Category: Columns

Columns, Constitutional Law, Media, Politics

Governors Practice Political Distancing In Shifting Blame To Federal Government
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Below is my column in The Hill newspaper on the continued calls for federal takeovers and nationalization of industries. The past commentary often reflects a fundamental misunderstanding of both our constitutional and statutory laws. What is also striking is that a significant number of governors appeared on Sunday shows but not one was asked about the failure of his or her state to prepare for such a public health emergency. Governors are referring to this crisis as if it were a previously unknown meteor from space. In fact, we have been discussing the utter lack of preparation for a pandemic for over two decades and states like New York were warned that they would be dangerously short such items as ventilators. I was part of that debate back in 2002 and 2003 when the model law for pandemic was being adopted by states — reaffirming the primary responsibility of the states to address pandemics.

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Columns, Congress, Society

Congress Moves For Emergency Containment of Ethics Outbreak

Below is my column in The Hill newspaper to the latest outbreak of ethics and the politically distancing being used by members to control the outbreak over insider trading. Notably, Minority Leader Chuck Schumer was adamant on barring businesses owned by President Donald Trump and Vice President Mike Pence from benefiting from the stimulus package. Notably absent however was a similar ban for members who have considerable stock or ownership interests in such companies.

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Columns, Congress, Constitutional Law, Courts, Justice, Lawyering

Virtual Democracy: Congress and The Supreme Court Need To Move Into The Virtual Space

Below is my column in The Hill newspaper on the baffling reluctance of Congress and the Supreme Court to allow for remote or distance technology as an alternative to physical sessions. Democracy at a distance is better than no democracy at all in times of emergency. President Donald Trump was asked about Congress allowing remote voting given the various Senators who are now in quarantine. He thought that it was a good idea but that there may be constitutional barriers. The greatest barriers, particularly for the Supreme Court, remain cultural not constitutional.

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Columns, Constitutional Law, Media, Politics, Society, Supreme Court

Supreme Identity Politics: Biden Pledges To Only Consider Black Females For Supreme Court Pick

Below is my column in The Hill newspaper on former Vice President Joe Biden’s pledge that he will select a black women as the next nominee to the Supreme Court.

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Columns, Courts, Lawyering, Media, Politics, Society, Supreme Court

The Death of Irony: How A Judge’s Attack On Judicial Bias Backfired

Below is my column in the Hill newspaper on the recent criticism of the Roberts Court by a federal district judge. The law review article makes a stronger case for critics who view some judges are part of a deep bench movement against Trump. I do not see that pattern but I do view Judge Lynn Adelman as well outside of the navigational beacons for public commentary by federal judges.

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Columns, Politics

What Bernie Sanders Has That Joe Biden Doesn’t

Below is my column for BBC on the Sanders campaign and my recent discussion of the election with over a dozen of his supporters at the University of Michigan. Biden is being portrayed as the effective nominee after last Tuesday and at least one Democrat is suggesting the cancelation of the remaining primaries. However, polls show a distinct lack of excitement about Biden as a candidate. His express selling point is that he is better situated to defeat Trump. That leaves an obvious vacuum on positive passion that was so evident at the Sanders rally that I attended.

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Columns, Politics, Society

The Curse Of Eugene Debs: Sanders Loses On The 100th Anniversary Of Socialist’s Demise

Below is my column in USA Today on the significance of March 10th as the likely critical blow to Bernie Sanders in his campaign for the presidency. That was the day — 100 year ago — that Eugene Debs, the last major socialist presidential candidate, lost his bid for freedom. He would run his final presidential campaign from jail. Sanders seems to have fallen to the Eugene Debs curse not just in terms of the calendar but the response of the establishment. Liberal icons like Louis Brandeis would join in condemning him to prison and his presidential campaigns were harassed by a wide array of political and police forces. For Sanders, the only thing that has changed is the threat of criminal prosecution. The united front against his campaign remained the same.

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Columns, Congress, Constitutional Law, Courts, Media, Politics

The Road Rage Defense: How The Media Has Ignored A Pattern Of Democratic Attacks On The Judiciary

Below is my column in The Hill newspaper on the recent threat from Sen. Chuck Schumer directed at two members of the Supreme Court. The column explores how this attack was neither isolated nor unique. Despite any substantive coverage in the media, Democratic politicians are increasingly attacking the Court and the judicial system. I have joined in the criticism of President Donald Trump over his verbal assaults on judges, Yet, there is the paucity of attention given to the same types of attacks coming from Democrats.

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Columns, Congress, Constitutional Law, Politics, Supreme Court

Chief Justice John Roberts Heading Down Collision Course With Himself

Below is my column in The Hill newspaper on critical cases facing Chief Justice John Roberts this term as his impact as the new swing vote on the Court becomes more clear. In the oral arguments for Whole Woman’s Health v. Hellerstedt, Chief Justice Roberts appeared to be following his prior position in favor of state laws imposing conditions on abortion services. However, in that case and the recently accepted Obamacare appeal, Roberts will be exercising his swing vote while carrying a fair amount of baggage from earlier decisions.

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Columns, Congress, Constitutional Law, Courts, Politics

Congress Hits Rock Bottom With Ruling In McGahn Case

Below is my column on the catastrophic loss of Congress in the recent decision in favor of the Trump Administration over the testimony of former White House Counsel Don McGahn. This loss is breathtaking for the House of Representatives. I was lead counsel in the litigation over Obamacare and, as part of that victory, we succeeded in getting the district court to recognize the standing of the House of Representatives. This latest decision lays waste to that precedent and eviscerates the ability of the House to enforce its subpoenas.

As I discussed earlier, some have repeated the view of the House managers that the White House was arguing conflicting positions in court and in Congress: arguing that the court cannot enforce subpoenas while telling the House that it should have subpoenaed witnesses. The criticism is superficial. This was one of a number of constitutional claims that the White House wanted to raise with the courts. It would define the lines of separation of all three branches. By seeking judicial review on the ability of Congress to compel such appearances, the Administration was seeking clarity on the relative positions of the Executive and Legislative branches in such disputes. I do not blame the House leadership or the House General Counsel in bringing this action. This was a good case and a bad decision. It must be appealed. Since this is the D.C. Circuit, it is already impacted most cases involving the Congress so an additional adverse decision by the Supreme Court will only make it marginally worse. That is the point of hitting rock bottom.

The decision also shows why there are a variety of contentious constitutional issues that warrant judicial review. It further undermines the basis for Article II of the impeachment.

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Columns, Congress, Constitutional Law, Courts, Criminal law, Media, Politics

Lies, Damned Lies, and Presidential Debates: The Rhetoric and Reality Of Gun Control

Below is my column in the Hill newspaper on the reality and rhetoric of gun control in light of promises in the Democratic primary. The fact is that many of the ideas raised by the candidates have merit but they are likely to be marginal in their impact on real gun-related fatalities.

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Columns, Constitutional Law, Criminal law, Politics

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.

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Columns, Courts, Criminal law, Lawyering, Media, Society

Juror 1261: Was Justice Undone In The Trial Of Roger Stone
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Below is my column in the Hill newspaper on the controversy surrounding the foreperson on the Stone trial and the discovery of biased public comments made before she was called as a juror. The comments raise very serious questions about not just the inclusion of Tomeka Hart on the jury but the legitimacy of the conviction in light of her participation. Courts are extremely reluctant to set aside verdicts and often deny motions for new trials like the two filed by Stone. However, such disclosures make a mockery of the process — and ultimately the court — if undisclosed bias does not have a remedy for a defendant. No defendant can prove conclusively that such bias made the difference, but no prosecutor can prove that it did not. What remains is a dangerous element of doubt in a criminal trial.

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Columns, Criminal law, Media, Politics

Bull Meets China Shop: Why The President Tweets Fail Another Causality Test By The Media

Below is my column in The Hill newspaper on the Stone controversy. The column suggested that the Trump tweet before the change in the sentencing memorandum in the Stone case may not have been related, but simply another example of Trump triggering a controversy with an irresponsible and ill-timed tweet. After the column, Trump made the situation even worse by publicly complimenting Attorney General Bill Barr. As I mentioned at the time, the “atta boy” was more damaging than the original criticism. Barr responded correctly by criticizing the President’s continued public comments on pending cases and attacks on federal judges. While the President is clearly undeterred, both the change in the sentencing recommendation and the criticism of the President were well warranted.

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Columns, Congress, Constitutional Law, Criminal law, Media, Politics

“I Have Been Traduced”: Trump’s Moves Against Impeachment Witnesses Are Neither Unlawful Nor Unprecedented

Below is my column in the Washington Post on the continuing controversy over the actions taken against impeachment witnesses by President Donald Trump. I recently explained that these actions are not, as claiming on CNN, clear criminal acts of witness retaliation. While I was critical of the moves, this column addresses why they are neither unlawful nor unprecedented.

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