Month: January 2020

Columns, Congress, Constitutional Law

Rehnquist Versus Chase: History Offers Roberts Few Models For Defining His Role

Below is my column in The Hill newspaper on the uncertain role of Chief Justice John Roberts as the presiding officer of the Senate impeachment trial. I have already raised some questions over Roberts’ refusal to read a question from Sen. Rand Paul after Paul insisted that the question did not ask for or use the identity of the whistleblower. Even more significant questions could arise as early as today.

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Bizarre, Congress

Pelosi Questions Why The President’s Lawyers Are Not Disbarred

Speaker Nancy Pelosi (D., Cal.) made an extraordinary statement yesterday that suggests that lawyers representing President Donald Trump should be disbarred: “I don’t know how they can retain their lawyer status, in the comments that they’re making.” Just as I have been highly critical of President Donald Trump’s attacks on Adam Schiff and others, this is a truly outrageous suggestion. These lawyers are performing a key function in our constitutional system in not just representing an accused person but fulfilling a vital role in an impeachment trial. Because Pelosi disagrees with their legal arguments, she insinuates that they should not be licensed attorneys. It is precisely the type of ad hominem attack that Democrats criticize with the President.

Pelosi added that Trump “will not be acquitted” even if he is acquitted — entirely decoupling the Democratic position from either constitutional or ethical norms.

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Media, Politics

Former CNN Anchor Denounces Buttigieg’s Reference To The “American Heartland” As Racist
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On the campaign trail, Mayor Pete Buttigieg (like Nancy Klobucher and other presidential candidates) has emphasized his ties to the “American Heartland.” The Midwest has long been viewed as an area known for moderate and common sense politics. However, a recent reference by Buttigieg to his roots in the “American Heartland” has led former CNN anchor Soledad O’Brien to denounce his words as a racist “dog whistle.”

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Bizarre, Congress, Constitutional Law

Schiff Repeats Flawed Position That A Two-Thirds Vote Might Be Needed To Overrule The Chief Justice

I recently wrote about the clearly incorrect theory of Neil Katyal that a two-thirds vote would be needed to overturn a ruling of the Chief Justice on calling witnesses. What was astonishing is not just that the New York Times gave credence to the theory but that the lead House manager would reference it last night. It is wildly at odds with the rules and the traditions governing impeachment. Strong arguments could be raised that the presiding officer cannot even break ties on such issues (despite the fact that Chief Justice Salmon Chase maintained such a robust view). With the confrontation today between Chief Justice Roberts and Sen. Rand Paul, this suggestion has bearing on possible votes today or tomorrow.

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Courts, Criminal law, Politics

Justice Department Drops Demand For Jail For Flynn

The Department of Justice has dropped its demand for former National Security Adviser Michael Flynn to serve time under his plea agreement. Flynn was attempting to withdraw his plea after the Justice Department set out in what was an overtly vindictive campaign against him in court. The Flynn case remains a troubling matter for those who have followed the Russian investigation. He pleaded guilty to a false statement that seems relatively minor in comparison to false statements made by Justice officials like Andrew McCabe or leaks by figures like James Comey.

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Columns, Congress, Constitutional Law, Media

Was The Bolton Leak Too Perfect? The Senate Grapples With The First Perry Mason Moment Of A Presidential Impeachment
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Below is my column in the Washington Post on the still unfolding drama surrounding the leaked contents of the book by former National Security Adviser John Bolton.

Here is the column:

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Congress, Constitutional Law, Courts

“If I Have To Fight For Recognition, I Will”: Paul and Roberts On Collision Course Over Whistleblower Questions [UPDATED]

Yesterday’s question and answer period was a largely choreographed exercise with legal teams spontaneously responding to questions with preset video clips and visual displays. However, there was one major but largely overlooked moment that raises some serious issues over the authority of the presiding officer vis-a-vis the Senate. In the midst of the questions, Robert spiked a question from Sen. Rand Paul (R, Ky). It concerned the whistleblower and the underlying legal premise for barring the question could prove controversial today. UPDATE: Roberts again refused to read the question of Sen. Paul. After the Chief Justice refused to ask his question, Rand walked out of the Senate.

Continue reading ““If I Have To Fight For Recognition, I Will”: Paul and Roberts On Collision Course Over Whistleblower Questions [UPDATED]” →
Congress, Constitutional Law, Criminal law, Politics

Mutually Assured Destruction: Unable To Block Witnesses, The GOP Moves To “Plan B”

In my recent Washington Post column, I stated that the Bolton leak accomplished its obvious design to throw the White House defense into disarray and to secure the votes for witnesses. However, I noted that the success could come at a price through ” a mutually assured destruction option: allow both sides to lay waste to each other and leave it to the public to pick through the ruins.” That appears to be the “Plan B” being discussed by Republicans in a game of chicken over witnesses.

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Academia, Congress, Constitutional Law, Media

Tribe: The Choice is Now Between Witnesses and Dictatorship

While I disagreed with Harvard Professor Alan Dershowitz on this theory of impeachment, I recently praised his presentation in the Senate as a cogent and well-constructed case for the defense. Clearly, his colleague Harvard Professor Laurence Tribe does not share my view. He denounced Dershowitz’s argument as “remarkably absurd and extreme and dangerous.” In this presentation, Dershowitz defended his own switch on the issue of the prerequisite of criminality for impeachment by noting that Tribe had also switched his view. Tribe went further to declare that the choice was now between witnesses and “dictatorship.” Even as someone who favors witnesses, I fail to see the imminent danger of dictatorship on the issue. Indeed, I understand the reluctance over witnesses aside from any desire to protect Trump. I believe senators have a legitimate interest in not creating precedent allowing the House to impeachment on such a slipshod and incomplete record. That is why I proposed an alternative solution.

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Media, Politics

Trump Attacks Fox News For Interviewing Democrats

Recently, I criticized Lawrence O’Donnell for proudly proclaiming that MSNBC would not invite Trump defenders on the network because they are liars. O’Donnell’s comment brought a rare joining of voices from across the political spectrum denouncing the knowing bias in such statements. Once again, however, President Donald Trump has supplanted the story with his own equally objectionable statement. On Tuesday, he attacked Fox News for interviewing Democrats like Sen. Chris Van Hollen and declared “this will be the beginning of the end for Fox.” If so, it would mean the end of journalism since Fox News was merely offering both sides of these stories in interviewing one of the senators who will be voting in the upcoming trial.

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Bizarre, Congress, Lawyering

Giuliani: Democrats Fear My “Physical Presence”

Rudy Giuliani has a curious response to New York Daily News reporter Chris Sommerfeldt in a late night text on the developments in the Senate. He explained that the Democrats would not call him as a witness because “[Democrats] have indicated in every way possible they are afraid of my physical presence.” It was a bizarre moment because Giuliani has been a perpetual motion machine of controversy. The House is not the only group of lawyers fearful of his presence.

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Columns, Congress, Constitutional Law, Criminal law

Choosing the Unpalatable Over The Disastrous: Shoot Article II and Call The Witnesses

Below is my column in the Washington Post on the best course for the House managers in securing witnesses. The column was posted before the Bolton leak, which may now secure the needed four votes of swing Republican senators. However, Article II is as dead as Dillinger. Indeed it was dead on arrival. The two days of White House argument wiped out what little support existed for the charge given the decision to rush this impeachment and then impeach a president for raising executive privileges and immunities. The strongest material of the White House was directed at this exceedingly weak and unwarranted article of impeachment. Democratic senators speak a great deal of the need for bipartisanship . . . for Republicans. It is time for those same senators to show that they are equally expected and capable of putting aside party for principle. It is time for Democratic senators to join in the call to reject Article II.

Here is the column:

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Congress, Constitutional Law, Media

The Yawn and the Relentless: Viewers Choose Day Time Soaps Over The Impeachment Trial

         In the 1960s, many of the Senators heard the anti-war slogan of “what if they held a war and nobody came?” This week, they finally learned the answer . . . at least in holding an impeachment.  Senators have expressed surprise at the empty seats in the Senate gallery.  Sen. James Inhofe (R-Okla.) said he was “really surprised . . .  because this is kind of historic.”  It is but the members are increasingly making history alone. Not only are spectators sparse, but the television audience has been declining to the point that, by the second day, the networks quickly switched over to shows in greater demand like The Young and The Restless.  Nielson rating showed that the soaps were twice as popular as the trial.

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Congress, Courts, Politics, Supreme Court

Supreme Court Rules That Trump Administration Can Go Forward With Public Charge Rule Of Immigrants

The Supreme Court delivered a major, if temporary, victory for the Trump Administration in the immigration field. The Administration has sought to implement the “public charge rule,” that would allow the denial of immigrants who will rely on public assistance, including most forms of Medicaid, food stamps and housing vouchers. In a brief order, the Supreme Court voted 5-4 to lift a nationwide injunction and allow the rule to be implemented while litigation continues.

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Academia, Congress, Constitutional Law, Lawyering

In Defense of Dershowitz: Critics Slam Harvard Professor For Ethical Representation and Intellectual Opinions
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Alan Dershowitz is hardly someone in need of the defense of others. However, there is a disturbing level of acrimony and personal attacks directed at the retired Harvard professor after he agreed to speak in defense of President Donald Trump. As I tweeted last night, I have strong disagreements with Dershowitz over his theory that impeachment articles must be based on criminal acts. However, I thought his presentation last night was outstanding. It was powerfully presented and he made some compelling points. While we disagree, it is a presentation that everyone should have watched. The shame is that few people are watching and even fewer are listening. To make matters worse, liberals (who pride themselves on supporting individual rights) are attacking Dershowitz for defending unpopular individuals like O.J. Simpson and Jeffrey Epstein. That is what criminal defense attorneys do. They represent accused and often highly unpopular individuals. It is the rankest form of attack to suggest that a lawyer defending a client is somehow tainted by the crimes alleged in the case.

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