Category: Constitutional Law

John Dean Calls Leaking The Questions A Possible Basis For Obstruction Of Justice

E0398-03APresident Nixon’s White House counsel John Dean claimed that if the Trump administration leaked questions from special counsel Robert Mueller it could qualify as obstruction of justice.  Once again, I disagree with such sweeping interpretations of the crime of obstruction of justice.  Leaking such questions or topics would not be a crime under any case that I am aware of in defining the crime of obstruction.

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Comey v. Comey: How New Disclosures Could Put Just One Week Between Comey and Perjury

Former FBI Director James Comey continues to market his book – and himself – as a lesson in “ethical leadership.”  However, the historical record is proving increasingly at odds with Comey’s account and image. After months of spins and swerves by defenders, a consensus is emerging that Comey is indeed a leaker.  The most damaging evidence, however, comes not from Comey’s critics but Comey himself.  Indeed, Comey v. Comey could be the most telling conflict in this still unfolding scandal.  However, at issue, is not simply whether Comey will be viewed as a leaker or a liar, but a perjurer.

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Europe’s Invasive Species: We Should Keep Macron’s Oak And Send Back His Speech Limits

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U.S. House of Representatives

Below is my column in The Hill on the speech by French President Emmanuel Macron and his calling for the United States to join France in a crackdown on “fake news.” Our members were either clueless or complicit in this thinly veiled call for speech regulation on the Internet. However, there is growing pressure from Europe for the United States to abandon its long commitment to free speech — a call that is being heard by a rising number of academics and politicians.  I love the oak (which has disappeared) but the advice in far more invasive for this country.

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Federal Judge Rules Against Berkeley In Victory For Free Speech

Seal_of_University_of_California,_Berkeley.svgI have previously criticized the University of California at Berkeley for its highly biased history in dealing with conservative speakers who come to campus.  Now, federal judge Maxine Chesney has agreed with the Young America’s Foundation (and the U.S. Justice Department) in rejecting a motion to dismiss by Berkeley — forcing the school to deal with its policies and priorities on the exercise of free speech.  The president of the University of California system is Janet Napolitano, former  United States Secretary of Homeland Security under President Barack Obama.

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SHOULD TRUMP PARDON COHEN?

Below is my column on the question of whether President Donald Trump should pardon his personal lawyer, Michael Cohen.  Cohen has notified a judge in California that he will refuse to answer questions in a case brought by counsel for Stormy Daniels by invoking his Fifth Amendment right against self-incrimination.  President Trump, who has ridiculed people who invoke their Fifth Amendment rights, called into Fox and Friends to

 

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Turley To Give The 2018 Thomas M. Kerr, Jr. Lecture At Carnegie Mellon University

Turley-600x287I have the honor today of giving the 2018 Thomas M. Kerr, Jr. Lecture on Law and American Society at Carnegie Mellon University.  My lecture will be on The Rise and Fall of Free Speech in the West and will be held in Gregg Hall (Porter Hall 100) on Thursday, April 26th from 5:00 to 6:00 p.m.

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Fresno Professor Faces Calls For Termination After Declaring “The Witch Is Dead” Hours After The Passing Of Barbara Bush

California State University Randa Jarrar is facing calls for her termination after she appeared to celebrate the death of former First Lady Barbara Bush.   A petition calls for the  “Immediate termination of Professor Randa Jarrar for racism and inflammatory comments regarding a former First Lady of the United States, Barbara Bush.”  Jarrar’s comments were disgraceful and hateful, but there remains a question of the free speech rights of teachers and professors in their private lives.

 

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Liar, Liar, DOJ On Fire? Comey and McCabe Offer Sharply Conflicting Accounts

440px-Comey-FBI-PortraitAndrew_McCabe_official_photoI previously wrote that President Donald Trump has the curious skill of bringing out the worst in his critics.  In the last two weeks, two of Trump’s greatest critics have not only faced their own investigations into leaks by the Inspector General (and McCabe is now the subject of a criminal referral for prosecution), they are increasingly at odds with one another. It is clear that either Comey or McCabe is offering a false account of leaks from the Justice Department.  With McCabe now promising defamation lawsuits and the possibility of a prosecution, this could get much worse before it gets better.

 

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Comey and McCabe Leap From The Moral High Ground Into The Trump Abyss

440px-Comey-FBI-PortraitAndrew_McCabe_official_photoBelow is my column in USA Today on the rapid demise of James Comey and Andrew McCabe, who have fulfilled the very stereotypes drawn by President Donald Trump.  Comey continues to spin the controversy over his book as fulfilling what he saw as a need for ethical leadership (i.e., Comey himself).  Comey acknowledged that he never asked Mueller if he should wait on the book.  Why? If you are so committed to the FBI and this investigation, why would you not ask about the possibly deleterious effects of a tell-all book (which discussed both public and nonpublic evidence).  Clearly the book was not helpful to the investigation, but that did not matter to Comey who saw the greater need as advancing himself as the personification of virtue and ethics — while cashing in on the first tell-all book from a former FBI Director.

Here is the column:

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Mr. President, Beware Of The Wolf Trap

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NPS.gov

Below is my column in The Hill newspaper on the greatest danger for President Donald Trump in the raids on his personal attorney’s office, home, and hotel room.  Michael Cohen’s real threat may be as bait — either by design or default.  It is the perfect Wolf Pit and Trump could prove the ultimate prize if he is not restrained in his reaction to the raid.  The most significant blows for his Administration has been the result of Trump’s responses to events.  The most obvious was his disastrous decision to fire Comey in the middle of the Russian investigation.  Already, the Cohen raid has reportedly pushed Trump away from speaking with Mueller.  Cohen has already maximized the damage to himself and his client. He may now have derailed the effort of Trump’s D.C. legal team to prepare him for a sitdown with Mueller on four categories.  At the same time, Trump is reportedly back to threatening that he might fire Mueller or Rosenstein or Sessions.  Despite the overwhelming view of experts and Republican leaders that such a move would highly damaging to his Administration and could trigger impeachment proceedings, there is still a palpable fear that that Trump could take such a self-defeated course.

Here is the column:

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Stuck In Denial? Media Struggles With The Fact That Trump Is Not A Target Of Mueller Investigation

donald_trump_president-elect_portrait_cropped440px-Director_Robert_S._Mueller-_III-1Below is my column on The Hill newspaper on the significance (and coverage) of the Washington Post story that President Donald Trump is not a target of the Mueller investigation but only a subject of the investigation. None of this means that the risks for Trump in a sit down interview do not remain high. Even as a subject, he could be accused of false statements — a concern with a President known to go “off script” in meetings.
Here is the column:

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The Curious Case of The Andrew McCabe Legal Defense Fund

Below is my column in the Hill newspaper on the curious timing of a legal defense fund for Andrew McCabe — started and closed before the release of a report on his conduct.  With the sentencing of the first Mueller defendant, Dutch lawyer Alex van der Zwaan, there are obvious questions of why people like Flynn and van der Zwaan should face prison for single false statements while McCabe is accused of lying four times, including twice under oath.  Mueller’s office insisted that anyone who lies to investigators deserves to be sentenced and punished, but that standard appears to change be somewhat fluid when a former high-ranking FBI official is implicated.  Nevertheless, I can certainly understand McCabe’s interest in a legal defense fund given the ongoing IG investigation and addition of a prosecutor to the team.  However, the money was raised before donors could know the full account of the allegations against McCabe. Moreover, McCabe can use this money for any legal needs as he enters private life.

Here is the column:

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Scottish Man Arrested After Leaving Napkin In Restaurant With Racist Language

England flagThere is a new controversy in Great Britain over the expanding criminalization of speech. An arrest has been made after an intensive investigation of napkins left at a Chinese restaurant containing racist language.  The napkin was left by a young couple at the Hong Kong Star, a restaurant in Dumfries, Scotland. As vile as the language was on the napkin, the investigation and arrest illustrates the degree to which speech is being criminalized in Great Britain.  Warning: this article has profane and racist language below.

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The Proposed Mueller Protections Would Achieve Little While Risking Much For Congress

800px-Capitol_Building_Full_ViewBelow is my column in the Hill newspaper on the push for new legislation to Robert Mueller.  I supported the appointment of a Special Counsel and still believe that Mueller must be allowed to complete his work. However, this legislation would do little in terms of real protection while putting at risk a major piece of precedent from the Supreme Court.

Here is the column:

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Sessions Moves To End The Spin Cycle: The Independent Investigation of FBI Allegations Is Long Overdue

jeff_sessions_official_portraitBelow is my column in The Hill newspaper on why a separate and independent investigation of the FBI’s conduct is warranted.  My support for the investigation is not because I believe that criminal charges will likely be brought. Rather, I have never seen our country more divided and I cannot imagine any way for us to get beyond this poisonous political environment without full and complete investigations with public disclosure of the findings.  As I have stated in interviews, I comment Attorney General Jeff Sessions in not only giving this matter to the Inspector General but ordered U.S. Attorney John Huber to assist in the investigation.  The combination of the U.S. Attorney and the Inspector General is likely to expedite the investigation and maximize the options for the Justice Department — including the option reserved by Sessions to eventually order the appointment of a Special Counsel.  Critics of Sessions are missing the import of the joint investigation.  He has selected a line prosecutor from outside of the Beltway to review the conduct of FBI officials, including James Comey and Andrew McCabe. Huber adds prosecutorial experience and powers to the ongoing IG investigation.

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