Category: Congress

Congress, Criminal law, Media, Politics, Society, Uncategorized

Former FBI Director To Testify Before Congress

440px-Comey-FBI-PortraitFBI director James Comey is the ice man cometh.  Comey’s testimony is the most anticipated in this city since the Anita Hill testimony against Associate Justice Clarence Thomas.  In a city where politics is our professional sport of choice, this is the Superbowl and World Series rolled into one.  Bars are opening early to allow people to watch in the right atmosphere.  The only thing missing is a Vegas betting line and bunting.  No doubt children got up this morning screaming “it’s Comey day, it’s Comey day!”

The day however is not necessarily purely festive for Comey who is likely to face some tough questions on his own conduct.  He is a seasoned operator in Washington so I expect him to do well, but the stakes are high.

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Congress, Criminal law, Media, Politics

Will There’s A Will, There’s A Wray: Trump Selects Former AAG and Christie Lawyer For FBI Director

136px-US-FBI-ShadedSeal_svgDonald Trump has made his selection for the replacement of former Director James Comey.  He notably did not select an FBI career person but did go with a former Assistant Attorney General. He is Christopher Wray.

His resume is strikingly similar to another prior FBI Director: James Comey.  The White House clearly wanted to show that it was picking a professional with impeccable credentials and independent judgment.  It succeeded and showed that it was still possible to repair some of the damage from the Comey debacle.

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Bizarre, Congress, Constitutional Law, Media, Politics, Society, Uncategorized

Tweet Storm: Trump Attacks Position Of His Own Lawyers on Twitter On The Eve Of Supreme Court Decision

donald_trump_president-elect_portrait_croppedThis weekend I discussed how President Donald Trump’s own words had been the primary problem for lawyers seeking to advance his agenda.  Trump’s comment and tweets have routinely undermined defenses and alienated allies.  The column was prompted by Trump’s London tweets. While discussed for their triggering outrage across the political spectrum in Great Britain, one of the most controversial tweets also contained references to the immigration order as a “travel ban.”  It was a remarkably ill-considered tweet. However, on Monday morning, President Trump doubled down and actually attacked his own lawyers at the Justice Department and directly contradicted their position in court.  As I mentioned earlier, government counsel must feel like they have a daily Perry Mason moment with their client jumping up in court screaming incriminating things. The only logical conclusion that can be reached is that Trump really does not care if he wins the case.  The problem is that there is a large and talented team at the Justice Department that is still laboring under the assumption that the President does want to prevail before the Supreme Court.

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Congress, Constitutional Law, Politics

Is The White House Gearing Up For A Privilege Fight Over Comey Testimony? Kellyanne Conway Says Trump Has Not Decided Whether To Invoke Executive Privilege

624246174001_5322739003001_5322726507001-vsIn an interview on Good Morning America, White House Counselor Kellyanne Conway said that the decision had not been made whether the President would invoke executive privilege to bar former FBI Director James Comey from discussing his conversations with Trump regarding the Russian investigation.  The invocation of executive privilege could raise some provocative and problematic issues for the White House. (For full disclosure, I taught Conway at GW law school).

 

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Academia, Bizarre, Congress, Politics

Middle School Students in New Jersey Walk Out On Speaker Paul Ryan
220px-Paul_Ryan--113th_Congress--There was a disturbing story out of South Orange, New Jersey recently where a group of middle school students who walked out of an event rather than take a picture with the Speaker of the United States House of Representatives Paul Ryan.  It is a sad statement about our country that children are raised to despise those with whom they disagree.  Ryan is third in line for the presidency.  Teaching your children to show contempt for our national leaders brings a terrible cost for the country in terms of the civility and dialogue.
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Congress, Constitutional Law, Courts, Criminal law, Lawyering, Media, Politics, Uncategorized

Report: Obama Administration Carried Out Massive and Unconstitutional Surveillance Programs

President_Barack_ObamaWith the steady stream of controversies swirling around the White House, there has been little attention given a highly disturbing report that the Obama Administration engaged in previously undisclosed and violations of the Fourth Amendment.  Just a few days from the 2016 election, the Foreign Intelligence Surveillance Court (FISA) reportedly raised a highly unusual alarm over the creation of “a very serious Fourth Amendment issue” by possibly unconstitutional surveillance conducted under President Barack Obama.  If true, this should be given equal attention to the other stories crowding our front pages and cable coverage.  The Obama Administration has a well-documented history of abuse of surveillance and stands as one of the most antagonistic administrations toward privacy in our history.  Indeed, if true, many of the former Obama officials currently testifying against the Trump Administration were responsible for a far broader scope of abusive surveillance programs.

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Congress, Constitutional Law, Criminal law

Report: Trump Pressured the DNI and NSA Chief To Scuttle FBI Investigation

donald_trump_president-elect_portrait_croppedThis morning’s news is again filled with a new and troubling disclosure out of the Trump White House.  Various news organizations are reporting that President Donald Trump spoke to Director of National Intelligence Dan Coats and National Security Agency Director Adm. Michael Rogers about the Russian investigation and asked them to publicly deny evidence of cooperation between his campaign and Russia.  I was on Morning Joe today and once again cautioned about declaring a prima facie case of obstruction (as many have done on CNN and other networks) in the absence of facts satisfying the elements for that crime.  While it is obviously something of a buzz kill, there still is not sufficient evidence (even if these accounts are true) to support an indictment.

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Columns, Congress, Constitutional Law, Criminal law, Media, Politics, Society, Uncategorized

A Question of Law: Calls for the Indictment or Impeachment of Donald Trump Are Transparent and Premature

donald_trump_president-elect_portrait_cropped440px-Comey-FBI-PortraitBelow is my column in The Hill Newspaper on the chorus of commentators suggesting that the Comey memo is compelling evidence for either a charge of obstruction of justice or an actual impeachment.  I have been cautioning against such sweeping assumptions.  Obstruction is a crime and crimes have elements.  The elements are not satisfied by this memorandum.  Yesterday senators revealed that Rod Rosenstein suggested that he was already informed that Comey would be fired before he wrote his memorandum supporting termination.  That would not materially alter the legal analysis.  Rosenstein’s memo confirms that he believed that Comey should be fired.  He had met with Comey and clearly left with reservations over his continued fitness for the position.  The fact that Trump may have made what Rosenstein thought was the right decision for the wrong reason is marginally relevant. Comey’s immediate boss was not supporting his retention.  Moreover, Trump’s conflicting statements do not improve the case for prosecution.  It it true that Trump has contradicted his staff and seemingly himself.  Yet, Trump has insisted that he felt Comey was doing a poor job and yesterday he reaffirmed his position that he never asked Comey to drop the Flynn investigation.  However, even if he said such an incredibly inappropriate thing, it would not meet the standards of obstruction for the purposes of a criminal charge in my view.  In other words, this is a question of law not fact and the law is not on the side of those calling for criminal counts or articles of impeachment.

Critics increasingly sound like my kids when we drive across country and start to chant “are we there yet?” before we are even a block from the house.  Many view a criminal charge or impeachment as the only hope for America.  However, neither the criminal code nor Article II were meant as post hoc political options for unpopular presidents. Indeed, both are designed to be insulated from public distempers and passions.

None of this means that this is not a valid basis for investigation. It is.  Moreover, the White House staff appears encircled like a wagon train on the Plains with no ammunition and no nearby fort. The difference is that they seem encircled by their own president who continued to prevent any movement to better ground.  What is fascinating is that Trump appears intent on creating the most self-incriminating appearance without evidence of an actual crime on his part.

Here is the column:

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Columns, Congress, Constitutional Law, Media, Military, Politics, Society

The Russian Disclosure: Trump’s Game of Truth or Dare

donald_trump_president-elect_portrait_croppedBelow is my column in USA Today on President Donald Trump’s disclosure of highly classified information to the Russians in his controversial meeting after the firing of James Comey.  While the Administration issued a series of categorical denials of the underlying stories as “false,” the next day it appeared to acknowledge that Trump did in fact reveal the information.  As discussed below, it was a wise decision not to repeat the initially misleading statements to Congress.  The intelligence was reportedly generated by Israel, which did not give permission to the President to make the disclosure to the Russians.  Since the New York Times and Washington Post did not say that Trump released “sources and methods,” it now appears that the White House is not claiming that the stories were false.  It is the latest example of denials from the White House which then lead to embarrassing reversals over the course of the coverage.  The only good sign is that the White House saw that the false account was raising serious problems and reversed course the next morning. However, the familiar pattern has taken its toll on the Hill where members were conspicuously absent this time in defending the President.

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Congress, Constitutional Law, Criminal law, Media, Politics, Society

Rand Paul Discloses That Another Senator Was The Subject Of Surveillance Under Obama

440px-Rand_Paul,_official_portrait,_112th_Congress_alternateThere has been comparatively little coverage of an allegation voiced by Sen. Rand Paul that another Senator confided in him that he was also subjected to surveillance under the Obama Administration.  Paul previously voiced his belief that he may have been the subject of surveillance and asked the intelligence committee for confirmation of any such evidence.   The surveillance of members of the Senate would raise extremely serious questions on the abuse of surveillance authority and threat to the independence of Congress.  If this is untrue, I would have expected a reassuring denial to be issued. Even if the Senators were not the target of surveillance, it would be highly troubling if the government monitored conversations with members of Congress.

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Columns, Congress, Constitutional Law, Courts, Criminal law, Media, Politics

Trump’s Inner Nixon: Is It Possible To Have a Cover Up Without An Actual Crime?

Below is my column in the Hill Newspaper on the Comey termination and comparisons to the Nixon presidency.  Those analogies deepened this weekend after the President repeated that he thinks that they should just get rid of the daily press briefings that have been such a central part of White House operations for decades.  What is most striking is how, again, the White House has engineered its own undoing.  Many people had called for Comey to be fired, particularly Democrats. However, the timing and manner of the termination has created yet another scandal for the Administration. Only 27 percent of citizens support the decision according to a NBC/Wall Street Journal poll.  The growing credibility crisis has made the appointment of a Special Prosecutor (or even the resurrection of the Independent Counsel Act) a priority for many. While I have been a dissenting voice regarding the need for a Special Prosecutor, the Comey debacle has changed my view.  The public deserves an independent investigation into these allegations and related issues.  Perhaps people will be satisfied with the FBI investigation under a new director, but the last week has been so damaging to public confidence that the need for an independent investigation is obvious. Having said that, I am still unsure of the major crime being investigated under the facts that are currently known.  For the moment, this Administration appears intent of self-incriminating actions in the absence of an actual crime.

Here is the column:

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Congress, Criminal law, Justice, Politics

McCabe: FBI Agents Were “Vocal” In Their Dissatisfaction Over Failure To Indict Clinton

Andrew_McCabe_official_photoHillary_Clinton_Testimony_to_House_Select_Committee_on_BenghaziThe testimony of Acting FBI Director Andrew McCabe on Thursday grabbed headlines in his direct contradiction of the White House claim that former FBI Director James Comey has lost the support of career agents.  McCabe made clear that the rank and file were (and remain) entirely supportive of Comey.  However, I thought the most interesting aspect of the hearing was a brief discussion of the 2016 decision not to prosecute Hillary Clinton. McCabe, who is viewed by many Republicans as having problematic links to the Clinton camp (through his wife who ran for office with their financial support), said that the failure to indict Clinton produced “vocal” opposition from the agents investigating her conduct.

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Columns, Congress, Constitutional Law, Courts, Criminal law, Media, Politics, Society

Sally in Wonderland: The “Curiouser and Curiouser” Position of The Former Acting Attorney General

Below is my USA Today column on the testimony of Sally Yates, former acting Attorney General, on her unprecedented order to the Justice Department not to assist President Donald Trump in the defense of his immigration executive order.  While the hearing was focused on her warning with regard to former National Security Adviser Michael Flynn, some of us were more interested in how she would respond to criticism over the order that led to her being fired.  Both Democratic and Republican lawyers have raised serious ethical misgivings over her decision.  The hearing however only magnified the questions over the basis for her actions. Here is the column.

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Bizarre, Congress

Pelosi Declines to Criticize China After The Dalai Lama Removed Her “Negativity”

The news yesterday included images of the Dalai Lama blessing Democratic House Minority Leader Nancy Pelosi at his temple in Dharmsala, India.  Pelosi gave a rather rambling statement but denied to criticize China because the Dalai Lama had removed her negativity.  My only thought however is why the public continues to pay for these congressional junkets where members go to exotic locations on the public dime.  The trip was attended by both Republican and Democratic members.

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Congress, Courts, Media, Politics, Society

James Comey and Posthumous Acclaim In Art and Politics

With the firing of FBI Director James Comey, politics seems to be following art in one important fashion: your work becomes more popular after you’re dead. Jim Croce was barely known as a singer until his plane crashed and burned. Van Gogh sold only one picture in his lifetime . . . until he shot himself. Comey’s work appears to be on the same track of retrospective popularity. He is now the rage. Democratic Senators and liberal commentators who only recently denounced him as a political hack and manipulator were suddenly speaking of Comey as the second Publicus. More importantly, news outlets like CNN went into a virtual echo chamber with their experts, like Jeff Toobin, declaring that the President was lying and that there was no other explanation for firing Comey other than that fact that the Russian investigation was “getting too close” to Trump. One CNN guest historian, Douglas Brinkley,  even declared, from a purely historical perspective of course, that the firing shows that Trump acts like a “tyrant.”

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Res ipsa loquitur – The thing itself speaks