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January 8, 2019

CAFE Newsletter #6

Dear Reader,


These are three distinct considerations. In following the news about what is and isn’t proper or wise or legal, you’ll hear lots of people conflating law, policy, and politics. Of course, they overlap and intersect, and inform each other in complex ways, depending on the stakeholder’s goals, tools, and constituency. But they are not the same.

Take, for instance, the debate over building a border wall, a fence, or some other barrier at our southern border. The “issue” is at the core of the continuing government shutdown. Fundamentally, and at the outset, the border wall is not a legal issue. The legal issue, as it pertains to building a barrier by declaring a national emergency arises because of a political conundrum that itself arose because of the President’s policy promise.

The legal questions involved in determining the propriety of the president declaring a national emergency are certainly less important to him than escaping the political pickle he has created for himself with this poorly thought through policy pronouncement.

We know that the President’s legal and political advisers are scrambling to provide a legal justification. The legal argument need not be strong, nor tested, for it to provide the president at least some footing to “keep his promise,” castigate Democrats as weak on border security, and reopen the government.

That there will be a hard-fought court battle is of no consequence to the president. Donald Trump is used to endless litigation; he thrives on it, rejoices in it, and weaponizes it. So for Trump, who perhaps relishes the fight more than he values the wall itself, legal wrangling over executive emergency powers is a welcome nuisance. We shall see how it plays out.

Watch for the conflation of law, policy, and politics this evening when the President addresses the nation with his demand for border wall funding and when House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer deliver their joint rebuttal.

Watch for it also at next week’s confirmation hearings for Attorney General nominee Bill Barr. Most obviously, Barr will present himself to the Senate Judiciary Committee as a legal officer and so there will naturally be questions about the law and his interpretation of it. At the same time, it is likely that the most trenchant and controversial questions will arise over policy – should there be zero tolerance at the border, should prosecutors have discretion not to seek the maximum penalty in low level drug cases, should the nominee recuse himself from overseeing the Mueller investigation, if confirmed.

The entire hearing will take place in a fog of politics where Chairman Lindsey Graham and others will be playing to not only their constituencies back home, but also to the most famous audience of one – Donald J. Trump. Democratic senators are politicians too, of course. Not only that, but at least three – Cory Booker, Kamala Harris, and Amy Klobuchar – look to be presidential candidates. That makes it impossible for even sharp legal and policy questions not to be in suffused with politics. This is not necessarily bad; this is the system of advice and consent that Founders established, for many good reasons. But it bears watching.

As Antonin Scalia wrote in the preface to the inaugural issue of the Journal of Law & Politics:

Resolving the tension between the rule of law and the will of the people – between law and politics – is the supreme task of our government system. We sometimes tend to forget that it is more a matter of resolving tensions than of drawing lines, for there is no clear demarcation between the two. Laws are made, and even interpreted and applied (by administrative agencies), through a political process; and politics are conducted under the constitution and statutory constraints of the law. (October 28, 1983)

So as the debates rage on, and as we formulate our opinions on the matters at hand, let’s remember to ask ourselves this question about the arguments offered: what’s law, what’s policy, and what’s politics? Also, which arguments and considerations are most weighty and important?

My best,




What constitutes wise immigration policy? As the debate continues, it is useful to recall the rhetoric of one of the most successful Republican politicians of all time. As Preet tweeted back in May, “Modern father of conservatism Ronald Reagan embraced immigration and even ‘amnesty,’ coined ‘Make America Great Again’ & then won 49 states.”

In his Statement on Immigration and Refugee Policy, issued on July 30, 1981, Reagan said this:

Our nation is a nation of immigrants. More than any other country, our strength comes from our own immigrant heritage and our capacity to welcome those from other lands. No free and prosperous nation can by itself accommodate all those who seek a better life or flee persecution. We must share this responsibility with other countries.

READ the full statement.

In a tweet, President Trump incorrectly claimed, “Even President Ronald Reagan tried for 8 years to build a Border Wall, or Fence, and was unable to do so.”

In fact, Reagan didn’t build a wall because he thought a physical barrier at the border was a bad idea. When asked about illegal immigration during an April 1980 Republican primary debate with George H.W. Bush in Texas, Reagan said this:

Rather than … talking about putting up a fence, why don’t we work out some recognition of our mutual problems and make it possible for them to come here legally, with a work permit, and then while they are working and earning here, they pay taxes here. And when they want to go back, they can go back, and they can cross. And open the border both ways, by understanding their problems — this is the safety valve right now they have with that unemployment.

WATCH the debate (the immigration question starts 47 minutes into the video).

And let’s not forget that it was Reagan who famously said, “Mr. Gorbachev, tear down this wall,” calling on the Soviet leader to open up the barrier dividing West and East Berlin.



In the latest episode of the CAFE Insider podcast, Preet and Anne had a lot to discuss. Here are some takeaways from their conversation:

• Mueller’s grand jury was extended for up to six months – what’s the significance of this and what does it mean for where the investigation stands? The fact of the extension doesn’t mean much other than that Mueller’s not completely done with his investigation, and so he sought an extension. Judges typically grant extensions automatically. In long-term investigations, prosecutors present jurors with evidence over the course of weeks and months, and so it makes sense for that same set of jurors to continue to hear the matter, rather than empaneling a new jury and presenting the same evidence. Prosecutors will also use grand juries to lock in witnesses to their testimony so that a witness’s account is signed, sealed, and delivered in the event that the witness later recants his or her story. That said, the grand jurors in Mueller’s case have already served for 18 months and it is unusual for the same grand jury to serve for more than two years, thus Mueller will likely want to wrap up his investigation in the next six months.

Mueller is reportedly involved in a subpoena fight with a foreign-owned corporation and the case is before the Supreme Court – what do we make of it? It’s almost impossible to know what it means now and we’re unlikely to find out any time soon or possibly ever since the subject of the subpoena may not become the subject of a criminal charge. The fact that the case has reached the Supreme Court is unusual, suggesting that (1) the company is very invested in fighting the subpoena and (2) there is no other way for Mueller’s team to obtain this evidence or they wouldn’t litigate the issue before the Supreme Court.

• Can the President declare a national emergency to bypass Congress and build the border wall, and is there really an emergency? The emergency is manufactured for political reasons and stands in the way of meaningful and substantive conversation about immigration reform and border security. Border security is important but a mere wall doesn’t solve the problem of illegal immigration [or terrorism] because people can enter the country through airports, ports of cargo, visa overstays, and in other ways. Nor is the wall a solution to ending the flow of narcotics into the country. But the president may have a plausible (if not ultimately winning) legal basis for bypassing Congress to build the wall using unobligated funds from the Defense Department. The courts may ultimately rule that it amounts to abuse of executive power; however, Title 10 U.S.C. 2808 gives the president authority to undertake military construction projects in the event of a national emergency. The first lawsuit challenging this use of executive power would likely come from Congress, and in general, we are likely to see many more restrictions placed on executive power in the aftermath of the Trump presidency.

If you haven’t already, listen to “National Non-Emergency.”



Daniel Dale, Washington Correspondent for the Toronto Star, fact checks Trump with a laser focus and shares the latest releases from the White House. Follow him @ddale8.



The first review of Preet’s book, “Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law” is now in, and it’s a starred review from Kirkus.

“Doing Justice” ships March 19. It is also available as an audiobook. Pre-order here.



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