Precedent Over “Perceptions”: D.C. Circuit Dismisses Case Against Trump Hotel

Over a year ago, we discussed the challenges brought against President Donald Trump for alleged emoluments and unfair competition connected to his properties. One of those cases was brought by my colleague, Alan Morrison who argued the case on appeal. Despite my respect for Professor Morrison, I have been critical of the theories advanced in the case, Cork v. Trump Post Office. The D.C. Circuit has now unanimously rejected the claims. Even accepting all of the facts alleged by the Plaintiffs, the court ruled that they failed to state a legal claim. In fairness to Professor Morrison and his team, this was a very difficult case with little case law to argue on the merits.

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Barr Is Wrong On FISA Reforms

Attorney General Bill Barr appears on a collision course with President Donald Trump over reforming the Foreign Intelligence Surveillance Act court. Civil libertarians like Sen Rand Paul (R., Tenn.) are pushing for reforms in light of the abuses uncovered from the Russian investigation. Despite my respect and friendship for Barr, he is wrong in my view and the President should push forward with the reforms. When President Trump declared “Now is our chance to fix it,” he is absolutely correct.

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“The Southern Border Is Not A Militarized Zone”: Federal Judge Bars Some Funds For Border Wall In Defiant Decision

In Seattle, U.S. District Judge Barbara Rothstein has issued a defiant, and somewhat curious, decision that not only denies some funding for the Southern Wall but seems to defy the Supreme Court in its recent decision in the area. Rothstein barred President Donald Trump from diverting $89 million intended for a military construction project in Washington state to build the border wall. While the Supreme Court recently lifted an injunction on such lower court rulings, Rothstein insisted that that case involved different plaintiffs and issues. I fail to see the clear distinction and the Rothstein decision, in my view, works too hard to find such a distinction.

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“The Public Doesn’t Really Decide The Nominee”: Leaders Move To Limit Democratic Choice in The Democratic Convention

As we have been discussing, establishment figures in the Democratic party and the media have been preparing to block any nomination of Bernie Sanders, including using the “superdelegates” to hand the nomination to another candidate. The New York Times reported Thursday that the Democratic establishment was preparing for open warfare over blocking Sanders, even if it shatters the unity of the party. If Sanders does not receive the necessary votes, they intend to take away the nomination even if he has the most votes in the first round. The key again are the superdelegates who are not elected in the primaries but given votes as elected officials.

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The Immaculate Concession? Washington Post’s Jennifer Rubin Posts Bizarre Claim Involving The Democratic Counsel From Trump Impeachment Hearing

Today, I defended the New York Times for an opinion piece that is the basis for a defamation lawsuit by the Trump campaign. Raising such free speech protections can be challenging when you disagree with the author (as I did). It is particularly difficult when you are also the subject of a false representation in a column, as I was this week. Unlike the New York Times column, a representation of Jennifer Rubin in the Washington Post was demonstrably false as a factual matter.

Rubin states that Democratic counsel Norm Eisen was able to extract concessions during the impeachment hearing despite the fact that he only asked me one question about a line that I had just published in the Wall Street Journal. Thus, my “concessions” appear to be repeating a line that I had just made in one of my own columns in anticipation of the impeachment hearings. I had been making this point repeatedly. Where is the concession? It was a point that I included in my written and oral testimony and was instructed to only answer “yes or no.” That was the only question asked of me at the hearing by Eisen. Indeed, I believe that that was the only question asked of me by the Democrats in the entire hearing.

I have asked for a correction from both Rubin and the Post and will update this column with any developments. However, given that this column has been running for days, I wanted to set the record straight.

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Trump Campaign Sues The New York Times For Libel

We have previously discussed President Donald Trump’s repeated calls for changing libel laws and suing his critics, particularly the New York Times. Now his campaign has done just that with a defamation lawsuit against the New York Times for allegedly publishing false claims in an op-ed written by Max Frankel on March 27, 2019, entitled “The Real Trump-Russia Quid Pro Quo.” The selection of an opinion piece makes this case especially difficult. In addition to suing a newspaper for the alleged defamation of a public official, it is doing so for a piece that is identified as opinion and appears on the opinion page. In my view, the column is protected speech under the First Amendment.

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Boston Considers Income-Adjusted Parking Tickets

The Boston City Council is considering a new system for parking tickets that would set the amount paid by violators that depended on their income. The proposal newly elected city councilor at-large Julia Mejia would implement the system of income-adjusted fines — a system that could trigger some novel legal and political questions.

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GW Professor Under Fire For Kavanaugh Attack

A professor of Media and Public Affairs at George Washington University, Sean Aday, is under fire this week from various conservative sites and Campus Reform for using the occasion of Justice Brett Kavanaugh’s birthday to call him a “rapey prep school douchebag.” As will not come as a surprise to many on this blog, I support Aday’s right to express his views on social media, even views that are offensive or obnoxious as they are here.

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Separation Anxiety? Biden Walks Back From His Claim That He Was Arrested In Seeking Visit With Nelson Mandela

After weeks of confusion, Joe Biden’s campaign have finally admitted that he was not arrested while visiting Nelson Mandela. Biden has made some false claims in the past but this was particularly bizarre. No one had any record of such a historic arrest in South Africa. While Biden did not take responsibility personally for the exaggeration, his deputy campaign manager admitted today that Biden was not arrested but merely “separated from his party at the airport.” That is a bit of a nose bleed of a step down from an arrest with Mandela to an airport separation. Hard to imagine how you confuse the two since one ordinarily involves custody, cuffs, and confinement.

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Second Circuit Rules In Favor Of Trump Administration On Sanctuary Cities

The Trump Administration won a major victory with decision by the 2nd US Circuit Court of Appeals in favor of its sanctions against “sanctuary cities” which refuse to cooperate with federal immigration enforcement. The decision in New York v. Department of Justice reversed a lower court ruling blocking the policy of withholding certain grants. Despite my disagreement with friends like Judge Napolitano, I previously stated that I thought the Administration would prevail ultimately on this challenge though there are good-faith arguments against government. The decision could have two immediate impacts. First, it will add pressure to cities in their opposition to the immigration policies. Second, it could create the type of split in the circuits that make a Supreme Court review more likely as these challenges move beyond the trial level.

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“A Mockery Of My Culture”: Students Oppose A “Mostly White” Choir For Singing Spirituals as Cultural Appropriation

I have previously discussed what appears to be an ever-expanding scope of “cultural appropriation” charges at colleges and universities. The latest controversy has arisen at Western Michigan University School of Music after a concert featured a “mostly white” choir performing African-American spirituals. “Spirituals: From Ship to Shore” was led by Salisbury University Associate Professor John Wesley Wright, who is African American. However, the racial makeup of the choir led to protests over cultural appropriation over what one advocate denounced as a “a mockery of my culture.”

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No, Sotomayor Should Not Recuse Herself From All Cases Involving The Administration

President Donald Trump has called upon both Supreme Court justices Sonia Sotomayor and Ruth Bader Ginsburg to recuse themselves from any cases involving his administration over their past comments. The trigger for this twitter storm is a recent rebuke by Sotomayor of her conservative colleagues where she suggested that they were showing bias in favor the Trump Administration. The statement of Sotomayor, which surprising to many of its directness, is not a basis in my view for such a recusal or disqualification.

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Feminist Groups Call For Ban On Rough Sex Defense In The United Kingdom

Women’s Rights groups are moving in the United Kingdom to ban the use of the rough sex defense in criminal cases. Recently, the defense was used in the murder trial of Grace Millane, 22, who was killed on a backpacking trip to New Zealand. The banning of a defense raises troubling questions as criminal defendants, who may face life imprisonment or death in some countries, being denied the ability to present their own account to jurors — an account that they maintain is true.

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Mr. Smith Goes To Traffic Court: Washington Racks Up $1 Billion In Traffic and Parking Tickets

It appears that the sequel to “Mr. Smith goes to Washington” would be Mr. Smith goes to Washington’s traffic court” . . . everyone else is. I have long written about how cities are abusing their citizens with short red-light cameras and other techniques to generate revenue through parking and speeding fines. It is a way to avoid having to raise taxes but effectively holding up citizens and then blaming them. No city however has shown the utter abandon as D.C. which raked up $1 billion in such fines in just three years.

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Roger Stone Should Be Given A New Trial, Not A Pardon

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Below is my column in the Hill newspaper on the calls for either a new trial or a presidential pardon for Roger Stone. I believe that he has a far greater claim to the former than the latter.

While I believe that the sentence of 40 months was longer than was warranted in this case, Judge Amy Berman Jackson sentenced Stone where some of us had predicted on the guidelines range. It was less than half of what the prosecutors originally asked for. Yet, the decision to go forward with the sentencing seemed odd given the substantial claim of juror bias raised by the defense in a pending motion. The other pending motion for disqualification is quite weak, but the motion for a new trial in my view should be granted. Although the odds are against Jackson ordering a new trial, it is clear that the foreperson has no business being on this jury and that her past comments raised significant and legitimate questions over whether Stone was given an impartial jury.

Here is the column:

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