Below is my column in The Hill newspaper on a missing element in the Mueller report not just for obstruction but impeachment: intent. As I discuss, I am still baffled by the logic of Mueller in not reaching a conclusion on obstruction. It simply makes no sense given his actions on collusion and the ultimate rendering of a decision by Main Justice on obstruction. While the Justice Department (wrongly) maintains that a sitting president cannot be indicted, there is no bar on finding probable cause to believe that a president has committed a crime.
Today will be the long-awaited release of the Special Counsel report. (I will be in New York doing analysis for CBS and BBC). District Court Judge Reggie Walton however did not wait for the release of the report or the press conference planned by Attorney General Bill Barr for the morning. Walton made a surprising statement in court on Tuesday criticizing Barr. Walton objected that “The attorney general has created an environment that has caused a significant part of the public … to be concerned about whether or not there is full transparency.” Walton did not explain what precisely Barr did to create such public doubts, but the comments appeared immaterial to the merits. A few days ago, we discussed another federal judge attacking President Trump at an awards ceremony. Walton’s comments are not nearly so problematic but they were unfortunate and untimely in my view.
Below is my column in the BBC on the historical and potential legal significance of the prosecution of WikiLeaks founder Julian Assange. Much of the prosecution could turn on whether Assange is a journalist. Notably, Assange just received a European journalism award from the European parliamentarians. Assange is this year’s recipient of the 2019 GUE/NGL Award for Journalists, Whistleblowers & Defenders of the Right to Information.
In the meantime, there are some interesting comparison between the Assange and Zenger cases in the long-standing debate over what constitutes press freedoms.
As we await the release of the Special Counsel report, there are some curious standards being suggested for the release of grand jury information. Various media organizations have featured experts insisting that Barr could release such information called Rule 6(e) information. That is news for me. I was counsel in one of the largest Rule 6(e) cases, the Rocky Flats Grand Jury case, years ago in Denver. Yet, the Nation has posted an explanation by Columbia University Law Professor Jeffrey Fagan that the rules for such disclosure are “elastic” and Barr could be “creative” in making releases. In my view, that is in direct contradiction with not just long-standing but recent precedent. There should not be just a wildly different account by legal experts on such a question so I would like to explain why such views are misplaced.
Below is my column in USA Today on the Julian Assange arrest. We are still learning more about Assange’s confinement, including bizarre accounts of Assange’s conduct in the Ecaudorian Embassy in London. The key question will be the highly generalized allegation in the single count indictment from the Justice Department that Assange played an active role in the hacking. That would cross the Rubicon for journalists and make this an even more difficult case for those worried about free speech and the free press. Yet, the indictment is strikingly silent on details or an assertion that Assange actually used the password. We will likely learn more as the May hearing approaches for his extradition.
Below is my column in the Hill newspaper on the rising attacks against Attorney General Bill Barr even before the redacted report has been released. Many in the media has notably omitted critical facts like Deputy Attorney General Rod Rosenstein helped write the summary and also concluded that there was not case for criminal obstruction to be made against President Trump. There may be grounds to criticize Barr for his redactions, but critics omit the fact that Robert Mueller’s office is assisting in those redactions. I have a long relationship with Barr and testified in favor of his confirmation. However, I will not hesitate to criticize his actions when it is warranted. For example, I do not approve of the Justice Department refusing to defend the Affordable Care Act — disregarding the function of the Department to defend duly passed laws. Yet, Barr’s conduct with regard to the report and thus far been open and consistent with what he said in this confirmation hearing.
I am continually mystified by the Trump White House and its public responses to controversies — responses that often magnify the legitimate concerns of the public. That was case this weekend when White House Press Secretary Huckabee Sanders attempted to come up with some plausible rationale for Trump continuing to refuse to release his taxes — a departure from decades of tradition. Sanders declared that “I don’t think Congress, particularly not this group of congressmen and women, are smart enough to look through the thousands of pages that I would assume President Trump’s taxes will be.” It is an attempt to wrap an unjustifiable position within a raw insult to avoid the question. Trump has repeatedly promised to release his taxes but continues to cite the fact that he has been audited as a reason for not turning over the records — a position widely rejected by both tax and legal experts. Now it appears that the collective intelligence of Congress is a barrier to disclosure.
I recently spoke on the changes in American media during the Trump years. While I continue to be critical of Donald Trump attacks on the media, I also criticized what I view as consistently biased reporting on some networks. CNN was a focus of some of those criticism even though I have many friends at the network and view some of its reporters to be extraordinary journalists. As I was about to fly home, however, I saw a program that summed up my concerns in journalism in the age of echo-chamber news. It was part of John Avlon’s Reality Check series which looked at the elimination of the deduction for the state and local (SALT) taxes under the recent the Tax Cut and Jobs Act (TCJA). Not once in the segment did CNN mention the long-standing economic and policy objections to the SALT deductions. Instead, the entire segment framed the change as penalizing states and voters who did not support Trump. It was wildly unfair and incomplete on the issue and seemed calculated to enrage rather than inform.
Below is my column in the Hill newspaper on the congressional push for past tax filings of President Donald Trump as well as investigations in the travel of Administration figures. I do not disagree with such public scrutiny, but Congress has conspicuously ignored past calls for the same transparency of its own practices and records.
Below is my column in the Los Angeles Times on the calls by various Democrats to “pack” the Supreme Court to break the conservative majority. Like the FDR scheme, it is a case of doing the right thing for the wrong reason and in the wrong way. As a longtime advocate of expansion (here and here and here and here), the column advocates an alternative approach — not to pack but to unpack the Court. While my approach has been criticized by justices who oppose any expansion, it would address some of the most dysfunctional aspects of the Court.
Michael Cohen seemed to morph into J. Wellington Wimpy this week when he asked for yet another delay in going to jail. Wimpy famously promised “I’ll gladly pay you Tuesday for a hamburger today.” Cohen is promising the same after declaring that he has suddenly discovered 14 million new files with evidence, including the promise of possible damaging information on President Trump. However, he explains, it will take him time to work through the material. Notably, the discovery seems to have occurred one month before he was to report to prison — one month almost to the day.
Below is my column in the Hill newspaper on an overlooked issue from the letter of Attorney General Bill Barr to Congress on the Special Counsel report. Whatever happens to the allegations and evidence facing President Trump, there remains the question of what to do with Deputy Attorney General Rod Rosenstein.