The New York Times has posted a blockbuster story that President Donald Trump ordered that Special Counsel Robert Mueller be fired last June but White House Counsel Donald F. McGahn II prevented the order from being carried out by threatening to resign. If true, it is a chilling disclosure that such a clearly self-defeating and unwarranted act was not just considered but ordered. The firing would have magnified calls for possible impeachment and would have led Congress to move on such options as the renewal of the Independent Counsel Act. While I have written extensively (here and here and here) on Mueller’s conflicts of interest and why he should never have been considered for such a post, I have also stressed that any firing of Mueller would be an act of utter lunacy in the midst of this investigation.
Category: Constitutional Law
Below is my column in the Hill newspaper on the new California law that the state Attorney General is pledging to enforce against employers who are cooperating with federal immigration authorities. There are ample grounds for either businesses or the federal government or both to bring a legal action. The arguments of California in Arizona v. United States — and the holding in that case — could prove damaging to the position of the state.
Judge Jack Robison appears to be channeling a higher authority recently in Comal County, Texas. Robison interrupted jurors during deliberations to inform the panel that God told him to acquit Gloria Romero-Perez of trafficking a teenage girl for sex. It appears that divine judgment did not track well with the jury, which proceeded to find Perez guilty as charged.
I have previously written about the endless calls for impeachment from Democratic members for everything from Trump criticizing NFL players to comments made about protesters. The Framers saw the great abuses caused not only by tyranny of nobility, but tyranny of the majority. They sought to insulate our government from the transient impulses of politics. The danger has been repeatedly shown by members who see virtually any act or comment by Donald Trump as a case for impeachment. The latest such example comes from Texas Representative Al Green, who declared that Trump’s alleged reference to “shithole countries” is sufficient grounds for impeachment. The last time I checked, pottymouth was not included in Article II with “Treason, Bribery, or other high Crimes and Misdemeanors.”
Steve Bannon is now under subpoena by both House investigators and the Special Counsel after he refused to answer questions before Congress. Following a problematic pattern of current and former Administration figures, Bannon reportedly did not invoke executive privilege (which must be asserted by the White House) but refused to answer questions about his work on the transition team and White House. There is no basis for such a broad assertion of executive privilege and, unless Bannon changes course, he could be looking at contempt sanctions down the road. Despite his refusal to cooperate with the committee, he has reached a deal to speak with the Special Counsel investigators outside of a grand jury.
Update: The White House is now asserting that there were prior discussions with the Committee and the Committee violated the agreement on scope. Notably however the agreement was to discuss only matters from the campaign and not the transition or White House periods. That would be an astonishingly limited scope for the Committee staff to agree to given the material events after the campaign, including the time periods covered by statements made by Bannon in the Wolff book.
We have previously discussed the crackdown at Harvard on single gender clubs and associations (even groups off campus). Last year, Harvard established penalties for students who refuse to yield to the rule against belonging to single-gender organizations, including barring students from serving on campus leadership positions. This includes Greek organizations. Now, women are objecting that they are being penalized and denied their “right to choose.” Notably, however, the protesting sororities did not question the barring of males but rather having such rules apply to women.Continue reading “Harvard Sororities Defy Ban On Single-Gender Groups”
Below is my column in USA Today on the renewed calls of President Donald Trump to change our libel laws to make it easier for public officials and figures to sue over publications like the recent book by Michael Wolff. While the controversy was quickly pushed from coverage by the President’s alarming statements on immigration policy, it is clear that he remains heavily invested in this ill-considered idea.
Below is my column in the Hill Newspaper on the controversy surrounding demand letters sent out by the Senate Select Committee on Intelligence — and the scope of the discovery sought by its lead Democratic counsel. The scope of discovery is always a difficult issue in litigation and lawyers resist efforts to limit the scope of evidence. However, reasonable limits are usually worked out between counsel but, in this case, the Senate counsel appears to have doubled down on a definition that is facially too broad. More importantly, it raises serious constitutional concerns. The definition reads too much like a street cry to “bring out your Russians.”
Here is the column:
Continue reading “Democrats Search For Russians — Any Russians — For Collusion”
Below is my column in the Hill newspaper on the filing by Paul Manafort challenging the scope of the Special Counsel investigation. Manafort’s filing of a civil action is quite telling in this circumstance. As a criminal defendant, he can challenge the basis for the charges. This seems like an effort to make a public case with little likelihood of legal success. However, the public tends not to be particularly sympathetic with accused felons complaining that they were arrested by the wrong cop. It is true that Manafort would likely not have been charged absent the Special Counsel investigation. However, that is like complaining about the weather in Washington.
Here is the column:
Another major case has been thrown out due to prosecutorial abuse by the United States Department of Justice. We have previously discussed cases where federal prosecutors have withheld evidence and filed false or misleading statements to the court. Now, U.S. District Court Judge Gloria Navarro has issued a dismissal with prejudice against the Justice Department in the case against Cliven Bundy and his sons due to what Navarro describes as flagrant and knowing violations of professional ethics and federal law by the Justice Department. In past cases, the Justice Department has shown little commitment to discipline, let alone terminate, anyone for the violations (or the waste of millions of dollars). In this case, however, Attorney General Jeff Sessions has called for a review of the case.
We have been discussing how Germany has led the West in the criminalization of speech, an anti-free speech trend that is now raging in England, France, Canada and other Western nations. Germany has continued its plunge into censorship and criminalization despite the failure of its speech laws to curtail extremism. The most recent case involves a 32-year-old German neo-Nazi who has been sentenced to 18 months in prison for incitement after posting picture of a miniature of the Auschwitz death camp on Facebook with an offensive caption.
We previously discussed the erroneous portrayal of U.S. defamation laws by President Donald Trump. Trump has complained previously about the inability to sue his critics due to the protections recognized in the First Amendment. He has returned to that theme at Camp David this weekend and criticized our libel laws as too protective and restrictive. These comments were made in the wake of the failed effort of Trump to prevent the publication of the Michael Wolff’s book Fire and Fury: Inside the Trump White House. As discussed earlier, the threats made by Trump’s lawyer were facially weak, if not meritless, in claiming defamation. That was not a problem of our libel laws. The statements by Steven Bannon leading to the notice letter were clearly opinions and protected under even the weakest defamation law.
Continue reading “Trump Again Suggests U.S. Libel Laws Need To Change”
The New York Times is reporting that Special counsel Robert Mueller has confirmed that President Donald Trump took the extraordinary step of ordering White House counsel Don McGahn to Attorney general Jeff Sessions to prevent him from recusing himself in the Russian investigation. I was one of the earliest voices calling for Sessions to recuse himself and continue to believe that he made the right decision not only for himself and the Justice Department but Trump. The account in the Times states that Trump was irate at hearing that Sessions would follow the advice of his ethics advisors and recuse himself. He allegedly asked why he does not have an Eric Holder or Roy Cohen to protect his interests. If true, it was a grossly inappropriate decision and an even more worrisome analogy. I have been a long critic of Holder and his highly political tenure at the Justice Department. As for Roy Cohen, he is one of the most reviled and disreputable figures in history. It would be akin to a CEO asking where is his Bernie Madoff to protect profits. The accounts is based on two sources that are anonymous and we have not heard from the President. Obviously, McGahn could also deny the truth of the story but we have not heard from either McGahn or Trump’s personal counsel.
Continue reading “NYT: Trump Tried To Stop Sessions From Recusal”
I have previously written about the reckless claims of commentators and congressmen for the impeachment or removal of President Donald Trump. Some based these calls on tweets posted by Trump, including comments on the NFL protests. When calls for impeachment began to wane, many turned to the 25th Amendment. Now, the former ethics lawyer to President George W. Bush Richard Painter has declared that Trump can be removed on the basis for removal under the 25th Amendment — a dangerous and unsupportable interpretation of the constitutional standard.
Continue reading “Bush Ethics Lawyer: Trump’s Nuclear Button Tweet Is Sufficient For Removal”
For free speech advocates, there was another chilling development last week in the expanding censorship of social media and the criminalization of speech in the West. The government is investigating Beatrix von Storch (the deputy leader of far-right party AfD) for a tweet posted on New Year’s Eve in which she accused police of appeasing “barbaric, gang-raping Muslim hordes of men.” The statement was barred on Twitter and Von Storch and others were barred on Twitter and Facebook. Once again, raising the free speech concerns is not an endorsement of such offensive posts. Rather, the Germans have taken their controversial speech regulations and have extended them to social media — forcing these companies to become active players in the censoring of political speech. People may have no objection (and even relish) the crackdown on the AfD but the implications for speech is far greater than these individuals.