Category: Constitutional Law

The Oath Keepers: What the Indictment Says and Does Not Say About the January 6 Riot

The indictment of eleven individuals associated with the “Oath Keepers” produced an immediate deluge of the postings that an insurrection had finally been established on the January 6th attack at the Capitol. The charges do not establish an insurrection. It does reveal how extremist groups show the protest as an opportunity and hoped that it might trigger greater unrest. However, the indictment does not offer the long-sought proof of an insurrection to fulfill the narrative of many commentators and politicians. While I would not be surprised by additional charges against other co-conspirators and more details could emerge, the indictment does not support the prior allegations of a coordination or collusion with the Trump campaign. Here is a first take on what the indictment says and does not say.

Continue reading “The Oath Keepers: What the Indictment Says and Does Not Say About the January 6 Riot”

Produce over Politics: Whole Foods Fights for Right to Bar Political Advocacy in Workplace

Below is my column in The Hill on the NLRB complaint against Whole Foods to force the company to allow workers to wear Black Lives Matter masks. The decision could have sweeping implications for business with uniform policies or bans on political advocacy in the workplace.

Here is the column: Continue reading “Produce over Politics: Whole Foods Fights for Right to Bar Political Advocacy in Workplace”

Democracy, Autocracy . . . or Hypocrisy? Biden Calls for Changing the Filibuster Rule

According to the Associated Press, President Joe Biden today will support changing the filibuster rule for voting rights legislation — a move widely viewed as effectively killing the rule. The report says that Biden will portray the choice starkly as one between democracy and autocracy. The AP, however, does not reference the third option of hypocrisy by failing to note that Biden vehemently opposed such moves for decades. He previously denounced killing the rule as “disastrous” for our democracy but now will declare the rule itself to be an existential threat to democracy. It is the latest example of President Biden’s embrace of “whatever it takes politics.Continue reading “Democracy, Autocracy . . . or Hypocrisy? Biden Calls for Changing the Filibuster Rule”

The Vaccine Mandate: The Supreme Court Considers a Trip To “Major-Questions-Land”

Below is my column in the Hill on the vaccine mandate cases before the Supreme Court. Businesses and groups are still waiting to see if the Supreme Court will issue an injunction in the OSHA case. The mandate goes into effect today. The issue is not what the decision should be on mandates but who gets to make that decision. That question takes some justices to a place that they would prefer not to go …”Major-question-land.”

Here is the column: Continue reading “The Vaccine Mandate: The Supreme Court Considers a Trip To “Major-Questions-Land””

Democratic Governor Calls For Criminalizing “Lying” About Election Results

For years, I have lamented how the Democratic party has embraced censorship and the criminalization of speech. I come from a liberal Democratic family in Chicago and the Democratic Party once championed free speech as the defining value of the party. Democratic politicians now lead calls for censorship to silence their opponents and corporate regulations to protect citizens from dangerous choices in reading material. The same concerns were raised this week after Washington Gov. Jay Inslee called for the criminalization of “lies” about election results. Inslee wants to convict people who raise election challenges or allegations. Such a law would threaten political speech and create a chilling effect for those who want to raise such concerns in contested elections.

 

Continue reading “Democratic Governor Calls For Criminalizing “Lying” About Election Results”

“Preserve the Narrative”: The Public Rejects the “Insurrection” Claim in New Polling

In the day long events commemorating January 6th, Speaker Nancy Pelosi made a telling statement to her fellow members and the public at large. Pelosi declared “It is essential that we preserve the narrative of January 6th.” Part of that narrative is that this was not a riot but an “insurrection,” an actual “rebellion” against our country. Pelosi’s concern over the viability of that narrative is well-based as shown by a recent CBS News poll. The majority of the public does not believe that this was an “insurrection” despite the mantra-like repetition of members of Congress and the media. The public saw that terrible day unfold a year ago and saw it for what it was: a protest that became a riot. (For full disclosure, I previously worked as a legal analyst for CBS News). Continue reading ““Preserve the Narrative”: The Public Rejects the “Insurrection” Claim in New Polling”

What Ever Happened to the Prosecution of Donald Trump for Incitement?

This is the one year anniversary of the disgraceful rioting in the Capitol building. The scenes of that day are seared in the memory of many of us. I publicly condemned Trump’s speech while it was being given and I called for a bipartisan vote of censure over his responsibility in the riots. However, I have long maintained that there was no evidence to support a criminal charge against Trump for incitement. Yet, a year ago, various legal experts declared that Trump should be charged based on his speech and his delay in calling for protesters to leave Capitol Hill. District of Columbia Attorney General Karl Racine announced that he was considering arresting Trump, Donald Trump Jr., Rudy Giuliani and U.S. Rep. Mo Brooks and charging him with incitement.  So, a year later, what ever happened to the prosecution of Donald Trump?

Continue reading “What Ever Happened to the Prosecution of Donald Trump for Incitement?”

Destroying a Democracy to Save it: Democrats Call for the Disqualification of Dozens of Republican Members

Below is my column in The Hill on the continued calls to disqualify Republican members of Congress to prevent them from running for reelection. What is maddening is that Democratic groups and commentators are seeking to remove as many as 120 Republicans from the ballots in the name of democracy. It is like burning books in the name of literacy. Yet, on this anniversary of the January 6th riot, members of Congress and Democratic groups want to block voters from reelecting their preferred representatives. Like villages in Vietnam, it appears that some members and activists believe that you have to destroy democracy to save it from itself.

Here is the column:

Continue reading “Destroying a Democracy to Save it: Democrats Call for the Disqualification of Dozens of Republican Members”

Could the Maxwell Conviction Be Thrown Out Over Juror Misconduct?

Ghislaine Maxwell’s conviction has been widely celebrated as bringing some justice to the victims of Jeffrey Epstein. However, that moment may prove fleeting in light of a startling disclosure made by one of the jurors to Reuters this week. A juror identified only by his first two names (“Scotty David”) admitted that he was able to sway fellow jurors by discussing his own experience with abuse. It is not clear if he disclosed that prior abuse on the juror questionnaire as part of the voir dire process. The disclosure could give Maxwell a strong argument for reversal if the prior abuse was not revealed and was then used in the jury room to pursue the jury after it deadlocked in its proceedings. Update: Both defense counsel and the government are now calling for a formal inquiry into the allegations on this juror.

Continue reading “Could the Maxwell Conviction Be Thrown Out Over Juror Misconduct?”

Tick, Tick, Tick…: The Supreme Court Readies an Explosive Docket for 2022

Below is my column in the Hill on upcoming year for the Supreme Court. The Court’s docket is likely to put the institution at ground zero of a heated election year. Major decisions on abortion and gun rights are expected by June 2022. Even with Chief Justice John Roberts denouncing attempts at “inappropriate political influence” on the Court, the threats of Court packing and other measures are likely to become even more shrill as these decisions rollout in the new year.

Here is the column: Continue reading “Tick, Tick, Tick…: The Supreme Court Readies an Explosive Docket for 2022”

New York Announces That Scarce Covid-19 Treatments Will Be Prioritized For Non-White Patients

New York may have triggered a new constitutional challenge with its policy to prioritize non-white people in the distribution of certain COVID-19 treatments. There are growing shortages due to a failure of the Biden Administration to anticipate the demand for monoclonal antibody treatment and antiviral pills as well as testing kits. New York’s Department of Health has responded to this shortage with a policy that will make race one of the prioritizing factors in distributing available resources. The policy, in my view, raises serious constitutional concerns over racial preferences in the supply of potentially life-saving treatments. Continue reading “New York Announces That Scarce Covid-19 Treatments Will Be Prioritized For Non-White Patients”

“Inappropriate Political Influence”: Chief Justice John Roberts Responds to Threats Against the Court

Chief Justice John Roberts used his year-end report on New Year’s Eve to denounce the threats being made against the Court and its members by Democratic politicians and groups, including threats to pack the Court to force an immediate liberal majority. Roberts referred to such threats as efforts to exercise “inappropriate political influence” on the Court in contravention of our constitutional values and traditions. Continue reading ““Inappropriate Political Influence”: Chief Justice John Roberts Responds to Threats Against the Court”

Is the “Workaround” Working? Federal Judge Enjoins Another Biden Mandate in Texas

The Supreme Court is preparing for arguments on January 7th in three cases looking at the legality of the vaccine mandate issued by the Occupational Safety and Health Administration (OSHA). Courts have split on what White House Chief of Staff Ron Klain admits was a “workaround” of the limits on the President’s authority. Lower courts, however, are still adding potential mandate cases for expedited consideration. On New Year’s Eve, Judge James “Wesley” Hendrix of the U.S. District Court Northern District of Texas enjoined the mandate issued under the Head Start programs by the Biden administration. The opinion follows the same general analysis as many of the prior cases in finding that this “workaround” will not work. Continue reading “Is the “Workaround” Working? Federal Judge Enjoins Another Biden Mandate in Texas”

New York Considers Legislation to Curtail Free Speech in the Name of Democracy

The great civil libertarian Justice Louis Brandeis once warned that “the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” New York State Democrat Senator Brad Holyman is one of those “men of zeal.” With the approaching anniversary of the Jan. 6th riots, he has proposed a new law that would legislate an even greater level of censorship to prevent the “social media amplification” of views that are deemed harmful or “disinformation.”  It is only the latest example of our “whatever it takes” politics.

Continue reading “New York Considers Legislation to Curtail Free Speech in the Name of Democracy”