Former FBI Deputy Director (and CNN contributor) Andrew McCabe has long said that he was willing to answer questions under oath about his controversial actions in the Russian investigation. He was scheduled to do so on Tuesday, but he now has refused — citing the infection of three senators with Covid-19. However, McCabe also refuses to testify remotely as did both former FBI Director James Comey and former Deputy Attorney General Sally Yates. He simply says that “fairness” dictates that he not testify at all. The basis for his refusal to appear remotely is utterly and almost comically absurd.
In his long-awaited testimony before the Senate Judiciary Committee, former FBI Director James Comey’s testimony proved as casual as his appearance in an open shirt from his home office. Comey was hammered with embarrassing findings of errors under his watch in the handling of the Russian investigation, including the reliance on information that FBI agents warned might be Russian disinformation supplied by a Russian agent. After years of investigation, the FBI was unable to show that a single Trump official conspired or colluded with the Russians. Instead, investigations found extensive errors, irregular and criminal conduct, and statements of intense bias by key FBI figures. Yet, Comey proceeded to give what amounted to a series of shrugs in either denying any recollection of such information or deflecting responsibility to others. Continue reading “What Rings Comey’s Bell: The Former FBI Director’s Casual Testimony Confirms the Worst About His Tenure”
Below is my column on the fierce attacks that have mounted against Judge Amy Coney Barrett, including articles suggesting that her conservative Catholic views and support for a charismatic group makes her a virtual cult member. The announcement of the new nominee will come today and Barrett has been viewed as a frontrunner. The religious intolerance unleashed by her likely nomination has continued to grow. Last night, “Real Time” host Bill Mayer came unglued with a vulgar attack on Barrett that even brought in Trump’s alleged affair with Stormy Daniels: “We’ll be saying this name a lot I’m sure because she’s a f—ing nut. . . ‘m sorry, but Amy [Coney] Barrett, Catholic — really Catholic. I mean really, really Catholic — like speaking in tongues. Like she doesn’t believe in condoms, which is what she has in common with Trump because he doesn’t either. I remember that from Stormy Daniels.” Imagine if a conservative commentator responded to President Obama’s nomination of Kagan or Sotomayor by referring to sex with a stripper or referring to Kagan a “really, really Jewish.” These continuing attacks do not bode well for the confirmation fight ahead — regardless of the nominee. To paraphrase Sen. Feinstein, “[Religious prejudice] lives loudly within you.”
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Below is my column in USA Today on the growing calls for packing the Supreme Court with up to six new members as soon as the Democrats gain control of both houses of Congress and the White House. I was critical of Democratic nominee Joe Biden this week when he refused to answer a question of whether he supports this call by his running mate Kamala Harris and other Democratic leaders. Biden told reporters “It’s a legitimate question, but let me tell you why I’m not going answer…it will shift the focus.” That was an extraordinary statement since if the question was legitimate, the refusal to answer it was not. Many of us would not support a presidential candidate who supported the packing of the Court. If Biden considers this a viable option, he is not a viable candidate for many of us. This is a central issue in the presidential campaign that has been pushed by Harris and top Democrats. Yet, Biden is refusing to confirm his position. What is particularly concerning is that Biden precisely and correctly denounced court packing schemes like the one supported by this running mate. Just a year ago, he insisted “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.”
Democratic members are introducing a blatantly unconstitutional bill that would limit the tenure of U.S. Supreme Court justices to 18 years. In claiming to defend the Constitution, members like Rep. Ro Khanna (D., Cal.), Rep. Joe Kennedy III (D., Mass.), and Don Beyer (D., Va.) are offering a plan that is as illogical as it is unconstitutional. While the bill also includes a provision that I proposed decades ago for the expansion of the Court, the term limit would be dead on arrival at any court.
Last night, I was finalizing my column for USA Today when one of my editors flagged my reference to the roughly 30 election-year nominations to the Supreme Court as a possible error. The New York Times ran a story declaring that there “there have been 16 Supreme Court vacancies that occurred before Election Day.” I have previously discussed glaring misstatements of cases in major media, but this was unnerving because the New York Times was suggesting that the precedent for the current nomination was roughly half as previously thought. I decided to do another rough count and, if anything, it would seem that the 29 nomination figure is arguably too low and that there appears almost twice the number cited by the New York Times. The difference appears in part counting a calendar year rather than a year from election, but that approach causes problems in comparison given the earlier early election calendars.
I was on CBS News today with my friend Kim Wehle on the replacement of Justice Ruth Bader Ginsburg. There is a legitimate debate over whether a president should wait for the next election for such a nomination to move forward. However, I disagree with Wehle that a nomination would be unlikely given the roughly 40 days left before the election. The Senate could move this nomination in that time and, judging from some past nominations, even have time to spare without setting a record.
We have been discussing how both parties in Washington have been spending wildly for years in pushing the country to unprecedented and crippling debt levels. We recently passed the “red line” of 106 percent of our GDP. The roughly $27 trillion debt has not however deterred members who continue to push proposals to tack on trillions. That was the case yesterday when Sen. Chuck Schumer and Elizabeth Warren are calling on President Trump to cancel $50,000 in federal student loan debt next year. Some 43 million Americans hold more than $1.6 trillion in federal student loan debt. Such proposals may have merit but my concern is over the lack of any plan on dealing with the debt as well as the fact that this massive increase would be done by executive order.
Several GOP leaders are calling on the Department of Justice (DOJ) to investigate and take legal action against Netflix for its promotion of the “Cuties” film. The film has been denounced for its “sexualization of children.” I have seen the clip of the most controversial scene of young girls dancing which I found deeply disturbing and offensive. However, there is no criminal act alleged of child abuse. What is left is a strong and widely shared revulsion with the film, but that should not be an invitation for governmental action. The threat to free speech of such action is considerable, including the return to a long and detestable period of film censorship in the this country.
The U.S. Court of Appeals for the D.C. Circuit issued a major reaffirmation of congressional authority on Friday when it ruled Friday, 7-2 that the House has legal standing to use the courts to compel McGahn to appear in response to a House Judiciary Committee subpoena. I testified repeatedly in Congress in support of the McGahn subpoena (including in the Trump impeachment hearing) and said that I believed that the White House was not just wrong on the law but would ultimately fail in this effort. I have been a long advocate of congressional standing as an academic, columnist, and a litigator, including my prior representation of the United States House of Representatives in the Obamacare litigation (where we prevailed on standing for the House). I disagreed with an earlier decision against the House. I am obviously gratified by the result in this case. Continue reading “D.C. Circuit Rejects Key Challenge Of President Trump To McGahn Subpoena”
I have previously condemned both sides in our raging politics for labeling their opponents as “traitors,” “terrorists,” and “enemies.” That overheated rhetoric is continuing this week with Speaker Nancy Pelosi calling not just President Trump but her own congressional colleagues “enemies of the state.” I have been highly critical of President Trump in his use of such language. I also have long been critical of Pelosi’s conduct as Speaker, including her ripping up the State of the Union. This attack is particularly egregious from a sitting Speaker who represents the body as a whole. If we cannot agree on condemning even this language, we have lost any sense of decorum or decency in our public debate.
Where Shakespeare is credited in writing “Much To Do About Nothing,” the Senate may have achieved credit for writing “nothing about much.” It is remarkable about how comparably little can be said in 1000 pages. The Senate Intelligence Committee released report yesterday on its own Russian investigation. I have been plowing through the report but what was most striking thus far is how little really new material the Senate was able to uncover. Indeed, it notes that it did not even look into the basis for the claims of the Steele dossier, which was used and widely cited for the early allegations of collusion. One of the few notable points is that the Report states that Donald Trump’s 2016 presidential campaign chairman Paul Manafort worked closely with a known Russian intelligence officer and that he “represented a grave counterintelligence threat” due to that relationship with Konstantin Kilimnik. Yet, the Report is largely descriptive of known allegations with few concrete conclusions or original disclosures. It confirms and adds details on Russian interference with the election, but it does not materially add new information on key areas where some of us hoped the Committee could gain greater access.
Below is my column in the Hill on the announced criminal plea by former FBI lawyer Kevin Clinesmith and the continued calls by Democratic leaders to end the John Durham investigation. This week I discussed the call of Andrew Weissmann, one of the top prosecutors with Special Counsel Robert Mueller, for DOJ lawyers to refuse to help in the investigation despite his own conflict of interest. When the Clinesmith plea was announced, Weissmann proceeded to deride the charge and make spurious legal and factual claims about its basis. The Weissmann call for DOJ lawyers to hinder this investigation is unprofessional and unwarranted but hardly uncommon in this rage-filled environment.
There was a curious moment this weekend when a member of Congress, Rep. Bill Pascrell (D., N.J.) called upon New Jersey Attorney General Gurbir Grewal to use a grand jury to investigate criminal charges against President Donald Trump and U.S. Postmaster General Louis DeJoy for “the subversion” of the upcoming election. From a Madisonian perspective, a member of Congress calling for a grand jury to investigate wrongdoing by a federal agency is like a NASA calling up NOAA to explore Mars. Pascrell is a sitting member in a house, controlled by his own party, with the constitutional authority of oversight over the postal service. Our system of separation of powers commits this question to the political branches rather than criminalizing political disputes.
Three years ago, I wrote a column questioning the constitutional and practical effect of gun control reforms pushed through after the Las Vegas massacre, including limits on the capacity of magazines. The moves were being oversold in the media as reforms that would make such attacks less likely or deadly while also ignoring the constitutional standard for the review of such measures. Now, one of those reforms, California’s ban on high-capacity gun magazines, has been struck down by a panel on the United States Court of Appeals for the Ninth Circuit. Notably, the magazine laws were one of the most promising areas of gun control laws after the Court’s 2008 decisions in District of Columbia v. Heller. Indeed, while I doubted its efficacy, I thought that limits on magazines could potentially pass constitutional muster under Heller with a properly crafted and supported law.