Month: December 2019

Congress, Media, Politics, Society

Sentence First! Verdict Afterwards”: Senators Signal Their Votes Before Actual Impeachment

I often remark that my Senate trial defending Judge Thomas Porteous has a jury that I would normally strike for cause en masse. An impeachment jury composed of politicians can be akin to a maritime inquiry with a jury composed of the Pirates of Penzance. This week, Senators in both parties seemed to signal their votes before an actual impeachment has occurred, let alone a trial,. Sen. Lindsey Graham (R., S.C.) declared “I’m not trying to pretend to be a fair juror here.” While the media focuses on Graham’s statement, Democratic senators have also made comments indicating that they have made up their minds. Indeed, yesterday, Sen. Chris Coons (D., Del.) declared that “if the Senate Republican majority refuses to discipline him through impeachment he will be unbounded.” It smacks of the Queen of Hearts in Alice in Wonderland: “Sentence first! Verdict afterwards.”

Continue reading “Sentence First! Verdict Afterwards”: Senators Signal Their Votes Before Actual Impeachment” →
Bizarre, Congress, Constitutional Law, Criminal law

Pelosi On Dropping The “Devastating” Bribery Article: “I Am Not A Lawyer”

I was pleased to see that the Judiciary Committee dropped previous claims of bribery, extortion, campaign finance and obstruction of justice as the basis for impeachment. I testified that the repeated assurances on these allegations from members, legal analysts, and my fellow witnesses were well outside the definitions for these crimes. The Committee ultimately went forward with the only two articles that I viewed as legitimate while rejecting my arguments to wait to build a sufficient record for submission to the Senate. I have received considerable criticism for my long opposition to the bribery theory as unsustainable as an impeachable offense. Thus, I was interested in hearing from the two members who were most adamant in their past declarations that bribery was established: Speaker Nancy Pelosi and House Intelligence Committee Chair Adam Schiff. Speaker Pelosi has now responded and her answer is far from satisfying. Frankly, calling the evidence of bribery “devastating” is a lot like calling the Ukrainian call “perfect.” It can be dismissed as hyperbolic but Pelosi was declaring the expected basis for the impeachment of an American president.

Continue reading “Pelosi On Dropping The “Devastating” Bribery Article: “I Am Not A Lawyer”” →
Criminal law, International, Justice, Politics

Sudan’s Omar al-Bashir Sentenced to Prison. Will Extradition to The ICC Eventually Follow?
Omar Hassan Ahmad al-Bashir (ICC Photo)

By Darren Smith, Weekend Contributor

A Sudanese court sentenced former Sudan President and accused genocidist Omar al-Bashir to two years imprisonment following his recent conviction for corruption. Additionally, the Court ordered forfeiture of millions in Euros and Sudanese Pounds discovered at his residence after being deposed by a military coup. He faces the likelihood of additional charges levied against him in the near future.

From a foreign perspective, there still remains the unresolved matter of Mr. al-Bashir’s two arrest warrants issued by the International Criminal Court in The Hague stemming from accusations of genocide and other crimes against humanity.

Continue reading “Sudan’s Omar al-Bashir Sentenced to Prison. Will Extradition to The ICC Eventually Follow?” →
Academia, Bizarre, Congress, Constitutional Law

“The First Time In History”: Gerhardt Claims McConnell Is The First Senate Leader To Coordinate With White House On An Impeachment Trial

University of North Carolina Law Prof. Michael Gerhardt made a remarkable claim this week when asked about stories that Majority Leader Mitch McConnell (R, Ky.) was coordinating on the details of the Senate impeachment trial with the White House. Gerhardt claimed that such a thing has never happened in history. Despite my long association and friendship with Gerhardt, I must disagree with that remarkable suggestion.

Continue reading ““The First Time In History”: Gerhardt Claims McConnell Is The First Senate Leader To Coordinate With White House On An Impeachment Trial” →
Congress, Constitutional Law, Politics

A Brief History Of Time: A Response To Chairman Schiff On The Need To Impeach By Christmas

The House Judiciary Committee is about to approve two articles of impeachment as member after member last night declared that time is of the essence. The House is now set to fulfill its pledge to impeach President Donald Trump by Christmas. For some us, the mad rush toward impeachment by the Democrats has been utterly incomprehensible.  It is difficult enough to go to the Senate in a presidential impeachment without an accepted crime and on the narrowest basis in history.  However, the Democrats know that they have combined those liabilities with the thinnest record of any modern impeachment – a record filled with gaps and conflicts.  The Democrats know that this record is guaranteed to fail and could easily justify the Senate holding a trial as cursory as its hearings.  Yet, they would prefer guaranteed failure rather than build a credible case for removal.  Why? The reasons put forward by House Intelligence Committee Chair Adam Schiff (D-Calif.) and others are not credible and, given the paucity of examination given these claims, it is worth closer scrutiny.

So, to use Stephen Hawkings’ famous construct, here is a brief history of time for impeachment.

Continue reading “A Brief History Of Time: A Response To Chairman Schiff On The Need To Impeach By Christmas” →
Columns, Congress, Constitutional Law, Society

The Art of Impeachment: Why I Still Just See A Banana Taped To A Wall
YouTube Screenshot

Below is my column in The Los Angeles Times on the decision of the House leadership to proceed with an impeachment of President Donald Trump on two articles of abuse of power and obstruction of Congress.

Art and impeachments are rarely an exercise of objectivity.  I testified that the impeachment alleged crimes like bribery, extortion, campaign finance violations, and other crimes (including those based on the Mueller investigation) are wildly outside standard definitions of those crimes.  Where the Committee obviously departed from my position was moving forward with this record. While I testified that Trump could be impeached for non-crimes like abuse of power, the record in this case is far too thin and incomplete to support submission to the Senate. Yet, how one sees this impeachment seems to depend on one’s perspective in the art of impeachment.

Here is the column:

Continue reading “The Art of Impeachment: Why I Still Just See A Banana Taped To A Wall” →
Media, Politics

Leaving Half The Country Behind: Poll Shows Majority Now Opposes Impeachment

During the testimony last week, I expressed various concerns with the artificially short period allowed for the impeachment investigation due to the Democratic pledge to impeach President Donald Trump by Christmas. Not only will that abbreviated period leave a thin and incomplete record, but it will leave “half of this country behind.” That appears to be exactly the right estimate. A new Monmouth poll shows that 50 percent of the country now opposes impeachment. The polling in some swing states is even worse. In other words, this impeachment is playing to the Democratic base and little beyond it — precisely what Speaker Nancy Pelosi pledged that she would not allow to happen.

Continue reading “Leaving Half The Country Behind: Poll Shows Majority Now Opposes Impeachment” →
Congress, Constitutional Law, Courts, Media

Alan Morrison: Turley Is Right But Ultimately Wrong

I have the distinction of serving at George Washington Law School with many accomplished academics, including Professor Alan Morrison who is one of the most respected legal figures in the country with extensive litigation and public interest experience. Professor Morrison has written the column below where he disagrees with my ultimate position in the impeachment hearing and I am delighted to offer this opposing view as a guest columnist on our site.

Continue reading “Alan Morrison: Turley Is Right But Ultimately Wrong” →
Columns, Criminal law, Justice, Lawyering

Titanic Failure: What The Horowitz Report Actually Says About The Russian Investigation

I previously discussed the bizarre narrative in the media that the main takeaway from the Horowitz report was the debunking of a conspiracy theory. Below is my column in the Hill newspaper on some of the actual findings of the Horowitz report. The report shows that there was not credible evidence to maintain the investigation and that the Steele Dossier was essential to securing the FISA investigation despite repeated media statements to the contrary.

Here is the column:

Continue reading “Titanic Failure: What The Horowitz Report Actually Says About The Russian Investigation” →
Justice, Lawyering, Media, Politics

Lisa Page Sues FBI and Justice Department For Privacy Violations

Former FBI lawyer Lisa Page is suing the FBI and Department of Justice for violating the Federal Privacy Act in the release of their test messages to former FBI Counterespionage Chief Peter Strzok. President Donald Trump has made repeated and mocking references to the texts, including salacious and romantic messages between the two former FBI employees who engaged in an extramarital affair. Many of us have recoiled at the level of disclosure of this affair and particularly the President’s inappropriate taunts, including last night at a rally in Pennsylvania. The lawsuit could raise some interesting questions of the privacy affords such records, but it is unlikely to prevail.

Continue reading “Lisa Page Sues FBI and Justice Department For Privacy Violations” →
Bizarre, Media, Politics, Torts

Trump Attacks Page and Strozk With Disturbing Reference To Alleged Restraining Order

In a highly disturbing moment last night, President Donald Trump launched into an attack on former FBI lawyer Lisa Page and former FBI Counterespionage Chief Peter Strozk with a shocking reference to a restraining order that Page allegedly had to take out on Strozk after their affair. President Trump has previously attacked the couple, even mocking them in a made-up, seemingly orgasmic conversation in bed. Those were highly inappropriate and unpresidential moments but this could be defamation, if untrue. [Some media sites like the Daily Beast are saying that the allegation is being denied as untrue] Even if it is not actionable, occupying the space somewhere between defamation and demagoguery is no place for a president. (Note Lisa Page just filed a lawsuit under the Privacy Act on the disclosure of her emails with Strozk).

Continue reading “Trump Attacks Page and Strozk With Disturbing Reference To Alleged Restraining Order” →
Congress, Constitutional Law

Impeachment Addiction? Rep. Bass Lays Out Possible Second Impeachment

We previously discussed the declaration of Rep. Al Green that the House might approve successive impeachments against President Donald Trump. On Tuesday, Rep. Karen Bass, D-Calif., laid out an additional plan, impeach Trump if he wins reelection in 2020 and the Democrats take the Senate. The comments suggest a certain impeachment addiction that may be growing in the Democratic ranks. Saying that you may want a do-over before it is over reflects a growing political dependence on impeachment as a form of political speech.

Continue reading “Impeachment Addiction? Rep. Bass Lays Out Possible Second Impeachment” →
Congress, Constitutional Law, Politics

Democrats Drop Bribery and Other Crimes In Favor Of A Two-Article Impeachment

The Democratic leadership announced today that it has decided that President Donald Trump will be accused of just two articles of impeachment: abuse of power and obstruction of Congress. I commend the Committee in dropping the previous claims of bribery, extortion, campaign finance and obstruction of justice. While my fellow witnesses made good-faith arguments for those articles, my testimony primarily focused on the legal and constitutional flaws in claiming those criminal acts. I also commend the Committee in not following the suggested course of many in ignoring the legal definitions of those crimes to claim an impeachable offense. Finally, Judiciary Chairman Jerry Nadler is correct as he stated yesterday that I repeatedly stated that President Donald Trump could be impeached for a non-criminal act like abuse of power if it could be proven. I also said that he could be impeached for obstruction of Congress, if proven. However, this record falls considerably short of the record needed to support such claims for a submission to the Senate.

Continue reading “Democrats Drop Bribery and Other Crimes In Favor Of A Two-Article Impeachment” →
Congress, Justice, Lawyering, Media

No, The Main Take-Away From Horowitz Was Not Debunking A “Conspiracy Theory”

I have a column out today on the Horowitz report in the Hill newspaper. As has become a common practice, the report was immediately and grotesquely misrepresented. On CNN, the takeaway was that the Inspector General “Debunks Trump conspiracy theory.” Chris Cillizza stated “That sound you just heard is the air coming out of the Trump conspiracy balloon.” It is all perfectly bizarre as are the attacks on both Attorney General Bill Barr and U.S. Attorney John Durham for their disagreement on that one finding.

Continue reading “No, The Main Take-Away From Horowitz Was Not Debunking A “Conspiracy Theory”” →