Albany Government Law Review

When billionaire businessman Donald J. Trump announced his intention to run for President of the United States in 2015, most commentators in the “main-stream media” dismissed his chances to secure the Republican nomination, let alone win the office of the presidency against a general match up with the sure to be4 Democratic Party nominee Hillary Clinton. Nevertheless, on November 7, 2017, Donald J. Trump was elected as the forty-fifth President of the United States of America. Whatever else might be said about the reasons for the Trump victory, there is no doubt that dealing with the ongoing “War on Terror” and the threat of domestic Islamic terrorism played a significant role in securing Donald J. Trump the win. Some confidently predicted that “there was a new sheriff in charge” and things would surely change in that arena. Accordingly, after one full year in office, it is time to examine the actions taken by the Trump Administration in light of its legal and policy structures for dealing with the War on Terror and the companion problem of radical Islamic terrorism—both the domestic and international threat.

On August 25, 2017, President Donald J. Trump issued the first pardon of his administration to Maricopa County Sheriff Joe Arpaio. The pardon was in response to Arpaio’s conviction of criminal contempt by U.S. District Judge Susan Bolton. Judge Bolton found Arpaio to have flagrantly disregarded the previous ruling of United States District Judge G. Murray Snow. In 2011, Judge Snow charged Arpaio with civil contempt after Arpaio violated a preliminary injunction ordering him to stop racially profiling Latino drivers. The Department of Justice also found that the Maricopa County Sheriff’s Office had engaged in discriminatory policing including racial profiling and illegal searches—violating both federal law and the Constitution. President Trump’s pardon was issued before Arpaio was formally sentenced or granted appeal. An amicus brief filed by Erwin Chemerinsky on September 11, 2017, argues Trump’s pardon is constitutionally invalid. An executive pardon for a contempt of court charge was last explicitly addressed in the century-old case of Ex Parte Grossman. Trump’s pardon deserves scrutiny because it undermines the separation of powers between the executive and judicial branches while also emboldening future disrespect for the rule of law. The Arpaio pardon is an attack on the judiciary as a whole, beyond a particular judge and his orders.

President Trump has a way of enlarging the vocabulary of public discourse. Among the many examples, we focus on the allegations that he has received, and continues to receive, constitutionally prohibited “emoluments,” a term presently frequenting newspaper headlines but which few could have spelled let alone defined two years ago. To be sure, the term’s definition remains elusive. That much if little else is made clear by the legal papers submitted in pending lawsuits attacking the legality of various Trump commercial enterprises operating concurrently with his presence in the nation’s highest office. In two places the Constitution limits the President’s receipt of “emoluments.” As we detail below, to date three lawsuits have claimed that President Trump is guilty of innumerable, continuing violations of these prohibitions. While the complaints in these cases devote many words to describing the alleged unconstitutional conduct, they are surprisingly laconic and vague on what relief would be appropriate were the plaintiffs to prevail. In this essay, we bracket the merits and consider whether a constructive trust, a blind trust, or both would be appropriate remedies were a president deemed to have violated either or both Emoluments Clauses.

In writing this article, the questions became does the FOIA, and its subsequent amendments, really fail to define “record?” If a federal agency is able to determine what is a record under the FOIA and if it determines an agency record is one as defined by the Federal Records Act can it now exclude certain items from the definition of agency record for purposes of the FOIA, e.g. metadata? What should be the definition of an agency “record” under the FOIA in the digital age? Is it appropriate to reference E-Discovery protocols to the FOIA? These are some of the questions this author attempts to answer. In order to answer these questions, one must first examine the difference between records in the pre-digital world versus records in the digital world, the history of the FOIA and its various amendments, the purpose of the FOIA versus the purpose of Discovery (now E-Discovery), and the application of E-Discovery protocols to the FOIA process.

There is a tendency to oversimplify the battle over black voting rights (and civil rights in general) in nineteenth century America as a struggle between the South and the North, with the North largely in sympathy with increasing the right of suffrage, and the South largely in opposition to expansion of suffrage. This is not an accurate portrayal. States like Connecticut, Pennsylvania, Maryland, and New Jersey (which had previously authorized black voting) abandoned black voting in the nineteenth century by amending their constitutions. Before the Civil War, only in the New England states of Maine, Massachusetts, Vermont, Rhode Island, and New Hampshire could blacks vote on the same footing as whites. Every state admitted to the Union between 1820 and 1865 prevented black suffrage.4 Between 1865 and 1868, referenda on black suffrage were held in two territories and seven states in the North. They were defeated in seven of the jurisdictions. They achieved victory in Iowa and on the third attempt in Minnesota. Both Iowa and Minnesota had miniscule black populations. Disenfranchisement of blacks across the nation was the general rule, not the exception. In New York, the voters of the State for a period of nearly fifty years firmly resisted the notion of providing black males the same access to the ballot as white males. “The most important of the referenda held in New York in the nineteenth century were the three on the question of whether or not to remove the $250 property qualification requirement from Negro voters—a qualification which was not imposed on white voters since 1821.” In the referenda held in 1846, 1860, and 1869, the voters of New York State refused to eliminate the property qualification for black voters. Only the passage of the Fifteenth Amendment in 1870 would end the legal discrimination against black males voting in New York State.