Category: Columns

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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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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“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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A Verdict On Our Times: How The Senate Trial Left Us With Rage Over Reason

Below is my column with the BBC on the impeachment verdict and its aftermath. A new Hill/HarrisX poll shows President Donald Trump at a record high of popularity — finding the same 49 percent level of the earlier Gallup poll. In other words, people heard what they wanted to hear in the trial — and most heard nothing at all by tuning it all out. Indeed, as discussed below, it ultimately did not seem to matter what anyone actually said as opposed to what people wanted to hear.

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“My Open Grave”: Mitt Romney And Why Washington Admires Bipartisanship . . . At A Distance

Below is my column in the Washington Post on the vote of Mitt Romney and how his independence is a virtue celebrated selectively by the political establishment and the media. One thing that should unite everyone is the inexcusable attack on Romney’s reference to his faith by President Trump. Romney grew emotional on the Senate floor when he dismissed the “unimaginable” attacks as paling in comparison to what he would lose by violating an oath to God.  Trump responded at the National Prayer Breakfast by declaring.” “I don’t like people who use their faith as justification for doing what they know is wrong.” The one thing that I never thought would be questioned is the faith of Mitt Romney, who not only is widely known as a deeply religious Mormon but has been discussed as a possible head of the Mormon Church.  I have never been a fan of Romney’s policies, particularly his environmental policies (which are in line with Trump).  However, I have never heard anyone suggest that Mitt Romney’s faith is anything but genuine and heartfelt. I have no problem with Trump attacking the merits of his decision but the attack on his motivation is well beyond the pale.

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The “Liberated” Pelosi Should Now Step Down As Speaker

Below is my column in the Hill newspaper on the controversial conduct of Speaker Nancy Pelosi at the State of the Union this week. Pelosi broke with tradition on three points: changing the greeting for the President, making demonstrations of criticism from the Speaker’s chair, and ripping up the address in protest. I previously called upon Pelosi to apologize and commit to maintaining decades of tradition for the Speaker to be neutral in the State of the Union to represent the House as a whole — Republicans and Democrats. Pelosi yesterday however doubled down and declared her protests to be perfectly appropriate and liberating. Her declaration of being “liberated” is itself both confirmatory and chilling. She liberated herself from traditions of neutrality that extends back centuries to the English Parliament.

Now liberating from rules and tradition, Pelosi is free to convert the Speakership into a more partisan role at the SOTU, including the use of the position to mock, troll, or taunt a president addressing both houses. I have joined others in criticizing Trump’s failure to shake the hand of Pelosi and his highly inappropriate comments yesterday questioning Pelosi’s and Romney’s faith. However, that does not give Pelosi license to violate this important and unbroken tradition as Speaker at the State of the Union. Indeed, the silence of Democratic members in the face of Pelosi shattering decades of tradition is equally shocking. In remaining silent, Democrats of both houses have lost any moral high ground.

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The Trump Verdict: Why Bad Cases Can Make Bad Law

With the exception of one vote on one article of impeachment (by Sen. Mitt Romney), the acquittal of President Donald Trump went as predicted with a party-line vote. Notably, however, the vast majority of senators, including a significant number of Republican senators, expressly rejected the core defense offered by Professor Alan Dershowitz in their statements –rejecting the position that impeachable offenses must be based on criminal allegations and does not include allegations of abuse of power. What we did not see, as discussed in this column in The Washington Post, was a bipartisan rejection of Article II.

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How The House Lost The Witnesses Along With The Impeachment

Below is my column in The Hill newspaper on the continued effort to ignore the obvious and catastrophic decision of the House leadership to rush the impeachment vote by Christmas rather than complete the record against President Donald Trump. This denial continues despite the fact that, after saying that they had no time to seek witnesses or favorable court orders, the House leadership then waited a month before released the articles of impeachment. Clearly, the record would have been stronger if the House waited and sought to compel witnesses. It also would have kept control of the record and the case. I encouraged them to vote in March or April, which would have given them plenty of time to secure additional testimony and certainly a number of favorable court orders. However, recognizing this obvious blunder would take away from the narrative that the case failed only because the Republicans were protecting Trump in the Senate.

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The Dershowitz Defense: How Dershowitz Made The Case Against His Own Defense

Below is my column in USA Today on the Dershowitz defense and why he reached the right conclusion for manifestly the wrong reason. Dershowitz has maintained that his views were distorted by the media and critics, but at base his argument is still deeply flawed. The problem is not (and never should be) that he is at odds with the vast majority of constitutional scholars. The problem is that he is at odds with the vast majority of constitutional sources. Moreover, his examples if anything proved the case against his defense.

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Rehnquist Versus Chase: History Offers Roberts Few Models For Defining His Role

Below is my column in The Hill newspaper on the uncertain role of Chief Justice John Roberts as the presiding officer of the Senate impeachment trial. I have already raised some questions over Roberts’ refusal to read a question from Sen. Rand Paul after Paul insisted that the question did not ask for or use the identity of the whistleblower. Even more significant questions could arise as early as today.

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Was The Bolton Leak Too Perfect? The Senate Grapples With The First Perry Mason Moment Of A Presidential Impeachment

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Below is my column in the Washington Post on the still unfolding drama surrounding the leaked contents of the book by former National Security Adviser John Bolton.

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Choosing the Unpalatable Over The Disastrous: Shoot Article II and Call The Witnesses

Below is my column in the Washington Post on the best course for the House managers in securing witnesses. The column was posted before the Bolton leak, which may now secure the needed four votes of swing Republican senators. However, Article II is as dead as Dillinger. Indeed it was dead on arrival. The two days of White House argument wiped out what little support existed for the charge given the decision to rush this impeachment and then impeach a president for raising executive privileges and immunities. The strongest material of the White House was directed at this exceedingly weak and unwarranted article of impeachment. Democratic senators speak a great deal of the need for bipartisanship . . . for Republicans. It is time for those same senators to show that they are equally expected and capable of putting aside party for principle. It is time for Democratic senators to join in the call to reject Article II.

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Why Neither Side Is Really Trying To Win This Trump Impeachment Trial

Below is my column in The Hill newspaper on the adoption of language and theories in the impeachment trial that has alienated key senators. Neither side appears to be tailoring their cases to secure bipartisan votes.

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The White House Hail Mary: Dershowitz To Argue That Trump Impeachment Is Unconstitutional For Lack Of A Crime

Today we are likely to hear the constitutional arguments in defense of President Donald Trump, including the highly controversial theory of Harvard Professor Alan Dershowitz that an impeachment must be based on an alleged crime. I have previously discussed my disagreement with Dershowitz’s use of the trial of Andrew Johnson to support this claim.

Below is a column that ran in the BBC on my long-standing opposition to that theory.

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