That did not take long. Director of National Intelligence Dan Coats and National Security Agency Director Adm. Mike Rogers met with Special Counsel Robert Mueller to discuss the subjects that they declined to discuss with Congress. Congress then released the information. It now appears that congressional briefings from the Special Counsel are proxy press conferences in this increasingly strange process. As expected, Coats and Rogers admitted that Trump did in fact ask them to tell the public that there was no evidence of collusion between his campaign and the Russians. That was, again, an inappropriate and ill-considered request. However, the disclosure raises a far more worrisome questions with regard to the role of White House Counsel Donald F. “Don” McGahn II. The two intelligence chiefs said that they took anticipated the questions over their conversations and asked McGahn if there was an executive privilege assertion. McGahn simply never responded. That is a highly disturbing account. Executive privilege is not some tactical toy. It has been defended as a core protection of inherent presidential powers. No high ranking officials should be sent into a committee without a clear understanding of the status of information or conversations relevant to congressional inquiries. The non-response was either negligence by the White House Counsel or, more likely and more seriously, a conscious decision to avoid the politically risky decision of either allowing answers or publicly preventing answers.
Today I will the great honor of serving as the inaugural speaker at the W. Eugene Davis Lecture in Lafayette, Louisiana. This event holds a particular personal meaning for me because I clerked for Judge Davis on the Fifth Circuit in the late 1980s. Serving as his clerk was the single most transformative decision that I have made in my professional life. The clerkship started a lifelong friendship that I cherish to this day. Judge Davis is adored by everyone who has worked with him for his unflagging decency, civility, and integrity. When I think back to my time in his chambers, I realize how much the experience — and Judge Davis — shaped my views of legal ethics, professionalism, and civility. This lecture is a fitting tribute to a man who served justice for decades as a trial judge and later an appellate judge. He is the classic and genuine judicial article. He still relishes the simple task of judging — fairly and honestly. He has spent his lifetime eschewing ideology in favor of resolving cases in an unbiased and consistent manner. He is my ideal of what everyone judge should strive to be. He remains a humble and decent man who seeks to do justice. That is why this lecture series is such a fitting testament to the legacy of W. Eugene Davis.
An 18-page investigation memorandum has been obtained by NBC News that raises some disturbing questions about the Nixon White House and specifically the role of former Secretary of State Henry Kissinger. The memo details the campaign of political violence by Nixon aides. The memo references a plot to have Daniel Ellsberg beaten up by surrogates of the Nixon Administration. Kissinger has been cited as one of those pushing Nixon to deal with Ellsberg.
In the coming weeks, I will be addressing a number of novel constitutional issues that are being raised in relation to the Russian investigation. The first such issue has been widely discussed: is there a constitutional barrier to any federal charge against President Donald Trump for obstruction of justice.
Here is my recent column in USA Today:
We recently discussed the controversy surrounding postings by June Chu, dean of the school’s Pierson College, on Yelp. She was called classist for such comments as “This establishment is definitely not authentic by any stretch of any imagination and perfect for those low class folks who believe this is a real night out.” Chu has now been fired by the university in a move that makes many academics feel uncomfortable over the monitoring of their statements outside of school in social media.
We have previously discussed the erosion of free speech rights in high schools as well as the expansion of discipline for students for discussions and postings outside of school. That conflict was vividly shown in Pennsylvania where Peter Butera was speaking to the graduating class of his high school when he criticized the lack of power in student government. The response from Principal Jon Pollard was swift. Butera’s mike was cut off and he was escorted stage.
The U.S. Supreme Court handed down a major victory for free speech on Monday in striking down a provision of the Lanham Act that barred registration for “disparaging” trademarks. The decision came in Matal v. Tam, a case that we have been following. I have previously written about my disagreement with the U.S. Patent and Trademark Office decision to rescind federal trademark protections for the Redskins as a racially disparaging name. As predicted, the ruling answered the question raised in the prior column in controversies like the denying of trademark protection to the Washington Redskins. The decision is good news for Washington’s NFL team, which lost its trademark because its name is disparaging to Native Americans.