Marty Lederman
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Articles by Marty Lederman
U.S. Government Responds to Maduro’s Immunity Arguments
In April, I wrote that Nicolás Maduro was likely to argue that he is immune from prosecution for cocaine importation, weapons possession, and narco-terrorism in U.S. court as Venezuela’s current or former head of state and that such arguments were likely to fail. As expected, Maduro filed a motion to dismiss on immunity grounds in September, as did his wife Cilia Flores. On October 2, the U.S. government filed its opposition to these motions. The opposition is noteworthy for several reasons.
Fueling Russia’s War: The Russian Diesel Deal and International Law
On Friday, President Donald Trump announced that he and Russia’s President Vladimir Putin had reached an agreement under which Russia will immediately supply more than 300,000 tons of diesel and an additional 4.5 million tons in stages over the coming months. The Treasury Department accordingly issued a temporary license allowing Russian diesel onto the global market, exempting cargoes loaded on or after that day from sanctions until April 2027.
Who Checks the President? Not the Military
“Shame on the military! And shame on you.” Over the past year and a half, family members and acquaintances have directed variations of this sentiment toward me. As a civilian employee within the Department of the Navy, I have occasionally been held personally accountable for military actions both at home and abroad undertaken by elected leaders and senior officials far removed from my own duties and authority.
Early Edition: September 14, 2026
Sign up to receive the Early Edition in your inbox here. A curated guide to major news and developments over the weekend. Here’s today’s news: IRAN WAR President Trump yesterday suggested the United States could stay in Iran and “keep the oil,” and added that the price of gasoline would “drop like a rock” once the Iran war ended. Trump also brushed aside a report that Iran obtained satellite images of a base in Jordan from Chinese entities before a July attack that killed three U.S. troops.
What’s Conspicuously Missing from the Government’s Supreme Court Reply Brief in the Mail Ballots Case
This essay is a supplement to the piece I published at Just Security on Tuesday regarding the ongoing litigation over whether the U.S. Postal Service (USPS) can enforce its new Final Rule on the delivery of mail ballots. I’ll assume readers are already familiar with that piece, which (among other things) explains in some detail how the new USPS Rule would operate.
Early Edition: September 9, 2026
Sign up to receive the Early Edition in your inbox here. A curated weekday guide to major news and developments over the last 24 hours. Here’s today’s news: IRAN WAR The U.S. military yesterday said it destroyed five Iranian oil tankers in reprisal for attempted Iranian strikes on a U.S. Navy warship. U.S. Central Command said it destroyed four tankers used by the Islamic Revolutionary Guards Corps in the Gulf of Oman, and another near Kharg Island.
The Supreme Court’s Striking Regression on Partisan Gerrymandering
It is no exaggeration to say that the U.S. Supreme Court’s recently concluded term was one of the most consequential for our democracy and the rule of law. The 14th Amendment’s birthright citizenship guarantee survived a narrow 5-4 ruling, and the Court preserved the authority of states, granted by the Constitution, to set the rules for voting by mail.
Early Edition: July 27, 2026
Signup to receive the Early Edition in your inbox here. A curated guide to major news and developments over the weekend. Here’s today’s news: IRAN WAR President Trump directed the U.S. military not to conduct new strikes in Iran on Friday, breaking a nearly two-week streak in daily attacks, two sources said. “We’re talking to [the Iranians] right now. I think they’re getting more and more serious as the days go by.
DOJ, contempt of court, presumption of regularity
COMPROMISED DOJThe Continuing Saga of Chief Judge Boasberg’s Contempt of Court Inquiry Involving Todd Blanche and Emil Bove Published 16 June 2026 Courts increasingly are expressing concern about the litigation conduct of the Trump administration’s Department of Justice attorneys. Courts have become reluctant to apply the “presumption of regularity” to Executive Branch actions, and many judges have often pointedly questioned the reliability and candor of DOJ’s written and oral representations.
Early Edition: June 16, 2026
Signup to receive the Early Edition in your inbox here. A curated weekday guide to major news and developments over the last 24 hours.
Key Questions on U.S. Killing Tren de Aragua Leader Inside Venezuela
On June 12, President Donald Trump announced on Truth Social that the U.S. Southern Command (SOUTHCOM) had killed “Niño Guerrero” (Héctor Rusthenford Guerrero Flores), the leader of the transnational criminal gang Tren de Aragua (TdA). Trump stated that the operation was “coordinated closely with our friends in Venezuela, with whom we are working very well.” The CIA reportedly provided intelligence for the operation.
Legal Considerations Related to the Anthropic “Export Controls Directive”
On June 12, Anthropic announced that it was disabling access to two of its advanced artificial intelligence large language models, Claude Fable 5 and Mythos 5, after receiving an order from the U.S. government to suspend access to these models by any non-U.S. national. Anthropic described the order (which the U.S. government has not publicly disclosed) as an “export controls directive” that cites “national security authorities” as the basis for the suspension.
Lawfare Daily: Supreme Court Oral Arguments on President Trump’s Tariffs
Published by The Lawfare Institute in Cooperation With In a live conversation on November 5, Lawfare Senior Editor Scott R. Anderson sat down with Lawfare Contributing Editor Peter Harrell and Georgetown Law Professors Marty Lederman and Kathleen Claussen to discuss what occurred during oral arguments in the legal challenge to President Trump’s tariffs at the Supreme Court and how the justices may rule. This episode is a part of Lawfare’s new livestream series, Lawfare Live: The Now.
Lawfare Daily: Trials of the Trump Administration, Oct. 31
In a live conversation on YouTube Lawfare Editor in Chief Benjamin Wittes sat down with Lawfare Contributor Marty Lederman, Public Service Fellow Loren Voss, and Senior Editors Scott R.
Early Edition: September 30, 2025
Signup to receive the Early Edition in your inbox here. A curated weekday guide to major news and developments over the last 24 hours. Here’s today’s news: FEDERALIZATION OF DOMESTIC POLICING The Homeland Security Department has notified Illinois it has asked the Defense Department for “the deployment of 100 military troops to Illinois,” Gov.
Sen. Elissa Slotkin on a New Vision for American National Security
Last week, Senator Elissa Slotkin (D-MI) unveiled a new “national security war plan,” centered on reviving the middle class, winning the global tech race, and rethinking how Americans are protected in an era of shifting threats and changing geopolitical realities.
What *are* the legal questions at issue in Trump's purported removal of Lisa Cook from the Federal Reserve Board?
That said, everyone--everyone--understands that Trump would not have removed Cook if she voted in accord with his views about interest rates. Whether the allegations he articulated about her mortgage applications in 2021 are true or not, no one believes that those applications are the true reason for the removal (or, frankly, that Donald Trump would ever remove anyone from office because they were untruthful about something--his own, everyday stock in trade).
Timeline of Jeffrey Epstein-Ghislaine Maxwell Law Enforcement Failures (1996-2025)
The Timeline below examines decades-long failures by federal law enforcement and oversight agencies—including the Department of Justice, the FBI, and the Department of the Treasury—in the handling of Jeffrey Epstein’s crimes: child sexual abuse and the sex trafficking of minors, as well as the sexual abuse of young adult women. These failures span Democratic and Republican administrations, and transcend party.
Trump, the National Guard, and the District of Columbia
In early August, President Donald Trump activated and deployed the D.C. National Guard to the streets of Washington, D.C., purportedly to crack down on the city’s crime. Now, three Republican governors have announced their intention to also deploy Guard troops to the nation’s capital, a predominantly Democratic city.
Congress' Next Step to Stop Trump’s Transfers to Torture
Since March, the Trump administration has been rounding up and forcibly transferring people to foreign countries of which they are not nationals. In many of these cases, including the March transfer of over 200 Venezuelans to a notorious megaprison in El Salvador, the third-party countries are known perpetrators of significant human rights abuses, according to the U.S. government’s own State Department.
Remarkable Things in the Government’s Alien Enemies Act Briefs to the Supreme Court
As many readers know, Chief Judge Jeb Boasberg has issued and extended temporary restraining orders that prohibit the Trump Administration from removing potentially hundreds of individuals from the United States before next Saturday (April 12) pursuant to a Presidential Proclamation purporting to invoke the Alien Enemies Act, which the White House made public, and which thus took effect, on March 15.
Is the Trump Administration Deliberately Violating a Federal Court Order?
Here’s the New York Times’ lede: The Trump administration denied on Sunday that it had violated a court order by deporting hundreds of Venezuelan immigrants to a prison in El Salvador over the weekend, saying that the president had broad powers to quickly expel them under an 18th-century law meant for wartime. Is that plausible? Consider this timeline: i.
The Fundamental Flaws in the Barnett/Wurman Defense of Trump’s Birthright Citizenship Executive Order
The Citizenship Clause of the Fourteenth Amendment states that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” In 1995, Walter Dellinger, then the Assistant Attorney General for the Office of Legal Counsel (OLC), testified before Congress that legislative proposals to deny birthright citizenship to children born to undocumented parents would “unquestionably” violate this...
The Most Indefensible Aspects of DOJ's Briefs in the Birthright Citizenship Cases
The Citizenship Clause, which is the first sentence of Section 1 of the Fourteenth Amendment to the Constitution, famously provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” On Jan.
The Just Security Podcast: The Supreme Court’s Decision on TikTok
On Friday, Jan. 17, the U.S. Supreme Court upheld the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act, the law which could effectively ban TikTok from operating in the United States, unless it is sold to a U.S. company. The case is the latest round in a legal battle involving free speech, national security, and the popular social media app, which is used by more than 170 million Americans.
The Just Security Podcast: Special Counsel Jack Smith’s Final Report in the 2020 Election Interference Case
Just after midnight on Tuesday, January 14, Special Counsel Jack Smith’s office released its report on President-elect Donald Trump’s efforts to overturn the 2020 presidential election. The report concludes that the evidence Smith obtained was sufficient to criminally convict Trump, but that after the 2024 election the case could not move forward in light of Justice Department policy against prosecuting a sitting president.
Would a Prohibition on TikTok Sharing Sensitive U.S.-Person Data with its Parent Company ByteDance be a Viable Alternative?
That appears to be an effective response to the petitioners' alternatives, but it doesn't answer the hypothetical David Cole has suggested: What about a law that would prohibit TikTok Inc., a U.S. company, from sharing U.S. person data not only with the PRC itself but also with ByteDance or any other company that's subject to PRC control?
Balkinization
It's true that a court can, under certain circumstances,enjoin a government actor from enforcing a statute. And perhaps one can assume—on a very generous reading of the amicus brief—that that’s what Trump is, in effect, asking the Court to do.
The Centrality of the Data-Protection Justification in TikTok Inc. v. Garland
Front page Balkin.com Balkinization an unanticipated consequence of Jack M.
A Review of Donald Trump’s Appellate Brief, and Amicus Briefs, Concerning the Appointment of Jack Smith as Special Counsel
On July 15, Judge Aileen Cannon held that Attorney General Merrick Garland lacked statutory authority to appoint Jack Smith as a Special Counsel to investigate and prosecute federal criminal charges against former President Donald Trump. On the basis of that holding, Judge Cannon granted Trump’s motion to dismiss the indictment against him in the case involving documents retained at Mar-a-Lago.
Toward a Fuller Understanding of the U.S. (and Israeli) Legal Objections to ICC Arrest Warrants for Netanyahu and Gallant, Part II
On August 6, the United States submitted “written observations” to the International Criminal Court (ICC) concerning the Prosecutor’s investigation of the “Situation in the State of Palestine.” In that submission, the United States made two principal arguments.
A Vivid Illustration of the Impact of the Roberts Court's Radical New "Unitary Executive" Doctrine
Note the astonishing leaps Roberts makes there. First, he cites Justice Jackson as authority for the proposition that a presidential constitutional authority is "sometimes" preclusive (in the sense of being immune from statutory regulation).
Toward a Fuller Understanding of Objections to ICC Prosecutor’s Request for Netanyahu and Gallant Arrest Warrants
This article was originally published on Sept. 16, 2024. It is now updated on Oct. 7, 2024 following the public release on that day of Israel’s two submissions to the International Criminal Court. Substantive updates are identified in the body of the text below.
Why Judge Cannon Was Wrong to Reject the Supreme Court's Statutory Holding
Wednesday, July 24, 2024 The Nixon Tapes Case at 50: Why Judge Cannon Was Wrong to Reject the Supreme Court's Statutory Holding Marty Lederman Posted 9:55 AM by Marty Lederman [link] Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M.
United States v. Nixon at Fifty: Why Judge Cannon Is Wrong About the Attorney General’s Authority to Select a Special Counsel
Fifty years ago today, the Supreme Court issued its landmark ruling in United States v. Nixon. Nixon involved the constitutionality of a subpoena for tapes that District Judge John Sirica issued to the sitting President at the behest of Leon Jaworski, a “special prosecutor” who had an unprecedented degree of independence from DOJ leadership (and from the President). Jaworski was appointed to his position by Acting Attorney General Robert Bork.
The Just Security Podcast: Presidential Immunity After Trump v. United States
This week, the U.S. Supreme Court issued its decision in Trump v. United States, finding that former presidents have “absolute immunity” for certain “official acts” taken while in office. The decision is a potentially sweeping expansion of presidential power and raises many questions, such as how to separate “official” and “unofficial” conduct in practice, and how it will impact the prosecutions against former President Donald Trump. What are the opinion’s key takeaways?
Robert Leider on Sources of Presidential Immunity
Robert Leider on Sources of Presidential Immunity April 30, 2024 | Tags: REASON I've benefited from much thoughtful commentary about last week's arguments in Trump v. United States, the presidential immunity case (besides posts at this blog, see e.g. these posts by Jack Goldsmith and by Marty Lederman).
Robert Leider on Sources of Presidential Immunity
Immunity from personal jurisdiction. Of the four "exceptions" I lay out in this blog post, this is the only true "immunity." Presidents cannot be indicted or prosecuted while they remain in office. The Office of Legal Counsel has long advocated this position. The source of this immunity is historical and structural. Historically, immunity from personal jurisdiction could be viewed as a remaining remnant of sovereign immunity that the Crown possessed.
A few preliminary reactions to the oral argument in Trump v. United States
Front page Balkin.com Balkinization an unanticipated consequence of Jack M.
What's dividing the Justices (and other initial reactions to the Court's decision in Trump v. Anderson)
The second of these two sentences is, I think, a not-so-veiled reference to a challenge to agency action under the Administrative Procedure Act, or pursuant to an Ex Parte Young-like prospective enforcement action.
The Relative Insignificance of the (Resolution of) Trump's "Presidential Immunity" Argument
Front page Balkin.com Balkinization an unanticipated consequence of Jack M.
The Insignificance of Trump’s “Immunity from Prosecution” Argument
Any day now, the Supreme Court will decide what to do with Donald Trump’s application for a stay of the lower court proceedings in the federal criminal case against him in the District of Columbia.
The Justices’ Principal Concern at Oral Argument, and the Possibility of a Federalism-Based Resolution
Front page Balkin.com Balkinization an unanticipated consequence of Jack M.
The First Amendment/Right to Vote/Federalism-Based "Off-Ramp" Argument that is Likely to Carry the Day
Thursday, February 08, 2024 A User’s Guide to Trump v. Anderson, Part Eight: The First Amendment/Right to Vote/Federalism-Based "Off-Ramp" Argument that is Likely to Carry the Day Marty Lederman Posted 12:44 PM by Marty Lederman [link] Books by Balkinization Bloggers Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v.
Ten Arguments that Petitioners Haven’t Raised (or that Trump Only Invoked Late in the Game)
Front page Balkin.com Balkinization an unanticipated consequence of Jack M.
Bruce Ackerman Misunderstands My Point About What Colorado is Doing and May Do
Front page Balkin.com Balkinization an unanticipated consequence of Jack M.
Trump’s Argument That He Did Not Engage in an Insurrection
The Republicans have to get tougher. You’re not going to have a Republican Party if you don’t get tougher. They want to play so straight. They want to play so, sir, yes, the United States. “The Constitution doesn’t allow me to send them back to the States.” Well, I say, yes it does, because the Constitution says you have to protect our country and you have to protect our Constitution, and you can’t vote on fraud. And fraud breaks up everything, doesn’t it?
Trump’s Argument That His Tenure as President Did Not Subject Him to Section 3 Because the President is Not an “Officer of the United States”
Front page Balkin.com Balkinization an unanticipated consequence of Jack M.
Two Important Things All the Parties Get Wrong, and One Other Important Thing They Don’t Address
See, e.g., Trump Br. at 3 (“The state courts should have regarded congressional enforcement legislation as the exclusive means for enforcing section 3.”); id. Part III (pp. 38-40) (arguing that Section 3 “does not confer enforcement authority on state courts or state officials,” and that Congress’ chosen methods of enforcement have “implicitly preclude[d]” enforcement by “state courts or state officials”); id.
The Three Possible, but Less-than-Ideal, Dispositions of the Case
As I noted in my previous post, overwhelming majorities in both the U.S. House of Representatives and the Senate already have determined that Donald Trump’s conduct on January 6, 2021 “warrants … disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” What's more, the Article of Impeachment that those congressional majorities endorsed actually stated that because Trump “engaged in an insurrection” on January 6, 2021, he’s disqualified from holding...
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