Below 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.
Category: Constitutional Law
Below is my column in USA Today on the call of former Supreme Court Justice John Paul Stevens for the repeal of the Second Amendment. It was a moment of honestly that young protesters should heed in fighting for real change. So long as this is a protected individual right, there are serious limits on how much that right can be curtailed. It is time for an honest debate in this country. Stevens called the right a “relic of the 18th Century.” Of course, one person’s relic is another person’s rifle.
Here is the column:
A federal judge issued a surprising decision that allowed part of an emoluments challenge to proceed toward trial. The opinion has been widely misreported, but still represents a rare win for those arguing that President Donald Trump is accepting prohibited payments from foreign governments at the various Trump properties. However, the decision is only on the threshold standing question and did not address the merits of the constitutional claim. Moreover, United States District Judge Peter Messitte dramatically narrowed the action to only claims related to the Trump Hotel in Washington, D.C. These is considerable debate over the meaning of the Constitution’s “emoluments” clause. There are clearly good-faith arguments that such payments fall within the meaning of the language, but I remain highly skeptical. Even with the much reduced action, I think Messitte is wrong and that the action should have been dismissed in its entirety. Previous actions have been dismissed.
Continue reading “Federal Court Permits Emoluments Challenge To Move Forward”
Democratic attorneys general in several states have announced that they will challenge the addition of a citizenship question in the next U.S. Census as hostile to undocumented persons and discriminatory under the 14th Amendment. I do not see the compelling argument against such a question which has been asked in prior years, though not on a decennial survey since 1950.
Turkish President Recep Tayyip Erdogan has expanded his destruction of civil liberties and secular government with a new call for the arrest of students opposing war as “terrorists.” Erdogan was not content with arresting or firing thousands of intellectuals in Turkish schools. He now wants to arrest free-thinking students — leaving Turkish colleges occupied by government-approved faculty stooges and government-controlled students. He has also barred the teaching of various subjects including evolution. Erdogan’s ire was directed at students at Bogazici University. I had the pleasure of speaking at Bogazici University years ago and it was considered one of the finest academic institutions in the World. The university attracted the top students in the country and it is little surprise that Erdogan and his religious parties would view the students as a threat.
Below is my column in The Hill newspaper on the reported proposal that President Donald Trump sit down with Special Counsel Robert Mueller to address four specific areas of inquiry. Those areas just happen to be the ones where Trump has the strongest and most obvious defenses. If the deal is that this would be a one-time sit down (and any later issues would be addressed in written interrogatories), it is a deal that would be hard to pass up. It is not without considerable risks of course, particularly for any false statement allegations. However, if the President were ready to be properly prepped and listens to counsel, he could thread this needle. It would also avoid a fight over a subpoena. While the law on the question is hardly settled, Mueller could win such a court fight and force Trump into an interview. Both the political and constitutional costs of such a fight should be avoided.
Here is the column:
The White House announced today that President Trump will not hire Joe diGenova and Victoria Toensing as counsel due to conflicts of interest. The announcement of diGenova’s selection led to a chorus of objections from his being a “television lawyer” to a conspiracy theorists. I recently wrote a column that noted that diGenova was the former U.S. Attorney for the District of Columbia and considered one of the most experienced lawyers in the city. However, there was reportedly opposition in the White House including reportedly from John Dowd who resigned around the same time. Dowd has not spoken publicly to confirm or deny that reported position.
Continue reading “White House: diGenova and Toensing Will Not Represent Trump”
We previously discussed the case of Mark Meechan who thought it was funny to train his pet pug Buddha to give a Nazi salute when he said “Sieg Heil.” It was a joke and clearly many could find it offensive. However, he was charged criminally and has now been convicted in yet another attack on free speech in the United Kingdom.Continue reading “Scottish Man Convicted In Hate Crime Trial For Teaching Pug To Give Nazi Salute”
Below is my column in The Hill newspaper on the issuance of a subpoena to the Trump organization for records pertinent to Trump business dealings in Russia. President Trump previously responded to a question of whether such inquiries into his business dealings would be a “red line” by saying that it would. Whether it is a red line or a “Rubicon,” Mueller seems to have crossed it. Of course, the Trump Organization has been asked for information previously and it is cooperating. However, this is a direct demand for business records. In the best case scenario, this could be a clean up subpoena to guarantee that all available documents have been reviewed. Then again it might be a new front in the investigation. Notably, this weekend, President Trump and his counsel ramped up their criticism of the investigation — criticism that I continue to view as unwise and inappropriate.
Here is the column:
Continue reading “Trump Drew A Red Line For Mueller; Mueller Just Crossed It”
Below is my column on various proposal for gun control reforms after the latest school massacre in Florida. As the column discusses, the constitutional burden is more demanding than suggested by many politicians. This is clearly a right that is subject to reasonable limitations but it is an individual constitutional right that affords gun owners a higher protection in the court.
Continue reading “Will Court Challenges Shoot Down The Array Of New Gun Control Law?”
Below is my column in USA Today on the nomination Deputy Director Gina Haspel to head the CIA. While Sen. Rand Paul has declared that he will oppose Haspel over torture, some Democrats (who are being criticized for previously failing to act on torture allegations) are again hedging on whether they will oppose a nominee solely due to her involvement in the torture program. However, one promising development is an effort by Sen. Dianne Feinstein to have Haspel’s record on torture declassified. There remains some debate over Haspel’s role on notable cases. Reports still indicate that Haspel oversaw the torture of Abd al-Rahim al-Nashiri at the “Cat’s Eye.” However, it is not clear if she was “Chief of Base” during the torture of Abu Zubaydah. ProPublica issued a correction Thursday that she was not Chief at the time of the Zubaydah torture. There is no debate that Haspel ordered the destruction of evidence of the torture program.
Here is the column (which has been edited since its original posting):
Continue reading “Gina Haspel’s CIA Nomination Is A Women’s Milestone We’d Be Wise To Avoid”
The rollback on civil liberties and press freedoms continues in Egypt where our close ally is arresting journalists for insulting the government or police. Now even pro-government media figures are being arrested. The arrest of prominent television host Khairy Ramadan is an example of how, once censorship and the criminalization of speech starts, the appetite for speech control becomes insatiable.
Continue reading “Prominent Egyptian Television Host Arrested For Disrespecting The Police”
Hong Kong movie star Jackie Chan has long been known to harbor authoritarian and anti-free speech views. Now, the action movie star is calling for other artists to be arrested for art that is deemed insulting to China, particularly in advancing favorable images of the Japanese. Chan and his 37 other members of the Chinese People’s Political Consultative Conference called on then government to punish fellow artists who insult “national integrity and dignity.” The call follows Chinese artists who wee criticized for showing the Japanese in World War II in a positive light. This by the way was part of the propaganda issued by the U.S. government against the Japanese. The racist elements are quite evident and shocking. Hollywood was a critical part in our propaganda efforts during the war. Now, over 50 years later, Chan and other artists and authors however are seeking to criminalize speech that is viewed as sympathetic or favorable to the Japanese.
There is an interesting lawsuit in Oregon where Tyler Watson is suing Dick’s Sporting Goods for age discrimination after the store (and Walmart) declared that they would no longer sell guns to people below 21 years old. Since he is entitled to buy guns under state law, he is claiming that the store policy discriminates against him on the basis of age in refusing to sell him a .22 caliber Ruger rifle.
Below is my column in The Hill newspaper on the reported determination of the Inspector General that former Acting FBI Director Andrew McCabe misled investigators about a leak to the media. There may be a question of consistency in criminally charging Michael Flynn for the same alleged act. People continue to spin this issue by noting (as the piece states) that Flynn agreed to this false statement crime as part of a plea bargain with more serious potential crimes. However, that misses the point. Prosecutors are required to apply the criminal code evenly. They are not allowed the luxury of a criminal charge that can be easily applied to a wide array of people at their discretion. It makes it very difficult for people to contest a criminal charge when prosecutors can simply criminalize any inaccurate or misleading statement while ignoring the same conduct in others. It is particularly concerning when the favorable parties are fellow prosecutors or government officials. My argument is not that we should have more false statement charges. Rather, there has long been a problem in the use of this provision which has been applied in an arbitrary manner.
Here is the column:
Continue reading “If Andrew McCabe Lied, Could He Be Charged Like Michael Flynn?”