Old Howard Union

65 – The Judiciary Under President Trump: Conservative Supremacy & Presidential Immunity


Show Notes

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1. Obama-Era Officials Requested ‘Unmasking’ That Identified Flynn in Intelligence Reports https://www.wsj.com/articles/more-than-one-dozen-obama-officials-may-have-requested-unmasking-that-revealed-michael-flynn-in-intelligence-reports-11589396531
• The National Security Agency received and approved requests on behalf of more than three dozen Obama administration officials, including then-Vice President Joe Biden, to “unmask” a U.S. citizen mentioned in classified foreign intelligence reports during the presidential transition
• The requests were made between President Trump’s November 2016 election and inauguration in January 2017
• Mr. Flynn resigned weeks into his tenure as Mr. Trump’s first national security adviser over his conflicting statements about his contacts with Russian officials before the inauguration and later pleaded guilty to lying to the FBI about those talks. The Justice Department has moved to drop the charge.
• In addition to Mr. Biden, the presumptive Democratic presidential nominee against Mr. Trump in November, the officials listed as making the requests for Mr. Flynn’s identity included then-U.S. Ambassador to the United Nations Samantha Power, then-Central Intelligence Agency Director John Brennan, and President Obama’s chief of staff Denis McDonough, as well as a range of other senior and lower-ranking officials across several government departments.
• Unmasking U.S. identities in intelligence reports occurs thousands of times annually, according to statistics maintained by the Office of the Director of National Intelligence. The rate of unmasking has increased during the Trump administration, surging in 2018 by 75% over the previous year, according to statistics released by the intelligence community.
• “What this indicates is he was in communication with people who were foreign intelligence targets,” said April Doss, a former NSA lawyer under Presidents George W. Bush and Obama who served as a Democratic counsel to the Senate Intelligence Committee.
2. The ‘Unmasking’ of Michael Flynn Explained https://www.wsj.com/articles/an-unmasking-q-a-11589481210
• Republican senators on Wednesday released the names of Obama administration officials who had requested and received the identity of a U.S. citizen mentioned in classified foreign intelligence reports collected during the 2016 presidential transition.
• Mr. Trump and his conservative allies seized on the release of the list of more than three dozen names—which amounts to a who’s who of senior Obama administration officials across several agencies—to again claim that unmasking was used to spy on Mr. Flynn and potentially entrap him, leading to his departure from the administration.
• The public record doesn’t reveal that any officials operated beyond their customary duties as national security officials in requesting to see the identity of an individual contained within foreign intelligence reports. The release didn’t make clear what specific conversations were revealed or identify the foreigners with whom Mr. Flynn had spoken.
• “Under both Democratic and Republican administrations, the reality is that most of these requests are routinely approved,” said Glenn Gerstell, who served as general counsel at the NSA until earlier this year. “They are coming from a senior official who has an easily understood and obvious reason why they would have interest in that identity.”
• The practice has increased during the Trump administration. The rate of unmasking surged in 2018 by 75% over the previous year to nearly 17,000 U.S. identities being revealed, according to statistics released by the Office of the Director of National Intelligence. Officials have previously attributed that increase in part to a need to identify U.S. businesses targeted by foreign hacking.
3. Supreme Court Hears Arguments on Releasing Trump’s Tax Returns https://nyti.ms/2Ws5UOV
• The court’s ruling, expected by July, could require disclosure of information the president has gone to extraordinary lengths to protect. Or the justices could rule that Mr. Trump’s financial affairs are not legitimate subjects of inquiry.
• The first argument of two the court heard, which dealt with the congressional investigations, seemed to go better for Mr. Trump. The justices seemed more skeptical of the president’s case during the second argument, in which Jay Sekulow, a lawyer for Mr. Trump, argued that he was absolutely immune from criminal investigation while he remained in office.
• The subpoenas sought information from Mr. Trump’s accountants or bankers, not from Mr. Trump himself, and the firms have indicated that they will comply with the court’s ruling. Had the subpoenas sought evidence from Mr. Trump himself, there was at least a possibility that he would try to defy a ruling against him, prompting a constitutional crisis.
4. Democrats Accuse Conservatives of a ‘Dark Money’ Bid to Influence Judges https://www.nytimes.com/2020/05/12/us/federalist-society-judges.html
• Some top Democratic senators on Tuesday accused the Federalist Society of supporting a conservative “dark money” campaign to influence the federal judiciary, including who gets selected to become a judge and how he or she rules once on the bench.
• In a sharply worded letter, the senators said they supported a proposal by a judicial ethics panel that would ban membership among judges in the conservative legal group.
• The prohibition, the letter said, would help curb the “rampant politicization of our federal courts.” Nearly 30 Republican senators have already written the panel to oppose the proposed ban, as have more than 200 federal judges, nearly all of them appointed by Republican presidents
• Both of President Trump’s appointees to the Supreme Court had ties to the group, as did all but eight of his 51 appointees to the court of appeals, an analysis in March by The New York Times showed.
• The ethics panel had proposed the ban in January out of a concern that membership could “call into question the affiliated judge’s impartiality.” The panel, led by a Trump appointee and composed of judges nominated by both Democratic and Republican presidents, also proposed banning membership in a liberal legal group, the American Constitution Society, which had influence in the Obama administration.
• Six law professors who specialize in legal ethics submitted a separate letter to the ethics panel echoing support for the proposal, calling it “eminently reasonable and balanced.” The letter, submitted in April, said that “Americans are increasingly concerned about the impartiality and integrity of the federal judiciary.”