Category: Columns

Academics, Columns, Media, Politics, Society

The Myth Of The Boston Tea Party

Boston_Tea_Party_Currier_coloredBelow is my column in The Hill on the increasingly common rationalization that looting and property damage is a long-standing tradition first embraced by the Sons of Liberty in the Boston Tea Party.  That historical analogy was very popular in the days before the Fourth of July.  A professor made the comparison on CNN on the Fourth.  The view is widely raised in universities like the column in the University of Arizona’s Daily Wildcat newspaper declaring “The Boston Tea Party was when we first saw looting as a form of protest in America. White people acting out in anger is literally celebrated in our history books.”  Likewise, at the University of Dayton last week, a column stated “There is something to be said when our White founders destroying British property in the Boston Tea Party is glorified in every textbook, but burning down a Target for the rights of African Americans to simply breathe is damned in the media.”

It is a revisionist historical argument that is as convenient as it is wrong.  While the Framers would have supported the vast majority of protesters who engaged in peaceful demonstrations for reform and racial equality, the Sons of Liberty would have been the first to denounce the concept of wanton property destruction or looting as a means for social change.

Here is the column:

Continue reading “The Myth Of The Boston Tea Party” →

Columns, Media, Politics, Society

The Rush Of Judgment: How Recent Stories On Barr Left The Relevant Facts And Law Behind

440px-William_BarrBelow is my column in The Hill newspaper that looks at three different stories attacking Attorney General Bill Barr as acting unethically and corruptly from the Flynn case to the Berman decision to the Cohen case.  I have not hesitated to criticize Barr on his policies or actions. However, these are based on long-standing differences over constitutional and legal issues.  It is the character attacks that I found notable in last week’s stories particularly in the absence of supporting evidence.

Here is the column:

Continue reading “The Rush Of Judgment: How Recent Stories On Barr Left The Relevant Facts And Law Behind” →

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

“Irreparable Harm”: How The Flynn Case Became A Dangerous Game Of Legal Improvisation

440px-Michael_T_FlynnBelow is my column in USA Today on the D.C. Circuit ordering Judge Emmet Sullivan to dismiss the case of former National Security Adviser Michael Flynn.  After this column ran, new evidence emerged that further undermined the FBI and the targeting of Flynn, as discussed in another recent column.  Notes from fired FBI Special Agent Peter Strzok show that former FBI Director James Comey told President Barack Obama and Vice President Joe Biden that Flynn’s call to the Russian diplomat “appear legit.”  Nevertheless, Biden (who denied having anything to do with the case) is noted as raising the idea of a charge under the facially unconstitutional Logan Act, a law that has never been used successfully to charge a single person since the beginning of this Republic.  Comey of course was the one who later bragged that he “probably wouldn’t have … gotten away with it” in other administrations, but he sent “a couple guys over” to question Flynn, who was settling into his new office as national security adviser. We now know that, when Comey broke protocols and sent the agents, he thought the calls were legitimate and that agents wanted to dismiss the investigation in December for lack of evidence. They were prevented from doing so as Strzok, Biden, and others discussed other crimes, any crime, to nail Flynn just before the start of the Trump Administration.

If all of that seems “illegitimate” and “irregular,” it pales in comparison to how two judges on the D.C. panel viewed the handling of the Flynn case by Judge Emmet Sullivan.  It seems that everyone from the President to the Vice President to the FBI Director to ultimately the federal judge have engaged in a dangerous form of improvisational law when it came to Michael Flynn.  That will now hopefully end though many questions still remain.

It is possible for Judge Sullivan to appeal, though the upcoming hearing on Flynn has been removed from the docket.

Here is the column: Continue reading ““Irreparable Harm”: How The Flynn Case Became A Dangerous Game Of Legal Improvisation” →

Columns, Criminal law, Free Speech, Media, Politics, Society

History Shows Free Speech Is The Loser In Mob Action

Below is my column in The Hill on the ongoing destruction of memorials and statues. After this column ran, I learned that one of the iconic busts of George Washington University had been toppled on my own campus. I did not learn that from our university, which was conspicuously silent about this destructive act at the very center of our campus.  There is something eerily familiar in the scenes of bonfires with police watching passively as public art is destroyed.  Such acts are akin to book burning as mobs unilaterally destroyed images that they do not want others to see.  There are valid issues to address on the removal of some public art but there is no room or time for debate in the midst of this spreading destruction.  Even when there is merit to objections to literally or artistic or historical works, mob action threatens more than the individual work destroyed by such action. The media has largely downplayed this violence, including little comparative coverage of an attack on the Democratic state senator who simply tried to videotape the destruction of a statue to a man who actually gave his life fighting against slavery in the Civil War.  As discussed earlier, history has shown that yielding to such mob rule will do little to satiate the demand for unilateral and at times violent action. People of good faith must step forward to demand a return to the rule of law and civility in our ongoing discourse over racism and reform.

Here is the column:

Continue reading “History Shows Free Speech Is The Loser In Mob Action” →

Columns, Constitutional Law, Courts, Criminal law, Free Speech, Media, Politics

Bolton’s Win Could Cost Him More Than Just Profits

John_R._BoltonOn Saturday, federal district court judge Royce Lamberth denied a motion to enjoin the release of former National Security Adviser John Bolton’s tell-all book in a 10-page order.  The book, titled “The Room Where it Happened,” is already in circulation with reporters literally standing outside of the courthouse reading from it.  As argued in the column before the decision, Lamberth rejected the injunction.  However, he lambasted Bolton for his failure to complete the classification review that he agreed to as part of his taking the position with President Donald Trump.  There are already possibly classified subjects being teased out of the book by the media.  Lamberth decried the fact that Bolton has “gambled with national security” and said that his actions “raise grave national security concerns” but “the damage is done.” Perhaps it is done for the release but the damage to Bolton may only be beginning. As Lamberth noted, he now faces civil and criminal liability, which are discussed in the column. 

Here is the column: Continue reading “Bolton’s Win Could Cost Him More Than Just Profits” →

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

Chopped: How Seattle Is Defining Leadership In Seattle And Washington

Jenny_Durkandonald_trump_president-elect_portrait_croppedBelow is my column in the Hill on the controversy over the creation of the Capitol Hill Autonomous Zone, better known as Chaz.  Well, it was Chaz. “The autonomous zone formerly known as CHAZ” is now the Capitol Hill Occupied Protest (CHOP). As W.C. Fields said “It ain’t what they call you, it’s what you answer to.” The problem is that Chief Best said no one is answering their calls.  Chief Carmen Best stated today that the name had apparently changed but that they have yet to identify people who will speak for CHAZ or CHOP. She also noted that there appears to be widely different demands. That presents a serious barrier to a resolution.

RIP CHAZ. All Hail CHOP, but the question of leadership remains.  Here is the column:

Continue reading “Chopped: How Seattle Is Defining Leadership In Seattle And Washington” →

Columns, Criminal law, Media, Politics, Society

Bowser’s Historical Revision: Before Lafayette Park, There Was Pershing Park

Muriel_Bowser_official_photoBelow is my column in The Hill newspaper on Mayor Muriel Bowser’s unquestioned statements about how she is shocked by the federal actions against peaceful demonstrators.  Bowser told CNN’s Cooper “I think I’ve been shocked all week about how the federal government behaved against American citizens.” For some of us, the statement came across as a Claude Rains moment of being “shocked, shocked” that protesters are being silenced in D.C. She (and CNN) ignored the actions of her Chief of Police and her dismissal of objections of civil libertarians to Newsham’s appointment.  Now, that was truly shocking.

Here is the column

Continue reading “Bowser’s Historical Revision: Before Lafayette Park, There Was Pershing Park” →

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

Revolution Redux? How A Movement For Reform Is Becoming A Platform For Radicalism

Anonymous_-_Prise_de_la_BastilleBelow is an updated version of my column in The Hill newspaper on how the discussion of reforms following the killing of George Floyd has been increasingly overtaken by the most radical elements in politics and commentary.  The atmosphere is strikingly similar for those familiar with history and specifically the course of the French Revolution. That image of reformists becoming reactionaries was particularly evident in New York Mayor Bill de Blasio being booed by a crowd calling for his resignation and the same response to Minneapolis Mayor Jacob Frey when he refused to commit to defunding and dismantling the police department.  In Washington,  Mayor Muriel Bowser ordered the square near the White House to be named “Black Lives Matter” Square with giant letters painted on the street.  BLM however denounced it as a meaningless stunt and activists added ‘Defund the Police.”  Bowser refused to answer multiple questions on whether she would remove the added words. To do so is to risk a scene like the ones in Minneapolis and New York.

As writers, editors, and politicians yield to extreme measures, they might want to consider the fate of those who sought to ride the radical wave of the French Revolution.

Here is the column: Continue reading “Revolution Redux? How A Movement For Reform Is Becoming A Platform For Radicalism” →

Academics, Columns, Criminal law, Politics, Society

Devouring Its Own: How Many On The Left Fostered The Violent Movement Now Rioting Across The Country

Antifa_The_Anti-Fascist_HandbookBelow is my column in The Hill newspaper on the role of familiar groups like Antifa in the violence following the death of George Floyd.  Attorney General Bill Barr acknowledged yesterday that there is a “witches’ brew” of groups fostering violations, including an anarchist group from the right. The anarchists on the left or right are opportunists who will strike at any time of unrest to seek the breakdown of order. While the number of Antifa arrests have been challenged as exaggerated, police are reporting a number of Antifa, radical left, and anarchist members arrested in various states. (here and here and here and here and here) These are groups that are all too familiar to some of us on college and university campus.  While I have opposed efforts to declare Antifa a terrorist organization, the role of all of these groups in the recent violence should be a cautionary tale for academics and politicians alike in the tolerance shown for such anti-free speech movements.  Many leaders and academics have denounced such groups on the right (some of which are also active in these riots), but notably have been more muted in condemning anti-fascist and left-anarchist groups.

Here is the column:

Continue reading “Devouring Its Own: How Many On The Left Fostered The Violent Movement Now Rioting Across The Country” →

Columns, Constitutional Law, Criminal law

Declaring Antifa A Terrorist Organization Could Achieve Its Anti-Free Speech Agenda

Antifa_The_Anti-Fascist_HandbookBelow is my column in The Los Angeles Times on President Donald Trump’s declaration that Antifa would be designated as a terrorist organization. I have explained that such a designation would ordinarily be made for “foreign terrorist organizations” by the State Department.  It is also unnecessary. As I wrote recently, there is a case in New York that could be the perfect framing prosecution for treating rioting as domestic terrorism.

Ironically, Antifa is a vehemently anti-free speech organization and it could achieve that purpose if it is declared a terrorist organization.  Such a designation of the entire movement could prove highly damaging to free speech in this country.

Here is the column:

Continue reading “Declaring Antifa A Terrorist Organization Could Achieve Its Anti-Free Speech Agenda” →

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

The Senate Should Focus On What The Flynn Transcripts Do Not Contain . . . Starting With A Crime

440px-Michael_T_FlynnBelow is my column in The Hill newspaper on the new disclosures in the prosecution of former National Security Adviser Michael Flynn.  Yesterday, the attorney hired by Judge Emmet Sullivan responded on his behalf to defend his controversial orders in the case to invite third parties to argue the merits of the motion to dismiss as well as raising his option to substitute his own criminal charge of perjury against Flynn.  The Justice Department responded with a 45-page filing to a three-judge appeals court panel.

The attention will now focus on the appearance tomorrow of former Deputy Attorney General Rod Rosenstein in the Senate.  For me, the most pertinent question is why this investigation continued past December and seemed to become to a search for a crime rather than the investigation of any crime or collusion with Russia.

Here is the column: Continue reading “The Senate Should Focus On What The Flynn Transcripts Do Not Contain . . . Starting With A Crime” →

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

Little Brother Or Big Brother: The Public Applauds As Free Speech Dies On The Internet

166px-Ad_apple_1984_2Below is my column in USA Today on the fight between Trump and Twitter. As discussed below, this is a fight not for free speech but who will control free speech. Democrats want speech controls through private companies while the Administration wants speech controls through government agencies.  The choice is between Little Brother and Big Brother.

Here is the column:

Continue reading “Little Brother Or Big Brother: The Public Applauds As Free Speech Dies On The Internet” →

Columns, Congress, Constitutional Law, Media, Politics

“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” →