The special counsel’s take on whether obstruction of justice can apply to presidential actions facially within Article II authority is consistent with the text, history, structure and principles of the Constitution, as well as the Supreme Court’s case law on the subject.
Andrew Kent is Professor of Law at Fordham University School of Law. He teaches and writes about constitutional law, foreign relations law, federal courts and procedure, national security law, public international law and professional responsibility.
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Looking to the past actions of independent counsels and special counsels, Benjamin Wittes argues that the Mueller report’s interpretation of the clear statement rule is correct. There is additional Justice Department precedent that supports his case.
Internal limits within Article II constrain the president to act only with good faith and due care.
Giving the FBI Director a statutory for-cause limit on removal might codify in law a level of independence that past directors have previously enjoyed.
Following President Trump's detonation of the checks and balances that previously maintained law enforcement independence, it is worth revisiting post-Watergate congressional proposals to give greater independence to the FBI.
The Supreme Court's decision to vacate and remand the cross-border shooting case to the Fifth Circuit avoided the Fourth Amendment question at issue and focused instead on the availability of a Bivens remedy.
Questions have arisen about the applicable ethics rules that govern Kasowitz’s representation of Trump, and whether any of those rules may have been violated. Below I sketch the governing ethics framework and address some questions raised by the conduct reported to date.