Category: Constitutional Law

OLC Declares Whitaker Appointment As Constitutional

Matthew_G._Whitaker_official_photoThe Justice Department’s Office of Legal Counsel is issued an opinion that states that the appointment of  Matthew G. Whitaker as acting attorney general is in fact constitutional.  I previously wrote that I believe that the federal Vacancies Reform Act does allow for the appointment. However, I have long viewed the Act itself as constitutionally questionable in its provision for a non-confirmed individual taking over an agency.  Moreover, I recently wrote how this move could present a novel way to undermine the position of Special Counsel Robert Mueller.  One fact revealed in the OLC memo is that, despite media suggestions that Whitaker was an impulsive move by President Trump, there was a request for review of legality of a Whitaker appointment before Sessions was pushed to resign. Continue reading “OLC Declares Whitaker Appointment As Constitutional”

CNN Files Challenge To Suspension Of Acosta’s Press Access

A couple of days ago, we discussed the prospect of CNN suing the Trump Administration over the suspension of CNN’s Jim Acosta’s press credentials after a flair up in a former press conference with President Donald Trump and the refusal of Acosta to surrender the microphone.  CNN has now filed its  lawsuit and it is basically the claims that we anticipated with one addition: a claim that the move violated the Administrative Procedure Act.  As I have said from the outset, I strongly oppose the move by the White House, even though I feel that Acosta went too far in the press conference.  However, I still remain a bit more cautious than many commentators on what is being described as a slam dunk of a case. Continue reading “CNN Files Challenge To Suspension Of Acosta’s Press Access”

Turley To Speak On Thursday At National Press Club On Presidential Removal Under The 25th Amendment

pj_site_2I have the pleasure of speaking at the National Press Club on Thursday about the use of the 25th Amendment to remove an American President.  In light of my debate on Monday in Dallas on the standard of impeachment with CNN’s Jeff Toobin, there certainly does seem a theme, or at least a focus, in these events after the midterm elections.  Organized as a a National Press Club Headliners event featured an impressive array of panelists.  The event is entitled “Presidential Jeopardy: Impeachment, Indictment and the 25th Amendment” and will be held on Thursday, November 15, 2018, 10:00-11:00 a.m. at the Bloomberg Room of The National Press Club, 529 14th Street, NW, 13th Floor Continue reading “Turley To Speak On Thursday At National Press Club On Presidential Removal Under The 25th Amendment”

The Prestige: How Trump Could Pull Off The Ultimate Trick in Shutting Down The Mueller Investigation

Below is my column in The Hill newspaper on a novel way that President Donald Trump could use the Whitaker appointment to achieve what he has long sought: freezing or even ending the Mueller investigation.  As strange as it may seem, it could actually work if played correctly by the White House.  The White House could theoretically get a court to enjoin the Mueller investigation and keep Mueller frozen in amber until Trump’s final year when impeachment would practically impossible.

Here is the column: Continue reading “The Prestige: How Trump Could Pull Off The Ultimate Trick in Shutting Down The Mueller Investigation”

Stooge or Savior? Whitaker’s Actions Will Define Him And His Office

Matthew_G._Whitaker_official_photoBelow is my column in The Hill newspaper on the selection of Matthew Whitaker as Acting Attorney General. While I believe that Whitaker meets the criteria under the Federal Vacancies Reform Act, I have great reservations about that Act’s constitutionality in allowing unconfirmed individuals to serve in this position, as discussed in my prior column.  However, I do not believe that prior commentary as an attorney requires recusal under Justice Department rules.  Whitaker is about to establish a legacy as either a political stooge or principled lawyer.

Here is the column: Continue reading “Stooge or Savior? Whitaker’s Actions Will Define Him And His Office”

CNN Reportedly Considering Lawsuit Over Acosta Access

200px-Cnn.svgI have previously criticized the White House for suspending the access of CNN Chief White House Correspondent Jim Acosta.  While I believe that Acosta was wrong in refusing to yield the mike at a former press conference, the White House should restore his access.  That, however, does not mean that the suspension would be viewed as an actionable legal case.  CNN is reportedly considering such a lawsuit and Floyd Abrams, a constitutional law expert, is quoted as saying that CNN would have a “really strong lawsuit” against the White House.  I am not so confident despite my agreement with CNN on the merits of the action.  My concern is how a court would craft the standard for such review in having a right to a press pass.  Moreover, whatever due process claim can be raised, the burden is likely to be modest. Continue reading “CNN Reportedly Considering Lawsuit Over Acosta Access”

Turley To Debate Toobin On Impeachment in Dallas On Monday

maxresdefaultturley-captureThe National Constitution Center and the Old Parkland Debate Series has announced that a debate will be held on November 12th between George Washington Professor Jonathan Turley and CNN senior legal analyst Jeffrey Toobin on impeachment.  The debate will occur a week after the 2018 midterm elections and many have called for the impeachment of both President Donald Trump and Judge Brett Kavanaugh following a Democratic takeover of the United States House of Representatives.  The debate question is: Resolved, the framers designed impeachment as a political, rather than a legal process.  Toobin will argue that the Framers intended impeachment to be a political judgment while Turley will argue that the Framers intended more of a legal judgment. Turley was the last lead counsel in an impeachment trial in the Senate and Toobin previously worked for Independent Counsel Lawrence E. Walsh.

Continue reading “Turley To Debate Toobin On Impeachment in Dallas On Monday”

Is The Whitaker Appointment (and the Federal Vacancies Reform Act) Constitutional?

Yesterday, I addressed arguments that the appointment of Matt Whitaker as Acting Attorney General violates federal law.  The arguments based on the Federal Vacancies Reform Act, in my view, are unpersuasive. As I noted, however, there remains a different and more fundamental question of whether the Act itself is unconstitutional by allowing an official without Senate confirmation to assume, even temporarily, the office of a “principal officer.”  If standing can be found to challenge the Act on that basis, the constitutional  arguments are compelling.  The constitutional question could be difficult to litigate if a nomination is made in January.  However, these constitutional concerns again raise the logic of firing Jeff Sessions immediately after the election as opposed to having him serve until the confirmation of his successor. Nevertheless, this is an issue that is somewhat untested in the courts and challengers would need to establish standing as well as raise a “ripe” issue to argue that Whitaker is lawful under the Act but the Act is unconstitutional under Article II.

Continue reading “Is The Whitaker Appointment (and the Federal Vacancies Reform Act) Constitutional?”

Mosques Demand Twitter Bar Any Tweets By Geert Wilders

Freedom_of_SpeechSome 144 Turkish mosques in the Netherlands are demanding that Twitter bar any tweets from conservative politician Geert Wilders due to what they alleged are hateful and disparaging comments.  As many on this blog know, I hold to a robust view of free speech protections.  I tend to oppose censorship through both governmental and private means.  This is no exception. It has nothing to do with Wilders’ views.  I remain committed to the view that the best way of dealing with bad speech is good speech — not the censorship or criminalization of case. Continue reading “Mosques Demand Twitter Bar Any Tweets By Geert Wilders”

“The Great Satan”: Farrakhan Finds His Happy Place . . . In Tehran

While many Americans are calling for greater unity in the country, anti-Semite Louis Farrakhan is in Tehran spewing his usual hateful message including reportedly leading a chant of “Death to America” and calling America the “Great Satan.” Despite the reprehensible comments in support of a nation that spreads terrorism and oppresses its own people, I still believe that it is protected speech despite the existence of the Logan Act, which makes it illegal for citizens to intervene in disputes or controversies between the United States and foreign governments.  That Act is widely viewed as unconstitutional and has never been used to convict a single U.S. citizen since it was enacted in 1799. Continue reading ““The Great Satan”: Farrakhan Finds His Happy Place . . . In Tehran”

FSU Student Charged With Battery In Confrontation With Campus Conservatives

Unknown-7Florida_State_University_seal.svgWe have seen an increase in physical assaults on campuses in the last few years as some students and professors seek to harass or silence those with opposing views.  The latest example comes with the criminal battery charge filed against FSU student Shelby Anne Shoup.  She was captured on videotape as they threw chocolate milk on conservative students and kicked over a sign for Ron DeSantis.  Notably, it was the FSU police who made the arrest.  Notably, we also discussed a poll today showing that one out of three college students believe that violence is justified to stop what they consider to be hate speech.  The incident raises a tough question whether such an offense warrants a criminal charge, though it is possible for a court to allow an expungement for some types of misdemeanors in the case of first offenders.

Continue reading “FSU Student Charged With Battery In Confrontation With Campus Conservatives”

Nigerian Army Shows Video Of Trump Suggesting That Soldiers Should Shoot Rock Throwers To Defend An Alleged Massacre

Many of us were critical of President Donald Trump’s statement that he told U.S. soldiers to shoot migrants who throw stones.  It took little time for authoritarian figures to latch on to the statement.  Nigeria’s army played the video of Trump to justify its shooting of protesters resulting in as many as 49 deaths. In the meantime, National Security adviser John Bolton gave a speech in which he praised Jair Bolsonaro, Brazil’s new president, as a “like-minded” leader.  The incident is reminiscent of Trump’s praise for Philippine President Rodrigo Duterte who is an international pariah for his orders to police to murder drug suspects and his bragging about his own killings.  Bolsonaro is a notorious figure who is a demonstrated racist, sexist, and homophobe who praises military dictatorship as well as torture. He also said that he would prefer his son be dead then gay.

Continue reading “Nigerian Army Shows Video Of Trump Suggesting That Soldiers Should Shoot Rock Throwers To Defend An Alleged Massacre”

After 150 Years, Courts Should Clearly and Finally Define The Question Of Birthright Citizenship

As we have discussed over the last couple days, President Donald Trump’s pledge to end birthright citizenship by an executive order has caused a firestorm.  Where President Donald Trump is wrong is to claim the ability to end birthright citizenship for undocumented individuals through an executive order.  The column below in USA Today explains that Trump would lose under two out of three interpretations of the 14th Amendment.  Even if he prevailed on the one possible interpretation, I remain opposed (as I was under President Barack Obama) to unilaterally ordered such major changes through executive orders.   Putting aside the means, I have been surprised by the many statements that the meaning of the 14th Amendment as it relates to illegal or undocumented is absolutely unclear and unassailable.  In fact, while birthright citizenship is unassailable, the scope of the amendment has long been questioned including both Democratic and Republican members long proposing legislative limits (including former Sen. Harry Reid).  An argument can be made for a more limited meaning, even though the plain meaning of the Amendment (and the interpretation that I would tend to favor) would militate toward the broader meaning.  Regardless, a clear and final ruling on the 14th Amendment should be welcomed — confirming whether this is a matter for legislative reform or constitutional amendment.  Trump should drop the executive order approach so the focus of any judicial review is on the meaning of the 14th amendment and not the means used by the President.

Here is the column: Continue reading “After 150 Years, Courts Should Clearly and Finally Define The Question Of Birthright Citizenship”

Interpreting the Fourteenth Amendment: The Long and Convoluted Record on Birthright Citizenship

As with so many constitutional and political disputes, the renewed controversy over the 14th Amendment has both sides claiming degrees of clarity and certainty that belied by a long and convoluted historical record.  I have written and spoken this week about the arguments on both sides of this issue — a debate that has raged for 150 years. Frankly, I believe a court ruling would be welcomed to bring clarity and closure to the issue.  The plain meaning of the 14th Amendment supports unlimited birthright citizenship and that is likely where the courts would come out on the issue. Nevertheless, from the time of ratification, there has been a debate over that interpretation with many Democratic and Republican members arguing for decades that the matter is left to Congress.  For decades, many have held to the belief that either the14th Amendment leaves the matter to Congress or limits the right to birthright citizenship. Continue reading “Interpreting the Fourteenth Amendment: The Long and Convoluted Record on Birthright Citizenship”

The Pandora Moment: Both Democratic and Republican Leaders Call For Investigations Over Perjury Linked To Kavanaugh Confirmation

Below is my column in The Hill newspaper on the increasing calls on both the Democratic and Republican sides for perjury investigation stemming from the Kavanaugh hearings.  If both parties eagerly open the perjury box, they could find Pandora’s box looks tame by comparison.  (For purposes of full disclosure, Michael Avenatti is a former student of mine from George Washington University Law School).

Here is the column: Continue reading “The Pandora Moment: Both Democratic and Republican Leaders Call For Investigations Over Perjury Linked To Kavanaugh Confirmation”

Res ipsa loquitur – The thing itself speaks