Members of Congress Demand Ginsburg Recuse Herself From Immigration Appeal In Light Of Past Trump Comments

225px-ruth_bader_ginsburg_scotus_photo_portraitA letter from fifty-eight Republican lawmakers calls upon Justice Ruth Bader Ginsburg to recuse herself in the travel ban case scheduled to be argued in October.  While there is a fair chance that the case could be moot by October as I previously discussed, a recusal is highly unlikely despite that fact that Ginsburg’s comments were highly inappropriate and troubling.  I have been a long critic of Ginsburg’s public speeches and comments as raising serious ethical issues and undermining the integrity of the Court. However, the Court has long declared itself outside of the enforcement of the Code of Judicial Ethics.  The result is a dreadful record of self-regulation and Ginsburg is only the latest disturbing example.  Ironically, while the media has rightfully raised inappropriate public comments about Trump, it has shown little interest in the inappropriate comments of Ginsburg.

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Trump Unleashes Personal Attack On The Hosts Of MSNBC’s “Morning Joe”


Notably, about a half hour before Trump’s tweets, White House Director of Social Media Dan Scavino tweeted: “#DumbAsARockMika and lover #JealousJoe are lost, confused & saddened since @POTUS @realDonaldTrump stopped returning their calls! Unhinged.”

donald_trump_president-elect_portrait_croppedThen, while the show was on the air, Trump attacked the show for being “poorly rated” and called the hosts names.    The first tweet was posted at 8:52 am”

I heard poorly rated speaks badly of me (don’t watch anymore). Then how come low I.Q. Crazy Mika, along with Psycho Joe, came..

Just for the record, Morning Joe recently hit an all-time high in viewership.

As many of you know, I am a regular on the show.  Notably, I have been one of those commentators who have been questioning the basis for criminal allegations against Trump as well as the calls for impeachment. I further have argued that the law is on Trump’s side on the immigration order.  Yet, I have been regularly asked to appear on the show by Joe and Mika.  Indeed, Joe has also questioned the basis for the lower court orders against the Trump Administration.  It is certainly true that there is much criticism of Trump on the show, but that is hardly a distinguishing characteristic from other shows on other networks.  Moreover, I have never met anyone who questioned the intelligence or stability of Mika. Indeed, even to write that line seems perfectly bizarre.

Yet, this is not about refuting allegations that the respected hosts are “crazy” or “psycho.”  It is about the standards that are expected of not just a president but an adult in a civil society.  This falls considerably short of that standard.

It then (as is often the case) went from bad to worse with the second tweet on the face lift.

Once again, I fail to understand the motivation or even the meaning behind these tweets. While they may thrill the lowest common denominator of our country, most of us recoil from such attacks. I have raised four children that they must remain civil and respectful in their dealings with other people, including those who criticize you.  Indeed, I tell them what my father taught me: you have only one unbreakable commitment in this family, you must pass along the family name in as good or better shape than you received it.  That means maintaining your dignity and civility in any circumstance, particularly when others might yield to the temptation of personal or petty attacks.  That is why I do not find White House Deputy Press Secretary Sarah Huckabee Sanders response very compelling: “This is a president who fights fire with fire.” There are no excuses for name calling or petty attacks. That is the test of every adult — to maintain decorum and civility regardless of the circumstance (even when others may call you names or insult you).

Republican leaders to their credit have already denounced the tweets as have Fox anchors and conservative commentators on publications like the National Review.  Sen. Lindsey Graham is quoted as saying “Mr. President, your tweet was beneath the office and represents what is wrong with American politics, not the greatness of America.” Others including Speaker Paul Ryan have followed suit and said that this is not acceptable for any president:

The President’s tweets are beneath the dignity of his office. It needs to stop. 

Stop it! The Presidential platform should be used for more than bringing people down.

Mr. President, your tweet was beneath the office and represents what is wrong with American politics, not the greatness of America.

Susan Collins on Trump’s tweets to @mitchellreports: “There is no need for such uncivil language.”

Ben Sasse 

@BenSassePlease just stop. This isn’t normal and it’s beneath the dignity of your office.

This is not okay. As a female in politics I am often criticized for my looks. We should be working to empower women. 

MCCAIN on Trump’s Tweets this morning: “It’s hard to understand, and not presidential…”

At a time when the White House needs every Republican vote to achieve meaningful reforms, these shocking tweets are causing considerable damage below the waterline of the Administration.  As with the tweets during the litigation, Trump has become the main witness against himself.  What is particularly interesting is that this has been a difficult week for CNN after retracting a story and having both a producer and a host taped privately questioning the Russian investigation stories.  This will succeed in reducing that pressure as everyone covers the latest personal attack on Twitter.  Each of these tweets unnerves Republican allies about the work ahead and trusting the White House to lead them into the mid-term elections.  That should not, however, be the criteria.  These tweets are deeply troubling and beneath the office of the President of the United States.

The Immigration Order and the Regaining Objectivity In the Media and the Courts

Supreme CourtBelow is my column in the Hill Newspaper on the Supreme Court order lifting the stay over the Trump immigration order.  With the exception of those with bona fide relationships, the Trump Administration has the authority to enforce its travel limitations.  As discussed earlier, the order could prove not the next but final chapter of the immigration controversy given the 90 day period set under the Trump order.  However, a more immediate issue of concern should be the prior coverage and court decisions leading up to the unanimous order of the Supreme Court.

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Is The Supreme Court Immigration Appeal A Case Of Planned Obsolescence?

1908_Ford_Model_Tdonald_trump_president-elect_portrait_croppedThe victory of the Trump Administration in securing the lifting of much of the injunction on the immigration order consumed much of the analysis yesterday.  The Court voted unanimously to lift the injunction for every one except those with “bona fide relationships” in the United States.  The latter exception was a bit incongruous with the overall deference to the Executive Branch and led three justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — to dissent. They would have lifted the ban without exceptions.  What was most interesting however was what was not in the order: a hearing date for July. The reason is that it was not requested by the Trump Administration.  Given the 90 days expiration of the order, that leads to the question of whether this appeal is a case of “planned obsolescence.”

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Report: Coats and Rogers Told Investigators That Trump Asked Them To Publicly State That There Was No Evidence of Russian Collusion

That did not take long.  Director of National Intelligence Dan Coats and National Security Agency Director Adm. Mike Rogers met with Special Counsel Robert Mueller to discuss the subjects that they declined to discuss with Congress.  Congress then released the information.  It now appears that congressional briefings from the Special Counsel are proxy press conferences in this increasingly strange process.  As expected, Coats and Rogers admitted that Trump did in fact ask them to tell the public that there was no evidence of collusion between his campaign and the Russians.  That was, again, an inappropriate and ill-considered request.  However, the disclosure raises a far more worrisome questions with regard to the role of White House Counsel Donald F. “Don” McGahn II.  The two intelligence chiefs said that they took anticipated the questions over their conversations and asked McGahn if there was an executive privilege assertion. McGahn simply never responded.  That is a highly disturbing account.  Executive privilege is not some tactical toy. It has been defended as a core protection of inherent presidential powers.  No high ranking officials should be sent into a committee without a clear understanding of the status of information or conversations relevant to congressional inquiries.  The non-response was either negligence by the White House Counsel or, more likely and more seriously, a conscious decision to avoid the politically risky decision of either allowing answers or publicly preventing answers.

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Is President Trump Immune From An Obstruction of Justice Charge?

donald_trump_president-elect_portrait_croppedIn the coming weeks, I will be addressing a number of novel constitutional issues that are being raised in relation to the Russian investigation. The first such issue has been widely discussed: is there a constitutional barrier to any federal charge against President Donald Trump for obstruction of justice.

Here is my recent column in USA Today:

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Do Rosenstein and Mueller Have Conflicts of Interest in the Trump Investigation?

Rod_Rosenstein_US_Attorney440px-Director_Robert_S._Mueller-_III-1For many weeks, I questioned the need for a Special Counsel in the Russian investigation because it seems like a coverup in search of a crime.   I still do not see the evidence of a crime and simply saying “collusion” does not supply an actual crime.  However, when President Donald Trump fired James Comey, I supported the appointment of a Special Counsel to investigate obstruction of justice, even though I remained skeptical of the basis for an actual obstruction charge. I still fail to see the compelling basis for an obstruction case without stretching the criminal code to the breaking point.  Nevertheless, I continue to support the need for an independent investigation.

The investigation of a sitting American president however must itself be beyond question as to any bias or influence.  For that reason, I have been questioning the propriety of Rod Rosenstein to continue in his current position vis-a-vis the Russian investigation.  From the outset, Rosenstein seemed to me to be an inevitable and important witness.  Ironically, the recent leak magnified this problem.  The leak seemed calculated to protect Mueller from being terminated by publicly identifying Trump as a possible target. However, whatever benefit the leak brought Mueller, it undermined Rosenstein.  If Mueller is investigation Trump for obstruction, Rosenstein should immediately recuse himself.

It is not clear if Mueller has an equal conflict of interest. There is reason to be concerned.  If Mueller discussed the Comey’s termination with Trump as a candidate for the next FBI Director, he might also be considered a witness in any obstruction investigation. It would seem highly material to the investigation to learn of how Trump described his decision and what he said (if anything) to Mueller about the ongoing Russian investigation.  At a minimum, the Special Counsel should address what is a reasonable question about his own knowledge of (and participation in) any meetings with Trump on the Comey termination and the Russian investigation.  I do not agree with the campaign to discredit Mueller and strongly object to attacks on his character.  I believe Mueller to be a person of integrity and I hope that he recognizes that such a meeting raises some legitimate questions that should be addressed.

Here is the column:

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