In Washington, U.S. District Judge Timothy J. Kelly has ruled against the Trump Administration in its important “third-country asylum rule” — prohibiting undocumented immigrants from claiming asylum in the United States if they did not first try to claim it in a country they passed through on their way to the U.S. border. The ruling is yet another example of how basic failures to follow procedure or submit supporting evidence has hampered the rollout of major policy initiatives. Kelly was not questioning the underlying deference to the Administration or the ultimate merits. Rather as in the recent loss before the Supreme Court under DACA (or the Deferred Action for Childhood Arrivals program), the court found that the government had failed to satisfy the minimal requirements of the Administrative Procedure Act, or APA. Since the start of the Administration, there has been a lack of attention to detail and basic procedure that has resulted in a series of technical violations. It has incurred losses that were not only avoidable but easily avoidable with adherence to the governing case law on the APA.
This afternoon, I am testifying on the hearing on the controversy surrounding the clearing of Lafayette Park on June 1, 2020. I was called to appear to address the underlying legal and constitutional standards governing such mass demonstrations. For roughly 14 years, I was one of the lead counsels in the World Bank litigation that helped establish guidelines and case law governing such operations. I have been critical of the force used to clear the park as well as the attack on a team of Australian journalists covered the protests.
The operation to clear the Park began two days before with the plan to install fencing. By Monday, a small barrier was in place around the park itself and the clearing operation was to push back the crowd to a perimeter to allow the higher fencing to be installed beyond the range of debris or objects. The crowd was pushed back to I St. from H St. by the line of officers. (The hearing title and the testimony refers to the “Lafayette Park” or “Lafayette Square Park” generally. In fact, the immediate park was closed off and we are discussing the operation to clear the area for the installation of the higher fence).
As I state in the testimony, I believe the order to clear the area would be found lawful. It is the level of force (and a charging of the line of officers) that is likely to be the focus of any court. I still do not see the need for this level of force in the use of batons and pepper spray.
I have attached my testimony below.
The hearing went until after 2 pm.
Last year, in columns and testimony, I chastised the Democrats for the shortest investigation on the narrowest grounds with the thinnest record of any presidential impeachment in history. The insistence of impeaching by Christmas doomed any chances of a compelling impeachment case. It appears now that one person agrees with that assessment: former National Security Adviser John Bolton. I referenced Bolton and his upcoming book as one of the reason why a little more time could vastly improve and expand the House case. Bolton said that he simply wanted a court to refer the privilege claim, which could have been accomplished easily in the time wasted by the House (including the long delay in sending the articles of impeachment to the Senate). In response, the Democratic leadership is lashing out at Bolton for refusing to come forward despite his offer to do so after a federal judge heard the privilege claim.
I have previously stated my personal and legal view of protests during the national anthem by athletes. I do not believe that professional athletes have a constitutional right to protest during games, any more than other employees. However, we now have the flip side of that question after Rep. Matt Gaetz (R-Fla.) announced that he plans to introduce legislation that would force U.S. Soccer players to stand for the national anthem. The announcement came after the U.S. Soccer Board of Directors voted to repeal the rule requiring players to stand during the national anthem. Such a law would be unconstitutional.
Yes, we have reached over $26 trillion in debt and members are demanding more stimulus money. According to data released yesterday by the Treasury Department, we hit $26,003,751,512,344.91. That is the definition of ballooning and runaway debt but no one seems to be talking about it. We are now a credit card country that believes we can put the entire economy on layaway.
I previously criticized the additional firings of Inspectors General by President Donald Trump and applauded Sen. Chuck Grassley, R-Iowa, for his pledge to get answers on the basis for the terminations. On Thursday, Grassley used one of the few tools in his position to force oversight: he held up two Trump nominees until he receives answers to these important inquiries. It is the fulfillment of the constitutional role of the Congress to exercise oversight authority and the action against a president of his own party inures to the great credit of Grassley.
Yesterday, we did our first live blogging on a hearing with former Deputy Attorney General Rod Rosenstein. There was a lot of broken china after the hearing was over. Indeed, the most interesting aspect was that some of the greatest damage for the Democratic narrative occurred during ill-considered questions from Sen. Mazie Hirono (D., HI) who elicited a series of answers supporting the Trump Administration and the purpose of further hearings. Rosenstein ultimately supported the need for further investigations into FBI misconduct, supported the Durham investigation, categorically dismissed claims that Trump committed obstruction of justice, and most importantly stated that he would not have signed off on the continued surveillance under the FISA for Carter Page if he knew the truth about claims of Russian collusion. That was just a few of the highlights. He also dismissed objections from former FBI Deputy Director Andrew McCabe and the “1000 prosecutors” who were so widely cited as claiming that there was clear criminal conduct by Trump.
I have been tweeting on the hearing of former Deputy Attorney General Rod J. Rosenstein. I will continue to update on the blog as newsworthy points are raised. Update: the hearing is now over but further analysis is available here.
There has been much talk — and anger — over the reports that the Trump Administration has asserted the right to “take over” the D.C. Metropolitan Police Department. The Washington Post is quoting D.C. Police Chief Peter Newsham as saying that the mayor “disagrees that the president has the authority to take over the police department. She believes it is a legal question to do that without her consent.” If so, she is mistaken. It is not a “take over” but it does not require the mayor’s consent. President Donald Trump can demand the deployment of D.C. police and the mayor is bound by law to accede to the request.
Below is my column in USA Today on the fight between Trump and Twitter. As discussed below, this is a fight not for free speech but who will control free speech. Democrats want speech controls through private companies while the Administration wants speech controls through government agencies. The choice is between Little Brother and Big Brother.
Here is the column:
Below is my column on the Twitter controversy and censorship of social media. President Donald Trump has continued to tweet on cracking down on the riots as well as controversy over his tweets on Twitter. Like former Vice President Joe Biden, he is now calling for the outright elimination of Section 230 of the federal Communications Decency Act. While supported by many liberal members and commentators, Twitter continues to build a case against itself — and ultimately free speech on the Internet.
Here is the column:
President Donald Trump’s executive order on social media is framed around the effort to remove protections under Section 230 of the Communications Decency Act. For those of us who teach torts, Section 230 has been a long controversy in its shielding of companies from liability in defamation and other lawsuits. As I write today in my Hill column, Twitter is dangerously wrong in its action against the Trump tweets and Trump is right that this represents a serious attack on free speech. However, I was also critical of the threat to “shut down” or “strongly regulate” media companies. Putting the retaliatory language aside, this is not a change that will likely succeed without congressional action. However, there are some legitimate questions that Congress should consider while, in my view, erring on the side of protecting free speech. Continue reading “The Trump Executive Order and the Section 230 Option To “Strongly Regulate” Social Media”
We previously discussed the insider trading allegations against Senators Richard Burr (R., N.C.) Dianne Feinstein (D., Cal.), James Inhofe (R., Okla.), and Kelly Loeffler (R., Ga.) over the selling of stocks after briefings early in the pandemic. As I stated earlier, I am highly skeptical of such cases as a criminal defense attorney as viable due to the difficulty in both the elements and the proof needed for such a charge. Yesterday, the Justice Department dropped three of the four investigations. Only Burr remains under investigation.
We discussed yesterday how former Vice President Joe Biden issued a request to release material from the National Archives related to the allegation of sexual assault made by former Biden staff member Tara Reade. There was less than met the eye however. Biden adamantly refused to open up the records held by the University of Delaware and has steadfastly limited any searches to Reade’s complaint rather than any such allegations. Now Biden is adopting the same artificially narrow approach in his letter to the United States Senate. While CNN has been running glowing interviews about the letter, it is clearly drafted to limit the search. Once again, I fail to understand this reluctance to simply end all discussion with total transparency. Biden, in my view, has the stronger case here given the limited evidence and witnesses supporting Reade. The fact of any recollection of this allegation by various staff members is highly compelling evidence. Yet, he continues to issue strangely curtailed requests while proclaiming that he is being totally transparent. It is not clear if this is just a reflexive resistance to full disclosure, over-lawyered language, or actually an effort to conceal information.