Sarah Pavlini*

This note argues that the Justice Department (DOJ) should reconsider the soundness of its categorical policy against indicting sitting presidents. This policy, entitled “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” has long been based on the following principles: that (1) indicting a sitting president would unconstitutionally undermine the ability of the executive branch to perform its constitutionally assigned functions; (2) immunity from criminal immunity while in office does not make presidents “above the law” because they are only immune from criminal liability for the length of their term and can therefore be indicted and prosecuted once their term ends; and (3) when there is a need for the president’s immediate prosecution and punishment, Congress will remove the president from office via impeachment proceedings, thereby making him or her available for criminal proceedings pursuant to a clear constitutional provision authorizing that action. However, the nation cannot always afford to wait for a president to leave office in order for him or her to face the consequences of his or her criminal conduct. Impeachment, the Constitution’s explicit tool for effecting a president’s immediate removal from office, has shown itself to be a far less reliable safeguard against serious presidential criminal activity than is ideal. DOJ policy regarding the indictment of sitting presidents should better reflect this reality . . .

By Dr. Michael J. Conklin*

President Donald Trump sparked a debate after tweeting, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself . . . .” The self-pardon has inspired passionate and discordant views within the legal community. Despite competing claims in the media, there is no clear consensus among legal professionals concerning the constitutionality of the presidential self-pardon, which has never been attempted by a U.S. President. The presidential self-pardon is an amorphous concept that finds no clear authority either in the text of the Constitution, which provides only one sentence describing the President’s pardon power, or in Supreme Court precedent, which has only minimally discussed the pardon power’s scope.  There has been no objective attempt to measure a consensus in legal academe, and no media outlet has comprehensively surveyed legal experts to determine whether a consensus actually exists. This article discusses the results of a survey conducted across ninety-five faculty members representing twenty-nine U.S. law schools to illustrate whether an actual consensus exists. In addition, it examines potential correlations between political affiliation, age, and law school tier with faculty members’ opinions on the issue. Finally, this article serves as a tool to inform the public by clarifying conflicting media accounts . . . .

* Powell Endowed Professor of Business Law, Angelo State University    

Lilian Giacoma

The United States is the only country in the world that actively sentences children who commit a crime under 18 years of age to life in prison without parole. Despite recent hopeful Supreme Court decisions, international treaty obligations, and successful diversion programs in certain states, juvenile offenders continue to receive the cruel and draconian sentence of life without parole. This article reviews the domestic and international legal frameworks governing juvenile life without parole (“JLWOP”) and argues that this practice violates the United States’ obligation under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) and other international norms. It also highlights best practices for juvenile offenders in certain states and argues for the adoption of expanded diversion and rehabilitation programs in order to end the cruel and inhumane punishment of JLWOP . . .

Andy Carr

On Friday, February 15, 2019, President Donald Trump issued his long-awaited national emergency declaration concerning the U.S.-Mexican border, namely, to unlock billions for the construction of the wall.  Lawmakers’ initial reactions were—at best—cautious, if not alarmed, by the latest executive action.  Shifting appropriations via presidential decree raises obvious separation-of-powers concerns, as discussed further below.  But even more pragmatically, “many lawmakers in both parties regard the prospect of a [P]resident shifting billions of dollars of funding into a new project as a worrisome precedent even if the courts uphold the plan.”  Countless pieces undoubtedly will interrogate the proclamation and its legal implications over the months and years to come, but this essay offers a starting point and a first-run analysis.  The following explores the general theoretical and doctrinal frameworks for understanding the bounds of executive power, especially as it relates to the countervailing authority of Congress.  This essay concludes by applying both theoretical and doctrinal lessons to the border wall proclamation, finding it unlikely to be overturned if and when it reaches the Supreme Court—at least not in its entirety.  A range of interrelated concerns are further explored, suggesting avenues for further research and analysis. . . .

By Diandra Franks

In our current Information Age in which so much time is spent behind the surface of a screen, an enormous and ever-increasing amount of one’s assets are stored within the confines of the World Wide Web. Whether or not the online asset is sentimental or financial, these accounts (social media, email, cryptocurrency, etc.) require users to create complicated, case-sensitive passwords as protection. This practice begs questions: What happens to online accounts when someone dies? Should friends and heirs be allowed to breach traditional notions of privacy to preserve a loved one’s memory? . . .

By Annie Vozar

Over the past several decades, the legal status of the use of drugs for religious purposes has fluctuated. Some religions employ various intoxicating substances to communicate with God or gods, to promote spiritual growth and contemplation, or to receive visions. Because possession of many of these drugs is criminalized, a growing number of legal cases address the opposing interests of the government and the individuals who use drugs for religious purposes. These cases have so far primarily concerned the use of psychedelic drugs such as mescaline (found in peyote) and dimethyltryptamine (“DMT”) (found in ayahuasca tea). While precedent in these cases may apply to related psychedelic drugs—such as psilocybin mushrooms—litigation concerning other substances—such as marijuana—has proven less successful. . . .