Category: Columns

Columns, Congress, Constitutional Law, Media, Politics, Uncategorized

“Get The Facts”: How Twitter Is Making The Case Against Itself and Free Speech

Freedom_of_SpeechBelow is my column on the Twitter controversy and censorship of social media.  President Donald Trump has continued to tweet on cracking down on the riots as well as controversy over his tweets on Twitter.  Like former Vice President Joe Biden, he is now calling for the outright elimination of Section 230 of the federal Communications Decency Act.  While supported by many liberal members and commentators, Twitter continues to build a case against itself — and ultimately free speech on the Internet.

Here is the column:

Continue reading ““Get The Facts”: How Twitter Is Making The Case Against Itself and Free Speech” →

Columns, Media, Politics

Why Joe Biden Can Do No Wrong

220px-Biden_2013Below is my column in The Hill newspaper on special dispensation given Joe Biden by members of Congress, commentators, and the media.  We previously discussed the muted media response to false legal comments from President Barack Obama and other Obama officialson the Flynn case. The pattern of media avoidance is more glaring with recent Biden controversies. Notably, the column ran when Biden gave his interview on the radio show “The Breakfast Club” that “if you have a problem figuring out whether you’re for me or Trump, then you ain’t black.”  This weekend, I was critical of segments on CNN and NBC’s Meet the Press which quoted Biden but cut off the line where he falsely claimed to have received multiple endorsements from the NAACP.  CNN’s John King derisively referred to controversy as something people are “trying to make hay” out of and then played the interview. However, CNN clipped the tape to leave out the next line where Biden declared “The NAACP has endorsed me every time I’ve run. Come on, take a look at my record.” Despite that invitation to look at his record, CNN and other media routinely cut out the false statement and also omitted any discussion of the false claim linked to the NAACP. On a story about Biden’s claim that all black voters must vote for him (or not be truly black), it would seem material that he also falsely claimed endorsements from the leading organization in the African American community.  However, it was routinely omitted from the tape and Biden has not been asked to respond to the rebuttal from the NAACP.  It is precisely the type of crafting of the coverage to confine damage for Biden that is discussed in the column.

Here is the column: Continue reading “Why Joe Biden Can Do No Wrong” →

Columns, Constitutional Law, Courts, Criminal law, Justice, Lawyering, Media, Politics

The Flynn Court Drifts Dangerously Outside Judicial Navigational Beacons

Der Untergang der TitanicBelow is my column in USA Today on concerns over the recent orders of U.S. District Court Judge Emmet Sullivan. As leading lawyers, including a former Clinton U.S. Attorney openly advise Sullivan on how to “make trouble” for the Administration, these calls only magnify concerns over the purpose of these proceedings and whether they are increasingly detached from the merits of the pending motion. While many seem to relish the improvisational element, they risk undermining the judicial element of the proceedings. Flynn’s team has sought the removal of Sullivan (a very difficult proposition, particularly in the D.C. Circuit).  The intense opposition in the bar and teaching academy to Trump seems again to have greatly distorted the legal analysis, which fails to address the most troubling aspects of these orders.  As I have previously acknowledged, there are good-faith arguments to be made but much of the analysis has ignored the strong precedent against a denial of the motion and rarely even acknowledge the serious implications for the rights of defendants in such action. I address some of the countervailing (and in my view controlling) authority in a separate posting.

Notably, the D.C. Circuit gave Judge Sullivan ten days to respond to the motion seeking his removal. Thus, these issues will presumably be addressed by Judge Sullivan before any hearing is held.

Here is the column: Continue reading “The Flynn Court Drifts Dangerously Outside Judicial Navigational Beacons” →

Columns, Media, Politics, Society

Bobo The Clown’s Revenge? How The Media Is Reelecting Donald Trump
Screen Shot 2020-05-17 at 3.29.14 PM
YouTube Screenshot (Stanford Experiment)

Below is my column in The Hill newspaper on how the media seems confused by polls that not only fail to show former Vice President Joe Biden surging but some showing Trump pulling ahead with voters.  The problem is that the media has never shown any real interest in understanding Trump voters, preferring to stereotype them as racists, as done in a recent Washington Post column.  The truth might be found in a famous Stanford experiment called “Bobo the Clown.”

Here is the column: Continue reading “Bobo The Clown’s Revenge? How The Media Is Reelecting Donald Trump” →

Columns, Media, Politics, Society

The Unmasking of Joe Biden

220px-Biden_2013Below is my column in The Hill newspaper on the contradictions revealed in recent disclosures, including the list of officials seeking to “unmask” the identity of former National Security Adviser Michael Flynn.  There seems a virtual news blackout on these disclosures, including the fact that both former President Barack Obama and former Vice President Joe Biden followed the investigation.  Indeed, Biden’s name is on the unmasking list.

Here is the column: Continue reading “The Unmasking of Joe Biden” →

Columns, Constitutional Law, Criminal law, Free Speech, Justice, Lawyering, Media, Politics

Logan Act Is The Last Refuge For The American Prosecutorial Scoundrel

440px-Michael_T_FlynnBelow is my column in The Hill on a largely overlooked part of the recent material to be released in the Flynn case as well as the testimony released by the House Intelligence Committee: the focus on the Logan Act as the way to charge former National Security Adviser Michael Flynn.  Indeed, I recently disagreed with former President Barack Obama on clearly false legal statements made about the Flynn case.  However, within those false statements was a crushing irony.  Obama is mentioned in the documents as discussing the use of the Logan Act against Flynn.  While Obama decried (falsely) the lack of precedent for the dismissal of the Flynn case, he previously discussed the use of a clearly unconstitutional statute against Flynn that has never been used successfully to convict a single person since the start of the Republic.

Continue reading “Logan Act Is The Last Refuge For The American Prosecutorial Scoundrel” →

Columns, Politics, Society, Torts

The Future Of The Economy May Depend On An Ancient Doctrine Of The Past

Nighthawks_by_Edward_Hopper_1942Below is my column in The Hill on the legal foundation for an economic recovery in reopening businesses in the United States.  While some often seem to assume a zero tolerance approach for any risk of spread, we have no choice but to try to get this economy out of the current disastrous conditions.  Unless we want to reintroduce a barter economy, we need to stop the exponential growth of debt coupled with the perilous decline of employment.  The key may be individual choice and an ancient legal doctrine.

Continue reading “The Future Of The Economy May Depend On An Ancient Doctrine Of The Past” →

Columns, Constitutional Law, Free Speech, Media, Politics

“China Was Right”: Academics and Democratic Leaders Call For Censorship Of Social Media and The Internet

130px-Mao_Zedong_portraitBelow is my column in The Hill on calls for increased censorship on the Internet and social media due to the pandemic.  While academics are writing that “China was . . . right”, China was celebrating World Press Day by sentencing journalist Chen Jieren to 15 years in prison for “picking quarrels and provoking trouble, extortion, illegal business operations and bribery.”  It is an ironic moment to herald China’s censorship of the media when the evidence mounts that China concealed and censored information on the virus outbreak in January.

Here is the column:

Continue reading ““China Was Right”: Academics and Democratic Leaders Call For Censorship Of Social Media and The Internet” →

Columns, Constitutional Law, Courts, Criminal law

The Flynn Case Should Be Dismissed In The Name Of Justice

440px-Michael_T_FlynnBelow is my column in The Hill newspaper on the new evidence released in the case of Michael Flynn.  As I said two years ago, it is unlikely the Judge Emmet Sullivan will dismiss this case regardless of such abuses, but he should.  As we discussed, there has been a concerted effort by media and legal experts to shrug away these highly disturbing documents by saying that such abuses happen all the time.  Journalist Ben Wittes, one of James Comey’s most vocal defenders, went even seemed to make such abuse of Flynn into a victory for racial justice:

“If you’re outraged by the FBI’s tactics with Flynn, keep in mind that they do these things every day against drug dealers, gang members, and terrorists. Except those people are black, Hispanic, and Middle Eastern—not “lock ‘er up” lily white.”

Many of us have spent our careers fighting such abuses for people who are not “lily white.”  That does not excuse abuses of people There was a time when MSNBC, CNN, the Washington Post and other outlets were voices against such prosecutorial abuse. However, in this age of rage, even this record is dismissed as “routine” to avoid undermining a crushingly consistent narrative that the Russian investigation was based on real crimes, albeit collateral crimes.  The “nothing to see here” coverage sacrifices both legal and journalistic values to to maintain a transparently biased narrative.

Here is the column: Continue reading “The Flynn Case Should Be Dismissed In The Name Of Justice” →

Columns, Congress, Constitutional Law, International, Media, Politics, Society, Uncategorized

Pandemic Passport And The Danger Of Immuno Discrimination

1193px-SARS-CoV-2_without_backgroundBelow is a longer version of my column that ran in the Los Angeles Times on the danger of using antibody testing as a basis for discrimination.  The concept of a pandemic passport of course will only be plausible if such antibodies truly yield a form of immunity.  The WHO has declared that there is no evidence to support that claim.  Yet, plasma treatments are reportedly successful.

Here is the column: Continue reading “Pandemic Passport And The Danger Of Immuno Discrimination” →

Columns, Constitutional Law, Media, Politics

Biden Goes Postal: The Vice President’s Conspiracy Theory Is Given Credence By The Media And Democratic Leaders

Below is my column in The Hill on a conspiracy theory being pushed by presumptive Democratic nominee and former Vice President Joe Biden that President Trump is going to order a halt to the November election.  This Sunday, one of the frontrunners for the Vice President slot, Stacey Abrams, was pressed by CNN’s Jake Tapper on Biden’s view that Trump will use the Post Office to delay the election.  Tapper did an excellent job in pursuing a direct answer and Abrams insisted it is “not a conspiracy theory” and repeated the nebulous connection to the postal service.  It is a conspiracy theory and, as I stated yesterday, passing around the tin foil hats is hardly a recommendation for vice president.  Most striking is that, after bizarrely insisting that this was a credible theory on CNN, NBC’s Chuck Todd did not even ask her about it in a low-impact interview. Many of us have been critical of the failure of some Trump supporters to call out the President over such indefensible statements as his disinfectant comments (and later clearly untrue denial).  The same is true for Democrats who ignore bizarre or untrue statements like this one from their leaders.

Here is the column: Continue reading “Biden Goes Postal: The Vice President’s Conspiracy Theory Is Given Credence By The Media And Democratic Leaders” →

Columns, Constitutional Law, Criminal law, Media, Politics

No, President Trump Is Not Criminally Liable For His Response To The Pandemic


Below is my column  in The Hill on the growing calls for criminal charges against President Donald Trump. This follows an all-too-familiar pattern in the use of the criminal code as an extension of politics.

Here is the column:

Continue reading “No, President Trump Is Not Criminally Liable For His Response To The Pandemic” →

Columns, Congress, Constitutional Law, Politics

Why China Is Unlikely To Be Held Liable For The Pandemic?

CroppedStalin1943Below is my column in The Hill newspaper on potential liability of China for its negligence in the early stages (and possible release) of the Coronavirus.

Shortly after this column ran, two members announced that they would be introducing the amendment to the federal law discussed below.

There are now at least seven lawsuits filed against China which is pushing a public relations campaign to deflect blame.

Here is the column:

Continue reading “Why China Is Unlikely To Be Held Liable For The Pandemic?” →

Columns, Congress, Constitutional Law, Politics, Uncategorized

The Constitutional Defibrillator: Trump To Invoke Unprecedented Power To Adjourn Congress

800px-Capitol_Building_Full_ViewBelow is my column in USA Today on the pledge of President Donald Trump that he would adjourn Congress under a never used and rarely discussed power of Article II.  While Trump pledged to do so a week ago, there has been no mention of the invocation since that time.

In the White House press conference, President Trump stated:

“If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both Chambers of Congress. The current practice of leaving town while conducting phony, pro forma sessions is a dereliction of duty that the American people cannot afford during this crisis. It is a scam. What they do. It’s a scam and everybody knows it, and it’s been that way for a long time, and perhaps it’s never done before. It’s never been done before. Nobody’s even sure if it has, but we’re going to do it.”

He later added:

“[Congressional leaders] know. They’ve been warned and they are being warned right now. If they don’t approve it, then we’re going to go this route, and we’ll probably be challenged in court and we’ll see who wins, but when the court hears that we aren’t getting people approved . . . for two and a half years for an important position that we need because of this crisis. We needed these people before, but now we really need these people.”

Here is the column:

Continue reading “The Constitutional Defibrillator: Trump To Invoke Unprecedented Power To Adjourn Congress” →

Columns, Congress, Constitutional Law, Politics

Federalism Not Absolutism Is The Cure For A Pandemic

donald_trump_president-elect_portrait_croppedBelow is my column in the Washington Post on President Donald Trump’s assertions of “absolute” and “total” power over the states.  While he appeared to dial back on the rhetoric in the last two days, President Trump again yesterday said that he could have issued orders shutting down every state but decided to let the governors do it.  There remains a fundamental misconception of the President’s authority in our system of federalism.

Here is the column:

Continue reading “Federalism Not Absolutism Is The Cure For A Pandemic” →