Category: Columns

Columns, Congress, Constitutional Law, Criminal law

How Trump Could Still Gut The Mueller Report

Below is my column in The Hill newspaper on a significant potential barrier to the release of the Special Counsel report — once it is given by Robert Mueller to Attorney General Bill Barr. There is a striking contrast between the level of cooperation shown in relation to the Special Counsel investigation versus congressional investigation. In the latter context, the White House instructed witnesses not to answer questions on the basis that privilege might be claimed (an improper practice in my view). This would seem to suggest that the Trump team is treating communications with the Special Counsel as internal Executive Branch disclosures — and thus not a waiver of privilege. If that is the case, Barr could be heading into a world of difficulty. If the White House invokes, the Justice Department has traditionally defended those claims of executive privilege in court. That could mean a report that is heavily redacted. Unlike classified material which can be given to Congress under seal, grand jury information or executive privileged information cannot be given to Congress absent a court order or waiver, respectively.

This weekend Trump said that he supported the vote of Congress to demand the public release of the report. He told his followers that he told members to vote for the resolution and “Play along with the game!” It is not clear what that game is given the blocking of vote in the Senate by Lindsey Graham. Moreover, it does not state that Trump will waive all executive privilege as discussed in this earlier column.

Here is the column:

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Columns, Congress, Constitutional Law, Politics

Why Nancy Pelosi Hates Impeachment

Below is my column in The Hill on Nancy Pelosi announcing that she is opposed to impeachment and that it is simply not part of “our agenda.” During the campaign for the midterm elections, I wrote that the drumbeat for impeachment was another bait-and-switch in American politics and that Democrats would quickly move away from the calls once they secured a majority. The reason was (and is) obvious. While Democrats continue to insist that Trump is harming the country and committing impeachable offenses, his removal would not serve the interests of the party for 2020. Both parties continue to play the public as chumps and this is the latest example. Even Beto O’Rourke is now backing off of his call for impeachment.

There is no compelling evidence for impeachment at this time. If Pelosi also believes that there is insufficient evidence, she should say so. That would be a principled and frankly courageous position. However, Pelosi continues to suggest that Trump is committing impeachable offenses but still opposes impeachment absent the assurance that Republicans will join in the effort. That is a bit too convenient and ignores the individual obligations of members to act if they believe that there are impeachable offenses.

Here is the column:

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Columns, Criminal law

Did Manafort Play Mueller?

The sentencing of Paul Manafort in Washington, D.C. has extended his low prior sentencing to seven and a half years. While that is no walk in the park for a frail person about to turn 70, it is far less than the 35 years that he was faced with in the two cases. It is hardly an overwhelming sentence and, absent his age, it would be viewed as relatively light. That raises the question address in my earlier column in USA Today. Of course, the addition of the state charges could now make all of this a moot point if Manafort is convicted on the new 16 counts.

Below is the column:

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Columns, Congress, Criminal law, Politics

Crucifixion or Freedom? Cohen Forces Cummings Into A Most Unwelcomed Choice

Below is my column in The Hill on alleged perjury committed by Michael Cohen before the House Oversight Committee after being warned that any repeat of his earlier perjury would trigger an immediate referral for prosecution. This week, a leading Democrat said that she thought a referral was likely given the conflicts in Cohen’s testimony. For Cohen, it could be the greatest miscalculation seen on Capitol Hill since William J. Jefferson thought his freezer was a good repository for bribes. Cohen did what he has always done. He found a way to be useful to people who could do him some good. That is what he did for Trump as a legal thug. He then did it for Mueller as a cooperating witness and now he is trying to do it again as a turncoat for Congress. The problem is that Cohen remains unencumbered by truth or ethics. Cohen viewed his interest in being indispensable in giving Democrats what they wanted the most: Trump. The problem is that he has now put the Democrats, and particularly Chairman Elijah Cummings, in a glaringly hypocritical position if they do not refer the matter for prosecution.

Here is the column:

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Columns, Congress, Criminal law

Rosenstein’s Revenge: Trump To Fight 100 Duck-Sized Horses

Below is my column in The Hill newspaper on how President Donald Trump may be facing a changing threat as the Special Counsel moves closer to submitting his final report and new allegations of criminal conduct have been raised by Michael Cohen and the Southern District of New York. There are viable criminal allegations raised with regard to Donald Trump’s business practices as well as his payment of hush money to alleged former mistresses. However, some of these claims present their own challenges as criminal theories.

Here is the column:

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Columns, Criminal law, Politics

Cohen Gives Democrats Roadmap For Collateral Crimes

Below is my column in The Hill newspaper on the implications of the testimony of Michael Cohen last week. This weekend, House and Senate Democrats publicly claimed to have evidence of obstruction and collusion, though the most important news is that all of the Committees are issuing a storm of subpoenas.

Here is the column:

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Columns, Congress, Constitutional Law, Lawyering, Politics

Are Democrats Giving Trump An Excuse To Pardon Manafort?

Below is my column in The Hill newspaper on the effort in New York to change constitutional protections against double jeopardy to allow prosecutors to charge former Trump campaign chair Paul Manafort with state offenses. The effort is to guarantee that Manafort goes to jail if President Donald Trump gives him a pardon. The sight of politicians campaigning on the pledge to jail Manafort raises serious concerns of this highly selective effort. Moreover, the effort to change New York constitutional protection to get Manafort could give Trump precisely the basis for a pardon that Democrats are preemptively trying to deter. I have repeatedly said that a pardon for Manafort would be inexcusable. He has more than earned any sentence that a court chooses to give him and the New York effort should not change that. However, if the Democrats tailor their constitutional protections to get Manafort, they are giving Trump the ability to say that he is responding to selective targeting of Manafort to guarantee that he is not punished twice for the same underlying conduct. More importantly, New York should not sacrifice its commendable protection against double jeopardy to get Manafort. He is not worth it.

Here is the column:

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Columns, Criminal law, International, Justice, Lawyering

Is Mueller Uncovering Ukrainian Rather Than Russian Collusion?

Below is my column in The Hill newspaper on status of the Mueller investigation and what we have learned about Russian collusion. On Friday, Mueller filed what could be his last major filing before the submission of his report to Attorney General Bill Barr. It was the Manafort sentencing report and, once again, it was long on Ukrainian and short on Russian collusion. Indeed, Manafort’s lobbying efforts were designed to help Ukrainian figures on issues stemming from their internal political tensions and investigations. For example, the highly detailed filing discusses how Manafort was given millions to further a “furtive activity in connection with the United States’s consideration of a resolution condemning Ukraine for President Yanukovych’s locking up his political opponent Tymoshenko.” Mueller discusses the focus of Mueller’s work as “lobbying for Ukraine.” While Mueller could still present evidence of Russian collusion, this filing continues a notable trend in the omission of such evidence by key players. If Manafort was an agent for Russia, it would likely have been mentioned in his sentencing report and used as the basis of either a FARA or related charge. Instead, the filing shows Manafort was working for Ukrainian not Russian interests in these criminal enterprises.

Here is the column:

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Columns, Congress, Constitutional Law

Is The Warren Tax Unconstitutional?

Below is my column in the Washington Post on Elizabeth Warren’s signature wealth tax. As I noted in the column, the constitutionality of the Warren tax would likely be a close question. Yet, the issuance of such a “direct tax” based on wealth rather than income would be presumptively unconstitutional under the existing court precedent and, more importantly, the text of the Constitution.

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Columns, Congress, Constitutional Law, Courts, Politics, Society

Open Windows and Open Borders: A Lesson From The Founders On Conflict Resolution

Below is my column for the BBC on the controversy over President Donald Trump’s national emergency declaration. Sixteen states, led by California’s Attorney General, are now suing. Others lawsuits have been filed on behalf of landowners and others. The lawsuits appear to challenge both the basis for an emergency declaration and the funding. I still expect Trump to prevail in the long-run if this goes to the Supreme Court. Ironically, House Intelligence Chair Adam Schiff said this weekend that this controversy would be the “test” of his colleagues integrity and principles. Yet, Republicans could easily point out that Schiff never objected or took action when President Barack Obama circumvented Congress, including ordering the payment of potentially billions out of the Treasury after Congress refused to fund part of the Affordable Care Act. He was also silent when Obama not only refused to get authorization for the Libyan War but used undedicated funds to pay for it without an appropriation from Congress.

As this column discusses, there was at one time a much easier way to resolve the most bitter differences among political figures.

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Columns, Congress, Constitutional Law, Politics

Why Trump Will Win The Wall Fight
Custom and Border Protection

Below is my column in The Hill newspaper on the litigation against the declaration of a national emergency by President Donald Trump in order to build his long-promised wall. Some members of Congress has said that they expect the House of Representatives to sue while private litigants have already filed challenges. Regardless of the litigants (and there are likely to be a mix of parties), they face similar barriers in convincing a federal judge to rescinded a declaration that Congress has not rescinded. This is a straight statutory interpretation case, not the “constitutional crisis” widely described by critics. There are possible claims against the funding conditions, but Congress gave the President not just the unfettered authority to declare such emergencies but the largely unconditioned appropriations that he may use to build the wall.

Here is the column:

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Academics, Columns, Society

Self-Identification or Self-Advancement? Warren’s Controversy Highlights The Long-Standing Debate Over Race Claims

Below is my column in The Hill Newspaper on the long-standing debate over self-identification of race — an issue brought again to the forefront by the Elizabeth Warren controversy. There is a broader issue here that impacts universities and businesses on how race should be confirmed when used professionally or academically or financially. There is an ongoing debate over self-identification of race and whether such questions are simply cultural rather than genetic.

For Warren, the desire to focus on her race announced this weekend may be overshadowed by the other race issue.

Here is the column:

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Columns, Criminal law, Media, Politics

Is The Criminal Collusion Theory Dead?

Below is my column in The Hill Newspaper exploring the current evidence supporting a criminal collusion case against President Donald Trump or his campaign. While clearly not popular to raise, the evidence released to date is rather underwhelming. Indeed, the basis for a criminal collusion prosecution is weaker today than it was a year ago. That does not mean that new evidence cannot be released but this is an attempt at an objective review of past filings and disclosures from the Special Counsel, Congress, and witnesses. That evidence strengthens the case against collusion and certainly supplies ample foundation for a defense against the charge of a criminal conspiracy with the Russians in hacking computer systems. Once again, the column only addresses the basis for a criminal charge based on collusion by Trump or his campaign. The prosecution of Russians for hacking is strong and the fact that Russians wanted to help Trump seems unassailable. The narrative supporting a criminal conspiracy however seems increasing incomplete and incoherent.

Here is the column:

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