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BLAG, the Act of Production Doctrine and the Schock Case

Recent filings in the criminal case against former congressman Aaron Schock (see my last post) brought to my attention that a number of pleadings in the Schock grand jury proceedings have been unsealed. Among these were two briefs filed by the House Counsel on behalf of the Bipartisan Legal Advisory Group (BLAG) as amicus curiae [...]

Can Schock Turn the Tables (and Mirrors, Chandeliers, etc.) on the Government?

So last night I am at Costco and I get a tweet from @danielschuman directing my attention to two new filings by the legal team for former Congressman Aaron Schock, who is facing federal charges arising from, among other things, the allegedly improper use of his Members Representational Allowance to decorate his congressional office in [...]

The President and the Purposes of the Foreign Emoluments Clause (Part III): Presents and Emoluments

We may now turn to the question of whether the Framers might have had reason to exclude the president from the Foreign Emoluments Clause’s presumptive ban on accepting any “present” or “emolument” from a foreign power. Here we should start with an important distinction. I am not claiming that the exclusion of the president from [...]

The President and the Purposes of the Foreign Emoluments Clause (Part II): Titles of Nobility

There has been much debate about Professor Zephyr Teachout’s claim that the Foreign Emoluments Clause and other constitutional provisions show that the Framers were “obsessed” with corruption. Compare Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 405 (2009) with Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution 59-60 (Feb. 5, [...]

The President and the Purposes of the Foreign Emoluments Clause (Part I)

I promised to return to the subject of the Foreign Emoluments Clause and so today I will start a series of posts on the purposes of that Clause and whether it makes sense for the president to be excluded from its terms. This first post will set the stage with a little background. To be [...]

Would Speech or Debate Protect Attorney General Sessions from Prosecution?

It is being alleged that Attorney General Sessions gave untruthful testimony in his confirmation hearing. Specifically, in response to a question from Senator Franken about communications between Trump surrogates and representatives of the Russian government in the course of the 2016 presidential campaign, Sessions responded: “Senator Franken, I’m not aware of any of those activities. [...]

Congressional Staff Work on Transition Matters

At legbranch.com, the website of the Legislative Branch Capacity Working Group, I have a post regarding the House Judiciary Committee staffers who allegedly worked on the Trump travel/immigration executive order during the transition. Tweet

How the Hamilton Electors Show that an Article V Convention Cannot Run Away

Back in 2011, I wrote a law review article discussing concerns that a limited convention for proposing amendments called under Article V could propose one or more amendments outside the scope of the application upon which it was called. Among the many safeguards against such a “runaway convention,” I pointed to the ability of a [...]

Scalia, Trump, Tillman and the Foreign Emoluments Clause

Apropos of the debate whether the president holds “any Office of Profit or Trust under [the United States]” within the meaning of the Foreign Emoluments Clause (art. I, § 9, cl. 8), reference has been made to a December 1974 memorandum written by Antonin Scalia, then the Assistant Attorney General for the Office of Legal [...]

Going Rogatory: How a Congressional Committee Might Subpoena Julian Assange

Back in 2013, we discussed the possibility that a congressional committee could subpoena Edward Snowden, a U.S. citizen who had fled the country with a lot of defense and intelligence secrets and was living (and still lives) as Mr. Putin’s guest in Russia. As I noted then, congressional committees can attempt to obtain documents or [...]