Category: Constitutional Law

Witch Hunt or Mole Hunt? The Times Bombshell Could Blow Up Both Sides

Below is my column in The Hill newspaper on the recent disclosure that the FBI opened an investigation into whether President Donald Trump was working for Russia after his firing of former FBI Director James Comey. In reading the story, it struck me that the emerging picture from early 2017 looks increasingly like a study in cognitive bias. Indeed, it raises a rather intriguing possibility that both sides may feed each other in reaching the wrong conclusions.

Here is the column:

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Saudi Teenager Continues Standoff In Thailand In Seeking Asylum

There remains confusion in Thailand over the fate of Rahaf Mohammed al-Qunun, 18, who is seeking asylum after renouncing Islam and refusing to be treated as chattel under the medieval laws of Saudi Arabia. We have previously discussed the sexist and repressive laws imposed on women in the Kingdom, making adult women effective wards of male family members, including younger siblings or family members. Since the Saudis kill people for apostasy, the fear of this young woman is real and immediate. She is deserving of asylum and the United States should show that it truly believes in women’s rights and step forward to give her protection against our Saudi allies.

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Police Search For Rapist After Woman in Vegetative State For Ten Years Gives Birth In Arizona Facility

Regulars on this blog are familiar with the doctrine of res ipsa loquitur (or “the thing speaks for itself”). One twisted case near Phoenix, Arizona would certainly seem to fit that definition after a patient in a vegetative state gave birth. AZ Family reported that he victim is a member of the San Carlos Apache Tribe who nearly drowned 10 years ago. Police or the company may seek DNA samples from all male employees at Hacienda HealthCare. In this case, a positive match would by definition confirm rape given the non-consensual context.

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Yes, Trump Has The Authority To Declare A National Emergency On The Southern Border

Below is my column in The Hill newspaper on the threat of President Donald Trump that, should the Democrats refuse to fund the wall, he is preparing to declare a national emergency to build it unilaterally. As I discuss below, I believe that such a declaration should be opposed by Congress in defense of its inherent constitutional function over the federal purse. I do not see the compelling basis to declare an emergency given the available data on illegal crossings on the Southern border. However, I disagree with those who have argued that such a declaration would be unconstitutional.

Here is the column:

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Trump Goes “Medieval”: Both Sides Deepen Divide Over Wall

In his signature fashion, President Donald Trump on Wednesday embraced the criticism of the Democrats and said that his wall is “medieval” but works. Last night, the public saw both the President and the Democrats announce that they will not yield an inch as the country continues what will soon become the longest government shutdown in history. Lingering in the background is the threat of a presidential declaration of emergency — followed by a unilateral order to start to build the wall with unobligated funds. If so, the White House needs to guarantee that it will not repeat the grossly negligent performance of its first travel ban roll out. Trump reportedly stormed out of a meeting with Democrats in the afternoon.

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NAACP Declares Portland Earthquake Warnings To Be Racist

There is a bizarre controversy in Portland, Oregon after the city began to put up notices on buildings that it deemed unsafe for possible earthquakes. The city is trying to prepare for “the big one” — a massive earthquake that is now overdue. It is identifying older buildings susceptible to collapse with public signs. However, it is facing a challenge from the NAACP of Portland which has declared the signs to be the embodiment of “white supremacy” and racism. There is also a challenge for building owners.

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New Democratic Member: “We Gonna . . . Impeach The Mother**ker”


After fueling impeachment calls in the election, some Democratic leaders are trying to tamp down on the issue despite the filing of impeachment articles on the first day of the session. The leaders could now have a serious problem in controlling dozens of members who secured their fees in part on impeachment pledges. That was obvious this week when newly elected Rep. Rashida Tlaib (D-MI) proclaimed the intention to “impeach the motherf**ker” at a reception for the liberal group MoveOn. The statement obviously delighted the crowd but undermined the credibility of the new Democratic majority in seriously examining the basis for impeachment. In a measure of the distemper that has taken over our politics, Tlaib has refused to apologize.

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No, Pelosi Is Not The Constitutional Equal To The President

Shortly before becoming House Speaker, Nancy Pelosi (D., Calif.) made an interesting statement in an interview with the New York Times that the Constitution makes her to be President Donald Trump’s equal. While President Donald Trump is criticized for misconstruing his inherent powers (often for good reason), Pelosi also appears to need a basic constitutional primer on the office.

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Swedish “Man Free” Concert Declared Discriminatory

We previously discussed the “man free” concert held in Sweden and how the concert (heralded by feminists) was a raw exercise of gender discrimination. It was a telling moment since these same advocates would be appalled by barring women from concerts or venues. Now Sweden’s Discrimination Ombudsman has declared the concern blatant discrimination. The response of feminist leaders is interesting. Rather than recognize the hypocrisy of fighting discrimination by others but not themselves, leaders denounced the ruling and ridiculed men as feeling threatened.

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Did The Supreme Court Just Rule For The First Time On A Mueller Matter?

It is called In re Grand Jury Subpoena No. 18-3071 and it just might be the first ruling on an issue in the investigation of Special Counsel Robert Mueller by the Supreme Court. The U.S. Court of Appeals for the D.C. Circuit recently ruled on the matter under seal involving a corporation presumably owned by a foreign government. The corporation lost in its bid to quash the subpoena under the protections of the Foreign Sovereign Immunities Act. The D.C. Circuit imposed a daily fine, which was enjoined by Chief Justice John Roberts on Sunday night. While not a ruling on the merit, it could be a historical moment as the first Mueller matter to make it to the Court.

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The Barr Memo: Why Reasoned Discourse Should Not Be A Bar To Confirmation

Below is my column in on the Barr memorandum that has garnered so much attention. As I noted, I do not agree with the ultimate conclusion of the research that the obstruction provision could not be the foundation for a subpoena to require President Donald Trump to answer questions. However, the memo is a well-reasoned and thoughtful treatment of the issue. Moreover, I agree with Barr (as I have stated since 2017) that critics were stretching obstruction provisions to the breaking point in their blind effort to turn every act into a crime. Indeed, while I do not necessary view the memo as a strong case against obstruction, it is part of a strong case for confirmation.

Here is the column:

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The Curious Tale Of The Flynn Sentencing Hearing

Below is a column on the Flynn’s sentencing hearing and the curious turn of events in the case. He is now scheduled for a new sentencing hearing in March 2019. Interestingly, while I have repeatedly stated in print and television that Flynn does not deserve sympathy, I have been widely quoted as saying that I have called for such sympathy. My point is simply that there are serious concerns raised by how this interview was handled, including the intentional effort to have Flynn interviewed without counsel. Moreover, it is possible to denounce such false statements without exaggerating the specific crime itself. It is still unclear why Flynn lied when the conversation of such sanctions was not strange or improper. Indeed, the Administration publicly was saying that it wanted a new start with Russia and would reexamine all aspects of the relationship. The hearing however quickly went off the rails. I have a great deal of respect for Judge Emmet Sullivan and have appeared before him on countless occasions. But this hearing took a radical departure from the record and the specific crime being addressed in sentencing.

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