Supreme Court nominee Brett Kavanaugh has categorically denied knowing Dr. Christine Blasey Ford or going to the party where she says he tried to rape her in the 1980s. The categorical denial certainly clarifies the situation but it is not a response that most seasoned lawyers would advice. Ford cannot remember much about the location or the time of the party, but Kavanaugh is saying with certainty that he did not go to the party. Moreover, the denial puts Kavanaugh one polaroid away from disaster. One picture of the two teens at a football game or party would be enough for a coup d’grace on his confirmation. Continue reading “Kavanaugh Denies Knowing Ford And Ever Going To The Party”
Category: Congress
Below is my column in The Hill newspaper on the rising pressure on Sen. Susan Collins over her vote on Supreme Court nominee Brett Kavanaugh. There is considerable anger over Collins maintaining that she would never vote for a nominee hostile to Roe v. Wade but refusing to acknowledge the widespread view of Kavanaugh as not only hostile to the reasoning of Roe but appointed by a president who promised only to nominate an anti-Roe justice. As with Neil Gorsuch, Collins appears inclined to vote for Kavanaugh despite her oft-repeated pledge. She insists that she is comfortable after Kavanaugh told her that Roe is “settled” law. However, many have put Collins’ position as falling somewhere between hopeful thinking and willful blindness. As discussed below, the unsettling thing about settled law is that only five votes make anything truly settled on the Court.
Adding to the political dimension are polls showing that the hearings did not produce a bump for confirmation. The latest polling shows 38 percent in favor of Kavanaugh and 39 percent opposed.
Here is the column: Continue reading “A Bill Comes Due: Susan Collins Faces Rising Demands To Fulfill Her Promise To Vote Against A Presumed Anti-Roe Nominee”
I will have the pleasure of participating in the annual Supreme Court review today previewing the upcoming October term. The other panelists will be former Solicitor General Gregory Garre, NAACP Legal Defense and Educational Fund President and Director-Counsel Sherrilyn Ifill. Associate Dean (and Supreme Court litigator) Alan Morrison will moderate the panel.
“Previewing the Supreme Court’s October Term 2018” will be held in the Jacob Burns Moot Court Room, 2000 H St NW, Washington, D.C. at 9:00.m. Continue reading “GW To Host Annual Supreme Court Review”
For over a year, there has been an ongoing debate over the constitutionality of the appointment of Robert Mueller as Special Counsel. The claim is that Mueller constitutes a “principal officer” who should be nominated by President Trump and confirmed by the Senate. Instead, defenders claim Mueller is an “inferior officer” who does not require such a process. Chief Judge Beryl Howell of the United States District Court for the District of Columbia just gave Mueller an impressive legal victory in an opinion that swept aside this and two other fundamental challenges to the Special Counsel. The decision came as part of the grand jury investigation into Trump confidant Roger Stone.
While there are good-faith arguments that Mueller is no inferior officer given the sweeping nature of his mandate, I have previously expressed great skepticism of the viability of these challenges in light of the prior decision of the Court in Morrison v. Olson, which upheld the constitutionality of the Independent Counsel Act. That Act was allowed by Congress to lapse but the special counsel procedure is, if anything, stronger than the ICA since Mueller is squarely within the Justice Department and subject to its chain of command. This of course could well change with the appointment of Brett Kavanaugh to the Supreme Court. Kavanaugh is a long critic of Morrison. However, his past writings do not clearly establish that he would rule a Special Counsel to be a principal officer. However, this challenge is clearly designed to move up to the Supreme Court where Morrison is considered an endangered precedent, even before the expected addition of Kavanaugh.
Continue reading “Stone Cold: Mueller Wins Key Legal Challenge To His Authority As Special Counsel”
President Donald Trump continued his ill-advised tweeting about the Special Counsel investigation, calling on Attorney General Jeff Sessions to stop Robert Mueller “right now.” Putting aside that Sessions correctly recused himself from such matters over a year ago, the demand for terminate the investigation undermines Trump’s legal team and, for those other than his core base, it comes across as defensive and increasingly alarmed about the investigation. I have never understood these tweets because I have yet to see compelling evidence of a crime by Trump linked to obstruction or collusion.
Continue reading “Trump: Sessions Should Terminate The Mueller Investigation “Right Now””
Philadelphia has announced that it will formally end its information-sharing agreement with Immigration and Customs Enforcement (ICE) – a move following protests against ICE. Democratic Mayor Jim Kenney declared “If I could abolish ICE, I would. But we can abolish this contract, and we are.” While a court recently ruled against the Administration on withholding federal grants from sanctuary cities, the growing confrontation with ICE is likely to grow as the Trump Administration pursues penalties against such cities. Continue reading “Philadelphia Ends Sharing Information With ICE”
Below is my column in the Hill newspaper on the calls for the impeachment of Deputy Attorney General Rod Rosenstein. While the key sponsors have indicated that they may be willing to delay this effort, many continue to advocate for a vote on articles of impeachment. As I have previously said, that would be a mistake. Putting aside the historical and constitutional reasons discussed below, this is the worst possible time for the Republicans to lower the standard for impeachment. The Democrats could well retake the house in November and the effort against Rosenstein could make it all the more easy for Democrats to pursue Donald Trump after the midterm elections. Continue reading “Republicans Need To Consider The Consequences Of A Rosenstein Impeachment”
CNN landed a major news coup with the airing of one of the conversations that Michael Cohen secretly taped with President Donald Trump. The tape is not the best in terms of the audio quality but it contains some troubling portions. Notably, this was clearly not a telephone conversation but sounds like an actual meeting where Cohen is sitting and meeting with Trump. I just posted a column on the implications of this secret recording by an attorney. While Rudy Giuliani insists that the tape is clearly exculpatory, the tape could prove more damaging than beneficial to a defense. Clearly, both sides can read negative or positive elements into this tape. While some have insisted that Trump sounds like a mobster, there is not a clear crime being discussed on this tape. There are reportedly more tapes, but this tape has good and bad elements for the Trump team. However, the tape can be used to show that Trump was informed of the deal before the election and participating in the strategy to silence Trump’s alleged former mistress Karen McDougal. However, Trump has not spoken to investigators (as a basis for some false statement prosecution) on this issue. Continue reading ““Our Friend, David”: Newly Released Tape Shows Trump And Cohen Discussing Purchase of McDougal Story”
Below is my column in The Hill newspaper on the lingering questions left from the Strzok testimony. While it may seem like a thousand years after Helsinki and the Cohen tape, the testimony of Strzok was shaped by highly dubious instructions from the FBI not to answer core questions. It is highly doubtful that a majority of these refusals would be upheld under judicial review — starting with the first question asked of Strzok.
Here is the column: Continue reading “On Contempt: The FBI Has Congress’ Number”
I have previously questioned the environmental and economic sense of President Donald Trump pushing the United States into greater coal consumption with the rest of the world developing alternative energy sources. We seem to be pushing a buggy-whip economy as the world and markets pass us by. My greatest concern is the hostility shown by the Trump Administration to new energy sources. A touchstone of the industry is Levelized Cost of Energy Analysis (LCOE) which was used by investment bank Lazard to evaluate the current costs and prospects of different energy investments. It found (as we have previously discussed) that alternative energy costs are plunging and solar energy is now half the cost of coal. Continue reading “Report: Solar Energy Now Costs Half That Of Coal In North America”
FDA Commissioner Scott Gottlieb may have come up with the greatest tagline since “White Men Don’t Jump.” Gottlieb has announced that the agency is considering blocking the use of the term “almond milk” because “an almond doesn’t lactate.” Continue reading ““An Almond Doesn’t Lactate”: Feds Move To Block The Use Of “Milk” In Almond Milk”
Below is my column in The Hill newspaper on the most recent indictment of Russian military intelligence figures for hacking the computer systems linked to the Clinton campaign and the Democratic party. Once again, the indictment seems straightforward in what is says and what it does not say. Yet, the Washington spin machine quickly put forward highly distorted accounts, including media reports that worked hard to avoid acknowledging obvious elements of the indictment.
Here is the column: Continue reading ““O Goody Ruskies”: Mueller Finds Witches But Which Witches Are We Hunting?”
Over the course of the last year, I have been highly critical of Deputy Attorney General Rod Rosenstein for his selection of Robert Mueller as Special Counsel and his failure to recuse himself from the Russian investigation. However, the most recent effort to impeach Rosenstein is unwarranted and unwise. According to news reports on Friday, Reps. Mark Meadows, R-N.C., and Jim Jordan, R-Ohio are preparing articles of impeachment to subject in the coming weeks against Rosenstein.
Last week, the Federal Aviation Administration (FAA) declared that it would not regulate seat sizes — thereby leaving passengers to the mercy of airlines which have been continually reducing seat size and space. Now airlines are moving to reduce those roomy bathrooms on airplanes. Arlines are designing new bathrooms to make them ever narrower. Imagine that.
Continue reading “Airlines Move To Shrink Bathrooms As FAA Refuses To Regulate Space On Airplanes”
Below is my column in the Hill newspaper on why the most creative and productive individuals are often disfavored in our modern confirmation system. With the announcement of the new nominee this evening by President Donald Trump, we will have the state of a counterintuitive process that favors those who are the least forthcoming or open about their views.
Here is the column: Continue reading “Why Big Fierce Nominees Are Rare”