Category: Columns

Rod Rosenstein’s Deepening Ethical Quandary

Below is my column in the Hill newspaper on an overlooked issue from the letter of Attorney General Bill Barr to Congress on the Special Counsel report. Whatever happens to the allegations and evidence facing President Trump, there remains the question of what to do with Deputy Attorney General Rod Rosenstein.

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Trump’s Noble Moment: Waiving Executive Privilege Over The Special Counsel Report

Below is my column in the Hill newspaper on the decision of President Donald Trump to waive executive privilege and the announcement of Attorney General Bill Barr that he has no intention to even give the White House an early look at the report. While Trump has not received any praise for that decision, it would (if true) represent a significant departure from past presidents and a major advance for transparency in government. Indeed, as discussed below, despite President Barack Obama’s pledge to be the most transparent president in history, Trump could have a greater claim to that distinction.

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Smollett and the Scourge of Celebrity Justice

Below is my column in The Hill newspaper on the dropping of charges against Jussie Smollett. The decision to give Smollett community service and an insulting $10,000 fine has outraged people around the world. Indeed, the City estimates that it spent $130,000 in pursuing the hoax. The costs belie the claim of the Chicago District Attorney that it was merely trying to save badly needed resources. Those resources were already spent in finding the hoax and securing 16 charges from a grand jury. The result is a travesty of justice that shocks the conscience.

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Absent Any Indictments, Collusion May Be A Delusion

Below is my column in The Hill newspaper on the news that there will be no further indictments issued by Special Counsel Robert Mueller. The fact of no indictments means that Mueller will not indict a single person for collusion or obstruction. He could still indicate that he believes that President Donald Trump committed an offense but cannot be indicted under Justice Department policy. However, whatever crime that may be, the absence of any of indictments would suggest that he would be the only person charged — a curious profile for a prosecution of this kind. Mueller could still find a concerted Russian effort to help Trump, but that is evident from the charges against the Russian hacking and trolling operation.

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The Max Bialystock School of Prosecution: Manafort Charges Flaunt A Disregard For The Constitution

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Below is my column in The Hill newspaper on the New York charges brought against Paul Manafort. As I have previously written, double jeopardy protections have been watered down by the Supreme Court through the years. However, this is also a matter of state constitutional protections. Regardless of the outcome, there are troubling concerns raised by this filing. Many New Yorkers often see themselves as civil libertarians, but such concerns seem to be dismissed when the target is an unpopular individual like Manafort.

The New York Constitution has a prohibition on double jeopardy, which is further defined under New York’s Criminal Procedure Law 40.20 which states, “A person may not be twice prosecuted for the same offense.” Section 40.30 sweeps broadly to include any case “filed in a court of this state or of any jurisdiction within the United States, and when the action either: (a) Terminates in a conviction upon a plea of guilty; or (b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn.” That would include not just federal counts but those that were subject to both Manafort’s convictions and guilty pleas.

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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.

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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.

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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.

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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.

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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.

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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.

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