Below is my column in the Washington Post on the real possibility that the Supreme Court could be pulled into the Senate impeachment trial if witnesses are allowed. If you hated Bush v. Gore, this could be one sequel that you will not want to see. Certainly few on the Court are eager to play a role in the possible removal of an American president.
I have long respected Sen. Chris Coons (D, Del.) as a highly intelligent and effective senator. I was surprised today to be watching Michael Smercomish (who I also respect greatly) to hear Sen. Coons following the party line in arguing implausibly that Hunter Biden is not a relevant witness in any trial despite his centrality to the Trump defense. I previously addressed how Biden would be deemed relevant in a conventional trial and Smercomish quoted one of my Washington Post column at length to offer the opposing view. Sen. Coons responded not by addressing the relevancy argument but by dismissing such arguments as clever lawyering and “a stretch . . . a leap of logic worthy of Evel Knievel.” I should note that this analogy was lost on my youngest son, Aidan, who immediately asked “who is Evel Knievel?” When I explained, he responded, “isn’t that a good comparison?” Continue reading “A Leap or Perpetuating Evel? A Response To Sen. Chris Coons”
Below is my column on Elizabeth Warren and recent campaign promises that raise serious constitutional and legal questions. It is striking how some elements despised in President Donald Trump seems celebrated in Elizabeth Warren.
Here is the column:Continue reading “Elizabeth Warren Moves Bigly To Out-Trump Trump”
The General Accountability Office (GAO) has issued a report declaring that President Donald Trump violated the law when he withheld military aid from Ukraine. The GAO, which is a nonpartisan arm of Congress, declared in the eight-page report that “Faithful execution of the law does not permit the president to substitute his own policy priorities for those that Congress has enacted into law.” While the report’s release triggered the familiar bombshell headlines, there was considerable exaggeration of its findings. This is less relevant to impeachment than might initially appear. This was a finding of the violation of a federal law due to the delay. It would still be a violation even if the President was solely acting in the public interest to combat corruption or guarantee support from our allies. In other words, that violation is not on its face an impeachable act. Indeed, other presidents have been found to have committed such violations.Continue reading “GAO Declares Trump’s Action On Ukraine Aid To Be Unlawful”
There could be a curious constitutional challenge brewing after the Virginia Senate Privileges and Elections committee voted to report the ERA to the floor of the Senate on Wednesday. That would be the 38th state to ratify but the vote ignores two glaring problems. First, the deadline for ratification passed 38 years ago and five states that approved the ERA have since rescinded their ratification.Continue reading “Virginia Moves To Ratify Equal Rights Amendment . . . 38 Years After Expiration”
Below is my column in The Hill Newspaper on the blunder by Speaker Nancy Pelosi of not submitting the impeachment case to the Senate — a mistake that now threatens not just the trial but the rules for impeachment trials.
On Sunday, Pelosi went largely unchallenged in her obviously incorrect claim that the House is still in court seeking witnesses in the impeachment. The House is litigating pre-impeachment witnesses, but has never sought to subpoena, let alone compel, key witnesses in the impeachment from John Bolton to Rudy Giuliani to others with direct knowledge of any alleged quid pro quo. Indeed, the House has done nothing for four weeks after the vote – a vote that I strongly discouraged in favor of spending a couple months seeking these witnesses and/or court orders. Now Pelosi is actually suggesting that they could still seek the witnesses while the House does nothing. It remains the most baffling blunder of the impeachment.
Here is the column:Continue reading “Pelosi’s Blunder: How The House Destroyed Its Own Case For Impeachment”
The Foreign Intelligence Surveillance Court has triggered a wave of condemnations over the selection of David Kris, to oversee reforms of the FBI FISA process. Foreign Intelligence Surveillance Court (FISC) presiding Judge James Boasberg, left, appointed Kris, a lawyer that the Washington Post describes as “highly controversial.
Critics have objected that Kris writes for Lawfare, a legal site widely criticized by conservative lawyers for its left-oriented, anti-Trump positions, as well as shows like Rachel Maddow on MSNBC. That objection strikes me as attenuated and unfair. The more serious allegations however is that Kris was one of the most public advocates for rejecting allegations of FBI abuse. In a city where you can throw a stick and hit ten lawyers, FISC went to someone who insisted that allegations of abuse were nonsense and should be rejected. If the court was seeking to assure the public, it has added a new controversy for those who see a “deep state” response to reforms.
Various Democrats are beginning to state the obvious: the hold on the submission of the impeachment by House Speaker Nancy Pelosi has not worked and will not work. From the very start, some of us stated that this was a ridiculous ploy that would not result in any concessions. What it has done is eviscerate the rationale for the rushed impeachment. Various Senate Democrats have broken with Pelosi over the ill-conceived strategy. The most stinging was Sen. Diane Feinstein who stated “The longer it goes on the less urgent it becomes. So if it’s serious and urgent, send them over. If it isn’t, don’t send it over.”
In the House, there has been an effort to declare success by the fact that there is a debate over witnesses, but the same debate occurred during the Clinton trial when the House acted appropriately in submitting the impeachment. Now, ranking Democrat has learned that stating the obvious is blasphemy. House Armed Services Committee Chairman Adam Smith, D-Wash. declared that the hold had not worked and would not work. He said it was time to turn over the impeachment and not try to control another house. He was quickly given word that he was a blasphemer and declared that he had “misspoken” and then said the exact opposite. There is nothing more moving than a redemptive sinner.Continue reading “Chairman Smith Speaks Out Against Pelosi Hold On Impeachment . . . Before Claiming He “Misspoke””
Professor Ken Hughes of University of Virginia recently penned a column to denounce the utter partisanship and lack of integrity in Washington as demonstrated by the failure of a single Republican to support the impeachment of President Donald Trump. He did not, of course, view the virtually unanimous vote by Democrats as partisan. Just the Republicans. The reason appears to be the view that the Democrats are right and therefore the Republicans are utter partisan hacks. To make his case, Professor Hughes makes equally selective observations about the history of impeachment, including singling out a line from my testimony before the House Judiciary Committee.Continue reading “History and Its Revision: The Use and Misuse Of The Nixon Precedent”
An interesting thing occurred on Capitol Hill yesterday. A U.S. Senator demanded to be treated as an actual U.S. Senator. After the briefing by the Trump Administration on the “imminent” threat behind the killing of Iranian general Qasem Soleimanim, Utah Republican Sen. Mike Lee came out of the hearing irate at what he described as the “worst military briefing” he had ever witnessed. Lee is one of President Donald Trump’s most committed supporters and a hawk. However, he has a quaint notion of being part of an independent branch of government with independent obligations under federal law. Lee refused to simply rubber stamp the position of the White House and denounced the “briefing” as offering no real evidence and little beyond platitudes. Sen. Rand Paul joined Lee in criticizing the briefing as clearly insufficient. In response to this principled position, both have been accused of “empowering the enemy” by Sen. Lindsey Graham. Defending the authority and functions of Congress is precisely what the Framers demanded in our system of checks and balances.Continue reading ““It’s UnAmerican. It’s Unconstitutional”: Utah Senator Denounces The Iran Briefing As “Absolutely Insane””
My column today in the Washington Post explores the possibility of witnesses in the Senate impeachment trial and specifically what the Senate might do if the White House demanded a clearly relevant defense witness named Hunter Biden. As the column was coming out, former national security adviser John Bolton announced that, if subpoenaed, he is “prepared to testify” before a Senate trial. Some of us have been saying for months that Bolton was signaling to the point of screaming that he was eager to testify. Nevertheless, the House refused to subpoena him, let alone seek to compel his testimony. It was the same counterintuitive position that led to the House to withdraw its subpoena for top Bolton aide, Charles Kupperman. Bolton’s announcement only highlights the baffling blunder of the House in rushing this impeachment before creating a complete and compelling record for removal. Instead, it effectively handed over control of the case — and completion of its case — to the Senate and the opposing party.Continue reading “The Bolton Factor: Pressure Builds For Witnesses In The Senate Trial”
Below is my column in The Hill newspaper on the recent decision on the appearance of a key witness, Charles Kupperman, in the House investigation. The abandonment of the subpoena on Kupperman highlights what will be a major question in the Senate of why the Senate should demand witnesses who the House failed to seek to compel. By rushing the impeachment and forcing a vote before Christmas, the House gave up control over an incomplete and insufficient case for removal. It gave up that control to a chamber controlled by the opposing party. Speaker Nancy Pelosi’s attempt to game the system has not achieved any concession from Senate Majority Leader Mitch McConnell. Few of us believed it would. Now the House will proceed on the thinnest record ever presented in a modern presidential impeachment trial.
Here is the column:Continue reading ““How Did It Get So Late So Soon?”: The Democratic Impeachment Erodes With Opinions and Time”
I have previously criticized psychiatrists who have regularly appeared on the air to identify a variety of mental illness that they have observed in President Donald Trump from afar. As I discussed in a prior column on the demise of the Goldwater rule, this is diagnosis without examination and often seems mixed with strong political judgments about Trump’s political positions. Bandy X. Lee, a professor of psychiatry at the Yale University School of Medicine, has been one of the most outspoken and last week urged House Speaker Nancy Pelosi to demand some ill-defined “hold” on the president pending psychiatric examination. Her position latest position is utterly bizarre but has been treated as a serious discussion point by some media like Salon magazine.Continue reading “Yale Psychiatrist Calls On Pelosi To Put “A Mental Health Hold” On Trump”
In a break from long-standing intelligence practices, President Donald Trump ordered the Defense Department to confirm that the United States was behind the missile strike that killed Qassem Soleimani, the commander of Iran’s secretive Quds Force, and six others, including Iraqi militia commander Abu Mahdi al-Muhandis. The public acknowledgement of responsibility is a game changer. While Iran (like most of us) assumed it was the United States, the public confirmation of the assassination removes any doubt and forces Iran and Iraq to deal with a direct and official attack. International law treats the targeted killing of a ranking military figure on foreign sovereign soil as a presumptive act of war. As always however there is no shortage of hypocrisy in the condemnations from Capitol Hill.Continue reading “Trump Orders Defense Department To Publicly Confirm Assassination Of Iranian General”
Below is my column in The Hill newspaper on the position of Harvard Law Professor Laurence Tribe that the blocking the submission of the impeachment to the Senate by Speaker Nancy Pelosi is both constitutional and commendable. He is half right but the House is entirely wrong in its gaming of the system in this fashion.
Here is the column:Continue reading “Pelosi’s Half Right Constitutional Claim Leaves The House All Wrong”