It appears that things got ugly in a recent meeting between Deputy Attorney General Rod Rosenstein and House oversight staff. Rosenstein reportedly threatened to “subpoena” House committee members if they went after him with a contempt sanction for failing to turn over material on the FBI’s investigation of Trump campaign officials. If the account is true, it was a mistake by Rosenstein. To quote The Godfather, oversight is not personal, its oversight business. Continue reading “It’s Not Personal, Mr. Rosenstein, Its Strictly Government Business”
Category: Constitutional Law
Below is my column in The Hill newspaper on the implications of the indictment of James Wolfe for lying to federal investigators. I have very serious concerns over the targeting of a journalist for surveillance in this case, particularly because there seems ample alternatives to the intrusion into confidential communications of a reporter. However, the most obvious threat may be to Andrew McCabe who is still awaiting word on whether he will be criminally charged and recently sought immunity from Congress. Continue reading “The Wolfe Indictment: Is Andrew McCabe Next In Line For Prosecution?”
There has been continued controversy over the penchant of President Donald Trump to pardon celebrities or political figures or, most recently, a woman who was championed by Kim Kardashian. Today Trump announced that he is considering a pardon for the late boxing sensation Muhammad Ali — not long after he granted a posthumous pardon to boxing legend Jack Johnson (who was advocated for by celebrity Sylvester Stallone). This case however raises the added curiosity that Ali’s conviction was overturned by the Supreme Court in Clay v. United States, 403 U.S. 698 (1971)(when Ali was still under his birth name of Cassius Clay). Obviously, there is no conviction to pardon or commute in this case. In addition to the overturning of the conviction, draft dodgers were given amnesty previously by both Ford and Carter. Continue reading “A Pardon For Muhammad Ali Is Neither Needed Nor Warranted”
Below is my column in USA Today on the assertion of President Donald Trump that he can pardon himself. Since such an act would be the most profoundly disgraceful moment in the history of the American presidency, it is chilling to have a president to even engage in such a public debate. However, I believe that such a power does exist in the Constitution. It is a long and unresolved debate that turns on how you interpret silence. Since the Constitution is silent on any bar against a president benefitting from this power, I believe that a self-pardon is indeed constitutional, even if distasteful. Continue reading “Trump Can Indeed Pardon Himself . . . And We Should Now Never Speak Of This Again”
I will be testifying today in the Committee on Homeland Security and Governmental Affairs Committee’s Subcommittee on Federal Spending Oversight and Emergency Management. The hearing is entitled “War Powers and the Effects of Unauthorized Military Engagements on Federal Spending” and will address the new proposed Authorization for Use of Military Force (AUMF) proposed by Senators Bob Corker (R-TN) and Tim Kaine (D-VA). As my testimony below discusses, the new legislation would represent an unprecedented change in the law governing war powers. The new AUMF amounts to a statutory revision of one of the most defining elements of the United States Constitution. Putting aside the constitutionality of such a change absent a formal amendment, the proposed legislation completes a long history of this body abdicating its core responsibilities over the declaration of war. Continue reading “Turley To Testify On War Powers In Senate Today”
In a major development, Manhattan Supreme Court Justice Jennifer Schecter has ordered that President Donald Trump must sit for seven hours of questioning in the defamation case of former Apprentice contestant Summer Zervos. The case is a defamation action is linked to Zervos’ allegation of sexual harassment by Trump. In April, I wrote a column warning that Trump’s local counsel in various states were recklessly using presidential privilege and immunity arguments to try to kill various lawsuits. Now, just as Trump’s team appears to be moving away from a sit down with Special Counsel Robert Mueller, he will have to submit to a grueling, high-risk deposition in New York. The obvious analogies to the Bill Clinton scandal and impeachment are inescapable. Continue reading “Court: Trump Must Appear For Seven Hour Deposition In Defamation Case”
Just days after President Donald Trump was seen as sending a message to Mueller targets that he could still help them with pardons, Special Counsel Bob Mueller could be sending a message of his own: your future may belong to the President but your present belongs to me. In a major move, Mueller has accused Paul Manafort of witness tampering and is seeking his possible jailing in an adjustment of his pre-trial status. For someone like Manafort, jail can be a panic-inducing element in an already nightmarish case. The motion seeks to “revoke or revise” his current status of home confinement before trial.
Continue reading “Mueller Accuses Manafort Of Witness Tampering And Seeks Jail”
President Trump this morning has caused a stir by declaring that he can grant himself a self-pardon. As I argue in today’s column and prior writings (here and here), he is right. Continue reading “Yes, the President Can Pardon Himself”
As I discussed on Morning Joe this morning, I was surprised when President Trump’s counsel Rudolf Giuliani declared in an interview that Trump could have shot James Comey in the Oval Office and not faced indictment under the Constitution. For those of us who have long argued against sweeping immunity arguments in favor of presidents, this is the hypothetical that we often raise to prove our point. It is bizarre to hear someone use it as an argument in favor of such immunity claims. I have previously written that I believe a sitting president can be indicted. Article II is not where the homicidal meets the constitutional.
Continue reading “Guiliani: Trump Could Have Shot Comey In Oval Office And Not Face Indictment”
Below is my column in USA Today on one of the lines of inquiry by Special Counsel Robert Mueller: the stated desire of President Donald Trump to fire Attorney General Jeff Sessions and his poor public criticism of the Attorney General for recusing. That inquiry has become more damaging with recent disclosures of an effort by Trump to convince or coerce Sessions to reverse his decision to recuse himself. Despite renewed calls for obstruction charges or impeachment counts, there is a clear defense emerging for Trump based on recent comments. Indeed, it may be the only viable defense that accepts these facts while rejecting the claim of criminal obstruction (other than the untested claim that Trump is effectively immune from such a charge).
Here is the column:
We recently discussed the disruption of a speaker at a university that was led in part by a professor who believed that she had a right to prevent other faculty or students from hearing the views of speaker Dave Rubin, a Democrat online talk show host who has called for free speech protections on campuses. University of New Hampshire Professor Dr. Joelle Ruby Ryan screamed profanities and refused to respond to Rubin’s invitation to have a dialogue. She is part of a growing number of faculty who rally their students against free speech values and seek to prevent those with opposing views from being heard.
George Washington University is embroiled in a federal challenge against its handling of a case by one of our students accused of sexual assault. The case raises troubling questions of the school’s actions following the disclosure of alleged false statements by an accuser. Many years ago, I wrote a letter to the GW faculty objecting to changes in our rules governing the investigation and adjudication of sexual harassment and assault cases. Like many universities during the Obama Administration, GW was reducing protections for students accused of such misconduct under pressure from the Department of Education (here and here), Now, a “John Doe” has raised some of those very concerns in the alleged refusal of the school to allow an appeal in his case following the discovery of potentially exculpatory evidence. Continue reading “GWU Sued For Refusing Appeal In Sexual Assault Case Despite Allegations of False Testimony”
Below is my column in The Hill newspaper on the calls for a constitutional challenge to the new NFL policy against protests during the National Anthem. While many have claimed that the policy violates free speech rights of the players, there is actually little support for such a challenge under constitutional law. The best shot might be procedural in nature in arguing that the collective bargaining agreement requires conferral on such rules with the players. Putting aside the strong defenses to this claim, it would likely only require consultation and not a change in the ultimate policy.
Here is the column: Continue reading “No, NFL Players Do Not Have A Constitutional Right To Protest During The National Anthem”
Emmet Flood, the latest lawyer added to the White House as part of its defense to the Russian investigation, was meant to bring experience and order to the chaotic legal team around President Donald Trump. However, his first public move can only be described as a blunder of the first order. Flood went to yesterday’s much discussed briefing to speak with members of Congress. Two highly classified briefings were scheduled to discuss the use of informants by the FBI in its investigation of Trump campaign associates. It was precisely the type of thoughtless act that has baffled many of us for months. Little would be achieved by Flood briefly addressing the members but, in appearing, Flood undermined the integrity and stated purpose of the meeting. He created the impression that the briefing was first and foremost about the defense of the President personally. In doing so, he undermined the entire exercise with virtually nothing to gain from his attending the meeting. None of this was criminal or unethical. The concern is that it shows a continued failure to mind critical lines of separation as well as a dumbfounding lack of judgment.
Addison Barnes, 18, is suing his school, Liberty High School in Hillsboro, for violating his free speech rights under the First Amendment. Barnes had simply worn a t-shirt reading “Donald J. Trump Construction Co. . . .The wall just got 10 feet taller.” He was suspended for refusing to cover up the message. It is clearly a political statement that some would object to. However, high school students are encouraged to become involved in the political system and nothing on the shirt is profane or racist or vulgar. If this t-shirt is offensive and barred, wouldn’t any political or religious or social cause be equally subject to such action? The question answers itself and the implications are troubling.
Continue reading “Oregon High School Student Suspended For Wearing Pro-Trump T-Shirt”