executive power

William C. Banks Discusses Giuliani’s “Truth” Comments on Bloomberg Law

Giuliani “Truth” Comments Put Trump Interview in Doubt

(Bloomberg Law | Aug. 20, 2018) William Banks, a professor at Syracuse University Law School, discusses recent comments by President Trump’s lead attorney, Rudy Giuliani, who is casting new doubt on an interview between the President and special counsel Robert Mueller. Plus, Kevin Whitelaw, Bloomberg News deputy managing editor, discusses the bank and tax fraud trial of Paul Manafort, which is now in its third day as jurors deliberate on the eighteen counts being brought against President Trump’s former campaign chairman. They speak with Bloomberg’s Peter Barnes and June Grasso.

https://www.bloomberg.com/news/audio/2018-08-20/giuliani-truth-comments-put-trump-interview-in-doubt-audio

Posse Comitatus? William C. Banks Explains What the US Military Can & Can’t Do on the US-Mexican Border

New details on Trump’s troop deployments to the Mexican border

(Military Times | April 4, 2018) President Donald Trump is ordering U.S. troops to the southern U.S. border, but the move does not appear to be as unusual as the White House first billed it this week.

Guardsmen would not have the authority to participate in law enforcement, such as preventing an illegal crossing.
The Pentagon and White House on Wednesday walked back President Donald Trump promise to handle border security “militarily,” saying the proposed moves will be restricted to National Guard personnel and be similar to past operations in Southern states …

… If the Guard is deployed as it has been in the past, there would be little those troops could do to stop crime along the border, said William Banks, author of “Soldiers on the Home Front: The Domestic Role of the American Military” and director at the Institute for National Security and Counterterrorism at Syracuse University’s College of Law.

The Posse Comitatus Act prevents the federal government from using federal troops to conduct local law enforcement on U.S. soil. Banks called it the backbone of colonists’ grievances when the United States declared independence from England.

“The phrase is known by every Private 1st Class in the U.S. military,” Banks said.

It’s also why National Guard forces are under state control, Banks said. The president could federalize the National Guard in an extreme situation, such as when Bush requested that the Guard forces responding to Hurricane Katrina be placed under federal control.

But even then, guardsmen would not have the authority to participate in law enforcement, such as preventing an illegal crossing or conducting a drug interdiction, he said.

There are exceptions, Banks said. Title 32 of the Code of Federal Regulations, section 185.4 provides National Guard troops “immediate response authority” — the ability to defend themselves if they are under immediate threat.

There is also a broader, short-term “emergency authority,” which allows the forces to take control “in extraordinary emergency circumstances where prior authorization by the president is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances” …

Read the whole story here.

Pentagon hustles to jump in line with Trump’s border directive

(AFP | April 4, 2018) Pentagon planners scrambled Wednesday to find ways to support President Donald Trump’s surprise edict that he would send “the military” to guard America’s southern border.

“The president would need a legal authorization to carry out that mission. I doubt that he could get it.”
The commander-in-chief’s seemingly off-the-cuff directive blindsided officials Tuesday, when Trump said the military would guard the frontier until “we can have a wall and proper security.”

It took hours for the White House to clarify that Trump’s plan involved mobilizing the National Guard, and not active-duty troops, but Defense Department officials kept looking for other ways to bolster border security …

… Syracuse University professor William Banks, who has written a book about the domestic role of the American military, said the Pentagon might find it simplest to offer support other than regular troops, such as logistical or intelligence support to the civilian agencies on the border.

“It would be extraordinary to have so-called boots on the ground involved in enforcing (immigration) laws,” Banks told AFP.

“The president would need a legal authorization to carry out that mission. I doubt that he could get it.” …

Read the whole story here.

 

Recusal & Accusal: Bloomberg Law Examines Trump’s Criticism of the Attorney General With William C. Banks

Sessions on Hot Seat as Russia Investigation Goes On

(Bloomberg Law | July 26, 2017)  Stephen Gillers, a professor at NYU Law School, and William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University of Law, discuss the latest news in special counsel Robert Mueller’s investigation into Russian interference in the 2016 election. They also discuss President Trump’s changing positions on attorney general Jeff Sessions, and whether or not he will be able to keep his job. They speak with June Grasso and Michael Best on Bloomberg Radio’s “Bloomberg Law.”

“Not Much of a Legal Explanation”: William C. Banks Speaks to Bloomberg About Syrian Airstrikes

Trump Syria Strikes Could Violate UN Laws, Constitution

(Bloomberg Radio | April 7, 2017) Michael Glennon, a professor at the Fletcher School at Tufts University, and William Banks, Director or the Institute for National Security and Counterterrorism at Syracuse University Law School, discuss the constitutionality of President Trump’s attacks on a Syrian airbase, after Syrian forces used chemical weapons in an attack earlier in the week. They speak with Greg Stohr and Michael Best on Bloomberg Radio’s “Bloomberg Law.”

“Feigned” Surprise: William C. Snyder Discusses US Attorneys’ Dismissals with Sinclair

‘You’re fired’: Experts confirm Trump’s dismissal of 46 U.S. attorneys was totally normal

(Sinclair Broadcasting Group | March 13, 2017) Immediate outrage over any action taken by President Donald Trump has become the new normal, so it wasn’t a surprise to see a wave of criticism follow the administration’s call for the resignations of the remaining 46 U.S. attorneys appointed by Barack Obama.

Syracuse University law professor and former assistant U.S. attorney William C. Snyder made clear that all United States attorneys are presidential appointees who are typically replaced at the change of administration. “Any surprise at that is feigned.”

Within President Trump’s first month in office, 47 of the 93 U.S. attorneys offered their resignation. They were political appointees under Barack Obama and most if not all recognized the fact that after January 20, their days under the new administration were numbered. On Friday, Attorney General Jeff Sessions delivered the message for the remaining attorneys to immediately step down from their posts.

This kind of house-cleaning at the Department of Justice is entirely typical for a new administration, even though different presidents have approached the matter in different ways. On Monday, White House press secretary Sean Spicer characterized the transition, saying it is “standard operating procedure for a new administration around this time to ask for the resignation of all the U.S. attorneys” …

… Syracuse University law professor and former assistant U.S. attorney William C. Snyder made clear that all United States attorneys are presidential appointees who are typically replaced at the change of administration. “Any surprise at that is feigned.” The way that process is done, however, differs depending on the administration …

… Bill Clinton was a different story. He broke with tradition in an even more dramatic way than President Trump, firing all 93 U.S. attorneys in one day. In March 1993, Clinton’s Attorney General, Janet Reno penned a similar letter to the one Sessions sent out on Friday calling for every attorney to submit his or her resignation.

“I remember it well,” said Snyder, who was serving as an assistant U.S. attorney at the time. “I was with the person who was named Acting U.S. Attorney in the District of Columbia that afternoon, and he was completely shocked and surprised to have been named. He had received no contact from anyone about that, prior to the call from the White House advising that he was named Acting U.S. Attorney.”

The man he was scheduled to replace, U.S. Attorney Jay B. Stephens, challenged the order to resign. The perception at the time was that his dismissal was politically motivated and intended to stop his ongoing investigation of a Clinton ally in Congress for financial crimes. Stephens, like Bharara, was ultimately fired and the scandal received ample press coverage at the time.

“The Clinton action in 1993 was viewed with outrage as a departure from the norm,” Snyder explained …

To read the complete story, click here.

How to Appoint a Special Prosector: William C. Banks Helps Business Insider With an Explainer

Here’s how a special prosecutor investigating Trump and Russia would get appointed

After revelations Wednesday that Attorney General Jeff Sessions had two conversations with Russia’s ambassador to the US during the 2016 campaign, lawmakers renewed calls for a special prosecutor to investigate ties between Trump associates and Russian operatives.

“A ‘special counsel’ is a modern day term for a ‘special prosecutor,’ according to Banks, and any investigation would likely use the term ‘special counsel.'”
House Oversight Committee Chair Rep. Jason Chaffetz, a Republican from Utah, tweeted Thursday morning “AG Sessions should clarify his testimony and recuse himself.”

Democratic senators have called repeatedly for a special prosecutor, more often called an independent or special counsel, to be appointed.

But what exactly is a special prosecutor, how does he or she get appointed, and what happens next? We broke it down.

Who appoints a special prosecutor?

A special counsel could be appointed by either Sessions himself or by Congress to investigate potential ties between Trump’s inner circle and Russia, said Professor William Banks, the founding director of the Institute for National Security and Counterterrorism at Syracuse University.

A “special counsel” is a modern day term for a “special prosecutor,” according to Banks, and any investigation would likely use the term “special counsel.” The term “special prosecutor” was used up through the 1980s, after which the laws around special prosecutors expired and were not renewed, therefore retiring the term.

Banks said there may be pressure on Sessions not to appoint a special counsel, given that he was appointed by Trump. ” We would hope [Sessions] would exercise independent judgment about the efficacy of having a special counsel,” Banks told Business Insider.

Democratic lawmakers, led by Senate Minority Leader Chuck Schumer, have requested Sessions recuse himself from any investigations multiple times, renewing the call on Thursday following news about Sessions’ meeting with the Russian ambassador. (After the latest revelations, Schumer said he should resign.) House Majority Leader Kevin McCarthy said on Thursday that “it would be easier” if Sessions recused himself …

To read the full article, click here.

 

Gorsuch: A Justice Concerned with the Separation of Powers is the Right Man at the Right Time

By Tara Helfman

On the evening of January 31, 2017, the steps of the Supreme Court resembled a frantic game of Mad Libs. Clusters of protestors had gathered in front of the high court to await President Trump’s nomination of a successor to the vacancy left by the passing of Justice Antonin Scalia almost one year earlier. Bundled against the cold, they held fill-in-the-blank signs that spoke more eloquently to the politicization of the nomination process than any stem-winder ever could:

“OPPOSE ________”
“Lost in this political arms race is the judicial record of a man whose entire judicial philosophy is predicated on a profound commitment to the separation of powers.”

But that night, a president who had won office in part by promising Americans the best of everything, from the “best wall” on the border with Mexico to the “best deals” with our trading partners, delivered on one of his campaign promises. “When Justice Scalia passed away suddenly last February,” President Trump announced, “I made a promise to the American people: If I were elected president, I would find the very best judge in the country for the Supreme Court.” The hyperbole is excusable: Neil Gorsuch is certainly one of the best jurists.

His educational background is impeccable: a B.A. from Columbia, a J.D. from Harvard, and a D.Phil. from Oxford, where he was a British Marshall Scholar. His professional background is unimpeachable: clerkships on the D.C. Circuit and the United States Supreme Court, years in private practice, and a stint at the Department of Justice as deputy associate attorney general. And for the last 10 years, Gorsuch has served on the Tenth Circuit Court of Appeals, where he has earned a reputation for uncompromising textualism, rigorous originalism, and lucid, engaging judicial opinions.

None of this mattered to the Sharpie-wielding protestors on the steps of the Supreme Court, who finally had the proper noun they needed to finish their posters. Nor does it seem to matter to the Democratic leadership in the Senate. The fact is that, whoever the nominee and whatever his credentials, the battle lines in the struggle over Scalia’s successor had been drawn long before the nation ever heard the name Neil Gorsuch. They had been drawn almost a year ago, when Senate Republicans refused to give Judge Merrick Garland, President Obama’s nominee to the vacancy, a hearing.

Article II of the Constitution vests in the president the sole power to nominate justices of the Supreme Court, but it vests in the Senate the power to confirm those nominees. When President Obama put Garland’s name forward in a tumultuous election year, Senate Republicans argued that the nomination was more properly left to the next president, whoever that might be. It was a gamble: Denying Judge Garland a hearing might have meant trading a moderate Obama nominee for an activist Clinton nominee. Candidate Trump upped the ante by releasing a list of 21 names from which he pledged to select a Supreme Court nominee.

Indeed, until the late hours of November 8, it seemed that the Republican Senate had overplayed its hand. But when Trump swept the Rust Belt table, Democrats branded the gambit nothing short of grand larceny, the “theft” of a Supreme Court seat that rightly belonged to President Obama’s nominee. To be sure, the Constitution does not require the Senate to give a hearing to every Supreme Court nominee, but why let reality stand in the way of rhetoric? Enter Judge Gorsuch, who is supremely qualified for the job, but whom Senate Democrats are effectively accusing of fencing stolen goods.

That opponents of the Gorsuch nomination have adopted #rememberMerrickGarland as their battle cry has less to do with the comparative merits of the nominees than it does with the procedural corner into which Senate Democrats have painted themselves. In 2013, under the leadership of Harry Reid, Senate Democrats changed the procedure for ending the filibuster of presidential nominees for executive and judicial positions from a super-majority of 60 votes to a simple majority of 51. At the time, some Democrats, including now–Senate Minority Leader Chuck Schumer, resisted the rule change on the ground that it would annihilate any remaining incentives for bipartisan compromise on nominees. They were right: The “nuclear option,” as the rule change was called, has all but pitted the parties against each other in a zero-sum competition over presidential nominations.

Supreme Court nominees were exempted from the 2013 rule so, for the time being, Gorsuch will still need a 60-vote majority to agree to end debate on his nomination (the filibuster prevents the cloture of such debate). At that point, assuming the point is reached, he can be confirmed by what is likely to be a simple majority somewhere in the 50s. Now Senator Schumer is leading the charge in the Senate to resist confirming Gorsuch, citing the “unprecedented strain on the Constitution” unleashed by the Trump administration. In an op-ed in Politico, Schumer explained his party’s position: “[The President’s] actions show a lack of respect for the separation of powers—and that’s why Senate Democrats will do everything we can to make sure that the next Supreme Court justice will be an independent check on an out-of-control executive.” For his part, Trump has urged Senate Republicans to push the button and extend the nuclear option to high-court nominees.

Lost in this political arms race is the judicial record of a man whose entire judicial philosophy is predicated on a profound commitment to the separation of powers. Gorsuch’s understanding of this doctrine is not, as Senate Democrats are deploying the phrase, tantamount to wholesale judicial opposition to the Trump agenda. Rather, to Judge Gorsuch, the separation of powers is the very bedrock of political and individual liberty in the United States, the very genius of the American Constitution …

To read the full article, click below …

Patriotic Gorsuch

INSCT Affiliated Faculty Member Tara Helfman is an Associate Professor at Syracuse Law and an expert in international law, constitutional law, and the law of the sea.

SU Panel of Experts to Discuss President Trump’s Immigration Executive Order, Feb. 24, 2017

Action by President Donald J. Trump on immigration policy has been swift. Just a week after his inauguration, Trump issued an executive order (EO) temporarily halting travel from seven Muslim-majority countries. It was immediately met with popular protests, scholarly analysis, and eventually judicial review in the forming of a temporary restraining order (TRO) upheld by the US Court of Appeals for the Ninth Circuit.

“I worry the damage is already done,” says Ken Harper. “I know that some SU departments are seeing a decrease in student and faculty interest.”

Critics contend the Jan. 27 EO wrongly suspended travel for all immigrant and non-immigrant visa holders from the seven countries, including those holding resident alien, student, and business travel visas. The TRO lifted some of these restrictions, but a chilling effect on business and educational travel—including to and from Syracuse University—has been reported.

Trump’s immigration policy continues to evolve rapidly. The president, after resolving to push the original EO through the courts, now appears to be preparing a new executive order; the Department of Homeland Security has issued “guidance memos” that outline plans for “aggressive enforcement of immigration laws”; and confusion about how to implement the original EO continues.

For those confused by Trump’s immigration EO; interested in the legal, social, and political ramifications of Trump’s immigration policies; or even affected by the original “travel ban,” the International Law Society will host an interdisciplinary roundtable on Friday, Feb. 24, 2017, from noon to 2 p.m. in the Empire Lecture Hall, 440 Dineen Hall, SU College of Law.

Speaking at “President Donald J. Trump’s Immigration Order & Travel Ban” will be SU experts from the fields of political science, Middle East studies, immigration law, international law, human rights, and public affairs: Mehrzad Boroujerdi, Chair, Department of Political Science, Maxwell School; Ken Harper, Director, Newhouse Center for Global Engagement; Gary Kelder, Professor, SU Law; Andrew Kim, Associate Professor, SU Law; Stephen Pike, Assistant Professor, Newhouse School; and Corri Zoli, Director of Research, Institute for National Security and Counterterrorism.

SU Law LL.M. students Kseniia Guliaeva and Amanda Freire de Almeida developed the idea for the panel after hearing from friends and colleagues in the wake of the Jan. 27 EO. “Many of us know people personally affected by the EO,” says Guliaeva, a Fulbright scholar from Krasnoyarsk in central Russia. “They have a lot of questions about what is happening, and they pushed us to organize this event.”

Freire de Almeida, from Belém, Brasil, says she has friends from Iran and other countries listed in the EO, some of whom are now reluctant to leave the US to visit family. “I believe that the travel ban has been very chaotic, but I believe that justice will prevail,” she says. When setting up the panel, she and Guliaeva wanted to ensure that many viewpoints would be heard, not just legal. “I hope the discussion will help the audience respect a diversity of views. When critiquing the EO, we can’t just rely on one perspective, we must open our minds in order to reach a common sense opinion.”

Panelist Mehrzad Boroujerdi says he also knows of SU students who aren’t travelling abroad and others reconsidering their decisions to attend the University. The panel, he hopes, will give students and others a more “holistic” view of issues surrounding immigration and Trump’s “travel ban,” although he is skeptical that even a revised order will calm the waters. “The EO was an ill-advised and draconian measure,” he says. “Re-writes will be tried, but if Trump insists on some of the more radical aspects, then protracted legal battles will ensue. Even if it is presented in a revised manner, it will have a chilling effect on research and studies at SU.”

“I worry the damage is already done,” says Ken Harper, another panelist. “I know that some SU departments are seeing a decrease in student and faculty interest.” Harper, who works on international student projects, says he is concerned about how new immigration policies will affect SU’s international partnerships. “What better way to cut higher education institutions off at the knees than push international students away. We are in uncharted territory with this administration’s immigration actions.”

“The Jan. 27 EO came at a time of crisis in international affairs over immigration and refugees, a crisis that is testing whether norms and assumptions are sustainable,” say panelist Corri Zoli, putting the US immigration debate into its geopolitical context. “The Office of the United Nations High Commissioner for Refugees estimates that there’s an unprecedented 65 million forcibly displaced people on the move today, including more than 21 million refugees, more than half of whom are children. Many are fleeing conflict zones and rising ethnic and religious persecution in the Middle East and North Africa, while others are escaping from unsustainable economic and political conditions.”

As a young lawyer interested in a career in international law and human rights, Freire de Almeida believes that the strengths of American jurisprudence and separation of powers will balance the president’s executive powers in this case. “The US has a strong judicial system,” she says, “and you just can’t rely on presidential orders to create law.” Guliaeva, however, declined to predict what path Trump’s immigration policies will follow. “I will be able to answer that question with more authority after attending the panel discussion on Friday!” she says.

William Banks to Present to ABA on “Soldiers on the Home Front”

William C. Banks, Interim Dean of SU College of Law and Director of INSCT, will present “Soldiers on the Home Front: The Domestic Role of the American Military” to members of the American Bar Association Standing Committee on Law and National Security, at the Army and Navy Club,  Washington, DC, on Jan. 13, 2016. The talk references Banks’ latest book of the same name, published by Harvard University Press and written with Stephen Dycus of Vermont Law School:

When crisis requires American troops to deploy on American soil, the country depends on a rich and evolving body of law to establish clear lines of authority, safeguard civil liberties, and protect its democratic institutions and traditions. Since the attacks of 9/11, the governing law has changed rapidly even as domestic threats—from terror attacks, extreme weather, and pandemics—mount. Soldiers on the Home Front is the first book to systematically analyze the domestic role of the military as it is shaped by law, surveying America’s history of judicial decisions, constitutional provisions, statutes, regulations, military orders, and martial law to ask what we must learn and do before the next crisis.

For more information on Soldiers on the Home Front, click here.

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