Category: Constitutional Law

Are The Democrats Building A Collapsible Impeachment?

As the impeachment of Donald Trump unfolds, it is inevitable that comparisons are drawn to the Johnson, Nixon, and Clinton impeachments. This column in The Hill discusses the most notable distinction: the narrowness of case for impeachment. While Trump has long been portrayed as a type of perpetual criminal motion machine and many have claimed that an array of crimes are proven from the Russian investigation, none of the crimes discussed over the last three years will apparently be included in this impeachment. The question is why. Democratic members insisted after the Mueller hearings that the impeachable acts were now laid bear on the record. If such violations are so obvious and proven, it is unclear why the Democrats are insisting on proceeding on such a narrow basis — a decision that greatly reduces the chances of success in the Senate.

Here is the column:

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Trump Appeals Tax Case To Supreme Court

We previously discussed the line of negative rulings in President Donald Trump’s effort to withhold his tax records from New York prosecutors. The Trump legal team has made, in my view, untenured and unsupportable constitutional claims of immunity. President Trump claims that “the District Attorney’s issuance of criminal process demanding the President’s records violates the immunity that he holds under Article II and the Supremacy Clause of the Constitution.” That would create an unstated, sweeping immunity under the Constitution — an immunity never suggested, let alone stated, by the Framers. Now, like a bad gambler at Vegas, the team is doubling down again with an appeal to the Supreme Court. This is an example of a bad case making bad law for the presidency.

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Schiff Raises Bribery As A Possible Impeachable Offense

House Intelligence Committee Chairman Adam Schiff, D-Calif., has caused a stir in suddenly injecting the possible use of bribery as a basis for the impeachment of President Donald Trump. Converting the Ukrainian controversy into a bribery theory is both constitutionally and historically unsound. It would undermine the credibility of the impeachment effort by struggling to reshape the facts into a more compelling criminal image. Impeachment cannot be an exercise in creative reconstruction. It is not license for imaginative or untested theories of criminality. The House needs to establish a clear and credible theory of impeachable conduct based on well-established definitions. Ironically, I testified on this issue in the Clinton impeachment hearings but last had this argument (over broadening such definitions for purposes of impeachment) with my opposing counsel in the last impeachment trial: Adam Schiff.

Note: I will be doing commentary today with CBS and BBC on the impeachment hearings.

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Is Pelosi Saving Trump By Shaping Impeachment To Fail In The Senate?

Below is my column in The Hill newspaper on the curious profile of the emerging impeachment against President Donald Trump. Notably, while Democratic members have been saying for three years that there are established crimes and impeachable offenses found by Special Counsel Robert Mueller, reports indicate that none of those allegations will be the basis for impeachment. Instead, Democratic members are saying that they want to limit impeachment to the Ukrainian controversy. Not only that, but they want to hold just a couple weeks of public hearings and vote an impeachment vote. If so, this would be the most narrow and least developed impeachment of a president in our history.

Here is the column:

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No, The U.S. Does Not Need European-Style Hate Speech Laws

Below is my column in USA Today on the latest calls for limiting free speech and imposing censorship on political speech. Last week, we discussed the refusal of students to allow former Attorney General Jeff Sessions to speak at Northwestern University and a New Yorker writer calling for the curtailment of free speech. These attacks are coming largely from the left where speech criminalization and censorship has become an article of faith for activists and some Democratic members.

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Report: Barr Refused To Hold Press Conference Exonerating Trump Of Ukraine-Related Crimes

The New York Times and other papers are reporting that Attorney General William Barr refused a request from President Donald Trump to hold a news conference to declare that Trump did not violate any laws in his telephone call with Ukraine’s president. I have known Barr for years and I am not surprised by the report. If such a call to Barr was made, it was inappropriate and shows that the President is still acting incautiously and impetuously in managing these scandals. With various investigations going forward on the Ukrainian matter, it would have been deeply troubling for Barr to make such a statement. While no crime has been identified, there could be potential criminal conduct related to the call as well as questions of the abuse of power. Trump has denied the report.

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No Free Speech For “Overtly Racist Old White Dudes”: Northwestern Protesters Force The Cancelation of Jeff Sessions Event

I have previously written about the curtailment of free speech and the refusal of both faculty and students to allow opposing views to be heard on campuses. Northwestern University (one of my alma maters) has been particularly complicit in this trend against free speech. Now, protesters have blocked students and faculty from hearing remarks (and have a dialogue with) former U.S. Attorney General Jeff Sessions. The incident at Northwestern follows a growing list of such conservative speakers barred from being heard by protesters.

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Zuckerberg “Should Pay A Price”: Clinton Denounces Facebook For Refusing To Censor Political Ads

I recently published a column on the effort by Democrats to get Facebook and other companies to implement a system of censorship of political ads, which would be entirely unconstitutional if carried out by the government. Now, Hillary Clinton has declared that Mark Zuckerberg “should pay a price” for the damage that he is doing to democracy. It is a curious argument since, according to Clinton, Zuckerberg is apparently harming democracy by not curtailing free speech by censoring political speech. I have previously criticized President Donald Trump for his own anti-free speech and anti-free press rhetoric.

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“It’s Okay To Be White”: Oklahoma Law School At The Center Of New Hate Crime Controversy

The Oklahoma City University School of Law is the focus of the latest controversy over campus speech deemed hateful. Fliers were put up around school that read “it is okay to be white.” The police were called to investigate the potential hate crime and Law school Dean Jim Roth declared that such hatred and exclusion “will not be tolerated.” The controversy however reignites concerns in the free speech community over the use of hate crime laws as a surrogate for hate speech laws. Hate speech remains protected under the First Amendment despite recent calls for the adoption of European-style hate speech laws by various Democratic leaders and figures. Indeed, that is the subject of my most recent USA Today column this week.

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If Trump is Guilty Of Bribery, The Democrats Are Guilty Of Solicitation

Below is my column on the latest alleged crime by President Donald Trump: “Felony bribery.” The allegation shows not only a fundamental misunderstanding of legal standards but a fundamental failure in legal analysis.

Here is the column:

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Painter: Trump Cannot Do Fundraisers For Senators Without Committing “Felony Bribery”

I have previously disagreed with the overextended and unsupported claims of critics on allegedly clear criminal violations by President Donald Trump, including past statements by Richard Painter, who served as the chief White House ethics lawyer for George W. Bush and is a professor at the University of Minnesota Law School. I am no fan of President Trump and have repeatedly criticized him for his language and actions in office. However, legal analysis continues to erode as analysts assure viewers that well-established crimes have been committed. The latest such example by Painter is that Trump continues to fundraise for Senators, a common practice of all presidents in election years. Painter insists that any such fundraising can constitute “felony bribery” since these senators will likely sit in judgment in any impeachment trial.

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Toronto Public Library Under Fire For Defending Free Speech

A Canadian library has become the latest flash point over free speech as hundreds of protesters tried to prevent others from hearing the views of a feminist writer who has been critical of transsexual laws guaranteeing equal access to bathrooms and other spaces. To its credit, Toronto Public Library held firm in favor of free speech and refused to be bullied into cancelling the event. Nevertheless, police had to escort the audience out the back to avoid threats from protesters who objected to event featuring Meghan Murphy. It is a disheartening scene in a city with a seal professing “Diversity our strength.” Apparently, diversity of ideas is not one of those strengthens according to the Mayor and city council.

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“Places himself . . . outside of Church teaching”: Biden Denied Communion In South Carolina

Rough patch for Joe Biden. For a month, Biden has had to deal with continued gaffes, Hunter Biden’s dubious dealings with corrupt Ukrainians, and a distinct lack of enthusiasm among Democratic voters. Now he has been declared persona non grata by his church. On Sunday, Father Robert E. Morey of Saint Anthony Catholic Church refused communion to Biden over his stance on abortion. He declared that his support for abortion “places himself . . . outside of Church teaching.” With all due respect to Father Morey, I feel that he was wrong to deny Holy Communion. As someone raised Catholic and attended Catholic schools, I do not see why Biden’s political stance puts him outside of the sacraments. Biden has long said that he personally opposed abortion but that he believes every person should have the right to decide that question for herself. Unless that stance has changed, I fail to see why Biden should be turned away in this fashion at the altar.

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From Blacklisting To Red Baiting, McCarthyism Is Back In Vogue

Below is a slightly expanded version of my column in the Washington Post on increasingly McCarthyite conduct evident in this election. I am particularly interested in the new trend toward boycotting other states that do not share your “values” in a given area.

Here is the column:

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The New Censors: The Call For Banning Political Lies Threatens Free Speech

Below is my column on the call by Democratic members for censorship of political ads by Facebook. The overwhelming support for the call by members like Representative Alexandria Ocasio Cortez shows the erosion in our values of free speech. Democrats and the media were once the defenders of free speech and critics of censorship. They are now demanding that corporations police political ads and remove ads viewed as false or misleading. It is a standard that many of these members would quickly denounce if applied to some of their own past comments.

Here is the column:

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