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Below is my column in The Hill on the Derek Chauvin trial in Minneapolis. Last week, at least one juror was excused after he expressed fear that he or his family could be attacked after a verdict. (Conversely, another juror called the rioting necessary to advance the Black Lives Matter movement). The man explained that his neighbors had to flee the area after the riots following the death of George Floyd. That fear was shared by various jurors. It is not surprising when the courthouse is ringed in fencing and barbed wire and even police stations in the city are bunkered down. There are already protesters outside of the courthouse and a new “autonomous zone” in the city that is being criticized by police groups. Once again, the news coverage is highly siloed and divergent in such coverage with vastly different images emerging from the city as it prepares for possible rioting. However, it is the divergent coverage of the case itself that is my greatest concern.
The voir dire responses highlight the concern over venue in the case and the decision not to shift the trial to a different city. There is clearly a fear among jurors that there might be rioting if there is an acquittal for Chauvin. The voir dire selection also magnifies the concern over how the case has been covered in the media with the omission of critical defense arguments and evidence. I believe that there was a legitimate basis for a trial, but this is a stronger manslaughter than a murder case. The trial will give us a better view of the evidence but the coverage thus far has been dangerously incomplete in my view, as discussed below.
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Below is my column in The Hill newspaper on the complaint filed by Rep. Eric Swalwell against former president Donald Trump. Swalwell just filed a complaint that could prove to be the vindication that Trump has long sought in the riot in the Capitol on January 6th.
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As teacher unions fight to keep schools closed, the true cost is being felt by students who are racking up failing grades, dropping out of virtual classes, increasing drug use, and, in rising numbers, committing suicide. In response, some union officials like the President of the Los Angeles Teacher’s Union has labelled calls to return to class examples of white privilege despite overwhelming science supporting resumption of classes. However, for minority students, this shutdown has taken a dire situation and turned into a free-fall disaster. The pandemic led to the closure of an already failing public school system, as evident in a shocking story out of Baltimore. As recently reported, a high school student almost graduated near the top half of his class after failing every class but three in four years. He has a 0.13 GPA. His mother finally went public in exasperation with the failures in the public schools. Continue reading “Baltimore Student Who Failed All But Three Classes In Four Years Was Ranked In Top Half Of His Class”
Below is my column in The Hill on the struggles of many in Washington in the worsening scandal surrounding Gov. Andrew Cuomo. We now have a second former aide alleging sexual harassment and Cuomo has denied the allegation. He is taking heat for saying that he was just being “playful” on such occasions. While the media is beginning to cover the scandal, it is nothing like the saturated coverage of the Kavanaugh controversy or the past Trump allegations. Indeed, Sen. Gillibrand and many of the Democrats who proclaimed Kavanaugh’s guilty are now insisting that both sides being heard. Others are far more measured on this scandal. For example, when CNN’s Dana Bash (who confused her colleague Chris Cuomo with his brother) asked Jennifer Psaki about the new allegations against Cuomo, Psaki called for both sides to be heard. That measured response is in stark contrast to her attack on Sen. Collins as a “fake feminist” and “coward” in voting to confirm Kavanaugh. We saw a similar contrast when then-candidate Joe Biden was accused of sexual assault, though some like Rep. Omar said he was probably a rapist but they would vote for him anyway. This should not be difficult. These leaders are right to call for fair and due process, even belatedly.
Below 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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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.
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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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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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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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.
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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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”
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.
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“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”