There has been a chorus of commentators saying that the invocation of the Fifth Amendment by former national security advisor Michael Flynn leaves only immunity as the unlikely option for Congress. This was stated repeatedly on CNN last night. (I was supposed to go on Anderson Cooper and I was going to correct that view but the terrible massacre in England obviously took priority in coverage). The fact is that there is an obvious option: move to hold Flynn in contempt. The case law is not a clear cut as commentators have suggested on the “act of production doctrine.” Moreover, Congress has an institutional interest in pushing back on such invocations if it does not view the production as testimonial.
This morning’s news is again filled with a new and troubling disclosure out of the Trump White House. Various news organizations are reporting that President Donald Trump spoke to Director of National Intelligence Dan Coats and National Security Agency Director Adm. Michael Rogers about the Russian investigation and asked them to publicly deny evidence of cooperation between his campaign and Russia. I was on Morning Joe today and once again cautioned about declaring a prima facie case of obstruction (as many have done on CNN and other networks) in the absence of facts satisfying the elements for that crime. While it is obviously something of a buzz kill, there still is not sufficient evidence (even if these accounts are true) to support an indictment.
I have previously criticized Northwestern University President Morton Schapiro for his lack of support for free speech on campus. Unlike the University of Chicago across town, Schapiro has been leading the calls for limiting speech deemed to be a “microaggression” or offensive. (For full disclosure, I am a graduate of both Northwestern and Chicago). His lack of commitment to free speech has made him popular with some groups while alarming free speech advocates. That concern was heightened this week when Schapiro defended his efforts to give protected “safe spaces” on campus and said that some offensive speech should be considered a form of “assault.” The comments further distinguish Schapiro was one of the most hostile university presidents toward free speech principles in the country. His pandering to those demanding speech codes and regulations should be an embarrassment for the university, which remains one of the world’s premiere academic institutions. He has taught his students well. Soon after the publication of his latest remarks, student groups shutdown a speaker and a class on immigration. It appears that even classes must now adhere to the mob rule at Northwestern.
Below is my column in The Hill Newspaper on the chorus of commentators suggesting that the Comey memo is compelling evidence for either a charge of obstruction of justice or an actual impeachment. I have been cautioning against such sweeping assumptions. Obstruction is a crime and crimes have elements. The elements are not satisfied by this memorandum. Yesterday senators revealed that Rod Rosenstein suggested that he was already informed that Comey would be fired before he wrote his memorandum supporting termination. That would not materially alter the legal analysis. Rosenstein’s memo confirms that he believed that Comey should be fired. He had met with Comey and clearly left with reservations over his continued fitness for the position. The fact that Trump may have made what Rosenstein thought was the right decision for the wrong reason is marginally relevant. Comey’s immediate boss was not supporting his retention. Moreover, Trump’s conflicting statements do not improve the case for prosecution. It it true that Trump has contradicted his staff and seemingly himself. Yet, Trump has insisted that he felt Comey was doing a poor job and yesterday he reaffirmed his position that he never asked Comey to drop the Flynn investigation. However, even if he said such an incredibly inappropriate thing, it would not meet the standards of obstruction for the purposes of a criminal charge in my view. In other words, this is a question of law not fact and the law is not on the side of those calling for criminal counts or articles of impeachment.
Critics increasingly sound like my kids when we drive across country and start to chant “are we there yet?” before we are even a block from the house. Many view a criminal charge or impeachment as the only hope for America. However, neither the criminal code nor Article II were meant as post hoc political options for unpopular presidents. Indeed, both are designed to be insulated from public distempers and passions.
None of this means that this is not a valid basis for investigation. It is. Moreover, the White House staff appears encircled like a wagon train on the Plains with no ammunition and no nearby fort. The difference is that they seem encircled by their own president who continued to prevent any movement to better ground. What is fascinating is that Trump appears intent on creating the most self-incriminating appearance without evidence of an actual crime on his part.
Here is the column:
We have been writing about the enculturation of anti-free speech values in college students across the country. The most recent incident occurred at the California State University where assistant professor of public health professor Greg Thatcher is shown on a videotape wiping out the pro-life statements written in chalk by members of Fresno State Students for Life. Thatcher supports his students who destroyed the messages before his arrival (those students said that their teacher gave them permission to destroy the free speech of other students). Thatcher’s attitude and open contempt for free speech is chilling. It is also now the subject of a free speech lawsuit filed against him in his personal capacity.
Below is my column in USA Today on President Donald Trump’s disclosure of highly classified information to the Russians in his controversial meeting after the firing of James Comey. While the Administration issued a series of categorical denials of the underlying stories as “false,” the next day it appeared to acknowledge that Trump did in fact reveal the information. As discussed below, it was a wise decision not to repeat the initially misleading statements to Congress. The intelligence was reportedly generated by Israel, which did not give permission to the President to make the disclosure to the Russians. Since the New York Times and Washington Post did not say that Trump released “sources and methods,” it now appears that the White House is not claiming that the stories were false. It is the latest example of denials from the White House which then lead to embarrassing reversals over the course of the coverage. The only good sign is that the White House saw that the false account was raising serious problems and reversed course the next morning. However, the familiar pattern has taken its toll on the Hill where members were conspicuously absent this time in defending the President.
I have previously been critical of the stance taken by former acting Attorney General Sally Yates. I remained unconvinced that Yates had the ethical basis to order for the entire Justice Department to stand down and not to assist the president in the defense of his first executive order on immigration. I also questioned Yates’ decision to voluntarily testify before the House Permanent Select Committee on Intelligence. She was testifying as someone who was recently in a prosecutorial position about subjects related to an ongoing investigation where no one has yet to be indicted. Now those concerns have been magnified by Yates’ appearance in the media to talk about matters center to the ongoing investigation at the Justice Department and other related subjects.