Category: Columns

Bizarre, Columns, Media, Politics

Comedic Relief: Biden Declares Hunter Investigation Just More “Foul Play” By Political Operatives

We had breaking news Thursday night: Joe Biden is proud of his son Hunter. After a blackout on the Hunter Biden scandal before the election, it often seems as if the media is struggling to offer the appearance of coverage without actually asking questions that could be damaging for the president-elect.

That view of many was reinforced in the first interview with Biden about his son since the November election. It was conducted by CBS’ Stephen Colbert, host of “The Late Show with Stephen Colbert.” Biden has refused to answer questions on the expanding scandal surrounding his son’s China connections so this was a big deal. However, the president-elect’s team arranged for the all-important question to be asked by a comedian on a late-night show. Continue reading “Comedic Relief: Biden Declares Hunter Investigation Just More “Foul Play” By Political Operatives” →

Columns, Justice, Politics, Uncategorized

Bill Barr’s Family Time: How The Justice Department Has Lost One Of Its Staunchest Defenders

Below is my column in the Hill on the early departure of Attorney General Bill Barr.  The move will give Trump the record on Attorneys General.  That is not good.  A President cannot selected too many Supreme Court justices or too few Attorneys General. Reports indicate that, with Barr leaving, Trump is openly discussing appointing a special counsel for the Hunter Biden investigation.  At this point, that appears entirely unnecessary and would further tarnish the image of Trump as someone who is interfering with the internal decisions of the Justice Department. What is clear is that Barr proved a critical fire wall for the Department at one of its most chaotic and challenging periods. As I have previously said, Barr remains more sinned against than sinner and history will vindicate his tenure at the Justice Department.

Here is the column: Continue reading “Bill Barr’s Family Time: How The Justice Department Has Lost One Of Its Staunchest Defenders” →

Columns, Criminal law, Media, Politics

“Largely Unnoticed”: Hunter Biden Is On The Roof Again And The Media Just Noticed

Below is my column in the Hill on the Hunter Biden scandal and how the media is attempting to cover a story that was dismissed as Russian disinformation throughout the campaign. The media like the Daily Beast is spinning the sudden disclosure of one and possible two related investigations as based on details that were “largely unnoticed” before the election. They were of course noticed. They were largely ignored.

Here is the column:

Continue reading ““Largely Unnoticed”: Hunter Biden Is On The Roof Again And The Media Just Noticed” →

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

Flynn’s Cadaver Synod: The Court Dismisses A Dead Case But Not Before It Flogs The Corpse

Below is my column in the Hill on the conclusion of the case of Gen. Michael Flynn, which ended (not surprisingly) with one last gratuitous and controversial act from the court.  Judge Emmet Sullivan decided to effectively flog Flynn on his way out of his court.

Here is the column: Continue reading “Flynn’s Cadaver Synod: The Court Dismisses A Dead Case But Not Before It Flogs The Corpse” →

Columns, Congress, Constitutional Law, Politics

Yes, Trump Can Pardon Himself But He Should Not Do So

Below is my column in the Hill on the controversy over presidential self-pardons. Many academics have long expressed the view that a president can issue a self pardon. Judge Richard Posner discussed the issue in commentary and also concluded that such a pardon could occur. Posner stated “It has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.”  This has been a long-standing debate and there is an honest and interesting debate on the issue. For some of us, there is a difference between condemning such self-pardons as self-dealing and declaring that the Constitution clearly bars such presidential acts. That does not change because the subject of the analysis is now President Donald Trump.

Here is the column: Continue reading “Yes, Trump Can Pardon Himself But He Should Not Do So” →

Columns, Congress, Constitutional Law, Criminal law, Justice, Media, Politics

Barr’s Appointment Of Special Counsel Leaves Biden and Democrats In A Muddle

Below is my column in USA Today on the implications of the appointment of U.S. Attorney John Durham as a Special Counsel.  House Intelligence Committee Adam Schiff and other Democrats have already denounced the move and called for the next Attorney General to consider rescinding the appointment.  While Schiff previously called for legislation to protect Special Counsel Robert Mueller to complete his work without interference from the Attorney General, he ramped up the rhetoric against Durham as leading a “politically motivated investigation.” Durham was previously praised by Democrats and Republicans alike as an independent, apolitical, and honest prosecutor.  After insisting that the public has a right to see what has been uncovered over years of investigation by Mueller, they are now pushing to end the Durham investigation and forestall any final public report.

Here is the column:

Continue reading “Barr’s Appointment Of Special Counsel Leaves Biden and Democrats In A Muddle” →

Columns, Constitutional Law, Society

Pilgrim’s Progress: How Thanksgiving Should Be A Celebration Of Nonconformity

Below is my column in The Hill on the attacks on the Pilgrims this Thanksgiving and why they embodied a critical characteristic in our country’s history: nonconformity. Indeed, the first major act that these courageous people did upon their arrival on these shores was the signing of a compact of rights that affirmed:

 

 

“solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid: And by Virtue hereof do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions, and Offices, from time to time, as shall be thought most meet and convenient for the general Good of the Colony; unto which we promise all due Submission and Obedience.”

Here is the column: Continue reading “Pilgrim’s Progress: How Thanksgiving Should Be A Celebration Of Nonconformity” →

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

The Death Star Strategy: Is Trump Contemplating The Ultimate Constitutional Trick Shot?

Below is my column in The Hill on the possibility of contesting electoral certifications by key states. With the adverse ruling in Pennsylvania, the Trump legal team is still pledging new evidence of massive fraud as certifications are completed. The options for the team seem more and more reduced to the ultimate constitutional trick shot in engineering a fight on the floor of Congress.

Here is the column:

Continue reading “The Death Star Strategy: Is Trump Contemplating The Ultimate Constitutional Trick Shot?” →

Columns, Courts, Lawyering, Media, Politics, Society

“The First Thing We Do”: The Lawless Campaign To Harass Lawyers Representing The Trump Campaign

Below is my column in The Hill on the successful campaign that has forced firms to drop Donald Trump or the Republican Party as clients in the ongoing litigation over the 2020 election. Notably, this campaign started soon after the election was called for President-Elect Joe Biden.

Here is the column: Continue reading ““The First Thing We Do”: The Lawless Campaign To Harass Lawyers Representing The Trump Campaign” →

Columns, Congress, Criminal law, Media, Politics

Durham’s Lame Duck Period: Democratic Leaders Suggest A Dim Future For Biden-Related Investigations

Below is my column in the Hill newspaper on the growing pressure on prosecutors during the lame duck period to move forward in their investigations into the Russian investigation or Hunter Biden. House Intelligence Committee Chair Adam Schiff again strongly suggested that such investigations should end with the entry of a Biden Justice Department.  Schiff told MSNBC that investigations of a president-elect constitute “tearing down our democracy” and a way to “delegitimize” a president. This is precisely what I raised in my column on the expected effort by some to scuttle the Biden related investigations. The statement was only the latest indication that Democrats are likely to push to end any investigations touching on the Bidens, including statements from individuals known to be under consideration for Attorney General. In doing so, they will likely have the support of many members of the media who would be embarrassed by any findings of wrongdoing after insisting that there was nothing to cover and refusing to ask Biden specific questions on the campaign trail on these allegations.

Here is the column:

Continue reading “Durham’s Lame Duck Period: Democratic Leaders Suggest A Dim Future For Biden-Related Investigations” →

Columns, Media, Politics

“Bring Out Your Dead”: The Trump Campaign Faces Calls For Evidence To Support Allegations of Voter Fraud
YouTube Screenshot

Below is my column in The Hill on the challenges to the presidential election and moving beyond heated allegations to hard evidence in the filings.  I have expressed skepticism over the sweeping claims of fraud or that the current margins could be overcome with anything other than systemic flaws in the authentication of ballots. However, the demand for clear evidence of systemic violations after only a couple days of the tabulation stage is bizarre. We would not necessarily have such evidence, which is largely held by election officials. As expected, we have a series of localized affidavits and allegations of intentional fraud. Yet, network analysts were dismissing any and all allegations within the first 24 hours, as tabulations were continuing. It is like saying that a patient has a low white blood cell level but insisting on stopping testing if you cannot conclusively say that there is cancer. These initial allegations may or may not be indicative of a more systemic problem. There is no reason to presume fraud but also no reason to demand concessions before we look at these allegations, particularly with the addition of sworn statements and at least one computer problem resulting in loss of thousands of Trump votes in Michigan.  Half of this country voted for Trump and it is not much for them to ask for a review of the challenges — a right that the Democrats would be demanding if the positions in this close election were reversed. Moreover, those voters can be understandably skeptical to hear these instant dismissals from networks, which previously predicted a sweeping victory for Biden and the Democrats. Even if, as expected, these allegations are rejected, it is important for this country to have a full and open consideration of these claims and the underlying evidence.

Here is the column:

Continue reading ““Bring Out Your Dead”: The Trump Campaign Faces Calls For Evidence To Support Allegations of Voter Fraud” →

Columns, Media, Politics

Pulling A Rosie Ruiz: The Risky Business of Calling American Presidential Elections
YouTube Screenshot

Being a legal analyst often makes you a killjoy at a party.  As millions broke out in celebration over the calling of the election for Joe Biden (including most of my immediate family), I watched with a mix of shared excitement and silent apprehension. It does appear that Biden won this election and his speech last night was the perfect pitch and message for a divided nation.  However, there are still legal challenges being filed in a half dozen, new affidavits containing troubling sworn allegations, and relatively close state contests. As someone who has covered presidential elections for networks going back to 2000, those challenges are like live torpedoes in the water – you do not know if one could actually hit below the water line. The issue for legal analysts is that, with the tabulations still occurring, there is little ability to judge allegations of voting irregularities.

Continue reading “Pulling A Rosie Ruiz: The Risky Business of Calling American Presidential Elections” →

Columns, Constitutional Law, Politics, Society

What Happens In Vegas May Not Stay In Vegas: Why The Nevada Challenge Could Be Important To The Presidential Election

It turns out that some things that happen in Vegas may not stay in Vegas . . . like voting. The Republican Party in the Silver State is now arguing that thousands of votes in the close presidential election were cast by workers who moved out of the state or even by deceased individuals. Various voters reported their deceased relatives receiving live ballots in the mail. Now, the Nevada Republican Party has sent a criminal referral to the Justice Department alleging at least 3,062 instances of voter fraud in the battleground state. The referral is substantially less than the “10,000” referenced earlier but the underlying allegation is still important. The early concern for many of us was that the system established in Clark County would be difficult to review for violations due to how the tabulation was handled and the record preserved.  Continue reading “What Happens In Vegas May Not Stay In Vegas: Why The Nevada Challenge Could Be Important To The Presidential Election” →

Columns, Constitutional Law, Politics, Society

“It Costs A Lot Of Money To Look This Cheap”: America Continues To Struggle With Dysfunctional Elections

Below is my column in the Hill on continuing controversies over vote counting in states like Nevada and Pennsylvania. Some of these challenges are based on the resistance to monitors and observers in states like Pennsylvania. It is mystifying why Pennsylvania is fighting so hard against such access. The litigation is only fueling suspicions of wrongdoing as the vote balance shifts dramatically. The problem is that a court could ultimately agree that the officials violated state laws but declare such challenges as effectively moot since the vote counting is largely completed. For other challenges, the litigants will need to convince a court that the number of impacted ballots could be “outcome determinative” for the electoral votes.  Otherwise, it could be treated as immaterial to the outcome.  Those challenges need to be made and supported without delay. Time works to the advantage of the party protecting a lead.  As it stands, the allegations of systemic violations is still to be made by the Trump campaign. Absent real evidence, Joe Biden has a clear path to 270 electoral votes and the White House.

Here is the column:

Continue reading ““It Costs A Lot Of Money To Look This Cheap”: America Continues To Struggle With Dysfunctional Elections” →

Columns, Politics

Contested Election: The 2020 Election Has Proven A Target Rich Environment For Challenges

Below is my earlier column in the Hill on the issues that we are following in the various states.  Many of these issues are now being litigated on the deadlines and conditions for voting. We are still seeing challenges over the voting and now over the counting.  We will be moving to the next phase from counting to keeping votes. Even if a state is declared for a candidate, there will be recount and challenges.  Recounts historically have no resulted in substantial changes with the exception of the Florida recount in 2000 where there were serious problems in the design of ballots and intent of voters.  There remain however categorical challenges like the one kicked back by the Supreme Court in Pennsylvania.

Here is the column:

Continue reading “Contested Election: The 2020 Election Has Proven A Target Rich Environment For Challenges” →