I should say alleged obstruction, because even Mueller doesn’t say that Trump criminally obstructed justice) is what it is. The obstruction portion of the Mueller report is based on witness testimony. I don’t think there’s going to be much dispute about what happened. And apparently now the House of Representatives has the grand jury backup for the Mueller report’s witness testimony. President Trump has questioned some of Don McGahn’s factual statements, but McGahn was hardly alone in detailing the President’s efforts to stymie Mueller.

The dispute would be on the suggestion that the President criminally obstructed justice. I don’t think he did on the known facts, and the only episode that is even a close call on this was when President Trump allegedly asked Don McGahn to sign a document for the White House’s records denying he’d been told to fire Mueller. I think from the Democrats’ perspective they were waiting and waiting and waiting for the Mueller report and it was a dud. The Democrats blamed Bill Barr, I think, unfairly. The Democrats tried to hold testimony on the Mueller report and, it didn’t get anywhere, again, because of all of the claims of executive privilege and related doctrines. Now that they’ve got impeachment authority in Congress the Democrats are in a much stronger position. They can say now, any area of inquiry is allowed under our Constitutional power to conduct an impeachment inquiry.

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Based on President Clinton’s conflicting testimony, Mr. Starr presented a case that President Clinton had committed perjury. Do you think President Trump’s frequent public statements, though not under oath about the Russian interference in the 2016 election and the alleged quid pro quo in the withholding of aid to Ukraine will be used in the impeachment proceedings?

Mr. Wisenberg: The Democrats can use anything they want if they think it is valuable to them. The Democrats might say President Trump’s frequent commentaries can be construed as non-hearsay party admissions under the Federal Rules of Evidence in any proceeding brought against President Trump. Also, where somebody is accused of criminal wrongdoing and says something about the specific accusation that turns out to be false, this can be used against him as a false exculpatory statement. So, I see no reason why they can’t consider anything they want to consider.

To answer your specific questions about President Clinton, President Clinton lied under oath in the Paula Jones civil rights lawsuit deposition thereby obstructing justice. The federal district judge presiding held President Clinton in contempt of court. President Clinton is the only U.S president ever held in contempt by a federal judge. Additionally, President Clinton had his secretary retrieve and remove gifts Monika Lewinsky had in her possession, when the gifts were subpoenaed in the Jones civil suit. President Clinton used a White House employee, his secretary Betty Currie to obstruct justice in a civil rights lawsuit.

There are some people who say private conduct, even if it’s criminal, should never be impeachable and that we should not be concerned with private conduct. And there is some historical support for this position in writings by the framers and stuff like that. But President Clinton did more than that. He used a White House employee in order to hide items under subpoena. That’s textbook obstruction.

xxxx

If President Trump’s impeachment prosecutors are able to demonstrate that alleged withholding of aid to Ukraine is a criminal act, do you think it will be easier to prove intent in an obstruction of justice case?

Mr. Wisenberg: No, I don’t think so. I don’t think that helps them on obstruction of justice unless something new related to the Ukraine business comes out, but all he did was to say it’s a perfect call. Right? I think that if you were to somehow prove that this was a campaign finance violation or, or some kind of a crime, it might be a little bit easier to get a few more votes, but I don’t see anything yet that gets them the votes they need to convict President Trump in the Senate. I understand some people believe that putting the phone call transcript on a separate server was obstruction, but that sounds weak to me.

GOP Senators will point out that President Trump was elected, and we’re a representative democracy. We’re going to hold an election in one year. They will say it’s not right to remove him because of Ukraine. Even if they think, as Senators, that it was a mistake.

I think it is going to take something really dramatic for there to be a shift. Either a dramatic shift in public opinion based on the live testimony or just something new coming out, some new scandal to move the needle on that.

To answer your question, if somebody were to somehow to prove without question that President Trump knew he was violating the law when he made the call, that may be meaningful. And that revelation again moves the needle maybe, but you can’t ignore the politics.

Take a look at the situation with President Clinton. There was no real question in anybody’s mind that he perjured himself and that he obstructed justice, but that didn’t all of a sudden make the Democrats in the Senate vote for removal. I don’t think any of them did. The Democrats during the Clinton impeachment and removal proceedings acted very similarly to how the Republicans are acting now. You can’t ignore the politics.

Many thanks to Mr. Wisenberg for his time and answers to our questions.

ARTICLE BY Eilene Spear of The National Law Review / The National Law Forum LLC

Brexit: Turkeys Voting for Christmas?

Brexit delayed again – now it’s off to the races in a General Election

Despite having finally achieved a Parliamentary majority in favour of a way of delivering Brexit, in the Second Reading of the Withdrawal Agreement Bill on 22^nd October, Prime Minister Boris Johnson decided – in the face of Parliament’s refusal to allow him to put the Bill through very rapidly so as to meet the 31^st October Brexit deadline – to pursue a General Election instead of pushing the Bill through.

After some “after you, Claude” to-ing and fro-ing, the EU agreed to the request to extend the Article 50 deadline of 31^st October which the Prime Minister had been forced by Parliament to send. The EU did so under condition that there should be no re-opening of withdrawal negotiations, no disruption to EU business by the UK (including the UK appointing a member of the new European Commission), and that the UK could leave earlier if the ratification process completed earlier.

A delicate game ensued in Parliament about the basis for a decision to hold the election, with opposition parties wanting to remove the Prime Minister’s discretion over the date of the election, and to make it impossible for him to try again to push the Withdrawal Agreement Bill. On 28^th October Parliament rejected the Prime Minister’s attempt to secure an election on 12^th December. Parliament then decided on 29^th October that the election should be held on 12^th December. The difference between the first 12^th December and the second 12^th December would take too long to explain, and would anyway test the sanity of all but the most extreme political geek.

And so the unhappy child of Theresa May’s disastrous 2017 election fades into the twilight…

The election Bill still needs to go through the House of Lords (unlikely to be problematic) and receive Royal Assent, and the House of Commons needs to tidy up some necessary business. So on current plans Parliament will dissolve on Wednesday 6^th November for MPs to campaign for the General Election on Thursday 12^th December. The British electorate, used to voting at national level every five years, had a General Election in 2015, the Brexit referendum in 2016, a further General Election in 2017, and now a third General Election in 2019 (the Scots also had an independence referendum in 2014).

Was the 2017-2019 Parliament a travesty of democratic accountability, or a powerful example of representative democracy grappling with issues which had split the nation in two through a binary exercise in direct democracy? Historians will judge. It was certainly a tough one for individual MPs, who regularly found themselves objects of extremely hostile, sometimes violent, social media messaging. Parliament certainly seemed to reflect accurately the division in the electorate, which the polls show has not shifted significantly throughout the period since the 52:48 result of the 2016 Brexit referendum.

“Prediction is very difficult, especially if it’s about the future” – Nils Bohr

So what’s going to happen in the 12^th December election? It will be the first December election for almost a century, and the hardest to predict for many decades. Will Boris Johnson scoop the Leave vote across the country, or will Nigel Farage’s Brexit Party damage the Conservatives by arguing that Johnson’s Brexit deal is not really Brexit? Will the clarity of the Liberal Democrats’ Remain position help them and weaken Labour, or will Labour be able to sit on the fence on Brexit and focus the campaign on Tory austerity and public services?

The next six weeks will be exhilarating, confusing and passionate. They will decide the future course of the nation. Nothing more will happen on Brexit until after the election. Whether the election provides a clear way forward will depend on whether a party achieves a clear majority or the election produces another hung Parliament. Watch this space…

ARTICLE BY Matthew Kirk of Squire Patton Boggs (US) LLP.

Read more about Brexit on the Global Law page on the National Law Review.

Going Beyond: When Can Courts Look Past the Record in an APA Review?

Regulated companies need to understand what material courts can consider when they review administrative decisions. The Administrative Procedure Act generally allows courts to consider only the existing administrative record when reviewing agency decision-making to determine whether agency decisions are arbitrary and capricious. But the Supreme Court recently reminded us that this rule is not absolute by looking beyond the record in Dep’t of Commerce v. New York to block an agency decision that it found to be based on a “contrived,” pretextual rationale.

Regulated companies may be able to ask courts to consider information beyond the administrative record if they can show that the agency acted in bad faith or exhibited improper behavior. A company’s ability to present the court with information beyond a record carefully constructed by an agency can be a powerful tool.

The following cases illustrate that a movant may not need to conclusively prove that the agency behaved improperly to convince a court to review evidence beyond the administrative record. But the evidence must form a picture that gives the court reason to believe there was bad faith or improper behavior. Here’s a breakdown of several case examples:

Dep’t of Commerce v. New York Goes Beyond the Record

Dep’t of Commerce v. New York presented the Court with a challenge to Secretary of Commerce Ross’s decision to add a citizenship question to the 2020 census. In defense of his decision, the Secretary presented a record showing that the Department of Justice had asked that the question be added so it could more effectively enforce the Voting Rights Act. But extra-record discovery revealed that the DOJ’s request was not the real reason that Secretary Ross had added the question. Rather, extra-record discovery showed that the Secretary had planned to add the question all along and had, in fact, solicited the request for the question from the DOJ. Viewed in that light, the Supreme Court determined that the Voting Rights Act rationale was “contrived” and affirmed the lower court’s decision to bar the Department of Commerce from asking the question.

Writing for the majority of a fractured Court, the Chief Justice acknowledged that while “[i]t is hardly improper for an agency head to come into office with policy preferences and ideas . . . and work with staff attorneys to substantiate the legal basis for a preferred policy,” the Court “cannot ignore the disconnect between the decision made and the explanation given.” The Court noted that to confine itself to the administrative record and ignore the Secretary’s extra-record actions would be “to exhibit a naiveté from which ordinary citizens are free.”

To understand why this decision is important, observers need to take a deep-dive into the Court’s decision. Why could the courts look beyond the administrative record here? Because the district court invoked—maybe prematurely in this case—an exception to the rule against extra-record discovery from Citizens to Preserve Overton Park, Inc. v. Volpe. This exception gives courts discretion to go beyond the existing administrative record if the party challenging the agency action makes “a strong showing of bad faith or improper behavior” underlying the agency decision.

**When Do Courts Use Overton Park to Look Beyond the Record?**

While every circuit has recognized the Overton Park exception—and most also recognize other, circuit-specific exceptions that allow for a party challenging an agency decision to supplement the record—the overwhelming majority of courts have declined to use Overton Park’s exception to look beyond the administrative record. In his Dep’t of Commerce v. New York dissent, Justice Thomas followed this school of thought. He disagreed that plaintiffs had made a sufficiently “strong showing” of bad faith or improper behavior by Secretary Ross and noted that the Supreme Court “ha[s] never before found Overton Park’s exception satisfied.”

Given the fact that the APA requires courts to defer to agency decision-making, the courts’ reluctance to embrace Overton Park is unsurprising. Nonetheless, some have looked beyond the record.

In Sokaogon Chippewa Cmty. v. Babbitt, for example, the district court allowed the party challenging the agency decision to supplement the record after it made a strong showing of improper behavior behind a decision of the Department of the Interior. There, three Indian tribes had applied to the United States to convert a greyhound racing facility into an off-reservation casino. When the Department denied the application, citing the “strong opposition of the surrounding communities,” the tribes challenged the decision. The tribes argued that the Department’s reason was pretextual and pointed to unexplained procedural delays; suspicious communications between opposition tribes, senators, lobbyists, and White House staff; and a draft report from the Indian Gaming Management Staff, which had recommended that the application be approved.

The court initially limited its review to the record because plaintiffs had not proven improper behavior. But it then reversed course and granted the plaintiffs’ motion for reconsideration, noting that Overton Park’s “strong showing” requirement did not—and, logically, could not—require conclusive evidence of improper behavior. Instead, the court was satisfied that the plaintiff had “suppl[ied] sufficient evidence . . . as to raise suspicions that defy easy explanations.”

Following Babbitt’s lead, the district court in United States v. Sanitary Dist. of Hammond also allowed extra-record discovery, there after the party challenging an EPA decision had made a sufficient showing of bad faith. In that case, an EPA official recused herself from a dispute to avoid the appearance of partiality. But suspicions were later raised when she, without explanation, reinstated herself after receiving poignant, critical questions from her chosen successor’s counsel. The court allowed extra-record discovery to reveal any potential impropriety behind her decisions. The court noted that while it had “not f[ound] that bad faith or improprieties in fact influenced the [decision],” the defendant had made “a ‘strong showing’ that the evidence of record ‘suggests’ that bad faith or improprieties ‘may have influenced the decision maker.’”

Key Takeaways

A court’s decision to go beyond the record—as explained by the lower court in Dep’t of Commerce v. New York—is most often “based on a combination of circumstances that [when] taken together, [are] most exceptional.” Observers may note that the Court’s decision to go beyond the record in Dep’t of Commerce v. New York seems to conflict with last term’s decision in Trump v. Hawaii. But maybe they can be reconciled. There, the state of Hawaii and three U.S. citizens challenged Presidential Proclamation No. 9645—colloquially referred to as the “travel ban”—which placed elevated immigration restrictions on eight countries, six of which were predominantly Muslim. The plaintiffs argued that the President’s extra-record statements showed that the national security justifications behind the ban were, in fact, pretext for the Proclamation’s true animus: religious discrimination. Given the nature of then-Candidate Trump’s public statements, the case seemed to present the Court with the opportunity to consider evidence of pretext that went beyond the record.

But of course Trump v. Hawaii, unlike Dep’t of Commerce v. New York, did not involve any agency decision-making. It instead involved a challenge leveled directly at the Executive itself on a matter squarely within its traditional province: national security. This distinction compelled the Court to defer to the Executive and limited the Court’s consideration of extra-record material. Thus, the Court applied a rational basis review and found that even if the challenging party could demonstrate pretext, the President’s non-religious justifications rationally supported the entry restrictions.

Ultimately, Dep’t of Commerce v. New York reminds us that an administrative record may be permeable under the right circumstances. And although the “substantial showing” bar remains high, perhaps courts will now be more apt to allow extra-record discovery when reviewing agency decision-making. That willingness could enable companies to more effectively challenge agency decisions based on pretextual reasoning—reasoning that would not be reflected in the administrative record.

Article by J. Michael Showalter and James Cromley of Schiff Hardin LLP.

For more on the Administrative Procedure Act see the Administrative & Regulatory page on the National Law Review.

Blocked from Adding Citizenship Question to Census, Administration Moves to Gather Data

President Donald Trump announced that the Administration will not be proceeding with any further census litigation. The 2020 Decennial Census, which is already being printed, will be sent out without a citizenship question. Nevertheless, President Trump does want to obtain statistics on the number of residents in the country who are and are not U.S. citizens. By means of an executive order, he is eliminating “obstacles to data sharing” and asking all government agencies to immediately hand over any and all relevant statistics and numbers to the Commerce Department. The President said that the Commerce Department will use this data, including data from the Social Security Administration and the Department of Homeland Security, to come up with an even more accurate count of citizens, non-citizens, and undocumented individuals than the citizenship question on the census would have yielded. The President indicated that this count will affect an “array of policy decisions” possibly including apportionment.

In his statement, the President made his view clear that people should be proud and glad to declare that they are U.S. citizens. Indeed, USCIS statistics indicate that naturalization applications skyrocketed just prior to the 2016 election – more green card holders want to become U.S. citizens. There are approximately 740,000 pending naturalization applications. In the New York area alone the backlog is anywhere from 12 months to 24 months. Additional evidence of delays is seen in the number of lawsuits that are being filed in federal district courts due to these unreasonable delays. These lawsuits are at a 10-year high.

In what appear to be further attempts to restrict the processes for obtaining U.S. citizenship, the Administration has suggested that birthright citizenship could be limited, created a task force to “denaturalize” U.S. citizens who may have lied (intentionally or non-intentionally) on the citizenship applications, opposed creating a path to citizenship for DACA and TPS recipients, and been denying passports to individuals by questioning the validity of their birth certificates.

We will continue to follow how the new Commerce Department figures will account for all of the non-citizens who since 2015 have been trying become U.S. citizens and have been blocked by new USCIS policies that have created widespread delays.

This article was written by Forrest G. Read IV of Jackson Lewis P.C.

For more on the census & citizenship questions, please see the National Law Review Immigration page.

Kushner’s Bad Week: Losing Clearance, Suspicious Business Activities, and the Looming Russia Investigation

This week at the Trump White House was a cornucopia of news developments including a gun control meeting that quickly went off the rails, news of Trump confidant and stalwart Hope Hicks’s resignation, and Jared Kushner, First Son-in-Law, being stripped of his Security clearance for failure to complete paperwork in a timely manner, quickly followed by disturbing reports of Kushner’s business interests benefiting from his position in the White House and Kushner influence prompting possible backlash from the White House for parties who refused to support the Kushner Companies.

The Democratic National Committee says:

This week very clearly shows why Jared Kushner should lose his job at the White House. Kushner has never been qualified for his role . . . Kushner has repeatedly made critical omissions on his background check forms and has had to make dozens of revisions to his financial disclosure . . . multiple recent stories have further shown that the corruption Kushner brings to the White House is matched only by Trump himself …

Backing the DNC’s assertions, Kushner has amended and changed his financial filings on security documents 39 times, omitting significant financial disclosures.

Kushner’s Undisclosed Meetings with Foreign Nationals on Behalf of Kushner Cos.

The Washington Post reported this week, that in December 2016, Kushner had meetings with the chairman of China’s Anbang insurance company, a Russian banker and a former prime minister of Qatar in the Kushner company’s efforts to get funding for the Kushner company’s $1.2 billion debt. The Washington Post revealed:

“Officials in at least four countries have privately discussed ways they can manipulate Jared Kushner, the president’s son-in-law and senior adviser, by taking advantage of his complex business arrangements, financial difficulties and lack of foreign policy experience, according to current and former U.S. officials familiar with intelligence reports on the matter.”

National Security advisor H.R. McMaster, later learned that Kushner’s contacts with foreign officials were not coordinated through the National Security Council nor did he officially report them.

NBC reported yesterday that special counsel Mueller is investigating if Kushner’s meetings with foreign officials during the presidential transition, impacted White House policy, specifically noting that the White House last year backed an economic blockade of Qatar in the weeks after Qatari officials declined to provide loans to the Kushner Companies.

SEC’s Decision to End an Investigation of Kushner Related to Apollo Loan

The AP is reporting on the SEC’s 2017 decision to end a Kushner Co. loan investigatio n. The SEC investigation was prompted after Apollo Global Management gave the Kushner Cos. a $180 million Real Estate loan. Apollo’s loan to the Kushner Cos. followed several meetings at the White House with Jared Kushner and Apollo Global Management’s founder, reported by the New York Times this week.

Currently, there is no evidence that Kushner’s White House role or anyone else in the Trump administration played a role in the SEC’s decision to drop the Apollo inquiry. ‘I suppose the best case for Kushner is that this looks absolutely terrible,’ said Rob Weissman, president of Public Citizen.

‘Without presuming that there is any kind of quid pro quo … there are a lot of ways that the fact of Apollo’s engagement with Kushner and the Kushner businesses in a public and private context might cast a shadow over what the SEC is doing and influence consciously or unconsciously how the agency acted.’

In its 2018 annual report, Apollo disclosed that the SEC had halted its inquiry into the firm’s financial reporting and how Apollo reported the results of its private equity funds.

New Revelations about Citibank Loan to Kushner Co. after White House Visit

Shortly after Citigroup’s CEO Michael Corbat visited Kushner’s White House office, Citigroup made a $325 million loan to the Kushner Companies, the New York Times reported this week. “This is exactly why senior government officials…don’t maintain any active outside business interests,” per Don Fox, former Acting Director and General Counsel of the Office of Government Ethics during the Obama administration. “The appearance of conflicts of interests is simply too great.”

In spite of White House ethics rules, Kushner continues to own “as much as $761 million” of the Kushner Companies according to a New York Times estimate and the Times also notes that while Kushner is the point man for Middle East policy “his family company continues to do deals with Israeli investors.”

Separate Ongoing Federal and State Investigations of Kushner

Separately from the Mueller probe, Kushner is being investigated by federal prosecutors in Brooklyn for the Eastern District of New York. Investigators have requested records related to a $285 million loan Deutsche Bank gave Jared Kushner’s family real estate company in October 2016, one month before election day. Kushner was the Kushner Companies’ CEO until January 2017 and still owns part of the Kushner Cos. after selling off part of his stake. The Kushner Companies have a long-term relationship with Deutsche Bank according to financial disclosure forms.

The New York State Department of Financial Services asked Deutsche Bank, Signature Bank and New York Community Bank for information about their relationships with Jared Kushner and his finances, The Wall Street Journal and ABC News reported this week. Responses to the New York State inquiry are due March 5.

Abbe Lowell, Kushner’s attorney, says Kushner has behaved “appropriately” in meetings with foreign officials and that he “has taken no part of any business, loans or projects with or for” Kushner Companies since joining the White House.” In a statement provided to NPR, Lowell says, “Mr. Kushner has done more than what is expected of him in this [Security clearance] process.”

This post was written by Jennifer Schaller and Eilene Spear of the National Law Forum, LLC.

Sessions, Oprah, Obama but not the Russians in Trump’s On-Going Twitter War

On February 20, 2018, DNC deputy communications director Adrienne Watson responded to a recent series of tweets by President Trump. Last week’s Russian election meddling indictments renewed the debate about whether Obama did enough to counter Russian interference when he was in office.

After continued criticism about how he is handling Russia’s meddling in the 2016 Election, President Trump took to Twitter. Watson details Trump’s tweets from his attacks on Oprah, down to the Pennsylvania redistricting map. Trump’s tweets from last week and even today, included no mention of prevention of future Russian attacks on US elections, he did not condemn the Kremlin’s attack of the 2016-Presidential and he adamantly denies that the Mueller investigation will or has uncovered any unsavory connections between him and the Russians.

Why Doesn’t Sessions Go After Obama for the Russian Meddling?

On February 21^st Trump lashed out at Attorney General Jeff Sessions, asking why he isn’t investigating the Obama-administration for being weak in the face of Russian aggression.

Pressuring Sessions to investigate Obama’s knowledge of Russian involvement is somewhat awkward because Session’s involvement with Russian government officials was investigated by the Department of Justice in March 2017. Sessions stated during his confirmation hearing in January 2017, that he “did not have communications with the Russians.” It was later determined by the Justice Department that he met with Russian ambassador, Sergey I. Kislyak twice in the preceding 12 months.

Sessions clarified the apparent disharmony between his sworn confirmation testimony and the two meetings with the Russian ambassador by stating that he “never met with any Russian officials to discuss issues of the campaign.”

The President seemed to forget that Sessions recused himself from the Russian investigation in June 2017. “I recused myself not because of any asserted wrongdoing on my part during the campaign,” Sessions stated. “But because a Department of Justice regulation, 28 CFR 45.2, required it.”

What did the Obama Administration Know and When?

From the Mueller indictment, we now know that in 2015 the Russians purchased advertisements on social-media sites designed to influence public opinion, but it remains unclear whether the F.B.I. or any other intelligence agencies were aware of the purchases and other election interferences in real time.

By the summer of 2016, U.S. intelligence agencies had collected a “critical mass” of data about Russian efforts to intervene in the election. This prompted John Brennan, the then director of the C.I.A., to brief Obama and other top advisers in August about the threat. But President Obama and his advisors didn’t learn of the extent of the Russian inference, including the use of fake personas online, or that the Russians were exploiting Facebook and other social-media sites until after the 2016 elections former administration officials said. “We knew some things, but didn’t have all the pieces,” a senior official said, referring to Obama’s final weeks in office.

Who is Tougher on Russia? It Depends on Who You Ask.

From the beginning, President Trump has vehemently denied that his campaign and administration had any knowledge of Russian meddling in the election. As detailed in his tweets, he also continues to state that the current administration has been “tougher on Russia than Obama.”

Although the President claims the Obama administration didn’t take proper actions against Russia, Obama did make strides towards imposing sanctions against Russia, with a major retaliatory measures coming after the 2016 Election, when the Obama Administration expelled 35 Russian diplomats accused of interfering with the Presidential Election, sanctioning three companies and also closing two Russian diplomatic offices in the United States.

Trump has yet to impose sanctions against the Russians, after the overwhelming passage of the Countering America’s Adversaries Through Sanctions Act by Congress last year. The sanctions were to take effect on January 29th. The law gives the administration the power to target powerful Russian elites and companies and countries that do business with blacklisted Russian military and intelligence entities. The administration also failed to meet a deadline to identify Russian entities and individuals which would be added to a sanctions list. Instead, the Administration published a list of 96 known prominent Russian Oligarchs, as noted on Twitter by Tom ParfittMoscow Correspondent at The London Times.

Treasury Secretary Steven Mnuchin said February 14 that the Trump administration is “actively working” on imposing sanctions on Russia over its interference in the 2016 US election. And on February 20^th, White House Press Secretary Sarah Sanders stated that Donald Trump “has done a number of things to put pressure on Russia and be tough on Russia.” We’ll have to see what’s coming and maybe we’ll find out exactly what Trump has done to put pressure on Russia, monitor Twitter.

This post was written by Alessandra de Faria and Jennifer Schaller of the National Law Forum.

Read more coverage of Trump’s tweets and other political news at the Election page of the National Law Review.

Mueller Indictment: Russians Manipulated Social Media, Advertising and Political Rallies to Impact 2016 Election

Robert Mueller’s office released 37 page indictment of 13 Russian individuals and three Russian organizations for interference in the 2016 Presidential election. According to Mueller’s office, a Russian organization based in St. Petersburg known as the Internet Research Agency used fake American social media profiles sometimes posing as political activists to wage “information warfare,” interfering with and manipulating the US election process.

According to today’s indictment, these activities began as early as 2014, with certain defendants traveling to the United States and obtaining VPN infrastructure, to obscure the origins of their activities so various accounts would appear to be based within the United States. Alleged activities included purchasing online advertisements–and stealing identities to do so. Moving offline the defendants and their co-conspirators solicited individuals to disparage or promote candidates, including hiring a woman to wear a costume portraying Hillary Clinton in a prison uniform at various political events, all while hiding their Russian identities.

These activities were done without proper regulatory disclosure and without registering as foreign entities. Deputy Attorney General, Rod Rosenstein, who announced the indictment stated: “The defendants allegedly conducted what they called information warfare against the United States with the stated goal of spreading distrust towards the candidates and the political system in general.”

DNC Chair Tom Perez released a statement, saying, “This indictment gives us a chilling look at just how sophisticated, well-funded and wide-ranging this attack on our democracy really was. It should send chills up the spine of every American.” Perez points to the indictment as proof that the 2016 election was marred by Russian interference; including hacking into the DNC by Russian operatives as well as hacking into voter registration systems across the country, along with the now ubiquitous understanding of the Russian presence on social media and their attempts to foster disagreement and manufacture intense contention among already disagreeing Americans online.

Additionally, Perez points to Trump’s failure to act on the information presented by Mueller, referencing Trump’s attempts to diminish and discredit the Mueller investigation and his failure to direct intelligence officials to take action to prevent future attacks. Perez:

“President Trump continues to deny these facts. And Republican in Congress continues to spread falsehoods to tarnish the very investigation that is beginning to hold Russia accountable for its actions in 2016. If the president won’t uphold the oath he took to protect our nation’s security, he has no place in the Oval Office. And if Republican leaders in Congress can’t put the interests of our democracy before politics, they have no place in Congress.”

On the other side of the aisle, Kayleigh McEnany, an RNC spokesperson read the indictment to indicate that Russian interference was two-sided, with President-elect Trump also in the Russian cross-hairs. She points specifically to rallies funded by Russian Roubles on November 12th and 19th of 2016, in the days following the election. In an appearance on Fox News, she indicated that it was the Democrats who had deceived the country by emphasizing the Russian election interference. She said, “Democrats deceived this country…and they were caught today.”

In a tweet today, president Trump stated that there was a lack of allegations in today’s indictment of any impact on the 2016 presidential election and highlighted his campaign’s lack of involvement.

However, a holistic reading of the indictment supports claims that Russian interference did appear to impact the 2016 election. The indictment offers a timeline of the defendant’s conspiracy that had a clear purpose: “impairing, obstructing and defeating the lawful governmental functions of the United States by dishonest means in order to enable the Defendants to interfere with U.S. political and electoral processes, including the 2016 U.S. Presidential election.”

You can read the indictment here.

For more on Election Legal issues, check out our Legislative, Election, Lobbying, Campaign Finance and Voting Law News.

This post was written by Eilene Spear of The National Law Review/The National Law Forum LLC.

Background Trump v. Vance

Reactions to SCOTUS Decision from Jay Sekulow and Cyrus Vance, Jr.

Other Reactions to the Supreme Court’s Trump v. Vance Ruling

Background for the Supreme Court’s Ruling in Trump v. Mazars

Reactions to Trump v. Mazars

Looking Ahead to What’s Next

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DACA: Benefits and Limitations

DACA is Unique Only in its Limited Scope

Recent Changes to the DACA Program

Options for the Future

Immigrant Visa Petitions.

Non-Immigrant Visa Petitions.

Humanitarian Petitions.

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Mr. Wisenberg was kind enough to take time out of his schedule to talk with the National Law Review on the upcoming Trump impeachment proceedings and how they are similar and different from the Clinton impeachment.

Do you think the impeachment prosecutors for President Trump will introduce elements from the Mueller report to show a pattern of behavior to bolster any criminal acts and any obstruction of justice case related to the withholding of aid to Ukraine?

If President Clinton was able to be deposed while in office, why are President Trump and other members of his administration, such as Mick Mulvaney, claiming immunity?

Do you think Mr. Mueller’s strategy of not forcing President Trump to either testify, fight the subpoena in the courts or defy the subpoena will weaken the prosecutor’s ability to use the Mueller report in the impeachment process?

If President Trump’s impeachment prosecutors are able to demonstrate that alleged withholding of aid to Ukraine is a criminal act, do you think it will be easier to prove intent in an obstruction of justice case?

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And so the unhappy child of Theresa May’s disastrous 2017 election fades into the twilight…

“Prediction is very difficult, especially if it’s about the future” – Nils Bohr

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Dep’t of Commerce v. New York Goes Beyond the Record

When Do Courts Use Overton Park to Look Beyond the Record?

Key Takeaways

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The Democratic National Committee says:

Kushner’s Undisclosed Meetings with Foreign Nationals on Behalf of Kushner Cos.

SEC’s Decision to End an Investigation of Kushner Related to Apollo Loan

New Revelations about Citibank Loan to Kushner Co. after White House Visit

Separate Ongoing Federal and State Investigations of Kushner

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Why Doesn’t Sessions Go After Obama for the Russian Meddling?

What did the Obama Administration Know and When?

Who is Tougher on Russia? It Depends on Who You Ask.

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**Other Reactions to the Supreme Court’s Trump v. Vance Ruling**

**When Do Courts Use Overton Park to Look Beyond the Record?**