Thursday, February 2, 2017

No. 201: Donald Trump and the Constitutional Crisis of 2017

Donald Trump, on the campaign trail, repeatedly promised to shake things up. In the process of honoring that promise, he has plunged our nation into a grave constitutional crisis.

The Executive Order and the Lawsuit
On Friday, January 27, one week after his inauguration, President Trump signed an executive order relating to immigrants and refugees. The next day, the American Civil Liberties Union (ACLU) and others filed a class action lawsuit against Trump seeking an emergency stay to block implementation of the executive order. There have been other similar cases filed in federal courts around the country. (See Darweesh v. Trump, U.S. District Court, Eastern District of New York, Case No. 1:17-cv-480.)

The Hearing
The case was assigned initially to U.S. District Judge Ann M. Donnelly. President Obama nominated her in December 2014. The Senate confirmed her in October 2015.

On Saturday night, January 28, Judge Donnelly held a short hearing. In attendance, in addition to ACLU attorneys, was U.S. Attorney Robert Capers of the Eastern District of New York, but he did not participate. That task was assigned to Assistant U.S. Attorney Susan Riley. Also participating, by telephone, was Gisele Westwater of the Office of Immigration Litigation in the U.S. Department of Justice.

By the time the hearing began, the two named plaintiffs in the class action lawsuit had been released from detention. After the introductions, the following exchange occurred:
THE COURT: So both have been released. Let me just ask you, are you opposing the application for a stay?
MS. RILEY: Well, we believe it's moot, your Honor. Both of the named plaintiffs have been released and there is no need for the issuance of a stay.
THE COURT: What about all the other people in the class? Just because, I just want to be clear that I have the class members here. The petitioners are asking for certification of a class that consists of all individuals with refugee applications, approved by U.S. Citizenship and Immigration Services, as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States but who have been or will be denied entry to the United States on the basis of the January 27, 2017 executive order. So, I am assuming that there are going to be more people that this executive order has an impact on, is that correct?
MS. RILEY: Yes, your Honor.
Subsequent Developments
Judge Donnelly issued the stay immediately after the hearing. Shortly thereafter, the case was reassigned to Senior U.S. District Judge Carol Bagley Amon. President George H. W. Bush nominated her in May 1990 and the Senate confirmed her in August 1990. She served as Chief Judge from 2011 to 2016. She assumed senior status in November 2016.

On Monday, January 30, Acting U.S. Attorney General Sally Yates circulated a letter instructing the Department of Justice not to defend the constitutionality of the executive order. That night, Trump fired her. I do not know what impact, if any, the firing of Yates will have on the confirmation process for U.S. Senator Jeff Sessions, who Trump has nominated to be the U.S. Attorney General.

Trump replaced Yates with Dana Boente, the U.S. Attorney for the Eastern District of Virginia. Reportedly he has already instructed the Department of Justice to defend the constitutionality of the executive order, although there can be no assurance the Department will be successful in its defense of the executive order.

The "Saturday Night Massacre"
Many believe that the "Saturday Night Massacre" on October 20, 1973 was the gravest constitutional threat since the Civil War. President Richard Nixon had ordered U.S. Attorney General Elliot Richardson to fire Watergate Special Prosecutor Archibald Cox and shut down Cox's office. Instead of carrying out the order, Richardson resigned. Nixon then ordered Deputy U.S. Attorney General William Ruckelshaus to fire Cox and shut down Cox's office. Ruckelshaus refused to carry out the order, and Nixon fired him. Nixon then ordered Solicitor General Robert Bork to fire Cox and shut down Cox's office, and Bork complied with the order. Cox's reported comment at the time was succinct: "Whether we shall continue to be a government of laws and not of men is now for Congress and ultimately the American people [to decide]."

Articles of Impeachment
Immediately after the events of October 20, 1973, members of the U.S. House of Representatives began discussing the possibility of introducing articles of impeachment. Nixon later was impeached by the House, but he resigned before the vote in the Senate trial. Subsequently President Gerald Ford pardoned him.

The events of the last few days have escalated into the gravest constitutional threat to our nation since that frightening weekend in 1973. I consider it likely that articles of impeachment directed at Trump are now a topic of private discussions in the U.S. House of Representatives.

Available Material
I am offering a complimentary 23-page PDF containing the transcript of the hearing conducted by Judge Donnelly. Email and ask for the transcript of the January 28 hearing in the Darweesh/Trump case.