Category: Columns

Columns, Congress, Constitutional Law, Free Speech, Media, Politics

“Not All TV News Sources Are The Same”: Congress And The Slippery Slope Of Censorship

Congressional SealBelow is my column in the Hill on yesterday’s hearing on possible private and public limitations on free speech and the free press, including a letter from Democratic members asking companies why they do not remove Fox News and networks from cable. I recently responded to comments made by Rep. Anna Eshoo in the hearing.  However, the letter highlighted the continuing pressure from members on both Big Tech and cable suppliers to silence opposing viewpoints. What was most disappointing was that no Democratic members used the hearing to offer a simple and unifying statement: we oppose efforts to remove Fox News and these other networks from cable programming. Not a single Democratic member made that statement, which (in my view) should be easy for anyone who believes in free speech and the free press. Even though every witness (including one who lost her father to Covid-19) made that statement, no Democratic member was willing to state publicly that they would oppose efforts to remove Fox News from cable access. That silence was also chilling to the point of glacial.

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Columns, Congress, Constitutional Law, Politics

Portman’s Principled Stand: A Response To The Cincinnati Enquirer

Below is my column in the Cincinnati Enquirer in response to a column criticizing Sen. Rob Portman for his vote to acquit former President Donald Trump in his second impeachment trial. Portman (who recently announced that he will not run for reelection) is one of the most thoughtful and decent figures in Congress. James Freeman Clarke once said “A politician thinks of the next election; a statesman of the next generation. A politician looks for the success of his party; a statesman for that of his country.” I have spoken with Sen. Portman on constitutional and legal issues for years and he always epitomized what Clarke meant about a true statesman.  His decision not to seek reelection was a blow for the Senate as someone who was eager to work with the other party on finding solutions to our growing national problems. That is why I felt I had to respond to a recent column by Opinion Editor Kevin Aldridge. I have no doubt about Aldridge’s good-faith disagreement with the verdict. However, we need to reach a place where we can disagree on such issues without questioning each other’s integrity or honesty. To that end, I want to thank the Cincinnati Enquirer (and Mr. Aldridge) for having the integrity of running my column.  This is the essence of dialogue and we may find that what divides us is not nearly as great as what unites us as citizens.

 

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Columns, Congress, Criminal law, Politics

“A Date Which Will Live In Infamy”: The Other Scandal From The Capitol Riot

Below is my column in the Hill on the lingering questions over decisions made in Congress before the Capitol riot on January 6th.  The analogy to Pearl Harbor drawn by Senate Majority Leader Chuck Schumer may be more telling than intended.

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Columns, Criminal law

Want To Prosecute Trump? It Will Require Proof Not Politics For A Viable Case

Below is my column in USA Today on the calls for criminal charges against former president Donald Trump and what is still missing from viable prosecutions.  In the meantime, civil lawsuits have been filed including one by Rep. Bennie Thompson alleging that Trump and others incited the riot on January 6th. Those civil lawsuits have the advantage a lower standard of proof than criminal prosecutions. If some cases can be sustained past motions to dismiss, they would also allow for discovery though those fights could draw out the litigation. However, Democrats may also be laying the foundation for Trump to claim vindication in defeating such cases in courts. Despite the assurance of the same legal experts of a strong case for prosecution, made-for-television cases do poorly in actual courts of law. What makes for good politics does not always make for good cases. However, bad cases can make for some really bad politics.

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

Mutual Destruction: How Trump’s Trial Became A Tale Of Constitutional Noir

Below is my column in the Hill on second Trump trial and how core values quickly became the extraneous to the purpose of this constitutional process.  The final chaos triggered by Rep. Jaime Raskin (D., Md) only highlighted the procedural and legal irregularities in a trial that seem increasingly detached from values like due process.

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Academia, Columns, Congress, Constitutional Law, Politics

A Return To Rage: Schumer and Pelosi Attack Members Who Voted To Acquit As Political Cowards and Shills

There was a palpable sense of relief in Washington as the Trump trial came to a chaotic but final end. The verdict is in so now the vilification can begin. Both Majority Leader Chuck Schumer and Speaker Nancy Pelosi immediately weaponized the verdict and demonized those who voted to acquit. While the Democrats insisted that all senators should “vote their conscience” that only meant if their conscience supported their side.  Pelosi denounced opposing senators as cowards while Schumer lashed out at them for holding an opposing view of the evidence or the process.  While groups are targeting members on both sides of the trial, our leaders should be calling for unity and civility after the trial. Instead, they are fueling the politics of division.

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

Did The Democrats “Tank” The Second Trump Trial?

Below is my column in USA Today on the lack of a strategy by the House to secure conviction in the trial of former President Donald Trump. As I have previously noted, the House managers did an excellent job in their presentations and many of the videotapes rekindled the anger that most of us felt over the riot. They also reinforced the view of many (including myself) that former president Donald Trump bears responsibility in the tragedy that unfolded due to his reckless rhetoric. Yet, there was a glaring omission in the substance of the House arguments. The managers did not lay out what the standard should be in convicting a former president for incitement of an insurrection and only briefly touched on proving any “state of mind” needed for such a conviction. That is why I have referred to their case as more emotive than probative. It lacked direct evidence to support the claim that Trump wanted to incite an actual insurrection or rebellion against the United States, as alleged in the article of impeachment.  I do not believe that an acquittal was inevitable in this case, but it was all but assured by critical decisions made by the House in this impeachment. The unforced errors discussed below raise the question of whether the Democrats “tanked” the trial.

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Columns, Congress, Constitutional Law

“Much To Do About Nothing”: The Withdrawal Of The Lee Claim Has “Much To Do” With A Glaring Flaw In The House Case

At the end of its first day of argument, the Senate trial was thrown into chaos when a “juror” stood up like a scene out of Perry Mason to contest the veracity statements made by “prosecutors.” That moment came as the Senate was preparing to end for the day and Senator Mike Lee (R., Utah) jumped to his feet to object that a quote by House manager Rep. David Cicilline (D., R.I.) was false. Lee should know. They were purportedly his words.  After a frenzy on the floor and a delay of proceedings, lead House manager Rep. Jamie Raskin (D., Md) announced that it would withdraw Cicilline’s statements and that “this is much ado about nothing, because it’s not critical in anyway to our case.” In reality, it had much to do about the manager’s case and highlights a glaring problem in its case.  The House has elected to try this case of incitement of insurrection largely on circumstantial evidence and using media reports rather than witness testimony. It is trial by innuendo and implication rather than direct evidence of what Trump knew and intended on January 6th. Continue reading ““Much To Do About Nothing”: The Withdrawal Of The Lee Claim Has “Much To Do” With A Glaring Flaw In The House Case” →

Columns, Congress, Media, Politics

Reckless Rhetoric Is A Reckless Standard For An Impeachment Trial

Below is my column in the Hill on how the second Trump impeachment could become a trial over reckless rhetoric in America. The House managers may be playing into that very danger by selecting some managers who have been criticized in the past for their own over-heated political rhetoric.  As managers were replaying the comments of former President Donald Trump from prior years to show how his words fueled divisions, critics were pointing to similar statements from the managers themselves. Rep. Jamie Raskin, D-Md., the leading impeachment manager, was chided for using “fight like hell” in a 2019 interview with The Atlantic — the very words replayed repeatedly from Trump. He also used that phrase repeatedly in prior years to ramp up his supporters in fighting for Democratic control of Congress. Speaker Nancy Pelosi blundered by appointing managers like Eric Swalwell who is notorious for his inflammatory rhetoric, in a trial where such rhetoric would be the focus of the managers.  Swalwell’s comments not only include disturbing legal claims, but highly personal and offensive remarks like mocking threats against Susan Collins, R-Maine. Swalwell declared “Boo hoo hoo. You’re a senator who police will protect. A sexual assault victim can’t sleep at home tonight because of threats. Where are you sleeping? She’s on her own while you and your @SenateGOP colleagues try to rush her through a hearing.”  Pelosi picked not only a member who has viciously attacked Republicans but one of the Republicans most needed by the House in this trial. If this trial boils down to irresponsible political rhetoric, the public could find it difficult to distinguish between the accused, the “prosecutors” and the “jury.” That is the problem with a strategy that seems focused not on proving incitement of an insurrection but some ill-defined form of political negligence.

Here is the column:

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Academia, Columns, Congress, Constitutional Law, Courts, Criminal law, Free Speech

“The First Amendment Does Not Apply”: A Response To The Letter Of Scholars In Rejecting Trump Arguments Under The First Amendment

“The First Amendment does not apply in impeachment proceedings.”  If there is a single line that sums up the sense of legal impunity in the second Trump impeachment, it is that line from a letter sent by law professors to deny any basis for the former president to challenge his impeachment on free speech grounds. The scholars call any such arguments “legally frivolous” but only after misstating the argument and frankly employing a degree of circular logic. While I agree with aspects of the letter, I believe that the thrust of the letter misses the point of those of us who have raised free speech concerns.  Continue reading ““The First Amendment Does Not Apply”: A Response To The Letter Of Scholars In Rejecting Trump Arguments Under The First Amendment” →

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

Why Has Trump Not Been Charged With Criminal Incitement?

Below is my column in The Hill on the news that Donald Trump will not be charged with campaign finance violations linked to payments made to Stormy Daniels.  The report (and the start of the Senate trial) raise another question as to why Trump has not been interviewed, let alone charged, with the crime of incitement. Various members and legal experts have claimed that the case for prosecution is clear on its face. The crime occurred in public over a month ago, but there is no indication of a move to prosecute. Why? It is presumably not because prosecutors feel it would be too easy.

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Columns, Constitutional Law, Criminal law

A Question Of Intent: How The Trump Trial Is Designed To Enrage But Not Convict

Below is my column in the Hill on the trial briefs filed by the House and the Trump team for the second Trump impeachment trial.  The brief of the House promises an emotionally charged but legally insufficient case for conviction. Indeed, there is no evidence that the “prosecution” is designed to win the trial since the House offers little on the issue of intent. Conversely, if Donald Trump insists on arguing election fraud, he could conceivably engineer his own conviction.  Rather the strategy on both sides seems to be to enrage the emotions of viewers rather than prove an actual case for incitement to insurrection.

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

Raskin: Trump’s Decision Not To Testify May Be Cited As Evidence Of His Guilt

Over the last four years, we have seen an alarming trend of law professors and legal experts discarding constitutional and due process commitments to support theories for the prosecution or impeachment of Donald Trump or his family.  Legal experts who long defended criminal defense rights have suddenly become advocates of the most sweeping interpretations of criminal or constitutional provisions while discarding basic due process  and fairness concerns.   Even theories that have been clearly rejected by the Supreme Court have been claimed to be valid in columns. No principle seems inviolate when it stands in the way of a Trump prosecution. Yet, the statement of House manager Rep. Jamie Raskin, D-Md., this week was breathtaking. A former law professor, Raskin declared that the decision of Trump not to testify in the Senate could be cited or used by House managers as an inference of his guilt — a statement that contradicts not just our constitutional principles but centuries of legal writing.  Yet, it appears a signature of this team of House managers. Rep. Eric Swalwell earlier insisted that the failure to then President Trump to turn over documents should be cited as evidence of guilt on any underlying claims.

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Columns, Congress, Constitutional Law, Politics

The Senate Is Playing A Dangerous Game With The 14th Amendment

Below is my column in the Hill on the new push to bar former President Donald Trump under the 14th Amendment in a censure resolution. Various commentators and groups have called for dozens of Republican politicians to be barred from office in the same way, including a “how to guide” for  “disqualifying insurrectionists and rebels” under the 14th Amendment. Some have even added a call to put the entire Republican Party on a Domestic Terror list. Rage again has overwhelmed reason. The suggested use of the 14th Amendment raises serious constitutional concerns and could present a compelling basis for a court challenge if actually passed. Indeed, Trump could prevail in court shortly before the 2024 presidential race.

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Columns, Congress, Constitutional Law, Politics

Ruling On The Record: The Senate’s Looming Prudential Questions Could Weigh Heavily With Members On Witnesses and Conviction

Below is my (expanded) column in the Hill on the prudential (as opposed to the constitutional) concerns raised by the second Trump impeachment trial. Senators will have to resolve these questions before reaching the merits.  The prudential concerns may also weigh heavily in the possible rejection of witnesses after the snap impeachment. The House blundered by leaving the record and witnesses entirely to the Senate to develop. The Senate could now chose to rule on the record — or lack thereof.  Even a couple days of hearings could have created a record of documents and witness accounts — and an opportunity for a formal response from the President. It could also have allowed for suggested changes on the language of the article to allow for broader support. I have no objection to removing a president on his final day, but the House should create a minimally sufficient record to support a constitutional determination of a high crime and misdemeanor.

Here is the column:

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Res ipsa loquitur – The thing itself speaks