Author Archives: Andy Grewal

Involuntary Rulemaking?

by Andy Grewal — Tuesday, Jan. 30, 2018

As the various entries in this Symposium show, agencies enjoy considerable flexibility in determining whether, when, and how to publicly communicate their enforcement priorities and legal interpretations. But sometimes, through statutes like the Freedom of Information Act, an agency may be forced to reveal things that it would otherwise keep out of the public’s eye. For […]

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Can States Game the Republican Tax Bill with the Charitable Contribution Strategy?

by Andy Grewal — Wednesday, Jan. 3, 2018

As part of the new tax bill, Congress imposed limits on the Section 164 deduction for state and local taxes paid or accrued. Under prior law, taxpayers could generally deduct those taxes without limitation, even when those taxes were personal in nature (that is, when those taxes were not connected to business or investment activities). […]

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Trump’s Obstruction of Justice Defense and the Bribery Counterargument

by Andy Grewal — Thursday, Dec. 14, 2017

My prior posts have described some constitutional challenges facing any criminal prosecution of President Trump for an official act, such as the firing of FBI Director James Comey. A legislature’s attempt to criminalize a President’s official acts would raise separation of powers problems and would seem inconsistent with the great legal protection otherwise afforded to […]

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The President’s Absolute Immunity for Unlawfully Firing a Subordinate

by Andy Grewal — Tuesday, Nov. 28, 2017

My prior post examined a state court case, Ex Parte Parry, which held that the prosecution of the state’s chief executive, Governor Rick Perry, for an official act would violate the separation of powers under that state’s constitution. The post argued that the U.S. Supreme Court could adopt a similar separation of powers argument if […]

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The Separation of Powers Doctrine May Save Trump from Obstruction Charges

by Andy Grewal — Sunday, Nov. 19, 2017

Commentators have floated a number of theories under which President Trump could face criminal consequences for his firing of FBI Director James Comey. Under one view, that firing reflected an unlawful attempt to interfere with the ongoing Russia investigation, and an easy obstruction of justice case against Trump could be made. See, e.g., Samuel W. […]

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How the DOJ Should Fix Its Definition of “Emoluments”

by Andy Grewal — Monday, Oct. 23, 2017

Last week, a federal district court heard oral arguments in CREW v. Trump. No transcript or audio recording of those arguments is currently available, but persons who attended the hearing noted the wide range of issues discussed. (See Josh Blackman’s Blog, Slate, WSJ, and NYT). Because the litigation is at the motion to dismiss stage, […]

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Loss in Anti-Inversion Case Strikes Potentially Major Blow on IRS’s Rulemaking Authority

by Andy Grewal — Saturday, Sept. 30, 2017

In Chamber of Commerce et al. v. IRS et al., the plaintiffs scored a major victory in their challenge to the validity of some “anti-inversion” regulations issued under Section 7874 of the Internal Revenue Code. That statute, generally speaking, limits the tax benefits that might otherwise arise when a U.S. company re-incorporates as a foreign […]

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If Trump Jr. Didn’t Know Campaign Finance Law, He Didn’t Break It

by Andy Grewal — Sunday, July 16, 2017

A controversy has recently erupted over a June 2016 meeting between some members of the Trump campaign team, including the President’s son, Donald Trump Jr., and at least one Russian citizen. The Trump campaign’s version of events has shifted several times, and new details continue to emerge. However, it appears that Trump Jr.’s desire to […]

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Exploitation of Public Office and the Foreign Emoluments Clause

by Andy Grewal — Tuesday, July 4, 2017

Under the Foreign Emoluments Clause, a person holding an office of profit or trust under the United States (a U.S. Officer) cannot, without Congressional consent, accept an “emolument . . . of any kind whatever” from a foreign government. The clause has received many legislative and executive interpretations over the years, but it has only […]

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Three Reactions to the DOJ’s Brief in CREW v. Trump

by Andy Grewal — Saturday, June 10, 2017

On Friday, 6/9/17, the U.S. Department of Justice filed its brief in CREW v. Trump, in which the plaintiffs allege that the President has violated Constitution’s Foreign and Domestic Emoluments Clauses through his continued ownership in Trump Organization entities. I’m sure I’ll have more to say on the case as it progresses, but here are […]

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