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5 Ways That President Trump May Have Screwed Up Legally in His First Week

Just one week ago, Donald Trump was sworn-in as the 45th President of the United States. Boy, what a week it has been! It’s hard to keep track of all his blunders, but I did my best to sort them out for the purely legal issues with his actions. There were quite a few as he began immediately signing a slew of questionable executive orders. It seems President Trump, or his people, forgot to check to make sure they were in compliance with federal law when he started firing off directives. You can bet some of these issues will come back to haunt him.

  1. He issued an Executive Order on Immigration that’s so broad as to be silly.

President Trump’s order, entitled “Enhancing Public Safety in the Interior of the United States,” directs the relevant administrative agencies to prioritize the deportation of certain immigrants. Sound familiar? It should, because President Obama did something similar. Only that one made more sense. The Obama Administration’s plan directed agencies to de-prioritize the deportation of law-abiding immigrants and their children, thereby utilizing federal funds efficiently by prioritizing the deportation of dangerous criminals. By contrast, President Trump’s order directed the agencies to hurry up and prioritize everyone. The language of the order included not only those “convicted of any criminal offense,” and those who “have been charged with any criminal offense,” but even those who “have committed acts that constitute a chargeable criminal offense” (meaning people who haven’t even been charged with a crime), and those who “have engaged in fraud or willful misrepresentation in connection with any official matter.” Given that just about any undocumented immigrant could fall within one of these categories, President Trump’s order prioritizes no one in that it attempts to prioritize everyone. On top of that some experts are concerned he exceeded his presidential authority.

  1. He became so obsessed with muzzling federal agencies that he forgot to follow the law.

President Trump’s directive that prohibits employees of a number of federal agencies from speaking with members of Congress is not only disturbing, but also likely illegal. And not just on the obvious First Amendment grounds. The gag order also may violate the Whistleblower Protection Enhancement Act (which requires protection for certain employee communications). If that’s not specific enough, there’s also a federal law (the Appropriations Act of 2016) that specifically prohibits federal employees of the federal government from interfering with communication between agencies and members of Congress. President Trump may not consider himself to be a “federal employee,” but like it or not, he is one, and he’s likely subject to the same rules as everyone else.

  1. He overplayed his hand on the “Sanctuary Cities” issue.

President Donald Trump’s executive order may have directed federal agencies to take away funding from cities whose immigration policies with which he disagrees, but he seems to have forgotten one little thing: he’s not allowed to direct federal agencies to do things that are already illegal. Under the federal law, and longstanding Supreme Court precedent, the federal government can only hold back funding that relates directly to the behavior to which it objects. So when the Trump administration boasts about broad defunding of “sanctuary cities,” its statements are conspicuously silent on specifics. Legally, the federal government may not condition funds relating to healthcare and education on the cities’ immigration policies.

“The order has serious constitutional problems. Unless interpreted very narrowly, it is both unconstitutional and a very dangerous precedent. Trump and future presidents could use it to seriously undermine constitutional federalism by forcing dissenting cities and states to obey presidential dictates, even without authorization from Congress. The circumvention of Congress makes the order a threat to separation of powers, as well,” Ilya Somin, a law professor with George Mason University said in a post for The Washington Post’s Volokh Conspiracy blog.

And while we’re at it, let’s just point out that if immigration policies like the ones Trump seeks to change relate to anything, they relate to law enforcement. That means that de-funding police would be the appropriate federal pressure point. Our self-proclaimed “Law & Order” president isn’t likely to cut money for the cops, so this whole sanctuary city thing amounts to a bunch of nonsense.

  1. He let his vanity lead to his possibly violating the Presidential Records Act.

Remember when our new president rushed to Twitter to announce that he was “honered” to serve as our 45th president?

Another tweet was soon sent out with the corrected spelling, and then that one was also deleted. NBD, right? Well, if he were just a private individual, probably. But presidential communications are pretty much always a big deal. There is no question that under current law, all records, even casual electronic communications, count as “presidential records” and therefore, cannot legally be destroyed. The law hasn’t been tested on this front just yet, as Donald Trump is the first American President to use Twitter as his primary means of communication with the American people. But I’d say the reasonable move was the “better safe than sorry” attitude – at least for the first day of his presidency.

  1. He ignored federal law when pushing the Dakota Access Pipeline.

As one of President Trump’s top priorities, he pushed forward on the highly-controversial Dakota Access PipelineWhether or not one agrees with his decision, one thing is clear: it was a departure from the Obama Administration’s position. In a letter sent to President Trump, David Archambault II, chairman of the Standing Rock tribe, voiced his concerns with the illegality of such a change without sufficient preliminary procedures.

“This change in course in arbitrary and without justification,” Archambault wrote. “The law requires that changes in agency positions be backed by new circumstances or new evidence, not simply by the president’s whim.”  President Trump may have delusions of grandeur, but the reality of federal law should be setting in sometime soon.




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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos