Category: Constitutional Law

Kavanaugh Accuser Goes Public With The Support Of A Polygraph To Support Alleged High School Sexual Assault

download-6For a week, a scandal has grown over an anonymous accusation against Supreme Court nominee Brett Kavanaugh.  I previously wrote about the unfairness of this last minute accusation from an unnamed law professor who declined to be named.  Moreover, the underlying letter has been in the possession of Democrats since July.  Now, the mystery is over:  Palo Alto University professor Christine Blasey Ford has come forward to say that she is indeed the accuser of Kavanaugh.  It appears that the earlier leaks and media reports that this was a Stanford law professor were untrue.  She is shown here from her high school yearbook picture.  Notably, her lawyer has said that she passed a polygraph examination that found her account was truthful.

Continue reading “Kavanaugh Accuser Goes Public With The Support Of A Polygraph To Support Alleged High School Sexual Assault”

Losing The High Ground: Democrats Hit Kavanaugh With Anonymous Allegation Of Sexual Assault From High School

Below is my column in the Hill newspaper on the recent allegation of sexual assault against Judge Brett Kavanaugh and the demand for a delay in his confirmation vote.  Both Kavanaugh and the other man referenced in the anonymous letter have denied the allegations from their high school days.  The reported law professor who contacted Congress appears to want the allegation considered by members but has refused to come forward and said that she did not want to be drawn into the controversy.  If that was her position, Democrats have now done the opposite and leaked the letter’s details and called for a full investigation.  If this is a law professor, it is unclear why she is not willing to come forward with an allegation of a sexual assault.  She clearly thought that the allegation should be raised with Congress but has refused to come forward to substantiate the claims. That leaves Kavanaugh in a grossly unfair position in my view.  UPDATE: Kavanaugh’s accuser has now gone public.

Here is the column:

Continue reading “Losing The High Ground: Democrats Hit Kavanaugh With Anonymous Allegation Of Sexual Assault From High School”

A Bill Comes Due: Susan Collins Faces Rising Demands To Fulfill Her Promise To Vote Against A Presumed Anti-Roe Nominee

440px-Susan_Collins_official_Senate_photoBelow 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”

GW To Host Annual Supreme Court Review

Supreme CourtI 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”

Defense Counsel Calls Out DOJ For Falsely Accusing His Client Of Trading Sex For Access . . . Court Imposes Gag Order On Counsel

09dc-butina-jumboYesterday, we discussed the prosecution of accused Russian agent Maria Butina and how prosecutors put out clearly false allegations that she traded sex for favors.  Butina’s defense counsel Robert Driscoll called out the government for the clearly baseless allegations spread throughout the media.  U.S. District Judge Tanya Chutkan has now responded by gagging counsel, an order that has become all too common in federal cases. Continue reading “Defense Counsel Calls Out DOJ For Falsely Accusing His Client Of Trading Sex For Access . . . Court Imposes Gag Order On Counsel”

Moore Sues Showtime and Sacha Baron Cohen For Embarrassing Interview

Judge_Roy_MooreFormer Alabama Chief Justice Roy Moore has long been an perpetual litigation machine. Indeed, Moore and his wife appear to have created a cottage industry out of being themselves — getting people to give them huge amounts of money to fight their enemies.  I have been skeptical of these past lawsuits — as well as Moore’s often bizarre conduct.  Now, after the prior lawsuit amounted to nothing, Moore is launching yet another lawsuit. The latest claim is based on Moore’s sitdown with comedian Sacha Baron Cohen for his Showtime series “Who is America?” Essentially, Moore is complaining that he made of fool of himself because Cohen tricked him.  Moore has demanded $95 million in punitive and compensatory damages.  Despite my long admitted aversion to Moore, the complaint does raise some interesting, and unresolved, legal issues. It also presents some risks for Moore himself. Continue reading “Moore Sues Showtime and Sacha Baron Cohen For Embarrassing Interview”

Manafort’s Curious Defense: It Is Easy To Hang on A Hung Jury Strategy

ManafortBelow is my column in the Hill newspaper on the continuing jury deliberations in the trial of Paul Manafort in Alexandria, Virginia.  Defense counsel generally take heart in the passage of time as an indication that the jury is having difficulty in reaching a verdict. However, it can be deceiving. I took over a case in this same courthouse after a jury deliberated over a week and still convicted on all counts.

Here is the column: Continue reading “Manafort’s Curious Defense: It Is Easy To Hang on A Hung Jury Strategy”

Brennan: I Did Not Mean Trump Was Treasonous When I Said His Actions Are “Nothing Short Of Treason”

220px-John_Brennan_CIA_official_portraitI have been critical of the decision of President Donald Trump to rescind the clearance of former CIA Director John Brennan and to release a list of other officials to be reviewed — officials who are uniformly critics of the President.  Despite my criticism of everyone on the list, I viewed the unprecedented action to be unwarranted and retaliatory.  However, Brennan himself does not help the case for those of us opposing the action.  This weekend Brennan walked back his earlier reckless statement that Trump press conference with Russian president Vladimir Putin was treasonous.  Now Brennan insists that when he called Trump treasonous he did not mean that he actually committed treason. Continue reading “Brennan: I Did Not Mean Trump Was Treasonous When I Said His Actions Are “Nothing Short Of Treason””

Trump Revokes Clearance Of John Brennan and Orders Review Of Other Former Officials

donald_trump_president-elect_portrait_croppedIn a highly controversial move, President Donald Trump has revoked the security clearance of former CIA director John Brennan and ordered the review of other officials who all share one obvious distinguishing characteristic: they are all fierce critics of Trump.  The move has been widely condemned as Nixonian and amounting to a black or enemies list.  While I have been highly critical of everyone on the list (and called for some to be fired and, in a couple cases, prosecuted), I find the move very troubling from a free speech perspective.  Indeed, I am still uncertain about the rationale for the actions and why the list would be composed entirely of Trump critics if based on a consistent, apolitical basis. Continue reading “Trump Revokes Clearance Of John Brennan and Orders Review Of Other Former Officials”

Four “Yutes” And Counting: Controversy Grows Over The Judge’s Comments In The Manafort Trial

ManafortBelow is my column in the Hill newspaper on the controversial statements of the judge presiding over the trial of Paul Manafort, the former Trump campaign chairman. Judge T.S. Ellis III has raised growing concerns over his comments in court, particularly before the jury.

Here is the column: Continue reading “Four “Yutes” And Counting: Controversy Grows Over The Judge’s Comments In The Manafort Trial”

Churchgoers Fall Ill After Using Holy Water At Notre Dame

IMG_0298The well-known Catholic prayer states “By this holy water and by Your Precious Blood, wash away all my sins, O Lord.”  It appears however that the next question for the faithful at Notre Dame may be “what washes away the holy water?”  A significant number of churchgoers in Paris are complaining about failing ill after using the holy water at Notre Dame.  It is not a unique problem according to some studies.

Continue reading “Churchgoers Fall Ill After Using Holy Water At Notre Dame”

North Carolina Judge Fines Klansman For Littering In Troubling Free Speech Case

There is an interesting case out of North Carolina where Justin Adams was fined $1,000 for littering.  Adams is a KKK member who was distributing Klan literature on car windshield wipers.  Complaints followed and police were called.  Chief District Judge Mark Galloway imposed the fine, but there are serious questions raised about content-based discrimination of speech. Adams’ views are vile but it seems unlikely that others distributing literature would be subject to arrest. Indeed, Roxboro Police Chief David Hess seemed to confirm as much in his later comments.

Continue reading “North Carolina Judge Fines Klansman For Littering In Troubling Free Speech Case”

Poll: 43 Percent Of Republicans Agreed That President Trump Should Have The Power To Shutdown News Organizations

Continue reading “Poll: 43 Percent Of Republicans Agreed That President Trump Should Have The Power To Shutdown News Organizations”

Stone Cold: Mueller Wins Key Legal Challenge To His Authority As Special Counsel

440px-Director_Robert_S._Mueller-_IIIFor 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”

Mr. Manafort And His $15,000 Ostrich Coat

1531416683549The Justice Department received well-deserved pushback yesterday in the trial of Paul Manafort from U.S. District Judge T.S. Ellis who noted that it’s not a crime to be rich in America.   The Justice Department has been trying every possible way of introducing pictures and witnesses detailing Manafort’s “extravagant lifestyle” in the jury trial.  This includes such items as his $15,000 jacket that’s “made from an ostrich.”  On style values alone, many of us would be tempted to convict on the Ostrich jacket but that is hardly what Manafort is charged with. Nevertheless, the government got plenty by using lifestyle witnesses to confirm Manafort’s use of direct wire transfers from his many foreign accounts — a practice that was recalled as exceptionally rare by the witnesses.

Continue reading “Mr. Manafort And His $15,000 Ostrich Coat”

Res ipsa loquitur – The thing itself speaks