Category: Columns

Columns, Constitutional Law, Free Speech, Media, Politics

“China Was Right”: Academics and Democratic Leaders Call For Censorship Of Social Media and The Internet

130px-Mao_Zedong_portraitBelow is my column in The Hill on calls for increased censorship on the Internet and social media due to the pandemic.  While academics are writing that “China was . . . right”, China was celebrating World Press Day by sentencing journalist Chen Jieren to 15 years in prison for “picking quarrels and provoking trouble, extortion, illegal business operations and bribery.”  It is an ironic moment to herald China’s censorship of the media when the evidence mounts that China concealed and censored information on the virus outbreak in January.

Here is the column:

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Columns, Constitutional Law, Courts, Criminal law

The Flynn Case Should Be Dismissed In The Name Of Justice

440px-Michael_T_FlynnBelow is my column in The Hill newspaper on the new evidence released in the case of Michael Flynn.  As I said two years ago, it is unlikely the Judge Emmet Sullivan will dismiss this case regardless of such abuses, but he should.  As we discussed, there has been a concerted effort by media and legal experts to shrug away these highly disturbing documents by saying that such abuses happen all the time.  Journalist Ben Wittes, one of James Comey’s most vocal defenders, went even seemed to make such abuse of Flynn into a victory for racial justice:

“If you’re outraged by the FBI’s tactics with Flynn, keep in mind that they do these things every day against drug dealers, gang members, and terrorists. Except those people are black, Hispanic, and Middle Eastern—not “lock ‘er up” lily white.”

Many of us have spent our careers fighting such abuses for people who are not “lily white.”  That does not excuse abuses of people There was a time when MSNBC, CNN, the Washington Post and other outlets were voices against such prosecutorial abuse. However, in this age of rage, even this record is dismissed as “routine” to avoid undermining a crushingly consistent narrative that the Russian investigation was based on real crimes, albeit collateral crimes.  The “nothing to see here” coverage sacrifices both legal and journalistic values to to maintain a transparently biased narrative.

Here is the column: Continue reading “The Flynn Case Should Be Dismissed In The Name Of Justice” →

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

Pandemic Passport And The Danger Of Immuno Discrimination

1193px-SARS-CoV-2_without_backgroundBelow is a longer version of my column that ran in the Los Angeles Times on the danger of using antibody testing as a basis for discrimination.  The concept of a pandemic passport of course will only be plausible if such antibodies truly yield a form of immunity.  The WHO has declared that there is no evidence to support that claim.  Yet, plasma treatments are reportedly successful.

Here is the column: Continue reading “Pandemic Passport And The Danger Of Immuno Discrimination” →

Columns, Constitutional Law, Media, Politics

Biden Goes Postal: The Vice President’s Conspiracy Theory Is Given Credence By The Media And Democratic Leaders

Below is my column in The Hill on a conspiracy theory being pushed by presumptive Democratic nominee and former Vice President Joe Biden that President Trump is going to order a halt to the November election.  This Sunday, one of the frontrunners for the Vice President slot, Stacey Abrams, was pressed by CNN’s Jake Tapper on Biden’s view that Trump will use the Post Office to delay the election.  Tapper did an excellent job in pursuing a direct answer and Abrams insisted it is “not a conspiracy theory” and repeated the nebulous connection to the postal service.  It is a conspiracy theory and, as I stated yesterday, passing around the tin foil hats is hardly a recommendation for vice president.  Most striking is that, after bizarrely insisting that this was a credible theory on CNN, NBC’s Chuck Todd did not even ask her about it in a low-impact interview. Many of us have been critical of the failure of some Trump supporters to call out the President over such indefensible statements as his disinfectant comments (and later clearly untrue denial).  The same is true for Democrats who ignore bizarre or untrue statements like this one from their leaders.

Here is the column: Continue reading “Biden Goes Postal: The Vice President’s Conspiracy Theory Is Given Credence By The Media And Democratic Leaders” →

Columns, Constitutional Law, Criminal law, Media, Politics

No, President Trump Is Not Criminally Liable For His Response To The Pandemic


Below is my column  in The Hill on the growing calls for criminal charges against President Donald Trump. This follows an all-too-familiar pattern in the use of the criminal code as an extension of politics.

Here is the column:

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Columns, Congress, Constitutional Law, Politics

Why China Is Unlikely To Be Held Liable For The Pandemic

CroppedStalin1943Below is my column in The Hill newspaper on potential liability of China for its negligence in the early stages (and possible release) of the Coronavirus.

Shortly after this column ran, two members announced that they would be introducing the amendment to the federal law discussed below.

There are now at least seven lawsuits filed against China which is pushing a public relations campaign to deflect blame.

Here is the column:

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Columns, Congress, Constitutional Law, Politics, Uncategorized

The Constitutional Defibrillator: Trump To Invoke Unprecedented Power To Adjourn Congress

800px-Capitol_Building_Full_ViewBelow is my column in USA Today on the pledge of President Donald Trump that he would adjourn Congress under a never used and rarely discussed power of Article II.  While Trump pledged to do so a week ago, there has been no mention of the invocation since that time.

In the White House press conference, President Trump stated:

“If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both Chambers of Congress. The current practice of leaving town while conducting phony, pro forma sessions is a dereliction of duty that the American people cannot afford during this crisis. It is a scam. What they do. It’s a scam and everybody knows it, and it’s been that way for a long time, and perhaps it’s never done before. It’s never been done before. Nobody’s even sure if it has, but we’re going to do it.”

He later added:

“[Congressional leaders] know. They’ve been warned and they are being warned right now. If they don’t approve it, then we’re going to go this route, and we’ll probably be challenged in court and we’ll see who wins, but when the court hears that we aren’t getting people approved . . . for two and a half years for an important position that we need because of this crisis. We needed these people before, but now we really need these people.”

Here is the column:

Continue reading “The Constitutional Defibrillator: Trump To Invoke Unprecedented Power To Adjourn Congress” →

Columns, Congress, Constitutional Law, Politics

Federalism Not Absolutism Is The Cure For A Pandemic

donald_trump_president-elect_portrait_croppedBelow is my column in the Washington Post on President Donald Trump’s assertions of “absolute” and “total” power over the states.  While he appeared to dial back on the rhetoric in the last two days, President Trump again yesterday said that he could have issued orders shutting down every state but decided to let the governors do it.  There remains a fundamental misconception of the President’s authority in our system of federalism.

Here is the column:

Continue reading “Federalism Not Absolutism Is The Cure For A Pandemic” →

Columns, Constitutional Law, Politics, Religion, Society

Why The Government Can Shut Down Church Gatherings During Pandemics

Below is my column in The Hill newspaper. This weekend the Kansas Supreme Court ruled with the Governor in upholding her order to close church services over 10 persons. That is particularly notable since, as mentioned in the column, Kansas is a state with enhanced protections for the free exercise of religion.

Here is the column:

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

Why Calls For A “National Quarantine” May Be More Rhetorical Than Legal

Below is my column in the Hill on how the calls for a “national quarantine” ignore both the historical and legal foundations for such orders. While the President can reduce travel at transportation hubs and certainly call for a national quarantine as “an aspirational” matter, the legal authority to enforce a national quarantine is far from obvious.

Here is the column:

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Columns, International, Society

Stay Calm and Pasty On: How A Small Virginia Shop Is Keeping The Lifeline Of Cornish Pasties Flowing

Below is my column in BBC.com on The Pure Pasty, a lifeline for many of us who love the Cornish pasty and English items like Digestives. When this column ran, I heard from many readers in the Upper Peninsula of Michigan noting that they also have a tradition of pasties. I have personal knowledge of those Michigan pasties from my youth. They were in fact the first pasties that I ever tasted. I would regularly go backpacking at Isle Royale in the Upper Peninsula and I would stop in Hancock for pasties on the way to the island. I believe the establishment was called Jean Kays. The embracing of pasties in the Upper Peninsula was no accident. In Cornwall, pasties were developed by miners as an easy way to bring lunch meats into the mines. The notes from folks in Michigan brought back a flood of crusty but still warm memories.

Here is the column:

Continue reading “Stay Calm and Pasty On: How A Small Virginia Shop Is Keeping The Lifeline Of Cornish Pasties Flowing” →
Columns, Constitutional Law, Media, Politics

Governors Practice Political Distancing In Shifting Blame To Federal Government
National Gallery of Art

Below is my column in The Hill newspaper on the continued calls for federal takeovers and nationalization of industries. The past commentary often reflects a fundamental misunderstanding of both our constitutional and statutory laws. What is also striking is that a significant number of governors appeared on Sunday shows but not one was asked about the failure of his or her state to prepare for such a public health emergency. Governors are referring to this crisis as if it were a previously unknown meteor from space. In fact, we have been discussing the utter lack of preparation for a pandemic for over two decades and states like New York were warned that they would be dangerously short such items as ventilators. I was part of that debate back in 2002 and 2003 when the model law for pandemic was being adopted by states — reaffirming the primary responsibility of the states to address pandemics.

Here is the column:

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Columns, Congress, Society

Congress Moves For Emergency Containment of Ethics Outbreak

Below is my column in The Hill newspaper to the latest outbreak of ethics and the politically distancing being used by members to control the outbreak over insider trading. Notably, Minority Leader Chuck Schumer was adamant on barring businesses owned by President Donald Trump and Vice President Mike Pence from benefiting from the stimulus package. Notably absent however was a similar ban for members who have considerable stock or ownership interests in such companies.

Here is the column:

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Columns, Congress, Constitutional Law, Courts, Justice, Lawyering

Virtual Democracy: Congress and The Supreme Court Need To Move Into The Virtual Space

Below is my column in The Hill newspaper on the baffling reluctance of Congress and the Supreme Court to allow for remote or distance technology as an alternative to physical sessions. Democracy at a distance is better than no democracy at all in times of emergency. President Donald Trump was asked about Congress allowing remote voting given the various Senators who are now in quarantine. He thought that it was a good idea but that there may be constitutional barriers. The greatest barriers, particularly for the Supreme Court, remain cultural not constitutional.

Here is the column:

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