Category: Congress

Congress, Constitutional Law, Lawyering, Politics

Trump Opposes Mueller Testimony As Declaring That McGahn Will No Testify

President Donald Trump has continued to oppose the testimony of key witnesses like former White House Counsel Don McGahn. He has now added his opposition to the testimony of Robert Mueller himself. It is a position that signals a certain defensive, if not fearful, posture with regard to the report. Congress clearly has a legitimate interest in hearing from these witnesses and will prevail in forcing their appearance. More importantly, it is not in the public’s interest for the White House to seek to silence such witnesses with lingering questions over the allegations against the President. I have long expressed my skepticism over the chances of a collusion or obstruction charge against Trump. However, Congress should move quickly to challenge any such block on key witnesses.

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Congress, Criminal law, Lawyering, Media, Politics

Barr Testimony: Mueller May Have Some ‘Splainin’ To Do

One of the big takeaways from the first day of the testimony of Bill Barr concerns a number of failures that may be attributed to Special Counsel Robert Mueller. The most significant failure concerns his decision not to reach a conclusion on obstruction, as I discussed in today’s column. With an hour of the release of the Report, I criticized Mueller for his decision not to reach a conclusion which has no basis in law or policy. The only question was whether Mueller had been told not to reach such a conclusion. Barr answered that questions today in no uncertain terms. Not only could Mueller reach a conclusion, both Barr and Rosenstein pressed him to do so. Mueller’s decision remains both unsupported and incomprehensible. And that is not all that Mueller will have to explain.

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Columns, Congress, Constitutional Law, Criminal law, Politics

The Black Jersey: How Trump And Congress Are Competing For Last Place

Below is my column in The Hill newspaper on a curious aspect to all of the posturing taking place in Washington. Putting aside the bluster on both sides, there is strange alliance coalescing between the Democratic Leadership and the White House in running out the clock for impeachment. The only essential element is that they do not look like they are playing for time. Both sides derive political benefit from stirring up their bases with impeachment talk but neither side actually wants to see an impeachment. The rest is classic D.C. kabuki.

Here is the column:

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Congress, Justice, Lawyering, Politics

Holder: Barr Needs To Learn That He Is “The People’s Lawyer, Not The President’s Lawyer”

Attorney General William Barr has faced considerable criticism over his press conference before the release of the Special Counsel report. Many have objected that his account seemed designed as a prebuttal to the report to support Trump. While I disagree with the extent of the criticism, I can see why there are such objections. Yet, the one person who one would not expect to hear from would be former Attorney General Eric Holder who was viewed as a highly political and intensely loyal member of the President Barack Obama’s cabinet. That reputation was highlighted when Holder proclaimed that he was “I’m still the president’s wingman.” Yet, Holder went public this week to remind Barr that he is “the people’s lawyer, not the president’s lawyer.”

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Congress, Constitutional Law, Politics

Democratic Leadership: Trump Should Be Impeached But . . .

Rep. Adam Schiff, the head of the House Intelligence Committee, maintained the curious line of the Democratic leadership this weekend in declaring Trump’s conduct as more serious than Nixon but trying to dampen demands for impeachment. I have written for the last year that the calls for impeachment leading to the midterm elections as a transparent bait-and-switch in the making. As made clear by Speaker Nancy Pelosi, impeachment is not on their “agenda.” Indeed, it is doubtful that the leadership ever wanted to impeach Trump. However, they must look like they want to impeach so Schiff and others are just blaming the expected opposition by Republicans as relieving them of the need to impeach. It doesn’t. While I think this would be a difficult impeachment case given the mixed and incomplete findings of Robert Mueller, that has nothing to do with Schiff and others fulfilling their oaths if they believe impeachable conduct has occurred. Nixon was certain to be impeached when he resigned and Schiff is saying that Trump’s conduct is “far worse.”

The line was apparent last night when Speaker Nancy Pelosi fought back members demanding impeachment proceedings and insisted that they would just continue to investigate out of fear of possible political backlash.

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Columns, Congress, Constitutional Law, Criminal law

Mueller’s Mess On Intent Leaves Democrats In A Muddle On Impeachment

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.

Here is the column:

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Academia, Congress, Constitutional Law

Turley To Speak On Trump Border Emergency Order At National Constitution Center

On Monday, I will be traveling to Philadelphia to debate National Review editor Rich Lowry on President Donald Trump’s emergency declaration to build the wall on the Southern border. I have previously testified and written on the subject. Jeffrey Rosen, president and CEO of the National Constitution Center, will moderate the debate to be held 6:30 – 7:30 p.m at the National Constitution Center.

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Congress, Courts, Criminal law

Federal Judge Attacks Barr Over Creating Public Doubts Over Report


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.

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Columns, Congress, Constitutional Law, Criminal law, Free Speech, International, Lawyering, Media, Politics, Society

Roughly 300 Years Later, Is Julian Assange The New John Peter Zenger?

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.

Here is the column:

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Academia, Congress, Courts, Criminal law, Lawyering

Columbia Professor: Barr Can Release Grand Jury Information But Does Not Want To Do So

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.

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Columns, Congress, Constitutional Law, Courts, Free Speech, International, Lawyering, Media

“He Is Our Property”: The D.C. Establishment Awaits Assange With A Glee And Grudge

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.

Here is the column:

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Columns, Congress, Constitutional Law, Courts, Criminal law

The Trolling Of Bill Barr: How Politics Has Outstripped Meaning

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.

Here is the column:

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Bizarre, Congress, Media, Politics

Sanders: Congress Not Smart Enough To Look At Trump Taxes

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.

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Congress, Media

This is CNN? Coverage Of Tax Change Highlights New Advocacy Journalism

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.

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