Category: Congress

I Hate Federal Commissions, But Americans Need One To Look Into The 2020 Election

Below is my column in USA Today on the need for a federal commission on the 2020 election. While I opposed the challenge and the call for the ten-day commission, I do believe that a real commission is warranted.  Indeed, the violence yesterday only further shows the deep divisions in this country over these lingering questions. However, there must be the commitment to a real commission — not another placebo commission

Here is the column: Continue reading “I Hate Federal Commissions, But Americans Need One To Look Into The 2020 Election”

We Must Talk About Constitutional Issues In The Election Certification

Below is my column in the Hill on today’s challenge to the counting of electoral votes in Congress.  The challenge raises a long-standing debate over the authority of Congress in making such challenges.  What is clear in my view is that Vice President Michael Pence does not have the unilateral authority claimed by President Donald Trump to simply “send back” electoral votes for particular states. Nothing in the Constitution suggests such authority and the Electoral Count Act expressly contradicts such claimed authority. Indeed, such an act could bring an unprecedented challenge and judicial intervention in the certification of the presidential election.

What is odd is the President’s continued assurance to his supporters that this is a possible path to victory. Shortly after the election, I wrote that I thought the President was laying the foundations for a “Death Star” strategy but that it would not likely succeed. To make that Luke Skywalker shot, he needed a perfect alignment of elements. None of those elements are present today.  The over-hearted rhetoric from the President and his critics however are magnifying our divisions and anger.

Here is the column:

Continue reading “We Must Talk About Constitutional Issues In The Election Certification”

“Awomen”: Rep. Cleaver’s Prayer Captures Broader Controversy Over “Degenderizing” Language

We recently discussed the decision of schools to stop using the gender-neutral term “alumni” to combat sexist language.  That controversy came to mind yesterday when Rep. Emanuel Cleaver, D-Mo., altered the traditional ending of “amen”  for a prayer before the House of Representatives. Instead, he ended with “Amen and awoman.” This minor controversy raises a broader point as we change or bar common terms that are not gender specific.

Continue reading ““Awomen”: Rep. Cleaver’s Prayer Captures Broader Controversy Over “Degenderizing” Language”

Biden’s Pony Problem: Why The Hunter Biden Scandal Is No Dead Horse

President-elect Joe Biden has a pony problem. During the primary, Joe Biden bizarrely responded to a woman who asked why voters should believe that he could win a national election by saying “You’re a lying dog-faced pony soldier.” That encounter came to mind when Biden this week mocked Fox reporter Peter Doocy, who violated the virtual news blackout on the Hunter Biden story. by asking about the scandal. Biden immediately walked off stage and then stopped and said “Yes, yes, yes. God love you, man — you’re a one-horse pony, I tell you.” Continue reading “Biden’s Pony Problem: Why The Hunter Biden Scandal Is No Dead Horse”

Former Rep. Hill Files Lawsuit Against Former Husband And Media Over Public Disclosures

In 2019, former Rep. Katie Hill resigned from Congress after the disclosure of sexual relations with a staff member. Ordinarily, the media and various public interest groups would have been outraged and unrelenting in their “MeToo” coverage, particularly with a young staffer recently out of college. In the case of Hill, however ,media outlets like MSNBC picked up on Hill’s claim that she was subjected to   a “double standard” and a “misogynistic culture.” It was the ultimate form of ironic hypocrisy where a politician claimed a double standard in being forced to resign — seeking an accommodation that was wisely denied to male colleagues in past scandals. Various male politicians from Sen. Bob Packwood to Rep. Trent Franks have resigned under such scandals. Sen. Al Franken resigned for acts that did not involve an actual sexual affair. Hill abused her position of power but somehow converted that abuse into a women’s rights issue. Hill sold that narrative and is now bizarrely treated by many as a victim. Now, Hill is suing over the coverage of her scandal in a lawsuit that challenges core protections for the media. Continue reading “Former Rep. Hill Files Lawsuit Against Former Husband And Media Over Public Disclosures”

Trumpunity: How Democrats Are Adopting Trump Rhetoric and Tactics For The Biden Presidency

Below is my column in the Hill newspaper on the adoption of Trump-like rhetoric and tactics by Democrats, who seem to believe they have a strange type of immunity in the post-Trump world.

Here is the column: Continue reading “Trumpunity: How Democrats Are Adopting Trump Rhetoric and Tactics For The Biden Presidency”

No Friend of Congress: Pascrell Seeks To Block 120 House Republicans From Being Seated For Signing Amicus Brief

It appears that Rep. Bill Pascrell (D., NJ) has a serious problem with Republicans going to court.  We recently discussed Pascrell’s absurd effort to disbar roughly two dozen Republican lawyers for challenging the results of the 2020 election. Now Pascrell is declaring that 120 House Republicans signing a “Friend of the Court brief” (or amicus brief) is tantamount to supporting a rebellion against the United States and that they should be blocked from taking their seats in Congress. I previously denounced Pascrell for his “dangerous form of demagoguery.” This latest call shows the demagoguery has reached a level of utter delusion.    Continue reading “No Friend of Congress: Pascrell Seeks To Block 120 House Republicans From Being Seated For Signing Amicus Brief”

Is the Media Burying The Swalwell Story?

We often discuss media coverage and accuracy on developing legal and political controversies.  Much of this discussion recently has focused on the bias shown by the media in the last four years. I have worked for the media as a legal analyst and columnist for years, but I have never before seen this raw and open bias in major media. At the same time, academics are rejecting the very concept of objectivity in journalism in favor of open advocacy.

This morning, Fox News called out all of the networks for zero coverage of the bombshell story from Axios that Rep. Eric Swalwell may have had a close relationship with a suspected Chinese spy who fled to China a few years ago.  Many of us were struck by the lack of coverage, particularly given the position of Swalwell on the House Intelligence Committee and his former bid for the presidency. It was particularly striking when the media is now reluctantly covering the Hunter Biden story after a long blackout before the election. Yet, the most stark comparison is with the exhaustive coverage given the highly analogous story involving an alleged spy, Maria Butina, who had an affair with a high-ranking figure in the National Rifle Association. Continue reading “Is the Media Burying The Swalwell Story?”

Self-Pardons: A Response To Judge Michael Luttig

We have recently been discussing the arguments for and against presidential self-pardons — a debate that has raged for decades among academics. Some of us believe that the absence of a limitation for such pardons should carry the day on the constitutional interpretation. Judge Richard Posner discussed the issue in commentary and also concluded that “it has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.”  Others believe that the intent is clear against such self-dealing even if the language is silent. What is notable is that, while we disagree on this interesting historical and constitutional question, we are virtually unanimous in our view that such self-pardons are inherently abusive and should not be granted. This is a good-faith disagreement and I have never argued that the answer is clear. I have tremendous respect for many on the other side of this debate including former Judge Michael Luttig, who just penned a thoughtful column in the Washington Post arguing against such self-pardons. I recommend that you read the column in full but I wanted to respond to some of its more salient points. Continue reading “Self-Pardons: A Response To Judge Michael Luttig”

Yes, Trump Can Pardon Himself But He Should Not Do So

Below is my column in the Hill on the controversy over presidential self-pardons. Many academics have long expressed the view that a president can issue a self pardon. Judge Richard Posner discussed the issue in commentary and also concluded that such a pardon could occur. Posner stated “It has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.”  This has been a long-standing debate and there is an honest and interesting debate on the issue. For some of us, there is a difference between condemning such self-pardons as self-dealing and declaring that the Constitution clearly bars such presidential acts. That does not change because the subject of the analysis is now President Donald Trump.

Here is the column: Continue reading “Yes, Trump Can Pardon Himself But He Should Not Do So”

Barr’s Appointment Of Special Counsel Leaves Biden and Democrats In A Muddle

Below is my column in USA Today on the implications of the appointment of U.S. Attorney John Durham as a Special Counsel.  House Intelligence Committee Adam Schiff and other Democrats have already denounced the move and called for the next Attorney General to consider rescinding the appointment.  While Schiff previously called for legislation to protect Special Counsel Robert Mueller to complete his work without interference from the Attorney General, he ramped up the rhetoric against Durham as leading a “politically motivated investigation.” Durham was previously praised by Democrats and Republicans alike as an independent, apolitical, and honest prosecutor.  After insisting that the public has a right to see what has been uncovered over years of investigation by Mueller, they are now pushing to end the Durham investigation and forestall any final public report.

Here is the column:

Continue reading “Barr’s Appointment Of Special Counsel Leaves Biden and Democrats In A Muddle”

Democratic Members File Bar Complaint Against Trump Counsel Joe diGenova

YouTube Screenshot

We previously discussed the abusive move by Rep. Bill Prascell (D., N.Y.) to seek the disbarment of roughly a dozen Trump and Republican lawyers for challenging election results. Such calls have become common place. Indeed, during the impeachment trial of President Trump, North Carolina Law Professor Michael Gerhardt predicted that the entire Trump legal team would be disbarred after their representation of the President.  Now, Democratic Reps. Kathleen Rice (D-N.Y.) and Ted Lieu (D-Calif.), have filed a complaint alleging direct violations of the Rules of Professional Conduct against Trump lawyer Joe diGenova for his recent controversial remarks about fired Cybersecurity and Infrastructure Security Agency head Chris Krebs. In an interview, diGenova called for Krebs to be “drawn and quartered” for his failure to protect this election. While noting that I did not believe that diGenova was actually calling for violence, I immediately criticized those comments.  However, despite the view of ethics professor Stephen Gillers to the contrary, I do not believe that this is even remotely an ethical violation. It is however a clear use of bar rules for a political purpose.  Notably, Rice and Lieu, both lawyers, have been utterly silent on the campaign of harassment and abuse by groups like the Lincoln Project. There have been no calls for disbarment of those attorneys or investigations into threats of violence against Republican lawyers. Indeed, I have not read a single lawyer or law firm supporting the Lincoln Project denouncing its campaign to harassment fellow lawyers — a campaign that began shortly after Joe Biden was declared the presumptive winner of the election.

Continue reading “Democratic Members File Bar Complaint Against Trump Counsel Joe diGenova”

The Case Against Sally Yates

Below is my column in The Hill on the possible nomination of Sally Yates as the next United States Attorney General. One of the names on the short list is Judge Merrick Garland who would not only be unifying for the country but unassailable at a confirmation hearing. However, Yates’ record raises serious questions about her judgment and actions at the Justice Department.

Here is the column:

Continue reading “The Case Against Sally Yates”

The Death Star Strategy: Is Trump Contemplating The Ultimate Constitutional Trick Shot?

Below is my column in The Hill on the possibility of contesting electoral certifications by key states. With the adverse ruling in Pennsylvania, the Trump legal team is still pledging new evidence of massive fraud as certifications are completed. The options for the team seem more and more reduced to the ultimate constitutional trick shot in engineering a fight on the floor of Congress.

Here is the column:

Continue reading “The Death Star Strategy: Is Trump Contemplating The Ultimate Constitutional Trick Shot?”

Democratic Member Seeks To Disbar Two Dozen Lawyers Challenging Election Results

We have been discussing the campaign of harassment and threats against Republican lawyers to get them to drop election challenges. New Jersey Democratic Rep. Bill Pascrell expanded that campaign this week with a malicious and frivolous demand for New York and other states to disbar roughly two dozen lawyers for representing Trump, the Republican party, or the Trump campaign in the litigation.  While Democratic members and the media discuss attacks on democracy and the rule of law, they appear to have little problem with campaigns to threaten and harass both lawyers and legislators for raising questions about the election.

 

Continue reading “Democratic Member Seeks To Disbar Two Dozen Lawyers Challenging Election Results”