Many programs are built on the government's spending power, and the existence of an extraconstitutional limit on that power is a worrisome development.
— Neal Katyal
Institutionalizing dissent in our agencies moves us toward a healthier democracy and helps fulfill our founders' vision.
Unanimity is important because it signals that the justices can rise above their differences and interpret the law without partisanship.
Prosecutors use the conspiracy doctrine to punish two or more people who merely agree to commit a criminal act. They don't even have to actually perform the act; they just need to have agreed to do so.
Americans can tolerate some secrecy, particularly when it is rooted in protection of the public's interests. But when the claims appear to hide wrongdoing, they begin to curdle.
The nice thing about the 'House of Cards' is they did 70 takes, so it was a little different. You only get one at the Supreme Court.
The upshot of the Nixon tapes case was that any president is going to have an extremely hard time resisting a request from a law enforcement officer.
It's definitely true that law enforcement investigations expand over time in appropriate ways.
When I was at the Justice Department, there were these people who I called legal Houdinis, who - they would find any law; they would find a loophole and a way around it and often very tendentious and not true, and, you know, these are people who didn't respect the rule of law. But, you know, those people were there.
President Clinton invoked executive power a bunch of times... I think once he started doing that, the courts really pushed back on him. He couldn't use it for things that actually had a better basis. He used it for things that were personal, like the Lewinsky investigation, trying to block his aides from testifying.
Justice Scalia was usually particularly challenging to me at oral argument, but I so respected his intellect and commitment to the pursuit of truth.
No responsible scholar who thinks a sitting president cannot be indicted also thinks an attorney general can try to truncate a process of oversight - by Congress, for example - by 'pre-clearing' the president in advance.
If Barr wants to keep defending Trump, he should take a page from one of his predecessors, Henry Stanbery, who stepped down as attorney general to serve as President Andrew Johnson's impeachment counsel. Stanbery, notably, tried to come back as attorney general after the impeachment proceedings concluded. The Senate did not confirm him.
Following the attack on Pearl Harbor, the United States uprooted more than 100,000 people of Japanese descent, most of them American citizens, and confined them in internment camps. The Solicitor General was largely responsible for the defense of those policies.
The hospital room of a cabinet official is exactly the type of target ripe for surveillance by a foreign power.
The idea that the special counsel regulations, which were written to provide the public with confidence against a coverup, would empower an attorney general to restrict disclosure in an investigation of the president is a nonstarter.
Even if I might say to myself, 'I don't need health insurance. I won't get sick,' the fact is, as human beings with mortality, we are going to get sick, and it's unpredictable when.
One of our Constitution's greatest virtues is that it looks to judges as a source of reasoned, practical, rights-minded decision making.
One thing we know about government after the New Deal is that checks and balances through whistle-blowing is terrible policy.
Everything having to do with President Trump and Russia, whether it is Mr. Trump's demand for an investigation into the investigation by the special counsel Robert Mueller, or whether Mr. Trump will testify, requires an answer to one essential background question: Can Mr. Mueller seek to indict the president?
Even though Mr. Trump can give his campaign as much of his own money as he wants to, he can't ask other people to front the money for him and promise to pay them back later without reporting the arrangement in a timely fashion to the Federal Election Commission.
Our constitutional system is defined by a balance between the public's need for transparency and the government's need to have a zone of secrecy around decision making. Both are important, yet they are mutually exclusive.
I don't think that the Supreme Court really takes cases with kind of a theme in mind. They get about 10,000 requests a year, and what are called 'petitions for certiorari,' which are essentially 30 page documents which say, 'Hey, Court, hear my case.' And they don't take very many of them.
Merrick Garland was the most qualified nominee, not just in our lifetimes but perhaps in the history of the United States Supreme Court. The chief judge of the D.C. Circuit for 20 years, the nation's second-highest court. Never once been overruled by the Court in his 20 years. He was extraordinary.
The Supreme Court is very capable of acting quickly when it needs to.
My parents wanted to keep me away from girls, so they sent me to a Catholic boy's school, the Loyola Academy in Chicago.
I've been in two different administrations, and I would say, particularly, President Obama was really careful to make sure that he wouldn't invoke executive privilege unless absolutely necessary. He only invoked it once in eight years, even though many years he had Congress opposed to him in terms of being from the opposite party.
President Trump has criticized the Mueller investigation, fired Jim Comey, savagely attacked the FBI, and repeatedly suggested the Russia campaign influence in 2016 was a hoax. In the wake of all of this, the American people need to be assured that Mueller can carry out his investigation without interference.
Some commentators have attacked the special counsel regulations as giving the attorney general the power to close a case against the president, as Mr. Barr did with the obstruction of justice investigation into Donald Trump. But the critics' complaint here is not with the regulations but with the Constitution itself.
Trump and Barr both insist that he has been cleared, but that's not what more than 1,000 former federal prosecutors who read the Mueller report say: The evidence described in the report would lead to an indictment of anyone else in the country. If that's right, we simply cannot have a president who remains in office because of a technicality.
The Solicitor General is responsible for overseeing appellate litigation on behalf of the United States and with representing the United States in the Supreme Court.
Executive branch rules require sensitive classified information to be discussed in specialized facilities that are designed to guard against the possibility that officials are being targeted for surveillance outside of the workplace.
The public has every right to see Robert S. Mueller III's conclusions. Absolutely nothing in the law or the regulations prevents the report from becoming public. Indeed, the relevant sources of law give Attorney General P. William Barr all the latitude in the world to make it public.
Appointing special counsel Robert Mueller to probe Russian meddling in the 2016 election (and any possible ties to President Trump's campaign) was the only choice the Justice Department had. This is the best way to deal with the conflicts and potential conflicts of interest these matters posed.
In 2006, I argued and won Hamdan v. Rumsfeld, a Supreme Court case that struck down President George W. Bush's use of military tribunals at Guantanamo Bay.
There is no doubt that dissents can serve a useful role by explaining when a justice thinks the majority has gone off the deep end. But unanimity also sends its own powerful message - one that might be eclipsed in the headlines by a sensational dissent but could ultimately have a greater impact.
People tend to take more risks in groups than alone. For these reasons, the law has always treated conspiracy harshly.
Every time a president invokes executive privilege, there are three relevant audiences he has to think about: the courts, Congress, and the public.
I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence - a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him.
In general, presidents do sit for interviews or respond to requests from prosecutors because they take their constitutional responsibility to faithfully execute the laws seriously, and running away from a prosecutor isn't consistent with faithfully executing the laws.
I didn't go to fancy schools or come from money or from a family that valued law or public speaking in any shape or form.
Presidents routinely testify in criminal cases. You know, George W. Bush did it with Valerie Plame. Bill Clinton did it three times with Ken Starr. Gerald Ford did it with respect to a testimony about a Charles Manson follower. And Ronald Reagan, I think, is perhaps the most important precedent.
Trump abuses every privilege in the same way. It's kind of like King George. Take a legal concept and then stretch it beyond all recognition, and that's what you have Trump doing.
The joy of great fiction is that it transports the reader to another world, where new characters live in otherwise unimaginable ways. It is one of the most powerful ways of generating empathy that I know.
At times, President Trump has behaved far worse than Nixon did.
When it comes to investigating a president, the special counsel regulations I had the privilege of drafting in 1998-99 say that such inquiries have one ultimate destination: Congress.
Barr has thrown himself in with Trump in ways unbecoming to the nation's highest legal official. His conduct in trying to clear Trump is of a piece with his baseless attacks on 'spying' by the FBI and his defiance of Congress's subpoenas.
It's such a dangerous thing for desperation to drive litigation.
I served in two administrations very high up in the Justice Department.
I think that the terms of the Affordable Care Act do give the states a fair amount of wiggle room and to do things as they see fit. The Affordable Care Act was not designed as some sort of one-size-fits-all solution from Washington. There's lots of discretion given to the states.
