Category: Constitutional Law

Columns, Constitutional Law, Courts, Criminal law, Supreme Court

The Constitutional Abyss: Justices Signal a Desire to Avoid Both Cliffs on Presidential Immunity

Below is my column in the New York Post on yesterday’s oral arguments on presidential immunity. As expected, with the exception of the three liberal justices, the Court appears to be struggling to find a more nuanced approach that would avoid the extreme positions of both parties. Rather than take a header off either cliff, the justices seem interested in a controlled descent into the depths of Article II.

Here is the column: Continue reading “The Constitutional Abyss: Justices Signal a Desire to Avoid Both Cliffs on Presidential Immunity” →

Constitutional Law, Courts, Criminal law, Free Speech

Ninth Circuit Rules Against Seattle in Using “Heckler’s Veto” in Arrest of Pro-Life Protester

We have often discussed how cities and universities will use the threat of protests to block or shutdown free speech, particularly of conservative speakers or groups. We now have a major decision out of the United States Court of Appeals for the Ninth Circuit that could prove an important precedent in resisting the growing anti-free speech movement in the United States. In Meinecke v. City of Seattle, the court ruled against Seattle in a case involving the arrest of a pro-life protester. Matthew Meinecke was harassed by Antifa and other counterprotesters, but police arrested Meineche when he refused to yield in exercising his right to free speech. Continue reading “Ninth Circuit Rules Against Seattle in Using “Heckler’s Veto” in Arrest of Pro-Life Protester” →

Constitutional Law

Berkeley Law Student: We Had A Protected Right to Protest at Dean’s Home

We recently discussed the students who conducted a protest inside the home of Berkeley Dean Erwin Chemerinsky and his wife, law Professor Catherine Fisk. The students, including UC Berkeley law student Malak Afaneh, refused to stop disrupting the dinner as Chemerinsky and Fisk reminded them that this is their home, not a public forum. Now Afaneh is claiming a First Amendment right to enter a private home and protest and she is citing legal advisers with the National Lawyers Guild. Continue reading “Berkeley Law Student: We Had A Protected Right to Protest at Dean’s Home” →

Constitutional Law, Courts, Criminal law

“Nonsensical”: Another Federal Judge Rejects All of Hunter Biden’s Claims for Dismissal
While some legal analysts continue to boost Hunter Biden’s legal claims, the reviews in actual courts are far less glowing. Recently, we discussed a federal judge rejecting all eight motions of Hunter Biden to dismiss his tax charges in a stinging opinion citing a conspicuous lack of actual evidence to support their claims. Now, U.S. District Judge Maryellen Noreika has also rejected those claims in the gun case in Delaware, calling Hunter’s arguments “nonsensical.” Continue reading ““Nonsensical”: Another Federal Judge Rejects All of Hunter Biden’s Claims for Dismissal” →
Constitutional Law, Courts, Criminal law, Free Speech

“Plainly Erred”: Judge Reggie Walton Rebuked by D.C. Circuit in J6 Case

D.C. Circuit Judge Reggie Walton recently caused a stir in Washington after doing an interview with CNN in which he rebuked former President Donald Trump for his criticism of judges and their family members. Now, Judge Walton has been criticized by the United States Court of Appeals for the District of Columbia for a surveillance order of the computer of a January 6th defendant to detect any spreading of “disinformation” or “misinformation.”

Continue reading ““Plainly Erred”: Judge Reggie Walton Rebuked by D.C. Circuit in J6 Case” →

Constitutional Law, Politics

White House Flack Raises Legal Concerns Over Spinning the Biden Corruption Scandal

In a city of flacks, Ian Sams is prototypical. Quotable, punchy, and fast on social media, he stays ahead of the news cycle. Those traits are greatly valued by clients in this city where losing control of a narrative can allow a controversy to metastasize into a full fledge scandal. What is different is the client. Sams, a well–known Democratic operative, is not working for a Democratic campaign, but a Democratic president and speaks for the White House Counsel. Continue reading “White House Flack Raises Legal Concerns Over Spinning the Biden Corruption Scandal” →

Columns, Congress, Constitutional Law

The Return of Anthony Comstock: The Abortion Pill Case Raises a Law With A Dark and Troubling Past

Below is my column in the Hill on the return of the Comstock Act to the national debate. The controversial law came up in oral arguments over the access to the abortion pill in the Supreme Court. The history of the Act, and its namesake, remains a blot on our legal system. The repeal of the Comstock Act is long overdue.

Here is the column:

Continue reading “The Return of Anthony Comstock: The Abortion Pill Case Raises a Law With A Dark and Troubling Past” →

Academia, Constitutional Law

Minnesota Law School Drops Exclusion of Whites and Males from Diversity Scholarship

There is a curious resolution of a civil right complaint against University of Minnesota Law School over a diversity fellowship sponsored by the law firm of Jones Day. Despite being created by a law firm and administered by a law school, the fellowship violated federal law in excluding white and male applicants. The law school finally threw in the towel, but there remains an uncertainty over whether the school is engaging in a subterfuge by opening up the scholarship while retaining its original purpose. Continue reading “Minnesota Law School Drops Exclusion of Whites and Males from Diversity Scholarship” →

Constitutional Law, Criminal law

Fifth Circuit Blocks Texas SB 4 and Rejects the Invasion Theory Under State War Clause

The United States Court of Appeals for the Fifth Circuit has blocked border enforcement by the state under Texas’s SB 4.  Many of us had predicted this result given the prior precedent of the Supreme Court on the federal preemption of state immigration laws. However, the opinion also rejected the invasion theory made by states under Article 1, Section 10 and the “State War Clause.” I also previously discussed how this interpretation would fail due to the text, intent, and history of the underlying constitutional provision. Continue reading “Fifth Circuit Blocks Texas SB 4 and Rejects the Invasion Theory Under State War Clause” →

Constitutional Law, Courts, Free Speech

The Gag and the Goad: Trump Should Appeal Latest Gag Order

New York Supreme Court Justice Juan Merchan this week became the latest court to impose a gag order on former president Donald Trump with a stinging order that found a history of Trump attacks that threatened the administration of justice. The order will bar public criticism of figures who are at the center of the public debate over this trial and the allegation of the weaponization of the legal system for political purposes, including former Trump counsel Michael Cohen, former stripper Stormy Daniels, and lead prosecutor Matthew Colangelo. Trump is still able to criticize Manhattan District Attorney Alvin Bragg and Merchan himself.  What is most striking is the protection of Cohen who continues to goad Trump in public attacks.

Continue reading “The Gag and the Goad: Trump Should Appeal Latest Gag Order” →

Columns, Congress, Constitutional Law, Politics

The Dripping Away of the Democratic Party: Sir Thomas More and the Biden Corruption Scandal

Below is my column on Fox.com for the hearing this week on the corruption scandal involving the Biden family. For years, the Democrats have opposed any effort to investigate the Bidens, including as part of the current impeachment inquiry. Various members misrepresented my earlier testimony during the hearing on the basis for the impeachment inquiry. Members like Rep. Jamie Raskin (D., Md.) stated that I joined other witnesses in saying that there was nothing that could remotely be impeachable in these allegations. That is demonstrably untrue. My testimony stated the opposite. I refused to pre-judge the evidence, but stated that there was ample basis for the inquiry and laid out various impeachable offenses that could be brought if ultimately supported by evidence. I also discussed those potential offenses in columns. The purpose of the hearing was not to declare an impeachment on the first day of the inquiry. Unlike the two prior impeachments by many of these same Democratic members, this impeachment inquiry sought to create a record of evidence and testimony to support any action that the House might take.

Here is the column: Continue reading “The Dripping Away of the Democratic Party: Sir Thomas More and the Biden Corruption Scandal” →

Constitutional Law, Courts, Politics

New Mexico Loses Another Key Fight Over Ban on Concealed Weapons in Public Parks

We previously discussed New Mexico Gov. Michelle Lujan Grisham’s effort to effectively ban guns (both open carry and concealed) with a flagrantly unconstitutional public health emergency order last year. After triggering a court fight, Grisham backed down and scaled down her order to ban concealed weapons in parks and playgrounds. The park ban was enjoined by U.S. District Kea W. Riggs as presumptively unconstitutional, leaving only a small fraction of Grisham’s original effort. Now, the United States Court of Appeals for the Tenth Circuit has rejected her bid to lift that injunction in a key decision on appeal. Continue reading “New Mexico Loses Another Key Fight Over Ban on Concealed Weapons in Public Parks” →

Columns, Constitutional Law

A Moment of Supreme Clarity: How the Court Delivered a Blow to the Lumberjack School of Constitutional Law

Below is my column in USA Today on the unanimous decision of the Supreme Court to reject the disqualification of former president Donald Trump from the 2024 election. Some Democrats are now seeking to resume the effort through Congress to prevent voters from being able to vote for the leading candidate for the presidency.

Here is the column: Continue reading “A Moment of Supreme Clarity: How the Court Delivered a Blow to the Lumberjack School of Constitutional Law” →

Columns, Congress, Constitutional Law, Politics

Raskin and the Agents of Chaos: Democrats Prepare to Resume Disqualification Efforts in Congress

Calling it “one on a huge list of priorities,” Rep. Jamie Raskin (D., Md.) announced that he will be reintroducing a prior bill with Reps. Debbie Wasserman Schultz and Eric Swalwell to disqualify not just Trump but a large number of Republicans from taking office. Continue reading “Raskin and the Agents of Chaos: Democrats Prepare to Resume Disqualification Efforts in Congress” →

Res ipsa loquitur – The thing itself speaks