Category: Columns

Columns, Criminal law, Media

Mueller’s Roadkill Trophy: A Hunt For Collusion Bags A Circus Clown

Below is my column in The Hill newspaper on the Stone memorandum and the specific counts indicted by Special Counsel Robert Mueller. Notably, after investigating Stone for much of two years, Mueller ended up indicting Stone overlapping false statements from a transcript that he secured just weeks ago from Congress. The coverage has been wildly out of sync with the substance of the indictment. There were many people, including journalists, who were trying to review the Wikileaks materials. That is not a crime. The stated desire to see any Wikileaks material is neither surprising nor illegal. Moreover, we already knew that Stone wanted to see the Wikileaks material and that he was seeking information from Wikileaks. He stated so publicly.

Here is the column:

Continue reading “Mueller’s Roadkill Trophy: A Hunt For Collusion Bags A Circus Clown” →
Columns, Constitutional Law, Criminal law, Media

The Stone Indictment: Mueller Continues To Build A Case Of Non-Collusion

Below is my column in USA Today on the Roger Stone indictment. I have been frankly astonished by the coverage, which has focused on simply the fact that he was charged as opposed to what he was charged with. Once again, the indictment’s significance has been uniformly over-played with little objective analysis of the specific counts themselves. From any objective perspective it is underwhelming in both the underlying conduct and the scope of the allegations.

Here is the column:

More
Columns, Congress, Media, Politics

Barr and BuzzFeed: What Two Stories Reveal About Coverage and Commentary In The Age Of Trump

Below is my column on the concerns raised about the media coverage from last week. As I have stated, my concern is not with the BuzzFeed story per se, but how it was used to start a feeding frenzy of speculation. The treatment of the two major stories of last week (the Barr and BuzzFeed stories) speaks volumes about the consistent pattern of coverage and commentary in the age of Trump.

Here is the column:

Continue reading “Barr and BuzzFeed: What Two Stories Reveal About Coverage and Commentary In The Age Of Trump” →
Columns, Criminal law, Media, Politics

THE BUZZFEED STORY FOLLOWS A PATTERN OF BOOM AND BUST STORIES

Below is my column in The Hill newspaper on the controversy over the Buzzfeed story of President Donald Trump allegedly telling his former counsel Michael Cohen to lie to Congress. This weekend BuzzFeed stood by its story, though it declined to explain a disturbing discrepancy in the account. I disagreed with the call of Rudy Giuliani to investigate or sue BuzzFeed. If BuzzFeed had two officials associated with the Special Counsel making these allegations, it was right to run the story. My criticism is how the story was overblown by experts and members of Congress as a “slam dunk’ case for prosecution and impeachment despite the absence of any clear evidence or corroboration.

Here is the column:

Continue reading “THE BUZZFEED STORY FOLLOWS A PATTERN OF BOOM AND BUST STORIES” →
Columns, Congress, Constitutional Law, Criminal law, Politics

The House Has A Duty To Impeach If They Find High Crimes and Misdemeanors By Trump

Below is my column in USA Today on the recent statements by various Democratic leaders that they are unlikely to pursue impeachment because they do not have the votes in the Senate to convict. While many members pushed the impeachment angle during the campaign, there was a shift on the issue after the Democrats took office. Almost immediately after the election, senior Democrats changed course and began to dismiss calls for impeachment as “fruitless” and a distraction. Rep. Eleanor Holmes Norton declared impeachment to be “a useless waste of energy” and asked “Why would we go down the impeachment road when we cannot get it through the Senate?” 

I have repeatedly said that I do not see the strong foundation for an impeachment against Trump. However, these comments raise a more fundamental question about how members should approach their duties under Article I irrespective of the President. Members often pull a bait-and-switch with gullible voters, but they should not manufacture a new constitutional standard. If they truly believe that any president has committed high crimes and misdemeanors, they have a sworn duty to vote for impeachment.

Here is the column:

Continue reading “The House Has A Duty To Impeach If They Find High Crimes and Misdemeanors By Trump” →
Columns, Congress, Constitutional Law, Courts, Politics

Five Myths About Bill Barr

Below is my column in the Hill newspaper on a growing mythology building around the nomination of Bill Barr for Attorney General of the United States. One of the most prominent is that Barr was intentionally evasive about releasing any report from Special Counsel Robert Mueller. Members of both parties have overwhelmingly called for the release of the report. However, Democratic members pushed Barr to promise to release the entire report before he actually reads it.

Barr said repeatedly that he believed that not only the completion of the Special Counsel investigation but the release of the information was in the public interest.  Barr was repeating the standard from the regulation, which is precisely what he should do.  That standard says that the Attorney General has discretion to conclude that “these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.” What the Democratic senators were demanding would have been an unethical pledge to release a report without knowing its contents.  Federal law prevents the disclosure of a myriad of different types of material from Grand jury (or Rule 6(e)) material to classified material to material covered in privacy or confidentiality laws as well as possible privileged material.  After pushing him on whether he would act ethically, it was a curious request for a facially unethical and unprofessional pledge.
Here is what Barr said:

“I also believe it is very important that the public and Congress be informed of the results of the special counsel’s work . . .For that reason, my goal will be to provide as much transparency as I can consistent with the law. I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political or other improper interests influence my decision.”

Here is the column:

Continue reading “Five Myths About Bill Barr” →
Columns, Congress, Constitutional Law, Criminal law, Justice, Lawyering, Media, Politics

Witch Hunt or Mole Hunt? The Times Bombshell Could Blow Up Both Sides

Below is my column in The Hill newspaper on the recent disclosure that the FBI opened an investigation into whether President Donald Trump was working for Russia after his firing of former FBI Director James Comey. In reading the story, it struck me that the emerging picture from early 2017 looks increasingly like a study in cognitive bias. Indeed, it raises a rather intriguing possibility that both sides may feed each other in reaching the wrong conclusions.

Here is the column:

Continue reading “Witch Hunt or Mole Hunt? The Times Bombshell Could Blow Up Both Sides” →
Columns, Congress, Criminal law, Politics

Trust But Verify: Cohen To Return To Congress In Role Of Reformed Sinner

Below is my earlier column on the scheduling of testimony for President Donald Trump’s former lawyer, Michael Cohen. The new Democratic majority is right to call Cohen who, while he will not discuss matters under investigation with the Special Counsel, can supply needed details on his allegations on other alleged crimes. While he may bring new details, he will bring little credibility as a proven serial liar. Nonetheless, he joins a long line of disreputable characters called before Congress. They are a necessary cost of oversight in some scandals, but Cohen’s record demands more than the usual degree of corroboration. Any oath that Cohen takes at this point will be viewed as a moment worthy of its own laugh track.

Here is the column:

Continue reading “Trust But Verify: Cohen To Return To Congress In Role Of Reformed Sinner” →
Columns, Constitutional Law, Politics

Yes, Trump Has The Authority To Declare A National Emergency On The Southern Border

Below is my column in The Hill newspaper on the threat of President Donald Trump that, should the Democrats refuse to fund the wall, he is preparing to declare a national emergency to build it unilaterally. As I discuss below, I believe that such a declaration should be opposed by Congress in defense of its inherent constitutional function over the federal purse. I do not see the compelling basis to declare an emergency given the available data on illegal crossings on the Southern border. However, I disagree with those who have argued that such a declaration would be unconstitutional.

Here is the column:

Continue reading “Yes, Trump Has The Authority To Declare A National Emergency On The Southern Border” →
Columns, Constitutional Law, Criminal law, Lawyering, Politics

The Barr Memo: Why Reasoned Discourse Should Not Be A Bar To Confirmation

Below is my column in Fox.com on the Barr memorandum that has garnered so much attention. As I noted, I do not agree with the ultimate conclusion of the research that the obstruction provision could not be the foundation for a subpoena to require President Donald Trump to answer questions. However, the memo is a well-reasoned and thoughtful treatment of the issue. Moreover, I agree with Barr (as I have stated since 2017) that critics were stretching obstruction provisions to the breaking point in their blind effort to turn every act into a crime. Indeed, while I do not necessary view the memo as a strong case against obstruction, it is part of a strong case for confirmation.

Here is the column:

Continue reading “The Barr Memo: Why Reasoned Discourse Should Not Be A Bar To Confirmation” →
Columns, Constitutional Law, Courts, Media, Politics, Society

Health Care Jenga: The Future Of The ACA May Rest With Its Past

Below is my column in USA Today on the recent decision effectively striking down the Affordable Care Act.  While Judge O’Connor technically ruled only on the individual mandate, he found that the unconstitutional provision could not be severed from the rest of the Act.  Nevertheless, he will have to address the remaining issue and the question of the injunctive relief.  There is a good chance that the severability ruling will be reversed but that could still leave the ruling on the individual mandate.

Here is the column:

Continue reading “Health Care Jenga: The Future Of The ACA May Rest With Its Past” →