Category: Congress

The Supreme Salient: Decades Of Static Ideological Lines On The Court Could Vaporize With A Kennedy Replacement

Below is my column in the Hill Newspaper on the implications of a rumored retirement by Justice Anthony Kennedy.  If nothing else, it allowed me to discuss the anniversary of the Ypres Salient explosion in World War I — the mining of the German line with massive bombs.  While we often discuss how a nominee could change the Court on issues like Roe v. Wade, the replacement of either Kennedy or Ruth Bader Ginsburg would potentially collapse the long static lines on the Court.  Like trench warfare, the 4-4 split on the Court has moved little in areas like abortion. It could now evaporate in the flash of a confirmation (assuming that Chief Justice John Roberts does not step into the role of swing vote on the Court).

Here is the column:

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A SHOWING OF ACTUAL MALICE: THE WHITE HOUSE “TIRES” OF THE FIRST AMENDMENT

donald_trump_president-elect_portrait_croppedBelow is my Hill column this week on the confirmation from both Trump’s Chief of Staff and the White House Spokesperson that the Administration is working on possible changes in our libel laws — changes that by definition would require altering the First Amendment.  The decision in New York Times v. Sullivan is decades old and celebrated as one of the Court’s greatest decisions.  It has never been challenged by a president . . . until now.  The case clearly states that the libel standard is a constitutional rule and thus the Court would have to overturned the decision or the President would have to amend the First Amendment.  Whatever must be shown under the “actual malice” standard of New York Times v. Sullivan, it pales in comparison to the actual malice shown by this Administration toward the free press.  Here is the column:

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Preliminary or Premature? Injunction Against Trump Sanctuary Order May Come Down To A Question Of Timing

Judge_William_H._Orrick,_IIIdonald_trump_president-elect_portrait_croppedIn a week, the first appellate hearing will occur in the review of the second Trump immigration order. In the meantime, the Administration is appealing the latest legal setback with the injunction of Trump’s sanctuary city order.  Below is my column from the Hill Newspaper on the decision of District Court Judge William Orrick.  

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Carter Page and the Beltway Untouchables

Harry Truman famously said that “If you want a friend in Washington, get a dog.”   Trump campaign counsel Don McGahn appears to have given the same advice to international businessman Carter Page, who is at the center of the Russian influence scandal.  While Page was referenced as an adviser during the campaign, McGahn sent him a letter telling him to stop calling himself “an advisor” — current or former. In other words, he was now not just a non-adviser. Page was now a non-entity for the purposes of the Trump team. As continued denials this week of any role of Page confirm, he has now joined a rather lamentable group in Washington: political orphans who wander the Beltway without a home or a friend. They are our untouchable class; people who move from high-profile existences to utter non-entities in the space of a news cycle. Continue reading “Carter Page and the Beltway Untouchables”

Schock Treatment: How The Justice Department Violated The Constitution In Its Aaron Schock Investigation

Below is my column in the Hill Newspaper on the investigation of former Rep. Aaron Schock (R-Ill), who attracted notoriety for his use of a Downton Abbey motif for the decoration of his office.  Obviously a preference for haughty interiors should not be enough to generate a massive criminal investigation.  However, the prosecutor in this case has pursued Schock with utter abandon, including trampling over long-established protections accorded to Congress.  Regardless of the merits of the fraud allegations against Schock, the investigation raises troubling questions of constitutional law and Congress should hold hearings into the violation of Article I.

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Federal Court Rejects Challenge to the Removal of Controversial Painting Depicting Police As Pigs

Rep. Cedric Richmond (D-La.), chairman of the Congressional Black Caucus, said “We may just have to kick somebody’s ass and stop them.  Then the architect stepped in and barred the hanging of the picture.  A

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Devouring The Young: Democrats Turn On Member Who Asked For Proof Of Responsibility for Syrian Attack

Rubens_saturn440px-Tulsi_Gabbard,_official_portrait,_113th_CongressThe attack on the Syrian airfield has sent the polls for President Donald Trump into a sharp rise and he has been praised by various Democrats.  Others have called for the commitment of thousands of troops.  No one seems interested in speaking of the absence of congressional authorization.  Indeed, when Sen. Rand Paul objected to the lack of congressional consent, Sen John McCain denounced him as a non-entity in the Senate who does not listens.  Below is my column on the mounting attacks on Rep. Tulsi Gabbard (D, HI) from Democrats after she called for the release of evidence on the culpability of the Syrian government in the recent gas attack on a village. Even though some (including a recent MIT professor) have questioned the evidence,  Gabbard’s desire to see the evidence was viewed as inexcusable.  It appears that war, like Saturn, devours its young.

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The Rice Controversy: Is The Media Proving Trump Correct?

Susan_Rice,_official_State_Dept_photo_portrait,_2009Below is my recent column in The Hill Newspaper on the Rice controversy.  Media spins for Rice continue including MSNBC “AM Joy” host Joy Reid describing the softball interview with Andrea Mitchell as a type of “Government for Dummies” lecture: “She was on with our own Andrea Mitchell yesterday trying to explain how government works, for those that don’t know.”  Of course, unmasking political opponents (if the allegations are proven to be true), would not be how the government is supposed work.  Nor is alleged lying about knowing nothing about the unmasking in prior interviews — a curious conflict with Reid’s take that Rice was trying to explain how government works. This was Rice’s second or third explanation.

The controversy occurs after the Washington Post gave Rice a retroactive “Four Pinnochios” for her claim that the Obama Administration got rid of all chemical weapons in Syria. (That is not the first time that Rice has been accused of false statements on national security issues, as discussed below). None of this seems to matter in the coverage of the most recent controversy involving Rice.  It appears that Trump is the temptation that many journalists simply cannot resist.  It is a Faustian bargain: media is so intent on pursuing Trump that they have lost any sense of their own navigational beacons of objectivity and neutrality.

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Trump Signs New Law Allowing Hunters To Shoot Hibernating Bears and Wolf Cubs In Dens

In a blow to environmentalists and animal rights supporters, President Donald Trump has signed a new law that revokes the Obama Administration’s rule against “predator control” hunting on Alaska’s refuges.  The rule prevented hunters from killing bears as they hibernated in their dens or killing wolf cubs in dens. It also bars hunting from helicopters.

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Rand Paul Calls For Congress To Demand War Powers Authorization . . . John McCain Says Paul Is “Wrong” and Alone In The Senate

I have been discussing how the Congress is again willfully ignoring its constitutional duty on the declaration of war as our intervention in Syria expands.  Democratic leaders like Nancy Pelosi and Chuck Schumer have fallen over each other to praise the attacks even though Congress never authorized the action.  Hillary Clinton was calling for attacks in Syria just hours before the attack, as she did in Iraq, Libya and other past conflicts.  The United States just attacked a foreign nation that had not attacked the United States.  It was done with little consultation and no authorization from Congress.  However, as with prior wars, the attacks remain politically popular so Congress is silent with the exception of a few members like Sen. Rand Paul.  Sen. John McCain (R-Ariz.) however has gone further to denounce Paul as simply “wrong” and virtually mock him as a nonentity in calling for such congressional authority.  He is alone in the Senate, McCain insisted, in his demand that Congress fulfill its Article I duties. It is a sad moment for those who believe in a textualist or formalist approach to constitutional powers.  All of those textualists who proudly embraced Neil Gorsuch are now apparently living constitutionalists as the subject turns to yet another war.

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Trump Strikes Syria As America’s Undeclared War Expands

The United States fired 59 Tomahawk cruise missiles at a Syrian airbase last night in retaliation for a chemical attack blamed on the Syrian government.  The Syrian government previously declared U.S. troops and military operations in its country to be an invasion of the country.   With the expansion of military operations, including troops on the ground, I thought it was worth reposting the recent column on undeclared wars that have become the norm for the United States.  Of  course, the only thing rising faster than our military intervention is congressional hypocrisy as Democrats express outrage over the failure to secure a declaration of war or authorization.  These are the same members who remained silent as President Obama routinely launched missiles at targets in a variety of nations and took this country to war in Libya without even consulting Congress.  As on the filibuster issue, the Democrats frittered away any high ground years on the issue years ago.

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Eric Trump: “Nepotism Is Kind Of A Factor Of Life”

Eric Trump may be a bit off script this week.  There are legitimate objections to President Donald Trump making his own daughter and son-in-law official advisors in the White House as the definition of nepotism.  I have long been critical of nepotism and, in my view, such hiring should be barred under federal law.  However, it is currently legal.  That does not make it acceptable for many so the comments of Eric Trump raised eyebrows when he said in a Forbes interview that “nepotism is kind of a factor [sic] of life.”

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Textualists and Originalists Are Again AWOL in Wars on Syria and Yemen

donald_trump_president-elect_portrait_cropped220px-B-2_spirit_bombingBelow is my recent column in The Hill Newspaper on the increased U.S. involvement in the fighting in Syria and Yemen.  As usual, there is little concern (beyond Sen. Rand Paul) over the sending of troops into foreign conflicts without congressional approval or anything resembling a specific declaration of war.  Indeed, when members insist that modern national security threats do not make specific declarations or authorizations practical, they sound much like “living constitution” advocates.  Yet, we have now engaged in hundreds of military actions with only a small number of declarations and a small percentage of authorizations.  As the Framers feared, war has become a continual and unilateral exercise of executive authority.

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In Like Flynn? General Reportedly Offer To Testify In Exchange for Immunity

Washington is abuzz with the news that former national security adviser Michael Flynn has offered to cooperate with congressional investigators in exchange for immunity from prosecution. The offer was reportedly made by his lawyer to both the FBI and Congress.  This has triggered a gleeful media frenzy as commentators hold forth on what damaging information Flynn might offer in exchange for immunity.  However, the offer could also reflect a general preference of lawyers for immunity before allowing their clients to face potentially wide ranging interrogations or testimony. Update: President Trump has said that Flynn should demand immunity.

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Can Yates Testify Without Violating Privilege or Ethics Rules?

sally_q-_yatesI previously discussed the dubious decision taken by former Acting Attorney General Sally Yates to order the entire Justice Department to stand down and not to assist the president in the defense of his first executive order on immigration. In a letter to the president, Yates said she was not convinced that the law is just or right. Yates effectively dared Trump to fire her over the immigration order and he did so.  Now Yates has volunteered to testify before the House Permanent Select Committee on Intelligence — a hearing that was abruptly cancelled by its Chairman.  Such an appearance is relatively rare and fraught with difficult constitutional and ethical questions for Yates. She would be testifying  in the committee’s investigation into Russian interference in the presidential election.  However, she is testifying as someone who was recently in a prosecutorial position about subjects related to an ongoing investigation where no one has yet to be indicted.  Even if she can manuever around the privilege issues, she could raise serious ethical issues with her testimony.

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