Executive Functions Chat

Bob and Jack discuss (and disagree about) the Oregon National Guard ruling, the deference owed to the president, the relevance of the president’s Truth Social comments, and the ultimate limits on the president’s power to use the military in the domestic sphere. Get full access to Executive Functions at www.execfunctions.org/subscribe

Bob and Jack discuss the Trump administration’s indictment of former FBI Director James Comey, the lawfulness of the Lindsey Halligan appointment as interim U.S. Attorney, the implications of Trump’s full takeover and weaponization of DOJ, and how to think about reform in this context. Get full access to Executive Functions at www.execfunctions.org/subscribe

Keith Whittington, David Boies Professor of Law at Yale Law School and author of The Political Foundations of Judicial Supremacy, joins Jack Goldsmith for a conversation about reconstructive presidents (Jefferson, Jackson, Lincoln, and FDR), and whether Donald Trump fits that mold. They discuss Trump’s constitutional ambitions, judicial supremacy versus departmentalism, and whether Trump will defy the Court. Get full access to Executive Functions at www.execfunctions.org/subscribe

Bob and Jack discuss the performance of White House Counsel David Warrington and examine last week’s lethal strike on alleged Venezuelan terrorists—including its possible implications for domestic presidential military strikes.Consider becoming a free or paid subscriber to Executive Functions.This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.Jack Goldsmith: Good morning, Bob.Bob Bauer: Good morning, Jack.There’s been so much in the news since we last chatted, which was quite a while ago, actually. Today, we’re going to focus on some topics that we know a little bit about. We’re going to discuss two stories from last week about Trump administration lawyering: the long New York Times profile on your successor in the White House Counsel’s Office, David Warrington, and the administration’s lethal strike on a speedboat in the southern Caribbean that allegedly contained members of the designated Venezuela terrorist organization Tren de Aragua, allegedly transporting drugs to the United States. These connect insofar as they involve executive-branch legal decision-making. Why don’t you begin by summarizing and commenting on the New York Times story about Warrington?A number of things struck me about the story about Warrington. Of course, it was published against the background of a lot of debate about the role of the White House counsel—the extent to which the White House counsel has supplanted the Department of Justice (DOJ) as the principal channel for legal advice to the president. What that means if presidents pick White House counsels who are particularly friendly to them, have personal or political backgrounds with them, and can be expected to be, if you will, loyal and pliant.Some of that debate has been, in this administration, overtaken by events, because once there was a thought that presidents would nominate somebody relatively uncontroversial—down the middle, if you will—as attorney general, and then have a White House counsel who is much more in that world of friendliness and political background. Now, of course, this particular president has chosen from his own personal legal team the senior officials in the DOJ. So that particular concern about the White House counsel may have been overtaken by events. But it’s still a very powerful legal office right there in the West Wing, one floor above the Oval Office, and probably the last word on any critical legal question that the president has to address.What I found striking, in that article, was that David Warrington gave the interview to the New York Times, understanding perfectly well that that’s a locus of criticism of the president’s legal stances. He said two things that were somewhat in tension. One was that he didn’t feel he should be giving his personal views: He gave the advice he gave, and unless asked, he didn’t say more. But later on, he said he gave the advice that he gave and there was some inclination or some suggestion that he spoke his mind… it wasn’t entirely clear.I have to say, in an administration like this, I’m skeptical about a White House counsel who says, “I’ll keep my thoughts to myself; I’ll just give him my reading of the law. And if I have any concerns about the direction we’re going, I’m just not going to express them.” I have real concerns about that, in any presidency, but particularly in this one. Second, he said his role was to advise with a view toward finding “defensible” positions for the administration to take—e.g., strategies courts have criticized for deporting and trying to avoid court jurisdiction. He was looking for defensible positions and to reduce risk. That raises two questions: What is a defensible position? What’s the standard for determining what a defensible position is? And secondly, what does it mean to reduce risk—what kind of risk are you talking about? The risk that the courts will overturn it? The risk that it will provoke congressional opposition or complaint, particularly from your own side of the aisle? It wasn’t clear how he was, as a professional, defining the way he would approach his job in this very challenging administration where the president has displayed so little regard for the rule of law.I want to press you on a bunch of those points. My reaction to the story was that it was kind of anodyne, actually. I thought a profile of Warrington would show him in the tank for the president, and it wasn’t quite that. Can you briefly explain, to the extent that there is a traditional explanation, the traditional role of the White House counsel as opposed to the traditional role of the attorney general?The White House counsel is a member of the president’s senior staff—end of story. No authority to bind agencies with legal interpretations; a counselor picked by the president, not subject to Senate confirmation. The attorney general of the United States is the second most-senior (to the president) law enforcement officer in the constitutional system, nominated to the Congress, to the Senate, confirmed or rejected by the Senate. And there's been a view, particularly after the Nixon debacle in the Watergate era, that an attorney general has to stand for a department that is like any other department. It's not independent of the president in a formal sense, certainly needs to be attentive to the president's policy priorities. But at the same time, in law enforcement activities in particular, has to avoid any suggestion of political favoritism or impartiality and therefore establishes independence in that sense.There are no criteria like that for the White House counsel. There's no criteria at all prescribed anywhere for the White House counsel. It's really a position that's governed by expectations and by norms—that as influential as a White House counsel can be with such close proximity to the president, the White House counsel will be guided by a concern for representing the presidency as an institution and not merely operating, which he or she shouldn't, as a personal or political lawyer to the president. But isn't it also true (I think we wrote in our book together) that the White House counsel is at the heart of political decision-making inside the White House? Is it fair to say that in a normal administration, the White House counsel is more of a political/legal counselor as opposed to providing the account of the law that should guide the executive branch? Is that—can you just get at that a little bit? Because that'll lead me to my questions about how Warrington was presented. There is always the possibility that that's how the White House counsel sees his or her job as a lawyer—member, loyal member—of the senior legal team. In my time, and I know there are other White House counsels who have shared this view, I thought it was I thought it was very important for the office to distinguish itself from other senior staff members and retain its credibility as legal advisers by not seeming to be full-throated members of the president's political or communications team. The risk of the White House counsel being both a political adviser and a legal adviser is that other members of the senior staff—or the president himself—might wonder, when getting a piece of advice: Is this advice shaped by the law, or is it shaped by the political or communications judgment of the White House counsel? And for a White House counsel, in my view, to have credibility, there has to be no question that their advice is shaped by the law. Now, if they have some view about the political consequences of taking a particular legal position—Congress will object, the press will rise up in fury, allied ideological groups will be unhappy… Then the White House counsel could bring that into the conversation if somebody else doesn't, but can say—and should say, by the way—separately and apart from the legal advice just given, that these other political consequences could follow. But I think it's very important for the White House counsel's office to be a legal operation and not an adjunct of the political and policy operation of the president.Right. Now, I didn’t mean to suggest that it should be an adjunct, and he didn’t even present himself as one. He presented himself as providing legal advice about legal risk. One of the interesting things about the story is that it described a White House counsel’s office that was more law-heavy, doing more DOJ-type legal analysis. I think that’s what I read between the lines of the story.And that he, in some sense, had a more enhanced—arguably more enhanced—legal role than the average White House counsel, because they have not wanted to go to OLC and other elements of DOJ.Can I just mention one think quickly, Jack? He referred to it as more of a litigation shop than any of his predecessors. Right. And so what about that? I mean, you asked the question—he said he was assessing risk. My understanding of the White House counsel's office has been that the law is vetted and presented, including various possible interpretations of the law. Then the president faces legal risk and political risk. And I think it’s important to mention that the president of the United States under Article II is the legal decider for the executive branch.So ultimately, the president—whether a lawyer or not—gets to decide. Part of what I understood the White House counsel to be doing was assessing and advising the president about all of these risks. Is that right or wrong?No, that’s right. It goes to the point I made earlier about distinguishing legal risk from other kinds of risks like political risk, and being very clear. The White House counsel should be explicit when there is a political risk in addition to a clearly presented legal risk. A legal risk is: you’re breaking the law. You are breaking the law. You are doing something that, as the president takes

Jack Goldsmith is joined by Professor Aditya Bamzai of the University of Virginia Law School. They discuss the president’s constitutional removal power, whether the president satisfied the statutory “for cause” standard in firing Cook, why that issue is hard, whether Cook’s pre-Fed actions are relevant, whether Cook gets notice and a hearing before firing, and whether a reinstatement remedy is available. This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.Jack Goldsmith: Good morning. This morning, I’m going to talk to Professor Aditya Bamzai at the University of Virginia Law School about the President’s firing of Lisa Cook, a member of the Federal Reserve Board of Governors. Aditya is an expert on the removal powers of the President, and he’s also an expert on removal in the context of the Federal Reserve, so he’s the perfect person to talk to us about these issues. So I’m just going to briefly go over what happened, but thanks for doing this, Aditya.Aditya Bamzai: Thanks so much, Jack, for having me. Good morning to you. And you did leave out my most important credential, which is: I was once a civil procedure student in the class of Professor Goldsmith back in the spring of 2002.I take full credit for all of your success. OK, so Monday the president fired Lisa Cook, a member of the Federal Reserve Board of Governors. The relevant statute, which is 12 U.S. Code § 242, prescribes the term for the governors and says they shall—I’m quoting—“hold office for a term of 14 years unless sooner removed for cause by the President.” And those words, “for cause by the President,” are going to be very important. One big question here is going to be: What counts as a for-cause removal?Unlike many other removal provisions that are strewn about the U.S. Code and at issue in Supreme Court decisions, this one—I’m going to call it a naked for-cause provision—does not specify any criteria for removal. The standard criteria (and there are many variations) for removal are things like inefficiency, neglect of duty, or malfeasance in office. Those things, by the way, tend to focus on what happens in office that may be relevant.But those criteria are not present in this removal statute, which is going to be very important. This is a simple, undefined for-cause removal provision.So Trump claimed to fire Cook for cause. I’m reading the cause was allegedly false statements that she made on two mortgage agreements from 2021, before she became a member of the board. President Trump said that those alleged false statements deprived him of confidence in her integrity and honesty, and that is the cause for removal.The last thing I’ll say is that even though the president invoked the statute and gave that as his reason—the for-cause provision as his reason for the removal—he also cited Article II of the Constitution. He said he was exercising the powers vested in Article II: both the executive power vested in him and his duty to take care to faithfully execute the law. So that’s the situation. I want to get into the legal issues here, but can you just start off with a brief primer on presidential removal power—what it’s about, where it comes from?Absolutely. The first thing I want to say on that is that there’s a lot that could be said, and we could easily have an hour of conversation over that topic alone. This is certainly a disputed issue in which people have differences of opinion. So in giving this very short summary, I’m no doubt dropping things on the floor and not covering the whole—Sure, of course not. I mean—Yeah. So look, the question of who’s the head of the executive branch comes up at the Constitutional Convention, and there are proposals to have a multi-headed executive, not just a single head. And then, famously, we come out of the convention with a Constitution that has unity in the executive—one head of the executive branch. What that means exactly—that’s just the form. What it means in substance is the question addressed by these removal debates, as well as the cases.And the debates start almost immediately. The very first debate about the Constitution that occurs when Congress convenes is over who gets to control the various departments Congress is creating: Foreign Affairs, Treasury, the Department of War. These are the predecessors of the State Department and the Defense Department.There’s a debate about it, and James Madison famously takes the view that the president has removal authority by virtue of this provision in Article II that vests the executive power in a president, and that Congress could not take that away from the president.This is removal of executive officers.Removal of executive officers, exactly. Now, various other members of Congress had different views, and exactly how they line up is certainly still disputed today among people writing on this topic. But that happens in 1789, and then there’s a little bit of a practice that develops, which always comes to the fore when there are big disputes over who controls the executive branch. That typically happens when parties switch power.When the Democratic-Republicans, with the election of Thomas Jefferson, took over from the Federalists, the question was heavily debated once again in the early 1800s. It was heavily debated when Andrew Jackson took over and fired a whole bunch of people appointed in the prior two or three administrations. It was then heavily debated when Andrew Johnson tried to remove members of the prior Lincoln administration.At that point, in fact, Congress enacted a statute called the Tenure of Office Act in 1867 that limited Johnson’s ability to control the executive branch. We literally had a moment when Johnson tried to fire the secretary of war, and the secretary said, “You can’t fire me. I’m just sitting here in my office.” And there was real tension between the president and the secretary of war.All of those debates tend to arise against the backdrop of whether the rule ought to be: The president can remove, or the president has to go to the Senate and get the Senate’s approval before removing an officer.And that’s because the Senate confirmed the officer.Exactly. Usually the appointments of these principal officers occurred with the advice and consent of the Senate, and so there was the question of whether you had to go back to the Senate for its consent before engaging in removal. And the Tenure of Office Act essentially said that.That was in 1867, when the Tenure of Office Act was enacted. Johnson was impeached and almost convicted, partly for claims that he violated the Tenure of Office Act in all these proceedings. The act stayed on the books until 1887, when it was repealed at the urging of various presidents who said it hindered management of the executive branch. They argued they could not get officers to perform their duties effectively with the statute in place.At the same time, in 1887, Congress created what is now conventionally thought of as the first independent agency, the Interstate Commerce Commission. They include in that statute included language saying the president could remove commissioners for “inefficiency, neglect of duty, or malfeasance in office.” That language is now considered the genesis of what we refer to as for-cause provisions.The ICC statute said inefficiency, neglect of duty, malfeasance in office. The ICC was followed shortly thereafter by another agency, called the Board of General Appraisers in 1890, with similar statutory language.The Federal Reserve is thought to be the second major independent agency. It was not created until 1913, and it had different language from the earlier boards. As mentioned at the start of our conversation, the Federal Reserve’s statute used “for cause” language instead of what you could call the INM standard—the inefficiency, neglect, malfeasance standard.So the question is: What does this language mean?Most of the litigation in the Supreme Court in recent years, and frankly most presidential removal litigation, has involved the constitutional standard. The question has been whether the president must abide by the various for-cause standards Congress imposes, or whether under Article II—under the vesting clause and the take care clause—the president can disregard those statutory standards.Is it fair to say that has been the thrust of the litigation in the Supreme Court—the constitutional standard?I think that’s right. Yes.So if we think about why that might be, one possible explanation is that up until recently, presidents did not tend to fire individuals subject to these standards. In fact, until modern times, there had only been one firing by President Taft—actually two firings, but one episode in 1913—and then another episode with President Nixon in 1969.So presidents tended not to fire individuals subject to these protections. Most of the litigation instead involved regulated parties, who argued that executive officers subject to that type of removal provision were not being properly supervised by the president. The Court entertained that type of litigation.That raises a separate question about whether that procedure is appropriate. But assuming it is appropriate, the argument was that the existence of a removal provision limiting the president’s ability to oversee officials is itself unlawful. That tended to tee up the constitutional question, and it did not require the Court to get into the weeds of what the standards meant, since they weren’t being applied to concrete circumstances.The Court did say things about the standards occasionally, but it didn’t get deep into the weeds.OK. So if I understand what you just said, basically the constitutional challenges did not arise because presidents were firing people protected by for-cause provisions. They arose because regulated parties brought the

In this episode we review the Epstein scandal and discuss Deputy Attorney General Todd Blanche’s conflict-of-interest problems, the White House challenge, and the looming role of Congress. Consider becoming a free or paid subscriber to Executive Functions.This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.Jack Goldsmith: Good morning, Bob.Bob Bauer: Good morning, Jack.So, this morning, we're going to talk about the Epstein scandal and how the White House is managing it, how the Department of Justice (DOJ) is managing it, and how Congress should be thinking about it. You've been writing about this the last few weeks, so why don't you just start off by—everybody knows about the scandal, but just briefly summarize where we are.In the last week or so, I don't know how many days ago it was, the Department of Justice became very much involved with the deputy attorney general flying to Florida for a nine-hour interview under a limited grant of immunity with Ghislaine Maxwell, former paramour and longtime associate of Epstein who has been convicted of participating in and facilitating sex trafficking, and she's now appealing those convictions.The administration apparently thought at the time it had come to show that it was taking an active interest in disclosures after the uproar in his own base and among his own MAGA community over the surprising announcement that after a review of the files, DOJ had concluded that Epstein had in fact committed suicide, he had not been murdered, and there was no additional information to suggest that other people had committed crimes.And as you know, from this point forward, the administration has been scrambling to address the frustrations of that community over the absence of the disclosures that they believe they were promised—the further disclosures about Epstein and those on the so-called list, those who were involved with him.Okay, before we turn to White House management of this and other scandals, you mentioned that the deputy attorney general had gone to interview Maxwell. Talk about how unusual that is and the problems you see with that.In my view, exceptionally unusual. There may be some cases that are comparable. I can't think of what they are. His role under the general organization of the Department of Justice is to manage day-to-day operations of the Department of Justice and to engage in overall supervision of the department's operations, not to, for example, assume specific investigative functions.In this case, he has done just that. He is a source of information under his own name from the administration about the status of the investigation. In the case of Maxwell, who is a central figure right now, he personally interviewed her. He flew to Florida and spent a couple of days, nine hours total, interviewing her and finding out what it is that she would say if she were to testify publicly under some immunity.We'll talk about potential clemency in a few minutes. For the deputy attorney general to do that is extraordinary. Plus, let's take something else well known: He’s a former personal lawyer to Donald Trump. Under departmental regulations, ethics regulations, his activities here implicate what is called the rule of impartiality. His involvement, having been so close to Trump, would trigger in a reasonable person a genuine concern about whether he could act impartially in this matter—whether he's actually serving the American public or serving the political and personal interests of Donald Trump.And do we have any reason to think that he or the department are taking these ethical and conflict of interest rules seriously?No. On the information we have, they're dismissing them. Normally, the employee who would have a legitimate concern about these issues or who would be faced with the rules’ indication that he should be concerned with these issues would seek the counsel of ethics officials in the department and then make a decision about whether he was disqualified from engaging in these activities.When the department was asked, however, about his role—particularly in light of his telling the Senate he would ask the appropriate officials about any potential conflicts during his service—the department refused to answer. It didn't indicate that he'd asked for that advice, much less that having asked for that advice, he was cleared for the assignment.Okay. So, I mean, that by itself would be big news in a normal administration, but this is clearly not a normal administration on these dimensions. Let's talk about White House scandal management generally. I mean, you've been inside the White House. You've had to deal with political controversies. How would a normal White House be thinking about managing this? And I just want to underscore something you said earlier. This is largely a self-inflicted wound as far as I can tell by the administration. I mean, the main constituency that has raised this in the public profile are the president's own supporters. And as you said, it was his administration's kind of not being candid or talking out of both sides of its mouth about what was in the Epstein files, what they were going to do with it that led to this. So I guess one point is you want to avoid the scandal from happening, but how do you manage it after it gets going? How does one manage it?First order of business is discipline. You may have a strategy that you have to revise according to events. It's not that you can have a fixed strategy in response to a scandal which is moving quickly and just stick with that strategy all the way through. There may be adjustments that have to be made, but everything you do in setting the original strategy and adopting adjustments has to be done in a disciplined fashion.And looking to establish credibility on the part of the administration in the response to the public over the scandal, that discipline is wholly lacking. That's hardly a surprise. The president talks almost compulsively on this topic. He seems frustrated with the questions that are being asked, but he ultimately not only answers them, but he keeps going—most recently in explaining how it was that he broke with Jeffrey Epstein over Epstein allegedly poaching employees from Mar-a-Lago for potentially his own nefarious purposes.And so the last thing you want a president to do, or the administration as a whole to do, but in this case the president personally, is to feed the scandal and to do so in an undisciplined way that rather than settling questions, raises more of them. So that's the first order of business. His true social compulsions here, his speaking compulsions, are antithetical to any kind of disciplined scandal management strategy.How would you normally manage, if this problem has a dimension in the White House, but it also has a dimension in the Justice Department, which in many ways has brought the scandal onto the administration, how would that relationship normally be managed in this context?With some care, because first of all—and that's gone by the boards in this administration—to the extent that there are significant residual criminal legal issues here, you would want the Department of Justice to be able to claim or to show that it's operating with professional independence from political pressures from the White House.And it can't do that in this case. That's not the way that the president has set up the Department of Justice. We've already discussed the problematic role of the deputy attorney general in this case. So you certainly would not want the department to be in the position this one is, which is it's not credible in helping the president answer these public questions.I should mention also, I just want to tag on to what I said about Truth Social, there are other ways in which Trump has sort of very impulsively resorted to the standard playbook, underscoring again the lack of discipline.An example being immediately suing the Wall Street Journal for defamation for publishing an article he didn't like about this scandal. And it's very clear the Wall Street Journal has no intention of backing down. That's problematic for reasons that I've written about.And then also engaging in activities of one kind or another that are meant to be a distraction from the main charge. And all they do is focus attention on how little he's succeeding in distracting attention.So the release of the Martin Luther King assassination files, the suggestion again that criminal behavior was not only involved but headed up by President Obama in the last administration in connection with the Russia collusion matter. These kinds of distractions—even that matter, I should add this is important—that anything damaging in the Epstein files was actually fabricated by senior Democrats, Hillary Clinton, James Comey, Barack Obama.So he's lurching around looking for these distractions. All of this has helped him in the past, but it's not helping him here.As you point out, one of the problems is this is really important to his constituency. Let me just play devil's advocate on that. Are you sure it's not helping for that constituency? I just don't know how to ascertain that. I mean, these are issues that are playing to the base clearly. And are you sure that if it doesn't seem, it might not seem very persuasive to us, but it might seem persuasive to the constituency he cares about?The constituency he cares about is willing to hear for the moment that he's not trying to protect himself, that he's not involved in the Epstein files, but they want to see the files. They want to see the files because they're convinced that there are powerful people, particularly Democrats, whose involvement with Epstein has yet to be revealed.So they're willing to split him off from that for the moment. They're angry at him for not releasing the files,

President Trump yesterday evening withdrew the nomination of Alina Habba for U.S. attorney for the District of New Jersey so that Attorney General Pam Bondi could appoint Habba as the “first assistant” in the U.S. attorney’s office—with the aim of positioning Habba to serve as U.S. attorney in an acting capacity. This came after DOJ, purportedly pursuant to the president’s authority, fired the official who was appointed by a panel of district judges to serve as interim U.S. attorney.We’re pleased to welcome Anne Joseph O’Connell, the Adelbert H. Sweet Professor of Law at Stanford Law School, as our first guest on Executive Functions Chat to break down the relevant legal issues in this saga and discuss the broader legal landscape. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss the response of TikTok providers to the administration’s non-enforcement pledges—including the companies’ legal liability and whether their responsibility to comply with the law runs past potential liability.Read Bob’s piece from yesterday about the providers’ conduct here.And check out Jack’s assessments of the legal basis for the non-enforcement of the statute here and here. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss the Supreme Court’s Tuesday stay of the district court order blocking implementation of the reductions-in-force executive order. Jack thinks the Court got it right. Bob is skeptical.Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

We break down the opinions in Trump v. Casa—including the majority opinion’s statements on Solicitor General John Sauer’s concession to the bindingness of the Court’s judgments and opinions on the executive branch, the narrow scope of the majority, the opposing conceptions of the Court’s role in the majority and in Justice Jackson’s dissent, and how challenges to birthright citizenship are likely to proceed from here. Read Jack’s post from Sunday arguing that the Supreme Court was the clear winner in this ruling.Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

Jack argued early this week that it’s impossible to know whether the U.S. attack against Iran was constitutional “because the constitutional law of war powers is inscrutable.” Bob responded to Jack’s post, contending that although executive branch legal opinions provide support for the attack, that doesn’t resolve the constitutional problem.On this episode, we disagree about the constitutionality of this particular attack, but we agree that our war powers law has reached an unfortunate state of presidential dominance. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss the law relevant to U.S. engagement in the conflict between Israel and Iran, fledgling congressional resistance to unilateral action in the region, and how public opinion might affect the administration’s decisionmaking. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss Judge Breyer’s ruling yesterday evening on California’s challenge to Trump’s federalizing of the National Guard, how the decision might have set forth helpful parameters defining the president’s constitutional authority in this context, and how much the administration’s out-of-court statements influence the opinions flowing from the courts. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss California’s complaint challenging the Trump administration’s actions in Los Angeles, take a closer look at the president’s authorities and legal strategy, and conclude by considering the politics underlying it all. Timestamps:0:00-11:30: The substance of California’s complaint11:31-18:28: The aims of the complaint18:29-30:35: The president’s relevant statutory and constitutional authority30:36-34:34: The administration’s broad legal approach34:35-47:38: The politics of the momentFind California’s complaint here.And find Chris Mirasola’s article in the Harvard National Security Journal here.Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss the president’s memorandum mobilizing National Guard troops in response to protests against federal immigration enforcement in Los Angeles. We break down the authorities Trump is relying on, how much it matters that Trump has not yet invoked the Insurrection Act, and more. After we recorded, California Governor Gavin Newsom said that the state will sue the Trump administration over Trump’s decision to “federalize the National Guard.”Read Chris Mirasola’s article that Jack mentioned during the chat here. Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

President Trump lashed out at the Federalist Society and Leonard Leo last week. We discuss what is behind the attack, how the administration may try to reshape the judiciary, and how Congress could get involved. Get full access to Executive Functions at www.execfunctions.org/subscribe

The Supreme Court issued a consequential decision yesterday staying two district court rulings that had blocked President Trump from firing board members of executive agencies. We discuss the decision, what it means for Humphrey’s Executor, and other potential short- and long-term consequences. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss the oral argument in the birthright citizenship case and dive into Jack’s post analyzing Solicitor General Sauer’s concessions that the Supreme Court has the authority to issue “binding precedent nationwide.”Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss Jack’s post on the administration’s habeas trial balloons, the legal issues and possible strategic aims underlying the comments, and how it all fits into the administration’s larger program of attack on the courts. Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss reports of extensive corrupt conduct in the administration, the innovations that facilitated the corruption, the reasons for the muted public reaction, what might generate a stronger reaction, reform possibilities, and more.Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe