Continue reading “Trump Unleashes Personal Attack On The Hosts Of MSNBC’s “Morning Joe””
Category: Congress
Below is my column in the Hill Newspaper on the Supreme Court order lifting the stay over the Trump immigration order. With the exception of those with bona fide relationships, the Trump Administration has the authority to enforce its travel limitations. As discussed earlier, the order could prove not the next but final chapter of the immigration controversy given the 90 day period set under the Trump order. However, a more immediate issue of concern should be the prior coverage and court decisions leading up to the unanimous order of the Supreme Court.
Continue reading “The Immigration Order and the Regaining Objectivity In the Media and the Courts”

The victory of the Trump Administration in securing the lifting of much of the injunction on the immigration order consumed much of the analysis yesterday. The Court voted unanimously to lift the injunction for every one except those with “bona fide relationships” in the United States. The latter exception was a bit incongruous with the overall deference to the Executive Branch and led three justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — to dissent. They would have lifted the ban without exceptions. What was most interesting however was what was not in the order: a hearing date for July. The reason is that it was not requested by the Trump Administration. Given the 90 days expiration of the order, that leads to the question of whether this appeal is a case of “planned obsolescence.”
Continue reading “Is The Supreme Court Immigration Appeal A Case Of Planned Obsolescence?”

That did not take long. Director of National Intelligence Dan Coats and National Security Agency Director Adm. Mike Rogers met with Special Counsel Robert Mueller to discuss the subjects that they declined to discuss with Congress. Congress then released the information. It now appears that congressional briefings from the Special Counsel are proxy press conferences in this increasingly strange process. As expected, Coats and Rogers admitted that Trump did in fact ask them to tell the public that there was no evidence of collusion between his campaign and the Russians. That was, again, an inappropriate and ill-considered request. However, the disclosure raises a far more worrisome questions with regard to the role of White House Counsel Donald F. “Don” McGahn II. The two intelligence chiefs said that they took anticipated the questions over their conversations and asked McGahn if there was an executive privilege assertion. McGahn simply never responded. That is a highly disturbing account. Executive privilege is not some tactical toy. It has been defended as a core protection of inherent presidential powers. No high ranking officials should be sent into a committee without a clear understanding of the status of information or conversations relevant to congressional inquiries. The non-response was either negligence by the White House Counsel or, more likely and more seriously, a conscious decision to avoid the politically risky decision of either allowing answers or publicly preventing answers.
In the coming weeks, I will be addressing a number of novel constitutional issues that are being raised in relation to the Russian investigation. The first such issue has been widely discussed: is there a constitutional barrier to any federal charge against President Donald Trump for obstruction of justice.
Here is my recent column in USA Today:
Continue reading “Is President Trump Immune From An Obstruction of Justice Charge?”

For many weeks, I questioned the need for a Special Counsel in the Russian investigation because it seems like a coverup in search of a crime. I still do not see the evidence of a crime and simply saying “collusion” does not supply an actual crime. However, when President Donald Trump fired James Comey, I supported the appointment of a Special Counsel to investigate obstruction of justice, even though I remained skeptical of the basis for an actual obstruction charge. I still fail to see the compelling basis for an obstruction case without stretching the criminal code to the breaking point. Nevertheless, I continue to support the need for an independent investigation.
The investigation of a sitting American president however must itself be beyond question as to any bias or influence. For that reason, I have been questioning the propriety of Rod Rosenstein to continue in his current position vis-a-vis the Russian investigation. From the outset, Rosenstein seemed to me to be an inevitable and important witness. Ironically, the recent leak magnified this problem. The leak seemed calculated to protect Mueller from being terminated by publicly identifying Trump as a possible target. However, whatever benefit the leak brought Mueller, it undermined Rosenstein. If Mueller is investigation Trump for obstruction, Rosenstein should immediately recuse himself.
It is not clear if Mueller has an equal conflict of interest. There is reason to be concerned. If Mueller discussed the Comey’s termination with Trump as a candidate for the next FBI Director, he might also be considered a witness in any obstruction investigation. It would seem highly material to the investigation to learn of how Trump described his decision and what he said (if anything) to Mueller about the ongoing Russian investigation. At a minimum, the Special Counsel should address what is a reasonable question about his own knowledge of (and participation in) any meetings with Trump on the Comey termination and the Russian investigation. I do not agree with the campaign to discredit Mueller and strongly object to attacks on his character. I believe Mueller to be a person of integrity and I hope that he recognizes that such a meeting raises some legitimate questions that should be addressed.
Here is the column:
Continue reading “Do Rosenstein and Mueller Have Conflicts of Interest in the Trump Investigation?”
Democrats are clamoring for the resignation of Attorney General Jeff Sessions this week in the wake of his testimony before the Senate. I fail to see the good-faith basis for these calls, particularly after his testimony. Sessions shot down the claims of a third meeting with Russians that was the subject of breathless media reports for days. He also did an excellent job in explaining the steps that he took in recusing himself, including declining to play any role in the Russian investigation long before his formal recusal. He was also on good ground in declining to discuss conversations with the President in the Oval Office. Despite the shock expressed by Democratic Senators, he is in a long line of cabinet members declining to disclose such presidential communications. Nevertheless, the Democrats were right that you should have a formal invocation of executive privilege before declining to answer questions from Congress. However, as discussed in the column below, that is not uncommon.
Yet, the Administration had just gone through a controversial hearing with top intelligence officials refusing to answer such questions and clearly knew that these questions were coming. What did not make sense in the testimony of National Security Agency director Adm. Mike Rogers and National Intelligence Director Dan Coats was their refusal to answer on the ground that it would be “inappropriate.” That makes no sense in isolation without an indication that the questions will be reviewed and addressed by White House counsel in whether executive privilege will be invoked. The same problem arose with the testimony of Sessions (which was magnified by the fact that the White House has been pummeled over the earlier hearing).
The White House should have simply invoked the privilege with regard to presidential communications in the Oval Office in advance while stating an intention to try to answer as many of the questions of the Committee as possible within those long-standing constitutional confines. It is not unheard of to decline to answer questions pending review but Sessions did not promise to have questions reviewed. If he does not secure an invocation (or permission to disclose), he would simply be refusing to answer questions of Congress which constitutes contempt of Congress. This is not necessary. The White House Counsel should have sent a letter in advance of the hearing either invoking or waiving privilege. Alternatively, he needs to send a letter to address the outstanding questions. Congress has a right to have its questions answered unless the White House claims privilege. Even with an invocation, Congress can overcome the privilege with a proper showing to a court. The process requires a firm answer from the White House on the basis for refusing to answer questions and it cannot be a categorical denial based on unease or discomfort.
Here is the column in the Hill Newspaper.
Continue reading “Both Sessions and the Senators Were Right in the Fight Over Executive Privilege”

I had the honor of attending the investiture of Neil Gorsuch yesterday. It was an event steeped in history and the Court’s version of pomp and circumstance. I actually love the Court’s staid and understated style at such moments. The investiture is short and dignified in the courtroom with the reading of his his commission and Gorsuch taking his chair among the nine. President Donald Trump and the First Lady were present as were as array of dignitaries. The investiture was followed by a reception that was incredibly elegant with the justices in my favorite rooms in the Supreme Court with the famous portraits of prior Chief Justices. Deputy Attorney General Rod Rosenstein presented the commission to the Court which was read by the Supreme Court Clerk. There was a notable sound of whispers when the commission from Trump mentioned that Gorsuch was entitle to all of the “emoluments” of his office.
Continue reading “The Supreme Court Holds The Investiture of Neil Gorsuch”

Washington was awaken this morning with our now regular sound of a tweet from the President. At 6:55 am, President Donald Trump blasted the report that Justice Department special counsel Robert Mueller is now investigating him for obstruction of justice. He called the whole thing based on a “phony story” — a likely dig at former FBI Director James Comey. I previously raised my concern about the alleged leak from the Special Counsel’s office. The fact that the office is investigating obstruction is hardly news. Even those of us who have expressed substantial reservations about the legal basis for an obstruction charge against the President have said that there was ample reason to investigate such allegations. However, the leak in the Washington Post undermines the credibility not of the President but the Special Counsel. Similarly, I have previously said that these tweets from the President are highly damaging to both his public and legal case. Recent polling finds that only one in five voters support Trump’s firing of Comey and a majority now believe that he did meddle in the Russian investigation.
There is an interesting article in the Washington Post entitled “As A Prosecutor, Kamala Harris’s Doggedness Was Praised. As a Senator, She’s Deemed ‘Hysterical.'” The Los Angeles Times also described Harris’ style as prosecutorial in nature and referenced her skills in court examination. The articles raise a common comparison between court and congressional hearings in terms of questioning. When I served as lead counsel in the last impeachment, I constantly spared with Senators over the failure to follow basic rules of evidence or practice. The Senators would respond that such rules do not apply to them — which is technically correct though good practices are not always required practices.
Former Trump aide Jason Miller was confronted by USA Today columnist over his description of Harris as “hysterical” in the hearing. Her point is a valid one but the Washington Post suggests that this type of questioning would be considered praise worthy in a prosecutor. The comparison between actual litigation and congressional examinations is an interesting one. I have great respect for Sen. Harris and her experience. However, while her questioning began well, it quickly fell into improper questioning if viewed from a litigation viewpoint. As a criminal defense attorney, I can say that it would not only be viewed as improper but judges would immediately sustain objections to such badgering of a witnesses. Indeed, I was surprised watching the hearing as Democratic senators pummeled Sessions with questions and demanded rapid answers. Sessions had just been attacked for failing to fully and truthfully answer an earlier (and rather unclear) question from Sen. Al Franken. Now however they were giving him rapid questions and cutting off his answers. Harris was the most extreme in that respect.

It is the presidential version of death by cop. Recently, I wrote a column on how Trump had become a witness against himself by, again, tweeting highly damaging observations about pending litigation and even contradicting the statements of his own legal team in the immigration order litigation. As predicted, the United States Court of Appeals for the Ninth Circuit not only ruled against his Administration but relied on his damaging recent tweet to seal the deal. The lack of message discipline extended to Trump friends this week after his friend, Newsmax CEO Chris Ruddy, said Trump was considering firing Mueller: “I think he’s considering perhaps terminating the special counsel. I think he’s weighing that option. I think it’s pretty clear by what one of his lawyers said on television recently.” The statement sent a chill throughout Congress. Such a move would not only push Congress to pass a renewal of the Independent Counsel Act but magnify allegations of obstruction.
Below is my column in The Hill Newspaper on the the case against former FBI Director James Comey for leaking FBI information to the media. There has been an effort to confine the question of Comey’s actions in terms of criminality. There are laws that could be relied upon for a formal charge in court but that is unlikely and would counter prior prosecutorial practices. However, the disclosure clearly violates a host of federal rules and regulations that bar such use of FBI information. It is therefore unlawful and unprofessional. It is also potentially unethical under bar rules.
Here is the column:

President Donald Trump lashed out at James Comey on the weekend and called him “cowardly.” It was the latest impolitic tweet and it does not appear to be working well for Trump. A new poll shows that the public overwhelmingly believe Comey over Trump by a twenty percent margin. In a truly sad state of affairs if accurate, only 26 percent on the You.Gov/Huff Post poll believes the President. For the moment, Trump may view Comey as “cowardly” but the public views him credible. The poll tracks another poll by Gallup showing the President’s popularity at 38 percent — though, as I mentioned earlier, Trump has been slightly ahead of Bill Clinton at this point in this presidency.
Continue reading “Trump Calls Comey “Cowardly” As Polls Show Public Believes Comey”
Below is my column in USA Today on the current status of the evidence against President Donald Trump for either indictment or impeachment. While I do not agree with the White House that former FBI Director James Comey
“completely vindicated” the President, I do not believe that the testimony materially altered the legal position of the President. I believe that Comey both helped and hurt himself. He did an excellent job in explaining why he only discussed the content of the memos with his staff, but he also admitted to being a leaker and showed repeated failures in ethical confrontations with superiors. There is reportedly a call for Comey to return. He may find the return appearance more challenging than the first.
Continue reading “Comey Testimony Proves To Be Neither Vindicating Nor Incriminating For Trump”
One of the most interesting new disclosures today in the Comey hearing was the admission by former FBI Director James Comey that he intentionally used a “friend” on the Columbia law faculty to leak his memos to the media. Comey says that he did so to force the appointment of a Special Counsel. However, those memos could be viewed as a government record and potential evidence in a criminal investigation.
Continue reading “Did Comey Violate Laws In Leaking The Trump Memo?”
