Category: Constitutional Law

How The Supreme Court Could Be Pulled Into The Trump Impeachment

Supreme CourtBelow is my column in the Washington Post on the real possibility that the Supreme Court could be pulled into the Senate impeachment trial if witnesses are allowed. If you hated Bush v. Gore, this could be one sequel that you will not want to see.  Certainly few on the Court are eager to play a role in the possible removal of an American president.

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A Leap or Perpetuating Evel? A Response To Sen. Chris Coons

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I have long respected Sen. Chris Coons (D, Del.) as a highly intelligent and effective senator.  I was surprised today to be watching Michael Smercomish (who I also respect greatly) to hear Sen. Coons following the party line in arguing implausibly that Hunter Biden is not a relevant witness in any trial despite his centrality to the Trump defense.  I previously addressed how Biden would be deemed relevant in a conventional trial and Smercomish quoted one of my Washington Post column at length to offer the opposing view. Sen. Coons responded not by addressing the relevancy argument but by dismissing such arguments as clever lawyering and “a stretch . . . a leap of logic worthy of Evel Knievel.”  I should note that this analogy was lost on my youngest son, Aidan, who immediately asked “who is Evel Knievel?” When I explained, he responded, “isn’t that a good comparison?” Continue reading “A Leap or Perpetuating Evel? A Response To Sen. Chris Coons”

Iranian Chess Master Refuses To Return After Being Photographed Without Required Hijab

We recently discussed the defection of Iran’s only Olympic female medalist due to the continuing discrimination and repression of women in that country. Now, Iranian chess master and referee, Shohreh Bayat, 32, has refused to return to Iran after pictures emerged of her without a hijab caused a controversy in the Islamic Republic. The decision is another painful example of the struggle of women under Islamic laws that deny them basic human rights.

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Virginia Moves To Ratify Equal Rights Amendment . . . 38 Years After Expiration

There could be a curious constitutional challenge brewing after the Virginia Senate Privileges and Elections committee voted to report the ERA to the floor of the Senate on Wednesday. That would be the 38th state to ratify but the vote ignores two glaring problems. First, the deadline for ratification passed 38 years ago and five states that approved the ERA have since rescinded their ratification.

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Pelosi’s Blunder: How The House Destroyed Its Own Case For Impeachment

Below is my column in The Hill Newspaper on the blunder by Speaker Nancy Pelosi of not submitting the impeachment case to the Senate — a mistake that now threatens not just the trial but the rules for impeachment trials.

On Sunday, Pelosi went largely unchallenged in her obviously incorrect claim that the House is still in court seeking witnesses in the impeachment. The House is litigating pre-impeachment witnesses, but has never sought to subpoena, let alone compel, key witnesses in the impeachment from John Bolton to Rudy Giuliani to others with direct knowledge of any alleged quid pro quo. Indeed, the House has done nothing for four weeks after the vote – a vote that I strongly discouraged in favor of spending a couple months seeking these witnesses and/or court orders. Now Pelosi is actually suggesting that they could still seek the witnesses while the House does nothing. It remains the most baffling blunder of the impeachment.

Here is the column:

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Harvard Professor Lessig Sues New York Times For Defamation

This week seems to be a litigious one for Harvard professors. In addition to the complaint by Dershowitz at Yale, Harvard law professor and liberal political activist Lawrence Lessig is actually suing The New York Times for defamation. While there may be more offered in litigation, the lawsuit on its face seems dubious in establishing that the New York Times ran “false and defamatory” information for him as “clickbait” for readers.

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Courting Disaster? The Democrats Are Demanding Witnesses With One Notable Exception

Below is my column in the Washington Post (slightly expanded) on the upcoming fight over witnesses, including the unresolved question of Hunter Biden. The problem facing Democrats is that Hunter Biden is a clearly material witness to the defense on why there was a hold on military aid to Ukraine. The plain fact is that, from the perspective of the defense, the worst Hunter looks, the better the hold looks.

Here is the column:

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History and Its Revision: The Use and Misuse Of The Nixon Precedent

Professor Ken Hughes of University of Virginia recently penned a column to denounce the utter partisanship and lack of integrity in Washington as demonstrated by the failure of a single Republican to support the impeachment of President Donald Trump. He did not, of course, view the virtually unanimous vote by Democrats as partisan. Just the Republicans. The reason appears to be the view that the Democrats are right and therefore the Republicans are utter partisan hacks. To make his case, Professor Hughes makes equally selective observations about the history of impeachment, including singling out a line from my testimony before the House Judiciary Committee.

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“It’s UnAmerican. It’s Unconstitutional”: Utah Senator Denounces The Iran Briefing As “Absolutely Insane”

An interesting thing occurred on Capitol Hill yesterday. A U.S. Senator demanded to be treated as an actual U.S. Senator. After the briefing by the Trump Administration on the “imminent” threat behind the killing of Iranian general Qasem Soleimanim, Utah Republican Sen. Mike Lee came out of the hearing irate at what he described as the “worst military briefing” he had ever witnessed. Lee is one of President Donald Trump’s most committed supporters and a hawk. However, he has a quaint notion of being part of an independent branch of government with independent obligations under federal law. Lee refused to simply rubber stamp the position of the White House and denounced the “briefing” as offering no real evidence and little beyond platitudes. Sen. Rand Paul joined Lee in criticizing the briefing as clearly insufficient. In response to this principled position, both have been accused of “empowering the enemy” by Sen. Lindsey Graham. Defending the authority and functions of Congress is precisely what the Framers demanded in our system of checks and balances.

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The Bolton Factor: Pressure Builds For Witnesses In The Senate Trial

My column today in the Washington Post explores the possibility of witnesses in the Senate impeachment trial and specifically what the Senate might do if the White House demanded a clearly relevant defense witness named Hunter Biden. As the column was coming out, former national security adviser John Bolton announced that, if subpoenaed, he is “prepared to testify” before a Senate trial. Some of us have been saying for months that Bolton was signaling to the point of screaming that he was eager to testify. Nevertheless, the House refused to subpoena him, let alone seek to compel his testimony. It was the same counterintuitive position that led to the House to withdraw its subpoena for top Bolton aide, Charles Kupperman. Bolton’s announcement only highlights the baffling blunder of the House in rushing this impeachment before creating a complete and compelling record for removal. Instead, it effectively handed over control of the case — and completion of its case — to the Senate and the opposing party.

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“How Did It Get So Late So Soon?”: The Democratic Impeachment Erodes With Opinions and Time

Below is my column in The Hill newspaper on the recent decision on the appearance of a key witness, Charles Kupperman, in the House investigation. The abandonment of the subpoena on Kupperman highlights what will be a major question in the Senate of why the Senate should demand witnesses who the House failed to seek to compel. By rushing the impeachment and forcing a vote before Christmas, the House gave up control over an incomplete and insufficient case for removal. It gave up that control to a chamber controlled by the opposing party. Speaker Nancy Pelosi’s attempt to game the system has not achieved any concession from Senate Majority Leader Mitch McConnell. Few of us believed it would. Now the House will proceed on the thinnest record ever presented in a modern presidential impeachment trial.

Here is the column:

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Trump Orders Defense Department To Publicly Confirm Assassination Of Iranian General

In a break from long-standing intelligence practices, President Donald Trump ordered the Defense Department to confirm that the United States was behind the missile strike that killed Qassem Soleimani, the commander of Iran’s secretive Quds Force, and six others, including Iraqi militia commander Abu Mahdi al-Muhandis. The public acknowledgement of responsibility is a game changer. While Iran (like most of us) assumed it was the United States, the public confirmation of the assassination removes any doubt and forces Iran and Iraq to deal with a direct and official attack. International law treats the targeted killing of a ranking military figure on foreign sovereign soil as a presumptive act of war. As always however there is no shortage of hypocrisy in the condemnations from Capitol Hill.

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Pelosi’s Half Right Constitutional Claim Leaves The House All Wrong

Below is my column in The Hill newspaper on the position of Harvard Law Professor Laurence Tribe that the blocking the submission of the impeachment to the Senate by Speaker Nancy Pelosi is both constitutional and commendable. He is half right but the House is entirely wrong in its gaming of the system in this fashion.

Here is the column:

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Rep. Green Tells MSNBC That The “Genesis” For Trump’s Impeachment Began Before He Was Elected

Rep. Al Green (D, Tex.) has remained the most quoted Democratic member . . . . by Republicans. Green has given Republicans quotable gems to show a long-standing and unending effort to impeach Trump from his very first day in office. His most popular GOP talking point is “I’m concerned that if we don’t impeach this president, he will get reelected.” However, Green has also said recently that the House may continue to impeach Trump and has called for an array of clearly illegitimate articles of impeachment. Now, Green has given Republicans a quote to reinforce its narrative by declaring that the “genesis” of the impeachment began before Donald Trump was even elected. That is likely to be added to the top Green quotes for the upcoming Senate trial.

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