Category: Congress

Stone Cold: Mueller Wins Key Legal Challenge To His Authority As Special Counsel

440px-Director_Robert_S._Mueller-_IIIFor over a year, there has been an ongoing debate over the constitutionality of the appointment of Robert Mueller as Special Counsel.  The claim is that Mueller constitutes a “principal officer” who should be nominated by President Trump and confirmed by the Senate.  Instead, defenders claim Mueller is an “inferior officer” who does not require such a process. Chief Judge Beryl Howell of the United States District Court for the District of Columbia just gave Mueller an impressive legal victory in an opinion that swept aside this and two other fundamental challenges to the Special Counsel.  The decision came as part of the grand jury investigation into Trump confidant Roger Stone.

While there are good-faith arguments that Mueller is no inferior officer given the sweeping nature of his mandate, I have previously expressed great skepticism of the viability of these challenges in light of the prior decision of the Court in Morrison v. Olson, which upheld the constitutionality of the Independent Counsel Act.  That Act was allowed by Congress to lapse but the special counsel procedure is, if anything, stronger than the ICA since Mueller is squarely within the Justice Department and subject to its chain of command.  This of course could well change with the appointment of Brett Kavanaugh to the Supreme Court.  Kavanaugh is a long critic of Morrison.  However, his past writings do not clearly establish that he would rule a Special Counsel to be a principal officer.  However, this challenge is clearly designed to move up to the Supreme Court where Morrison is considered an endangered precedent, even before the expected addition of Kavanaugh.

 

Continue reading “Stone Cold: Mueller Wins Key Legal Challenge To His Authority As Special Counsel”

Trump: Sessions Should Terminate The Mueller Investigation “Right Now”

President Donald Trump continued his ill-advised tweeting about the Special Counsel investigation, calling on Attorney General Jeff Sessions to stop Robert Mueller “right now.”  Putting aside that Sessions correctly recused himself from such matters over a year ago, the demand for terminate the investigation undermines Trump’s legal team and, for those other than his core base, it comes across as defensive and increasingly alarmed about the investigation. I have never understood these tweets because I have yet to see compelling evidence of a crime by Trump linked to obstruction or collusion.

Continue reading “Trump: Sessions Should Terminate The Mueller Investigation “Right Now””

Philadelphia Ends Sharing Information With ICE

us-immigration-and-customs-enforcement-seal-plaque-l100px-Seal_of_Philadelphia,_Pennsylvania.svgPhiladelphia has announced that it will formally end its information-sharing agreement  with Immigration and Customs Enforcement (ICE) – a move following protests against ICE.  Democratic Mayor Jim Kenney declared “If I could abolish ICE, I would. But we can abolish this contract, and we are.”  While a court recently ruled against the Administration on withholding federal grants from sanctuary cities, the growing confrontation with ICE is likely to grow as the Trump Administration pursues penalties against such cities. Continue reading “Philadelphia Ends Sharing Information With ICE”

Republicans Need To Consider The Consequences Of A Rosenstein Impeachment

Rod_Rosenstein_Official_DAG_PortraitBelow is my column in the Hill newspaper on the calls for the impeachment of Deputy Attorney General Rod Rosenstein.  While the key sponsors have indicated that they may be willing to delay this effort, many continue to advocate for a vote on articles of impeachment.  As I have previously said, that would be a mistake.  Putting aside the historical and constitutional reasons discussed below, this is the worst possible time for the Republicans to lower the standard for impeachment. The Democrats could well retake the house in November and the effort against Rosenstein could make it all the more easy for Democrats to pursue Donald Trump after the midterm elections. Continue reading “Republicans Need To Consider The Consequences Of A Rosenstein Impeachment”

“Our Friend, David”: Newly Released Tape Shows Trump And Cohen Discussing Purchase of McDougal Story

200px-Cnn.svg160px-Official_Portrait_of_President_Donald_Trump_(cropped)CNN landed a major news coup with the airing of one of the conversations that Michael Cohen secretly taped with President Donald Trump.  The tape is not the best in terms of the audio quality but it contains some troubling portions.  Notably, this was clearly not a telephone conversation but sounds like an actual meeting where Cohen is sitting and meeting with Trump. I just posted a column on the implications of this secret recording by an attorney.  While Rudy Giuliani insists that the tape is clearly exculpatory, the tape could prove more damaging than beneficial to a defense.  Clearly, both sides can read negative or positive elements into this tape.  While some have insisted that Trump sounds like a mobster, there is not a clear crime being discussed on this tape. There are reportedly more tapes, but this tape has good and bad elements for the Trump team.  However, the tape can be used to show that Trump was informed of the deal before the election and participating in the strategy to silence Trump’s alleged former mistress Karen McDougal.  However, Trump has not spoken to investigators (as a basis for some false statement prosecution) on this issue.   Continue reading ““Our Friend, David”: Newly Released Tape Shows Trump And Cohen Discussing Purchase of McDougal Story”

On Contempt: The FBI Has Congress’ Number

136px-US-FBI-ShadedSealBelow is my column in The Hill newspaper on the lingering questions left from the Strzok testimony. While it may seem like a thousand years after Helsinki and the Cohen tape, the testimony of Strzok was shaped by highly dubious instructions from the FBI not to answer core questions.  It is highly doubtful that a majority of these refusals would be upheld under judicial review — starting with the first question asked of Strzok.

Here is the column: Continue reading “On Contempt: The FBI Has Congress’ Number”

Report: Solar Energy Now Costs Half That Of Coal In North America

290px-The_Sun_by_the_Atmospheric_Imaging_Assembly_of_NASA's_Solar_Dynamics_Observatory_-_20100819I have previously questioned the environmental and economic sense of President Donald Trump pushing the United States into greater coal consumption with the rest of the world developing alternative energy sources.  We seem to be pushing a buggy-whip economy as the world and markets pass us by.  My greatest concern is the hostility shown by the Trump Administration to new energy sources.  A touchstone of the industry is Levelized Cost of Energy Analysis (LCOE) which was used by investment bank Lazard to evaluate the current costs and prospects of different energy investments.  It found (as we have previously discussed) that alternative energy costs are plunging and solar energy is now half the cost of coal. Continue reading “Report: Solar Energy Now Costs Half That Of Coal In North America”

“An Almond Doesn’t Lactate”: Feds Move To Block The Use Of “Milk” In Almond Milk

1280px-Scott_Gottlieb_official_portraitFDA Commissioner Scott Gottlieb may have come up with the greatest tagline since “White Men Don’t Jump.”  Gottlieb has announced that the agency is considering blocking the use of the term “almond milk” because “an almond doesn’t lactate.” Continue reading ““An Almond Doesn’t Lactate”: Feds Move To Block The Use Of “Milk” In Almond Milk”

“O Goody Ruskies”: Mueller Finds Witches But Which Witches Are We Hunting?

600px-Witchcraft_at_Salem_VillageBelow is my column in The Hill newspaper on the most recent indictment of Russian military intelligence figures for hacking the computer systems linked to the Clinton campaign and the Democratic party.  Once again, the indictment seems straightforward in what is says and what it does not say. Yet, the Washington spin machine quickly put forward highly distorted accounts, including media reports that worked hard to avoid acknowledging obvious elements of the indictment.

Here is the column: Continue reading ““O Goody Ruskies”: Mueller Finds Witches But Which Witches Are We Hunting?”

No, Rosenstein Should Not Be Impeached

Rod_Rosenstein_Official_DAG_PortraitOver the course of the last year, I have been highly critical of Deputy Attorney General Rod Rosenstein for his selection of Robert Mueller as Special Counsel and his failure to recuse himself from the Russian investigation.  However, the most recent effort to impeach Rosenstein is unwarranted and unwise.  According to news reports on Friday, Reps. Mark Meadows, R-N.C., and Jim Jordan, R-Ohio are preparing articles of impeachment to subject in the coming weeks against Rosenstein.

 

Continue reading “No, Rosenstein Should Not Be Impeached”

Airlines Move To Shrink Bathrooms As FAA Refuses To Regulate Space On Airplanes

FAA logoLast week, the Federal Aviation Administration (FAA) declared that it would not regulate seat sizes — thereby leaving passengers to the mercy of airlines which have been continually reducing seat size and space.  Now airlines are moving to reduce those roomy bathrooms on airplanes.  Arlines are designing new bathrooms to make them ever narrower. Imagine that.

Continue reading “Airlines Move To Shrink Bathrooms As FAA Refuses To Regulate Space On Airplanes”

Why Big Fierce Nominees Are Rare

Supreme Court
Below is my column in the Hill newspaper on why the most creative and productive individuals are often disfavored in our modern confirmation system.  With the announcement of the new nominee this evening by President Donald Trump, we will have the state of a counterintuitive process that favors those who are the least forthcoming or open about their views.

Here is the column:  Continue reading “Why Big Fierce Nominees Are Rare”

Constitutional Time Out? Mueller Becomes Latest Basis For Opposing Any Trump Nominee

440px-Director_Robert_S._Mueller-_III440px-Official_Portrait_of_President_Donald_TrumpBelow is my column in The Hill newspaper on the latest rationale for opposing any nominee of President Donald Trump: that any nomination or confirmation must wait until the completion of the investigation by Special Counsel Robert Mueller.  It is a claim being voiced by both politicians and academics despite the absence of constitutional or historical support.

Here is the column:

Continue reading “Constitutional Time Out? Mueller Becomes Latest Basis For Opposing Any Trump Nominee”

Summer Shakespeare: Rosenstein Plays Hamlet On The Potomac

Bernhardt_Hamlet2Rod_Rosenstein_Official_DAG_PortraitBelow is my column in the Hill newspaper on the recent reports of how Deputy Attorney General Rod Rosenstein was angry over his treatment by the Trump White House and wants Mueller to “vindicate” him.  I have said for over a year that Rosenstein should recuse himself if Mueller is seriously investigating the firing of former FBI Director James Comey as an act of obstruction or some other crime. These reports magnify, in my view, those conflict concerns.

Here is the column:

Continue reading “Summer Shakespeare: Rosenstein Plays Hamlet On The Potomac”

The Supreme Spin: How The Travel Ban Victory Became A Victory For Critics

Supreme CourtThere was a curious shift that occurred in the 24 hours leading up to the decision of the Supreme Court in  Trump v. Hawaii.  News organizations repeatedly emphasized that the travel ban under consideration was, in the words of CNN, “very different” from the one first issued by the Trump Administration and the current order was much narrower.  It is certainly true that the current travel ban has a slightly different array of countries and a much enhanced record.  Moreover, I was a critic of the poorly drafted and poorly executed original ban. However, it is not true that those differences carried the day with the Court. The two threshold issues remained that same and, until the loss yesterday, challengers maintained that the legal issues had not materially changed.

Continue reading “The Supreme Spin: How The Travel Ban Victory Became A Victory For Critics”

Res ipsa loquitur – The thing itself speaks